Zero To Not Guilty In 1.37 Seconds – Beating the State at Their Own Crash Test

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Final question was, "And you never watched the video?" And his answer was, "Well, actually I have." I said, "What? What? What? What?" And so we send the jury out and the judge is like, "Okay. I see where this is a problem." I said, "Your Honor, everything he's going to say right now is going to be a discovery violation." And the judge goes, "Well, why don't you just ask him some questions?" I said, "All right." And I, you know, I asked him the first question and I said, "So why did you watch the video?" And he said, "You kind of called me out in the interview and kind of made me feel like I should have done that."

So I was like, "Good enough for me." And I said, "Judge, let's bring back the jury and let's, let's, let's, let's let it ride."

Welcome.

It's season three of Another Not Guilty. I'm David Moore. Here, along with my fellow public defenders, presenting to you the untold stories of the criminal justice system.

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

These stories are about the not guilty as public defenders get on a daily basis in an unjust criminal system with the deck stacked against us.

Another Not Guilty.

Welcome back, everybody, to Another Not Guilty. Coming to you live and fresh, even though this has been recorded on a separate day. Anyways, we've got a fresh hot take today. Speaking of fresh hot takes, our co-host is Miss Allison. Allison, how are you doing today?

Hi, I'm good. Thank you. Allison's been gracious enough to take user lunch break today at work and be my co-host. I, of course, am on paternity leave. So guys, there's a lot going on in the world today. We have the pandemic. We have a lot of the Black Lives Matter movement going on. Power to Black Lives Matter. And the jury trial we're bringing today just happened this week. It was a COVID jury trial.

Hi, I'm good.

I'm good.

Allison's been gracious enough to take user lunch break today at work and be my co-host. I, of course, am on paternity leave. So guys, there's a lot going on in the world today. We have the pandemic. We have a lot of the Black Lives Matter movement going on. Power to Black Lives Matter. And the jury trial we're bringing today just happened this week. It was a COVID jury trial with police brutality.

So I feel like it's very timely.

Yeah, I think that's great. I actually didn't realize that. So yeah, that's awesome. I'm excited. I'm even more excited now to host with you.

Police brutality, COVID jury trial. I'm on paternity leave. You're in the immigration unit. Let's well, but you'd not be in it. I'm on paternity leave. I need to get out there and talk to a public defender that's out there on the front lines making it happen.

Wait, were you just about to talk shit about me?

Because you're not, you're just, you have an office assignment. You're not out there in the courtrooms on the front lines of the pandemic, you know, addressing racial injustice.

You kind of, I'm, you know, I didn't want to talk shit like that.

I was just, oh, but that was your first instinct.

Yeah. Well, cause to, to group us together and then distinguish us from our guests. So like, oh, we gotta, we gotta go talk to this guy out there, this public defender.

We, that's what we gotta do. Awesome. There's a public defender out there on the front lines during the COVID, during the COVID pandemic with all the police brutality and the black lives matter movement.

Addressing systemic racism, racial injustice. There's a public defender out there and we gotta go talk to him.

Let's do it.

All right. Let's give him a call. I mean, if he'll even answer us. I mean, he's so busy. I mean, that's a big deal now. Let's see if he's even, wants to even.

Oh, that's his public defender. That's his, that's his office number. That's why. Okay. Hold on.

Oh, you gotta leave that in though. That was hilarious.

That's his office line. I don't, I don't call him on a cell phone.

He really is too busy for us.

Yeah. Here we go.

Gabe Rothstein. Hello.

Yes. Hi. Uh, this is David Moore from another not guilty sitting here with Allison. Uh, we're looking for the, a public defender that's out there on the front lines of the criminal justice criminal system right there in the middle of the pandemic addressing racial injustice. Is there a public defender I can speak to you about that?

I'm here. I'm a little humbled. I don't know. I love to say that's all me.

That is all you game.

Gabe Rothstein. Everybody, uh, is our guest today. Say hello to, uh, all the, another not guilty land.

Uh, hello to all the listeners. I love this podcast. It is. I just have to say it's like an honor to be, to be on, to be on. I've been, I've been a fan. I listened to all the episodes. Sometimes I saved them for road trips cause I want friends to listen as well.

Oh, I love that. Well, it's an honor to talk to you and hear about your story.

Yeah. Um, you know, so, uh, Gabe, you are, you're a public defender up in Tohomish.

Tohomish?

Snohomish. We are, we are one County North of King County. So one County North of Seattle. I, I reside in Seattle and, and, and do a, you know, a, you know, a little commute every day.

Okay.

Um, wait, same as Cassie.

Yeah. Cassie is one of my best friends.

Oh, awesome. Okay.

Cass, Cassie and I have been, have been tight, good buddies for a long time. I, you know, I, I love listening to her talk to you guys.

And right after the verdict was the one who said, you need, you need, you need, let me get you in touch, touch with David.

And I was like, oh, I love that.

And I also love that it's two, two episodes and David still doesn't quite know the name of the County.

I know. I always need to change your, you know, edit the contact information I have for you now. So it's not Tohomish. Okay.

It's not Tohomish. Okay.

And what on earth did you say in Cassie's episode? Was she just too polite to correct you?

I don't know. I don't know. Um, Cassie guys.

You know, it's about the, it's about the story more than it is about the pronunciation of the County.

That's absolutely true.

And for those of you listening, we're talking about Cassie, who was the public defender guest in season three, episode eight, Hakuna Matata.

Uh, anyways, her and Alison really clicked that episode. So guys check it out.

Uh, Gabe is a colleague or a fellow public defender in Snohomish, Snohomish County with Cassie.

And, uh, that's great. Uh, so you live in Seattle then. What's that?

What's that? Is that, is that where all the chaos is happening?

Uh, you know, are you safe right now? Are you safe?

The news wants you to believe that it's complete chaos. I live three blocks from the Chaz chop zone.

Okay.

Literally three, three, I'm three blocks away.

Yeah.

Um, it really became a really good place for activism. Um, one of my, a good friend of mine who also used to work with us, uh, who's now a King County, uh, Seattle, you know, Seattle County public defender.

And he was out there one day, just, you know, put a little chair out, put a little sign saying, you know, real talk with someone who's in this, in the criminal system.

You know, I'm a public defender here, but let's talk and just put out a chair and people, you know, come by and talk to him.

You know, the news made it sound as if, you know, this, it was an occupied zone.

You know, most of the area was a park where people, you know, people, you know, just camped in the park and it was, it was a real, I thought it was a really good vibe.

You know, there was a while where it almost turned into a bit of a street fair, which I know some people had problems with, but there was a part of it that I didn't mind about having people bring their children there to kind of see, you know, you can be, you can be active in politically and you can be active in your community and also being positive at the same time.

So, you know, I, I thought there was a lot of positive stuff to it.

All right.

Well, let's move on.

Let's talk about your case though, guys.

So Cassie did reach out to me and she texted me saying that her colleague, Gabe, is fresh off a not guilty, a police assault case during the pandemic.

I thought that was super relevant.

I want to interview, interview you right away, Gabe.

So thanks for being on the show today.

My pleasure.

Yes.

And so let's get going.

Okay.

So tell us about this, this not guilty you just had.

What were the charges?

Okay.

So it was, it was a four count, four count, uh, case.

The only two counts were the first two that really mattered.

Uh, we, we, I was ready to concede the other two from the jump.

It was two counts of assault with a deadly weapon vehicle.

Uh, one count of DUI meth and one count of possession of controlled substance meth.

Oh, okay.

Okay.

So the charges would seem to indicate that they're alleging your client was high as fuck on meth driving a car and almost hit some people.

Kind of like what they're saying happened.

They actually, it was, it was DOC officers going to, I can, I can break it down.

So the, the allegation is that my client is on DOC probation, which basically means he's on, you know, a felony probation.

He has, uh, he failed to report.

So they have a warrant for his arrest, three DOC officers and a, um, a local police officer go to serve a warrant on him.

And then they go to his house, uh, his apartment and they get word from someone in the complex.

Um, someone who I guess deserves stitches in a situation like this, that he is in, uh, his car in the parking lot.

So the law enforcement heads out to, you know, the parking lot there, the officers, the DOC officers are quite spaced out.

So officer number one gets there first.

And my client's got his car parked way in the back.

And the configuration of the parking lot is it's rectangular.

And on one side is the apartment building itself.

On the other side is a rock retaining wall with bushes on it.

So he's backed up to the wall.

He's got some dumpsters in front of him and he's in the car.

And suddenly he, you know, looks up and there's a DOC officer with, you know, wearing, you know, his gun.

He's got his, his, his patches.

He's got everything else.

And he's pointing a gun at him saying, get out of the car, get out of the car, get out of the car.

And the, one of the other DOC officers is running towards the car along the retaining wall.

Uh, the other officers coming in.

And the uniformed police officer gets in his police car and he starts zooming down the parking lot right at where my client is.

There are no other cars in the lot at this time.

And the allegation is that my client hits the gas, revs, you know, revs his engine really hard, hits the gas, uh, comes, drives straight at the first officer.

Then banks hard to the right.

Meanwhile, the police car's zooming in right at him.

He, you know, continues to turn to the right, avoids both.

The officer who says he has to jump out of the way, he avoids the police car, and then goes smashing into the rock wall right, essentially right in front of where the other DOC officer is.

And, and this is, so he's responding to officers coming at him with guns, telling him to get out of the car.

His response is to, is to back up his car and drive, kind of drive.

Oh no, he's not back up, he's, he's, he's, he's, he was backed in, so he's moving forward the whole time.

Okay, okay.

And so he hits the wall in front of him.

No, because he makes a full circle.

A full circle, okay.

David, let's hear, what is your email address?

Indulge me.

Okay.

Um, let's do a zoom.

And I just want you to see it.

It's 20 seconds.

Okay.

Okay.

Let's do a zoom.

Okay.

So guys, we are now doing a zoom with Gabe Rossing from, uh, the Snohomish County public defender's office.

He is showing us the video that was the whole case.

So we are going to give you, the listeners, a play-by-play.

First time ever done on A&G.

Take us away, counsel.

So you've got my client's car there in the background.

Um, you can see the parking lot.

You can see, uh, the DFC officer, you know, rushing down towards him.

And I'm going to show it to you guys.

I want you to see it in real motion and we can zoom in.

And just so you know, what we see is a parking lot with, uh, parking.

Uh, it's like, uh, it's like the, it's shaped like a football field.

It's probably about 40 yards long.

There's about, uh, you know, 10, 12, 15 spaces.

And, uh, there's a car all the way in the back.

The last, the last parking stall has a car that's parked in backwards.

It's right up against the brick wall.

In front of it appears to be some trash cans, uh, or dumpsters, I should say.

And there's a person approaching the car who is a, a DOC agent.

Okay.

Go ahead.

Wait.

And then do we want the borders of the parking lot to the back?

We have, you know, bushes.

Bushes.

In front of it's a built apartment building.

Apartment building on one side.

Bushes on the opposite side.

And on the far wall.

What is that back there?

Just tall trees?

Right here on the left?

No.

Right here?

Yeah.

That's like Ivy or something.

Okay.

It's just Ivy.

Well, you got the, the, where the bushes are is the rock wall running along there.

The rock wall is about, you know, made a couple feet high and then the bushes are above.

Yeah.

But here we go.

Okay.

So guy's approaching.

Oh, and now there appears another person's approaching.

Now a car's approaching and the car is, wow.

Okay.

So essentially he's, he's, he's.

The important thing is to watch each one of them individually because they charge assault

for the first officer, assault deadly weapon.

And they charge assault for the second guy who basically almost does get hit by the car.

Okay.

So let's just, let me describe that.

So essentially what happens is the car only has one direction to go down this football field

shaped parking lot.

And there's four, there's three officers approaching on foot and there's an actual car, uh, with,

with lights flashing, driving on a, what appears to be a high rate of speed.

And the car's pulling out trying to leave, but the only direction it can go is in the direction

of the officers who are running at him.

So what the car does is as it's, as it's turning to pull out of the stall, it has to keep on

turning to avoid hitting, hitting an officer and an officer's car.

So it misses.

And then there's, and then it has to go into the wall pretty much to, and then right, but

right when it goes in the wall, there's another officer that's right by the wall.

And it looks like the other officer kind of almost gets hit.

So you can almost say that the car is sort of dodging the other officers.

It's trying to pull out, but then the car, the cops are coming at him.

So he kind of keeps on turning or over-correcting and hits a wall.

The only thing that I would say, like based on the video, as opposed to the way it's, it,

it seems described is that in the video, it seems way more like erratic loss of control.

And I feel like the way it's described sounds crazier, like, like fast and furious, like

cars jumping over things.

And I think that's, that was how the testimony came out.

You know, the, the, the DOC officers really made this seem like, you know, their lives

were hanging in the balance the entire time.

And the video really shows much more of someone who kind of lost control of the vehicle and

it's in a clear attempt to get the heck, get the fuck out of there.

So, all right, so then let's talk about these four charges.

All right.

So we've got driving, possession of meth, driving under the influence of meth, and ADW on two

officers.

So what, what types of charges are the, are the ADWs felonies and the, the drug charges misdemeanors?

Uh, the DUI is a misdemeanor, a gross misdemeanor.

The two, uh, assaults with deadly weapon on the officers are, are, are strike offenses and

they are, uh, assault to, uh, be felon, be felony offenses.

He was looking at 63 to 84 on the two assaults.

Um, the possession of months, you mean months or years?

63 to 84 months.

Okay.

Just months.

Okay.

Just months.

Um, and he was looking at, um, the possession of, of methamphetamine is, is a matter.

I mean, I think the max on that would have been two years with his, with his offender

score.

Okay.

Um, and, and, and yeah, that's, that's also a felony.

All right.

And the ADWs are on the, the cops that are, that are just, that are running at him.

It's not on the other cop that's in the car, right?

Correct.

Okay.

Correct.

And, okay.

So then let's talk about this.

You, you, you get the police report, you get this crazy video.

And then where do you go from there as a defense attorney in this case?

Well, interestingly enough, it was, I was the third attorney on the case in my office.

Uh, first it was with a colleague of mine, uh, who, who wound up leaving the

office, went to a different public defender's office.

Then it was with another colleague who, um, went to, she had to go out.

She had some maternity issues and had to leave a little early on that.

She did most of the investigation and did a fantastic job with it.

My investigator, Kathy was fantastic.

Um, and they, it was real, definitely like a team effort, I would like to say, but when

I got it, I mean, I, I looked at it, I looked at the video and I said to my client, we've

got a case, you know, we, we, we've got a defense here.

Um, so we basically just had to interview a few more people and I brought on, uh, an accident

reconstruction expert.

Why, why do you want an accident reconstructionist?

Well, because I, I, I wanted someone to give a little more detail to what had happened.

And the other issue was we had interviewed the States.

The state had a police officer who arrived and did what I assumed was an accident reconstruction.

Um, what he later testified to me that he really had just done, you know, some measurements

and taken some figures, but hadn't done a full blown reconstruction.

And I really thought I'd get a lot more from him.

Cause I, I said, you know, it appears, you know, that when my client passes this police

car, he just kind of loses control of the vehicle.

And the response from the States X, the States witness was no, he was in complete control

of the vehicle.

He was behind the wheel and his foot on the gas.

So I was like, well, I need, I, I need someone who's going to counteract that bad testimony.

It's already interrupted.

So was that testimony that was given at the preliminary hearing then?

Oh, we don't have preliminary.

So was that, was that, was that in a report then by the, it was, it was in a defense interview.

So you, you interviewed their accident reconstructionist.

Yes.

He's a police officer who, you know, has this title.

He's trained in accident reconstruction.

Um, so he was fair game to be interviewed.

And the kicker about his, him was that he'd done some measurements, he'd done some calculations.

He made a diagram, but the one thing he didn't do was watch the video.

And then you, did you, did you say you got a report from their accident reconstructionist

also?

It's a lot to call it a report.

It was a few pages and it had a diagram.

All right.

But so he wrote something up though about his own investigation, right?

Yes.

And this, and when there was a diagram of what happened and, and in it, he says that

the, your client was in control of the car.

What did he say in his couple paragraphs?

Oh, he basically, he basically said that he talked to witnesses and that my client was a

certain, was a certain spot.

He describes the, um, you know, the, the measurements of the parking lot and the diagram was really

the best because the diagram is completely wrong.

I mean, you look at the diagram, you watch the video and you're like, he has the first

officer to the right of the car and the second officer.

And I was, and I, it's like, you just look at this and go, oh, this is great.

Like, I can't wait to get you on the stand and say this stuff because, you know, it's,

it's clearly, it's clearly inaccurate.

Oh, so his, that his diagram is, is different from what the video is, right?

And he, because he never saw the video.

He never saw the video.

Okay.

And so then you, you know, you got an expert appointed to the case or your office provided

you with the accident reconstructionist, right?

Correct.

And you gave, I'm sure you gave your accident reconstructionist the video, right?

Of course.

And what was, and what was.

Because wait, hold on.

I just want to clarify something.

Because when someone's going to testify as an expert about something, it makes sense that

they would have all of the evidence, right?

Is that the same here as it is there?

I just wasn't sure.

Yeah.

That's certainly the most important piece of evidence, you think.

You know, since your client is not testifying, what is, what is your defense?

No intent.

That his intent was to get the fuck out of that parking lot and to not be arrested that

day.

But that's not the same thing.

So he is, because he, so he, okay.

So he is just pulling out.

He's just pulling out and trying to leave.

And then cops just happen to be there.

So he has to keep turning because he doesn't, when he's driving out of the parking lot,

if you see the video, he just turns and then keeps on turning.

He never like drives straight.

So it's like he turns, sees cops there.

So he keeps on turning and that's kind of, so it's like, there's just no intent.

He didn't purposely like, tell us about the elements of what's the charge and the elements

and like what, like what, and you're negating the intent.

So what's the intent with assault?

Well, in the state of Washington, there's three ways to prove an assault.

There's an actual striking, there's the swing and the miss, trying to hit someone.

And then there's the intent to create apprehension, basically attempting to create apprehension

and fear.

So meaning, meaning that, you know, he intends to put someone in apprehension that they're

going to get hit.

Exactly.

Okay.

And the state, to my surprise, only went on the apprehension prong.

I mean, they couldn't go on the first prong of hitting someone because they didn't hit

anybody.

Right.

I think they maybe saw some wisdom that it could have been a swing and a miss.

So they argued that his intention was to create apprehension or fear, as one might say he

intended to scare them, was what, was basically what the state's theory became.

Okay.

And essentially, you're saying that you want to get the accident reconstructionist on your

case to show that when he was driving the car, he didn't really have control of it, which

would mean he didn't intend to put the officers in apprehension of being hit, right?

And mostly what I want to do is I just want to add more detail to it.

I expected him to use a scanner, scanning equipment to kind of show more of an overhead view, which

he's exactly what he did.

And it basically had, you know, like frame by frame of where the car was.

So in his report, he had like, you know, figure one, one through 10 or 12, that really kind

of showed you how far away things were from an aerial view.

Also using speed of the car, you know, he basically had, the most important thing really was the

distance between when my client cleared that police car to the time it hits the wall was

1.37 seconds.

And the reasons why that became incredibly important in the trial is the expert testified

to something called perception reaction time.

And the way he described it was worst case scenario, if you're driving a car and suddenly a child

jumps out in front of your car on a bicycle, your perception reaction time is 1.5 seconds.

So my entire, entire argument was my client doesn't see that DOC officer until he clears that police

car.

And he only has 1.37 seconds before he hits the wall.

So how in the world would it be going to form a tent in 1.37 seconds if the perception response

time is 1.5?

Therefore, you cannot convict him of this charge was the strength of my argument.

And that's what came out during the trial.

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Okay.

So then, all right, we got a trial here on our hands.

And so I know down here in California, you know, we're suffering from a pandemic.

There's COVID-19 going around.

But as you know, it's not a united, it's not, it's not a federally united thing.

It's just left to the states, the states.

So down here in California, specifically Los Angeles, there's a pandemic.

But then if you go the next county over in Orange County, they're doing trials.

Riverside County is doing trials.

LA County, no trials because we have a pandemic.

Up there in Snohomish County, do you guys have a pandemic?

Yeah.

Yeah.

Are you guys, is that COVID-19 thing going on up there?

It exists.

You know, I'm sure there's a swath of the population who does not believe in it.

But, you know, it still exists.

I believe they summons a large number of people, like sent out, you know, a thousand summonses.

And then, you know, they took a certain number who came in.

And surprisingly, you know, a fair number of people, you know, because they all were offered

a deferment, which, you know, we, you know, did motions about.

And, you know, but then a fair number of people actually did show up.

And there's an arena about a block or two from the courthouse that they were going

to house people in.

It's a small concert arena slash minor league hockey stadium that they were going to house

people in for jury selection so they could, you know, have a place for them to be socially

distanced.

Wait, and then they would be contacted via video or you go there?

They would walk over to the courthouse and be designated in courtrooms.

Oh, interesting.

And we have a jury room, you know, the, you know, the jury assembly room was, you know,

socially distanced.

But for my case, we asked for, you know, we asked for 45 jurors and we were able to

actually keep them in separate places.

So they called for, you know, 15 at a time into, you know, our courtroom, which was like

a large, we basically have one large courtroom that's usually used for high profile cases.

So that's kind of where we had it.

We had, you know, the, the, the court staff and the judge were all separated by large, you

know, plexiglass.

The witness stand had large plexiglass as well, but the rules were the witnesses did not

wear masks.

They were the only people who weren't wearing masks.

The, the, the gallery is where we put the, our, our 15, you know, prospective jurors.

The jury box became the gallery where people could come in and watch.

So anyone who wants to come in and watch would have to walk past us while we're doing and

sit in the dress.

And it was streamed over zoom.

So if people wanted to watch, they could stream it over zoom.

Oh, interesting.

And is that in order to meet the public trial requirement or was that just for fun or?

No, no.

It was to meet the open court requirement.

Yes.

Interesting.

And you didn't have to wear a mask though, during the trial.

Oh, we all wore masks.

Everyone had to wear masks.

Except for the witness that was testifying.

Yes.

I actually made a motion ahead of time to wear a face shield and I was denied that by

the court.

And what the court broke out was see-through face masks.

Well, cause it's weird.

Cause now that I'm doing this zoom with you, I can see why you wanted your face to be shown

to the jury.

Handsome guy.

Oh, that's so sweet.

Wait.

And I have a question about that.

Did you say that the court provided see-through masks?

So not only for, not only for us, but for the jury, the jury, the perspective of jurors,

which I thought was really important.

So the masks are really interesting.

They have like, it's like a styrofoam, uh, on the top and a styrofoam on the bottom.

And it was just a clear plastic.

Yeah.

Interesting.

And did they get steamy while you were talking?

Oh, awful.

Yes.

What other, uh, pre-trial motions were there?

Or did the prosecutor have any?

You know, nothing.

The prosecutor had nothing, nothing, nothing out of the ordinance.

Okay.

Um, and I don't think mine were, I mean, I did a lot of like what we call our COVID motions.

We, we created a COVID brief where, you know, they, they bring us down to three preemptories

and we, you know, we argue, I think I argued for about eight considering how long I thought

the trial would be.

Um, that was denied.

The judge gave us four aside.

Um, I'm sorry, you were only allowed to kick four jurors total.

Oh, preemptory challenge wise.

Yes.

Interesting.

And, and how much do you usually get in a regular no COVID trial?

I believe it would be six, but seven for an alternate, eight for two alternates.

And we had two alternates on a case like this.

So it would usually be about eight.

Okay.

And then tell us about your, your, your voir dire then in this COVID police, actually

also, you know, police case really.

Yeah.

You know, I, I did a jury questionnaire.

Um, the judge kept it to a very short page.

There was two things that I was really keying in on.

One was the fact that, you know, the allegations of assault on an office.

So I wanted, I want, I was just wanting to make sure that I wasn't going to run into,

you know, any people who are fanatically, you know, pro law enforcement.

And right now it was a, it was such a great time to talk about it because, you know, with

all the protests, people have strong feelings.

They really, you know, in both directions.

We had one young girl who was like, yeah, I can't be fair to a cop in this case.

You know, like I never, like these guys are terrible people.

I don't believe in law enforcement.

And so I, you know, gone, she was, she was gone very quickly.

There's other people who, you know, who are just like one guy, his father was a law enforcement

officer.

He's 23 years old, you know?

So he actually said he could be fair, but after a few questions, you know, we, you know,

it wasn't hard for him to be like, yeah, you're right.

I really shouldn't be on this jury.

You're right.

Like, this is, this is not fair.

He goes, my dad talks about his job all the time.

So that was, that, that was fairly cool.

Is that your question?

Your questioning established that he was unfair?

That was, yeah, that was, yeah, that was me.

How did you, how did you question him?

Like, what were you specifically saying?

Well, we're, we, we're trained in, I guess it would be like a Colorado type method type

thing of deselection where, you know, you, you, you ask the witness questions.

You just said this, you commit them to what, to their position.

You know, you're, your father's a law enforcement officer.

You, you love your father.

You talk about his job all the time.

You've met a lot of his coworkers.

These guys are important to you.

You understand he has a dangerous job.

You know, so with all thinking about all that, you know, you have strong feelings about someone

who's accused of assaulting a law enforcement officer.

And that actually just mirrors the case law of strong feelings.

And if the person says yes, that's basically actual bias.

And then there's a, you know, would you want 12 people like with your frame of mind judging

you if there's your time charts?

And, you know, most people, if they're honest at all, you know, can come back to yes.

And if they're not, well, okay, that person's going to have to be, you know, another strike.

And the judge for our case was very good.

I think about the strikes.

I think he's read the case law.

And when it comes down to it, doesn't want a jury, you know, a case coming back.

So if somebody says something, you know, that they have strong feelings or things like that,

this judge was pretty good about saying, yeah, we met the requirement.

And the prosecutor, to his credit, was not, you know, he wasn't one of these people who's

trying to rehabilitate really hard.

He could, he could see, you know, for cause challenge for what it was.

Did you find that because of the protests that were going on, that your jury panel seemed

a little more emotional or forthcoming about your law enforcement questions?

I think they, in all honesty, I really think they did.

I think it's kind of fortunate to have this in the forefront of people's minds.

I also, I mean, I was more worried about backlash.

I was worried about people who, you know, would be chanting Blue Lives Matter and things

like that.

But shockingly, no, I think that, I think this, I think, you know, the Floyd protests have

really opened up a lot of people's eyes who might've been very pro law enforcement to

this idea that it's, you know, there's, there's, there's a lot of bad things going on out there.

And then don't forget, you know, my, I knew what the facts were going to be.

I knew what the video was going to show.

And I was just worried.

I didn't want to have anyone who was going to be overly emotional.

Okay.

Um, and then what about any sort of like the COVID jury trial questions that, that element

of this case?

Well, the, well, I mean, we did a little reductionist reasoning, which was the people who showed

up and chose not to defer, no, you know, they're here.

You know what I mean?

So, so that was one thing.

The other part about it was.

So, I mean, the fact that the jurors showed up during the pandemic, pandemic, when they

had an option not to show up, right?

This is the only time it's ever been a jurors could just say, no, thank you.

Check.

No.

And that's it.

So if they showed up their business, they mean business.

You have the 45 most eager jurors in the history of time showing up for your case game.

They're like, the law says I can get out of my house.

This is great.

I need, I need to get out.

There's, there's no, there's no courtroom drama on television anymore.

All the true crime is reruns.

I want the real thing now.

Let's go to the courthouse.

That's where, that's where the show is, folks.

I don't think any of us, even the judge asked me certain questions about COVID because they

were all there.

I mean, they're all there.

So we were just, I think the rationale was, these guys are here.

Like if COVID was a fear, they just wouldn't be here.

All right.

Well then tell us about opening statements then.

My opening is, you know, I, I, I hit my theme without, without, you know, always, you know,

always prefacing it with the evidence will show, you know, because you can't, you know,

you're not really allowed to do an argument during your opening.

You know, and the state basically talked about how ugly this is going to look and how, how

scary it was and how lucky, you know, he is that these guys, you know, that how lucky,

you know, these guys are that, you know, they're still alive and things like that.

I did make motions in, in, in limine, our, our, our, our, our, to prevent the state from,

you know, invoking the passion or prejudice of the jury and the judge, you know, you know,

sustain those.

And, you know, that kind of kept the prosecutor reined in.

So what was your theme then in your opening statement?

Like what?

Just the state couldn't, no intent.

The state could, the state could not prove that, that, that he intended an assault.

What about, um, and, and also I'm sorry to just to go back in voir dire, what about the

actual case itself with the video and driving and no intent?

How did you address that in voir dire or did you?

I did.

What, what, what, what I used to, I always try to speak an analogy during my voir dire years

because I feel like that can be effective and this isn't necessarily, and I basically said,

okay, suppose you are, you know, driving down the road and we've, we've all done this.

Suddenly you, you, you're in your left lane of the highway and suddenly you're like, oops,

there's my exit.

And you cut across three millions of the highway to make your exit.

And suppose you hit someone.

Does anyone think that you intended to hit the person?

You know, but, you know, and then kind of go into, does anyone think you owe them, you

know, do you have to pay for their, their damages?

Of course.

But do you, did you intend?

No, of course not.

It pretty much was universal.

Like kind of like, of course you didn't.

And I said, what if, what if they got really scared?

I mean, what if you just scared that be Jesus out of this person?

Tell me, you know, tell me about that.

You know, is that, you know, did you intend to do it?

And it's kind of like, well, some people actually were like, well, that, I think you're, no,

I mean, that's tougher, but you know, I, I kind of, you know, saw kind of where they

were going.

And actually a woman told us a story that she was walking down the sidewalk and suddenly

she saw a van coming, like swerving right at her.

And she was like, I was scared to death.

This van was going to jump the curb and hit me.

And I looked over and this woman's on her stupid phone.

And I said, well, you know, suppose she jumped the curb and hit you.

Now, would you have felt she intended to do that?

She goes, no, no way.

And, you know, that's not really good.

That's not smart de-selection.

That's not a de-selection type question.

But I did ask, does anyone disagree?

And I'm kind of looking for people who might see, see the scenario differently.

And there was a juror who was like, you know, if you're texting and driving on the highway,

yeah, that's, that to me is, that to me is intent.

So, you know, and, and, and, you know, any juror like that, you gotta, you gotta, you gotta,

That was smart questioning.

Tell us about the people's case then.

Well, let's get to the first part about it.

The first office, that very first officer, you see in the video, uh, was all set to testify.

And then the state, I just get an email at, um, saying, uh, we have a little bit of a problem.

I need a two week recess.

He just got put into quarantine for presidential exposure.

And I, I just thought, I lean back and I just start laughing that this is, I mean, it took,

it had taken us the, the, the, the second officer, one of the officers testified that morning.

And it took us two and a half hours to get one of the TV set up.

So he testified for about a half of an hour.

And after that, a half hour at lunch, we get, I get this email from the prosecutor saying,

you're not going to believe it.

So, you know, you just, you, you just sit back and laugh.

You're like, this is what could happen next?

You know, a hurricane, you know, like, you know, like what, what, what earthquake, like

what, what could happen after this?

So, uh, the state wanted a two week recess.

Um, and I said, no, no, he could testify via zoom and the court, and this was, um, this

was on my point.

This is, I, I, I decided that I wanted, I'd rather have this witness testify via zoom,

uh, and proceed rather than, you know, wait.

And the court kind of, you know, kind of said, is your client okay with that?

This is a confrontation cause issue.

And we said, yeah, we're good.

You know, we, we were ready to proceed.

So, uh, that off, that, that witness did not testify, uh, live.

He did testify via zoom.

All three DOC officers testified very much the same.

They testified that, you know, uh, they, my client was coming right at the first officer.

He had to jump out of the way.

They testified that, you know, after pat, you know, passing that officer, he, you know,

slammed into the wall, you know, very close to, you know, where officer number two was.

Um, the third officer even said, I had to jump out of the way when he was 40, 50 feet away.

Like he was nowhere near.

And in his report, he said the car was coming right at me.

And, and I, you know, I'm, you know, I'm cross, um, I'm a big believer in, if I have direct

impeachment evidence, direct contradiction evidence, I don't win points by showing it to

the witness and saying, look what you did.

I, you know, I think that the effect is you have the witness say it, you have the witness

and you know, are you sure that's what happened?

Yes, I'm sure that's what happened.

Great.

And you, you write it down and you save that for closing when you show the video on slow

motion three times.

Do you remember when officer X said this and you pointed at it and go, you see how, how

he's completely wrong about that.

And one of the things they will all have wrong was they all took the cop car out of the scenario.

They all said the police officer had parked his car and got out and was backing up the second

officer, which is just 100% false.

Just false, false, false.

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Thank you.

Yeah.

What is your goal when you cross-examine these officers?

What are you trying to prove?

All I'm trying to do is get out...

All I'm looking to do is to get out from them the things that I'm going to be able to prove

they're wrong about via the video.

So that's it.

So whatever they say that's inconsistent with the video, you're going to not play the video

during your cross.

You're saving it for your closing argument.

And you want to lock in the inconsistencies, what they say, right?

Exactly.

So when you say all three officers testified that there was no car involved, that it was

parked, you got up there on a cross-examination and you just reiterated...

Maybe you didn't say anything at all.

Or you just said...

How did you say it?

Like, what did you do?

They said the car was there.

Yeah.

You know, we started with what we call, you know, you're tying the officers to the report.

So I spend the first, you know, 15, 20 questions talking about, you know, you have a serious

job.

It's very difficult.

You're very busy.

You write these reports.

You're training in writing reports.

Is this that Colorado method you're talking about with the jurors?

You know?

No.

A little different.

What's this one called?

Just anyways.

We call it tying the officers to his report.

Basically, if you know the report is going to be contradictory to something else, you

really lock them in to what the report says.

And even in this one, I was like, and you, you know, you did, you wrote the report, you

signed it under penalty perjury.

It gets reviewed by your supervisor.

It gets to people like the prosecutor.

And you know, eventually it gets to people like me.

And you know it's got to, you got to really be good about that report because, you know,

a guy like me is going to deconstruct it really hard.

And they go, yes.

And there's nothing inaccurate.

Everything you put in there is important and true.

Yes.

And then I said, you signed it there under penalty perjury.

Yes.

And you did an interview with us.

And in the interview, you spoke honestly.

Yes.

And then I have the report and I have the transcript of their interviews ready to rock.

So any deviation from that, I'm, I'm, I'm all over.

I'm all over.

That's the Washington method.

The Washington method.

So afterwards, I do also say, and you just testified, you know, you just testified under

roof.

So, I mean, in this situation I had, I had so many layers of your report, your, you know,

your interview and your testimony today.

Oh, and the video that you said you watched or all, you know, basically there's so many

chances you had to get this right.

It's not that they said there wasn't a police car.

It's just that they said it stopped and parked and the guy got out, which is just, you know,

false and, and, and, and crucial to how the evidence.

Well, it's weird that they all had the same inaccuracy, right?

Did they all go over their testimony beforehand and say, does anybody remember what happened?

This, this is what happened.

We're all going to say, this is what happened.

And I feel like having seen the video, I think this needs to maybe be like clarified for the

listeners, is that from the video, it seems, if not clear, at least a reasonable interpretation

that your client's car moved the way it did because there's a police vehicle

coming at it, speeding down towards him.

So it seems very important and convenient that all three of your law enforcement witnesses,

oh, did not happen to remember it that way.

So that the only reason your client's driving the way he's driving is to run them over.

Are we right?

Interestingly, yes, the officer who actually was driving the car testified very consistently.

He contested, he, and I even submitted to the jury, I was like, look, he's the only

guy who got this right.

He testified that he was driving, right?

Oh yeah.

He also testified.

He's like, no, I parked and got out.

I just walk really fast.

Right.

That officer also did testify that it appeared to him that the client completely lost control

of his car, which a lot of people watching this would say, yes, that's what happened.

He was also the only officer that didn't say that my client was deliberately trying to hit

the first officer and that guy didn't have to jump out of the way.

So he's the only one who's really consistent with what actually happened that afternoon.

So then let me ask you this.

So then the prosecutor is not playing the video in his case, right?

Yes, he did.

He has guys up there testifying that the car, that the car was not coming, the car was parked.

So then is he playing the video to contradict the officer's testimony after that?

Like, how's that playing out?

So he solicits their testimony pretty much off of their report.

So he doesn't ask the question about the car.

He just kind of gets their testimony out.

They say what they say.

And then he was at one point when he wanted to get more information, he was about to show

the video.

And I was like, objection, you're going to let him ask the question from their memory.

And then he could show them the video.

My fear is that he's going to show them the video now.

And now their testimony is going to be based on the video, not their memory.

The judge agreed.

And for the COVID part, we had the video placed on one of the TVs.

So he would walk up to the witness and show them the video right in front of them on his

laptop.

And then he'd walk over and he'd play it on the TV so that the jurors could watch it.

The interesting thing is, I still then did my cross.

And they still stuck with it.

I mean, you have to understand, one would assume at some point that it would change after

watching the damn video, but it never did.

And one of the things I got to hammer in my closing was like, I don't understand this

one bit.

Like, they all watched the video and they all still testified to things that clearly

didn't happen, you know?

And like, what, like, what, like, what, what other things were they?

Okay.

So one is, what was the other lies?

The one lie is the cops are testifying the car parked and then everybody got, the guy

got out and everyone's approaching.

There's no car really.

What's the other lies?

The other one was they all testified that, that the uniformed officer and the first officer

in the scene pulled my client out of his car.

As in they, he wasn't getting out of the car.

They had to open the door and physically take him out.

One of the officers actually said that I had pulled open his door and pulled him out.

And if you watch there, there's a little extra on the video that I sent.

It's just a little shorter, a little extra.

You can clearly see the door open and my client throw himself on the ground with the, oh, you

can see all four officers are within a good, you know, few feet.

So there's no, so that clearly did not happen.

Um, and I'm not, you know, I, yeah, so that was, it was those two things I think that I

really kind of harped on that, you know, they, they don't, they don't have good recall.

They don't remember because, and the thing I talked about, the thing I talked about in

jury selection was, you know, have you ever experienced something that was like an emotional

high trial on a van?

I thought it went one way.

You realize you got, you got it completely wrong.

Unfortunately, no juror had a story for me.

Right.

I really thought someone would say something about it.

Because no one ever gets it wrong.

That's why I'm never wrong.

Honey, am I ever wrong?

I'm never wrong.

So there's no one, no one gets it wrong.

You're only wrong when you disagree with me.

One juror member though was, it was former military and he said, you know, I've served

overseas and yeah, no, there's, I've been in those situations and I've come back and

had, you know, some of the guys I was with say it went down this way.

And I was like, no, it went a totally different way.

And he's like, you know, when the fight or flight kicks in, a lot of times your ability

perceived does get a little jacked up.

Which is interesting because it seems as though the DOCs could have, if anything, given that

exact answer, I was so scared for my life that it seemed like this.

Right.

And, and that's horrible for your case.

And they couldn't even pull that out.

Well, a few, a lot, a few times when I was, when I was, um, giving them a little bit

of the business and I never, I never went too hard on them, but they did say, you know,

like, cause they all said.

Can you tell us what, a little bit of the business?

The Washington method.

I think what it offers us.

You know how Gabe Rothstein does it?

You know how you get in there.

When they, when they testified something that is, that is clearly, oh, just the other thing

was that they all did admit that it was a high pressure situation, that it happened very fast.

Um, which, which I, you know, fed right really into my theory of your ability to perceive

and recall is not so strong when, you know, you emote high emotion and happens really fast.

So one of the, one that described it, the whole thing was a blur.

Um, so I thought that was, that was actually helpful.

Ultimately, the last TSC officer, instead of, you know, saying he definitely had to jump

by the other way, it was like, well, you know, jump is a relative term.

And I was like, oh, well, let's talk about that.

Jump is a relative term.

You're just, and him and I kind of went out a little bit about, about stuff like that.

And, you know, it's just either commit to it or don't, you know, but I think he was

the first one who realized, oh crap, like there, there was no, you know, there, there

really was no jump.

So then they, the state called their accident reconstruction officer who, you know, the state

asked him, you know, so you did an accident reconstruction and he said, no, no, I didn't.

I, that's it.

No, actually reconstruction is this full on thing.

That wasn't what I did.

So the, the prosecutor says you did a whole investigation.

He's like, nah, I just took some, I just took some measurements and took some photos,

you know, is that kind of how he was like?

Oh, no, he, well, he did, he did spend a lot of time.

The prosecutor asked him about the calculations.

So he got up off the stand and used the, um, like an easel and a butcher paper and basically

did a lot of really impressive math calculations that I think would have all of us go, wow,

what was that?

You know, like he, you know, the speed of the car and the ground and all this stuff.

So it looked, I mean, it looked impressive to a non-accident reconstruction mind.

So, I mean, it wasn't, but the guy did say, no, this wasn't a full reconstruction.

I didn't do a total station.

I didn't use a scanner.

I didn't use computer.

And I, you know, he basically, he basically, you know, that that's something different.

And I don't know if the prosecutor knew that there's a difference between like showing

up at a scene and taking a few measurements versus, you know, full blown accident reconstruction.

And I, you know, on cross, I asked him, I said, you've only done about 25 of these.

And he said, yes.

And then you've never testified as an expert accident reconstruction.

Nope.

So I just don't know if the state was expecting that because I knew my expert was coming in

the wings with his 2000 accident reconstructions and his, and his, and his frame by frame extraction

of the video.

So I kind of wanted to show that.

Yeah.

What other, what other points did you want to make with the state's accident reconstruction

is during the trial?

I was asking him, my final question was, and you never watched the video.

And his answer was, well, actually I have.

I said, what, what, what, what, what, and I, and I said, wait a second, you, you didn't

watch the video when, when, when it first happened.

And you told me at the interview, you didn't watch me.

He goes, yeah, I've watched it since then.

I just looked at the judge.

I was like, what, wait, hang on now.

And so we send the jury out and, and I, and the judge is like, okay, I see where this

is the problem.

I said, you know, everything he's going to say right now, it's going to be a discovery

violation.

And the judge goes, well, why don't you just ask him some questions?

I said, all right.

And I, you know, I asked him the first question and I said, so why, why did you watch the video?

And he said, you kind of called me out in the interview and kind of made me feel like

I should have done that.

So, so, and then there was a few other questions.

I basically said, what else did you do?

And he said, I went to the scene.

I took more measurements to verify work.

And I was like, what did, did you peer review it?

He said, no.

And then I said, well, you know, what your, did your conclusions change?

He goes, well, you know, the video shows you a lot, what actually happened.

You know, what I'm doing is I'm just doing math and, you know, trying to do the best of

my ability.

And he goes, and the top speed of the car, you know, couldn't have been more than 14 miles

an hour.

And I was like, well, wait a second.

You just testified.

It was 18 to 20.

And he's like, well, no, no, that's the top speed of the vehicle.

But watching the way it turned on the video and doing the calculations, it could have been

more than 14.

So I was like, good enough for me.

And I said, judge, let's bring back the jury and let's, let's, let's, let's let it ride.

And I started with the same question of, you know, you, you, you know, you initially had

not watched the video.

You didn't watch it before my interview, but you watched it because during that interview,

I called you out on it.

Correct?

And he's like, you did.

I mean, this, this guy, I mean, I think.

I love that game.

That's awesome.

And how did you point out the diagram?

Cause you said he drew a diagram based off what the cops said, which was totally different

from the video.

So how did that play out in front of the diagram?

I said, I said, uh, let's talk about this diagram.

Um, we didn't have an Elmo.

So this was going to, I was getting the diagram would actually have to wait for closing to show

the jury.

But I was able to just, I said, you know, you made this diagram of what they told you.

And after looking at the video, you have to admit that this diagram of where everyone

is, is completely wrong.

And he was like, well, it's wrong based on this officer.

I was like, okay.

And what about this other officer?

He goes, no, that, that looks like it's pretty right.

I said, you know what?

Why don't we watch the video of you and I together?

And so I, you know, I took the computer and he showed it to him again.

And I said, after watching the video, he was never in the position where you put him

on the diagram.

He's like, no, he never was.

So, you know.

This is definitely a trial where, you know how you feel, you do trials and you feel things

are breaking in your favor.

This is one of those trials where I felt things were breaking in my favor.

Well, you know, it's funny.

It's funny because when we go into all trials, we all have to be prepared for worst case scenario

too, right?

So you're like going in like ready for worst case scenario.

And then when things aren't turning into worst case scenario, everything's positive from

there, you know.

Yeah, that's a good way of looking at it.

So the state rest after their expert, right?

Okay.

And, you know, maybe you could not put on a case.

You surely have created some doubt there, but you want to bring in your own expert.

And why is that?

You know, I thought it would tell, it would give a little more, I think it would give more

to the story.

I was also a little nervous about how their expert would actually come out and testify.

I knew that this guy from, you know, when I could retain, you know, when I talked to him

initially, he told me what he could do.

And he was like, there's a lot I can do with this video.

And I really thought he could get me not just a view from the video, but also like an overhead

view.

And I thought he could really kind of show the speed of the car at each interval, as in

the car was going, you know, X speed as it, you know, passes this officer.

The car was going Y speed at its closest point to, you know, this officer.

The car was going Z speed, like that's, that's what I really wanted.

Also, I mean, like even if, cause if you throw out all the testimony, you throw out what all

the cops said, you throw out what the expert said, you look at that video, it still looks

bad.

Your client almost hits like two cops.

He goes up on the side of the wall, like Bo Jackson in the all-star game, like just like

he kind of goes up on the side, like it was, um, I mean, so it's still a bad video.

So you still need your expert to rebut the actual evidence of the video, or at least add

context to it.

Right.

I think adding context is really what I wanted.

Yeah.

Um, and he, you know, he, the first thing he did, so the video I got from the state was

on its side.

And the first thing he did was put it, you know, straightforward and took out the audio

of the people gasping.

Um, I don't know if, I don't know if I'd mentioned that before, but when you, when, when I first

had the video, it was an, I was a DOC officer recording it from the video surveillance and

they had some people in the room with them and they audibly gasp as they watch my client's

car in flight.

And so of course I, you know, that was an easy 402, as you guys say, that was an easy

one to keep out.

Cause you can't have someone gasping at it, but you know, it was, it's, you know, it is

a bit of an ugly scene.

Um, so I, my expert was supposed to testify, it was Thursday, it was also the day one of

our jurors didn't show up, but we had a juror just took a day off, uh, midway through, never

had that happened.

So we, you know, we just, the judge said, what do you guys want to do?

Uh, and we looked at each other, we're like, this child's going so darn slow.

Let's just, let's just, you know, we, this is why we have 14.

So let's, you know, let's proceed.

So, you know, was it, was it one of the bad ones for you anyways, or was it, it was, it

was a Luke, I was a little lukewarm on her, so I was, I was okay with, with her being her,

her, um, kind of going.

And did she show up the next day or did she show up the next day or no, wait, Gabe, I feel

like you've said this twice now and I now need to clarify, do you not know who the alternates

are when you're picking the jury?

No, we do not.

Um, what, what, the court rule is that you pick the alternate first, but we, what we

generally do in almost every case I've ever had, um, we do the entire deliberations and

we just pick the alternate out of the hat, um, or out of a wheel or something like that

right before deliberations start.

So that this one person who's alternate isn't, isn't thinking the whole time, ah, fuck it,

I'm just the alternate.

Oh my gosh, that's so crazy.

I've never heard of that before.

I think we're talking about my, my expert's testimony, which I thought, you know, he's from

Canada, you know, he's one of these guys who he's a nerd.

He talks nerd.

He looks nerd.

Like, and I think it's, I just thought it was very effective in that, you know, I, I, when

I have experts on, I just sort of, most of them are well-trained and he's done 2000 of

these before he's, you know, testified for the government before, like he really is good

at his craft and I just have to, you know, lob, you know, I just lob them in, you know,

and then what did you do?

And, you know, he has to support in front of him.

So I sort of just kind of lob them in and then what'd you do and how did this work?

And, and, and I think I would have him come down and I'd show the video and have him come

down and kind of point at things.

And I was, you know, did you make a little diagram of the times and speeds?

And, you know, the most important thing that I believe he testified to, you know, was the,

was the, the time that it took my client once he passed the police car to the time they

hit the wall and he said it was 1.37 seconds.

And I said, why, you know, Mr. Luker is, why is 1.37 seconds so important?

And he basically described something called perception response time.

And he, the analogy he used was perfect.

He said, your worst, your worst case scenario, a child, you know, jumps, you know, runs out

into the street in front of your car or on her bike or whatever, like whatever your perception

response time, the time it takes you to respond to that hazard is 1.5 seconds.

And I said, so we're clear.

My client clears the police car and then hits the wall within 1.37 seconds.

Yes.

And, and, and he, and he, and he does a little point of, and that is less than the 1.5 on

the perception response time.

And, um, yeah.

So does that mean, okay.

So does that mean that your client, when he started pulling out of the parking spot and

then he hits the wall is 1.37 or is it 1.37 from when he first sees when he turns,

you know, and like the cops are right there in front of them?

Like what's the, starting from when?

I think the entire thing was closer to five or six seconds.

Oh, okay.

But, but the time, sorry, the time from, cause what, what I asked him, I said, you know,

what speed, some questions, what speed was, was the car going, my client's car when he

was closest to the DOC officer?

And, you know, you know, you know, I think it was 12 miles an hour.

What speed was the car going at the time that he clears the police car?

So it's from the time, the reason why the argument mattered to me is when he's, when my

client's pulling out of the spot, he's looking at two hazards.

Hazard number one is the DOC officer that he's trying to avoid when he cuts hard to the right.

Hazard number two is the police car that again, he's staring at as he's trying to clear

the car.

And what the, what the expert basically said is, you know, you're looking at those hazards,

you're focusing on those hazards and clearing those hazards.

That's really the only thing you can focus on.

And, you know, I think on cross when the state tried to argue with him about things, you know,

it's like trying to argue with your nerdy friend about Star Trek, like, forget it.

They've seen every episode.

They know the show, like, stop it.

Yeah.

You know what I mean?

All right.

And then, uh, did you put up any other evidence other than your, uh, expert?

Oh, my client had a long talk about whether or not he's tested.

And we prepped him.

My friend Carolyn, uh, amazing, amazing, long time public defender, you know, volunteered

to help me out, you know, reviewed the evidence, even, even listen to some of the interviews

and prepared, you know, to, to cross the crap out of him as a, you know, as a prosecutor

would.

And, you know, we talked about a lot, my client and I talked about a lot and I just thought

that, you know, my theory and theme is that state can't prove intent.

And if I put you up there now, now, now they have somewhere to go.

And in the end he said, I'm going to, I'm, I'm, I'm going to, I'm going to stay off the

scene.

Right.

Um, so yeah, so the state did, you know, did their closing.

Uh, I, I'm always, you know, and I think the state, you know, kind of did a, well, you

know, you can have dual intents, you know, you could have an intent to get out of there,

which is clearly was intent, but also you have an intent to scare them.

And I think he's like, he, you know, he's stuck there.

He has no weapon.

He has no gun.

So what does he use?

The only weapon he has, which is the car.

And he drives the car, this guy, of course he was trying to scare him.

He wanted to get out of there, which was not a terrible argument.

I mean, I thought the strongest argument he had was with the first officer that he drove

at him to back him up, which isn't exactly what the video is going to show you.

But I thought that was a smart avenue and for us, a split verdict was not going to help

a guilty on one assault and not going to the other was just as bad for my crime.

So that was my biggest, that was my biggest fear.

That's what put me in apprehension of fear.

So then tell us about your closing argument.

So I basically said, you know, I said, guys, this isn't, this isn't complicated.

You know, the state and I, I, I'm notorious for very long closings.

I think I went for an hour, uh, and really, really hit hard, hard.

Not only is it, it doesn't have to be, his intent could have been the state has to prove

beyond a reasonable doubt that his intent was specifically to put these guys in fear.

And, and I kind of hit my team a few times.

And then I said, specifically, I was like, guys, I'm going to show you, I'm going to, I'm

going to show you why there's no specific intent for this one and for this one.

And I said, you know, this is about science over emotion.

I know that video is emotional and it was emotional for these DOC guys.

These are their friends, these are the people they care about.

So their emotions get involved.

So they see things that aren't there.

We know those things aren't there.

You know, they're not there.

You know, when each guy testified that, you know, X, Y, and Z happened, you know, it didn't

happen.

You know, they testified that that officer got out of the car and had his gun drawn.

And then I would play the video and then I played on half speed and then I played the

quarter speed.

And I would say, you just saw that and they all three testified this thing.

And I actually broke them down.

I went each one, one at a time and would kind of be a little repetitive showing the video

again so that they could each see, you know, science over emotion, science over emotion,

especially with the perception reaction time.

Like he only had 1.37 seconds.

And if it takes 1.5 to react, the state wants you to believe that my meth addled client somehow

formed an intent in 1.37 seconds when we know it takes 1.5 to form, you know, to react.

So we know that couldn't have been.

So we finished at 4.30 p.m. on Friday, which is our absolute limit.

So I had the whole weekend to kind of fret.

My client had the weekend to fret.

His mom was our sole spectator throughout the entire thing.

So she was in the jury box.

The mother was in the jury box?

She was in the jury box.

Nice.

I like that.

How long did they deliberate for?

My belief is that probably it was about an hour because, you know, there's a little

bit of settling in time.

I also think that they, I think to accept my theory would be quick.

And I really thought to accept my theory, you'd watch the video a few times and go,

this is what I think it is.

This is a guy trying to get out of that.

I'm not seeing the intent to state, look for too much.

So I, the jury came back, my client, we, the only people who weren't social distancing

during the trial were my client and I.

I probably could have been better at that, but I needed to communicate with him.

So, you know, the jury comes back, you know, we were just waiting for count one, count

to, cause we knew, we, I told the jury in closing, I don't care what you do with the

other two counts or the other, those, the DUI and the MF, we say, we deliberately saved

you time.

Read the stipulation.

My client signed this.

We didn't want to waste your time bringing in witnesses to talk about this stuff.

Find him guilty.

That's fine.

Like, you know, I'm not going to argue with you about that.

So the first two counts were not guilty and my client and I hugged as you do, you know,

with all of your clients and the client was crying.

And, you know, I have to say like the anticipation of the verdict coming in is always an incredibly

heart-thumping moment.

But that moment when your client looks at you and embraces you and starts crying is really,

God, it's just one of the most incredible moments, I think, of, you know, of, of being

a defense lawyer.

Like, you know, that you look at them.

I had a client, once I looked over at him, it was on a sex case.

And before I even turn, he's heaving and sobbing and has his arms around me.

And it's just, I don't know, there's something, something about that that's just, you know,

really kind of incredible.

And I went and talked to the jury afterwards and, and I said, so what, what were you guys

thinking?

And then to have them parrot back your closing.

Oh, right.

Oh, I love that.

It was just, you know, they was like, you know, it, you know, it really was science over

emotion.

And we watched the video a lot and, and, and, you know, they had the wrong charge.

I was like, I wanted to hug them, but I, you know, I was just like, and they, they did

talk a lot about, you know, we then got on a conversation about Department of Corrections

about how, you know, a lot of people, you know, don't do well on Department of Corrections

because they're not often there to help.

They're kind of just there to be, you know, law enforcement.

And these jurors were the, like, they were amazing.

They really were kind of on stuff.

And I even had one guy at the end say, you know, I'm really glad you were very professional.

You know, you really could have gone after those DOC guys on your cross-examination

which is a lot worse and a lot worse in the closing.

I thought you were very respectful.

You know, you, you said that, you know, they, you didn't, you weren't calling them liars.

You just thought that they might've had it wrong.

And I really appreciate that.

And I was thinking, okay, so you appreciate the fact that you agree that they're

full of shit, but you're happy that I didn't call them out on it.

Okay.

Like, all right.

I don't know how people square away with that.

They clearly see officers lying, but they don't want to say they're lying.

So we got to call it something different.

But no, I think the jury, I think the jury was like, yeah, those guys, it didn't.

And then they said, what, they were like, we couldn't figure it out.

Cause you pointed out in the closing that they said, you know, one thing happened and then

they said in the reports and they said in the interview and then they testified to it.

And then they still watched the video four times and they still said the same damn thing.

And they said, were they worried about a perjury charge?

Were they worried about a perjury charge?

And I was like, guys, no, like no way in the world is this prosecutor's office that wants

to nail my client is going to suddenly charge their own guys for perjury.

Despite the fact that all of you may think that's what happened.

Right.

We all know that's never going to happen.

Right.

Did you talk to your client's mother afterwards?

Oh yeah.

Yeah.

Yeah.

Definitely.

What was that like?

Oh, she was elated.

I mean, she, she, you know, she, you know, you know, they, the two of them were so appreciative

of, of everything that they was great.

And it's sort of as two sides.

I'm thinking one is jail cred really, really, really, really matters.

And when you have a client who's, who's a long timer, like my client was, and he goes

back to the jail and tells everyone that you kick so much ass, I feel like makes it makes

means it makes my job easier going forward because more of my clients trust me because

of that result.

And maybe it doesn't last very long, but it lasts.

I do have to say, I need to give a shout out to, uh, you know, my colleague, Jen Bartley

who had the case before me, who did the investigation, did a fantastic job.

Kathy McCall, who's my investigator, um, Carolyn, who helped with the cross and Whitney Rivera,

who is my, is like just a guru of West law.

Uh, I could call her whenever, like, and during the trial, I would call her, but, you know,

consistently, Whitney, this is what's going on.

You got to help me.

And she always picks up on the phone.

She's always right there.

In fact, one day she actually called me when she was worried.

She goes, what's going on?

Why haven't you called today?

Like, have you, have you forgotten about me?

Like, I mean, you know, I was like, no, no, uh, of course I haven't forgotten about

you.

So I wanted to make sure that she got some credit.

She is always there.

And you know how it is to work in a PD's office.

You have those people who, you know, are just there with you and, and, and, and always

giving you support, but also like ready with a case or ready with an argument or ready

with something.

And, you know, I, I, so yeah, I don't think I would like to do this without, you know,

mentioning her.

That's one of the best things about being a public defender, right?

I mean, it's like your people have your back no matter what.

And, um, I love that you just gave those shout outs, by the way, I feel like that's

one of the sweetest things I've ever heard a guest do.

Well, I don't, I don't, yeah, I, I, I, I was worried people would give me shit if I

didn't.

There was a lot of other people involved in this.

So now you'd have to tell them to listen.

But every public defense case, this is, you know, no one's, I don't know any public defender

who doesn't shop their cases around.

Like I made, I made my front staff come watch the video because oftentimes our front staff

is, it has a different perspective than we do.

So yeah, I, I, you know, I, I also like, there's things that I pick up when, you know,

I had one of my front staff members like, oh, that you need to do something about that

crash into, well, that's bad.

Like there's, you know, something there.

So I, that's awesome.

You know, we're talking about the office, you're a public defender, leads us into our

last question, which we last asked all of our guests, uh, Gabe, why'd you become a

public defender?

You've been at it for 15 years now.

I think there's a number of reasons.

Um, the, the short answer always is I never watched an episode of Law and Order where

I didn't want the defense to win.

Um, even SBU?

No, not those.

No, no, no, not SBU, not the car.

It's the original Law and Order.

When I was a bartender living in Atlanta, I would wake up at 11 and watch my first episode

of Law and Order.

I would have some lunch, I would work out, go to the gym and then go to my job.

I would leave the bar, whatever time I, no matter what we did afterwards, I needed to

be home by 3am to watch my second episode of Law and Order of the day.

And I was always, I always, the show was much more nuanced back in the late nineties.

And I just, I always was like sympathetic to the defense side.

I also, you know, I come from a family where, you know, my dad was a science teacher in

the, in the Bronx and my mom worked as a social worker.

And I think that, you know, like I'm, you know, they're like, oh, the public defender

in the family, this is great.

You know?

So it's like, it's, it's something that my family really looks at and thinks it's amazing.

One of my best friends is a PD, his wife's a PD, like, like you guys.

And I was like, God, your, your parents must just think this is amazing.

He's like, no, my dad wanted me to be rich.

He thinks I'm a failure.

And I was like, that was something very hard for me because like, wow, like in my family,

I'm like the pimp.

Cause you know, like I, you know, I'm the one out here, you know, doing the public defense

work.

Oh, I love that.

Yeah.

That's awesome.

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

Shout out to Daniel Mark, original A&G theme music composer and Mike Grimm for the remix.

And guess what?

We'll be back in two weeks with another Not Guilty straight from the trenches.