Sleeping With The Frenemy – When the Star Witness Trips Over Their Own Story

Heads up everybody, this particular episode of Another Not Guilty involves a sensitive criminal charge, sexual assault, which ended in Not Guilty. In this episode, like in every episode, we discuss with the defense attorney how and why the case ended in an acquittal and because of the stress and trauma, public defenders endure on a daily basis fighting an oppressive, unjust system, we sometimes laugh and make light of sensitive topics.

If this is something you may find offensive then perhaps this episode isn't for you. Thank you.

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Now, without further ado, here's this week's episode of Another Not Guilty.

I thought maybe, yeah, I've used meth before. And then I asked her, you know, how recently did you do it? And she said, and we got out of her that it had been within the last 48 hours. But what she went into also on that is when I asked her the question of, do you think that this could have, that your meth use could affect what you remember? She said, well, maybe a little. And that plus I was coming down off of using meth all the time.

And she just goes into this kind of narrative. And I can just see the prosecutor's eyes bulging and his face getting red because she's just diving into this story.

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.

So here we are, Another Not Guilty, co-hosting with me again, guys. I got a special treat due to the overwhelming response from the last episode that she co-hosted.

The people want more of you. So I'm forced, the producers are forcing me to have you co-host another episode.

Now, is it the overwhelming response from the last episode or is it just the fact that I'm the only person stuck in the house with you for now going on five weeks?

Dude, okay, because of the producers and because of the laws put in place by Governor Newsom, you have to be my co-host on Another Not Guilty.

I know. We might have an episode, a little speakeasy episode on the ground episode with a different co-host soon. We'll see.

I feel like that's an insult to me, but that's okay. I like the speakeasy reference.

Yeah, yeah. And I'm not going to doggone you too much because I feel like the producers one day will just nix me and keep you.

And who knows how much longer we're going to be in the house together, babe.

So I feel like you really don't want to piss me off. I don't know if the ratings are worth it.

Not worth it. But I'm glad to have you here. We have a great episode today.

And I'm very happy to be here. I just kid.

So, babe, let's go back. We're both public defenders, right?

We are.

So where should we go today?

Oh, I don't know.

Have you ever been to Columbus, Ohio?

No. Are we going?

No, wait. How about Columbus, Nebraska?

Oh.

Even better, right?

Yes.

I didn't know there was a Columbus in Nebraska. I'm so excited to hear all about it.

Yeah.

Who are we talking to today?

Let's check it out. Hold on a second. Let me find this guy.

You weren't ready, babe? You didn't have him ready to go?

I didn't. I didn't. Okay, here we go.

This is Tim.

Hi, Tim. This is David from Another Not Guilty. How are you today?

Just great, man. How are you doing?

Good. You are live right now.

You are our 100th public defender caller. I don't know. I can never say that right.

Well, it's not true.

That's not true.

Hi, Tim.

Hello.

And you're where?

I'm in Columbus, Nebraska.

It's kind of in the north central part of Nebraska.

We're about 75 miles northwest of Lincoln and about 80 miles west of Omaha.

Oh, all right. Cool.

Yeah.

And, Tim, how long have you been a public defender for?

I have been a public defender since October of 2008.

2008. Okay, good.

So, Tim, you're here today to share a trial with us, a not guilty that you got on a trial recently, or what's going on over there?

Yeah.

I had a not guilty just recently back in February.

It's a first degree sexual assault, which in Nebraska is a class two felony punishable by between one and 50 years in prison, along with sex offender registration.

Can you tell us what the facts of the case are? Like, what did your client allegedly do? Like, the prosecution facts.

Well, my client was accused of having sex with this girl without her permission.

Now, she says, and this gets a little convoluted here at some point, but these two have known each other for five years.

So, my client and this person had met each other about five years ago because the alleged victim was the best friend of my client's ex-wife.

Now, they hadn't stayed in contact for that five years, but then, you know, you fast forward five years, and the alleged victim is kind of down under luck.

She's been kicked out of her house.

She's got a methamphetamine problem, and so she's looking for a place to stay.

Well, she calls her boyfriend at the time, who was not my client, but somebody else, and they're looking for somebody to have, who has a truck to move her stuff and maybe a place to store it.

So, they get a whole, well, they end up with my client, and so he goes over, he helps get her stuff.

She ends up paying him $600 to hold her stuff in his little two-bedroom basement apartment in one of these houses that, you know, it's been chopped up, you know, a residential house that's been chopped up into four or five apartments.

So, she's apparently paid him $600 to hold her stuff for a while and maybe have the chance to stay there for a little bit, too, even though she says that before the night in question that she's never slept there.

So, on the morning in question, she comes over, she decides to sleep at the house, she claims that my client then sneaks into the bedroom, lays down behind her, and that she wakes up, quote, in the middle of having sex.

Hmm.

And pushes him away, storms out of the apartment, and contacts the authorities.

Okay, and then what happens next?

Well, the next day, the investigator from the police department goes to my client's apartment and talks to him and asks him if he'd be willing to come down to the station to do an interview.

Well, my client's like, well, I didn't do anything wrong, so, yeah, I'll come talk to you.

Gets in the front seat of the car, unmarked car, drives down to the police station, and then goes into a little room with the investigator where they then basically ask him what happened for the next three hours and continuously tell him that they don't believe him.

And so, what my client did at this point, which really didn't help him too much, was that the first thing he says to him is that I didn't have sex with her at all.

Yeah.

And then, of course, at this, you know, the victim has gone to the hospital and done a rape kit at this point.

And so the investigator's like, yeah, well, you know, we've got DNA.

And so, you know, we know you had sex.

And so he changes the story a little bit and says that it was consensual, that she knew it was him, that she knew what was going on, that she invited the contact.

And then, but they still don't believe him.

And during this time, they've got a, you know, you've got a small room, little five by six interview room.

And you've got the investigator and you've got my client.

And like I said, he doesn't speak the best English, but he does understand English mostly.

So they bring in one of their dispatchers who is bilingual.

And so now you've got three people in the room, two people from the police and my client and going back and forth between the investigator to the dispatcher, to my client, to the dispatcher.

And then what happens next then, though, about two hours in, is that they start asking him questions about, well, was she asleep when you had sex with her?

And they start hammering him on this.

And by the end of this three hours, they get him to the point where he's like, well, I guess I don't know for sure if she was awake or not, you know, kind of.

And I mean, remember, again, that he's not exactly the most fluent person in the world.

So you can't tell for sure that he's 100 percent understood fully everything that they're asking him.

What's the story he's saying then?

She was been saying at his place that there's only the one bedroom.

She didn't have a bed, but the bed, but that they had slept next to each other before.

And so he went in there.

He laid down next to her.

And then she reaches over and taps him on the shoulder and base and takes his hand and moves his hand down to her vagina.

And he took that as meaning, you know, this is initiating, you know, hey, it's on, you know.

And so they have sex during the middle of their having sex.

She apparently, according to my client, she then kind of stops in the middle and asked him for money, asked him to pay some bills for her.

But my client is in no position to be paying bills for anybody else.

And so he says no.

And at that point is when he says that she gets mad, gets up and leaves.

But you, after listening to the video, did you did you think it was good for your case or bad for your case?

Well, after listening, after watching the video and talking to my client, I thought it was pretty clear to me that he had been influenced into changing his story and that he did kind of just go along with them at the end.

And because, I mean, he's sitting there for three hours.

He doesn't know what's going on.

He doesn't feel he's free to leave.

He pretty much knows that he's not walking out of the place.

And so he's at that point just going to say whatever he can just to get the situation to end.

And I think that's I think that's what happened was that after being cooped up in that room and just, you know, the officers coming in and out and in and out and just asking him more questions and just continuously telling him that they didn't believe him.

And at that point, he just wants to get out of there.

And and so if he admits a little thing like I'm not sure she wasn't quite awake, then I think that's just what he thought he needed to do to get out of the room.

You said that she had spent the night there a couple of times already or she had been sleeping there a couple of times?

Well, he said that she had not before that morning.

My client says that, yeah, she's slept there almost every night for the last week or so.

So it's his room and she's paying him six hundred bucks to put all her shit in there.

Right.

And then she's also and then she's sleep.

And that night she slept in his bed.

Yes.

OK.

And she slept in his bed before.

That's what he says.

Yeah.

And in fact, he says and he maintains that they've had sex before just within the last week.

Now, she denies this and says that she never would never did have sex with him.

There was nothing to prove either way with that other than do you really believe, you know, what she's saying here, because she says she was paying six hundred bucks to have her stuff there for a month.

You can get a storage unit in Columbus for, you know, a large storage unit storage unit is one hundred twenty five.

A little storage unit like what would handle all her stuff would be like forty fifty bucks.

Now, the other thing is that my client, he's not actually paying rent in the apartment that he's staying in either.

He's kind of being allowed to stay there by the the landowner or the house owner just kind of as a favor to him because he was down on his luck, too.

So do I think that my client was getting some money out of this?

Well, he said, yeah, he said that they had an agreement where he was going to pay her that she was going to pay him two hundred dollars a month for holding her stuff and letting her sleep there.

Now, he says that she never actually paid him.

And now contrast that with what she said, where he was starting her six hundred dollars a month and that she did pay him.

And so you've got some other details there that don't drive with each other either.

You said you met your client.

And can you tell us about your first interaction with him or or essentially what did your client say when you met him?

My client when I first met him was distraught.

He was very emotional and he was just saying over and over, I didn't I didn't rape her.

I didn't rape her.

I tended to believe my client from the get on this just because of his the the emotions that he was displaying during when he was telling me what happened and what was going on.

There was a sexual assault exam, right?

After she went to the police.

And can you tell us about the any physical evidence that may have been taken or the results of the exam?

Well, and this is part of the funny thing between the first trial and second trial.

So they did the salt, the sexual assault examination.

And so they've got her DNA and they apparently have.

Well, they've always had contributing DNA as well.

But for some.

But since we weren't really arguing the question of whether they had sex, just whether there was consent or not, the state didn't even bother to have the rape kit DNA tested.

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Where do you go from there in terms of prepping this case for trial?

Like what's the type of work you did?

Well, we did depositions.

Okay.

And I did, I did, I did depose the victim ahead of time.

And so I knew about the meth stuff, you know, ahead of time.

And I talked to, my client had a bunch of friends that he wanted me to talk to because there's kind of a little C story or B story going on with this too, that my client, and he didn't come right out with this the first time I met him.

And so I was a little bit hesitant to believe this part of it at first.

But the, the, the B story was that, um, it kind of comes from what happened during the middle of them having sex is that she stopped.

She asked him for money and to pay bills and that kind of thing.

And he said, no, she got mad and left.

Well, from that point, he says that she was extorting him that, um, that if he didn't give her his truck, for instance, then she was going to go to the police.

Now there's no, there's no evidence either way as to whether she had contact with him and told him this.

And I think that she probably didn't because the next morning he, he's been taken in by the police and arrested, and then he's in a jail cell.

So there's really no way that she could have had direct contact with him.

But he says that she, he was telling me that he had friends who had text messages about her asking about the truck.

The interesting thing is that also is that we never were able to find his cell phone.

He did not, he, I don't know if it was intentionally or if he thought he was just coming, he was going to be coming right back.

But the morning that the police came to question him, he had left his cell phone in the apartment.

And of course he never made it back to that apartment.

Now the police were never able to find his cell phone, which he claimed had messages or should have messages on it from the alleged victim that has had to do with this extortion scheme that he was claiming.

Um, but they were never able to find it.

Now the alleged victim had access to the apartment.

So, you know, if anybody's guess what happened to that phone, um, whether she took it or, or whatever.

Now he had a friend that since he was in jail and he had a quarter million dollar bond and couldn't get out, he ended up signing his pickup truck over to one of his buddies.

Uh, they did a, a title transfer and all that while he was in jail.

Um, so that his friend could just have his truck and make sure that nobody else got it and messed with it.

So then without having anything to prove it, the assumption is that basically after your client's arrested, she and her boyfriend or whoever she on her own comes back into the place and takes various things.

His cell phone, the car title, who knows what else.

Yeah.

And including her stuff.

I mean, cause again, she had her property in that room too.

And we have, uh, the landlord actually has had a video, which we used, which shows her poking around my client's truck, which is parked on the outside of the apartment.

Uh, after he was arrested.

After he was arrested.

After he was arrested.

She would even admit that she did return to the apartment at a minimum to get her own things without necessarily admitting she took anything of your client's.

Yeah.

And in fact, she testified that she stayed there in that apartment for about two weeks after my client was arrested.

Yeah.

She made some arrangements.

Uh, and remember my client had made an arrangement with the landlord to kind of stay there without having a formal lease or really paying rent because the, the landlord was kind of helping him out.

Did she sleep with the landlord?

No, no.

Uh, at least not that I know of.

No, that's the type of thing you shouldn't be saying, babe.

Well, did she, so she slept in the same bed?

Yes.

She went back to the same apartment every, she went back to the same apartment every night for two weeks and slept in the same place where she had been violated.

Yeah.

And, um, you know, they always say that the perpetrator returns to the scene of the crime on television.

I'm not familiar with the victim returning to the scene of the crime.

And here's another thing, you know, the deal that she had made with the landlord and the landlady was that she was all right to stay there for a couple of weeks, but as long as she didn't have anybody else over.

Uh, but I just told you that they had video, uh, they had video surveillance on this house.

And so she ends up getting kicked out because on at least three different nights, she had at least two guys over there with her.

Hmm.

And so that's why she ends up getting kicked out of the apartment.

Hmm.

Interesting.

Now I won't lie and say that I was gung ho the entire time I'm going to trial.

Uh, the state did make an offer for, uh, an attempted, uh, first degree sexual assault, which would, would have been a two a felony, which would have been a zero to 20.

Um, and you know, I, I told him he should consider that, but, uh, I didn't tell him one way or the other to, you know, take this deal or not take this deal.

I just said, you know, this is the best deal you're going to get.

And this is what it looks like right now.

And your client, he turned that down, right?

He absolutely did.

He, I mean, he stood on his innocence and he said, I did not do this.

I will take my chances at trial because I am not guilty of what she's saying.

At what stage was that offer made?

That was made about 60 days before our trial date.

I mean, even if he takes the attempted sexual assault, that's still a deep, deplorable offense, right?

Oh, absolutely.

So yeah, absolutely.

Yeah.

So the only thing that that offer did for him was chop down his possible time after being convicted.

Um, all right.

So now we're, it looks like we're gearing up for trial.

And, uh, how are you feeling about the case at this point?

Well, I'm nervous because I think we've got a good case.

And of course, you know, from my view as public defender and looking at these cases, there is reasonable doubt all over this.

But just because I see that doesn't mean that the jury is going to see that.

This is, I mean, this is the rest of my client's life is what this is coming down to.

And so, of course, I'm nervous for him.

On the, on, on some level, I'm telling, you know, I'm of course telling him what the plea offer is and that he should consider it.

But, you know, once he says no, then we're like, okay, then we got to do this and we got to do it.

We got to go hard and go right.

Okay.

So, yeah, let's talk about the trial then.

Um, you said you, uh, the prosecutor filed a motion in limine.

Is this in front of a particular judge?

Is this the trial judge?

Like you guys already knew what judge you're going to be in front of?

Yeah.

And, uh, this is going to be a little bit different for you guys probably because, uh, I have one misdemeanor judge and one felony judge in my jurisdiction.

So all of my cases are in front of the same person or, or the same people for every trial.

So every felony I have is going to be in front of the same judge unless the judge has a, uh, something that he has to recuse himself for, for a conflict of interest or something like that.

So, so there's two criminal judges in this, uh, city that you practice in, right?

Or for your county?

Yeah.

For your county or?

It's for the county.

Uh, and my county has, uh, 32,000 people in it.

Wow.

So you can't, you can't burn any bridges then?

No, not really.

Everybody knows everybody.

Wait.

And how many public defenders do you work with?

Uh, I am the chief and I have one deputy.

Oh my God.

No.

Yeah.

Allison, I should have told us we are talking to the public defender.

Whoa.

This is huge.

Okay.

Wow.

This is so fascinating.

So that's why you were talking about your relationship with the detectives.

Yeah.

Cause I know all these guys.

I mean, I've, I've played softball with these guys.

I see these guys at the bowling alley at the bar or whatever.

And, um, a lot of the police, a lot of the law enforcement police or sheriffs or whatever.

I mean, a lot of them go to my church.

Um, and I mean, we see each other on the street all the time and we're friendly.

And I've actually, you know, I actually try to, to keep that going because there are a

lot of times where I can just call up an investigator and ask him a question.

Whereas if I were even in, uh, uh, even in like Lincoln, Nebraska, um, they're not going

to take your phone call.

I mean, you're going to have to go through the prosecutor.

You don't have to send them five emails and wait three weeks to get an answer.

That kind of thing.

So I like having, I like having that sort of relationship with them.

Yeah.

Not that I'm not that I'm taking it easy on them ever.

And, you know, I mean, they always tell me how I'm, you know, I'm not taking it easy

on them ever, but, but, uh, but being able to call them and talk to them without having

to go through three levels of bureaucracy to get an answer for something.

That's always pretty nice.

So, so yeah, I don't want to burn any bridges because I think it actually benefits my client

to be able to do that.

So I think you talked about the prosecutor filed a motion and limiting your case, right?

Yeah.

Yeah.

He wanted to keep me from, uh, he wanted to keep me from talking about the burden of proof

and comparing it, uh, making comparisons on the burden of proof during, uh, jury selection,

during opening statement and during closing arguments.

So basically he didn't want me to say anything like, you know, this is beyond, you know, preponderance

of the evidence is this, and this is worth, and this is more than that.

Clear and convincing evidence is this, and this is more than that.

He didn't want me making comparisons like that.

And is that an argument that you, since I assume you and he have done a number of trials

together, um, is that because he's, he knows that's an argument you make that he considers

successful or what's his motivation for?

Um, I think he thought that it might be successful.

Um, I haven't heard very many prosecutors in Nebraska do that particular motion to eliminate

before trial.

And so I don't know if he's trying to be the, um, the frontiersman kind of thing and trying

to break new ground on, on prosecuting.

But, um, but I think, but I think that he thought that, that the more they thought about

how much proof it actually took to convict somebody, the less likely that they would convict

him, which hello, that's the way it's supposed to work.

You know, you're supposed to have this mountain of insurmountable evidence that you're supposed

to have in order to convict somebody.

Not just like, uh, yeah, we had enough here and he's probably guilty.

So we're going to convict him.

Right.

So does the judge laugh at this motion and just throw it out?

Or is this something?

No, he didn't.

He didn't throw it out.

He said that, that part of my job was making comparisons to the burden of proof.

He wouldn't let me use a chart.

And so there's a few charts that you can find, even if you Google them, but there's like stair-step

charts where it goes all the way from like, yeah, reasonable, uh, or a reasonable suspicion

all the way to proof beyond a reasonable doubt.

So he wouldn't let me use a chart like that.

The charts get litigated here all the time.

Yeah.

Let me just take a second to explain to maybe people who aren't defense attorneys are listening.

Um, as defense attorneys, we explain the burden of proof to juries.

It's in order to find somebody guilty.

It's proof beyond a reasonable doubt.

The highest burden in all of the land in America, the United States constitution.

The lowest burden is reasonable suspicion, which is the amount that a police officer needs

to detain somebody.

Then there's probable cause, which is the amount of evidence a police officer needs to arrest

somebody.

And then there's a preponderance of the evidence, which is about 51%, which is, you know, more

likely than not, which is the amount of evidence that a civil jury would find if someone,

you know, ran a red light or not.

And then there's clear and convincing evidence, which is, uh, about the amount of evidence

that the, that, uh, the judge takes to take someone off life support or, um, take, take,

take someone's kids away.

And then because the United States of America, because we value freedom and liberty so much

that in order to deprive someone of their freedom and liberty in this country, you have

to have proof beyond a reasonable doubt that they committed the crime, right?

Is that kind of like what we do, right?

we do right we kind of like that's what we do as defense attorneys right this sort of step ladder

in terms of the amount of evidence needed to take action right about right tim absolutely and and

the the words that you used uh the um you know on a preponderance they can take your money

on clear convincing they can take your kids but in order to take your freedom they have to have

proof beyond a reasonable doubt i that's oh i love that i mean that's kind of the that's part of my

that's part of my thing in closing what was the uh now what was his specific argument as to why you

can't say that because that's kind of he's getting petty right literally he said that comparing the

burdens proof would tend to confuse the jury confuse them into voting not guilty i know right yes they're

gonna get confused and accidentally acquit your guy yeah if he's allowed to do this i might lose

and then you said the judge ruled that you can't use a chart to explain the burden of proof then

yeah the the judge didn't well he's he's ruled before on the stairs on the stair step chart

and so and i was i didn't really like the stair step chart anyway i mean it's it's a good illustration

for some things but in front of a jury who's been there for however many days hearing evidence and

stuff i didn't really think that that was necessary but there's another chart that i had gotten which

didn't even specifically mention any burdens of proof it had um it started at white at the bottom

being absolute innocence and then it had all these different shades of gray leading up to black at the

top which was uh proof beyond a reasonable doubt uh hold on a second maybe racially inappropriate

okay so you're if you're white you're innocent if you're black you're guilty what's going on

is that okay in nebraska you're we're in la we gotta be a little more sensitive towards racial

the racist overtones aside i was trying to say that you know the way i was i was going to present that

one was that you know you know sometimes we try to think of things in terms of black and white

but we got to remember that there's all these shades of gray and so what you've got to understand

is that if there's any of the if if your level of commitment to a verdict falls within any of these

shades of gray then you have to vote not guilty and so judge didn't like that either because he thought

that that confused uh proof for some reason he thought that that confused proof beyond a reasonable

doubt with proof beyond all possible doubt and so he didn't like that chart either so i i decided not

to use it i just kind of i just kind of did it oratorically instead so after the the the judge

roll into motion what happened next then you guys start picking a trial or start picking a jury i just

they yeah yeah we started picking a jury and so all the fun began and uh and tell us about your your

voir dire for uh this uh sexual assault case most of my voir dire for this case was going just over

what we were just talking about it was about um the the burden of proof that the state had to be able to

prove that my client had done this that he had uh subjected this this woman to sexual penetration

without her consent and that this could not be something that they could guess about it could

not be something that um that they could convict on if they just had a strong feeling or if they just

didn't like my client or anything like that that they had to have proof beyond a reasonable doubt

to convey and during jury selection then uh i actually had some a couple of really good

prospective witnesses or not witnesses i'm sorry i had some very good uh prospective jurors that i was

really hoping were going to make it to the final jury but i i kind of knew from the get that they were

going to get disqualified but um the first one was actually the son of a local police officer although

that specifically didn't come out during voir dire i just recognized him from uh when they called his

name but uh i've actually been on a camping trip where he was uh i mean he was a teenager at that

point and he was we had a few families that went on a camping trip together and he was staying over

with one of the other families and and so i mean i met him then but uh he was talking about how he

had been falsely accused of a sexual assault at his job and so it was never anything criminal

but he was explaining to everybody how he probably that it was so very hard to disprove

this kind of an allegation and how it took a lot of time to get cleared up that he was eventually

exonerated by his job but that he was still he would still get you know sideways glances from

people and he still thinks that people think that he did what he was accused of even though

you know it was investigated and and found in and basically determined to be an unfounded accusation

it was really powerful i thought and i knew that this this kid wasn't going to make it through

and in fact when the when the judge ended up asking him if uh if he could be an unbiased

juror he said no because i'm gonna i'm gonna tend to believe the the accused in this case because of

what i went through and so he actually got dismissed for cause and did but did his story come out in front of

the entire jury panel yes it did and so i thought that was extremely helpful oh wonderful and then

and then um the there was another gentleman who then when we were talking about you know interrogation

uh a little bit later on he was talking about how he had been uh falsely accused of a crime

in i believe it was montana and that he had been arrested and interrogated and you know he described

his uh circumstances and it it was very similar as far as the the questioning to what happened to my

client where he was he was uh asked to come in for questioning and he voluntarily came in for

questioning and they sat him in a room and he was in the room i think in his case for six or seven hours

being grilled by an investigator and uh and that uh after a couple hours he he told us and again in

front of the entire jury panel that that he began to question whether what he was saying was actually

the truth so he began to question his own mind as to what happened his own recollection as to what

happened because he's been sitting there and being badgered and grilled by the police in this little

room for so long and that gentleman actually made it through to the um to the the peremptory phase

and he was the first uh he was the first disqualification that the that the state threw out

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at 70 million pod.com thank you um okay so then what what happened next then opening statements yeah we did

uh opening statements and uh those were um largely just uh repeating a lot of the themes that we had gone

that we went through during uh during opening well let's let's jump into the evidence then how did

roll out for the da then he started with the victim yeah um and she got on the stand and uh she told her

story she explained that she was uh you know down on her luck that she got kicked out of her apartment

did she say she did meth or did that come out in the in the direct well she didn't ever admit that she had been

doing meth that night okay um what she said happened was that she was basically that she was you know

canoodling or whatever with her boyfriend at at his place which was actually his aunt's house and that at around

six o'clock they had to leave because that's when his aunt would come home from working third shift at one of

the factories and so out of respect to his aunt they had to leave and so they then went to my client's

place and they went inside they were hanging out with him they had breakfast um i think they even i think

they even were so specific is to say that they had they each had a bowl of cheerios while they were

watching tv and then she took her boyfriend into the bedroom she had sex with him and then fell asleep

and then part of this part of the story is something else that came up in the common sense thing

she fell asleep after having sex with her boyfriend the way she the way she tells it and then he gets

up out of bed and she wakes up to the jingling of his keys as he's putting his pants on and so she's

asking him hey where you going i thought we were going to stay here and have sex all day he says no i

gotta leave i'll be back and then so she gets mad pulls the covers over her head and go back goes back

to sleep well later on then she says she wakes up to my client being inside of her having sex with her

and her facing a different direction than she remembered falling in a different position than she

remembered falling asleep in and so that's something that we went into um not only with her but also in

closing on okay she wakes up to somebody's keys jingling but yet my you're supposed to believe

that my client repositioned her and also was able to achieve full sexual intercourse with her before

she woke up right and that just didn't make any sense you know i wanted it to get out that she was

a a meth user and that she was probably either still high or very recently high to this happening

and that might affect her recollection of what happened i did not expect at all that she was

going to say what she did i i thought maybe yeah i've used meth before and then i'd ask her you know

how recently did you do it and she said and we got out of her that it had been within the last 48 hours

but i couldn't get her to say anything more recent than that and then but what she went into

also on that is when i asked her the question of do you think that this could have uh that your meth

use could affect what you remember she said well maybe a little and that plus i was coming down off

of using meth all the time uh i had been on and she just goes into this kind of narrative and i can just

see the prosecutor's eyes bulging and his face getting red because she's just diving into this

story about how she's been using meth a lot that she had been using meth a lot recently and that she

was come in she called it as she called it like falling out is what she called it which is a term that

i hadn't really heard before but she took but she explained it to me that she had been using and not

sleeping and using and not sleeping and so now she was like this at all kind of uh snow snowballed and

and caught up to her and so she was like extremely um exhausted kind of thing and so that's how she

tried to explain how my client could have achieved full penetration without her without her waking up

but and less than an hour before that she apparently fell asleep and we confirmed with her very clearly

that she was actually fully asleep not just nodding off or something like that but that she was actually

fully asleep when she heard her boyfriend's keys jingle and she woke up to ask him why he was

leaving and so getting her to basically confirm those two um kind of diametrically opposed stories as to

how deep a sleeper she is or was on that day was pretty helpful during cross-examination did the uh did

the meth users on your jury like were they able to relate to her at all or unfortunately well at least

i uh i don't think we had any or at least then nobody ever admitted to that so cool so then who

will what happened next in trial then uh he brought up the investigator the main investigator on the case

who was the same investigator that came to my client's house and and asked him to come in for questioning

and so he uh his quite the questioning of the investigator had a lot to do with what uh what

safeguards did he use to ensure that my client knew what they were talking about and that they

understood each other and so they talked about bringing in the bilingual dispatcher to help out

they talked about how this wasn't a uh this wasn't a you know a heat lamp and a rubber hose situation

this wasn't you know him uh browbeating the defendant um to to make a claim and he uh was trying to make

it sound like i was just having a conversation with him and he just kind of spilled his guts about this

stuff and as we kept talking about it he kept he kept adding more stuff in and then he and then he

admitted that he maybe that he didn't know that she was awake when he had sex with her and it kind of

went that way and so on cross i went after him on that and and went into detail about how big the room

was and how long my client was in there and how often and in what way did he tell my client that he

had a right to an attorney at any time and did my client ever say anything about wanting an attorney

did my client ever ask to stop and uh and did you let him get out to go to the bathroom

and i think the big thing was is that i i was asking him and trying to get him nailed down to

the prospect that he was not going to let my client walk out of that out of that room or out of that

building that day and of course he was going oh yeah if he would have said if he would have said

something and i believed him i would have let him walk away but um and so i never got him to agree

with me but i didn't need him to because i think it was pretty obvious from what he was saying

and i you know from uh several nods on the jury that my deputy noticed during the trial uh she said

i but she was sure i got my point across that that it was kind of ridiculous for them to ask the jury

to believe that my client was actually ever had a possibility of walking out of that building

without being placed under arrest that day so i think i think cross went pretty well um during

during the investigators uh the questioning of the investigator we freely used the word interrogation

too and both sides used the word interrogation which ended up being a point later on so tim what's

the what's the next piece of evidence that the prosecutor put up uh the next uh witness was the nurse

examiner okay and and how did that go it went just kind of like i thought it would go they explained

what goes into this rape examination and uh what kind of uh what kind of evidence they collect and what

they asked the what they asked the alleged victim and uh they just basically explained what she did

and then uh your cross examination then what were you trying to point out my cross my cross is very

short i basically said there's nothing that you did that can tell you whether this was consensual or

not isn't that true and she said yes has anything happened during the the questioning of this witness

yeah actually when this nurse was explaining the physical examination and specifically the thing about

using a speculum and swabbing the cervix for dna there was a young lady juror in the front row who

stands up starts kind of teetering walking toward the door that the jurors go in and out of which is right

next to the jury box and she makes it about halfway there and passes out out cold on the floor during

the direct while the prosecutor is doing the questioning right uh yes it was during the direct oh wow she

passed that she fell on the ground yes and i'm i'm actually physically closer to her than the prosecutor

is but i'm behind the defense table sitting down with my client and the prosecutor is standing up at a

podium which is the way he likes to do things and so as soon as she starts to topple over the investigator

who is sitting at prosecution table two as the you know uh i can't remember the exact term of what

they use but the prosecutor is allowed to have a law enforcement officer with them at the table

the case agent and so the investigator says something like you know get her get her and so the prosecutor

runs over and and kind of catches her before she hits the ground and kind of a uh you know prince

charming oh you know saving the damsel in distress kind of manner and uh wow ushers her to the ground

safely where she is then uh where she is administered to by the nurse examiner witness that was that was

testifying uh the judge you know shut the judge you know calls a recess sends everybody else out while

they're taking care of the juror where um did you like have any sort of sidebar like legal discussions

about whether or not she can serve as a juror from then on or did you ask like did you just resume the

trial after she felt okay or was there any does this raise any concerns like now that she's had contact

with the prosecutor now that now that she's sort of had a personal i mean i mean the nurse like he saved

her life saved her life are you concerned about her ability to be fair and impartial at this moment

absolutely i was and i did raise that with the judge and that was the whole purpose of having the uh

in chambers meeting was to kind of evaluate whether this person could still serve and i did ask for her

to be removed and i made the point like that you know hey this is exactly why we have this uh this is

the kind of thing is exactly why we have this alternate here this person can't tell us one way

or the other whether it had anything to do with the testimony but even if there's the possibility that

it did then it shows that she can't be unbiased and so i asked for her to be removed how'd that go

it didn't the judge allowed her to stay on the jury and uh and then we resumed uh we resumed the trial

and i went at that point is when i started cross-examination oh okay yes take down these two

heroes right now tim so that's okay so so the nurse tests on direct testifies then the faint happens

and then your cross-examination happens after she saves the life of the juror right there open court

great okay so you're delicately tiptoeing into the situation but i mean luckily this wasn't

you know a situation where she's really saying anything that's hurting you um was there any

other main pieces of evidence that the prosecutor prosecutor put up no that was in the first trial

that was basically it okay all right so then now it's time for the defense case right yes all

right and what and what evidence are you putting up for your defense well i had planned to have

my defendant's uh friend who he had gifted his truck to testify and to try to get as much as i could to

bolster this uh theory of extortion that my client wanted to present so when you say you planned does

that mean you did put up those witnesses or not now the friend with the truck he uh had apparently a trip

planned to texas the same week as our trial and so i talked to him several times before the trial and

i explained to him that it was important for him to be there and that his friend was fighting for his

liberty and that anything that he could do to help it would you know it'd be very nice if he could show

up and that i'd rather not have to subpoena him to force him to be there and so he did agree to show up

however on the day of the trial uh he shows up at the courthouse at around noon on and this is the

second day of the trial okay um and so we weren't going to get to him till about two o'clock that afternoon

uh by the time two o'clock rolled around he was gone so we decided is unfortunately to go ahead and skip

that and move directly on to my client um just as a side thing so did you bring up the truck with

the alleged victim then when she testified yes i did and we talked about whether she had gone

gone through my client's truck and whether she had you know taken anything or messed with anything

and she was very adamant that she was just there trying to find things that belonged to her

that had been moved out of the apartment into that truck um after my client had been arrested

um so and we didn't have anything that would successfully refute that and so and then did you

also ask her about whether or not she took the cell phone or any other things from the apartment

yeah i we did ask her about the cell phone and she just flat out denied taking the cell phone or

seeing the cell phone at any point okay that's okay i mean you're kind of planning some those ideas

in the juror's head and she does meth i mean that's very believable all that's believable so oh yeah i

wasn't too worried about that stuff as far as whether the juror had enough to to use that and and i think

i mean i'm obviously focused on witnesses when i'm doing examination and i'll look over to the jury

every once in a while but i can't sit there and stare at the jury while i'm asking questions to see

who's nodding but my deputy was in there helping me with this trial and also observing witnesses and

you know writing out suggestions and stuff and so i mean she you said right let me know writing like

writing out suggestions is that what you said well just little notes you know if we're in between

in between witnesses and that kind of thing like uh oh i just thought of this uh and and of course

she wasn't as in-depth in this case as i was so she actually did have a couple questions in between

witnesses about well didn't you have this i thought you had this and i'm like no no we didn't have

that we couldn't find this one or whatever and so i mean she's there sitting between me and my client

and uh my client when he had oh i'm sorry you would write them down and pass them to her your deputy

public defender yes okay he meant like the bailiff it was so funny because when david asked that

question i was like yeah the bailiff okay okay we don't i'm not sorry my deputy i'm not used to

referring to that to that well he is the public i know this is the public yeah i'm sorry about that

when i when i say my deputy it's my deputy public defender and since i only have one of them she's you

know my deputy so yeah i apologize i forget the level of public defender ring we got going on here

you know you know tim you hire you hire david and me you have a full-time second chair on all your

cases yeah and you refer to your deputies in the plural yeah you know

yeah so i mean she is well and we make it we have a joke at the office that she's my chief deputy

even though she's the only one i like it i like it so uh cool so then um so now we're on to your

client how did your client testify well yeah what was the your biggest concern about your client

testifying if any my biggest concern was hit was him trying to explain his multiple uh

excellent uh statements during the interrogation and explaining away why he admitted to certain

things when it didn't actually happen okay what do you say to the jury about that well his answers

came on that situation came down to basically he was nervous and it's what we talked about during

opening and during voir dire about how he went in there voluntarily he thought that this was no big

deal because he didn't do anything wrong and then it then turns over the course of three hours to

i may never see the light of day again and so he was nervous you know and how he increasingly was

getting nervous how he didn't know what to say and that he and it actually paralleled the the uh the

story given by the prospective juror pretty well where he very clearly articulated that after

after a while he started questioning his own mind and questioning his own recollection of what had

happened and explaining that he was at the at the end there was a point at the end where he just

wanted to get out of the room and he didn't care how he did it um and how did the prosecutor's

cross-examination go then the prosecutor was trying to get across that he did understand english really

well and that he couldn't really rely on telling the jury that he didn't fully understand

what the investigator was asking him which is something we didn't even really bring up anyway

you weren't even arguing um yeah that's not even we weren't even arguing that yeah and but

but then when he did it he did it in such a way with double negative questions that i had a legal

basis for having him restate the question because the question wasn't clear not only to

the defendant who was getting this question through an interpreter who's trying to put a double negative

from english into spanish but also just to to to me to a regular english-speaking you know lifelong

english-speaking juror it was unclear question to any of us and so i thought that was on the one hand

very helpful on the other hand pretty funny but oh yeah because he's trying to claim like oh you really

don't understand or you really do understand and nobody in english or spanish understands what he's

asking him exactly yeah what's the is the objection just vague or are you actually saying double

negative like how are you are you objection nonsense are you what's the professional way you're you're

objecting in the courtroom in front of the jurors i said objection your honor the question contains a

double negative and it is unclear how many times did you end up saying that i believe i had to do it three times

and each time the judge had to direct him to rephrase because each time the because each time the interpreter

also had their hand up all right so tell us about closing arguments then closing arguments uh this

was different the first time than it was from the second time um i told you that i had my my deputy

public defender uh sitting in and assisting on this trial from the very beginning and she was there

from the very beginning all the way through uh jury selection opening and uh in evidence uh she did not

do any questions or anything but when we were in recess and going through closing state going writing the

closing and uh consulting with my client uh we my my deputy came up with the idea and the that perhaps she

should be the one who was presenting the closing argument in the case and her point was that um that

she thought that having a woman's point of view on this would be helpful during closing argument and

that she wasn't just coming in off the bench per se i mean she literally was coming in off the bench

because she was you know sitting at defense table the whole time and didn't actually do any questions

or anything but she thought that it wouldn't be jarring to the jury for her to to do closing my client

agreed with her and so we wrote closing and my chief deputy uh delivered the closing argument

or the defendant that is literally my dream job like you just get to sit through the entire trial

and then stand up to do the closing argument that would be my dream assignment

what's up what's up my a and cheers just want to say thanks for the downloads likes shares and just

outright excitement for what we do here at another not guilty in addition i'd like to acknowledge and

thank our newest members to our patreon program matthew killigrew leslie jones and michelle miltner

if you too would like to donate to the podcast and become part of our patreon program where you can

receive a shout out on an episode and or the unedited version which usually is double the length

and includes more legal analysis facts and commentary and please visit our website at anothernotguiltypod.com

and click on the patreon link so how how does she do she did very well um like i said uh

i had known her to be articulate and uh well-spoken uh before this but she she proved that

that to me during closing she uh went into basically arguing the common sense areas but then she turned

on a dime and then just went hard on what evidence the state did not have i she really hammered it home

you know and i thought she did a really good job that's great tell us about deliberations it was uh

i believe between four and five on on a tuesday when we submitted to the jury they come back the next

day i get a phone call at 11 o'clock in the morning that says that uh the jury can't come to a decision

and that we have to go into the courtroom for uh for the judge to hear tell the you know officially

tell the judge that they're deadlocked the jury comes out judge asks them if uh if you are indeed

deadlocked the foreman gets up and says yeah uh your honor we're deadlocked there's absolutely no way

that we can come to a decision um and so then uh the judge uh basically you know declares a mistrial

and what was the what was the split the split was and this is something i hadn't seen done in my

jurisdiction before but the judge did ask for a tally and the tally we got was 10 to 2 in favor of not

guilty nice the prosecutor gets to decide whether or not the case is going to be retried basically at

this point the ball's in their court what does the prosecutor come back with i was thinking that

perhaps we'd get like a super little misdemeanor out of it just for him to save face and and move on

right but that didn't happen um he gave us the exact same offer that he had offered before and he told

us that he was going to retry it wow did did he express or say why he felt confident in his ability

to get a conviction in the next trial did he say how he was going to switch it up or what his new plan

of attack would be uh he didn't give me anything as far as what his uh plan of attack was going to be

but as far as why he was doing it he also called the jury foreman and his interpretation of what the

jury foreman told him was that it was it should have been a 1 to 11 split not a 10 to 2 split

or it should have been a 1 to 11 split in favor of guilty rather than a 10 to 2 split in favor of not

guilty and he says that because apparently there was one juror who was staunchly not guilty the entire

time and that during deliberation he kept bringing up points about the evidence about why that wasn't

enough and why you shouldn't we shouldn't believe this and eventually apparently turned nine other

people to agree with him and that there was two guilty verdicts that just weren't going to change no

matter what and so he thought well this is a great case for you because you got your your dream juror who

can change the minds of everybody else in the pool when you should have had a a conviction and i'm just

like oh you you're just that's what they're supposed to talk about these things and reason them out and

obviously your evidence didn't stand up to scrutiny when they actually started talking about it

so then was the foreman we can assume one of the guilty votes the foreman told me that he was

initially leaning toward guilty but that during deliberation it became clear to him that the

state had not met his case so i think i think the prosecutor was sort of overstating what was

happening in the jury room with regard to having 11 guilty votes and then one person turning them all

um i think it was you might have had a feeling you know like but this is one of the things that we

talked about in close too is like you can actually believe that my client is guilty but you must find him

you must acquit him if there is not enough proof to find him guilty beyond a reasonable doubt

you cannot like my client you can believe that he's probably guilty uh but that just isn't enough

and so i think that that's where most of these jurors were they had a feeling that he was guilty

but the state just didn't make his case all right so i guess we're on to the second trial then right

yes and is there anything yet you're doing differently or anything that you looked into or any additional evidence

are you switching up your game plan at all going in um the game plan is is pretty much exactly the same

i nailed down the the witnesses a little bit better though um my client's friend who he gave the truck

to i made sure that he was in town and that he had a subpoena so that he had to appear and stay there

rather than me depending on him on his him saying that he was going to be there and then leaving

anything different or with a voir dire or jury selection this time

nothing different with voir dire jury selection um other than there was one uh prospective juror

who during the course of the questions i figured out that she had twins at home and so i wanted to

you know oh yeah i'm like i have twins at home so i really want to connect with this person

and so i got into a conversation with her about the burden of proof and uh especially about how

you know preponderance of the evidence you know they could take your money away from you

and then what i got into her with uh in more depth was how you know clear and convincing is the burden

of proof to take your kids away from you and that what we were dealing with today was beyond a reasonable

doubt which is even much higher than that and so i i even asked her the question about you know so

how much evidence do you think they they would have to have if they wanted to come take your kids out of your house

and she she was very adamant that they would have to have a ton of evidence to take her kids away from

her and so i just ended my you know my conversation with her with um well this this burden of proof is

even higher than that and so and moved on from there and i like that yeah didn't uh did i thought i would

maybe get an objection from the prosecutor on that for some reason if nothing else because it was

you know spot on and and powerful and he just you know would want to throw a wrench in but uh he didn't

say a word on that one nice but that was about the only thing different in that part cool so then um

the prosecutor then kind of put up put up the same case then for their for the second trial right

uh pretty much he did have a couple extra witnesses this time um they did have the boyfriend

okay who was absent for the first trial but it didn't really have anything of uh of value

and so um oh in addition to that he can kind of corroborate that they went over there that day and

ate cereal or something like that right yeah i mean he said basically that they were over there that they

had breakfast and that he ended up leaving now he did say that they had sex but he didn't nail down

any specific timeline and he did say that his that the victim was was kind of mad at him when he did

leave is it kind of weird that i mean i don't know how i would feel if my girlfriend shared a room with

some other guy that does i mean that come up at all this is sort of a weird arrangement well he explained

this as that this girl was while she was calling him her boyfriend um she to him was basically just a

side piece so he it didn't seem to me like he was very invested in this relationship beyond the physical

oh interesting okay which seems like it helps you because like yeah so maybe she was having sex with

your client right like she's not in this committed loving relationship with somebody else she's

they do meth and have sex yeah she's she's this hookup really so how did the how did the alleged

victim testify in the second trial the alleged victim sort of followed the same story that she did the

first time she did back off quite a bit on her uh out her um admissions of meth use and tried to make

and you know basically tried to spin it so to make her look make herself look better and so i had the

transcript from the first trial and i did have to impeach her a couple times oh what about her

presentation does she dress differently the second time is her hair done differently the second time

or was this she you know uh or she's i mean you haven't really described her appearance anyways so

what does she look like you know like um she's a little bit on the heavy side um the first trial

though she was pregnant as well and so um and it was obviously you know it was obvious pregnancy

um but she was she was just appropriately for court um i can't remember specifically what she was wearing

but she was it was not jeans it was it was slacks and i think she had a sweater on and uh and then the

second time she had a blouse and and slacks and uh during the intervening period between the trials

she had had the child and so she's still heavy set but she's not she wasn't you know pregnant or you

know that time and um do we know who who the father uh we do and it's not uh it it and i didn't bring

it up because it wasn't really relevant the first trial but the funny thing is is that the father is yet

another gentleman who i have uh had to represent on many of the occasion before

how many of your clients have been with this woman we got three so far

uh and i hope that's all

but uh but yeah and uh what about the the detective how did he testify the second time around well i mentioned

the first time that we used the word interrogation during the first trial there wasn't nobody had an

issue with it um during the second trial as soon as i started to use the word interrogation

the off the investigator took issue to that and basically tried to make it sound like interrogation

was only what you see in the movies with a heat lamp and a hose and and three officers and

and you know bare knuckles and somebody tied to a chair and that kind of thing and so he was trying

to be very adamant that that i was a i was being a jerk for using the word interrogation when that's a

legal term he was arguing with me about the interrogation thing but i was trying to stay away

from him because as far as i could just because i knew that he was getting irate on the stand and

i didn't want to look like i was feeding into it like i was um like i was trying to get him to argue so

i just let him do what he wanted to do with that and then and i would slip in the word interrogation

every once in a while during my questioning and then i'd get a big uproar from him out of that

um but you know at the end of the day it it felt to me while i was questioning him that he was kind

of being a little bit of a jerk about the whole thing and that really got confirmed to me when i read

the questionnaires for the second trial after it was done um the jury really didn't like that

um because they felt he was being unnecessarily argumentative and and the the statement i got

from one of the jurors was that we all know what interrogation means right and clearly this questioning

of your client was an interrogation so for him to fight you on the use of that word seems like he's

trying to hide something whereas in the first trial you know this i guess quote confession air quotes you

know was presented sort of matter-of-factly and then by him trying to fight you on the use of that

word makes it seem like he has something to hide or you know he he really did improperly question your

client yeah so i don't think that went well for him on that one so oh good so you had to get but

you had to get a little tough with him though you know you you held your ground right absolutely

i didn't back off i just uh i just kind of let him uh dig his own hole did you bring up like hey you

know i mean you couldn't bring the first trial up but or mention the first trial but you're like hey

you testified previously and and i questioned you previously and i used the word interrogation

previously and you've never had an issue with that until now i wish i would have and that is something

that my my deputy brought up to me after we were done with that witness that you should have just gone

to the transcript and had him read and have him uh read interrogation yeah yeah read read his answers

to a question that uses the word interrogation for the jury but i wish i would have thought of that at

the time but it just you know you know these these deputies just kicking back you know monday morning

quarterbacking you you know who do these deputies think they are right oh she's earning her keep

believe me so uh cool um and then what about the nurse how does she testify the second time around

uh the nurse was exactly the same as the first time did she have to render medical aid to anyone in the

courtroom during her testimony this time no we had no fainting jurors this time and no opportunities for

uh sir galahad to go over and sweep someone off their feet either oh how boring

and uh and how did your client's testimony go the second time around my client's testimony went

pretty much identical to the first time he was still very composed he was still very uh

focused he he talked to the jury when he was answering questions that he and he was looking

at either the prosecutor or myself you know directly in the eye when we were asking him

the questions and i think he did uh just as good if not better the second time as he did the first time

and then what about your uh additional witnesses how did they do they did very well i first called the

landlord from the apartment and i asked him and was able to talk to him about my client about whether

you know he was a a good tenant whether you know he did he drunk the place up and just you know explain

a little bit about his you know that he was a good guy that he was hard on his luck he was a good guy and

that it was because he was a good guy that the landlord was letting him stay there uh without

having a written lease and all that kind of stuff and then that led into so you let the victim stay

there after he was arrested and the landlord's response was basically well i don't know what

was really going on but she was down on her luck too and so i told her she could stay there as long as

she followed the rules and then we had to kick her out because she broke the rules by having too many

guys over so that worked really well and i didn't have to elicit that answer from him that was just

the that was just the flow you know uh that was just one of those the way he answered amazing

about right

there are some things that you just can't choreograph and that was one of them

i'm surprised you got that evidence in the into i mean like i'm like i feel like a that might be

excluded over over here i mean that's great that you got that evidence out that she

was a tenant and she broke the rules and and i had to like evict her so to speak like how's that even

really relevant you know it's great well i mean i didn't ask i didn't ask a question that was

specifically asking for that that evidence he just kind of said it when in response to another

question so i don't know if the prosecutor just figured that well they've already heard it so there's

no point in me objecting yeah or whether it just blew by him yeah but at any rate it it ended up

going it you know they heard it yeah so um and then you said the the friend with the truck now was also

available yes and i was not able to get very far with him before we had to shut it down because

of relevancy issues um i did get that well they were on to you now tim they're on to you

you only get away with that with the first witness

no the slider only works so many times before they catch on

but uh we did get that uh that my client gave him the truck because he was supposed to safe keep

it because there was somebody that was trying to get it is kind of basically what we were able to get

out oh no we couldn't actually we weren't able to actually point the finger at the alleged victim as

being the one who was trying to you know however you want to call it steal or whatever get the truck but

there was he got the truck from the defendant because of this reason that there was somebody

trying to take it and he couldn't and he was in jail and he couldn't do anything about it all right so uh

tell us about closing arguments now yeah did you pass the torch did the did the deputy step up this

time again or what did that same conversation happen what how'd it go well this time uh the first trial

happened in october of last year the second trial happened in february of this year by that time my

deputy was i think a month and a half pregnant and had been experiencing uh some morning sickness and

nausea she um she was not sitting second chair for the whole trial she was actually sitting in the

front row and observing and so no she did not present closing the second time around so the public

defender had to step up and deliver the closing argument in this case huh i i had to do my job

and uh tell us about your closing argument how did that go the closing argument was a little bit

contested um toward the end i did a lot of work on the burden of proof and how the state had not met

the burden of proof and i talked a lot about the evidence that they did present and why that was not

enough and why a lot of that evidence was completely and totally irrelevant and then so i get to the end

toward the end of my closing argument and i'm getting into the point about talking about shades

of gray in society about how you know we don't live in a black and white society not everything is

just right or wrong yes or no there are always shades of gray in everything that we do so i was

explaining to the jury that you know you have this this situation here where this is one of your

one of your shades of gray you cannot and so that's when my um and i didn't go so far as to say

you know think of it like this with black at the top white at the bottom and shade the green between

i didn't even go that far i just i was just i just made the i made the statement about us not being in

a black and white society and that there are shades of gray and that triggered the prosecutor into

objecting we had to stop the closing and then we went up to the judge in the middle of my closing

for a sidebar i hate i i hate that because you know it ruins your rhythm it does and if i weren't

literally three sentences away from being done yeah i would have been pretty ticked about it but because of

when it happened i was actually kind of and and because of the of what happened with it um i was

actually happy that he did it because it just made him i think it just made him look a little

bit on the petty side and then you sort of get to get back up there and then make the point all over

again is that how it plays out that is exactly what happened um he lost his argument in front of the

judge we went back i went back in front of the jury and it's like as i was saying earlier and i'd

finished that's awesome

that's great that's great that sounds like a very smooth and successful recovery nice and i was and

i was literally three sentences away from being done and so it really didn't destroy my flow at all

it just kind of uh i don't know it kind of emboldened me a little bit to throw the dig in

about you know as i was saying you know when i when i started back up and because i knew that i was

going to be down i was going to be i was going to be sitting down in three seconds anyway i love it

i love it tim can you tell us a little bit about how your client's been throughout these trials in

like what's what's he been just chilling the whole time um he was very calm he had a headset on because

he had an interpreter um behind him in the in the row um interpreting into a mic and it was just

feeding directly into a headset so it wouldn't disturb anything else but during this whole thing he was

attentive and uh he didn't take very many notes he was he was standing uh he was sitting you know

upright looking straight at the at the witnesses and so but yeah he was very well composed during the

whole thing uh didn't get very emotional at all uh and that was pretty much solid all the way through

uh until we get to the verdict oh okay did anything happen during deliberations uh the second time

around no nothing special happened during deliberations we uh we submitted to the jury

uh we broke that night at seven o'clock like we did during the first trial and they came back the

next morning all right tell us about tell us about that then well um it took a little bit longer this

time than last time but eventually in the early afternoon of the day after we submitted to the jury

i got a phone call that we've got a verdict and so um i you know grab my jacket and and start walking

over to the uh the courtroom uh obviously got my fingers crossed this whole time just uh you know

wanting the best for my client so we're walking into the to the courtroom and i'm there at the same

time as the prosecutor and the prosecutor actually says something to me like you know if if we had

gotten a hung jury this time i would have offered you a misdemeanor so at least this is going to be

over with and he had kind of a smirk on his face so i think he was totally convinced that he had that

they had pulled it off this time well so jerry comes in and you know we stand uh when they you

when they present the verdict and uh and it's not guilty nice and uh my client uh you know the the

judge tells us to sit down and my client uh you can tell that he is very very difficult uh having a

very difficult time holding back just breaking out crying well your client and my client is just

relieved i mean what an ordeal to have been through i i told you that he was very calm during this whole

time but what you could tell what i couldn't really tell outwardly during the rest of the trial is just

how tense he must have been because once they read the jury you could literally see the weight of the

the world falling off of his shoulders and he was on the verge of just outright sobbing in the courtroom

and um and so um it just uh it was great i love that and then um and so uh after after the trial and

after we you know parted ways and he got you know he had he was still in custody because there was an

active ice hold on him um because of this case and um i knew that there was nothing i was going to be

able to do about it myself because of what time of day it was i wasn't going to be able to get anybody

on the phone so i told him you know hey if they keep you overnight just sit tight i'm going to get on

this in the morning well um the next morning uh you know i get to the office and there he is he's outside

the door he walks in he's uh wearing the same you know t-shirt and jeans that uh he had on when he

was arrested and at this point that's the only thing he owns because everything else that he had

is is gone you know he spent almost entire year in jail um for something that he was uh not guilty of

yeah but uh apparently he did get released later that night um because somebody from the jail called

ice and told him that the the that he had been acquitted and that was the single solitary thing that

ice had to hold him and so they did release him that night that's incredible that's so wonderful

so um so you saw him that morning then did you guys uh exchange like greetings or hello a hug what was

it what was that like he came to my my office for two reasons the first one was he wanted to uh thank

everybody in my office for for what we'd done and not just you know me and jessica but also to um my

secretary and my paralegal um because they had you know had you know talked to him on the phone

two when he would call and ask about court dates and stuff and so he wanted to to come in and thank us

all and it was very touching that he actually made the effort to come walk down to the courthouse

on foot because he no longer had a car or anything like that and to just to say thanks that's awesome

i love that he came to thank you guys like what a nice you know it just shows like what what a nice

guy like what what good character he has absolutely and i mean if you didn't believe that he was not

guilty before there's no way that you could believe that he was guilty of anything now i

mean just because of the way he uh just because of the way he you know held himself afterwards and

stuff and how he acted he is a genuinely nice guy i was thinking the exact same thing yeah

sorry no genuinely nice guy i didn't mean to cut you off it's just when you said that it 100 made me

think that like how could he do this you know how could this guy that would come there to thank you

you know what i mean i love that wow wow great well good well tim way to be there for your client

good job thank you it's great it's a great story just doing the same job that we all do yeah i know

i know so yeah tim um yeah thanks for you know thanks for reaching out to the podcast sending us an

email um saying you want to be a guest on the podcast uh let me ask you something how did you find out

about the podcast um i listen to a lot of podcasts and i was looking for something new to listen to

and so i went to i use overcast and so i just went searching for legal podcasts and this popped up

and of course you know this is uh i mean this is my life as far as my career goes is is the the

pursuit of the not guilty and uh and so i i listened to i i downloaded a couple episodes

without subscribing just to try it out but i think it was you know 20 minutes into the first episode

i listened to and i i went back and hit subscribe because this was i i just i really like what you

guys do thanks thanks um well we like what you do so it's mutual okay thank you all right last

question which we ask all our guests is why did you want to become a public defender um my uh my route

to the public defender's office is probably a little bit different than other people i'm i was a

non-traditional student in law school um after undergrad i didn't know what i wanted to do so i did

some temp work and then my younger sister had gone to law school and suggested a thing that i would

probably be good at it and so i went to law school i was planning going to law school and then doing

transactional work afterwards like um contracts and wills and estates and that sort of thing

but uh i graduated in 2008 and the job market was horrible and so i basically took the first job that

i could find which was as the deputy public defender in platte county nebraska and i figured that i would

do that job for a while and try to find something else and that at the very least i get a ton of

the courtroom experience but after about 30 days of working as the deputy here i decided that this was

the only thing that i wanted to do with my life yeah what what did you like about it i liked standing

up for people who didn't have a means to stand up for themselves and i don't know i may have a little

bit from my father you know just from his uh his personality a little bit of trying to you know stand

up and and buck the system a little bit and not really just just bend you know bend down for authority

and so there was also a little bit of that just like you know i'm going to make you do your job

instead of just expecting that these people are just going to admit to stuff all the time

and um and so it just it just felt really good to be able to help people i like that yeah thanks for

taking uh the time out of your day to to share your story with us tim i appreciate it yeah seriously

tim this was a great win and it seemed like you really you know went the extra mile for your

client and having to try this case twice i mean you know we've all been there

well thank you very much for having me definitely and keep us posted for any of your future not

guilties i mean it's it's an honor to have the public defender as one of our guests thanks for tuning

in to this week's episode of another not guilty shout out to daniel mark original a and g theme music

composer and mike grim for the remix and guess what we'll be back in two weeks with another not guilty

straight from the trenches