Depraved Murder Prosecution – When Tragedy Meets Overreach

Hey everybody, I just want to say what an honor and privilege it is to bring you season 5 of Another Not Guilty. This season is a special season. I have a whole team of bright, talented individuals working with me to help bring you the untold forbidden stories of the criminal justice system. They help with production, editing, social media, comedy, you name it, they do it. I'll introduce them to you as the season progresses.

But knowing I have their support and dedication frees me up and allows me to be more creative and bring more A&G content. You got to check out the standup comedy clips I've posted on the A&G Instagram page and soon to be on other social media platforms. So much fun. Anyway, buckle up my A&G ears because this podcaster, this comedian, this public defender is about to embark on an unknown journey. Thank you for sticking with me and being

Thank you for listening to me and being there for me. Much love.

Victor's case was like the case I could not let go. Three months after I was appointed to represent Victor, I moved to Garden City three and a half hours away to take a different job with the public defender system. And I couldn't get off of Victor's case. Like I literally like I lost sleep about Victor's case. The whole thing felt terrible to me.

And then a year and a half after being in Garden City, I moved to Kansas City to take a job in private practice. And I told my boss, I said, I'm not going to take this job unless you let me keep Victor's case. The reason I could not shake this case is because it just felt like such an inherent injustice on every level.

Welcome to another not guilty. I'm David Moore here, along with my fellow public defenders, presenting to you the untold stories of the criminal justice system.

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

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

Welcome back, everybody, to season five of another not guilty, where we continue to bring you the freshest not guilties across these United States of America and beyond.

We're kicking off this season five with one of A&G's best and brightest stars.

Say hello to our co-host and fellow badass public defender, Jackie, a.k.a. the notorious JBG.

What's up, Jackie?

Hey, hey, hey, hey, hey, what's up? Happy to be here to host a co-host.

Another not guilty. Season five. Hey.

I know. I know. Sorry about that. A lot of negotiations going on in the podcast world.

A lot of fights. But we finally got what we wanted. And now we're back for season five.

Today's guest, guys, is a public defender or former public defender from Kansas City, Missouri.

His name is Mark Hartman. Mark, how are you doing today?

Doing well, David. Thanks for having me. I appreciate it.

Yeah. And Mark's here to share a not guilty that he had earlier this year after the pandemic.

Also with Mark is his client, which is something we don't normally have on the show.

His client's name is Victor Castro. Victor, how are you today?

I'm fine. How are you guys?

Good, good. Thanks for joining us.

So, Mark, how long have you been a defense attorney for?

I became a lawyer in 2017 and spent the next three years in the public defender system in Kansas, which is where I met Victor.

And Victor's actually from Southern California.

So, you guys are all from the same area and I'm the one from Kansas.

So, Victor, you've spent time in Southern California and up in Northern California, too, I think.

I'm from the San Fernando Valley, the Los Angeles area.

OK. OK, so, Mark, to share with the audience, you, Victor, was your client.

What was he charged with?

Right. So, Victor was charged with second degree murder.

Now, in Kansas, the second degree murder can either be an intentional killing that lacks premeditation or it can be what's called reckless murder.

Sometimes what we learned in law school is like depraved heart murder.

So, it's essentially like an aggravated, involuntary manslaughter where what Victor was charged with was an unintentional but reckless killing done under circumstances manifesting extreme indifference to the value of human life.

That's what Victor was charged with.

Just to reiterate, a second degree murder can be an intentional killing without premeditation or, as in Victor's case, an unintentional but reckless killing committed under circumstances manifesting an extreme indifference to the value of human life.

And if convicted, Victor could face up to 40 years in prison.

So, Mark, you get the case, you look at these charges, you see the name Victor Castro, the defendant.

He's charged with some type of reckless murder or homicide.

You read the police report and what does it say?

Yeah. So, in Kansas, when you get a file as a public defender, it includes a report called an affidavit for probable cause, which is supposed to sort of be like a snapshot of the case.

So, I have this new file on my chair.

It's got Victor's name on it and it has this affidavit for probable cause.

It's probably like a two-page police report.

And so, I read that in my office and then headed over the jail to see Victor.

But basically, the report said that Victor's girlfriend, Elsie Puente, suffered a gunshot wound to her chest and later died at the hospital from that injury.

And that the same bullet that hit her also hit Victor.

And that the gun went off one time and went through Victor's hand, through her chest, and she unfortunately died at the hospital.

The police report detailed that Victor gave a lengthy statement, post-Miranda statement to police, where he discussed what he remembered taking place.

So, I just read that report and then I walked across the street to the jail to meet Victor.

Let's talk about that experience.

So, you go across the street to meet Victor.

And Victor, do you remember this day when you first met Mark?

Yes, I remember pretty clearly.

And tell us, what was that like?

I was shocked.

I didn't even really know how to act.

Like, it was just unbelievable.

Go ahead.

Victor, you were shocked to learn that you were charged with murder.

Yeah.

Like, in the interview video of Victor being interviewed, at the very end, they inform him he's been charged with murder.

And Victor is apoplectic.

He cannot believe that he could possibly be charged in light of what he told the police over the last couple hours during that interrogation.

Is that right, Victor?

Yes.

Can you tell us the context?

Like, what's the story?

Like, what happened?

What led up to Elsie being shot?

So, Victor, what if we, let's try to tell this together.

Is that okay, Victor?

Yeah.

I know from watching the interview and reading the police report that police didn't have really any idea at all what happened until they spoke with Victor.

During the interrogation, Victor tells police that he and Miss Puente, along with three of her children, were inside the home, and that Victor went to the restroom, and that when Victor came out of the restroom and turned the corner, Miss Puente was pointing a 9mm handgun, well, I say pointing, more like waving a 9mm handgun at Victor.

In response, Victor asked Elsie to lower the firearm, and Elsie, Miss Puente did not, and so Victor reached out.

He had his cell phone in his right hand, and he was watching something on Hulu or something, and he reached out with his left hand to try to get her to put the gun down, and it's in that moment the gun goes off one time.

It shoots between Victor's, like the base of where his pinky and ring finger meet.

It shoots through there and then through Miss Puente's chest, sort of near her collarbone.

Victor immediately calls 911.

One thing that was really important in this case was body cam footage of police officers arriving on scene because it showed Victor Castro in incredible duress trying to provide health care to Miss Puente, and then first responders arrived on scene.

Okay, so it sounds like the gun went off on accident.

It was, the state never alleged the gun went off on purpose or intentionally.

It was always the state's argument that the gun went off accidentally or, in their view, recklessly, and that Victor's actions were the proximate cause of Luis Puente's death.

Okay.

Okay.

I mean, you said the gun shot went through Victor's finger first, right?

Victor, fill in the gaps here for me, but essentially, because we know that there was only one shot, okay?

And Victor, if you hold up your left hand, Victor, you can kind of point there.

Yeah, it came in through this way and came out right there.

Like, it took off, like, a lot of my finger.

For the record, the A&G record, Victor's holding up both of his pinkies, one's significantly shorter than the other.

So noted, counsel.

Thank you.

Thank you.

Yeah, and whose gun was this?

It was Miss Puente's firearm.

Miss Puente is Victor's girlfriend, right?

Miss Puente worked as a correctional officer in the Department of Corrections, the Kansas Department of Corrections.

She met Victor when Victor was a resident at a facility serving a sentence, and upon Victor's release from custody, she asked Victor to move in with her and her children.

So that is how Victor and Miss Puente met each other.

So on the day of the incident, though, Mark, I know you said there was a lot of alcohol involved.

Yeah, so the evidence was that Elsie had dropped her kids off at a daycare, and it was date night for Victor and Elsie.

They went to a Mexican restaurant, had dinner, had a couple margaritas.

And then when they were done, they went and picked up the kids from the daycare and bought a bottle of liquor and then went to the home where they lived together in Wichita.

And after being at the home, they finished that bottle of tequila.

They then went back to the liquor store and got an additional bottle of tequila and came home and were drinking it when this incident took place.

Because both Elsie and Victor received medical care, we actually have blood draws.

Elsie's is part of the autopsy, and Victor's is part of the health care he received.

And Victor's blood alcohol content was 0.26.

Miss Puente's was 0.39.

So that kind of helps set the stage a little bit in terms of an objective level that we can understand in terms of alcohol consumption.

And there was no fighting going on that day, Victor?

Well, I mean, we had arguments, like nothing really significant.

Like at the moment of everything that happened, no, there was no argument.

But like earlier in the day, I did recall like we bickered at each other and stuff, you know, like but nothing out of normal or nothing.

When Victor was first arrested in the Wichita Police Department did a press release on this case, the press release said something to the effect of domestic violence incident in Wichita leads to homicide.

And as I dug into the case more, it became abundantly clear that this was not an incident of domestic violence.

And in fact, there had been absolutely no history of violence whatsoever between Elsie and Victor.

I think, Victor, you would be the first to say that for whatever shortcomings you may have had before this, Victor has never been somebody who would ever hit a woman.

He's never been accused of ever hitting a woman.

And Victor is somebody who lives by a strict code.

And part of that code is that he treated Elsie with respect.

And so it was a complete mischaracterization by law enforcement to describe this as a domestic violence incident when it just frankly, it wasn't.

It was not a domestic violence incident at all.

I mean, I guess, yeah, you were you and Elsie were it was date night.

You guys were drinking and you go into the bathroom.

You come out and she's now has pulled out her gun and she's waving it around.

Right.

OK, so I come out the restroom and she's like, I see her at the table and she's sitting at the table.

As soon as I turn the corner, I see her walk towards me.

But she has the gun out like but it's it's pointed down.

It's not pointed towards me or nothing like that.

Like so it's aiming down.

She just has it like just like she's just carrying it.

And I've seen her carry it like that.

Like, you know, it's not aiming at nobody or nothing like that.

And when she walks over to me, she starts talking, but like starts waving it like, you know, people talk like with a pen in their hand and they talk like, you know, like unconscious that she can't talk with their hands.

They move their hands around when they talk.

Yeah.

She starts talking to me like that, not aggressively or nothing like that, but like she does that, like how she talks.

And as soon as she did that, at the same time, like I reacted and I just I reached for it.

And at the same time, that's when like the same time I said, like, hey, watch out, you know, or I said something to that extent.

And that's when the gun went off.

And one thing that Victor was interrogated by police about was they asked him whether they whether Victor was concerned that Elsie was going to intentionally harm him.

Right. And Victor was very clear.

He said, no, I wasn't at all worried that Elsie wanted to hurt me.

That's just not been the history of our relationship.

There's no universe where I thought Elsie wanted to kill me.

At the same time, I knew how much she'd been drinking and I knew she had a gun right in front of me.

And so, yeah, I was concerned that the gun could have gone off.

Absolutely. Now, the state at trial tried to use that as evidence that Victor, that it was unreasonable for him to be in fear for his well-being.

The fact that he didn't think that Elsie would shoot him meant that he was reckless and deciding to reach for the gun or trying to disarm Elsie.

There was no need for him to move the gun out of his face.

Right. And David, as you can imagine, that became a focal point of closing arguments was, in our view, the state.

That argument is ridiculous to suggest that Victor needed to just sit there and do nothing in that moment.

Why don't you take us through the process, the legal process, because, you know, David and I, we practice here in Southern California and, you know, everywhere is a little different.

One thing that I remember distinctly from the first visit I had with Victor is I told Victor that if I work my tail off, it's still going to take a year to bring his case to time.

Right. Just because, you know, we're talking several hundred pages, if not a couple thousand pages of police reports.

We're talking about maybe north of 100 hours of body cam footage.

Now, what obviously I didn't know in that moment was that we were four months away from our whole world changing with the global pandemic.

And this case ultimately doesn't end up going to trial for 33 months, all of which Victor spent incarcerated in the jail on a $250,000 bond.

But, Victor, I don't know if you remember that or not, but I remember telling you it was going to take a year.

Now, obviously, when I said that, I didn't know we had a pandemic coming up.

And that pandemic absolutely caused the case.

I mean, courts completely closed down for a while here in Kansas.

So I remember that, Jackie.

But then after my first visit with Victor, I just waited for the discovery to start funneling through.

You went over the discovery.

And so what did you learn from the discovery?

What type of evidence did you get?

Get a 911 call?

The 911 call came through.

And actually, we ended up using the 911 call at trial.

We can talk more about that later.

Well, tell us.

What did it show?

Well, the 911 call was just a heartbreaking piece of evidence.

Because on the 911 call, Victor is completely frantic about what's going on.

And a little boy's voice is heard saying that my mommy just shot herself.

It is a heartbreaking, heartbreaking thing to listen to.

But it was also a really important piece of evidence.

Because nowhere in that 911 call did anybody, nothing was said that could possibly be construed as incriminating for Victor.

Yeah.

Nothing at all.

I mean, if you just listen to that 911 call in a vacuum, it would be just as likely that the Phantom of the Opera came in there and committed this crime.

We don't know who was in the home at the time.

All we know is that Victor is frantically asking, what do I do?

What do I do?

And he's getting instructions on chest compressions and things like that.

And you hear a little boy pick up the phone.

And he says, my mommy just shot herself.

It's really a heartbreaking piece of evidence.

I mean, it's like, I got emotional talking about it during closing argument.

I mean, it was that sad to listen to.

It was so sad.

I can imagine.

And they still filed this that way, huh?

Much to our chagrin.

Wow.

Yes.

Okay.

I mean, at a very, very early stage in this case, like less than a month after I met Victor, I had a conversation with the prosecutors like, look, the very fact that you charge this case means that we look at it really, really differently.

And he, and, you know, he made, the state made a plea offer of involuntary manslaughter, like really quickly, like within a month.

And, you know, Victor and I, I think we were frustrated by that because it was like, you know, don't overcharge me and then act like your offer is reasonable when you never, you never actually are at the right starting place to begin with.

Right.

Involuntary for how much time?

10 years.

10 years.

No way.

And you'd have to, you'd have to serve 85% of it.

So, you know, it's, it's at least an eight or nine year deal in prison.

So to get back to the, to the discovery, what other discovery or evidence did you come across?

Yeah.

So the most important piece of evidence in this entire case was the interrogation video by far.

So much, so much so that at the preliminary hearing, the detective conceded that if it wasn't for Victor's statement, police would really have no idea what happened.

Like they didn't do, they didn't do scenery construction.

They didn't do ballistics.

They didn't do, you know, the azimuth and the ruler that all got set aside.

So, um, if it weren't for Victor's statement, it would have been entirely unclear what happened.

Now, there were three children in the room when this happened.

I mentioned earlier that the little boy on the 9-1-1 call says mommy shot herself.

What are the ages?

Yeah.

I was just going to say those kids were six, five, and two or five, four, and two, Victor.

One of like, they were, they were very young.

Um, there was also a nine-year-old in the home, but he was not in the, he was in his bedroom when this happened.

So he didn't see anything.

Um, so the, the children eyewitnesses were, well, the two and the four-year-old weren't even able to provide statements because of how young they were.

And the five-year-old was not really able to say much other than mommy shot herself.

Now, on body cam footage, that five-year-old is seen, like, pointing his little index finger towards himself when he says that mommy shot herself.

So that did become an important piece of evidence as well.

But David, to answer your question, by far the most important piece of evidence was the interrogation video of Victor, by far.

You have this 9-1-1 call.

You have the, what I'm sure is very emotional interview with, with the police.

And then, I mean, they still charge.

They still make this charge.

Right, right.

Jackie, what, what, what, what, what problems are you having right now?

What's the, what's the issue?

What's the hang up for you here?

What doesn't make sense?

I mean, if you're telling me that Victor called 9-1-1 is, is highly emotional out of,

out of his mind, rendering aid, you know, to the person, you know, his loved one who had been shot.

You have the child in the background saying, my mommy was shot.

The child picked up the phone and in the background say, my mommy shot herself.

And then, you have Victor providing the details in an interview and they still chose to file this the way they filed it.

I don't understand.

The single greatest sticking point on this case was the prosecutor's view that, look, we just take exception with a universe where guns are introduced in a circumstance where there are children in the room and people have consumed that much alcohol.

That, that was continually the state's point.

My point was, look, it's terrible that a gun was introduced in that situation, but it's not a crime for adults to get really intoxicated around their children.

And it wasn't Victor's fault that Ms. Puente introduced a gun into that situation, right?

And so, that was really a point of major disagreement between the prosecution and myself and Victor.

And I had really great co-counseling on this, Sonia Strickland, who was super helpful here too, so.

It's interesting to have the prosecutors sort of blaming Victor for the fact that Elsie pulled out her gun.

But yeah, your point is well taken, David, that it would, and that was something we stressed ad nauseam at trial, that Victor was not the one who introduced the gun into the situation.

And it's almost like, since they can't punish her, they got to find somebody to punish for what happened.

Well, another thing that I said to the prosecutor was that if the roles were reversed, it's hard to imagine anybody charging Elsie Puente, right?

If it had been this ex-felon recently released from prison who pointed a gun at his girlfriend in that moment and she reacted, you cannot convince me that she ever would have been charged.

But because it was a quasi-cop, a correctional officer, and let's be honest, because Victor has tattoos on his face and he's a dark-skinned brown dude with a Hispanic class name.

Like, I mean, and Elsie's Hispanic too, but you cannot convince me that the same thing would have happened if the roles were reversed.

You just can't convince me of that.

And by the way, just to clarify, so the state of mind that the prosecution is alleging is that when Victor pushed the gun away from himself, he did it in a reckless for human life manner.

Is that what he did?

Like, what's the law here?

That their argument was that the act of doing that illustrated extreme indifference, recklessness, and extreme indifference to the value of human life on the behalf.

Okay, so wait, so hold on, hold on a second, hold on a second, hold on a second.

So, and you know, and this is not, this is funny because we're like, what?

Because he pushed the gun away from himself.

Right.

He was, he should, he should, he should have just been shot.

Right?

That's what they're saying.

Jackie, you can probably predict that during my closing argument, I said a lot about, I guess, the state of Kansas expects a citizen to just do nothing.

Just stand there.

You know, y'all both drunk.

Y'all both drunk.

There was a gun introduced.

And how dare you push the gun away to make sure that you don't get shot?

Well, and at one point when the detective was testifying, he said, look, at the end of the day, Elsie Puente would not be dead if it wasn't for Victor Castro reaching his hand out.

And I said, detective, we don't know who would have been dead.

We might have dead kids on our hands right now.

We don't know what would have happened if Victor allowed someone who was near lethally intoxicated to continue to wave a gun around in that moment.

Right?

This is just fuckery and shenanigans.

Okay.

I'm sorry.

Victor, do you agree with that assessment by Jackie?

I think you probably do.

I mean, I couldn't believe that they seen it in the way that they did.

I mean, like, I just, the only way I think is because of who I am was the main reason why all this stuff is, they were coming at me the way they were coming at me.

And when you say because of who I am, Victor, you mean because you had priors, basically?

Because I had priors and the way we met.

And, like, I could tell they were angry with me.

They were, you know, like, it just, I felt it.

That's, oh, my God.

But, you know, I'm not going to get into the racial implications here because, clearly.

They're making the statement that Victor's life has no value.

So, how dare he push a gun out of his face?

And he's a former inmate.

And she's a correctional officer.

And we don't approve of what the hell was going on there.

And, you know, these are people, these are people of color, so they don't matter.

And, I mean, I could go on for hours about this bullshit.

So, okay.

Prelim and you got to take us through trial because this is, oh, my God.

Okay.

Mark, you were hoping that the prelim would go well for you, right?

We thought there was a chance that the judge would, at very least, dismiss the murder and

maybe only bind over on involuntary, which obviously would be very helpful for plea negotiations

because, while 10 years was a no starter, if the starting point is not murder but is instead

involuntary, you know, now we're just at, we've moved the goalposts a lot if we can accomplish

that.

So, I did think there was a chance the judge might dismiss the murder charge at prelim just

because I felt like the evidence was shockingly insufficient.

But I just, and I'm sure you guys can relate to this, a lot of times police and prosecutors

just don't see that a tragedy can happen without a crime happening, right?

Like, it is possible for a tragedy to take place and no crime to take place.

But good luck convincing a prosecutor or a detective of that, right?

And so, we had a prelim.

The judge did bind over as charged.

I filed a subsequent motion asking the judge to reconsider that ruling and the judge reaffirmed

his earlier ruling.

What kind of arguments was the prosecutor making to the judge to bind it over?

Was it like a no, did the judge automatically do it?

Was there a lot of back and forth?

Was the judge, did he seem close to dismissing the murder?

Like, what, how did that go down?

Well, Victor, how about you answer that instead of me?

I felt like the judge made his decision from the beginning.

Like, that he wanted to see it all the way through.

And like, I even heard the arguments between Mark and the prosecutor.

And like, it was clear to me, his facial expressions and everything like that, that he was siding

with the prosecution, like, way more.

Like, if he didn't even want to give us a chance, and like, he was even upset, like, that Mark was fighting so hard for me.

Like, even if we put in more and more motions, like, he would look at Mark, like, like, why are you doing all this?

You know, like, it's, I agree with, I agree with Victor.

Like, I really thought we had a good argument.

I thought there was a chance the judge would go for it.

But it did become clear from the judge's body language during my arguments that he was not inclined to dismiss the murder at prelim.

Now, judges, and I'm sure you guys are used to this, are always going to stress that it's a very low burden and that the inferences are in the light most favorable to the prosecution.

And, and this and that, but, um, no, to answer your question, David, and I reviewed the transcript in advance of this to see what the state argued.

And it was just that, look, we, the prosecution really take exception with some, with a gun being played with around children with that much alcohol on board.

Now, interestingly enough, when the case was charged, the autopsy had not yet been provided to us.

So it was actually like maybe six weeks after Victor was charged that I learned just how intoxicated Ms. Puente was.

Um, and when I saw that her blood alcohol level was 0.39, I went and met with the prosecutor and said, are you still sure you want to pursue this?

You know, because she is nearly lethally intoxicated and actually at trial, the medical examiner testified that he has diagnosed, he has actually had alcohol poisoning causes of death that are lower than 0.39 before.

But yeah, David, they just, the state stress that they took exception with the entire situation and that because of the entire environment that illustrated that Victor showed extreme indifference to the value of human life.

Okay, there's a reason why this case, like, look, I love my clients.

It is the best, they are the best part of this job by far.

But this Victor's case was like the case I could not let go.

Like, so three months after I was appointed to represent Victor, I moved to Garden City three and a half hours away to take a different job with the public defender system.

And I couldn't get off of Victor's case like I literally like I lost sleep about Victor's case, the whole thing felt terrible to me from the get go.

And so I found, like, I asked my boss if I could stand Victor's case.

And then a year and a half after being in Garden City, I moved to Kansas City to take a job in private practice.

And I told my boss, I said, I'm not going to take this job unless you let me keep Victor's case because it just, and I'm not saying that to try to toot my own horn.

But like, Jackie, your reaction is mine, right?

Like, like, the reason I could not shake this case is because it just felt like such an inherent injustice on every level, right?

And so there's a reason why, despite a couple opportunities just to cut ties and let somebody else do it.

And trust me, there are plenty of really good public defenders in Wichita who could have done just as good a job as I did for Victor or better.

I could not bring myself to let go of this case because it just felt, it felt like such an inherent injustice to me.

Victor, how did you feel about Mark jumping around from job to job but keeping your case?

Did he tell you about that?

Did you know that was happening?

Like, at this point, after you've seen Mark fight for you in court, like, how do you feel about him representing you?

I was real, like, I felt fortunate that somebody cared enough to be that passionate about everything that was going on, you know?

And then Mark comes to me and he told me that he had another job and he's probably not going to stay on my case.

And, man, like, I was crushed.

I felt like it was over, you know?

He told me that my preliminary hearing was the last court date that we're going to have together.

And so I kept on thinking that, like, the whole time.

So I was just, like, I didn't even know what to do.

I was just, I felt hopeless, you know?

And then we showed up at the preliminary hearing and I heard Mark's schedule the next time.

And I'm like, like, why does it matter?

Basically, I'm like, why does it matter if you're not going to be here?

And he's like, nah, I got you, you know?

Like, don't worry.

And, like, I felt relieved, you know?

Like, it's really hard for me to trust anybody, you know?

Like, especially in a situation like that.

Absolutely.

I didn't expect Victor to trust me the first time we met at the jail.

You know?

Like, you got to earn that.

And so I don't think it happened overnight, you know?

But Victor and I probably met at the jail, I don't know, 75 times over the course of three

years, something like that.

Wow.

That's a lot.

I think it makes a big difference.

You know, if you want, if you want, you can't, you can't ask somebody to trust you if you

don't show up, right?

True that.

What happens next in the development of the case?

Now you're going to get ready for trial?

Well, the pandemic happens, right?

Yeah.

COVID happens next.

Exactly.

Right.

So I think we got our ruling from the judge on prelim, like in November, December 2019.

And of course, obviously, that's December 2019 is when this virus is like taking over the

world, right?

And so I think in Sedgwick County, where Victor's case was, there were, they, I think they went

over a year without a single jury trial.

Victor, what's that like to be in custody, stuck in jail during a pandemic, knowing that

you're just stuck indefinitely until they decide that the risk of the virus is over.

What's that like?

After the preliminary hearing, like, I really felt like my life was over.

I felt like, like, that I was in a place where I'm going to be judged and I'm watching

everybody else, like, like, I'm in this system and I'm seeing people there, like, they're

moving me around.

And I'm seeing more than a hundred people have the same public defender for, for a murder

case.

People been there over a year without their discovery.

And, and I'm thinking that no matter how hard Mark is fighting for me, like a part of me,

I felt really, really hopeless.

Yeah.

You know, so I just felt like I had to do everything that I did.

I could, you know, like I had no choice, but to, to go with it.

Trust Mark.

Now what?

Now we've got trial, right?

The inevitable.

The case eventually goes to trial in May of 2022.

My folks, I, so I live in Kansas city now, my parents live in Wichita.

So I went down there a few days before trial, spent a lot of time with Victor and with my

co-counsel, just kind of getting our trial ready.

Um, and then we went to trial.

Yeah.

Okay.

Trial.

That means what?

Jury selection, right?

Or any motions of lemony in the beginning?

We actually did have some really interesting issues, motion in, in lemony.

I mean, cause wait a minute.

I mean, you had lit, you have litigated the hell out of this up until this point.

So, I mean, how many more emotions did you have?

This is phenomenal.

So there was, so it, it came to my attention through Victor, actually, that there was an

incident where Elsie was at work at the department of corrections and her work issued firearm

went off on accident.

Oh, okay.

Oh, oh.

So I thought Kansas has a statute that allows for the admissibility of prior bad acts, right?

And so I filed a motion arguing that the jury should be allowed to hear that Elsie Puente

had a prior incident where a gun went off on accident.

And presumably she wasn't hammered drunk when that happened, right?

And the judge actually granted that motion, but the judge said that it only, it's only admissible

as it relates to Victor's state of mind, which I think makes good sense.

Like that seems like the right answer to me.

I mean, the judge is basically saying, well, if Victor wants to say that that informed why

he did what he did, then it's admissible.

And again, I think that's probably the right ruling, right?

But the only way we were going to be able to get it in would be if Victor testified at

trial.

Remember we had that one motion of probable cause?

Yeah, no, no, that's the Fourth Amendment motion.

Yeah.

So right, right before trial, like maybe a few months before, a couple months before, I

filed a Fourth Amendment motion arguing that police arrested Victor without probable cause.

And therefore, the statement he gave back at the police station was fruit of the poisonous tree.

The Fourth Amendment to the United States Constitution protects citizens from unlawful searches

and seizures by the government and any evidence that is illegally obtained and or derived therefrom

are fruits of a poisonous tree and are inadmissible at trial.

Here, Mark asserts that the arrest of Victor was unlawful and done without probable cause.

And therefore, his subsequent statement to the police is inadmissible as fruit of the poisonous tree.

I told my colleague, Sonia, that I had never felt so confident in my life that a Fourth Amendment

motion should be granted.

And frankly, Victor, I was a little embarrassed I didn't see that issue earlier in the case.

But a partner I work for now had me working on a DUI case.

And in the DUI case I was working on, the police, it was like raining outside.

So they took our client and transported him to the jail to do his standard field sobriety tests.

And as I was researching that, it made me think, well, what, like, at the time, I was basically

thinking about nothing but Victor's case all day, every day, right?

And so it made me wonder in that moment, well, maybe police didn't have probable cause to arrest

Victor either at the time.

And even the prosecutor, that I think the prosecutor, frankly, thought there was a good chance that

motion was going to be granted.

And then the prosecutor told us they would have dismissed the case if it was granted.

But the judge denied the motion because he found that in the moment Victor was providing

care to Elsie as she was on the ground with a gunshot wound, Victor committed the crime of

interference with law enforcement because he did not immediately.

Get the fuck out of here.

I wish I were joking, Jesse.

Get the fuck out of here.

And I'm sorry for all the kids listening out there in podcast land, but goddamn, are you

serious?

That was the judge's ruling, Jackie.

Lord, have mercy.

Okay.

The judge's ruling was, there's no way, I'm never, ever, ever, ever, ever dismissing this

case, ever, ever, ever, ever, ever, no matter what the law is.

I don't care, I don't care, I don't care, I don't want to hear it.

La, la, la, la, la, la, la, la, la, la, la, la, la.

I'm not listening.

That's the judge, right?

That's the judge.

Oh my gosh.

Wow.

Yeah.

So, that's the motion Victor is referring to there just a moment ago.

Did he dismiss, did he, did he deny the motion with the, the American flag right there?

I, right?

All right.

I'm going to have, I'm probably going to have more murder cases in front of this judge down

the road, so.

I mean, but I'm just like, hey, you know, come on now, come on, judge, come on.

Well, I will, I will say, when the, when the trial was all done, and I've never told

Victor this, my co-counsel and I had a conversation with the judge where he basically said that he

was not surprised at all by the verdict after hearing the evidence at trial, which I sort

of construed as saying, I didn't see it your way until the very end type thing, for whatever

that's worth, you know?

Now, now let's take the, let's take the power away from the judge.

Right.

And let's give it to the, and give it to 12 citizens.

Exactly.

12 citizens.

Power to the people.

Shit.

Oh my gosh.

So, let's talk about, let's talk about jury selection.

All right.

Mark, what kind of jurors are you looking for here?

So, so Victor, while this case is pending, I go see him at the jail and he's got this book

in his hand, right?

And it's, and it's by Jerry Spence, which I don't know if you guys know who Jerry Spence is.

Yes.

Which is this, this legendary trial lawyer.

And it's, it's how to win your case, right?

Or how to argue and win every time.

Now, what Victor didn't know is that, like, right after I met him, I spent a month on

a ranch in Wyoming at Victor, or at Jerry Spence's ranch.

The trial lawyer college.

Yes.

And so Victor hands me this book.

He's like, Mark, there's some stuff in this book I'd like to talk with you about, about,

you know, jury selection and stuff.

And I'm like, bro, you, like, you've got to be kidding me right now, right?

Because like, one thing, like, one thing I tell my clients is like, look, you need to

be prepared for things I'm going to say during jury selection, because I promise you, they

will make you uncomfortable, right?

Like, we talked a lot about Victor's tattoos on his face during jury selection.

It was the first thing we talked about.

And I just straight up told the jury, like, when I saw, I told him, I said, I went, I read

this police report in my, in this file.

I, and obviously from the police report, I didn't know Victor had tattoos on his face.

And then I went over to the jail and I meet Victor and I see these tattoos on his face.

And I immediately thought, this is exactly what a guilty murderer looks like, right?

Like I told the jury that, right?

And, but I, like, part of why I felt comfortable having that really, like, honest conversation

with a jury is because Victor, like, I could not believe it when he showed me that book.

Like, I just could not believe it.

But he clearly saw value in Jerry Spence's methods also.

Um, and I just, I, I really believe you cannot expect jurors to speak candidly and honestly

with you about their biases if you're not willing to talk about your own.

And, um, I definitely didn't come to that on my own.

I learned that from the lawyers I met at trial lawyers college.

And I think Victor deserves so much credit because he, he, he knew that, right?

Like Victor knew that too.

And like, I will never forget that moment.

Victor showed me that book and was like, Hey, I want to talk to you about some stuff in

this book that we should use for trial.

Victor, you remember that?

Yeah, I remember it.

I was so shocked too.

I was like, I couldn't believe none of that stuff.

It was meant to be.

Any, any memorable exchanges with jurors that you remember?

Victor, you want to answer that?

The most memorable one for me is that like, okay, so there, so it's the DA's turn to go

and he's all talking about reasonable doubt.

And, um, he's talking about like how people watch CSI and law and order and all that.

And now like they have definite answers by like forensics and stuff like that, you know?

And so one of the, he talks to one of these guys, he goes, so it's not going to be a hundred

percent definite that what I'm saying is true, but you have to put it together on your own,

basically that, that he's guilty and this guy, this young guy was like, well, if I don't

know 100% that, that, that somebody did something or not, I don't feel comfortable with like,

like putting them away for the rest of their life.

You know, that's somebody's life and the DA like snapped at him.

Like you can see he got real irritated.

Like the look on everybody's face was like, like, you know, like he asked him, like, do you understand?

Like, do you, like, like, do you understand?

Or, you know, like he asked him like, in other words, like, are you stupid?

Like not in those exact words, but he kind of like snapped at him like that.

Like, and I just seen the jury's face, like all these 50 people, like frowned at him at the same time.

Yep.

I love, I love when that happens.

I love it.

I love it.

I love it.

I feel like the DA snapped at him because it's like, what do you mean?

I do this every day.

Exactly.

He's like, oh my God.

What do you mean?

Whole existence.

Not be sure, but put people away.

Another thing that we did in Victor's trial during Fortier is we talked a lot about why people get convicted, wrongfully convicted.

I asked people, I said, what do you think causes somebody to get wrongfully convicted?

And, you know, you get different answers.

People say things like, well, I think it's because police plant evidence.

Or I think it's because, you know, DNA is evolved and now we know things we don't.

And one thing I always say is, well, maybe it's because defense lawyers don't care about their clients enough, right?

Maybe it's because a defense lawyer fell asleep during trial, right?

Like, it doesn't always have to be a conspiracy by law enforcement, right?

And I just, I think those are the kinds of things you can do to sort of show, like, look, I'm a hired gun.

Like, I'm not neutral here.

But at the same time, like, if you want to be a part of justice, you got to be on Victor's team, right?

And so I just, I tried to focus on that during jury selection by just not really saying things that were aimed at, like, you know, I used to try to convince jurors during jury selection that you, that proof beyond a reasonable doubt is this astronomically high standard.

And, like, I'm not saying I don't talk about that, but I sort of think the longer I talk about proof beyond a reasonable doubt, the more I'm asking a jury to conclude that my client probably did it, but you should still find him not guilty, right?

And so we talked about wrongful convictions.

We talked about victim blaming.

We talked about the tattoos on Victor's face.

I mean, it took us, it took us a whole day to pick a jury, I think, right, Victor, between the state and the defense.

I don't think we, I don't think we did.

I think it took a whole day, which, which is, you know, kind of normal in a murder case, but.

Victor, what was it like?

Because I think jury selection was your first opportunity to see, like, how Mark would be in trial, right?

How does he do in front of an audience?

So what did you think of Mark?

That's the first thing I, like, when I, I was like, have you ever won a murder trial?

Like, like, like, what's your experience with that?

Like, I didn't know, you know, like, and I know that, like, he's good and he's smart and all that, but, like, up until that point, that's what I stressed on.

I'm like, you know, like, like, even though he knows all this, how does he put it together?

Because I, I think of, like, trial more like, like theater, basically, you know, like, you're putting on a show, like.

I totally agree.

Yep.

Absolutely.

I wanted to know how he performed and, like, like, that's one thing that, that, that I did stress on.

And I mean, like, like, he exceeded my expectations, you know, like, but I mean, like, I was really, I was impressed, you know, like, I was.

I won a murder trial in July of 2021.

And you better believe I told Victor about it really quickly to try to help him.

I feel a little bit better about things.

You're like, relax, relax, relax.

Yeah, I have.

Relax.

Yeah.

But while I had a couple trials go my way before Victor's, I had not won a murder trial.

And so, yeah, I think Victor's concerns are totally warranted, right?

I mean, that's, that's a completely fair, completely fair question by him.

Absolutely.

Okay.

So then let's talk about opening statements then.

How'd that go?

It did not go well.

It did not go well.

Oh, do tell.

Do tell.

So again, I had a colleague, Sonia Strickland, who was so great.

Sonia, like, she's the chief public defender in Wichita now.

She's really bright.

She's been a state public defender for a long time.

She was a federal defender before that for a while.

She's been in private practice, a really sharp lawyer.

But we had talked and I asked Sonia to do opening statement because I knew she'd crush it.

And so she did.

And then the morning of trial, we had a computer issue and she could not access her opening statement.

Yeah.

And that was obviously stressful for us.

And going back to, like, the whole Jerry Spence thing and just being vulnerable with jurors,

I just told, so I ended up doing the opening statement just, like, extemporaneously.

And I just told them what was going on.

I was like, look, there have been hundreds of hours of preparation that have gone into this case,

not just by me, but by the prosecution as well.

But this morning, we had a computer problem.

And the time that was spent preparing an opening statement, we don't have anymore.

So I'm going to do my best here, guys.

But if I'm being honest with you, this has not gone how we thought it would.

And then I just gave an opening statement off the top of my head as much as I could.

But it was stressful because that was not something that Sonia and I contemplated I would be doing.

So I hadn't devoted any time on my own other than to just talk with Sonia about her opening statement.

But, you know, you really get credibility from that because you're showing other people your vulnerability.

And it makes you human.

They can trust you.

And they can relate.

So, shit, I think that was a win.

I just, in that moment, I, like, I just told them what was going on, right?

Like, and, Victor, what do you remember about the opening statement?

Because, now, I do remember every time I watch the state's opening statement, I take notes for things I think they can't, like, promises I don't think they can keep, right?

And then during closing the argument, I circle back to it.

And there were a couple of those from the states.

But then, you know, I did my opening statement just, like, off the top of my head because I didn't, I wasn't prepared for it.

Yeah, Victor, what's that like to know that your defense team is experiencing technical difficulties right before the show's about the start?

With your life.

With your life.

I mean, like, from the beginning, I just, I felt like it was raining on me the whole time, you know?

Like, everything that was going on and just, you know?

But, like, I think the jury felt that, like, me and Mark were friends, that he knew me, and, you know, like, that he really cared, you know?

Like, I think that's what made, like, one of the biggest differences.

And just real quick, we did reach out to Sonia to be on the podcast.

She's going through some personal tough time right now, personally, in her life, and she was unable to be here.

So, we wish the best for Sonia.

Absolutely, Sonia.

We wish you the best.

We appreciate that.

Sonia is awesome.

She's a great lawyer.

Okay, so it's time to roll out the evidence.

No, wait.

What's the prosecutor's opening statement like?

Because that's where he has to, like, kind of, like, talk about it.

Oh, yes, please.

This is what the murder is.

This is the reckless, you know, what was that like?

Give us the golden nuggets.

So, I remember, so the prosecution was two lawyers, right?

Two white men who, one guy who's been in that office for 15 or 20 years, who's the lead prosecutor, and another guy who was a prosecutor in Virginia for a while, and then moved to Kansas in the last couple of years.

And the guy who was sort of the second chair is the one who did their opening statement, and I remember he said that the state would prove that a bullet, that the bullet casing ended up, like, just inches away from one of the children, which I knew was complete bullshit, right?

I mean, like, I guess what I'm saying is, I knew that where the bullet casing ended up had no bearing on what happened, because, like, the body cam footage clearly shows people, like, frantic all over the area the bullet is in, right?

So, or the bullet casing is in.

So, like, they said during their opening statement that they would prove, like, they were trying to insinuate that a bullet just barely missed a child.

Absolutely, that's for the shock value and the emotional value.

When the state put on their CSI person, it became abundantly clear that wherever that bullet casing ended up had no bearing at all on whether it came close to a child.

So, I remember, that's the one thing I remember from the state's opening, hearing to myself and thinking, like, I'm definitely going to focus on that during closing argument, because I knew that by the time we got there, that would not hold muster.

But I really, I don't remember a lot of other details about their opening, probably because I was freaking out about giving an opening right after them without any real thoughts about what I was going to say, so.

All right, so let's talk about the evidence.

How does, how does it roll off for the prosecution?

What do they put up?

The pertinent parts.

Right, so the state puts on cops who arrive to the scene first, which makes sense, like, chronologically.

And a really important part of our case was admitting the body cam footage, because the state didn't admit it.

We wanted the jury to see the extreme concern Victor had for Elsie on scene.

And guys, I'm just telling you, it is impossible to exaggerate how much sincere concern Victor had for Elsie.

I mean, it was like, it is literally, it is impossible to exaggerate that.

So what was the body worn video showing Victor doing?

Yeah, so it showed Victor doing chest compressions over Elsie.

It showed him crying.

It showed him, like, not wanting to let go of Elsie's foot.

As, like, first responders, like, sir, you got to get out of the way.

You got to get out of the way.

And he doesn't want to stop.

Oh, does this show him committing the crime of delaying and obstructing police and law enforcement personnel?

Oh, is that what that is?

That's, oh, God, another crime you got to do.

Okay.

Oh, right.

That's it.

And, but really, it showed, I think, a very, like, an immeasurably, incalculably heartbreaking moment.

But it showed, like, you could not watch that and believe Victor did not care deeply for Elsie Puente.

You just couldn't.

And, you know, it's like, it's heartbreaking footage of these kids in the home who just saw this happen.

I mean, it's really awful, right?

But I thought the jury needed to see it.

One of the partners I work with now taught me that, like, you want to be the side that gives the most information to the jury.

Yeah, absolutely.

And so, like, the state's third witness was going to be this cop who took a whole bunch of photos of the scene.

But I actually admitted, like, almost all of them through the state's first two witnesses as, like, a way of sort of showing, like, they were literally marked, like, state's exhibits, like, six to 130 or whatever.

But I admitted all of them and sort of, like, preempting the state being the party that's, like, providing pictures, you know.

But we knew, I mean, we definitely knew that this case was going to turn primarily on the detective's testimony because the detective is who did the interrogation.

And this case was basically all about the interrogation.

Like, again, at the preliminary hearing, the detective testified that if it wasn't for Victor's statement, they really wouldn't have any idea what happened in the home that day.

And so I probably spent the majority of my trial prep time on jury selection.

But second would definitely have been the time I spent preparing a cross-examination outline for the detective.

I spent a lot of time on that.

So, I mean, like, we took, it took a day to pick a jury and basically three full days of evidence.

And I think the detective was on the stand for over a day.

Is that right, Victor?

Yeah, I mean, I'll never forget, like, how your cross-examination was, like, you know, I mean, like, I swear, like, even the juror's reaction.

And all that, your technique that I've seen, instead of, like, objecting and all that stuff to, like, to everything that he said that he knew wasn't true, like, you just let him keep going and going.

Like, so when you did have time, like, to go over everything that, you know, go back over it to show that, like, he didn't really know what he was talking about and all that.

Like, like, he wasn't qualified to answer none of those questions, you know, like, like, I was kind of worried a little bit.

But, you know, like, it just.

Burke, do you know what Victor's talking about?

Like, which points that you made with the detective or what he was trying to say?

And you're like, no, I don't think so.

Well, I think, Victor, maybe what you're saying, and I could be wrong, it's like at the preliminary hearing, the detective said some stuff that I definitely could have called him out on.

But I'm sort of, I'm of the view that, like, there's really no point in me catching a witness and a lie at a prelim, usually.

Right.

Because it's just going to prepare them to respond to it at trial.

Absolutely.

Right.

So I just sort of let some of that lie at prelim.

But then at trial, I had those transcripts ready to go when he would try to, like, weasel out of it.

And I remember, like, one moment that I think was pretty critical during the detective's cross was, like, you know, we've seen this, guys, where a detective, like, just will not accept, like, Victor during the interrogation over and over and over and over saying, I don't know, guys, I don't know how that gun went off.

All I know is I never meant to hurt Elsie, and I don't know how the gun went off.

But, like, police refused, this detective refused to accept that as an answer.

And I told him, I said, look, I can understand a tactic where you just don't accept a suspect's answer.

But what about when he's telling you the truth?

Right.

Does that just mean that Victor Castro becomes the collateral consequence to that police tactic?

Right.

Like, if you use that tactic and somebody who inappropriately touches a child eventually confesses to it and it's an honest confession, maybe nobody will criticize you in that moment.

But what about where you have somebody who's telling you the truth the whole time?

Like, are you just going to allow Victor Castro to be the victim of a police tactic where you're manipulating him by not accepting his answer of I don't know?

And, you know, he just continually was like, sir, that is a tactic that we're taught in training.

And actually, afterwards, when we talked to jurors afterwards, the prosecutor asked jurors a lot of questions about that kind of read technique tactic.

And we can talk about that later, but I think jurors saw the detective's interrogation tactics as him being like an omniscient detective who had a lot of information and a suspect who did not have as much information and that he was trying to take advantage of Victor.

Okay.

The state very much so cherry picked portions of Victor's interrogation.

Uh, they always do that.

And then they don't want anything else to come in, right?

Let me guess.

They didn't want anything else to come in except for that part.

Well, so I played, I played like probably like 95% of what Victor actually said.

I played for the jury.

Again, like when I'm trying cases, I want to be the party that gives the jury more information, right?

Like where the, and during, I know I'm getting ahead, David here, but like during closing argument, I said over and over, like the state didn't want to hear, didn't want you to hear this part of the interview.

They didn't want you to hear the 911 call.

And I think that by showing more of the story, we were able to portray ourselves as the party that was actually interested in the truth, right?

And, and so that was a big part of our cross in the detective.

Well, what, what little portions of what little snippets of the interview with Victor are they playing to kind of make it sound like what?

Yeah.

So a big part that they wanted to play earlier, I made a reference to them using a prop gun, right?

Like they, they asked Victor to use a, a prop gun to show what happened.

And when Victor did that, he basically said, look, I think this is how it happened.

But in showing that part of the interview, but not the rest of the parts, a jury might conclude that that is very much what Victor like knew happened.

Right.

And so the state sort of presented like cherry pick parts of the interrogation that made it look like Victor sort of like callously or really, um, without any discretion, pointed the gun back at Elsie.

What I did, and I had a friend help me with this.

Victor says like literally like 14 times.

I don't know how, I don't know how it went off.

I never meant to hurt Elsie.

I have no idea how it went off.

And a friend of mine strung together all of those statements into like a continuous play.

And so like at the end of my cross examination or towards the end, I said, I said something like, well, detective, tell the jury how you, what, what you believe from your interrogation happened.

And he said, well, I believe that Mr. Castro took the gun and twisted it away from him and towards Ms. Puente and did so in disregard for the safety of people in that room.

I said, well, how do you believe that in light of this?

And then I played the video of Victor saying for like 90 seconds straight, I don't know how the gun went off.

Like different, different snippets of him saying, I don't know.

I don't know.

I don't, I don't, I don't know.

No, no.

Like a DJ.

Yeah, yeah, exactly.

It's kind of like, it's like a best hits.

I think that was an important part of the case for sure.

I also, so in the interrogation, after Victor is told you're being arrested for murder, he is in the interrogation room by himself for like, I don't know, Victor, what do you think?

Like 10 minutes maybe?

I think longer than that.

I played that video, like just let, I just had the jury watch.

Real time.

Like real time.

We just, we just sat there in silence and watched Victor just, who was just told he's being charged with murder.

And like the prosecutor, like I played it and like two or three minutes into it, he like shot me a look.

He's like, what are we doing?

And I was like, we're watching.

And I, and I, like, he sort of whispered to me and I responded louder.

I said, we're watching this part of the video.

Yeah.

It felt like a long, long time because like, I don't know, it was somewhere between like 15 minutes, 10 to 20 minutes.

But like, it felt like an eternity in that courtroom because it was just, all we're watching is a man who's just been told he's murdered.

This guy is absolutely mourning the death of his girlfriend.

Right.

Well, what was he doing in the, I mean, I mean, you kind of creep up to it and you don't say it.

What was he doing?

Was he crying?

Was he sobbing?

Let's just go back there.

Okay.

All right.

So Victor, we're now in that room.

You're in that room.

The cops just left that room.

You've just been told that you've been charged with murder in relation to your girlfriend's death.

Tell us what you did.

Like even the bailiff, right?

Like, I don't know.

I can't really like, cause people look at me at like, it's hard for me to evaluate myself, you know?

Like, but even the bailiff that walked me out, he was walking, he was watching the whole trial.

He was like, man, like, because that was powerful, you know?

Like just to show that you were crushed, like a broken man, you know?

Like this, that, that you could tell, you know, that, that, that my whole world was like, I felt like my world was over, you know?

Like, I don't, I'm not really good at explaining things like that, but you know, like, like that's just how.

It was, it was, it was hard to watch.

I mean, obviously it was hard for me to watch cause I have deep affection for Victor, right?

But Sonia and I talked, talked about it before trial.

Cause we knew that there was some risk involved with it because if the jury was not, you know, this is like one of the last things that happened during trial during the state's case in chief was us playing this.

And if the jury was not at least in that moment, open to seeing it our way, I think playing that could have been viewed as like, what the heck are you guys doing here?

Right.

But we, I think Sonia and I did feel like trial was going well for us.

And so we decided to do it.

And, um, like it just, it felt like an eternity though, watching that video.

But I, I'm glad we did it though.

Cause I think it showed a desperate man in that moment.

So the, so the prosecution rests, right?

Right.

Uh-huh.

So you made a motion to dismiss before, right?

With the judge?

Yeah, just sort of pro forma.

Yeah, same judge.

Right.

Yeah.

And it was denied, which is, I mean, I understand.

Yeah.

Yeah.

Um, and then we had an agonizing decision to make about whether Victor's going to testify.

Cause now it's time for the defense to put on their case.

Right.

Right.

Um, but Victor, it was very obvious to me that you felt strongly that you wanted to testify.

Well, I wanted to testify really because I felt like the prosecution, they didn't like, well,

the detectives and all that, they didn't investigate this case at all whatsoever.

Like, I mean, like they didn't do GSR or gun, like the, they didn't do anything.

Cause they felt like it was going to prove what I was saying was true.

You know?

And I felt like, like that, that, that, that who better to hear it than for me?

Cause I like, I'm genuine, you know, like I'm not, I have nothing to hide, you know?

I will say this with Victor, like I've never had any client that I was less nervous about

testifying than Victor.

One, I knew the guy had nothing to hide, right?

Like I just, I just knew that there was nothing that he could possibly say that was going to

be like, I just knew he had nothing to hide.

And like Victor's just a really bright, thoughtful, like, I just knew he would do well testifying.

That said, there was one woman on the jury who was giving us such strong body language

throughout the entire trial.

And Sonia and I just felt like there was no way she was going to convict Victor.

And so because we felt that way, it was sort of like, well, if our worst case scenario now

is something other than guilty, because I feel strongly that this woman's not going to convict,

then maybe that changes how I feel about whether Victor should testify, right?

Like, like if I thought there was a really good chance Victor might be convicted, then I'd

say, let's definitely have you testify because we need it, right?

But I think in that moment, both Sonia and I felt like we were not going to lose this jury

trial.

And it was difficult to Victor, it was hard talking to Victor about why he shouldn't testify

because we'd spent so much time preparing it, right?

And I wanted Victor to feel like he was heard and seen at the trial.

But we had a long conversation during a recess about why we felt like,

Victor did not need to testify in order for us to win the trial.

And I got to give Victor a ton of credit because he trusted Sonia and I.

And despite the fact that he really wanted to testify, he took our advice and didn't testify.

So, Victor, you, I mean, you, you're Mark's, Mark and Son, Mark's coming to you, coming to

you saying he's giving you advice that not to testify, the case is going well, not to

testify.

But you know that, like, you saw how you did in those motions, right?

It's a good motion.

I'm going to win those motions.

But you still, that's a really good point.

You still stuck with them.

Like, I read a lot about cases and I sat there and I read books and all kinds of law stuff.

And like, there's a lot of times that I can't Mark and I was, I, I, I would straight tell

him, like, can you do this or can you file this motion or, or, you know, and even though

he didn't agree with me sometimes, like as a lawyer, he'd tell me he'd get, he'll give

me his, his legal advice, he never told me no, like at never, at no point did he tell

me like, I'm not going to file this motion.

You don't know what you're talking about.

Like I'm a lawyer, you're, you know, and so like, to me, I felt like, like he gained

my trust, you know, and he's, he asked me to trust him, you know, I feel like he earned

it, you know, like, so I had to, I had to go with his decision, you know?

Okay.

So then, so you don't testify, Mark, did you put on any other evidence?

Yeah.

So we did put on the 9-1-1 call, um, which the state did not admit during its case in

chief, the 9-1-1, the 9-1-1 call included the little boy saying my mommy just shot herself.

That was it.

So I called the records custodian.

I introduced the call.

We played the call.

It was like maybe two or three minutes long, the 9-1-1 call, and then we rested.

Okay.

And so then we got closing arguments.

Right.

The prosecutor gets his, um, PowerPoint out, right?

And he's going through the elements and talking about his case and why Victor was reckless and

why he should be found guilty of murder.

The thing I remember the most is like, they hit the point that they were like, I look remorseful.

It looked like I cared about her and everything like that.

But they kept on saying that I only felt that way and looked that way because it was my fault.

That it was, that, that I only felt that way because I felt guilty because I knew I was, that, that I was guilty.

The only reason why you were upset was because it was your fault she, she was shot and passed away.

Like you would, if it wasn't your fault, then you wouldn't have been upset.

Something ridiculous like that.

That's what it sounded like to me.

I mean, like they kept on saying like, you're going to see him remorseful and sad and all

that.

But like, he only feels that way because of hindsight.

Like after everything happens, he knows, you know, he knew he's like, like if I couldn't

feel that way on my own, just because something bad happened.

And I remember seeing the jury looking at him like, that's crazy.

You know, like even the, the female he was talking about, like she kept looking over at

me, like, and giving me these looks.

And I was just like, man, like, you know, and by the way, is there, is there chihuahuas

in the background going on over there, Vic?

Yeah.

Yeah.

There's animals.

All right.

Don't worry about it.

Don't worry about it.

Just stay, stay focused.

Stay present.

We're good.

We're good.

Um, all right.

So let's talk about Mark's closing argument then.

How did that go?

Yeah.

So one thing Victor said earlier during our conversation here tonight is that Victor felt

like the jury could tell that I really cared a lot about him.

And, um, I, I understand that we all have clients that make it harder for us to care a lot about

them, right?

Because for whatever reason, but I, I do think that we were able to do a closing argument in

a way that made it abundantly clear that, I mean, I mean, I, I, I genuinely have deep affection

for Victor Castro.

Like I did then I do now Victor's future has always been important to me.

And I mean, during, during closing argument, like I do crazy stuff.

Like I go over and like put my hands on Victor during closing argument, right?

Like, cause like, it is important to me that they see that this is really important that

I care deeply about Victor.

And I think I, I, I, I tried to just show, I went back to the thing we talked about during

jury selection.

How are people wrongfully convicted?

Right.

And I said, maybe people are wrongfully convicted because they ignore a little boy on a 911 call

who says my mommy just shot herself.

And, um, I got, I got pretty, um, like, I didn't cry, but like my voice cracked for sure.

Um, because that, that recording is like, it's just one of the saddest things you can imagine.

Um, and so I, I, I tried to just show that the tragedy of the circumstance wasn't lost on us.

I reiterated that Victor Castro is somebody who showed extreme remorse or extreme sadness

and, and, and concern for, um, Elsie in that body cam footage.

And I told the jury that when they returned to not guilty verdict, they'd feel good about it.

Yeah.

Victor, what do you remember about Mark's closing argument?

At that point, it was really hard for me to concentrate, you know, like I, I seen that

he did care for me a lot, but like, I couldn't take my eyes off the jury.

I felt like, like my life was going to be over within a couple of seconds, you know,

like, or however long they were going to take to deliberate because like, it was an all white jury.

Nobody there looked like me.

I felt like, like, I felt like no matter, I, I, I mean, like, even I was prepared not to be mad at Mark.

Like, I was just like, man, you know, like I was like, you know, you tried, like, that's just how I felt, you know?

Like, does that make any sense?

You know, like, yeah.

All right.

Let's, um, let's talk about jury deliberations then.

Um, Victor should answer that question first.

I mean, I'm always like a huge, I just had a jury trial or a trial last Friday and during deliberation,

like I'm always a mess during deliberations, which means I cannot imagine how my clients are feeling.

Yeah.

Tick tock, tick tock, tick tock.

What's that like, Victor?

Just waiting for the jurors to come back.

I prepared myself for a long deliberation.

Like I felt like the longer, the better.

Like I watched that whole, that whole jury trial of Derek Chauvin and all that and how it took days.

And like, I watched that religiously, like the whole thing, you know, the liberation.

I waited like I, so I expected something at least, you know, they took me up to this, this holding cell.

And I even asked the, the, the, the bailiff, I'm like, how long does this usually take?

You know, and he's like, well, it could be days.

You're going to be stuck in the cell.

And, and so he left and I paced, felt like not even like 20 minutes.

And he came back and he's like, come on.

And I was, and at that point I felt angry because that meant if they found me guilty,

that they didn't have time to review the evidence or nothing.

So I'm like, dang, because in my head, I, I did feel like it was hopeless, you know?

And I felt like, dang, they didn't even review nothing.

They didn't have time to do none of that.

So I was just, I was kind of angry, but as soon as I see Mark, he's like, they made a decision.

You know, I feel good.

So Mark, you felt good.

Well, I told Sonia when we got done, like when we got, we walked across the street to Sonia's office,

which is where I used to work.

And I told her, I said, I think one of three things is going to happen.

We're either going to get a quick, not guilty.

They're going to deliberate a long, long time and give us a not guilty,

or they're going to deliberate a long, long time and give us a guilty.

Like, I did not think there was any universe where quick deliberations could have meant guilty.

Like, I just, like, I just, like, I watched that lady who throughout the trial was given us so much good, like body language.

And, like, another thing that we talked a lot about is, I read this book called Noise by Daniel Kahneman,

which talks about, like, environmental factors that play a huge role in decision making.

And so, like, we put, like, we put Victor as close to that jury as possible, like physically.

Like, we put him in the chair as close to the jury box as possible,

which means that he was literally, like, three or four feet away from this woman

who was giving us really good body language throughout the trial.

And so I just felt like if we got a quick verdict, I would be nervous about it,

but there was no way it could be guilty.

I just didn't think there could be.

Now, that doesn't mean I'm not absolutely freaking out as I'm ready to hear the verdict.

But when we got news that the verdict was reached that quickly,

I was surprised it was as quick as it was,

but I thought, I felt strongly it couldn't be a guilty verdict.

And thankfully, we were right.

I remember the verdict was read, and it was me, Sonia, Victor,

and the three of us just embraced each other and started, we all cried.

And yeah, it was just like a really, really special moment that I'll never forget.

So, Victor, let me ask you something.

When you heard the foreperson say, not guilty, like, what's that whole experience like

when you're leading up to it and they're about to read the verdict?

Well, I was terrified up until the point where the jury walked in

because, like, I'll never forget this.

Like, two of the jurors, as soon as they walked in, they smiled at me.

And even some man winked at me.

Like, he looked at me and winked.

Oh, yeah.

Gave me, like, a thumbs up.

Like, so before the jury was read, I felt that's what made me feel at ease at that point.

But before they walked in, like, as soon as they walked in,

like, I'm telling you, this man looked at me and smiled at me, winked at me, like, yeah.

Victor, is that why you put your hands behind your head and put your legs up on the table?

You know, like.

I felt relieved, though.

I did, like, you know, just.

Yeah, no, it felt great.

It felt really good.

It's a moment I'm very, like, it was great to share that with Victor.

Well, this is a great trial story, a great not guilty, a great moment of, I don't know, Mark, just, you know, thank you for coming on the podcast and sharing this, reaching out.

And, Victor, thank you for coming on and sharing this very traumatic time in your life and being open and honest about it.

I want to stress something really quickly.

Part of why this case, I think, made a lot of sense for this conversation we're having is because continually throughout this trial, or throughout the case, it felt totally lost on the judge and the prosecutor to me that Victor Castro is someone who cared deeply about Elsie Puente.

And, you know, I think we have a system that goes to great lengths to put distance between prosecutors and defendants and judges and defendants.

And maybe in some cases, there's decent arguments for why that is.

But it completely denied a big part of Victor's humanity and his dignity.

And I really thought this conversation would give us the chance to show how much Victor cared about Elsie, how much he still thinks about her kids today, and how he never wanted anything bad to happen to Elsie at all.

Victor and I, we had really powerful conversations in the jail about how Victor felt about Elsie.

And our hearts go out to those kids.

It was a very, very sad situation.

But I just think that this opportunity, this conversation, gives us the chance to show that we never wanted to blame Elsie.

We never tried to strip her of her dignity by talking about what happened on the day in question.

We did what we could to try to honor who she was and the loving mother she was.

But thanks for giving us the chance to do that.

Yeah. Victor, is there anything you want to add to that?

It all feels like a dream to me.

I felt like everything was stacked against me from the beginning, you know, and I felt like that I was never going to get out.

I felt like my life was over, you know, from the beginning.

And, like, Mark helped me to feel more comfortable little by little.

And I accepted the worst for what happened.

And I thought that, you know, like, they even made me question myself.

Like, do I really deserve to get life in prison?

You know, like, it seems like everybody, like, that's what they want, you know?

Like, maybe you'll be better off that way, you know?

No, you're good.

You're good.

Yeah, so we're going to close out the show.

I want to thank everybody for coming on.

The last question of every show that we asked the defense attorney, we asked the public defender, Mark, why did you become a public defender?

What drew you to this profession, to this life?

Well, I don't know if I knew it at the time, but it's, like, you know, I had a really easy childhood with, like, a lot of privilege and a lot of opportunities.

And with very few exceptions, my clients were Victor and people very similar situated to Victor.

And so the work is just endlessly rewarding to sort of take the privilege I had and try to spread it.

And, like, part of why the work is so rewarding is a recognition that crime doesn't happen in a vacuum.

And if you expose people to trauma at a young age, it changes who they become later in life.

And a lot of times, it's not their fault that they were exposed to those kinds of traumas as kids.

But the job is great, man.

I feel so thankful to be able to do this work.

And it's because of people like Victor and other clients who deserve to have somebody who cares a lot about them.

So, yeah, it's great.

I'm so blessed to have this job.

It's awesome.

Thank you so much.

Thanks for coming on the show, everybody.

Thanks for having us.

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

Special thanks to the entire A&G team, including Matthew Kelligrew, for the edits.

And, as always, a shout-out to Daniel Mark, original A&G theme music composer.

And guess what?

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