Anatomy of a Trial: Judge Karen Sartain Breaks Down the Defense’s Case In Chief

[00:00:00] [SPEAKER_03] At the Murder Sheet, we're a small two-person business run out of our home office with the help, or should we say sabotage, of our dogs Nick and Nora. When it comes to running a business, or better yet, growing and scaling a business, expertise matters. We know that for a fact. That's where Upwork comes in. Upwork is a platform for finding, hiring, and paying expert freelancers. These are the folks who can help take your business to the next level.

[00:00:24] [SPEAKER_02] Upwork works because it's a one-stop shop. Recruit talent across software development, creative writing, data and analytics, marketing, business operations, and more. Whatever line of work you need, Upwork's got it across 125 categories.

[00:00:43] [SPEAKER_03] Now, I myself was on Upwork for years as a freelancer. I anonymously wrote a ton of romance novels for my clients. It was great. Super seamless, convenient, and easy. I took pride in my work and helping my clients scale their small publishing businesses. Plus, it was super fun.

[00:01:00] [SPEAKER_02] Sign up for Upwork today. It is totally free and easy. All you have to do is post a job you want done. Upwork takes care of recruiting posts, contracts, and payments. Join the thousands of businesses who already trust Upwork to help them attract top talent and get important work done.

[00:01:18] [SPEAKER_03] Upwork works. I know. I was on Upwork for years. Try Upwork today.

[00:01:24] [SPEAKER_02] Visit Upwork.com right now and post your job for free. That is Upwork.com to connect with top talent ready to help your business grow. That's U-P-W-O-R-K dot com. Upwork dot com.

[00:01:39] [SPEAKER_03] Here at the Murder Sheet, we both wear glasses. But since buying glasses is a hassle, we hang on to ours for way too long. Like, we've both held on to pairs that have definitely seen way better days. Anything to avoid having to pay hundreds of dollars for a replacement.

[00:01:54] [SPEAKER_02] Those days are over thanks to Zenni Optical. Zenni is an online eyewear shop. They offer up stylish prescription glasses, sunglasses, and customizable lens options, all starting at under $30.

[00:02:08] [SPEAKER_03] I've been wearing my Zenni Sausalito sunglasses everywhere. Bright light gives me headaches and bothers me when I'm driving. But through Zenni, I got to order these super cute, classy prescription sunglasses for just like $77. I'd expect these to be hundreds of bucks. But I was able to just put together my order easily online, uploading my prescription, then I was done. I was even able to use their virtual try-on technology to see how the frame looked on me.

[00:02:33] [SPEAKER_02] I've been wearing my full-rim black stainless steel square eyeglass frames for reading. I'm currently reading a collection of vintage true crime unsolved cases. These glasses were only $68. That's a great deal. I love that Zenni lets you buy special pairs of glasses for whatever you want to do.

[00:02:52] [SPEAKER_03] That scratched up pair has done its job. Upgrade today with Zenni. Go to zenni.com slash podcast and use code podcast15 for 15% off your first order, plus free shipping on all U.S. orders over $65. The styles sell out, so don't sit on it. That's Z-E-N-N-I dot com slash podcast, promo code podcast15.

[00:03:16] [SPEAKER_01] Insurance isn't a one-size-fits-all. And shopping for it shouldn't feel like squeezing into something that just doesn't fit. That's why drivers have enjoyed Progressive's Name Your Price tool for years. With the Name Your Price tool, you tell them what you want to pay, and they show you options that fit your budget. Enough hunting for discounts, trying to calculate rates, and tinkering with coverages. Maybe you're picking out your very first policy.

[00:03:44] [SPEAKER_01] Or maybe you're just looking for something that works better for you and your family. Either way, they make it simple for you to see your options. No guesswork. No surprises. Ready to see how easy and fun shopping for car insurance can be? Visit progressive.com and give the Name Your Price tool a try. Take this stress out of shopping and find coverage that fits your life. On your terms, Progressive Casualty Insurance Company & Affiliates. Price and coverage match limited by state law.

[00:04:14] [SPEAKER_03] I'm Anya, and today we're going to be talking to an expert about the defense's case-in-chief at trial. Content warning, this episode contains discussion of murder and violence.

[00:04:24] [SPEAKER_02] We talk about a criminal trial as if it was a single event. But of course, that's not entirely true. A trial is made up of multiple parts, starting with jury selection and going all the way to the delivery of a verdict.

[00:04:38] [SPEAKER_03] Not all of these stages of a trial always get attention, but each of them can be tremendously important. But if you're not an attorney, it can get confusing trying to understand these stages of a trial and exactly why each is a crucial part of the process.

[00:04:52] [SPEAKER_02] That is why we decided to launch an occasional series we call Anatomy of a Trial. In each segment, we talk to an experienced trial lawyer who will go in-depth with us about a particular piece of a trial.

[00:05:05] [SPEAKER_03] Our wonderful expert today is Karen Sartain. She is a town justice in Southampton, New York on Long Island. Now, sitting on the bench there is a part-time role, so she also still maintains a defense practice. She's served as a defense attorney for 33 years, both in Florida and New York. She's awesome. We met her at CrimeCon and we asked her on the show, So far on Anatomy of a Trial, we've already done the prosecution's case-in-chief with Stacey Diener.

[00:05:32] [SPEAKER_03] Now we're going to talk about the defense's case-in-chief. And we're also going to hear some fascinating courtroom insights and anecdotes from Karen. My name is Anya Kane. I'm a journalist.

[00:05:44] [SPEAKER_02] And I'm Kevin Greenlee. I'm an attorney. And this is The Murder Sheet. We're a true crime podcast focused on original reporting, interviews, and deep dives into murder cases. We're The Murder Sheet.

[00:05:57] [SPEAKER_03] And this is Anatomy of a Trial. Judge Karen Sartain breaks down the defense's case-in-chief.

[00:06:47] [SPEAKER_03] Awesome. So, Karen, thank you so much for joining us today on The Murder Sheet. Yeah. Thank you so much for having me. We're very excited to have you and excited to chat about being a defense attorney. But before we do that, I was just wondering, can you tell us a little bit about yourself and sort of what attracted you to the law?

[00:07:06] [SPEAKER_00] So, me being a lawyer is a product of I wanted to be a doctor like many other lawyers I know. I always wanted to be an anesthesiologist. And then I managed to get through inorganic chemistry in college, and the organic chemistry just took me out. I couldn't spatially handle those molecule models. And so, what do you do when you can't be a doctor anymore? You become a psych major and then don't know what you're going to do and go to law school. So, I went to law school right after college in Miami. I went to college in Pennsylvania.

[00:07:35] [SPEAKER_00] I went to law school in Miami. And I kind of got there with everybody else that had just graduated college. The people that did the best in my section were legit adults that had separate careers and then went to law school. They almost always were the people that had the best perspectives about all of it. The only advantage I think college kids have is that we're still used to studying. So, it was one set of studying and two, going to law school. And so, I didn't love it in the beginning.

[00:08:04] [SPEAKER_00] I remember running into a woman in my section that dropped out right around Christmas, and I saw her at the mall Christmas shopping, and she looked so happy. And I remember thinking, gosh, she looks so happy, but I'm not ready to give this up. Because it's hard. It's hard. It's hard. I don't know. Do you know the paper, Chase, about your first year in law school?

[00:08:23] [SPEAKER_03] Yes.

[00:08:23] [SPEAKER_00] Yeah. And I'm sure Kevin's given you some stories about it. It's not fun, and they make it that way for a reason, to get you ready for your career. So, I started my second year. I got through my first year, and I did fine. I did okay. I was never a law review person. I wasn't interested in sitting in the front row, and I wasn't in it for a paycheck from the very beginning. So, the things that motivated me from the beginning were the public service type jobs.

[00:08:50] [SPEAKER_00] So, I had a work-study grant, and the only people that were hiring when I was in the second year was the public defender's office. So, I never put one thought into it one way or the other about—because putting people in jail that deserve to be in jail sounds good, as a 1L. And then, defending people that deserve to have a defense also sounds good, but I hadn't—I don't have lawyers in my family. I didn't have this sense of, I've got to advocate for the indigent people of the world.

[00:09:19] [SPEAKER_00] And I also was like, I've got to put every bad guy in jail. I didn't have a perspective one way or the other. But since my work-study grant was only good at the public defender's office, I'm like, all right, I guess I'll work there. So, I got assigned to who is—she's retired now, but when you look up public defender in the dictionary, this is who you're going to get. This is the consummate person that immediately put me in line. Like, if you're going to work here, this is the deal.

[00:09:44] [SPEAKER_00] And she only had capital cases, so I think she had six death penalty cases in Florida where the death penalty was and is still on the table for murder prosecutions. And so, from the very beginning, I was scolded. Here's why I don't believe in the death penalty. Here's why people—even the worst people—deserve representation. Here's why all of the icky things that you're feeling about defending possibly guilty people. Let's get over all that right now.

[00:10:11] [SPEAKER_00] And she goes, let me explain, and she really led me through what it means to be a true defender of someone who can't afford their lawyer, but also a defender of the Constitution. So, a lot of the public defender work that you do relates to that. And the layperson question that you get, how can you defend guilty people? Okay, all right. Because everybody's entitled to a defense.

[00:10:36] [SPEAKER_00] And once you start realizing that not very rarely will you get someone that's innocent, and an innocent client is terrifying, to be honest, as we know. Once you get past that and you realize that all of criminal defense and the criminal justice system is more gray than black or white, then it's very easy to do the job. And you'd be surprised people that are much more than they are in the worst day that got them to needing a lawyer. So, that's how I got started.

[00:11:05] [SPEAKER_03] Can you tell us about the trajectory of your career? Sure. Kind of getting into that public defense work out of law school?

[00:11:12] [SPEAKER_00] Yeah, sure. So, I worked there my second year, the summer between second and third year, and my third year of law school. I basically, my third year in law school, I was what was called a certified legal intern. So, you're able to try cases as long as you have a barred attorney with you. And the Miami Public Defender's Office puts a great deal of effort into training their interns because they intend to hire you. And they are determined to make you into, this is how you properly defend somebody from beginning to end.

[00:11:40] [SPEAKER_00] And we don't let you loose in court until you're ready on some level. And so, I got hired there right out of law school. And I worked there for, so I worked there a total of nine years before I left to go on maternity leave. I had two kids. And then life got in the way, and we wound up moving to New York before I could go back to work. So, we moved to New York in 2002, my husband and my two kids. And I was a stay-at-home mom for a few years.

[00:12:06] [SPEAKER_00] Then I took the New York bar and failed because I was an adult with a proper life and kids. And, you know, when I first took it, I was 24. No boyfriend, no house, no rent, no kids, no anything other than studying. And so, I guess I took it at 44. I failed. I took it the next year and passed. It still took me a little bit to get a job, but I started working for the Suffolk County Legal Aid Society on Long Island. So, I worked there for two years, then started my own practice.

[00:12:34] [SPEAKER_00] And then in 2020, I was appointed to the bench in the town that I live in, in Southampton on Long Island. And then I was elected. So, I'm in my seventh year on the bench there as a town justice.

[00:12:44] [SPEAKER_03] That's amazing.

[00:12:45] [SPEAKER_00] So, I'm able to have a defense practice. And because the town justice position is a part-time thing, I'm able to also still have a defense practice. Just not where I'm in. I can't go and defend somebody in the court where I'm a sitting justice. So, there you go. So, I've been an attorney for 33 years, licensed in Florida that whole time, and New York for 13 years.

[00:13:05] [SPEAKER_03] Okay. Well, that is amazing. And that is, like, quite a career spanning, you know, different states. So, I want to go back to the kind of constitutional aspect. You know, you mentioned that. Why is it so important for all of us? You know, for me on the street, for anyone out there that defense attorneys, public defenders in particular, are putting on a vigorous defense for all clients whether or not they're guilty.

[00:13:28] [SPEAKER_00] So, the framers of the Constitution did, in their infinite wisdom, they realized that the government that they experienced was very tyrannical. There was a lot of tyranny. There was a lot of involvement with the government coming into your house, making you house soldiers, making you do things that you didn't want to do and you hadn't signed up for. So, when they framed the Constitution, they were like, okay, all the things that we've been fighting about and railing against, we're going to codify this into this new legal document that's a living, breathing document.

[00:13:58] [SPEAKER_00] The Constitution doesn't rest as it was. It is living and breathing. It's constantly under, what's the word I'm looking for? Not attack, but under...

[00:14:07] [SPEAKER_03] Transformation, I guess. Yeah.

[00:14:08] [SPEAKER_00] Yeah. So, and the Bill of Rights is the most litigated part of the Constitution there is. The Fourth Amendment in particular. So, to be free from search and seizure is the Fourth Amendment. So, the reason that the Bill of Rights and constitutional work is so important to criminal defense clients and people that have been charged is a lot of the time, okay, if you're charged with possession of a drug, I can give you anecdotes, but I had a client in Florida charged with a crime of having an illegal substance underneath her breast.

[00:14:38] [SPEAKER_00] Okay? So, this is a good example with Fourth Amendment to be free from search and seizure because the only way that a police officer is able to find a drug under someone's breast or under a breast is, did that person invite you under their breast? Or am I being searched incident to an arrest? And this particular woman wasn't. When she told me where they found the cocaine, I said, okay, but what were you arrested for? Possession of cocaine. But that was found under your actual breast.

[00:15:07] [SPEAKER_00] So, how did they get under your breast? And it took her a minute to get where I was going, but I said, the end of what they found doesn't allow them to search underneath your actual breast. They have to have probable cause to search you, and probable cause is, has a crime been committed, and is this person more than likely the person that committed it? And based on everything that I saw, watching all the videos and everything that related to it, there wasn't anything.

[00:15:33] [SPEAKER_00] The means justified the ends, and it turned out that what she put, like, we were ready to go to a hearing on that, but it turned out what she had under her breast, which she actually, what she bought was Molly, MDMA, turned out it was bath salts. And what was under her breast wasn't a drug at all. So, they wound up dropping the charges. But we were ready to go forward on that, and it's a really good example of, think about as, well, anybody, as a woman or as a man, why are the police putting their hands on your body without reason to?

[00:16:02] [SPEAKER_00] The constitutional defenses are to keep the police honest. And you can't go in my car, you can't come in my house, and you can't search my body unless I allow you to, or you have probable cause for it, or a search warrant's been signed. So, so much of criminal defense is not, well, I didn't, I didn't have drugs under my breast. It's, well, what was there? Did it get there legally? Or in this case, factually, it wasn't, it wasn't a drug.

[00:16:28] [SPEAKER_00] So, so much of the work that is involved with being a defense attorney on this level is keeping the government honest, because that's the way the framers set it up. Not because of the way the political climate or anything that's surrounding us today. This is the way they wrote it.

[00:16:41] [SPEAKER_03] Yeah. You are staving off tyranny, because by constraining the power of our extremely powerful government and its agents, you're not just doing that for people who are charged with a crime. It's also then gets applied to everyone else in society.

[00:16:57] [SPEAKER_00] Right. Right. Everybody has Fourth Amendment protections. You are protected by the Fourth Amendment to not having the police illegally stop and seize you or search you. Your ability to walk down the street and not have the police get involved with your stuff is because you're protected by the Fourth Amendment. The Fifth and Sixth Amendment protect you when it comes to confessions. Sixth Amendment protects your speedy trial rights, your jury rights.

[00:17:20] [SPEAKER_00] They framed this specifically because whatever was happening in England and Britain at the time, people were getting overrun by law enforcement. And so they decided, OK, if we're going to create this new perfect union, we're going to set it up in a different way.

[00:17:36] [SPEAKER_03] I'm curious. You mentioned people asking you, like, how can you defend these people or whatnot? Do you get that a lot? Did you get that a lot at one point? It has changed? Oh, still.

[00:17:45] [SPEAKER_00] I don't get it so much anymore, probably because I'm older and I'm not working full time at the Miami Public Defender's Office or Legal Aid. But in the beginning, I would get that all the time. And a professor that I had was a very famous defense attorney, Roy Black. I don't know if you know him. He defended William Kennedy Smith in the early 1990s. He's up there with Jerry Spence or F. Lee Bailey, like those hardcore defense attorney people.

[00:18:12] [SPEAKER_00] So he taught at UM Law School when I was third year. And he basically, it was a pass-fail situation, but everybody got assigned to a different part of the trial. So I think I got the direct of a witness. And then I was done for the semester. And you just went every Monday night. And, you know, he just walked you through the trial. Like, he's like, OK, kind of what you and I are going to, we've been talking about today. And one of my classmates, not the brightest bulb, I would say, was she asked him, how do you feel getting people off on a technicality?

[00:18:41] [SPEAKER_00] This is my classmate asked this of Roy Black. And he turned and he said, I didn't know the Bill of Rights was a technicality. And I remember that. And it sat with me because the Bill of Rights is for everybody, not just the state of Florida or the state of New York or Indiana versus this person. It's we're all giving these protections.

[00:18:59] [SPEAKER_03] This message is sponsored by Greenlight.

[00:19:02] [SPEAKER_02] Have you ever had a loved one scammed? Maybe a parent or a grandparent. It's the worst feeling not being able to protect the ones you love from awful, predatory scammers.

[00:19:12] [SPEAKER_03] Well, if you've experienced that, you're not alone. Families lost $12.5 billion to fraud last year. Like all predators, fraudsters and scammers are always looking to prey on the vulnerable.

[00:19:24] [SPEAKER_02] But you can fight back and protect those you care about. Greenlight Family Shield helps prevent your family from becoming a statistic.

[00:19:32] [SPEAKER_03] Greenlight Family Shield is an app. It helps keep your whole family safe from scams and fraud. It's the perfect system for preventing your grandparents, kids, spouse and yourself from falling prey to scammers. Because what affects one family member affects everyone in that family.

[00:19:48] [SPEAKER_02] We love Greenlight Family Shield because we know it keeps our families safe. That's why we use and trust Greenlight. We feel safe because of their rapid-fire financial account monitoring, credit locking and real-time alerts. Alerts that go out whenever potential fraud is detected. We use Greenlight and you should too.

[00:20:10] [SPEAKER_03] Scammers aren't waiting. Neither should you. Go to greenlight.com slash msheet right now to get started. That's greenlight.com slash msheet. Greenlight.com slash msheet. We've been on a real kick lately to improve our health and that means getting good sleep and rest. For us, that starts with amazing, comfortable bedding.

[00:20:32] [SPEAKER_02] That's why we love our sponsor, Bowlin Branch. They create everything you need to help your bed feel like the coziest, most relaxing place in the world. Luxurious comforters, cozy blankets, supportive pillows, and of course, their signature sheets.

[00:20:46] [SPEAKER_03] Bowlin Branch has the preferred sheets of the murder sheets. We just got Bowlin Branch's signature hemmed sheet set in dusty rows.

[00:20:54] [SPEAKER_02] We broke those out and immediately felt as if we were sleeping on those really comfortable hotel sheets. We got amazing sleep on these. No sliding fitted sheets. No issues. Just rest and relaxation.

[00:21:06] [SPEAKER_03] These sheets are breathable. They're soft and comforting. Our bedroom routine is after we tuck Nick and Nora into their doggy beds, we both read for a while and then drift off. Both of us have struggled with insomnia at times. But with these sheets, with Bowlin Branch, you just sort of melt off to sleep. And somehow, these sheets have only gotten softer as we've washed them. Since we've got these sheets, we've even had a few lazy Saturdays where we spent most of the day in bed reading crime fiction. It was heavenly and so comfortable.

[00:21:35] [SPEAKER_02] We adore our Bowlin Branch sheets and will never, ever go back to regular bedding. I forbid it.

[00:21:41] [SPEAKER_03] Upgrade your sleep with Bowlin Branch. Get 15% off your first order plus free shipping at bowlinbranch.com slash msheet with code msheet. That's bowlinbranch, B-O-L-L-A-N-D, branch.com slash msheet, code msheet to unlock 15% off. Exclusions apply. It's always great when you get clothing that you just can't stop wearing. It just looks that good. It's just that comfortable.

[00:22:09] [SPEAKER_03] That's the kind of clothing our wonderful sponsor, Quince, specializes in crafting for you. That's why we love Quince and are constantly shopping there to restock and refresh our wardrobes.

[00:22:20] [SPEAKER_02] You are going to adore your new Quince pieces. We certainly do. Even more so because they're 50% to 80% less than similar brands because Quince cuts out the middlemen.

[00:22:31] [SPEAKER_03] I recently purchased a 100% European linen fit and flare midi dress in chilly red. I love it. We recently went abroad for a loved one's wedding and I wore it to the welcome party with my red shoes and I got a lot of compliments. I'm not really known for being super stylish so I feel Quince is my cheat code for looking effortlessly polished without breaking the bank.

[00:22:51] [SPEAKER_02] I got a pearl snap denim western shirt in denim blue that I wore to the same event. I love how it feels especially as the seasons change. I'm big on comfort and wearability and Quince always delivers.

[00:23:04] [SPEAKER_03] Or if you want you can try their soft luxurious 100% Mongolian cashmere sweaters that we also love. Those are starting at just 60 bucks. Don't just have to stick to clothing either. Try their hotel quality bedding and furniture to up your home style for less.

[00:23:17] [SPEAKER_02] Find your next fall favorites at Quince. Download the Quince app for app exclusive offers or go to quince.com slash msheet. Get free shipping on your order and 365 day returns. Now available in Canada and the UK too. That's q-u-i-n-c-e dot com slash msheet.

[00:23:37] [SPEAKER_03] So I want to talk with you about the defense's case within a trial. And if you could almost talk to me. I imagine it's so different for different cases. But are there some commonalities that might go into, say, preparing for going to trial?

[00:23:54] [SPEAKER_00] Yeah, sure. So I'll just speak generally because each state states are different, but I'll just speak generally. So by the time someone's been charged with a crime, the police got involved, arrested this person. And then the prosecuting attorney, the state attorney or the district attorney, then they take what the police have told them. They determine, is this charge correct? Correct. So I always give the example of a burglary or a trespass.

[00:24:24] [SPEAKER_00] So if I'm, let's say that you and Kevin leave your house and you're like, Karen, when you come to Indiana, you can stay here. Just, we're going to leave the key for you, but you're fine to stay here. But you don't tell anybody else that I'm allowed to come to your house. So I go to your house and I don't take any of your things. You just said I could stay. Well, your neighbor calls the police and says, I see this person there. She's not allowed to be there. And I saw her taking something.

[00:24:50] [SPEAKER_00] I saw her taking what appeared to be a television out of Kevin and Anya's house and put it in her car and drove away. So trespass is where you're, you're somewhere where you're not allowed to be. Like you are not allowed to be there. And burglary is you trespass with the intent to commit a crime. So I'm trespassing and I'm going to steal. I'm trespassing, going to vandalize, assault, something in addition to the trespass. So they arrest me for a burglary.

[00:25:16] [SPEAKER_00] And then if I got that file, I'm like, but wait, so let me see who owns the house. What has my client been told about that? So let me find out. So, hey, guys, it already looks like what she was taking was hers because they determined that, let's say, whatever I appeared to be taking was mine. So then it would be only a trespass, not a burglary. And then if it turns out they talk to you and your husband, oh, that was supposed to stay here, then they'll dismiss the case. So there's always this beginning part of what are the elements of the charge?

[00:25:46] [SPEAKER_00] And one of the things that that attorney, when I very first started working there, her name's Eve, she told me the very first thing you do, look at the charge and look at the elements of the charge, because the people have to prove each element beyond a reasonable doubt. And so she walked me through how to do that date minute one. And that stuck with me from then on. So with a grand theft auto case, you're in possession of a vehicle. You have reason to know you don't own it and you don't have permission, whatever those elements are.

[00:26:14] [SPEAKER_00] So it's the same thing with that burglary example. You just go through one by one and then you say, OK, wow, it seems like that's solid or not. What I always try to do with the person when I talk to them is I tell them what the charge is. And I explain what's going on in that moment. I try not to ask something open-ended about tell me what happened,

[00:26:39] [SPEAKER_00] because if you are told something, you can't suborn perjury later on. Like you can't if your client tells you, yeah, I knew I wasn't allowed to be in any of Kevin's house, but I went there anyway. I then can't put them on the stand to say, well, oh, I don't know. Like I can't then let you lie later. It's hard to ask. Tell me everything that happened because sometimes I don't want to know. Sometimes you do.

[00:27:04] [SPEAKER_00] It's just more of it's taking your time to look at the charge, the element of the charge, and how each of the elements are supported. So I try to do that before I talk to the person. You can't always do that, especially in high volume courts like I was in. So a lot of times you're at a podium and you're just let's go, let's go, let's go. It is not a fair system when it comes to that stuff.

[00:27:26] [SPEAKER_03] And I'm sorry about your terrible trip to Indiana, by the way. What do you mean? Oh, you came to our house and got arrested. No. Yeah. Can you talk about that? The fairness of the system and why? I mean, because when you talk about the way it's designed and the way it's meant to work, it sounds great. Right. Forcing government to prove their cases. How can things play out in reality that might make it inequitable for especially people who don't have a lot of resources?

[00:27:56] [SPEAKER_00] So unfortunately, the way that this plays out is happens to be the two states I'm licensed in. Florida, everything has its pluses and minuses. Florida's got open discovery. So right now you can go on any clerk or court. You can look up anything for the most part unless it's been redacted. You can really see everything. And when I was working, you got depositions. So you were able to really prepare for court. New York, you can't see anything online. You can't delve into facts like you can't find things.

[00:28:24] [SPEAKER_00] But New York instituted bail reform right before the pandemic in 2020. So they did this study. There's a very comprehensive study that determined that people of color and underserved communities, the bail system affects them like the percentages were. I forgot even what they were at this time. But basically, communities of color were affected so much by bail, the bail system, because if you can't afford your bail, then you're going to lose your job. And if you lose your job, then you can't pay your child support. If you can't pay child support, your license will get suspended. If your license is suspended, then you can't drive to work.

[00:28:53] [SPEAKER_00] And if you can't work, it just goes on like all the things that would go on. So New York revamped bail reform at the beginning of 2020. And they set up this way that whether an offense is qualifying, if it qualifies to have bail set or not, and their whole goal is, is this person going to come back to court? Not as a punitive matter. To basically punish the person, it's just will they return to court? That analysis of when somebody needs to be released from custody has been taken away from the judiciary,

[00:29:19] [SPEAKER_00] because in a lot of situations where I'm not comfortable that I have to release this person, I do, because I have to. So New York did what they could to somewhat remedy that. But they've had to revisit that several times because a lot of the things that they said, oh, we don't need bail for this, were crimes that you really do need to make the public feel safe that somebody is going to be returning to court and not just released ROR.

[00:29:45] [SPEAKER_00] You know, sorry, ROR is released on your own recognizance, meaning I'm not going to require you to post bail. Like, I believe you will return to court. And they gave us a mnemonic. They're like, just remember rooftop, rooftop, rooftop. And what is rooftop? Risk of flight to avoid prosecution. That's the whole standard. Is this person a flight risk? If they're a flight risk, then you have a set of parameters that you have to go through. Now, Florida, bail here, bail there, revoke bail, everything, bail, bail, bail. Like, there's no bail reform here.

[00:30:13] [SPEAKER_00] So what winds up happening in, I think, each state, because of the two places that I'm licensed, I think each of them have gone too far one way or the other. Because in Florida, if you're arrested on something and then you pick up something else, your bond in your first case is revoked and you're going to sit in jail and wait for your two cases to get resolved.

[00:30:30] [SPEAKER_03] And, I mean, one thing I always, I mean, I want your take on this. Because I find myself often defending public defenders because I feel like there's a perception in true crime, at least of like everyone's an overworked public defender who's not putting a lot of time into a case. And I'm like, that's really not been true. Okay. Can you talk about that? Because there's like a bias against the public defenders in true crime.

[00:30:53] [SPEAKER_00] Well, here's the thing about being a public defender in my life. You're assigned to one courtroom at a time. And as you gain in your career, so like in Miami, they started you out in traffic court. And then they moved you to juvenile court. And then they moved you to lower level felonies. So they gave you time to learn what was, you know, what's what. But the beauty of that is you're in the same court every day. And you're in front of the same judge every day.

[00:31:22] [SPEAKER_00] And you know what works with that judge. And you know what doesn't work with that judge. And some of the best representation I've ever seen is from public defenders. Because they do work every day, all day. And they're not doing anything else. So most defense attorneys, myself included, I'm also a mediator. I'm also a judge. I do podcasts. I do writing, whatever. Like I do a lot of other things. I didn't have time for any of this when I was a PD. Like you are full time there all the time.

[00:31:53] [SPEAKER_00] And you're going to get some of the best representation ever when it comes to some felony cases. Because of the lawyer being in that courtroom all the time. Now, is there that person, that lazy lawyer that doesn't do anything, that gets a government paycheck and doesn't care about people? Yes. And I've worked with them. I've worked with them in both states. I have them in my courtroom sometimes. Like not legal aid attorneys. I don't mean that. But I've experienced lawyers like that professionally on both sides of the bench.

[00:32:21] [SPEAKER_00] And it's unfortunate because it gives the rest of the community that works really hard a bad reputation for not being particularly hardworking. You have to be hardworking because your caseload is more than likely going to be pretty bad.

[00:32:35] [SPEAKER_03] Do you think there should be reform in terms of the caseload in particular and hiring more public defenders in different places? Like is that necessary, do you think, in order to kind of let people focus more on their different cases? Or do you think, what are the big problems do you see?

[00:32:52] [SPEAKER_00] Well, for instance, so in Miami, the public defender is an elected official and it's a state agency. In New York, it's a quasi-governmental agency that gets some monies from the government, some monies from a lawsuit that was filed on behalf of indigent clients. There's always going to be an issue of funding because people don't want to pay for lawyers to defend guilty people. So the public defender's office in Miami that got all their funding because it was a state agency, they, you know, there would always be, okay, we might be getting a raise, we're not getting a raise.

[00:33:21] [SPEAKER_00] Like it's just one of these things that people don't want to pay for lawyers to defend guilty people because we could just fry them all right now. We just put them all in jail right now. And what's happening now is we're about to have a very, very big referendum on factually innocent people. I don't think 20 years from now we're going to be hearing about falsely incarcerated people that have been in prisons.

[00:33:46] [SPEAKER_00] I don't think we're going to be having the same kinds of falsely accused people that we have had up until this point because of DNA and because of cameras being everywhere. And you are able to prove where you are at all times. So right now, do you know the Pam Hupp, the Betsy Faria case? Russ Faria, how he spent time in prison. So his alibi was an Arby's receipt and an Arby's drive-thru.

[00:34:12] [SPEAKER_00] And we all know he's factually innocent and Leah Askey, the prosecutor that should go to prison for what she did to him. And the idea now of trying to prove an alibi, you don't need a receipt. You have your alibi everywhere you go. Anytime your license plate reader picks up, picks you up. So to me, there's a little bit of a semblance of we're not going to be having people like Leah Askey prosecuting someone like Russ Faria and going, no, no, no.

[00:34:40] [SPEAKER_00] All the digital footprint is there, but we're still going to try them anyway. It won't happen. A grand jury will not indict that person. So there's some, like, technology has come so far for criminal defense attorneys, and we're constantly learning technologies ahead of the law. There's a lot that defense attorneys can do now that we couldn't do 20, 30 years ago.

[00:34:59] [SPEAKER_03] Yeah, absolutely. It's definitely been such a game changer watching some of these older cases get solved, and maybe in solving it, it acquits somebody else who had been wrongly convicted or at least under a cloud of suspicion.

[00:35:12] [SPEAKER_00] I mean, my dream job is to work for the Innocence Project. I would, nothing more I would like than to work for people that are factually innocent. So hopefully they'll be put out of business soon because, yeah. Yeah, no.

[00:35:25] [SPEAKER_03] It's a lot. But I do want to know, though, in terms of, you know, we talked about the preparation that can go into, like, how you tackle a case. You know, at the center of it is this client, this person who's facing these charges. How important is it to build rapport with them? How did you approach as a public defender building that relationship with a client? Sure.

[00:35:44] [SPEAKER_00] So, to me, I'm a person like they're a person. And I've taken this to my life in New York, and I know that people I work with there are probably like, oh, here we go with my again. But they taught you from the very beginning that this file that you have, there's a person behind this file. And this person is way more than this file. So the file of the charge that has, okay, here's the charges and here's all this. Okay, and you have this person.

[00:36:13] [SPEAKER_00] But what you need to learn is who's the person that got them to the day of this file? Like, how do they get to this? So I always start out comprehensively. That's why when we were talking about it before, I don't ask about, tell me what happened. I always have to start with, well, the most important question forever until the end of time is where were you born? So that's the first question you ask. Because if you weren't born here, then we have to have a separate, that's a whole separate conversation. It doesn't matter as long as I've been practicing. That's been the very first thing you ask.

[00:36:42] [SPEAKER_00] Because that's always been a factor of what your immigration status is. So that's number one. And depending on the answer to that, if I was born in the United States, then we just move on. And then if not, then I know the questions to ask about that. Because then you try to find out, okay, where are you from? How long have you been here? And you try to get all that pedigree info. Because that collateral consequence is just as important as the criminal consequence. So collateral consequences are immigration, job, what's going on in family court. Will you lose a professional license?

[00:37:11] [SPEAKER_00] So all these things, like if you have a doctor as a client or a pilot as a client, do you have other, you know, do you have a lot of other things you have to worry about? So what I always start out with is just the basics of who you are. And then you get into, depending on the charge, like if it's a DWI, then you would start with, tell me how you got stopped. What do you remember? What did you, so you start getting into the facts of it before, like just saying, tell me what happened.

[00:37:36] [SPEAKER_00] And they don't, a person that's never, especially someone that's never been in trouble before, doesn't know what you're looking for. They're going to be like, well, I was crying and then I called the police. You just don't know what you're going to get. So you've really got to go into it pointed. And start out the conversation with the person. You're a person and I'm a person. I'm not above you just because I have a JD after my name.

[00:38:00] [SPEAKER_00] And depending on who you're talking to, because I've represented kids all the way to the career criminal, to the worst, everybody wants to talk about who they are and everybody's story is important. And even somebody, and people that have done very, very bad things, eventually you find out they didn't have a shot from the beginning because what happened to them when they were really small is what creates, sociopaths are created. If I have that correct from, I learned that from Jodine Weber from In My Web.

[00:38:30] [SPEAKER_00] She's a retired FBI agent. She said, if I have it correct, sociopaths are created and psychopaths are born. So somebody was never cared for. Their brain, you know, wasn't developed. That's why they can put a gun in someone's face and do what they do because they don't have any conscience about it. And so talking to somebody like that, it's just you have to adjust who you are when you're talking to them. But my main thing, the way I was trained is who's the person behind this folder or behind this file?

[00:38:59] [SPEAKER_00] And how did we get here? And once you figure that out and you show that you actually have some interest in who the person was, if you have the time. Now, this isn't when you're standing at a podium and you're just time served, time served, time served, which I've had to do that before. I'm talking about when you get assigned a case and you actually have the time to prepare the defense. That's where I always start. And that was my training.

[00:39:21] [SPEAKER_03] That makes a lot of sense. And humanizing that person, I imagine, is very important to be able to do that work.

[00:39:26] [SPEAKER_00] Well, I have a client in New York that I just did a motion to suppress for the December of 2024 that I won. Because when I first got the case, he was a passenger in a van. And somehow he wound up getting charged with a cocaine possession. He had cocaine in the wrist of the sleeve of his hoodie. And I remember, like, again, similar to the woman with the cocaine or drugs under her breast. You're a passenger that gets stopped because the inspection is wrong. The sticker was wrong.

[00:39:55] [SPEAKER_00] Why are the police in your wrist? Why are they inside your sweatshirt? It's the same kind of thing. And he had a very long record. And he was a crude criminal. Like, he had a very long rap sheet. But in this case, I'm sorry. You're not supposed to be in this guy's sweatshirt. He's a passenger in a car that has nothing to do with searching this car and everything else. So we went to hearing. And I wound up winning. And he told me nobody's ever fought for him before. So of his entire rap sheet, he'd taken police to everything.

[00:40:24] [SPEAKER_00] He'd never gone to trial, never gone to a hearing. And I'm like, well, I'm sorry that nobody ever fought for you before. But I will because this is my job. And I did. And we won. And, you know, he was... I'm the single greatest lawyer there exists. He texts me all the time. Can you do my will? Can you go to family court for me? I'm like, what I... The main thing you could do as a lawyer is know your lane. And my lane is not writing wills. And my... That's not my lane.

[00:40:53] [SPEAKER_00] But that's an example of somebody that had never been talked to. I don't want to say like a person. But he's got a long rap sheet. I think they offered him time serve. Like, it wouldn't be any... It would be of no... Of no impact on him to take a time serve plea to a misdemeanor drug possession in New York. A fine and a surcharge. That's it. It would not have affected him the way it would affect somebody with no record.

[00:41:20] [SPEAKER_00] But, again, you look at it and you go, this... Does this pass the smell test?

[00:41:25] [SPEAKER_03] Yeah. If it's a violation of his constitutional rights, just because he's a career criminal, that's still a violation of his constitutional rights. He still has constitutional rights.

[00:41:34] [SPEAKER_00] Everybody deserves a defense. And that's a good example of one.

[00:41:37] [SPEAKER_03] Yeah. And it's also a good example of like how you were able to build some rapport with him simply by doing your job and advocating. Yeah.

[00:41:45] [SPEAKER_00] I have a big problem. A very, very big problem with... Look, my advice as a defense attorney with the police. You will never solve... You will never get your way on the street with any encounter with the police. Just do what they say. Deal with it later. That's my advice always. Cooperate. Do what you can. But don't engage. Like, you get pulled over. What did I do? Here's my stuff. Take your ticket. Move on. And deal with it later. You're never going to win a street encounter. When I say win.

[00:42:14] [SPEAKER_00] You're never going to get out of that encounter on the winning side. And if more than anything, you might wind up getting arrested. So that's my free public service announcement to cooperate with the police.

[00:42:24] [SPEAKER_03] Don't be a, as they call them, TikTok lawyer where you're filming yourself arguing. Like, yeah. No. Get a lawyer later on and fight it. And it's also just a safety issue. You know, you don't want to be escalating or, you know, an encounter. Ten and two.

[00:42:37] [SPEAKER_00] Here's my stuff. And I'll deal with it later.

[00:42:39] [SPEAKER_03] I almost killed Kevin once because he's an attorney. So he's, you know, like, we, it was this stupid thing. But we got pulled over in a parking lot because, like, the officer claimed that we didn't, like, stop at the stop sign, which wasn't a real stop sign. It was in a parking lot. But it was this whole thing. And, you know, Kevin's not going to admit, you know, he's like, oh, do you know what you did? And he's like, no, sir. And, like, it just turned, like, the guy got so mad. And I was just sitting there like, oh, my goodness. But it was fine. I was stressed out, though.

[00:43:08] [SPEAKER_03] And I was like, man, I would have probably just said, oh, sorry about that. And he's like, no, you don't want to admit it if you didn't do anything wrong. And I was just like, oh, my goodness.

[00:43:15] [SPEAKER_00] That's why you just go, just here's my stuff. Let me just have that and deal with it later. Yes. I was just like lawyers.

[00:43:24] [SPEAKER_03] So that's, yeah, that's amazing. And that's a great story about that guy. I love that you're his lawyer now for life. And even on stuff that people want to do.

[00:43:33] [SPEAKER_00] It's a really good feeling. And it's just, again, he was a person of color. Nobody's doing that. If I'm the passenger in a van, nobody's looking to pull my sweatshirt apart. So. Yeah. But body-worn camera is everything. And that case was one on body-worn camera. Yeah. So it protects everybody. It protects the police as well. In the world of defense, I was never one of those people that your default is always just that the police are lying. Like, that doesn't sit well with me either.

[00:44:01] [SPEAKER_03] Tell me more about that. I want to unpack that. Why does that not sit well with you? And what's been your experience to inform that? And how can you still push against the police if they make a mistake, even if you're not necessarily taking that more conspiratorial view?

[00:44:15] [SPEAKER_00] Yeah. Well, look, the police have a very big responsibility. And whenever anyone testifies, you know, they lay out their background, their training, etc. So there's a lot of things where if you were trained to do something and you didn't do it correctly, you're going to get called out on it. If the case is lost because you didn't do your job correctly, that's on you. So if you messed up the chain of custody, if you messed up the confession, if you cut corners and you didn't do something correctly, then we're going to make that argument.

[00:44:42] [SPEAKER_00] But I cannot, like, they used to have something called a dropsy case in Miami would be that you're walking and the police are near you and then you just drop your drugs and you keep walking. And then they would arrest you for possession later. So there was a lot of those cases and there was a couple officers that were dirty, basically. And those officers, we had carte blanche to call liars. Like, they are lying to you. They've lied to you before. They're lying to you again. We're going to tell you that they're lying.

[00:45:10] [SPEAKER_00] But as far as, like, your general, like, I'm going to call a cop a liar just to make a difference. Like, if that's my only difference, I wouldn't do it in that way. Like, I'm not going to make up that a cop said something that he didn't. But if you didn't do your job right, then...

[00:45:27] [SPEAKER_03] At that point, then you're going to come in and say, okay, we're going to need to talk about the quality and the competence here. Exactly.

[00:45:34] [SPEAKER_00] Because at that point, the strength of the people's case is now going to be in question if you didn't follow everything you're supposed to follow. Yes. So another problem that the people have, which I have constantly in my courtroom, is when you don't have compliant complaining witnesses. Meaning. So you've been told to stay away from somebody. That person has asked for you to stay away from them. You've had whatever domestic situation, and you've now signed that you agree you're going to stay away from this person.

[00:46:04] [SPEAKER_00] They've asked for this order. I've ordered you to stay away from them. If you don't comply with my order, it's a criminal contempt charge, which is misdemeanor charge. So many times, I would say more than half the time, the defendant is saying, the protected party keeps reaching out to me. The protected party keeps reaching out to me. And then I have to have this conversation as a lawyer and as a judge. The person whose name is on the order is you. You're the one that's been told about your behavior, what you have to do.

[00:46:30] [SPEAKER_00] They're not under any type of instructions about what they are and aren't supposed to do. But it goes to the strength of the people's case when it comes to things. If that person keeps contacting you, maybe the order shouldn't be there. How strong is the case that it arises from? Are you really in fear of them? Because apparently you're not because you keep contacting them. And so what would happen a lot when I was representing people, when I was privy to what was told to them. Now I don't get the privy. I don't find out unless the lawyers tell me.

[00:46:59] [SPEAKER_00] But when I was assigned something like that, inevitably they would say the person wanted me to come over. They said it was okay, that things were fine. And then somehow something goes south. And then they call the police. And then here you are in these charges because you're the person who agreed to stay away, even though they said it was okay to come around. So that happens all the time. And I have to have that conversation with people, with the person that wants the order of protection. So now I start putting on the record.

[00:47:28] [SPEAKER_00] You understand that you're the person that's asking to be the protected party. Do you agree you're not going to contact them? You're not under any, you're not under a court order not to, but you're wasting our time if you're asking for an order of protection and you're going to go right out and contact the guy. So there's a lot of managing of the other side of the equation as well. And this is what prosecutors have. I mean, I've never been one, but I've seen the difficulties that they have with their case

[00:47:52] [SPEAKER_00] because they're trying to wrangle a civilian in a case that maybe that person's not wrangleable, if that's a word.

[00:48:00] [SPEAKER_03] Yeah, no, I can. And it's such a good insight because I can totally see that. Like you think of usually the defendant or like, oh, don't say or do this. But I mean, I imagine the complaining witness can be in a complicated domestic situation where, you know, there's back and forth. Yeah, that's a nightmare. And, you know, and as you said, it does end up wasting the court's time potentially. And when you look at the psychology of people like going back to toxic relationships,

[00:48:27] [SPEAKER_03] like again and again and again, it's like the system's almost not designed to handle that level of enmeshment.

[00:48:35] [SPEAKER_00] Well, we find that we have a lot of adult children that have onset mental illness, maybe like in their 20s or so. You know, maybe you're starting to see bipolar or schizophrenia or something like that, and the families can't handle it. And they start wanting the courts to be, you need to order this person to treatment. And when the social workers and the victim witness advocates and, you know, then everybody's involved with, do you understand that you have, you know, you have right of self-determination?

[00:49:05] [SPEAKER_00] Like we can't force someone to treatment. Like I can't force someone to treatment. And the families are like, I don't understand why. We have it over and over again with like, especially adult male defendants that have some type of schizophrenia or bipolar or something where the family is at their wits end and just then start calling the cops and using the courts to manage whatever's going on in their houses, in their homes. It's very sad because we're not equipped for that. That's not what the justice system's for.

[00:49:32] [SPEAKER_03] It's so bleak. It's so bleak. It's like you understand where they're coming from. And it's like, it's just not designed to handle that. Right.

[00:49:40] [SPEAKER_00] And then talk about people, parents. Like if you said, okay, now you come in and said you don't want to hear from your son. Are you sure you don't? Okay. You want your son to stay away. And I have an adult son and I might be mad at him on one day, but I, what if I change my mind the next day? I'm like, I want to see him again. And that happens because of course it's parents and children and it's very complicated. You know?

[00:50:02] [SPEAKER_03] I think what people sometimes don't realize and, you know, true crime and also crime fiction tends to emphasize like the most black and white, like this guy is pure evil. And, you know, not everyone's Ted Bundy. Oftentimes it's just messy people making mistakes or making bad choices again and again. And it's much more of a gray area.

[00:50:23] [SPEAKER_00] Yeah. And nothing about it is black and white. Like I said, an innocent client is terrifying because like it's terrifying and you can't, and as much as you, okay, I'm going to explain to the prosecutor what's going on. And they have a very hard time letting go of something because they're, they're dialed in that they're locked in that. No, this person's not innocent. Of course not. So it's an interesting set of problems when you have an innocent client. I had one when I worked in juvenile court in Miami and I, his name was Rodney. It was like free Rodney on this armed robbery.

[00:50:53] [SPEAKER_00] And it wound up getting dismissed that I suffered with that for so long because he was, meanwhile, he's probably like 40 now. But, you know, he's like a 15 year old kid charged with an armed robbery and he didn't do it. Plague me forever. So.

[00:51:05] [SPEAKER_03] How did you deal with that when you were doing it? How do you deal with the stress? It was so hard. Yeah.

[00:51:12] [SPEAKER_00] Um, I, you know, you work out, eat right, try to, you know, do what you can to stay healthy and, you know, try to have boundaries with clients and how much that you work and stuff. Like I tried not to work weekends if I couldn't and, yeah. But meanwhile, all it, it's the only thing I'm interested in. You know, it's like my whole life is crime. So it's all I listen to. It's all I do. Like it's, yeah, it's just who I am.

[00:51:41] [SPEAKER_03] How did it feel when that case got dismissed and you knew that you'd gotten this case against an innocent client dismissed? I cried. And then I went on a date with the detective. Okay, what? That was a twist. So one thing I do want to ask you about is just, I guess, trial strategy for a defense attorney, for a public defender. Obviously, I imagine it differs based on what the case is and what the reality is.

[00:52:08] [SPEAKER_03] But were there some truisms that you kind of took across your career that, you know, you would bring to different trials?

[00:52:13] [SPEAKER_00] So jury selection is everything. That's where everything is going to be won and lost. So you really have to think about what you want for a jury. Who's your ideal juror? And there's a lot of psychology around it, but it is true. And what's interesting is in my courtroom, phones are not allowed. Like you have to leave your phone in your car. And when you can't bring your phone in, people bring in newspapers, books, knitting, crocheting, and you start to see what people bring in.

[00:52:42] [SPEAKER_00] And when people start bringing in books, projects, newspapers, you can tell immediately. If you're reading Brene Brown, I know what you're about. If you're reading the Financial Times, the Wall Street Journal, I got you. If you're reading the OJ I Did It book. Or you're reading Charlie Kirk's memoir. Like anything that you bring in is before you answer one question, I already know. You can tell already what the deal is with people.

[00:53:08] [SPEAKER_00] And then you start to think about who your ideal juror is. And that comes from just talking to your colleagues. Here's the facts. What do you think? Who would be sympathetic and who's not? Unfortunately, trials are the exception and not the rule. The system can't handle everybody having a trial. I think more things should go to trial than they do. We haven't had a jury trial in a couple years in my court just from just judicial economy.

[00:53:37] [SPEAKER_00] The offers are too good or things fall apart. Witnesses, something will happen. But I found that as we've seen in trials that we've been able to watch on television, you can never predict what's going to happen in a trial or what a jury is going to do. And that is the X factor or the thing that whenever you're talking to a client about, what's our cost-benefit analysis here? Here's the offer. Here's your exposure.

[00:54:05] [SPEAKER_00] But the X factor, which you can never count on, is what's your jury going to be like? Because you're guaranteed a jury of your peers, which is people from your community. So you're not guaranteed if you're a Black defendant, you're not guaranteed a Black jury. White person is not a white jury. It's people from your community. And depending on where your community is, you could be very different from who you are. So juries are always a crapshoot. So that's why so many things work out with plea bargains, because there's a benefit to knowing exactly what will happen.

[00:54:36] [SPEAKER_00] So that kind of conversation I would have with a client is just explain, like, here's what your exposure is. Here's what they're offering. And then you can kind of get a sense of what works for somebody and what doesn't. And people posture and certain people are like, I'm not guilty. I'm not taking anything ever. And that's great until there's something that comes along that is palatable. And there's all kinds of ways where things, you know, nothing is Black and white, is guilty, not guilty. Things get reduced.

[00:55:03] [SPEAKER_00] Things can be diverted into program. Like, if you've never been in trouble before, your case can go to pretrial diversion, dismissed and sealed. There's all kinds of ways that cases work out. But jury selection is where it starts, for sure. Because if we pass the point of it working out, then jury selection is most important. And then after that, I have found that you have to have a narrative. You have to have something to say. Something. Whatever it is, you just need something to say.

[00:55:33] [SPEAKER_00] And what I watched recently was the Handsome Devil about Wade Wilson, the Deadpool killer. Did you watch that? I haven't watched it, but it's on my list. Okay. So his attorney, his fifth or sixth defense attorney, gave no opening statement. Just they gave the people did an opening and said, he's a killer. He killed this person. This is what he did. You know, ran through the evidence is going to show. Evidence is going to show. Evidence is going to show. Defense, you ready for your opening? No, we waive opening.

[00:56:03] [SPEAKER_00] Okay. People call your first witness. So even if the only thing you have to say is thank you. So in that case, thank you so much for listening. We're so happy that you're here today. Mr. Wilson, it's a pleasure to represent him. And you're going to hear the people's case. All we want you to do is keep an open mind. Just be mindful that the burden is on them. They have to prove each and every element beyond a reasonable doubt. Mr. Wilson doesn't have to prove anything to you today. We're listening with open ears and we thank you so much.

[00:56:33] [SPEAKER_00] Like say something. You don't have to say he's not guilty. He didn't do it. And he's innocent. Because that's probably not what the testimony and the evidence is going to show. But say something. Say something. Something.

[00:56:48] [SPEAKER_03] You're just surrendering to the state entirely. It feels like you don't make any sort of effort.

[00:56:55] [SPEAKER_00] The only reason to waive an opening statement is you're doing a bench trial. So a bench trial is where the judge is the finder of fact. If there's a jury trial, the jury is the finder of fact. And a bench trial, the judge does that. So in a bench trial, I probably, if the case has been pending in front of me for a while, I probably already know basically what's what. And so if you want to waive your opening, each side waives their opening in that. Let's just get to the testimony. That's one thing. But with a jury, and the prosecution gave a statement.

[00:57:25] [SPEAKER_00] They gave an opening statement. Told you what you're going to hear. You have to say something. So I'm watching that. So defense practice 101, you have to say something. Even if it's just, we're so thankful you're here. Please keep an open mind and remember the burdens on the people. Like, that's kind of all you have to say.

[00:57:42] [SPEAKER_03] Yeah. I know. That's so well said. But you got to, you know, you can't let other people dictate the whole case for you and your client.

[00:57:51] [SPEAKER_00] And the other thing we were taught was your opening statement is not, well, it's not argument. And you should be able to get up and give your opening with no notes. Because you're not looking down and arguing. You're telling the jury a story. And you're going to hear this. You're going to hear this. Here's this. But something. And then thank you very much and sit down. It's not the time to lay out every single thing and every single argument. It's just introduce yourself.

[00:58:19] [SPEAKER_00] Give a basic explanation of where this is going to go. The common trope is, I'm going to give you a roadmap to what this is going to be. And basically, like, they taught us, try to say all of that, but leave the roadmap out. Like, leave the analogy about the roadmap. Like, get to what you're going to hear without saying roadmap. So.

[00:58:40] [SPEAKER_03] I've heard that a lot. Yeah, I love that.

[00:58:43] [SPEAKER_00] Too many roadmaps in the car. So if the people, when they stand up, they're telling you what you're going to hear. So I would always write down, I'm going to hear there's a gun. I'm going to hear a confession. I'm going to hear video surveillance. I'm going to hear witnesses. And I'm going to hear ballistics. So they tell you everything you're going to hear. So I keep that to the side. And then in closing, depending on what they have or haven't done, well, they said you're going to hear about a gun. You didn't. You're going to hear about a confession. You didn't. You're going to hear about this. You didn't. Maybe they promised you five things and only did three.

[00:59:13] [SPEAKER_00] You can harp on the two. But what your closing argument is going to be different than your opening because you're going to take what you've heard and then explain it away or however, you know, whatever arguments that you can make is not your opening statement. Your opening statement is just here's the case.

[00:59:31] [SPEAKER_03] Did you have a philosophy when it came to direct and then cross-examination as far as how you were going to handle witnesses in terms of your demeanor, the way, your style of asking

[00:59:40] [SPEAKER_00] questions? Well, again, we learned all of this. And the summer between second and third year, you basically everyone took this litigation skills workshop in the summertime, which was basically a party. It was great. Like you learned everything, but then you were it was the summer in Miami. Then you just go out afterward. But you learned all of the things, all of what you needed to do to say how to say them, how to lay foundation for things. And we learned all this properly.

[01:00:07] [SPEAKER_00] So direct is the defense attorney's baby step entry into criminal defense. So whenever I started a direct examination is something that one of the more experienced lawyers would let you do because there's nothing adversarial involved. You're talking only to your witness or your client and you're in charge of what's asked and how it's answered. And then obviously you have to prepare that person for cross. But in terms of direct, what am I trying to get from this person? Do I need them? Do they add value to the case?

[01:00:37] [SPEAKER_00] Are they only going to confuse the jury? What is the what is their goal? And I found that you have to practice with a witness. I've tried doing it. I've gotten burned where I'm like, we'll just figure it like I'm going to ask you this, this, this, this. And it usually won't go well. Like you, I have found that the most effective way to do a direct is you have to practice with the person because most people have never been in a witness stand. Most people have never testified before. And it all sounds great in reality until you're there.

[01:01:05] [SPEAKER_00] So we would practice with people. And then cross-examination is an art. We could do an entire episode. You could do an entire series on the art of cross-examination because it is an art. The cardinal rules are don't ask a question you don't know the answer to. Don't ask open-ended questions. That's the two things. So you don't ever want to put the person cross-examination. They just finished their direct. You don't want to go, so tell me then what happened after you left that station? Okay, well, then he'll just go, well, then the Pope came.

[01:01:35] [SPEAKER_00] And said I was innocent. And then all the nuns were there and they all made video. I mean, you don't ever want to do that. And you don't want to ask them you don't know the answer to. You also have to know when to stop. Because inevitably people ask one question too many.

[01:01:50] [SPEAKER_03] Yes. Yeah. I've been in murder trial as a gallery member where that, you know, definitely maybe a thousand questions too many. And it's sort of like whatever point may have been really salient for the jury feels like it's been lost at that point. Right. And they're just going to be wondering, like, why was that so long versus, oh, I think I kind of got what he was going for there.

[01:02:11] [SPEAKER_00] Yeah. What makes sense to us trying to put things together doesn't always translate to a jury. Like, I think attorneys a lot of times lose sight of what a jury is taking in.

[01:02:20] [SPEAKER_03] Yeah. Yeah. Absolutely. Before we wrap up, I do have to ask you, you've had some wild and really cool anecdotes that you've been able to share so far. But I have to ask you before we close up, were there any other ones that you could share with us? Because I just think you've had such an interesting and really cool career. And so does anything come to mind?

[01:02:39] [SPEAKER_00] Yeah. Well, I had one that has played out. I'm rewatching The Good Wife right now. And they had an episode similar to that. If you haven't watched The Good Wife, it's great. Although it's completely unrealistic because they're in court every single day. Like something gets filed, they're immediately litigating, which doesn't happen. So I had a client who was originally from Cuba. He came to the United States on the Mario boatlift in 1989. So he had status in the United States. He didn't speak any English.

[01:03:07] [SPEAKER_00] And he was charged with a burglary with an assault, which is a life felony. This was in Miami. So basically, a burglary with an assault is I'm going to break into someone's home or car, but this was a home, and I'm going to assault them in some way, you know, fight them, sexually assault them, whatever. And so he was charged with breaking into his girlfriend's house and assaulting her. And because he had a prior, he was looking, I believe he was looking at 40 years because these are the habitual offender laws in Florida at the time.

[01:03:37] [SPEAKER_00] And I think the offer was 30. And that was common because as you got higher up in the office, like no more traffic cases and no more misdemeanor drug cases. Now you're going to do more and more serious things as you go along because that's how experience works. So like the more experienced lawyers would do the more serious stuff. So this is towards the end of my time there. And he testified. My co-counsel was bilingual and he only spoke Spanish. And we went through it with him. Act this out with us.

[01:04:07] [SPEAKER_00] Act out what happened. And most of the jury, I believe, spoke Spanish as well. But they have to take this oath. Even though you agree that you speak this language fluently, do you agree that you'll only accept the English translation? And they're like, all right, yes. So it all comes from what the interpreter, whose name was Joaquin, was saying at the time. So my co-counsel goes through this whole thing with him. He's really believable. But the problem was because of his record, even though he was believable and it wasn't the strongest case, they still had to prosecute. They still had to offer 30 years.

[01:04:37] [SPEAKER_00] And I think before it started, the prosecutor asked me what we wanted. And I said something about local time. I don't know, like 364 would be one day short of a year, which indicates local time, meaning a local jail. Well, 366 is one day over a year, which is state prison time. So prison is for people that are sentenced. Jail is for local sentences and people awaiting trial. So we finished the trial, went to verdict. The jurors deliberate, go into deliberation.

[01:05:07] [SPEAKER_00] And the judge needs to go to downtown Miami for a luncheon. So she has to leave the building while the jurors are deliberating. So the jurors are deliberating, deliberating. And it's getting to be a couple, three, four hours. And the prosecution gets nervous, as you see on TV. So they come to us and they go, will he take 10 years or something? I forget what it was. But it was along the lines of what I had asked for originally before we ever started the trial.

[01:05:37] [SPEAKER_00] And I said, well, I don't know. I have to convey it. You can't turn it down. Like you are required by law. You know, you're required to tell your client an offer. So the judge is still at this thing and the jury comes back and they have a verdict. But she's still at this thing. And she's, you know, half an hour away. But they've made an offer. And what do you do? What do you do? And so we went back and we talked to him.

[01:06:07] [SPEAKER_00] And I don't know what it was. Maybe it was five years. But it was time. And he was in custody. So he was going to get caught up at the time that he served. But he was probably going to get a little bit more time. And then depending on what the process would be for someone that was a Cuban refugee, whether he would get deported or not. So go ahead and guess what you think happened, Anya. Just tell me what you think.

[01:06:28] [SPEAKER_03] I'm so nervous. I think that the prosecution came back and offered even less time.

[01:06:33] [SPEAKER_00] And then you guys went with that. Well, no, we talked to him and we're like, OK, so if you're convicted, you're going to get 40 years. They're offering you, let's just say, five. Or it could be not guilty and you could leave today. So he took the five. Because none of this would have happened if she had stayed. If she had stayed. Because there would not have been time for us to then go back and talk to him. Because if she'd been there, the verdict is there.

[01:07:03] [SPEAKER_00] And we would have all heard it. So he took it. And it was not guilty. Oh, man. But it's the right thing. It's like deal or no deal. You know, like, do you want to open the suitcase that has a million in it or not? Well, the million is either there or it's not. And if he'd been convicted, it's at that point, it's guilty or not guilty. And we were really confident. Like, he came off really well in the stand. But with juries, you just never know. And I don't remember the makeup of the jury.

[01:07:32] [SPEAKER_00] I know there were definitely Spanish-speaking people in the jury. But you never know. Is somebody there going to go, I can't believe I have to deal with this guy who can't even speak English and is fighting with his girlfriend? And you don't know what people are going to do. And sure enough, he took it. I cried. Because the clerk told me. And because the prosecution was so smug about the strength of their case in the beginning. Because I think I asked for 10.

[01:07:56] [SPEAKER_00] I remember her going, 10, you know, basically giving me, like, how dare, that's so offensive that you wouldn't come ask for that. So when they offered that, I think it was, it just shows the disingenuousness sometimes of what goes on. And I think it upset everyone, including the clerks, because they were so smug in the beginning about it. And then, but this is what happens. And so he took it and we found out. And he never knew. He never knew. We didn't tell him.

[01:08:25] [SPEAKER_00] And then I just remember crying in the elevator with my boss. And Karen, it's going to happen again. It's just the nature of it. You just don't know. You don't know. Because a jury will go, oh, we were going to acquit him. But then we saw that he had an orange and blue hat on. Okay, so. Well, we heard somewhere that orange and blue hats on that day meant not guilt or something. Like, you just don't know what a jury is going to do.

[01:08:52] [SPEAKER_00] And you, we couldn't, he couldn't take the chance. And it's just, it was, it was a tough one. It was tough.

[01:08:59] [SPEAKER_03] I imagine. But yeah, I mean, you have to be more conservative because it's the guy's entire life on the line. Like the rest, I mean, like a big portion of the rest of his life.

[01:09:09] [SPEAKER_00] Yeah. And at that time, I don't, I, someone from Cuba being removed from the country was not a thing. This was in the late 90s. So that wouldn't have been a thing back then. But that was definitely one of them. And then I had a prostitution client whose name happened to be Charity. And she was killed. I had several prostitutes on Tamiami Trail in Miami that were also Calle Ochoa 8th Street. And there was a serial killer that was targeting sex workers back then.

[01:09:38] [SPEAKER_00] And she was one. And she was the sweetest thing. And the fact that her name was Charity and she was a prostitute. And I just always had a soft spot for her. But it's, it's, it's a lot.

[01:09:51] [SPEAKER_03] Yeah. That's like the kind of, you know, you're, you're a defense attorney, you're defending someone, but it's not all murderers. It's people like that who might be on the margins and might be victims of crime themselves down the line.

[01:10:01] [SPEAKER_00] Yeah. Well, I can tell you one thing, just another public service announcement. So I used to work for this law firm in Florida that I was one of the attorneys. It was a virtual, you know, it was a remote job. So I was one of the attorneys that answered the phone that did the screening. So somebody calling and looking for an attorney. And so what would happen a lot is the police contacted me and they want me to come in and talk to them about something.

[01:10:23] [SPEAKER_00] And so as a service to your listeners and to people everywhere, the police only want to talk to you because more than likely when it's something like this, not your child is missing when you need to talk to you. I'm talking about they think that you're responsible for a crime. Well, the only thing they're missing is your confession. And so when they say, well, you want to come down and talk to us, that's all great until you talk to them and then it will be a confession. So always take a lawyer with you. Don't ever talk to the police without an attorney. Always. Always.

[01:10:50] [SPEAKER_00] I would talk to people on the phone that were calling and saying, I got a note on my door from a sheriff, from the sheriff's department and want me to come down and talk to them about this grand theft case that I'm making this up. That somebody's been stealing from my work and I think I might be getting charged. A detective called and wants me to come down and talk because the only way they can clear the file is if they hear my side of the story. Oh. Something like that.

[01:11:16] [SPEAKER_00] So your side of the story, and I use this you, your ubiquitous you, your side of the story is a confession.

[01:11:22] [SPEAKER_03] Yes.

[01:11:23] [SPEAKER_00] So, you know.

[01:11:24] [SPEAKER_03] Good PSA for everyone to know.

[01:11:26] [SPEAKER_00] It's just there's no good that comes of, like, if you're a layperson or an attorney. I would go, if they wanted to talk to me about something, I would bring a lawyer with me. I wouldn't rely on my own skills because I'm not able to handle my own. I can't do my own law work and think at the same time emotionally. So you always need to take someone with you. And false confessions are real. You guys were talking about that today, about what would lead to somebody to false confess. Sleep deprivation is real.

[01:11:55] [SPEAKER_00] Like, people, there are reasons people confess.

[01:11:58] [SPEAKER_03] Yeah. People who might struggle with, you know, cognitive impairment.

[01:12:02] [SPEAKER_00] That's what you were talking about.

[01:12:03] [SPEAKER_03] Yeah. You know, there's it's a real thing. And and if you have an overzealous cop who's pushing it and wants it too much, you can I think that's probably some of the worst times where you can kind of almost be fed information that then sounds really good. But you got it. You were fed it. And that could even happen inadvertently, I think.

[01:12:24] [SPEAKER_00] Well, when I had a newborn, I'll confess to anything if you let me go back to sleep. It's it's it's a tactic for a reason. Like, I will tell you that I murdered whoever. If you'll let me go back to sleep.

[01:12:35] [SPEAKER_03] Yeah. No, it's torture for a reason. This has been so great, Karen. We so appreciate you coming on.

[01:12:41] [SPEAKER_00] Thank you so much for having me.

[01:12:42] [SPEAKER_03] Yeah, it was a delight. I mean, you're just I could listen to you talk for hours about this stuff. Is there anything I didn't ask you about that you wanted to mention? Actually, I think you you emailed us. You mentioned something really interesting about advocacy and how it's perceived.

[01:12:54] [SPEAKER_00] And so my perspective is after being on the bench now, this is my seventh year. Sometimes the advocacy that I see and you were asking me, I think you said advice for new lawyers. Yeah. Like some of the things that go with that. And so one of those is you you can't die on every hill. You really have to like if you have someone that's in custody that you're trying to get out of custody, but they don't have the greatest history for appearing.

[01:13:23] [SPEAKER_00] You know, they haven't had a stellar history that maybe they've had a couple of warrants here or there. So, you know, their attendance in court isn't great. You don't ask for ROR for them. You say, Judge, he's got money for bail. And, you know, we understand that you draw the sting ahead of time instead of making an ROR argument for everybody.

[01:13:41] [SPEAKER_00] So that's something that I have found from the other side of things that you really have to get the lay of the land and realize that you come off disingenuous when you argue for things that you know are just not in the realm of possibility. And I found that I respond to attorneys that have mastered that technique of I know my lane here. I know my clients pluses and minuses.

[01:14:10] [SPEAKER_00] So I know how to advocate for them in the best way. Like you have to adjust your level of outrage for when your outrage is neat. You can't be outraged for everybody. You know, you can't go, well, the police did this wrong to every single person because you know what? They didn't. Most of the time, the police are doing great work. They've done everything right. The government's done everything right. And sometimes you're just going to have to take you have a guilty client who more than likely doesn't have a lot of defenses. And those are called dog cases. And you do the best you can in those scenarios.

[01:14:40] [SPEAKER_00] You know?

[01:14:42] [SPEAKER_03] Yeah. And you hold the government accountable and make sure they did everything right. But in those cases, many times it's just going to be an inevitable conclusion. And you do your best, as you said. I think it's about integrity, right? You don't want a prosecutor who's just like, everybody's guilty and I'm totally unreasonable and I won't listen to anything. And you don't want a defense attorney who's like also. It's like you get the blinders on and it's better to just deal with reality on either side. Yeah.

[01:15:05] [SPEAKER_00] I do have one other anecdote if you want to hear one. Yes. Okay. So this is along those lines of me being on the bench. So I had somebody that was in front of me that was charged with criminal mischief for breaking, for kicking the basement window of a church. So that window that's at foot level when you're walking.

[01:15:25] [SPEAKER_01] Yeah.

[01:15:25] [SPEAKER_00] The person's undomiciled. So when the police encountered him, they gave him what's called a field appearance ticket, an F-A-T, field appearance ticket. So they write John Doe undomiciled because he doesn't have a domicile. And then they write your next court date in this court is on, you know, April 5th at 9 a.m. All right. So now we know the charge. We know the defendant. We know the date. So April 5th comes. We call his name, John Doe.

[01:15:55] [SPEAKER_00] John Doe's not here. And then I look and I see the field appearance tickets attached to the file. And I see, oh, Mr. Doe's undomiciled. Which means he's not here today. And in New York, I can't issue a warrant for this kind of thing. Like it's not, that's not where we go with this. But I can't send him another court date because he's undomiciled. Right. So before they're going to ask, if you're going to ask me for a warrant in this, because they can, it's just not preferred.

[01:16:21] [SPEAKER_00] Why don't we take a look at what the underlying situation is before we send the police out to look for someone who's not domiciled? Right. Because then they have to go look for people and they do know because it's the same general area where people stay that aren't housed at the moment. So it wouldn't probably be the biggest stretch to find this person. But I go, well, let's look at this. So he kicked it. He kicked in a church window. And I look at the value and the value is $75. And then I look at the complaining witnesses statement that says, we do not want to prosecute

[01:16:51] [SPEAKER_00] this person. We are not looking for restitution. We do not want to come to court. And this is all in the paperwork. So I say to the prosecutor, Mr. So-and-so, here's what I'm reading. What are you going to do? We have an undomiciled person who's not in court for a charge that the person who's the alleged victim, the complaining witness doesn't want restitution, doesn't want the person prosecuted. What are you going to do? Now, I've served it up on a platter. What my answer that I'm looking for is.

[01:17:20] [SPEAKER_00] I've served it to you. I know we're not audio, but I'm with an imaginary tray putting in front of you. I expect you to dismiss this case. Judicial economy. We're now going to send a letter, try to get the police to go out and find. Let's say he did have an address. I know the clerks have to send a letter. He's got to get another court date and we'll see if he comes the next time. That's one thing. This guy's not, we can't find him unless the cops go out and actually physically look for him.

[01:17:47] [SPEAKER_00] So if they go out and physically look for him and they bring him here and then it's going to turn into, you don't, the person doesn't want to prosecute, doesn't want restitution. What are we doing here? What, what are you as a new, a baby, new prosecutor? What are you going to do? And I'm asking it in this way and not in an embarrassing way, but in a way I'm teaching. What's the value of your case? And this, this kid, he wasn't getting it. He goes, I, I, I need to talk to, I got to ask my supervisor.

[01:18:16] [SPEAKER_00] Cause he's just afraid he's, he's new and he's afraid to dismiss something. And I get it. And I told him, I said, I promise you, if you dismiss this, you will not get into trouble. But if you feel the need to go talk to somebody, go ahead and do it. But I'm not going to, this, we now have moved into the world of this is how court works. And you need to be able to think on your feet. You are the people. You're the person that has been designated the people in the courtroom.

[01:18:43] [SPEAKER_00] You make the decision and you're going to have to be able to think on your feet and go, can't find the defendant. Person doesn't want the money. Judge, we're going to dismiss the case. Like, it's that simple. This idea of every single case is so important. And it's all of the things I just told you were in his file. He had no idea that the person didn't want to prosecute him. And this isn't like a domestic violence, like I'm not interested in prosecuting my abuser.

[01:19:08] [SPEAKER_00] This is a person, a completely, you know, unrelated person to the defendant is not interested in a court case. And he hadn't looked at it. So it's that kind of stuff, like these practice tips of know your case, know what you're doing. Well said.

[01:19:25] [SPEAKER_03] Karen, you've been a delight. Thank you so much for coming on. I love all these anecdotes. You've had, I mean, this has been some wild stuff. And we'd love to have you back on at some point. Anytime. Can I hear the Cockney now? What? Can I hear your Cockney accent now? Blimey, Governor. No, I'm just kidding. See, I'll do it for you. I'm not going to do it for Kevin. He's probably eavesdropping and grinning in delight.

[01:19:49] [SPEAKER_00] Well, anytime you would like to have me back, I'd love to come on. I love nothing more than talking about all the things that make me who I am.

[01:19:58] [SPEAKER_03] Thank you so much to Karen. We really enjoyed talking with her.

[01:20:02] [SPEAKER_02] Thanks so much for listening to The Murder Sheet. If you have a tip concerning one of the cases we cover, please email us at murdersheet at gmail.com. If you have actionable information about an unsolved crime, please report it to the appropriate authorities.

[01:20:21] [SPEAKER_03] If you're interested in joining our Patreon, that's available at www.patreon.com slash murdersheet. If you want to tip us a bit of money for records requests, you can do so at www.buymeacoffee.com slash murdersheet. We very much appreciate any support.

[01:20:46] [SPEAKER_02] Special thanks to Kevin Tyler Greenlee, who composed the music for The Murder Sheet, and who you can find on the web at kevintg.com.

[01:20:55] [SPEAKER_03] If you're looking to talk with other listeners about a case we've covered, you can join the Murder Sheet discussion group on Facebook. We mostly focus our time on research and reporting, so we're not on social media much. We do try to check our email account, but we ask for patience as we often receive a lot of messages. Thanks again for listening.