From the Archives: Never Underestimate the Value of a Public Defender

Michael: Now I I see him and I'm like, wow, now this this estimate which I initially thought was a bad estimate, this could be a big part of my case to show that one, she's lying because it's not consistent with her story. And and now it now my theory kind of is shifting to whether she's being opportunistic and trying to exaggerate the damage to get something out of my client, coupled in with the fact that she's not letting my investigator take pictures, that she's hiding something. And what it shows was a lot of the lights that are actually on the property you can see them and they're in place.
Davey D: Welcome to Another Not Guilty. I'm David. Public
Nikel: I'm the kill
Davey D: defenders here to share the untold stories of the criminal justice system.
Nikel: Objection! That assumes there's justice in this system, which there ain't. I prefer calling it the American criminal system. Okay.
Davey D: Stories from the American criminal system from the forbidden point of view. The one that the man doesn't want you to know about. Also known as the point of view of the defense. These stories are about the many not guilties we public defenders get on a daily basis in an unjust criminal system with the deck stacked against us. We have another awesome defender as our guest today. What's your name, Mr. Defender? Do you have a name you want to go by? Michael,
Michael: I'm gonna go with Michael.
Davey D: okay.
Nikel: All right, Michael.
Davey D: You know, you kinda look look like a Michael.
Michael: Thank you.
Nikel: Welcome to the show. Good name. Thanks for being here with us. So we've had some interesting segues the last few weeks. But I think maybe we're going to try something new this week. So let's get right to it and ask you. are you a public defender or are a private defense attorney, Michael?
Michael: I am a public defender, n almost nine years now.
Nikel: Wow, nine years.
Davey D: How do you like it?
Michael: It's both the best decision I've ever made and the worst decision I've ever made.
Davey D: Alright, why's that?
Michael: I mean it's it's just, you live with the stress of obviously not the same stress as your clients, but you eat some of each of your clients' stresses and and it just it it carries with you pretty much everywhere you go. but you know, it's it's great. It's a great experience and y you know, when you do those rare instances where you are able to affect change or to change someone's life for the better, you see the value in it.
Davey D: And wh why did you become a public defender?
Michael: My so in in college I did mock trial. I decided to join up. I did in high school for a year. joined up in college and the coach of our team was a a public defender at the time. And so he was a mentor of mine, someone who I think just everyone respected him and and he carried himself so well. that summer after that first year he let me kind of shadow him around his office, helped me or had me write some direct examinations, cross examinations, go with him to lock up. We got in trouble once because he didn't have an interpreter. I speak Spanish and so I interpreted for the defendant for a plea. and he yelled at the attorney and said, You can't do that you need no
Nikel: It's not like a quick informal interview in lockup for pretty much the most important part of the...
Davey D: This is college?
Michael: This was in college, yeah. Yes. To to someone in in a lock up about to take a plea. Yes.
Davey D: Yeah, I find it shocking that like I always do like like a lot a a lot of people don't know what a jury trial is, that I get arrested.
Michael: Yeah. and I did not know at the time how to say jury trial in Spanish. It's not a a a term that I learned growing up speaking Spanish and so I was just kind of winging it and yet I was the one explaining this guy's constitutional rights. But yeah, ever I ever since that it was something I wanted to do when I went into law school. just criminal law was the the class that spoke Most to me it was the I think most interesting subject, where, you know, stories are really what matters, not contracts, not paperwork. It was just about stories and about lives. And so I thought that that was interesting. I knew I wanted to do criminal law. And, you know, versus DA versus defense side, I just ideologically just aligned much more with the defense side of things. And private versus public. I had worked with post undergraduate pre law school, worked at a what I would call a chop shop, a a private defense firm, where they excuse my language, talk a lot of shit about the public defenders, and do much less work and they just basically take advantage of the most vulnerable times in people's lives to get them to pay them. they do the bare minimum and then get them to plea 'cause it's way too costly to go to trial. And so I never wanted to do that. I I think I would have become a DA before I did a a a private defense attorney. wow.
Davey D: Tell us about one of those stories that might have led to a a recent not guilty, is that correct?
Michael: Yeah, fairly recently and I actually I was talking to David about it. I had seen David and hadn't seen him in a while, just kind of going through some of my
Davey D: We were we were catching up on old times.
Michael: Right. And and so I was just telling him about just some of the trials I've had and and there was one trial that I think just had like a lot of good stories. and I actually talked to him, I called my client up yesterday, actually knowing that I wouldn't come up here today and asked for his permission, to see if I could talk about some of the things that him and I had talked about, some of the things that went on during the the the more strategic
Davey D: Did you call on your c on your cell phone? Are you guys like that? Are you guys like buddies or
Michael: Never. No. I
Davey D: It was a
Michael: I called him from a secure line with the block number. but that's just a personal policy of mine. yeah, so I called him, he said for what you've done for me, you can say whatever you want about anything. I could share his name, which I won't.
Davey D: So you got you got carte blanche to t to tell us about this not guilty.
Michael: And if my employer hears this I have gone through the proper channels and have secured my client's consent.
Davey D: Yeah, you hear that employer? Come after us. See what happens.
Nikel: So was this felony misdemeanor trial?
Michael: This was well, it was a misdemeanor trial charged of the felony.
Nikel: Gotcha.
Michael: It was a vandalism. Yes.
Nikel: Standard case.
Michael: It was a vandalism, simple vandalism case, multiple counts, and it also had a prior strike, which made it much more serious, in terms of what his potential punishment could have been. and I think without that strike it would have likely been a misdemeanor.
Nikel: Is that something you commonly experience because someone has a serious or violent felony in their past, then misdemeanor conduct is then exaggerated or they try to just get more time? Is that something that's common in your practice?
Michael: One hundred percent, yes. Pretty much I would say maybe about thirty percent of the cases I handle are legitimate felonies. The other seventy are felonies only because of someone's priority.
Nikel: record. And so let me ask you this. On this case that you had, if it was misdemeanor vandalism, would be what maximum penalty would be a year in county jail, right? And most likely get probation and some term of county jail or some community labor or some service they had to do. What was this guy facing based on his record on this case? Or girl.
Michael: It was a man. it would have been I would say taking all the the different counts into into consideration, it would have been about over eight years, nine years.
Nikel: Wow, eight years and then that would have been in prison.
Michael: Correct, because of the prior serious felony. Yes.
Davey D: the client in custody or out when you during the pretrial phase of the case?
Michael: He was actually out of custody the entire time. Okay. Which makes things easier and makes things more difficult. it makes things easier because you you actually have the time to work up the case and and to prepare for the case. It makes things more difficult because no one ever wants to go back inside. And so any chance of any deal are out the door 'cause they use most most of the time, yeah.
Nikel: Got it.
Michael: But actually in this case, so so when I got the case it was after his arraignment and the note that I got was that the client really wanted to take advantage of a program that the courts offer which was for veterans. he was a a former veteran and so they offer some kind of program where they're monitored by a specific judge, they go through some kind of program and usually the judge is more lenient afterwards, in terms of reducing a felony to a misdemeanor, maybe sealing a or or expunging, sealing, that kind of thing. and and the judge it would have it would have that was what my client wanted before I got the case.
Nikel: And violations are generally treated a little bit more, there's more sympathy when it comes to violations.
Michael: Right. And and I think the the judges understand, you know, the the situation that that they're in. A lot of PTSD, a lot of mental health type of aspects come into play with veterans.
Davey D: So he wanted that when you received the case he wanted that. Did you try for that?
Michael: That was the first thing I said. So we the process though was in in my jurisdiction, with a prior strike, you're not eligible for this program. So this case actually took a while before we even got to a preliminary hearing because it took time to see if he he had to speak to people, he had to get screened by programs to to determine his eligibility, he had to get approved by a prosecutor who deals with this veterans court and so we had to continue it a few months just before checking that out. And we got the green light. We they said we were gonna overlook his prior strike. you're gonna get the veterans court, exactly what your client wanted.
Davey D: So did he have to plead something plead to something to get into Veterans Court? Or send it?
Michael: So yeah, so the problem is which my client said he didn't know, in order to go to veterans court he had to admit he had to basically plead guilty or no contest. essentially take the the blame for for what happened and Right. So he had to do all that, but I think the bigger thing for him was he did not want to admit the blame.
Davey D: Did you had you gone over the case with him at the point where were you like, Hey, I think we got a good defence or you have a defense, but if you want to go the veterans court route you can or like what was did you really insert your view of the case? I imagine you're supposed to, right?
Michael: Yeah, of course. And you know, I think the interesting thing in this case there was a vandalism, he was accused of destroying someone else's property. And for the most part, at least with some of the the allegations, there was no dispute that he actually did cause the damage. So given that, that obviously changes the way you view things. It's not you know, and I didn't do a defense, it's it's a I did it but I had a reason to do it type of thing. And so, you know, that obviously affects you know, you you you have someone who we can't argue didn't commit this, who did commit it, and so it does affect how you value the case. Also, you know, Veterans Court was is one of the better programs that we have in this jurisdiction, especially for protecting someone's record. So I thought it was a good idea. and you know, I obviously I wasn't disappointed in him, but you know, it was it was somewhat disappointing given that I came in thinking this is what our goal was, we got the goal. And
Nikel: And then you just.
Michael: then it's like, no, we have to r kinda restart all over again.
Davey D: So you just tried to dump him in the veterans court.
Michael: It was exactly what he wanted.
Nikel: So you say. So you Okay, so you got backdoored into a trial it seems like. But tell us a little bit about the allegations. What were they accusing him of? What was the context of the crimes that he was
Davey D: Yeah. What's the it? What did he
Michael: So and I'll I'll tell it from the the what I guess who we would call the victim, from from her perspective. she's a homeowner in the hills, kind of, you know, million dollar plus home. and she at five in the morning is woken up to
Davey D: She's the type of person the criminal justice system is designed to protect
Nikel: I
Michael: Exactly.
Nikel: believe like a bolster like she's a dollar homeowner. He's worth like five times a regular witness
Davey D: Can't have her upset. Okay.
Michael: So she wakes up at five in the morning to the sound of a yelling shirtless man who she in the nine one one call identifies very quickly as a black man. a shirtless black man screaming and yelling and damaging some of her property. Essentially, what she is claiming that happened is that he Broke s the the piping, some kind of w where the the outdoor faucet would be. where so broke that, broke lights that are all over her, her garden lights, and then was even kicking and damaging her car that was parked on the driveway outside.
Davey D: What about the lawn mom the gnomes?
Nikel: The trolls, the gnomes, the flamingo, all remain intact my friend.
Michael: I'm not at liberty to discuss that as well.
Nikel: So then what happens? The police respond?
Michael: What happens is she, as many million dollar homeowners are, gets impatient by the the lack of response from the police. So she calls again.
Nikel: thought she was like, she gets out her AK. She rolls out there.
Michael: She it was more so a do you know who I am? Come to my house type of thing. So she was upset they hadn't come yet. She had called a good three minutes before and no one's there yet.
Nikel: three minutes.
Michael: And so she she calls back and asks the operator to stay on the line with her until the police arrive. unfortunately for me and my client, she is very emotional at this time. She is she's crying. And when this scary black man without a shirt ends up knocking on her door, banging on her door and yelling, she now is convinced that he's gonna try to break in.
Davey D: So he's knocking after she's called nine one one the first time.
Michael: Correct. While she's on the line the second time You
Nikel: you hearing this on the 911 tape?
Michael: hear like a a muffled hello, hello. you and you hear this and you also hear her freaking out inside thinking, This guy's about to come in, I don't want him to see me. the operator's telling her, Don't get too close, you don't want him to hear. And then he he leaves, then he comes back to the door, and then he goes around to the backyard area and then that's when the police arrive.
Davey D: That's her version.
Michael: That that's the prosecutor's version. And when she goes out, she sees a lot of her garden lights ripped up, she sees there's this water shooting from from this pipe outdoors.
Nikel: the sprinkler pipe.
Michael: it was actually a weird setup. And she sees her car with a bunch of scratches. and the water has now gone down the driveway and into her garage which is below this area and so there's now water damage to her garage area and has damaged personal property that you know, sentimental things that you keep in a garage.
Nikel: Yeah, lots of stuff. I keep lots of my sentimental stuff in the garage. So hold on real quick. So then the good guys get there, aka the cops,
Michael: They get there.
Nikel: put some felony stop, know, kick down some doors, some fences, and your client is arrested. That scene, right? okay.
Michael: Client's arrested very quickly and he's he's taken in. Very cooperative though, as they mentioned.
Nikel: right now i'm voting guilty based on the evidence that's been presented to me
Davey D: Did you elicit that cooperative fact at trial?
Michael: at the prelim and at trial, I believe.
Davey D: I always feel like as a defense free always do when the client's cooperative He
Nikel: Did he fight you? you resist her?
Davey D: he put his hands behind his back like you said. Okay.
Nikel: Alright. You didn't have to taze him. didn't to He's
Davey D: Is him? Alright. Didn't talk back? Alright.
Nikel: forthcoming, he admitted to everything. So that's the DA's version. Is there any other significant factors we're missing here? Some admissions maybe?
Davey D: So wait there's this it's it's she's just like this is just a random guy that came out of nowhere.
Michael: Doesn't know him at all, yeah.
Davey D: My car is scratched, the nozzle's broken
Nikel: The gnomes may or may not be damaged.
Davey D: Maybe even say who knows.
Michael: Right. And and also a neighbor calls in as well. interestingly the neighbor my client was biracial and and the neighbor sees him as a white man. Yeah. but no the the the quote unquote victim he's definitely a shirtless black man.
Davey D: Wow.
Nikel: That's a pretty distinct, those are two distinct observations man. I don't know about, I haven't seen my fair share of black and white people in my life. How is that?
Michael: Is your claim?
Davey D: Tiger Woods, Michael Jackson, what's going on with
Michael: I cannot disclose that fact either.
Nikel: Okay, so then he's arrested, there's this other 911 call that describes him as someone...
Michael: Right, her ne next door neighbor, a white but shirtless as well, man who's is doing a number on her neighbor.
Davey D: And then the amount of damage that's alleged cause to make it a mis a f misdemeanor fel vandalism versus felony vandalism is a dollar amount.
Michael: Right. So usually about a thousand dollars, give or take is is the is the mark. What
Davey D: They led to the damn.
Nikel: It's $400? Vandalism is still a $400 mark? It
Davey D: Is it four hundred or thought? They changed that recently?
Nikel: wasn't impacted by Prop 46. $950. No, it's $400 still.
Davey D: four hundred bucks still? I don't know. So okay, your client three hundred and ninety hundred and ninety
Michael: Well regardless. I edited that out.
Davey D: dollars worth of damage, misdemeanor, six months max, the most you can do in or your max. Four hundred and one dollars, eight years all of a sudden, right? Yeah.
Michael: Right. It was the the car was about four hundred, five hundred bucks. the the the sentimental property in the garage was there was a table that had a wooden table that was not salvageable that was about five hundred bucks. her work documents table was
Davey D: It's eligible.
Michael: yeah, the water damage was too much. There was there
Davey D: Gnomes are priceless.
Michael: were T shirts from her company that she owned that were not salvageable either. And the lights she had a report
Nikel: You mean her unsold? What do mean? this is the kind of t-shirt you get at company picnic? Like, welcome to like McDonald's Corporation family picnic 2004. Like what kind of t-shirt?
Michael: You're joking that that was essentially what it was.
Nikel: That's why it's kept in the garage.
Davey D: The rags the rags to use to to wash your car, the t shirts that nobody wanted to buy.
Michael: Right. so I think in in total it was a couple thousand dollars she was asking or she was claiming.
Nikel: Got it, okay, so I'm gonna be real with you right now. If I heard this evidence at a trial, even as bleeding hard as I am, I'd be voting guilty. mean, your client was found and arrested at the location.
Michael: Yes.
Davey D: client turned down the the veterans court, so now you gotta do the prelim, right? Yeah. You gotta go to trial. Right. And
Michael: Yes. I
Davey D: so now do you know you're going to trial or do they make an offer that
Michael: Well well so first of the prelim. I had not met her and she she owned me. She was she owned me at the preliminary hearing. She faked her legend. Yes. She she's actually very smart and you know, usually I can you know, with the the cops they're not their IQs aren't aren't
Davey D: Highest
Michael: Yeah. And so with police
Nikel: soft quick trips
Michael: You can and you can you can trick a little bit. You can kind of, you know, do the the old misdirection where you you make think you're going one way and then you kind of you kinda jab and with her, no, she she saw everything I was going for and she she had a good answer for everything. And she so I I I I left the preliminary hearing feeling like she's gonna be a tough witness to crack at the trial. And so that that again affected my opinion and we
Davey D: Yeah.
Michael: He was saying I didn't well he was saying I didn't mean to do it. He clearly did some of it. wa what essentially the defense was he didn't mean to do some of it, some of it didn't happen, and she's exaggerating about other things.
Nikel: wow, like combo.
Michael: Right. A and he swore in in my client that he was out of custody, and he was very good about investigating his own case too. So he you know, he had gone to to her house or he had been around the area and had seen her car and it her car was not damaged is what he claimed. and he had friends who took pictures of her house or her her car at her house and that there were no damage to her car that she's completely lying about that. And
Nikel: What about the police report? Did the police report document this damage? Didn't it document damage? okay.
Michael: It mentioned it. not very thoroughly. it it more so mentioned that she claimed there was damage. It was no real independent investigation of her car. And there were no
Nikel: By independent investigation you mean looked at a car. Then an officer just said, there are the scratches that you claim are there.
Michael: Right.
Nikel: We're not talking about some complex, nuanced, bones type investigation.
Michael: Now her one mistake at the preliminary hearing was Her story in the police report was that she that my client was kicking and hitting the car. And at the preliminary hearing she added that he was now also picking up her trash bins and throwing them onto the car. And so now my my bullshit radar goes up and says, Wow, that that seems like that would cause a little bit of damage. and so now it was really important to to corroborate my clients' assertions that the car was not damaged.
Davey D: So all right.
Nikel: What did you do? You did some investigation on yourself?
Michael: I just let it go to trial and figure it later. No, okay. Yeah. So did some investigation. the PD
Nikel: way.
Michael: so I had an investigator and and he had very clear instructions to not just talk to her about what happened, but to go to the scene and to take pictures of of everything.
Davey D: 'Cause as defense attorneys we do something different from the prosecutor. it's called deductive reasoning. A prosecutor just takes the words of a a victim and says if they said it happened, it must have happened. We say, Well, if they said this happened, then that means this also happened and we always look for that fact.
Nikel: Prohibitive evidence or we're trying to explore a different theory I mean it's what what's what makes us less rigid in our thinking than they are because they're presented with a timeline or a story Initially and we're we're always trying to develop a story Yeah, based on the information that we get right, right?
Michael: So I sent an investigator out there and much to my dismay, I get the investigation report back and it says that the victim would not let him take pictures of her car that was parked on the street and so he did not take any pictures. And so here I am, a little befuddled, thinking, Well, you don't need her permission to take pictures on the street.
Nikel: on the street.
Michael: Yeah. And so
Davey D: There's no right to privacy.
Michael: right. and so and now this is now we're we're talking about months after the incident. Because we had delayed it so long trying to get that veterans court, we're talking now two, three months after. but she did say at the preliminary hearing that as of that date, even though it'd been a few months, she had not gotten her c car fixed. But she did have in the in the in the police report, There was an estimate that she got the next day of her the damage to her car, which was about, you know, close to five hundred bucks.
Nikel: an estimate from where she had actually submitted an estimate.
Michael: She she took her car to a a pretty big autobody chain in the area. And they wrote out a right, this is what it would cost if you were to f
Nikel: And they roll a $500 invoice like this. Fix it. Gotcha.
Michael: and so again that that was something that I think didn't help us that there was some kind of independent person expert, if you will, who also corroborated some damage to the car.
Nikel: got you.
Michael: Well, as any good defense attorney does, I said, Hey, is that veterans court offer still on the table?
Nikel: I'm to
Michael: And and actually by the time we got around to it, getting closer to trial, it it was back on the table. So now I'm you know, before I you know, I took a very much my approach was, hey, this is what you want. If this is what you want, we'll get it. Now it was more a listen dude, we got you know, we kinda got owned at the prelim. You know, she had some good answers, she's gonna be tough to crack. Veterans court's looking really good right now. and so client actually was on board and he said, Yeah, I'll do it. So we again had to go through that entire process again and we had to continue the case a couple more months.
Nikel: while you see if he is now cleared for veterans.
Michael: Well we we we had to again go through the process of getting it approved. of the strike prior so we had to go
Nikel: of a strike prior.
Michael: through that initial process again. and then we learned that even though he was preliminarily approved before, there was some paperwork that they needed in order to to get the green light. And that they needed paperwork of his actual discharge from the military, which client of course didn't have. making matters more complicated, his brother, I believe it was a half-brother, had the same exact name as my client. And that half brother had has to register as a sex offender. So now the prosecutor starts to think, well, one, how do we know your client's not the sex offender? And two How do we know the brother's not the one that has the military background? And so now the prosecutors are thinking he might not be eligible for veterans court and that he might actually it might be the brother who who's he his brother who's eligible but he's trying to you know, kind of jump on that his brother's veteran experience.
Davey D: What does your client say about all that?
Michael: He says that it wa his brother was not the veteran. He was the he's the one that did the military. Yeah, like sort of thought. No, my my client had a tough a tough go after he he left military.
Nikel: So what tell us a little bit about your clients military history how what what what what where is he deployed? old was he?
Michael: I think he around twenty years old he he was he joined, I believe it was the Marine Corps and he did just a basic four year duty. It wa it wasn't a very long and actually I thought I may actually have a PTSD claim 'cause my client was was telling me that he had PTSD. So I'm thinking, this is great, I can use that emotional hook at trial and talk about how he my client's a military man, how as a result of his of his war, you know, his his combat that he's developed PTSD and it led him to a life of drugs and and mental illness. And unfortunately I learned later on that the PTSD is completely unrelated from the military.
Nikel: So it's not service related, PTSD.
Michael: Yes, and that he actually never had combat duty. so there goes my my nice emotional hook.
Davey D: But he still had PTSD though.
Michael: Yes.
Davey D: Alright, so he's he's experienced some type of trauma in his life.
Michael: Right. right. And so after he comes back from the military, my client said he'd he'd never even smoked marijuana up until the point that he was released from the military. but then he comes back, kind of doesn't know what to do with his life and he starts experimenting with drugs and he quickly spirals into a life of of using drugs. methamphenamine was I think his drug of choice and he was an addict. And so he would have you know he he committed a lot of offenses that were drug related. and and even his robbery conviction that prior strike was during the time that he was, you know, doing what he could to have money to use for his addiction. And so he had a a very tough life post military. and my clients around he was around forty two at the time. and he was finally around the time of of this incident feeling like he was getting his life in order, he got a job through he got through the VA, the veterans organization, and he was now for the first time being able to kind of live as a sober man and live where he can actually afford to pay rent and and kinda do you know, his own thing.
Davey D: Cool.
Nikel: then so it's on real quick so he was 42 now at the time of trial so he served what in the first my god
Michael: twenty six or so, twenty four or twenty six is when he was released.
Nikel: so in iraq or afghanistan around that and the
Michael: Time.
Nikel: first are the post nine eleven
Michael: No, he he would have been before then.
Nikel: Okay, got it so 20 before the goal
Davey D: Floor.
Nikel: Do
Michael: He never did.
Nikel: any combat duties so he was between the first Gulf War and the second invasion of Iraq right got it So that kind of that little period got you all right, so then that's why you didn't have any service-related combat right? Got it got it got it. Okay, so he wanted to get back into it. So what did you get offered veterans court again?
Michael: We got offered Veterans Court but when there was the paperwork problem they
Nikel: They withdrew that.
Michael: they withdrew it and so they the DAs were were very much right thinking the time it would take to clear
Nikel: clear up the...
Michael: that issue up is too long. This case is already old because of the first go round of Veterans Court.
Davey D: The people have a speedy ride trial.
Michael: Right. It would it would hurt the community at large if they don't get their trial immediately.
Nikel: the Sixth Amendment does guarantee the people the right to a speedy trial, right? Because they have a right to ensure justice is achieved on all cases for their multi-million dollar home-owning victim who may or may not have gnomes and may or may not have car damage as we're starting to find out here. Okay, so did they give you a determined offer before or they just said there's no offers after?
Michael: so veterans court would have been a probationary offer and so when that was off the table they they still offered a a probation offer included, you know, a modern amount of jail time, about a hundred eighty days. Yeah. but my client was reluctant to do Veterans Court even and now that that wasn't an option and that he wouldn't have as clean of a record after he was done without the veterans court, he decided, No, I'm I'm not I'm not doing that. I'm I'm taking it to trial.
Davey D: And they they wanted a felony still, not in the st they wouldn't reduce it to
Michael: They would not reduce it, correct.
Nikel: Got it. this is a very nice, nice. Your jurisdiction is very lenient though still. It's not like they're that punitive. They still have probation to a probation offer, you know? So, right. So, so is that, does that play into your decision to be like, all right, we'll go, we'll go to trial. I mean, what, what's gonna happen? They're offering them a probation 180 days. What's the worst that can happen?
Davey D: Was your client win willing to pay any money back or a rest like a sort of like a restitution hearing, like to kinda make it go away?
Michael: He was I mean he again part of the the damage we were completely agreeing to. We we said yes, he was responsible for some. and so for that my client was more than more than willing to to pay that.
Nikel: What damage did he actually admit to actually causing? Maybe not criminally responsible, but what did he actually...
Michael: essentially related to that pipe.
Nikel: So he admitted to turning the water on or...
Michael: Right.
Nikel: Is that vandalism by turning the water on itself?
Davey D: Malicious.
Nikel: Or I if you turn the water on, does that cause...
Michael: Right, so so the issue was my client was was high at the time and
Nikel: Gotcha.
Michael: was very thirsty and he went sees this hose outside and so he wants some water. and so he's trying to play around, get some water and something happens and he just th you know, sees water come out of everywhere and now he's worried about fixing this and so he's he's now looking for ways to fix the damage that he's caused. which was an accident, but he he caused some damage and so now he's fr frantically going around the property trying to find a way to fix this pipe that he had broken.
Davey D: So he's high on meth, maybe. Meth?
Michael: Yes and and and not maybe. He he was.
Davey D: And he has so he's suffering from serious methmouth.
Michael: Right.
Nikel: No.
Michael: I think that's the clinical term.
Davey D: I didn't know Methmouth existed 'til like last week. I
Nikel: Yeah, client told you about that.
Davey D: saw the hospital records. is it he was discharged with Methmouth. Hospital records.
Nikel: Shut up that was in Wow, wow. So is that akin to what we other drug users call cotton mouth? it similar to that? mean, is
Davey D: Right. I g I'm assuming it it kinda I mean, that's why
Nikel: it very thirsty, dry mouth?
Michael: Right.
Davey D: Out mouth times a billion. So he's doing the old school front yard host.
Nikel: All-American right
Michael: And so he was willing to take, you know, pay for for that damage you know, to get the the replacement piece and and then also any damage that was a result of that, like the the some of the water damage in the garage. Now obviously we were disputing or questioning the extent of that damage and and how much he was asking for for those sentimental pieces. And some work
Nikel: the wooden table and t-shirts. And some work documents. work documents that you store in your garage. That's where I keep all my essential work documents.
Davey D: The car too.
Nikel: Yeah.
Davey D: So all right, so it this is kind you're leading up the trial, right? Right? Right.
Michael: And and before trial, since the investigator couldn't get the pictures, I decide to go out there myself and so I I go to this to the home, park my car and I see the car there. So I I take pictures from every angle, take pictures also from the street of of her of her property, and I my client was telling the truth. There was there was really no clear damage on the vehicle. There was
Nikel: Wait on, I thought she didn't give you permission to take pictures of a vehicle on the street. How did you do it if she didn't give you permission?
Michael: I I think I have to plead the fifth.
Nikel: I'm just saying
Davey D: How soon before trial did you go to the her house and
Michael: actually it was about three months before. So it was still during this we're still not getting the veteran it's before the veterans court offer, the second one. So it's it's while I'm preparing the case, while we're looking towards going to trial before we bring up that veterans court again. And so I go there and yeah, I f I see very little damage to her car. There there seems to be paint transfer that you would f commonly find living in big cities, but that had nothing to do with him hitting or kicking or throwing trash bins at her car.
Nikel: Was this like a really nice car? this like some Porsche or Ferrari or a Tesla?
Michael: No, it was it was VW Jetta.
Nikel: okay. Jetta, that kind of seems consistent with the description of the victim you were telling me about. The multi-million dollar victim. Lives in the h-
Michael: Well she so she's I I believe she's foreign born, she's Eastern European, I believe. She she had a hint of an accent. She started a a seasonal business like a Halloween company that you know, those kinds of companies that they
Nikel: You know like costumes and so on out
Michael: they sell and experience like a haunted like an elaborate haunted house type of thing.
Nikel: wow.
Michael: And so she
Davey D: He's a gypsy.
Michael: And so I think it was kind of a recent purchase of a home. She's now like finally making it big in the country.
Davey D: all right.
Nikel: Okay, got you.
Michael: Yeah, she's about twenty five years old or so, twenty six.
Nikel: this really fits into the general description.
Davey D: Wait, wait, wait, is that why you're really at our house then that day? You know, like trying to have your camera out, you know?
Michael: Again, I've been advised not to answer that question by my attorney.
Nikel: So, okay, let's blast it. Any other meaningful investigation that you do during this pretrial period?
Michael: No, other than the fact that now I'm you know, I I have a friend who works at an auto body shop, actually the same company but a different location as the one that gave the estimate. So I'm, you know, talking to him about the estimate and he makes it seem like it isn't actually a very bad estimate, that it seems pretty good. it it's kind of moderate, minor damage, kind of usual wear and tear type of stuff. So I I subpoena the individual who did the estimate and he comes to court and I talk to him at court and he basically tells me that yeah, it's it's just basic wear and tear. It's not consistent with kicking, it's not consistent with punching, definitely not consistent with throwing trap and that,
Nikel: Yeah
Michael: you know, even some of the damage is consistent with a user like like there are some key marks that you might do if you're opening the handle and you have you're holding on to key mar
Nikel: so just normal wear and tears, like the minor scratches that come along.
Michael: Right. And so now I I see him and I'm like, wow, now this this estimate which I initially thought was a bad estimate, this could be a big part of my case to show that one, she's lying because it's not consistent with her story a and now it now my theory kind of is shifting to whether she's being opportunistic and trying to exaggerate the damage to get something out of my client. you know coupled in with the fact that she's not letting my investigator take pictures, that she's hiding something. Yeah. And that she's so now my theory's kind of evolving and I'm using their witness essentially as my star witness. Got it. But other than that, I mean there was no real investigation, the neighbor
Nikel: I think that's pretty good. I don't think we've asked this question yet. What is your client? Is he black? Is he white? What is he? so they're
Michael: Half black, half white. They were both right.
Nikel: both right. I was like, I'm like, well, is this guy a white guy? And she's just like, you know, just totally off base. Right. OK, so it's still reasonable.
Michael: So yeah, h half black, half white, he I think in this country with the one drop of of black blood, you're a black man, I think he identifies a lot more as a black male. Gotcha. but but yeah, he's he's mixed. Okay.
Davey D: think that's a good amount of pre trial investigation. You've you visited the crime scene, you've taken pictures, you've subpoenaed and spoke to the estimate damage, so you've you've I mean I think that's that's a adequate
Michael: And I spoke to the neighbor. The neighbor doesn't add that much. but when I go to the house to visit, I look at the neighbor and I'm the the neighbor's house, there is no window which would have given her a good vantage point of of this incident. and she never seemed to suggest to my investigator or in the nine one one call that she was that she ever left her home. So now again, my my BS radar is going off and thinking maybe This neighbor who's a friend of the quote unquote victim. Yes, maybe she's being put up, maybe the neighbor said, Hey, can you call nine one one two to get someone here faster? But the neighbor doesn't seem to w care about being involved in the case, so it's just basically, you know, he said, she said type of thing.
Nikel: So let's go what kind of jurors are you looking? Yeah?
Davey D: Retro.
Michael: You know, I I don't really have a specific I think I want someone who's sympathetic to my client as a veteran, someone who I I didn't have a clear feeling of a specific juror that I wanted. Obviously I wanted I would have preferred to have a more racially diverse jury pool, someone who might kind of Side with my mixed half black client as opposed to the poor young white woman.
Davey D: We was there lot of white people on this jury?
Michael: They're
Nikel: You're a rich young white woman.
Michael: Sorry. Poor and I meant emotionally poor vulnerable.
Nikel: You are like vulture.
Michael: Gotcha. Yes. in my jurisdiction the jury pool is substantially more white than the general population. I think those minorities can't afford to take the day off to come in to court. obviously you also have a a large segment of the population who might be undocumented, so they won't obviously be eligible for jury service. And so, you know, usually I think you find the more affluent who are able to come to jury duty or those who who don't work, maybe they'll come to jury duty.
Nikel: retired so excuse richer excuse wider excuse more older and older i mean in so many ways it's used but because we don't pay for jury service in this country right like we have such a the pool is just skews generally against our defenses or our clients right
Michael: But I even then I I didn't have a clear juror that I was looking for other than someone who's not gonna fall for the emotional argument of them yeah theirs, which is that vulnerable woman who's at home and feels like she's about to be burglarized.
Nikel: Gotcha, so you want you want anybody that's been burglarized in their house? Right.
Michael: Right, you know, someone who is gonna be who's gonna view drug use as a disease and not as a a you know, a a problem with society in terms of a moral
Nikel: character.
Michael: character issue. And so that was actually a big part of my my voidier, my jury selection questioning was dealing with the issues of drugs and and at that time thinking my client's not gonna testify, so that's another good way to get his story out to kind of talk about drug use to start forming their opinion of my client before the evidence comes out.
Davey D: Then were the jurors receptive?
Michael: Yeah, I mean the the judge didn't let me get too much into the drug easy.
Nikel: Yeah, I'd say that seems like a previewing case.
Michael: You know, 'cause I you I did ask those questions of do you believe that, you know, addiction's a disease and, you know, the judge didn't want me to go that far. so I was just able to go to some extent
Nikel: Just plant some seeds. Right. And you kind of see what people's reactions are facially maybe.
Michael: This jury was there was no it wasn't it was an unremarkable jury. It was just s it was there was nothing that really stood out from the actual twelve jurors that we that we got.
Davey D: How was the how was the jury reacting to the prosecutor?
Nikel: well was this the same prosecutor you've been dealing with the whole case or is this specially assigned for trial different?
Michael: It was she got the case about a week before the trial started. Okay.
Nikel: So tell us a little bit about, yeah, a little bit about the jury, how did the jury react to this prosecutor? Or potential prospective jury.
Michael: This prosecutor, she's very nice, but you know, she kinda has tunnel vision as many prosecutors do. They they see their case, they don't really see they don't really consider the other aspects that might n might not corroborate their version of events. And so they they kinda go in there thinking very linear, it's black and white possibly literally. Right that you know My client's the bad guy, she's the good she's the good lady and my client harmed her and so
Davey D: There they're protected.
Michael: Right. And and so there's no gray area. It's just I think you know, she she kind of th the the prosecutor I don't think she really stood out to the jury. I think she was you know, she she was she was fine.
Davey D: Alright, and then the so the trial goes the opening statements or anything of note of that or just get into the evidence.
Michael: So my my main theory going in, my main theme was talking about what really matters in this case isn't what was going on inside the house, what mattered what was going on outside. And and I kinda wanted to disassociate from you know, 'cause she you listen to the nine one one calls, she is one hundred percent believed that this man is about to break in and, you know, possibly do physical harm to her. And I think she was legitimate in that belief. she kind of saw him, saw that he was acting erratically and assumed that he was gonna harm her. And my point was it's not about what she was feeling, it's about what was he thinking, what was, you know, his intent at the time. And so my my opening focused a lot on that and how we had to kind of divorce ourselves from her feelings.
Davey D: All right. And so and then she testified. For
Michael: So she testifies. She's you know, she's very she's a very serious person. She's very matter of fact. So I think that helped me that she wasn't overly emotional. Uhhuh. she was just kind of telling a factual story and on cross examination She was starting to get very you could tell she didn't like me. We we went at it at the preliminary hearing and you know, she's doing the best that she can to kind of deflect all my questions. but during that day, you know, one one good thing, it was a Friday and and one good thing that came of of it was she was telling me that when she went and got the estimate, she just basically dropped the car off and said you know, Auto Body Shop, you tell me what I need to fix. And so I called after that Friday, I called the the the guy who did the estimate at the Auto Body Shop, just kinda getting ready for him to testify. And he's telling me, no, when it's a case that's referred not by an insurance company, but I get just an individual coming to to get an estimate that what they do, their their process, their protocol, is to ask the individual, the the car owner, what's the damage that you want fixed? And so he was very clear in saying she was the one directing him to the damage in the car, whereas she was making it seem like he was the one that was noting all this damage.
Nikel: interesting.
Michael: So I'm starting to kind of use that and thinking, okay, I'm I have her in a lie potentially
Nikel: Got it, so you have the statement from from this auto body shop guy when after testimony
Michael: After so she's still on the stand when we when we recess on Friday. So I call him I think Saturday or Sunday.
Nikel: Do you send like some statement to the prosecutor like, this is this guy's statement? You're just like, this is impeachment.
Michael: Well at this time No, at this time, after I had subpoenaed him, huh, they have now they ordered him to come as their witness. So at this point, I'm I am yeah, this is my estimate. This is their witness. They had provided the initial estimate that had his name on it. They were gonna call him as their witness. So at this point, I'm not turning anything over until I feel like I have.
Nikel: got you.
Michael: And so this weekend was because she was so hostile towards me, I was worried that the pictures I had taken when I went to the scene about three months earlier, she was gonna negate. And she was gonna say, no, that's not it. That's not it, or or it it looks better then than it you know, whatever. So at this point, I'm starting to get worried that. My investigator didn't take pictures. My pictures can't come in 'cause I can't be the witness in my own trial.
Nikel: She technically could be the witness, you know, but it's just, frowned upon.
Michael: And so I call up a buddy of mine and say, Hey, he's another attorney, and I say, Hey, I'm gonna go over to her house. If her car's there, are you willing to drive over, meet me, and take pictures of this car, and then you can testify at trial about it. And
Nikel: Nice.
Michael: if there's one thing any the one dream of any defense attorney, I think, is to be a witness testifying in front of a jury. And so my friend very quickly says, sure, I'll do it. You know, and so he, you know, he drives out. I just park in an adjacent street, just waiting for him to come, and about 45 minutes later, he comes. So he parks his car. I meet him, I kind of tell him what we're gonna do, where the house is, what I'm asking for him to do. And so we're talking for about three, five minutes, and then we walk up to the house. Again, it's in the hills, and As we're walking, I see her get in the car and she's about to take off. And so I'm like, all right, that cool, a cool. Tell my friend, you know, obviously now we're not gonna be able to take pictures 'cause she's about to leave. And now my focus is I don't want her to see me. I don't want to, you know, kinda creep her out that I'm
Nikel: She's like, the defense attorney on Friday is here my house.
Michael: Right. And so now I'm like, let's walk in a different direction. and so my client my friend goes in one direction, and then she stops her car and she sees me and she just stops her car and then starts to yell at me. While in the car? In the car. She starts to yell at me talking about, you know, how can I do this to her? I'm harassing her. so I you know, I walk up to her car, I'm telling her, you know, I you know just here to take pictures. You know, you wouldn't let my investigator take pictures. I just want her to take pictures, you know, for the testimony. she gets out of her car and she just starts yelling at me about how I'm doing something unproper. how she and then starts to blame me and you know for for letting this case get to this point. And and talking about how my client should have taken a deal and you should have made them take a deal. But she's just going off, just yelling, she's getting emotional. And I'm just very much like, I'm sorry, I'm just here to take pictures. I just wanted to see the c Right. Meanwhile my friend is nowhere to be seen. He like was not I don't think ever seen by her. He's just in a in a different street, like lower down on the hill, just waiting for her to leave. And so now I'm like, shit, I don't want the D and now I have to tell the DA what's going on. Like So I Right.
Davey D: Pictures, you need pictures then, right?
Michael: No pictures. Okay. So we're stuck in that same predicament I was in where I might be the witness in the in the case and no pictures, but now I have a conflict. So I tell the DA, I call her that night, I think I text her saying, can you please call me? I think we have a problem. and so I explain to her what happened and you know, she's cool, she's you know, she's fine, but it's something that we're gonna have to talk to the judge about.
Davey D: So that's that was Saturday you went down there, right?
Michael: That was sa that that was Sunday. Sunday.
Nikel: So the next day you're back in.
Michael: I'm back in court the next day. you know, I go up, I tell the judge, something we have to put on the record, you know. I, you know, told him the whole thing you know about me having pictures but I wanted to get someone else and you know, the judge he was like, I'm I'm very disappointed that it had to come to this but you know, he's not doing anything. I didn't do anything wrong. I never was on her property. and so I'm I'm just saying I don't want it to come out during the testimony. I don't want the jury to feel like I'm bullying, harassing this, you know, poor twenty six year old lady.
Davey D: Did you cross on Friday or is it just direct?
Michael: I started to cross on Friday. Okay. So I'm middle of my cross examination during the weekend.
Nikel: And let's just be perfectly clear if you had gotten like if her car was parked in her driveway and you like were walking up to her door where the public is generally invited to to like like a FedEx or a UPS or a delivery guy would be Invited to ring the doorbell or knock on the door to deliver something you still wouldn't be doing anything Wrong right now unless you had like jumped a fence or she had explicitly told you you're not allowed to come onto my property
Michael: Right. I I just wanted to avoid that more gray area. And so I wasn't willing to cross that line.
Nikel: I mean you didn't I mean even if you had I right it was still no violation at this right, okay
Michael: So, you know, now at this point I'm stuck with my pictures. That she may or may not that she may or may not. So I'm trying to, you know, I'm limiting the pictures of mine that I'm using. You know, I think I have enough from her testimony. She talks about how she had still to that day never gotten her car fixed. She, you know, she's making her damage seem worse. You know, there's all these lights that were damaged, her security light, you know, just upping the damage to everything. was consistent still on the stand about my client throwing trash bins and how it damaged the car, that she took her car to a friend and a friend kind of who isn't an expert, doesn't do auto body work, how he kind of made the car look more presentable so it he kind of fixed the damage without it really being fixed. And that was kind of her explaining I think the lack of damage that I saw on the car. And so I'm going through my, you know direct test or my cross examination and I wanna bring up just her the vantage point that she was observing all this from. So I I have a picture that I had took three months earlier of her window and the area where the pipe was, which is where she would have first seen my client. And so I cross examine her, I'm like, and then this is your house, isn't it? and she's like, right in front of the jury. She's like, yeah you would know because you were there yesterday. So I'm like, damn it. So I'm like, I don't know how to deal with it. So I I I I don't deal with it. I just pretend that it wasn't said and I just keep moving on with my questions. wow. and now I'm just like I don't I feel like I would look like the bad guy in this situation. I didn't want to explain myself. I couldn't really explain myself as a attorney t asking questions. And so I just carry on with my cross examination. and again there's not much I can do with her other than I'm now setting up
Davey D: You're you're playing her up. You get her to embellish
Michael: Yes, I'm getting her to embellish. I'm I'm getting her frustrated so I'm I'm hurting her likability with the jury 'cause now, you know, she's upset and she's not as sympathetic as she was on direct testimony.
Davey D: Why are you making her frustrated?
Michael: I'm asking her a lot of detailed questions about her her vantage point here, her vantage point there, what she sees here, what she sees here, and just asking a lot of stuff. Now, the other interesting thing that happened when she testified is that Friday, right before that weekend that I went to her house, she tells the DA, this might be of interest to you. my home is secured with ring. The software that's the it's you you install it where you would do your doorbell and it automatically records any time someone is at your door it's motion censored
Nikel: It's It's motion.
Michael: and it records it and that she has four video files of my client at her doorbell at her door at her front door. And of course now I'm you know, this was Friday, I'm like, why am I just getting this months we're talking about nine, eight, nine months after the actual incident at this point. Why am I just getting this on the day of trial? Why didn't she mention this earlier? But I think that this these four videos were actually a big part of why I was able to win the case. Okay.
Davey D: So the prosecutor gives you four videos. Four
Michael: Four videos.
Nikel: Mid-ultra.
Michael: Right right after opening statements
Nikel: She gives you these four.
Michael: right. Right before this witness comes to testify. Did you So yeah, so I I I get time to look at the evidence. I look at the evidence and I think, you know, it's it's helpful, but you know, just to protect myself, this is a judge who is known for making sure things go to trial and making sure things go to trial as soon as possible.
Nikel: one.
Michael: So I knew that I was gonna if I had asked for a mistrial, this judge was gonna deny it. and so at this point I I send subpoenas to ring, I make calls, I'm looking for evidence that I might be able to get and and justify why I might need a continuance at this time. so I I ask for a mistrial and the one big thing I have to hang my hat on is when you when she downloaded these files onto her phone, it saves them. and they actually have a name of the file and I actually have a picture I did a demonstrative of it and the files were were in sequence. she turned over a number and it was image eight two four five four six four eight four nine. And there's a missing file, it seems, of 47. Yeah. And so now I'm like, well I wanna see what this forty seven is. I wanna see what this file in the middle of those other four, what this has to show. And I'm able to match the files that she did turn over to parts of the nine one one call that she when she was on the line. And there was a big part which I thought was a an important part where my client's at the door where he claims he's asking for help. and that was not on any of the four files that she had. Uhhuh. And so my theory was this was the most helpful file for us, she didn't turn over. And so I'm asking for a continuance to try to get this from Ring. you know, and she looks up in her phone to see if she can still get it, but because it's now been about nine months, it's no longer on their server, and so I want to subpoena this information. But the judge denies the motion of and
Nikel: Of course he does.
Michael: so
Davey D: Does he make a record to say why?
Michael: yeah, he and this is the kind of judge he actually likes to do written r Motion or written responses or or or ruling, sorry. and so yeah, he he he gave us something in writing saying that it wasn't necessary and blah blah blah.
Nikel: This tends to help the defense, so it is not necessary for continuance. That's the justification.
Michael: But the the thing about the video that was important was it shows my client knocking on the door and just waiting for her to come to the door. So it doesn't look like he's trying to break trying to break in. And it it lines up really well with my theory of the case, which was he goes there, he he goes to the house, he's he's got this methmouth and he breaks something and so he's frantically going around her property, maybe maybe damaging other property, who knows? But he's trying to find a way to fix it. When that doesn't work, it's five in the morning or th or maybe even earlier. He now has to resort to to knocking on the door to notify the owner of of his mistake. his accident. And so we The video actually corroborates that. And the other thing the video shows is the video shows the police talking to the the the homeowner, the victim, after they've already arrested my client. And what it shows was a lot of the lights that are actually on the property, you can see them and they're in place. And she had already testified to the fact that like he pretty much damaged a lot of her lights. So when I see this, I'm thinking, okay, I might have another area where I can impeach her. So I have her actually draw where all her lights are and to draw which ones were actually damaged. And she, not seeing what I was doing, claimed that all the the lights that you would have seen in that video were damaged. And that they were all out, that he had taken them and ripped them up from the ground and whatnot. And you could see from the video that they were functioning lights at that time.
Nikel: car.
Davey D: D you so you you approached you had her you had like a picture of the yard and you had her like put circles around
Michael: No, I I gave her a blank piece of paper basically and had her draw her front yard and had her draw where the where the lights were and and to draw which of those lights were damaged. And
Davey D: And
Michael: but I didn't want to give her a picture of if I had shown her a picture of the yard, she would have seen that they were light and she would have shifted her testimony. So I wanted to kinda give her a blank
Nikel: Blacks nice, that's a straight
Michael: Right there. I did not impeach her with it, no. Okay. I just let her say it you know, she's she's a smart person, so I didn't want her to to come up with a good response for why it was like redirect right, or she would have said that it was that she didn't notice how damaged it was until after and they were functioning, but they were kind of I didn't know what she would say, so I I just kind of left it there. So that so now coupled with the fact that She didn't want me. And at this point now, now that I see this missing file, now that you know I have the fact that she wouldn't let my investigator take pictures, which I question her about and she admits. and then now I'm I'm saying you wouldn't let me take pictures. You know, so now my my theory is very much she is hiding something from us and she doesn't want us to know. And so my theory is now a joint theory, which is He goes there, gets the water, it was an accident. and everything else that happens is either part of that accident and him trying to fix it and not accidentally or not him having the state of mind to to destroy the property and a mix of that and she's exaggerating a lot of things and lying about certain things and hiding things from us. So it's kind of this big that's That's generally my theory. It's a big storm. Right. And and kind of the interesting issue in this case, and I think this will be something Nikil will will be interested in, is the mental state required for vandalism.
Nikel: is malicious.
Michael: Because it's it's malicious but it's not specific. Right.
Nikel: 10.
Michael: It's a general intent and so they're talking about the accident not really being a defense to this, because it's a general intent. crime and and I think doing the research it is it is a general intent crime that requires a specific mental state. See yeah. And so there's kind of these two different two different buzzwords and the accident instruction does not come in it is allowed to come in with a specif when there is a specific mental state or specific intent. Yeah. And so I'm able to get the accident instruction which says that the jury can consider whether this was an accident determining culpability. I'm able to get that instruction in even though it's a general intent crime.
Nikel: which is unusual right because i i i just i have some very similar trial recently and i got accident and i i didn't get it not guilty and it was
Michael: Only the best of do Nikhil.
Nikel: That's true. But it was probably the largest issue in contention, legal issue in contention, was the DA's position or the prosecutor's position was, you know, this is not a specific intent crime. The defendant does not have to intend to have caused the damage and vandalism. He just has to have intended to commit the act. But he has to either intend to deface. Right. That has to be I mean, the circumstances have to be suggesting that he's intending. like usually it doesn't come into play. Like when you take a baseball that to someone's windshield, we're not talking about accident because it's usually not an accident unless maybe you're a kid and you accidentally swing and you break something, right? Right. So usually our clients, or if they're tagging on a wall, it's never usually an accident that I accidentally spray painted this wall or spray painted this municipal sign or something. it's very interesting that you'll able to get that.
Michael: Right. But and then the other thing was, you know, this you know, wouldn't have come in. I I played it up in in the jury selection, but this issue of was my client under the influence, did he appear to be under the influence, because that is more so to specific intent, that information wouldn't be coming in. However, the judge and I think the judge kinda leans he's defense friendly, he allowed Testimony as to my client's intoxication not for the intoxication instruction, but how the intoxication could have led to the accident. But just
Nikel: Wow.
Michael: if it was argued that it made the accident more likely.
Nikel: That's a really nuanced ruling and that's really defense friendly.
Michael: Right. So, you know, I finish with her, finish cross examining her, then they put up the the the person who did the estimate, and person who did the estimate said everything that we had discussed on the phone. Right.
Nikel: essentially your witness but in just reaction to that I mean she had no idea right
Michael: Sure, but I don't know, I mean th if I were to say there was a a a mis cue from the DA, I think that was the big one because one, it allowed me to cross cross examine the witness as opposed to direct examine the witness. I understand. So so basically I'm able to put the words in his mouth and kinda get the answers that I know I want and that I know he would probably give me 'cause I've talked to him before. And because, you know, I when I talked to him, he was another young guy, Latino guy. you know, I'm I'm I'm Latino as well. So I kinda kinda bond with him and so
Davey D: Tino.
Nikel: Exactly. We know. know. audience knows by the way he's a Tentino.
Michael: Right.
Nikel: They don't mean it, Dave. We're not Latinos.
Davey D: we do have tamales to eat afterwards. Really excited, but
Michael: Right. But you know, there's always a concern that a witness that you talk to is gonna kinda change what they said to you off the record when they go on and testify. And so, you know, when we talk, you know, I'm I'm taking him on cross, I'm I'm comfortable with him, and he says everything I want, which is he he says that the damage is not consistent with my client hitting, kicking, throwing garbage cans at the at the car. You know, I show him pictures of the scratches and he said, Yeah, these these are kind of consistent with just wear and tear, paint transfer not hitting So he's
Davey D: like giving expert testimony.
Michael: Right.
Davey D: And did I he's sort of a p he's a percipient witness to what the the victim said. R he's also an expert. Did the prosecutor try to for two out his opinion or was that an issue in the trial? 'Cause I feel like a
Michael: It was never brought up, no.
Davey D: th you think a good prosecutor would at least tried, right?
Michael: I mean sure, I think.
Nikel: Maybe they were bringing him in as their ex.
Michael: Right. Right. And so and I think they were. They they kind of looked at it as this is how they're gonna corroborate that her claim of damage was legitimate because he did an estimate and he found damage. but it was the damage that she wanted him to point out or that she pointed out to him, and it was the damage that he said was very surface level wear and tear type damage, not consistent with her account. So now I think I have my case made. I have, you know, you know, she's not really able to see how this whole thing started. She just sees damage to the car. she's exaggerating. I don't really need my client to testify. I think I have enough at the time. I showed that she's a liar, you can't necessarily trust her. You get in the fact that she was terrified at the time, she thinks he's about to break in. So she's not really like looking out there to see what he's doing. She's kind of hiding and she's also jumping to conclusions thinking the worst of him and his motivations. And so I think I have enough. I don't think I need my client to testify. And so I tell him that. I say, Hey, I think we're good. I think we're winning. You know, you have that prior strike. They can get into it if you testify. I don't think you should testify.
Davey D: So it's your the prosecutor just put up the two witnesses. Victim
Michael: Right. They may have put up an officer. I don't think they did. If if they did it was it was very minimal.
Nikel: case.
Michael: Right.
Davey D: So it's your case now. Right. And re other than maybe your client, any anybody else you're gonna put?
Michael: put up no, I mean I got the guy, the the autobody guy who I would have put up, but they did it for me. So no, I'm I'm ready to go. I'm ready to argue my case.
Davey D: And your but your client now, you're talking to him about testifying.
Michael: Right. What's he I'm telling him, hey, look, like at this point they don't know that much about you. We planted the seed about
Davey D: We're winning.
Michael: right, we planted a seed about the addiction, so they have that already. You know. I don't think we need to testify. but of course he thinks that he wants to put his story out there. He wants to he wants to tell everyone what was going on. And so we start talking about, you know, we're gonna go into his addiction. And go into basically his post military addiction and and the judge lets us go into all of it. Wow. Right. So we're
Nikel: That's a lot of leeway.
Michael: we're talking about his life, how he you know, his drug of choice and then, you know, so we prep for that.
Nikel: Talk a little bit about MathMouth.
Davey D: How he likes to like walk up the lawns and fix everything and around and
Michael: And my client
Nikel: Yeah. Hey guys. Yeah. Will the lights look better like this?
Michael: And he tells them that, you know, he he basically tells the jury around this time he was not used to having success. He was it was a new thing for him to be independent, to be able to kind of pay for things himself, to kind of he he was not used to that level of of of independence and of of actually living on his own in a productive manner and that that terrified him and that he went back to the areas where he would use and he's driving around there, he finds a a a a dealer that he had, you know, used before and how they go, they get the product, they go somewhere else to get something to dr you know, something to they purchase food or drinks somewhere and that they're gonna meet up somewhere. And they're gonna meet up at the point where they would normally use together. And my client while he's about to meet up with him is using and can't find the meeting place and so he's wandering around the area looking for his friend. And I and I don't remember the friend's name, but it's something like Smoky or some some name that you know only a drug dealer would have. Gotcha. And of course
Nikel: Yeah.
Michael: You know, I get up, you know, he tells his sob story, he comes off very credible and you know, he you know, he he tells what happens and it's corroborated by this video. His entire version of what happened is shown in this video. It's shown in the nine one one call 'cause you can hear him muffled say, Hello, hello, help even. He's asking for help. nine
Davey D: Well she's a
Michael: one one. While she's on nine one one he's knocking on the door, you can hear something like help, help me.
Nikel: So you get him to lay the foundation for that and identify his voice.
Michael: Right. And so, you know, after that I'm you know, you know, and we we talk about his prior strike, we talk about, you know, the situation that he was in.
Nikel: So, real quick, so then, okay, so you complete, you get a story out there. Now, I'm really always, I'm always intrigued by DA's cross-examination of the defendant because they so rarely get an opportunity, so I'm always like, what are they gonna ask?
Davey D: I mean you had such a awesome cross of the vic the complaining witness. How is this DA's cross of the defendant?
Michael: It it didn't get that much. It it was basically just reiterating Repeating
Nikel: repeating everything and
Michael: what he said and and hoping that he would kinda change his story, which he didn't. you know, I think the best thing she had was wait, you went to the store to get something to drink. If you got something to drink, why are you still thirsty looking Right.
Nikel: still thirst like meth's hell of a drug
Michael: You know, so there there's not much there, you know, talking about, you know the friend and the meeting point, just like trying to make it sound like he's doesn't know what he's talking about. But, you know, client does very well and, you know, he legitimately was telling the truth.
Nikel: over on so she did any other evidence on your side come up
Michael: Nothing else came up, you know, the videos were obviously shown, I think, through the DA.
Nikel: any read any
Michael: No reopening. No, no no rebuttal case of any
Nikel: So then you it's in the argument, right?
Michael: Closing argument. Closing argument. And and you know, my argument again is very because we didn't have that issue with his memory, you know, we we just testified about everything he remembered. So the DA never asked him about things he didn't remember or or, you know, so as far as we knew, he had a good memory, the timeline fit. So my my story with the accident instruction was very clear. That was an accident. He didn't have that required malice that he needed for for evandalism. and so that's pretty much for everything and certain other things there were no pictures of it. You know, she she was very good about documenting things, but there were never any pictures of the damage in the garage, never pictures of damage to the lights. And so Wait the Victoria She was. Like what? You know, she she would, you know I mean, it looked like she was you know, she had the video, she, you know, did the estimate, she you know, she just comes off as someone who is somewhat meticulous. Okay. And you know, she didn't ha you know, she would email the officers, you know, repeatedly. I think she even threw in there that like even her neighbors had damage to their cars and were like, Where did that come from? So it's the classic classic money grab trying to like, you know, get everyone else involved. And so the lack of pictures, you know, we would harp on. And you know, we harped on the fact that she was hiding something. Like she had no reason to prevent us from taking pictures. Where's this missing file that we you know we know is missing
Nikel: IMG847 where is it? Do we ever get it IMG847?
Michael: Right. Where is that never got it? Never got it. And speaking to the ring people, I think they wouldn't have saved it that long. Got it. So I don't think it would have come up anyway, even if we had more time. Right.
Nikel: So by her failing to save it, it's just...
Michael: Well, she saved it. Well, at one point she downloaded it. We know that.
Nikel: What happened to it?
Michael: We don't know. I mean, something was downloaded in that order. Because
Nikel: God.
Michael: I my understanding looking at the information and and looking at from my own iPhone I think the image wa the the the file name was created not by ring but created by the iPhone. Downloaded
Nikel: what you do.
Michael: it when she downloaded it it was the iPhone that did the number. So my theory is that she actually downloaded it but didn't provide it, either deleted it or didn't provide it because it wouldn't help her case.
Nikel: mad shay chai she didn't she didn't know michael was on the case check it out checking the sequence is of the file numbers
Michael: And you know, the DA, she's still in her tunnel vision, she's talking, you know, her her
Davey D: A argument and
Nikel: She's like building up like look how scared this person was this person could have broken to their house, you know, it's dangerous
Michael: Right.
Davey D: I always hear I always hear you've heard from two credible witnesses who came in here and told you this and then this person came here and told you that and then that's their clothes.
Michael: Right. And of course my client's a drug dealer or a drug user, so he's he's not to be taken seriously. Yeah, she focuses a lot on what could have happened, how poor lady she's you know.
Nikel: Fear mong-
Michael: Right. And so that played very well with my overall theory or theme of the case, which is it doesn't matter what was going on inside, what matters what was going outside the house. You know This is this is like we know she was scared, we know she thought that this guy was doing this But that's not what matters here. What matters is what he was doing and why he was doing it. Right.
Davey D: I mean this city's all about appearances. You know, so the outside that matters.
Michael: Right. So I you know, the jury they get the case and you know, they they don't deliberate very long.
Nikel: What's that standard? Very long. Today? Two, wow, a couple hours? Real
Michael: No more than yeah, a couple hours. Like less than three hours.
Nikel: quick.
Michael: Yeah. And you know, we and usually, you know, you there's just really no way to ever judge anything but I think usually when you're feeling good about your case, a quick verdict you kind of feel good about. Yeah. If you feel confident that you did well, you get a quick verdict, you think I felt like I was winning. There's no way they could convict him in this short amount of time. So I I came in pretty confident. you know, and I'm telling my client, you know, the things are looking pretty good. But then the jury comes out and they're very s you know they're very serious when they come out. And that's usually a bad thing for the defense. Right.
Nikel: Totally, jokes.
Michael: No jokes, no laughing and you're like, 'Cause you know, no one likes to convict and so they're very serious and you know, when they feel that someone's should be acquitted and they're able to do it, they kinda have a you know, they're they feel good about it. And so I tell my client when they're coming in, I'm like, All right man, they don't look happy, just be be ready, it could go it could go the other way. and no, they they go up there and I think the first there were multiple counts for different damages. but the first one was the one that would kind of tell me the rest of them. I don't remember exactly what it was, but I felt if I was able to win the first one, I'd probably win the rest. And the first one came back as not guilty and, you know, patted my client on the back and, you know, he was
Nikel: I feel like we should have sound effects every time someone says that on show. Not guilty, like pew pew.
Michael: I think you just found the
Nikel: Yeah, I did. did. Not guilty like hip hop air horn. No guilty. Yeah, it's going to make sure we get it. We got to hype it up. Yeah, it's so rare. mean, not for a guest like Michael, but for some of the rest of us. We haven't heard those words. Last time I heard those words are just that array man. That's the only time I hear them.
Michael: Yeah, so but the other kind of interesting footnote is the day after the the verdict, the DA tells me that this victim is thinking of filing a complaint against me with the state bar for going over to her house and and harassing her. And the DA, you know, she's again I I really like her. She she tells me at least that she told the the the victim that I didn't do anything wrong and you know, I have a good reputation, blah blah blah, and that she was seemingly trying to talk her out of doing so, but but yeah.
Nikel: And now I'm currently in disciplinary proceedings.
Michael: And now I'm on probation, but you know, with good behavior.
Davey D: And you talk to the jurors afterwards, right?
Michael: I don't think I did actually. No. Not on this
Davey D: It's a different trial.
Michael: Yeah, it was it was the the next trial I did was with the same DA. and that jury I did speak to and they they said
Davey D: Nope, cut you off right there folks if you wanna find out what the jury said in the next
Nikel: What was the result of Michael's second trial with the same DA? Not guilty. Next time with Michael Bartu.
Davey D: Let's go see your client was very grateful then.
Michael: He was very grateful. He said he'd keep in touch. He made a promise that he would still pay for her damage that he felt he was responsible for. dude. I have not spoken to my client since then other than yesterday to get his permission to talk about his case. I I did not ask him if he's paid. I would not expect that he did though. because again he was not ordered to do so by the court. and I don't believe there was ever any civil case that resulted from this.
Nikel: Civil case against him. There's definitely a civil case pending against
Michael: Right, other than yeah, other than the one I'm currently under. Thanks. Good job. Yeah. Thank you. Anytime.
Nikel: joining us yeah well done
Davey D: Well defender. Thank for being a guest.
Michael: I guess I have to come back I have to win some more cases, I know. To come out here, I think.
Nikel: That's motivation. feel like all the defenders and private defense attorneys that we know are now working a little extra harder because they're just excited to be guests on our show.
Michael: You know, justice is one thing, but being able to self promote and to talk to you two.
Davey D: Our egos matter.
Michael: Yeah.
Nikel: Being able to come on here and be braggadocious, I feel, is part of the fun. All right, thanks a lot for coming here.
Michael: Thanks for having me.