From the Crypt: A Mistaken Identity

James: This is a situation where we have a person charged with a crime and we have someone else coming into court admitting to it and the prosecution's asking to exclude that evidence. Sometimes you have those moments where You're like, I might be the only person in the world who is watching out for this person's interest. We know the system is supposed to be constitutionally presumed innocent, but we know that's pretty far from the truth, especially once you're down in the trenches and you're actually dealing with it. Once that kind of freight train of a criminal prosecution goes forward, there's not much that's gonna be stopping it against your client except for, twelve people from the communities sent voting not guilty at the end.
David: Welcome to Another Not Guilty. I'm David.
Nikhil: I'm the kill.
David: We're public defenders here to share the untold stories of the criminal justice system.
Nikhil: Objection! That assumes there's justice in the system, which there ain't. I prefer calling it the American criminal system.
David: Okay, 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.
Nikhil: And here we are. We have James Wilson with us this week to talk about his most recent
David: Defense Attorney of the Week, James Wilson.
James: Thank you for having me guys.
David: Well it's a pleasure to have you here. you I I read a little bit about your you're not guilty on Facebook a little bit. Sounded like a pretty tough case. Can you tell us a little bit about your your case?
James: Absolutely. So about a little less than a year ago I was doing an arraignment and came across a case that as soon as I well, I I saw that the charge was in decent exposure, which and the state requires lifetime sex registration. So as soon as you see something like that as an arraignment attorney, you want to run the other way and let someone else do the arraignment. And it's one of those things when it comes across the courtroom it there's a certain tenor in the courtroom that day of cases. It's not that often we get arreignment on cases that are that serious and the type of cases that I deal with frequently. so I took I talked to the client took him into an interview room and I fre
David: Well, just to say that, 'cause you're you're in a misdemeanor court, right? Right. So misdemeanors obviously aren't as serious as felonies, but when you come across that specific charge, then it is serious 'cause of the lifetime consequence of being a sex registrate.
James: Exactly. it's I would say lifetime registration is the probably the most serious consequence we deal with in misdemeanors. I think those types of charges are probably only second to vehicular manslaughter cases that we get. Those type of cases that come through and there's even pre warning I've heard the day before that there's that type of case is gonna be arraigned. And you just get that feeling that this is gonna be a very serious case. Most people are gonna assume I that we know the system is supposed to be constitutionally presumed innocent, but we know that's pretty far from the truth, especially once you're down in the trenches and you're actually dealing with it. So if you get a case that's a sex p potential sex registration case or something has to deal with a sex offense, it pretty much is assumed that someone sitting in the courtroom that day is some slimy bottom of the barrel person, that that has done something awful to someone in the community.
David: So alright, so you're saying that the system is against sex crimes, the there's prosecution, the people, our the public, the jurors, there there's only one person on this guy's side. One person, and that's you.
James: Pretty much. that's certainly what it feels like most of the time. And you have to and I have to keep that in the back of my mind too, because sometimes it's as you're going through a case like this and preparing something, sometimes you have those moments where you're like, I might be the only person in the world who is watching out for this person's interest. and it's not easy when you mention something like that during jury selection and you just see everybody's eyes roll into the back of their head and they their eyes just lock onto your client. And you know what they're thinking at that moment. and so that's something you're thinking the second you arraign someone is whenever I arraign someone, I f have this moment where I fast forward to the trial and I'm like, what is this gonna be like in trial? When the client's telling you their story and you're framing already what the defense is, what kind of investigation you're gonna do. And that's what I was thinking about as soon as I got this case and the reason why I kept it. indecent exposure case, and there was also two into counts of indecent exposure. against two different victims on the same date and then an unrelated charge of battery against a third person that ended up overlapping with itself.
David: So what what's can you give us a little bit of facts according to the police report, what was alleged?
James: Right, basically. So the police report read that a vehicle, a Camaro, was driving down a particular residential neighborhood and the two alleged victims spotted two African American gentlemen in the vehicle. one of them, the person in the passenger side of the vehicle, which ended up being a very important fact, started getting out of the car and kinda yelling after the girls, generally sexually charged or at least just trying to hit on them. that was going to be a winning strategy, but that's what the guy did. So then whoever the passenger was, and from the police report it wasn't clear who the passenger was, got back into the car and the car speeds off and makes a turn where the two complaining witnesses are no longer able to see the car. And then basically they're d going about their business on the street, they turn around, and the same person from the passenger side of the car is is standing somewhere on the street in this residential neighborhood. And the guy drops his pants, puts his hands behind the back of his head, and basically does this little belly dance wiggling and has his penis exposed. and the two girls are supposedly able to see that.
Nikhil: what what's the kind of distance that this is from w if you can you glean that from the police report?
James: From the police report, not so much. We eventually did go to trial in this case, of course, since they're not guilty, and it was anywhere from thirty to seventy five feet that the girls were away from. one of them said thirty, one said seventy five.
Nikhil: Got so your client is facing lifetime sex registration because someone got out of a car and waved their their dick around seventy five feet away.
David: Was it on a Saturday night, was it Friday night or was it Tuesday night? 'cause I think it's more offensive it's Tuesday night. But if it's Saturday
Nikhil: Yeah, yeah.
David: there should be a dealt in defense to that. It's
James: I wish I could say it was a Saturday or a night. I actually forgot, I think it was a Tuesday after it was definitely in the afternoon about one o'clock. In the bright sunshine of some
Nikhil: Got it, got it.
James: You can't really have, worse facts of course you can imagine how many families are in the area and people living around there and nobody wants to hear that an alleged sex crime occurred in their neighborhood.
Nikhil: So so you meet the client, you see this this nefarious or dark three fourteen come across your your plate at the Raymond Court. What what happens next?
James: Exactly. So at that point it realized we realized that it was going to be mistake and identification type of situation. But not just this was a very unique mistake and identification. In this particular case, since there was only a driver and a passenger in this Camaro, there are only two possible people in the world who could have exposed themselves. the Camaro, not surprisingly, in the documents we proved at trial from the official registration information was that the car was registered and sold to my client. And I think most people tend to drive their own cars, especially if you're the type of person who has a Camaro. And as the witnesses talked about it was a kind of a souped up Camaro. that's a particular type of person who's going to be driving a kind of a sports car like that. The girls were adamant, the alleged victims were adamant that it was the passenger who exposed himself. but how it got a little bit more complicated is that had that been the only information, that would have been probably a slightly easier mistake and identification situation. But there ended up being an incident two weeks later, which was charged in part of the trial and the case where my client and another person were seen in a supermarket My client ended up testifying in the case and he admitted on the stand that he was the person who touched a clerk in a supermarket while walking into the supermarket, just reached out his hand and ended up touching the lower hip area or buttocks of this girl walking into the store. And that was just charges of simple battery.
David: So wait, so th your client had a two c two separate cases. The the f the the Camaro flash and then the supermarket touching of someone on the hip?
James: And they were charging the same complaint. So there was definitely an issue where they could have potentially been severed or split up between two trials because they were fairly separate incidents, but they ended up overlapping on each other and were charged together because one of the girls from the previous incident was in the supermarket that day with her husband and another relative and ended up hearing the commotion in the front door because she's right by the vegetable area, which was near the front door. And then she goes up to the girl who was just touched the supermarket clerk and has a deputy's personal cell phone number and says, this is the same guy who just exposed himself two weeks ago. Which now we're getting into more issues in terms of the identification because before the witnesses even identify anyone in the case, they're now all talking about their individual experiences. And then to make matters worse, one of the girls then calls her sister and their the two sisters were the people involved, the alleged victims of the exposure, and tells her everything that happened in the store. So now all three girls are fully briefed on what happened before the police even arrive and do any sort of identification.
Nikhil: Wha why does that play a problem for or why does it present a problem for you're a trial lawyer in trial or for just witnesses in general, colluding testimony, why is that a problem?
James: The thing that I think is a lot of people assume that eyewitness identification is one of the most powerful pieces of evidence and it will feel powerful as it did in this trial. undoubtedly the witnesses will get up on the stand, your client will be sitting next to you, it'll be pretty obvious where the defendant is sitting in the courtroom, and the witnesses are going to be asked at some point by the prosecutor, as they were in this case. Do you see anybody in the courtroom who exposed himself, who touched you on that day, who committed the crime? And undoubtedly the witnesses will point out your client. And really, as you get into you r do any sort of research into how memory works, memory is so fragile. Anything that people come across, the slightest hints, the most subtle hints about aware a person's sitting in a courtroom, what a prosecutor says at some point during the case's history, what information they learn from another witness in the case, any of those things get into the back of a witness's mind so that if they make an identification in the case and they have already been exposed to this information before the identification, it's almost inevitable they're going to identify this person as the person who committed the crime, whether or not that was the right person or not, which was exactly what ended up being the the defense in our case and ultimately leading least based off of what I believe to be the not guilty in the case, because the witnesses were so polluted with what each other had said to themselves that after the witnesses all talk to each other about what supposedly happened, and then they're asked to make an identification, there's no way they're going to select anyone besides the person they've all been talking about. because the problem in this case is the other witnesses, the witnesses had never seen the other guy, the driver of the car. so they're only basing it off of one African American person they see supposedly on the date of the exposure and then at the supermarket. And both witnesses were female Hispanics. And I think a lot of people understand, at least now based off of research, that cross racial identification is a major issue. it doesn't make anybody racist, but it's just people have tend to have difficulty identifying a stranger of another race. based off of just distinguishing characteristics. So you get to trial and that the witnesses are gonna identify your client and now you have to get up in front of a jury and explain to them that what they saw in court was not true. That even though they pointed out your client in this powerful dramatic moment, that was not correct.
David: And they're all upset, they're sometimes crying, they're they've they're victims and it's very emotional and they point to they say, He did it to the one person who's sitting at the table by themselves on a island.
Nikhil: Well, especially in a case like this where it's not even it it's it kinda goes to our core sensibilities of protecting women and having this man expose his genitalia to these women. It's like this qu it's this core violation of the public, our our community trust that we have is having this really vile sexual act. And then this woman is seems so vulnerable and so then that they are so much more sympathetic than just, as opposed to, someone that's the victim of graffiti or some other, misdemeanor that we we often encounter misdemeanor core.
James: Definitely. that's what you're gonna be dealing with when you get into trial is that jurors are gonna have to be thinking in the back of their mind, this is someone if this person's truly guilty to something, they wanna get this person off the streets, literally or, figuratively. I would think that maybe if you're dealing with a petty theft, a just a quick shoplifting at a s a store, maybe the w the jurors are gonna be as concerned about the outcome. They're gonna be more receptive to a creative defense than if you're dealing with a situation where if they vote not guilty, they know someone's gonna walk out of this courtroom and potentially no one will be convicted of in this case a sex crime that anyone's gonna say is serious to the community, even though it's charged as a misdemeanor. I think probably most people are surprised any sex crime is a misdemeanor. because it we just have in our minds that you expose yourself to someone, even you can see footage from any given spring break or something and probably see things ten times worse, but
David: Mooning, remember mooning. But also the for it to be sex registration that not not you can't just expose yourself, but it also it also has to be for your own sexual gratification.
James: Exactly. And, in this case, given the person who exposed himself, had his hands on the back of his head and is, basically wiggling back and forth and after they had just called out to the two girls on the street, the prosecutor had a pretty decent argument that whoever exposed himself was probably doing it for some sexual reason and not just as an accident. but accident did play a role to a degree in what happened. 'Cause the problem in this case and the the main frustration in the case is that we ended up having someone else come forward very quickly in the case who admitted that they were the person who exposed themselves. They admitted they were the passenger and they admitted in it first in a handwritten letter which was sent to me and person had notarized to indicate that it was them who actually signed it, admitting that they were the person who exposed themselves and dropped their pants and were trying to do it because they saw some pretty girls and they wanted to to talk to these girls.
David: They just they didn't just think it was funny, guys just teasing girls or
James: Well think the problem too is once you get once something like this happens and this is an ins issue too is that the f police who initially responded the date of the exposure according to the witnesses did not take the situation seriously and they didn't even file a report. So now fast forward two weeks when the supermarket incident happens and deputies get involved, persons arrested, ex identifications are made, cases filed. You have to think too the witnesses are like, This is now much more serious. Now the now there's a d a district attorney's office who's taking this case seriously. Now there's a police department who's taking this case seriously. we're here there's a trial coming up. That's serious. Jurors are gonna be hearing this case. Again, that kind of subtle thing that gets in the back of the witnesses' mind where these two particular complaining witnesses certainly were taking it very seriously, but maybe had they doubted themselves, should we even be bothering with this? once that kind of freight train of a criminal prosecution goes forward. not much that's gonna be stopping it against your client except for, twelve people from the community sent voting not guilty at the end.
David: So what what kind of preparation or investigations did you guys did you do in this case?
James: well the main thing that we did was we found out of course the person who was admitting to it and then we had an investigator speak with that person to memorialize that statement. and the person ended up first basically saying it was a more a wardrobe malfunction and then he changed his story a little bit later on to say
David: Was that the term in the in the report? that he gave your
James: He did say wardrobe malfunction, yes. Which so when I gave that statement, the first one from my investigator to the prosecutors in the case, everyone literally out loud laughed basically at the statement. again, you couldn't get you could not make up the facts of this case because there was a moment during the trial where the the one of the complaining witnesses who I think was the most intent upon having this case prosecuted. ended up describing how the person exposed himself and she described, assuming she probably never read this guy's statements that he made about the other person who was who said he exposed himself. And she exposed almost to a described almost to a T how the guy had said in this supposedly ridiculous witness statement, how the person exposed himself, dropping his pants, wiggling his dick around, in a way that you're like, come on, his pants are just falling down and then someone in the middle of the street is doing this. It just doesn't sound believable and it does sound a little ridiculous. but that's end up ended up being how the witness described it.
David: How so, what was the nego what was the negotiations p prior to trial? th what did you do? Did you approach the district attorney? Did you tell Hey, listen, do you have the wrong guy? Or were you just kinda holding on to it before trial? What was the you guys give an offer to settle the case before you went to trial? normally you probably ask for your client not to get a two ninety registration beforehand, but
James: Exactly. So in this particular case, normally if I know I have an ace up my sleeve, the a really good piece of investigation, I n from my experience, I know the prosecutors are just they're not going to dismiss their case outright until they get to the last minute. I'll normally hold on to something like that. But if it's a situation of innocence versus a major just a piece of defense that I can use, that's a situation where I knew, this was I think one of the first situations where person I knew was just right off the bat, clearly the wrong person that was charged. and I brought it up to the prosecutors and we had two different bench officers, two different judges who were involved in this case because one ended up leaving to a different courtroom. And I had chambers conferences where I had the prosecutor and the judge sit down and I said, This is a case where we have another person coming forward admitting that they are the person committing the crime. And we subpoenaed the person to come into court and they came to court every single pretrial before trial, dressed well, pleasant, respectful to the court, waited while cases just a whole morning before the case would be called, respectful to the court when ordered back as a witness. And this is a a person coming into court being that serious, saying, I am the person who did it. Ask the judge at one point, when do I get my lawyer? And the judge in that that situation referred him to another office because obviously be a conflict of interest for us and they told him he'd have to wait until the actual trial came up.
David: So the actual the f the the actual person is jumping up in court saying, I'm the one who's guilty, I'm the one who's guilty and no one's doing anything about it. What
James: And no one's doing anything about it and it's
David: did the prosecutor say in the ink chambers chamber? What was
James: They said that they r looked at the repro the statements from the investigator and from the person who was admitting to it and they didn't believe it. They said it was laughable that there was, they were gonna do some additional investigation, have their detective look into it, but they just simply were not believing the statements because of how ridiculous that they sounded. And you have this moment where you're like, How if the judge And the prosecutor and no one is believing these statements and all you have is a trial, which knowing from experience, you don't know how twelve people are gonna react to this type of information. If you're gonna have twelve people who are going to be able to look beyond the charge, look beyond the witnesses identifying your client, and really be able to Well
David: Let's talk about those twelve people. So how was how was jury selection then? What were you what were you saying to the jurors? Wha what was anything particular in your voidier as it's called? Mm-hmm.
James: So jury selection in this case went much faster than I think it had in most cases, which I normally in a case like this I would estimate three days for jury selection. we're not going every minute of the day.
David: 'Cause everybody wants to get kicked off the jury. It's the s the subject's too sensitive. People have been victims of something at some point. They can't handle a case involving sex and or at least they use it as an excuse to get off as well.
James: Exactly. normally when you mention and one of the questions I made sure the judge asked is, does anybody have a a specific problem about this type of charge? Do you feel that just beyond a general distaste for someone who commits a a sex crime, you have some additional feeling beyond that? is this something where you just hear the charge, you just shut down and you can't you can't continue and you can't be fair and open to hearing other information? And I don't know if it was just the luck of the drawer or someone watching out for my client, but the people that we had during jury selection ended up being very open minded people. We had people who had some very intelligent discussions about the charge. Very few people who raised their hands saying that they were just would not be able to be fair to this particular charge. I think it was maybe two out of the thirty five prospective jurors we started with. And
David: Sometimes you get lucky with a case like that. I I had a I had a a a decent exposure case one time where this guy was from that one of the jurors was from Beijing and during Voidir he was sharing how one time this w a a nine year old girl in the village said that this guy touched her so that everybody just beat the living shit out of this guy. He was cr and he ended up being crippled and then a week later the girl was like, actually I was just lying. And then this guy for the rest of his life is is now crippled and that's because everyone just rushed to judgment. Everybody just just said he was guilty. No 'cause no one wants to stand up for someone who's charged with that type of crime.
James: And exactly.
David: And so I was able to use that guy as an example. He was kicked the prosecutor of course kicked him off the jury, but I was able to use him as an example in my closing argument, being like, Remember that one juror? Remember when he said when we all rushed to judgment? Remember? And then
James: I think that's the best when you're in jury selection as a trial attorney. 'Cause it's an awkward process, you're basically trying to almost like a lot of people describe it as like going on mini speed dates with, these jurors. And judges it
Nikhil: Cut us off at every moment.
James: Exactly. And especially in criminal cases, they give you maybe fifteen minutes to talk to at starting off with nineteen or twenty prospective jurors, and it might sound like fifteen minutes of public speaking is sounds like forever. But trying to get through, constitutional principles, specific issues in your case, specific issues with the charges, following up with witness answers that the jurors gave before, it goes by so quickly. And that was an experience I had in this case too, where there's so many points I wanted to touch on to write raise with the jurors. And, at the end of the my fifteen minutes with the first set of jurors, I'm just getting into issues of what if someone else admits to the charge and those types of things.
David: 'Cause the fifteen minutes the judges only give you fifteen minutes.
James: And they will shut you down the second the clock hits fifteen minutes. some j judges will let you at least finish the question or let other jurors answer, but not this particular judge. It's fifteen minutes and I had to sit down. And when you're in that situation and especially going to a trial like this where you have someone else admitting to the charge, you have your client who you believe to be innocent, and you don't have every single opportunity. to vindicate your client's rights and to really present their defense. everything feels like, what will happen if my client's convicted? Will I be able to live with myself for not asking that question, for not asking this to the jurors or this to a witness.
David: How did the so how did the evidence unfold and just a brief overall what who got up and said what and then how how did you attack it, at each step?
James: So the biggest issue in this case was the statements that the other person had made about him being the person who exposed himself. that issue was litigated pre as a four or two or motion to exclude that evidence before trial by the prosecution.
David: So the prosecutor wanted to exclude this guy's admission to the crime. Prosecutor did not want the jury to know the truth about what somebody was saying. Okay.
James: Exactly. And that raises all sorts of ethical and other dilemmas in that.
David: But Jared certainly of course that's what the prosecutor wants 'cause they're trying to prove a case, but that's why we have judges. judges they're fair, they're supposed to be fair to both sides, and to make sure it's a good fair trial, especially when someone's life is at stake. So the judge of course denied the prosecutor's request.
James: You would have l thought so.
Nikhil: Tell us what tell us what happened, Mr Wilson. Tell us what happened.
James: All of the evidence of the other person's statements were excluded from trial, meaning that we could not mention it. The only saving grace, and I'll get to what happened with the the the the motion, but the only saving grace is that the issue the motion was decided after opening statement. So for
Nikhil: You were able to get some of it in
James: sha I had a feeling that with that was gonna happen. And so an opening statement, which is normally just a neutral statement of the evidence, I hammered that someone else was going to you're gonna hear that someone else admitted to it. And gave all of the specifics that I could because the jurors can't unhear something like that. So you need to get that out. any step.
Nikhil: Why don't you just walk us through this judge this very fair judge's ruling? w why did he is there some law on third build third party liability? Was there some case law or some a statute or something that the prosecutor could point to and say, listen, judge, the the law says that, James Wilson cannot bring this defense in. Is that what happened? Or how was the argument presented to the judge?
James: So the first thing that happened was we knew that as soon as we started the the trial in this case, we knew that the other person was in court was going to be admit admitting to it. So the judge is the overall arbiter of the evidence and protector of all people in that situation says, okay, well I need to have another lawyer appointed to represent this guy who's admitting to it, advise him whether he should or should not invoke his Fifth Amendment privilege against self-incrimination, which applies to everybody, not just to the defendant in a particular case. So the other lawyer was appointed and not surprisingly, at the end of their discussions, it was the informed the court that that person would be invoking his privilege not to testify. And that leads to another separate issue whether the jury in our case was going to be able to hear about that invocation of the Fifth Amendment, which they ultimately were not.
David: Did you well did you throw the did you try to call that witness to the stand then and just have him do the Dave Chappelle plead the fifth? Is that what
James: We would have loved to do that. No, the judge had us have a hearing outside the presence of the jurors where I started questioning the individual. And actually the the first thing that happens when a witness is called in the case is, the clerk swears them in, swears the take they take the oath to tell the truth. And then the first question they're asked is by the clerk, please state and spell your name for the record. The most neutral question in the history of the criminal justice system. And this witness gets up there and he starts reading from a piece of paper. on advice of counsel, I invoke my Fifth Amendment privilege against self incrimination as to his name. And so this is all occurring outside the presence of the jurors and every question I asked, no matter how neutral he invoked the privilege. And normally the judges are supposed to on a question by question basis decide whether this information could incriminate the the witness in the case. And instead the judge just let him invoke on everything. And I thought I was on solid ground because there's an issue or exception to allow in outside statements for statements against penal interest. So we think that people d just don't go down the street and admit to crimes all the time. So if you do go admit to a crime, maybe that has some reliability to it.
Nikhil: so you thought so once you thought once that this guy declared that he was not gonna testify that you would be able to get his prior statement in because it's a hearsay exception, a statement against period launchers. So once he invoked the fifth amendment, you felt, Okay, well I'm still gonna get his prior statement in and that letter to that the notarized letter he wrote or the statement to your investigator, you thought you were gonna get it in some other way.
James: Exactly, as a hearsay exception for statement against penal interest. Because the judge declared as soon as the the guy invoked the fifth amendment, the judge says, Okay, I accept it as a valid invocation, he will be excused from trial, and I find him he's unavailable. That unavailable is a f flips the switch and allows you now certain hearsay exceptions, one of them being statements against penal interest. and so then we had to litigate at that point whether this was a statement against penal interest, which at the end of the
Nikhil: Admission to a crime. how can it not be an admi it's an admission to the crime that they're charging you a your client with? It's seems pretty obvious to me that it's a a statement of a
David: That's the here's the exception that allows our our clients' statements to come in. Yeah. by when they're interviewed by detectives or
Nikhil: That's party party admission but
David: Okay.
Nikhil: true, true. But so it's it's basically of course it is, right? Because you're charging your client with a crime, so obviously someone else admitting to the same crime is against their penal
James: Exactly. The problem is that you get to these situations where cali or law had been designed in such a way to protect defendants in criminal cases because prosecutors oftentimes want to use these statements against clients, against defendants in a case. Maybe it's a co-conspirator or an accomplice who invokes the fifth and they want to use the statement against the defendant in a particular case. So the law had been interpreted in such a way to have a reliability requirement. Because all defendants have a constitutional right to confront and cross-examine witnesses. So if you take that away from someone because they're invoking the fifth, you can't cross-examine them. So we need to have some sort of gateway or threshold to see whether this evidence should be allowed in despite the lack of of cross-examination. And so the law has been interpreted to have a reliability requirement. And in this particular case, the judge and the prosecutor use this reliability threshold to keep the evidence out. Because going back to how ridiculous we had, thought this statement was and the prosecutors laughing, now all of this is coming to bear and the ruling and the judges saying, because I find that because they're friends, which in there was a a case that had come out just last year, last summer, from the state supreme court that basically interpreted this situation where a defendant is trying to affirmatively admit someone else's statement against penal interest, third party culpability. And it was set more or less where the court is now interpreting in such a way that, wait a minute, we're using the reliability in the wrong way. Reliability's more of an issue when we're talking about statements that are admitted against a defendant in the trial because we have that sixth amendment issue. Prosecution doesn't have a sixth amendment right to confront anyone. They don't have any constitutional rights. They have state rights, state constitutional rights. But the federal constitution, of course, will always trump that. So we don't have that same concern in the situation where a defendant is trying to show that someone else committed the crime because they don't need to confront and cross-examine that witness. They're admitting it themselves. So I submitted lots of briefing on this case trying to say that basically we need to relax or look at that reliability requirement in a different way. Even if you think that these are silly explanations from this third party admitting to it, you cannot exclude this evidence. And I remember just taking at the end of writing my brief on the issue, going back and writing the introduction as I normally leave the introduction to the end and just saying that not mentioning law, not mentioning cases, statutes, just saying this is a situation where we have a person charged with a crime and we have someone else coming into court admitting to it. And the prosecution's asking to exclude that evidence. I don't care what rule or law or statute or constitution we need to interpret. We know what the result has to be. you can go onto the street and ask ten people, and ten people should tell you that the answer means that need information needs to come in. You're charged with a crime, and the one piece of evidence that will prove you're innocent should be excluded against you. under Any sense of fairness or justice or whatever word you want to use, that's just it it blew my mind. But
Nikhil: play devil's advocate for a second, right? What what's the judge's or the prosecutor's reluctance to let this evidence in? Is it because they think that maybe these statements are fabricated by your client and his friend to come up with come up with a, some some cockamine story to get him off d is that what they think? They think that someone's coming in, they're gonna put themselves in the mix in the grinder in order to get your client off. Is
David: If that's the case though, then the judge shouldn't give him counsel. Right? If if what he's saying is so not credible, then why ev why should he even need a lawyer to to protect him from incriminating himself?
James: Well, I think that that's what you're saying, Dave, is perfect because ultimately when I was trying to think about how to argue this in the brief and make it as simple as possible, this is one of these situations where you use pure logic, and it like the philosophical way that you are allowing someone to not take the stand in a case because you're finding that anything that they would say would incriminate themselves. And we know their proposed testimony because it's the subject of these statements that will incriminate themselves. By definition, then what they said must be against their penal interests. They are necessarily related. When one is triggered, the other is triggered. How can you possibly say that this what this person would say would be against their penal interest and then exclude their statements later on in the case when they invoke the fifth and now say somehow they're not statements against penal interest
Nikhil: A totally inconsistent ruling.
James: incredibly inconsistent because the judge relied upon this reliability issue, saying that because they're friends, maybe they did potentially get together and
Nikhil: No evidence actually presented that there was they just this is just rank speculation by the judge to to to support the prosecution's case.
David: Just an art.
Nikhil: That that that they're friends, and I don't know what evidence really came in at the trial that suggested that they were actually friends, but just let's just speculate that he must have coerced him or promised him or some kind of quid pro quo to get him to come forward and make this statement because there's just a general skepticism when it comes to any part of the defense case. Is that your experience?
James: Exactly. No, definitely. But I think in this situation I made sure to argue too. there's been no issue of an immunity agreement or some reason why this guy would not be prosecuted. I think now the p posture that we're in now, there's no way the prosecution could prosecute him. And they did that to themselves. And we can talk about that. But in this situation, it's like of course you you think, when you have defense evidence, I think prosecutors and maybe the average juror gonna look at that evidence and go, and that's an issue I bring up too. Are you gonna automatically assume that defense evidence is just contrived or of course, I always try to make this example that, you see the defendant get up on the stand. Who is gonna see a defendant take the stand and go, now I'm gonna get the hundred percent truth of what happened? Because that if anybody else, inherently that that person has such an insane interest or such an insane bias or desire The color of the evidence in the case. And so I make sure in jury selection an argument to call that out and then try to attack that and say, okay, well, how do we know besides that? How can we independently corroborate what happened? But anyway, so there's no information in our case that this other witness coming forward couldn't be prosecuted. So who would admit to something that has bear's lifetime sex registration, county jail time if convicted? in no indication that this person is somehow immune from prosecution. They don't know the, the nuances of prosecution and whether they would or would not be prosecuted. In fact, the fact the guy takes the fifth after the advice of counsel, you'd have to think he is facing potential criminal prosecution later on. So it's not a situation where, we mention and I used in my argument too, you this is not like we just went down the street to Skid Row somewhere and picked out a local drug dealer and said, This guy who's never coming into court admitted to it and please let us get this information in. we all know who the person is. We all know that they were not immune from prosecution and they're admitting to it. So why would he make this up and take this guy and take my clients, take the heat off my client?
David: So all right, so you a crucial piece of evidence was excluded. it's at the beginning of the trial, you gotta you kinda just gotta sack up and just go through the trial. What was your strategy at that point then? 'Cause were you you obviously you were relying on it to some degree, but then now what how did that change the game for you?
James: Well, already knew too that, we had talked about before that the witnesses were sure that it was the passenger exposed himself, and I'd already made sure to get the records indicating that the vehicle was registered to my client, and that general argument that, the guy's gotta be driving his own car. And then we had the issues of the identification that occurred at the supermarket two weeks later, how the witnesses all tainted each other before they do the identification in the field. we ended up actually finding out too that the identification And the sheriff's department admitted to it, it violated their policies in terms of keeping witnesses separate, not allowing witnesses to talk to each other. Because after the witnesses had all talked to each other, the deputy then put all three of them and the back of a patrol vehicle together and brought them to where my client was detained in handcuffs and asked them simultaneously if my client was the person and their respective incidents. Now we're talking about people who are not witnesses to each other's incidents. being asked to do this cross identification.
David: So the deputy testified.
James: The deputy did testify.
David: He admitted this violated policy. He didn't follow procedure.
James: Yes, yeah. It was a she and yeah, she actually the prosecution for some reason actually marked for it for as an exhibit in the case the Sheriff's Department policy.
Nikhil: Wait they've they so they put into evidence the this has gotta be just some rookie prosecutor putting into evidence them evidence that that they didn't follow the rules for the field show up.
James: I think I think you do realize in certain situations there's prosecution evidence one on one
David: weird though 'cause that's if they didn't follow the field procedure, that's not really rel means it's not reliable. Right? But just like that your friend's statement wasn't reliable, but that didn't come into evidence. Of course not. But the process
James: But the prosecutor
Nikhil: identification which is that goes against their written policy, it's still not enough to overcome their their the kind of the the the free pass that they get in of all kinds of evidence.
James: And this whole w talk about reliability and identifications, there must be something that protects defendants against unreliable identifications coming in. Well, lo and behold, over two hundred years ago they did find sign such a document called the Constitution, which has been interpreted to for due process of course, prevents unreliable identifications from coming in.
David: And what's the the they say like the people who are t released from prison, from DNA evidence exonerating, they always I think the one of the most number one thing is
James: Well, so
Nikhil: Identif eyewitness identifications, yeah.
David: So many people have lost their lives to that.
James: Because memory is just so insanely susceptible.
Nikhil: Yeah, it's not even malicious, right? It's just now what we know about neuroscience and how memory works is that, it's just not as reliable as we once thought it was and it's so susceptible to these subtle cues and hints that suggest that that taint these identifications.
James: Exactly. and so I filed a motion before trial as well or beginning of the trial motion eliminated to exclude the identification procedures and any in court ID as fruit of the poisonous tree, saying that what occurred in the f in the field when the sheriff's department did the identification was so inherently unreliable as to violate my client's due process. And I told the judge before we started jury selection before we started before we started Voidir that I was gonna be filing this motion and that needed to I wanted to brief the issue. It doesn't have to be written, four or twos, but, if you have an issue that there's case law and you want to really spell it out for the judge, I spent I was up till eleven thirty that night writing the brief and I brought in eight thirty the the next morning when court opened and filed it. we were called in about ten thirty to start the trial that day. The judge says, I got your motion, I'm ready to rule upon it. I Looked around the courtroom waiting for the Ashton Kutcher to jump out or something and, say I was punked or something. I'm like, there's been no evidence in the case. We have not had a single witness testify so far. You cannot rule upon an evidentiary motion like this without evidence. and I had at that point I was going to call an eyewitness ID expert.
David: So wait, you filed a motion to exclude the the field show up identification and you wanted to have an evidentiary hearing to support your motion and the judge said
Nikhil: No evidence is not necessary for my motion.
James: And the judge said, Well, who do you expect to call? And I said, Well, he's like, It's your burden, isn't it? It's like, Well, I you it's a motion I filed. I'll certainly be happy to show that it was unreliable and I'll put on that evidence. And he said, Okay, who do you call? And I told him, I'll call the deputy, I'll call my eyewitness ID expert, call, maybe the some of the alleged victims. And he's like, Well, they're not here right now, are they? And it's like when nobody this is one of these things where okay, nobody tells you when the mo hearing on the motion is going to be. And I had asked the judge the day before, I said, Your Honor, I want to again tell you that this motion is gonna be probably fairly lengthy because we'll have to take evidence. we're going through jury selection quickly. We need to carve out a time when we can all expect to to do this and get all the witnesses in place. And he said, Well, I have nothing in front of me. We'll deal with it when we get it. So then I give it to him and he says, Well, this is the time. And at that point, he's like, Okay, well, nothing being in evidence so far. I find that whatever evidence, even assuming that it is as you've said it's going to be, nothing would be unreliable. I would not grant your motion one way or the other. And y you have to think about something like that. And it's like everything we do as defense attorneys is not necessarily sometimes we know the trial judge is gonna rule against us, but you need to do it for a record. If there's an appeal, you need to do it to maybe ask if law can be changed later on. every time An appellate court reverses a trial court's decision, it's because an issue was litigated, the trial court disagreed with that party, and then later on it's in evidence and there's something to back it up and l law is made that way. so maybe this is a situation where we could have litigated that. Luckily there didn't need to be an appeal, but that's why you take evidence, even though sometimes it's gonna be pointless because the trial court's gonna rule against you, you need to be able to get that evidence in. But no. No no hearing, no evidence.
David: Did you file the motion?
James: I filed it the second day of Wadir jury selection in the morning.
David: And then he filed it in the morning and then the next morning the judge denies it.
James: No, that same day I filed it, he denied it. Same day?
David: He denied it?
James: But I brought a v I brought an oral motion to exclude it before we even brought in a j a panel of prospective jurors before as soon as we started the trial. Jorge started jury selection. he also found that it was untimely. There's absolutely no timing requirements for
Nikhil: On motion eliminating, yeah.
James: You can file a you can bring a motion and lemonade
David: Hop up in the middle of trial.
James: literally, yeah, the last witness, last question of a last witness, it doesn't matter. The whole point is something needs to be heard out of the presence of the jurors.
Nikhil: So going back to so they exclude your eviden they exclude the evidence of the actual witness testifying, the third party. they exclude any evidence of the prior statements he made to you that you wanted to get in that were pe against penal instrumental interest. And then we had I'm sure that the complainting witness testified, they identified your client, the dep the deputy testified as you said, and it said that she violated policy. Is that the summary pretty much of the people's case?
James: Pretty much. And then we also had the the third complaining witness from the supermarket incident too. And she ended up she was a pretty credible witness, but the good thing and I think if there's a good thing that I w and I tried to make it clear to the jury too is she wasn't a witness to the first incident, the the indecent exposure. So, as powerful as she was and she was really emotional and she was really came across very credible too. She didn't support the prosecution's case at all on the first issue on the indecent exposure because she didn't see that.
David: How did your how was your cross examination of the indecent exposure witnesses?
James: The first witness who was the one who was much more intent upon prosecution, she was a lot more difficult.
David: How how old was she?
James: She was I think she was twenty four, and the other one was about twenty two. Your client client?
David: Holographic.
James: My client's thirty-three. Okay. so they're they're definitely younger people, but she came across as a lot more she ended up saying that she was involved in neighborhood watch groups. She complained about this incident on the Sheriff's Department Facebook page.
Nikhil: wow, a real a real
James: That's why said the jury, you know who you're dealing with exactly. and I ended up, asking her at some point, we got into a little bit of some some.
David: A lot of likes on her Facebook on the Facebook post. Did she get No
James: She got a pretty good like from the Sheriff's Department who got it gave her a personal call and ends up getting the deputy's cell phone number. and that certainly goes into it too. you have this almost bias of the sheriff's department. Now their per public relations officer is reaching out to her, and that's where this whole investigation starts from this incident where the deputy didn't even take a report initially, and now you have the public relations department stepping in, and it's almost this like bias towards prosecution that we need to try this case because we need a safe face. maybe we messed up, we've got some person complaining on this Facebook page. and now we potentially have someone if we don't have a prosecution, how are we gonna vindicate what happened to these people?
David: So do you do you remember what the actual post read?
James: basically it was a summary of the facts. she was basically saying this happened to me and then she says the deputy responded and he was so rude to me. but it was good too. that she assu assured herself in that post that's the passenger. I think that
David: So that's what you did in your cross. You said like it was a passenger, it was the passenger, it was a passenger
James: Exactly. establishing the opportunity for ID and knowing that, and that's one of the things you learn with cross examination is it's it's a great tool that we have, but you can't get a witness to say something they're not going to say. as much as you're gonna want the witness to say, I screwed up, I identified the wrong person. Exactly.
Nikhil: There's no Perry Mason moment where
James: They're not gonna say that. you c you get you can lead to as much as close as you can and make the clear implication of the jury. You realize at the end of the day, really all you're doing is getting your stuff in there so you can get it out an argument later on. and I think luckily that these jurors were they were certainly attentive and listening the whole time. I think we've all had cases where you've c have half the jury literally sleeping or audibly snoring sometimes. trials are not the most exciting things. This one certainly was in a tiny courtroom. It was hot in there. in the afternoon mostly and it's hard to stay really in tune and be really receptive in that environment. especially when it's a situation like this where it's so important to know keep really in tune with every piece of evidence that comes in.
David: Did you do a cross racial expert, identification expert?
James: We had an eyewitness identification expert who was working on the case, but I ended up making a last minute decision not to call her as a witness. due to some of the things that, she would have said that I couldn't have argued, or vice versa. I realized that there were certain things that I think we tend to think of we tend to think of just based off of a lay sense of how I identification works. for example, that if you make an identification in a when you're really stressed or excited about something or shocked, I think most people would think that that's an unreliable situation. And it turns out that unless you're really facing like a life threatening situation, looking down like the barrel of a gun or looking at a knife or something, that actually makes your memory a little bit more acute and can actually make your identification a little bit better. and of course these witnesses were readily admitting that they were making an identification in a situation where they were shocked. It's like one of the worst things that's ever happened to them. They're upset, crying, whatever.
Nikhil: Okay, so so did you put on any defense case? Did your client testify?
James: Yes, my client ended up testifying, which I normally have my own my own presumption. I've had many di clients testify in the past and most of the time they don't go well. th first thing is you were gonna give the prosecutor an amazing argument. You're gonna give them an amazing argument that everything that your client said was a lie because they're on trial and they have this insane bias to change the evidence and to present their case in the most favorable way to them. And so now I at least realize to call that out as much as I can. and it just happens to be that mo a lot of people and I wanna say most, but a lot of people we tend to come across who are charged with crimes are, not your the most educated people from the community.
David: Most articulate they're nervous, their life depends on how they talk in front of these tall
James: Very nervous never testified before and you're facing officers who have testified ten to fifteen years of experience as officers or more, or witnesses who at least have that that drive behind them and that additional credibility that they are the victim in the case. everything they say, of course they're nervous, they're facing their accuser. What does your client have for an excuse?
Nikhil: Well they tend to also have special victim advocates from these prosecution offices that help prepare them for trial, go over their testimony. the law also allows them to have people in court sometimes to be there as victims, victim support witnesses that can just stand next to them or be in the courtroom. Whereas your client, I think what sometimes our job we don't have the resources or psychological experts to prepare our clients for what they're gonna face on the stand. Especially in a misdemeanor case, maybe in more serious felony cases, but in misdemeanors we're not we're not having six rounds of a practice with our client with a mock cross examination. That that rarely happens.
David: Prosecutors even have funding to give money to witnesses for food or transportation,
Nikhil: Transportation.
David: motels, y get to go to McDonald's for lunch. I had a case like that where the witness went to McDonald's during the lunch break and that was really exciting.
James: Exactly. No, that's definitely s it's hard to prepare a client for what they're gonna face when direct and cross examination, especially if they never testified before. Because it's also hard to you've developed a certain relationship with your client, whether they're really familiar with you or they're really comfortable with you. Now they're gonna be facing this strange environment. You don't know how they're gonna react to a prosecutor. In this case I knew my client had said some strange things in response to like just various things the judge had said throughout the case. And I n there's obviously the potential too that if you're the person who's being charged with a sex crime, you're probably you jury's gonna think you're some weird person. You're gonna everything you say, they're gonna be instantly putting through this filter of just this weird, strange guy. and so I my definitely my strategy was to keep him up there as short a period of time as possible, get his story out and get him down. And I was I was very happy with how it actually came out. He told his story and, he definitely said a couple of some interesting things. Okay. he was asked, and I but it make of course the dramatic moment where I just say, sir, at any point on this day, did you ever expose yourself to these two girls? And I kid you not, he responds to me. He's like, on that day? It's just like why would you say that?
Nikhil: He wants to be very specific answering
James: Incredibly specific because though of course we got some chuckles from the jurors. Thank God. Thank God.
Nikhil: Did you have to follow that up with on any other day?
James: Listen any day and then he goes, Well, I've only ever exposed myself to my wife And I'm like, Okay, it was just to back up, when you say you expose yourself to the w your wife, you're talking about intimate moments, yes, okay.
David: Is exposed was that the word or the term that was used throughout the trial, everyone's too scared to say the specific expose your penis or pull
James: And I had to be that that defense attorney who and I made sure 'cause I knew that this was a situation where, I was gonna have to ask them specifics about the man's penis. So what did they see to see if there was anything that I could go off of or to see if they were gonna say, Well, I didn't even look, which one witness, as soon as we get to that information, she says, I didn't even look, I didn't see anything, because they're too embarrassed to talk about it. But the other girl, and I prefaced it with her because she had been so difficult with me that when we got to that issue, I said
Nikhil: this is the Facebook victim?
James: This is the Facebook one. And I apologized to her and I kinda looked at the jury and I said, Well make this quick. I know this will be awkward, but I need to ask you some specifics about the man's penis
David: Quick and dirty. All right.
James: that you Circumcision everything, And hopefully, trying to go over because I've definitely had situations like that where you have to get into those things where I think Immediately a juror is going to look at you or an average juror is going to say, Hey, here's the here's the sleazy defense attorney trying to, just slime up the victim, trying to make them awkward, put them in an awkward situation or embarrass them. But at the I think as long as you call I that's my main goal in so many situations, just call it out. When you put it out there, at least verbally, at least it's there and you recognize how awkward it is in any situation. You recognize right off the bat, That my client's testifying, he is going to of course he's going to have some sort of bias. Okay, let's overcome that with what he said. So it it it's definitely a difficult situation when you you have to get to specifics like that. But so yeah, the client testified. We did not, of course, have any mention of the other guy invoking the fifth, any existence of him in the case. I got a jury instruction at least that said the individual was e excused from testifying through no fault of or actually he was unavailable as a witness through no fault of other party. So at least it just put into the back of the juror's minds again, this guy. They knew his name from the case and they knew of his existence. And we got in his photographs, his D V photos
David: Client testified though that his friend did it, right?
James: So that exactly that issue came up that, in terms of how much our client was going to be able to talk about what the other guy said or did. it turns out that our my client who was the driver of the car, ended up parking in a s a way that he was not able to see the actual exposure, which is good because that kept him separate from the incident. No way that he could have been like an accomplice or an aider and a better.
David: testified that his f friend got out of the car, he does he doesn't know what he did.
James: Exactly. but it ended up being that we had another a motion that we brought up in front of the judge where my client was going to testify that his friend gets back into the car and says, Well, I'll never do that again. And as soon as I asked the question, when the guy got back s back into the car, did he say any or do anything? And of course it was an objection. We had a sidebar with the judge outside the presence of the jury and the judge asked you what the statement was and I said there's n this is not hearsay. This is relevant admissible evidence that the guy is saying I'll never do that again. I'm not trying to prove that that's true, that this guy will never do this again. Exactly. But of course it's helpful defense evidence so you know which way the ruling was, that was quickly excluded. but luckily in this situation we had the we had the deputy ended up letting go in front of the jurors that somebody else admitted to it in My client eked it out as much as I told him not to, he eked out one reference to it. So the jurors were reminded despite vehement yelling from the judge not to talk about something like that. I think he actually probably highlighted it more when the judge was so so keen to strike that testimony about someone else admitting to it. The jurors knew something was being hid from them.
Nikhil: just it's just strange to me. But was your client able to say that hey, I when we were driving, my friend got out of the car? Yes. that that seems to present the evidence that he was drawing the inference that he's the one that did it. He was in the passenger seat, he got out.
James: My client also had, where he had this particular job where he was working in biodecontamination and they have to spray this hydrogen peroxide solution in the air and he's African American, so it was causing his hair to be his to be bleached. the difficult thing for us is that the his booking photo didn't show any of that stuff. My client also had very distinctive tattoos, but he frequently would put makeup on those tattoos, like on his face and neck, and his booking photo again didn't show those tattoos. So I made the arguments and the prosecutor had his rebuttal arguments to that in terms of you have our client's booking photo and you can't see this information, this distinctive hair color and distinctive tattoos, but at least it was another point because the witnesses never mentioned anything distinctive about this guy. The description they gave was basically just like a black guy who exposed himself, The heights were all over the place, beard styles and those things were all over the place. but luckily the witnesses actually varied from what the nine one one call was and I Most they
David: In their testimony they varied.
James: varied, yeah. Ninety nine per nine point nine percent of the time, the prosecution is going to admit a nine one one call because it's usually hurtful to the defendant. And this case, as soon as there's certain things you realize that are happening. And I asked the prosecutor, are you admitting the nine one one call? He's like, No, I don't really think so. And you just know at that point, I don't even care what it said, you knew you need to get that in. Because if they're not at admitting a nine one one call, they think there's something in there that's hurtful to their case. And so I did a transcript in about nine minutes at one min one day and got it in. And sure enough, the description of how they had given the description they'd given to the nine one one operator was a guy of a shaved in beard or shaded in beard. And the nine one one operator goes, What's that mean? They're like, It was barely coming out. Well, they ended up saying during testimony that they r immediately recognized my client at the supermarket two weeks later because he had a bushy beard. and anyone's ever grown a beard or hair or anything knows you cannot grow from having go from barely having a beard to having a bushy
Nikhil: Especially even if you're like I think I let's I'm not being racist here, but if you're African American and you have this a slower growing hair, right?
James: Right. in two weeks.
Nikhil: From barely shaded in to off your face is I don't think anybody can grow a beard that
James: Exactly. And luckily the other guy who admitted to it, his DMV photo, which we got in, and the another prosecutor who was on the case had taken a photo of him in court, which was bizarre, but we get that admitted. In both photos, the guy had a very closely shaved beard. And so I was able to make that connection that the only guy who matches this description is this other guy who has this closely shaved beard.
David: So how long did the jury deliberate for?
James: jury in this case and I obviously I have no idea what they talked about, but I know they deliberated for a while. They were they came we finished closing arguments one day, right before they were released. So they didn't start that day. When they came back, they were there from nine to four one day, nine AM to four PM. Then they came back the next day and around eleven thirty had a verdict. And it might not sound like a law, but in a misdemeanor case, and anything more than an hour and a half, two hours is like an eternity for jury deliberation 'cause these jurors are complaining from day one.
David: Cases are go could be two hours.
James: Exactly. 'cause jurors wanna get home. Another thing I'll call out in jury selection is I know you you're gonna wanna go home, and your key to going home is w you gotta assume that they're probably saying themselves, if we just vote guilty, we can leave. the one annoying person who's like, But what about the defense evidence? that takes time to talk about and you gotta get twelve people to agree not guilty to find your client not guilty. and so we got a note that the jurors were had reached a verdict on some counts or were unable to reach a verdict on other counts. and of course in that situation the judges will just take the verdict on the counts that they agreed to. And I was thinking because there was a battery that my client admitted to being the person who touched the other girl in the supermarket, they ended up having a verdict as to the two indecent exposures and they were both not guilty. And then they the jur the judge goes through the hung jury questionnaire on the battery and And they say we're hung eleven to one and they can't say at that point, which way it is, and whether it's guilty or not guilty. And it ended up being that, they the judge asked the four person first question on the hung jury questionnaire, is there anything we can do? Can we get you something, some addition can we r reread you testimony or show you a video, whatever that's been admitted to help you come your decision? He says, I we need more evidence and more witnesses.
Nikhil: Ha ha ha.
James: And in that situation they can't get more evidence or more witnesses, especially when you have a surveillance video of it, you have our client admitting to it. you can't get much better than that.
David: So eleven one for not guilty then.
James: Eleven one not guilty. So on the battery. On the battery. And not guilty on the sexual decent
Nikhil: Not guilty's on the indecent
James: exposure. Yeah. So it was one of those situations where I was afterwards my client was in tears. I was shocked 'cause I I thought there was not the whole tr whole trial, I was just thinking, Okay, well when we get to you c get convicted on our appeal, we're gonna have a great argument on appeal. That's why I kept saying to my client every time it don't worry, we got you. Gotcha. When we got to the appeal, this is an automatic reverse.
Nikhil: Trial attorney loser talk. Listen, we're making a great record for appeal, sir.
James: And even my client I could see, 'cause they kinda you're they're the face of the system to them. So it's like he was losing hope in the system at the end and the only person he talks to is me. And I remember after my closing argument he goes, a lot of my clients saw the my a lot of my colleagues saw the closing argument and gave me really great feedback and said, thought it was, good closing argument. He goes, Yeah, y you made some good points. I I you made a lot of good points and I'm just like you have no faith in me, do you? And then after the not guilty's come back I turned to him, I was like, You had no faith in me at all, did you? And he was like, Well, it was frustrating experience. Have a little faith, please.
David: it's hard not to make a trial about you. sometimes. 'cause you're like you did a transcript in nine minutes, you're probably up all night, you wrote a brief,
Nikhil: You invest so much of yourself in these trials, right? your personal like you you w you you invest your own am I a good per can I am I a good attorney? Can I persuade people? Right? This is the way I view evidence, the way that the jurors see evidence, you become so intrinsically entwin intertwined.
James: Weight on your shoulder too. when you're the person that you're responsible for. there's not mentioned the situation where you're like, okay, well this really could go either way. There's great points on other side. who really knows what happened? Here's a situation where, everybody says personal beliefs are irrelevant. We're not supposed to express our personal beliefs. BS. when you're in a situation where the person is innocent, it's like all the through the trial, I'm like, do I have time to go to the gym tonight? Do I have time to make dinner tonight? Or should I just be spending that extra half hour working on my case? extra fifteen minutes perfecting my cross or reviewing testimony. It's like it weighs on you so
David: How much sleep should you get? Should I be up all night working on this case or should I get a good night's rest and be ready to go to the next morning?
James: Not to mention, that's not the only thing you're doing. You're dealing with other cases, other pretrials, other arraignments, other people's issues, your own issues, it really takes everything from you.
David: wow. Anything else about this anything else you want to share about the case or
James: Happy with the
David: So Yeah. So you felt like you did a great job.
Nikhil: It's a phenomenal result.
James: I really and it's
Nikhil: Despite the obstacles that you face.
David: that's what it is, but we when you overcome those type of obstacles and i it gets emotional. It's it's tough to swallow that and still be strong in front of a jury.
James: And I'm sad in this case that I didn't get to speak with the jurors afterwards 'cause, they normally make a beeline out of the courtroom and, some of them stick around, but here they didn't none of them stuck stuck around. But I really just it it's at the same time, that's the juror's duties is to review all of the evidence and to really come to a fair decision. But we know as people have experience with that, that's not always what happens. And to think that twelve people spent a day and a half of their time extra and did not race to a conclusion, an eleven to one, not guilty on a battery, which the client admits to on the stand and they had the basis of a question they had asked, very specific, very thought out reasons for where they were coming from. it's just like you just want to worship these people.
David: What was the issue with the battery then? He so he admitted to touching her on the hip. Why did the jury why did eleven people say it was not guilty then?
James: The jury instruction reads it has to be a harmful or offensive touching, and it says the slightest touching can be enough if it's done in a rude or angry way. So they ask a question, they say, Well, does the touching have to be rude and angry as well? Is that an element of it? they also ask, is this an objective standard or is this a subjective standard? And or they ask is it a reasonable person or a reasonable peer? And you're like, this is like this is like lawyer stuff.
Nikhil: Jury you got right.
David: A good jury, man.
James: I hey, I try.
David: This is just 'cause he just he just touched somebody, but it doesn't necessarily have to be a a battery. You can just bump into somebody or
James: Because the client had testified that he was greeting her and he turns around in the surveillance video, which I admitted, and that was one moment where I thought I had really tanked the case because I admitted the surveillance video, which the prosecutor didn't because you could see the client waving to the girl as he turns around, even though they had a kind of a history of not really a great relationship between the two of them. And the girl clearly did not want to be touched, but he's just greeting her. But when I admitted the video, she had never seen it before, and this is this young girl, and she gets up there and she gets super Quiet and emotional. And it was just one of those things you could tell the jurors were gonna connect with her. And I was just like, What did I just do? Why did I admit this video? but at least I think it helped the jurors get to see that the client literally turns around and waves his hand in the air to her. He's just being into
David: Exactly.
James: the store. Doesn't run, doesn't hide, nobody chases after him, no no security guard comes and handcuffs him. It's like this was clearly just a regular old greeting, you're reaching out and you're like, I know this person, hey, how you doing? She didn't want to be touched, that's clear. But that's when the jurors are obviously thinking about it 'cause they're asking, is this a reasonable person standard? Or is this an objective standard?
David: So you admitted the evidence. You wanted the jury to see the truth. You admitted the nine one one call. You admitted the video. You would have admitted even more evidence but it was excluded. And the prosecutor just wanted to admit
James: Exactly.
Nikhil: narrow my opinion version of what happened.
James: they always say trials are a search for the truth, and I think any defense attorney knows it's just a load of BS because it's at the end of the day, it's not a search for anything except for the what the outcome the prosecution wants. They're entitled to make their arguments, and that's absolutely it's two sides coming up against each other, but that's where the judge is supposed to step in. That's why we have the constitution, we have all of these laws. But it feels like when you raise something and you say, This is unfair, this is unconstitutional, people look at you like Alright, yeah, we've heard that one.
Nikhil: Lip service, it's like semantics or rhetoric. It
James: Exactly.
Nikhil: doesn't mean it means anything to them. Exactly.
David: So, before we go, just one last question. why did you become a public defender?
James: I had always been active with Amnesty International when I was younger. I remember one summer I was sitting around and it was before I could even work and I said to myself, It was like, What are you doing with your life? and here I am, I don't know, eleven years old and it's like you're just watching another show on TV or something.
Nikhil: Cartoons all day
James: And so I joined Greenpeace Online and the A the ASPCA and I'm like writing all these letters and Remember my parents being like, You got a letter from the White House today or you got a letter from the Prime Minister of Japan, what's happening? I just like to causes that inspired me. I realized that I could I had a voice, I wasn't afraid of expressing myself, or making a fool of myself. I I don't like I'll call anybody out on something. So I j it was a natural transition for me. I did some other things before going to law school, but I knew that the soon as I got into law school I knew the first the only thing I wanted to do was be a public defender and not just a criminal defense attorney. I wanted to, really deal with people who otherwise would not have had a voice in the system. And I think this is a perfect situation of that. It's like, easily this is someone I think a person could have got this case and just said it's a dip then big loser, everything's against us and really just gave in on it. But at the end of the day, you have to circle back to why you started The job in the first place.
Nikhil: Thanks, James Wilson. We really appreciate you coming on with us
James: For having me.
Nikhil: Sharing. Your not guilty story. We like to hear Hope they keep coming for you.
James: Absolutely. Thank you so much for having me. I appreciate it.