SPEAKER_01 0:01

Welcome to Beat the Prosecution, presented by Northern Virginia Criminal Defense and DWI Defense lawyer John Katz, where we help you get as close as possible to obtaining great results in court. Now here's your host, John Katz.

SPEAKER_02 0:14

Hello, everybody. This is John Katz, the criminal defense lawyer and DWI defense lawyer in Fairfax, Northern Virginia. I am delighted to have present a guest, Podcast Master, Rachel Kern, my full-time assistant. Welcome, Rachel.

SPEAKER_01 0:30

Thank you. I'm glad to be here.

SPEAKER_02 0:32

Rachel, we were talking a few moments ago about whether this is your first time behind the mic, is it?

SPEAKER_01 0:38

Um, behind a podcast mic, yes.

SPEAKER_02 0:40

But how about uh performing in front of an audience or speaking in front of an audience?

SPEAKER_01 0:45

No, I have a little bit of a theater background and some time on stage, so it's nothing new.

SPEAKER_02 0:51

Okay, so what is our topic to uh disclaimer? So now we're gonna add a disclaimer. Well, the first disclaimer is that I sound a little congested. Yes, I'm getting over the congestion, but I don't want to give up the engine of doing uh regular podcasts. The second disclaimer is nothing on our podcast, nothing in our law firm's material, nothing on our website is legal advice. The only way you're gonna get legal advice from me is to be a client with that. Rachel, what's today's topic?

SPEAKER_01 1:19

So we're gonna be discussing um psychodramas and case reenactment, and then how important it is to hire a lawyer who has trial experience.

SPEAKER_02 1:28

Okay, and what about storytelling?

SPEAKER_01 1:31

Well, storytelling goes hand in hand with trial experience, so I think that to um be as productive in trial, you have to tell the story from your client's point of view and get it across to the jury and the judge.

SPEAKER_02 1:44

And if anyone's really wondering about the power of storytelling, I don't watch much TV now, but in the 1960s, at least two of my favorite TV shows, kind of silly ones, but still fun, uh, the Beverly Hillbillies and uh Gilligan's Island, they started out with a story. Have you ever seen those old sitcoms?

SPEAKER_01 2:02

I have not.

SPEAKER_02 2:04

Uh so with uh the Beverly Hillbillies, come and hear a story about a man named Jid, a poor mountaineer, barely kept his family fed. You can laugh. And then one day he was shooting for some crude, and out from the ground came a bubbling crude. Shooting for some food, out from the ground came a bubbling crude, Texas tea, black gold, all that is. Well, I can sing the rest of it, but then that would be a uh a song fest, and I don't have the best singing voice. But actually, then we're gonna talk about that too. Singing, as far as being a great criminal defense lawyer, even if you're not singing and destroying people's ears over at those Kara Oka bars. Okay. So uh and then Gilligan's Island, uh, you you can look that up. Well, let's see. So, with with your thespian experience, um w what has been your experience with storytelling?

SPEAKER_01 3:00

Um, well, I was Dorothy and the Wizard of Oz for a school play, so that's quite a story to tell. Um, definitely a classic. But um, yeah, storytelling as far as like being on stage. I've I've just done a couple plays and then um I did some pageants in high school, which I guess doesn't really tell much of a story except for my high school days.

SPEAKER_02 3:22

Well, there you go. Okay, so how important is it for a lawyer to have trial experience? Rachel, you've been with us for uh almost a year and a half, right?

SPEAKER_01 3:33

A little over.

SPEAKER_02 3:34

And you've been with me at trial?

SPEAKER_01 3:36

Many times.

SPEAKER_02 3:38

So you're aware that uh only a minority of criminal defense cases in Virginia go to trial, even with the most uh uh heavily active trial lawyers uh such as myself, who's handled hundreds of uh trials.

SPEAKER_01 3:52

Yeah, that's definitely true.

SPEAKER_02 3:53

Well, then how does a person get proper trial experience if only a minority of their cases are going to trial?

SPEAKER_01 4:01

Well, I do know you do have experience in the trial lawyer lawyers college, which really gives you a leg up on a lot of the defense attorneys.

SPEAKER_02 4:10

So let's talk about that. It is true, uh I I'm gonna bite my tongue saying this, that one of the best ways to become a great criminal defense lawyer is by starting out as a prosecutor. I am biting that tongue. Uh but equally good is to have been a public defender lawyer, uh, which I was for five years. And um the benefit of both is trying cases, trying cases, trying cases, preparing the cases for trial, always being ready for trial, always being ready for trial, always in that trial mode, always. Uh I'll give you an example. I was a late bloomer learning to swim. At uh seven years old, I learned to swim. And I thought that was pretty cool. But for some reason, maybe it's because I wasn't swimming much uh during the rest of the year, the next summer at summer camp, I had forgotten how to swim. I had to learn how to swim again. I thought that once you know how to swim, you know how to swim. I think that's similar to trying cases. I don't think it's enough to have a trial here and a trial five years later. Uh so with the public defender's office alone, I did a bunch of trials. And uh while I was a public defender, um, a great trial lawyer from Omaha, his name was um Don Fiddler. He encouraged me to go to the National Criminal Defense College's Trial Practice Institute, which at that time was over in Macon, Georgia, at the Mercer Law School, and I found out that that was a highly competitive program to apply to as a public defender, and I weasel my way in. It was a two-week program, it was great. This was in 1994, and there was a hurricane, and the uh National Criminal Defense College invested its uh money and efforts, it was a lot more expensive to do it this way, not to skip the college and to have it over at this airport hotel over in Atlanta. It was great. Uh oh my gosh. Uh we had people there like uh Larry Posner. Larry Posner and his uh cross-examination partner, Roger Dodd, are gods of the gods of teaching cross-examination. There was um Lisa Wayne, Lisa Wayne, who's now executive director of the National Criminal Defense College, oh my gosh. Uh such an inspiration, such a great persuader, uh, who would also encourage people do not rush into pleas just because the stakes are so high. And uh she would even go to the level of uh uh give an example uh to show the jury that when the police talk about a gram of crack cocaine or a gram of powder cocaine, we're really not talking about a lot. A gram of cocaine is equivalent uh in weight to just a little packet of sugar. That could just be for personal use, or so the argument goes. Well, I didn't get enough at the trial or at the National Criminal Defense College. So in 1995, I was one of the small percentage of people accepted to attend Jerry Spence's trial or his college out in his ranch in western Wyoming in the middle of nowhere. I've talked to you about Jerry Spence and the ranch, right?

SPEAKER_01 7:25

Many times.

SPEAKER_02 7:26

Many times. Uh ten miles from the nearest paid road, and um no cell phone signal to be had right there, even if you had a cell phone, three payphones. And if you wanted a weak cell phone signal, you could uh go to one of the tops of the mountains and uh and try your best. Um this was the perfect place to just uh live, eat, breathe, and poop trial law. And uh there for four weeks, it was four dozen lawyers, both criminal defense and civil trial lawyers, and there not only is Jerry Spence an amazing teacher, he was there every day, Monday through Friday, uh, but the Yintu his young, Steve Wrench, a great trial lawyer and former uh trainer at the public defender's office in Colorado, who's in Denver, uh, was there too. Steve's one of these Jerry is uh a clearly uh charismatic person. You know that once he uh once he steps into the room, even if you haven't heard of him, he is charisma personified. Steve, on the other hand, uh looks like this unassuming guy until he opens up his mouth. So the key is that a lawyer who has the devotion to doing great criminal defense, who has the smarts, the wits, and the ability to synthesize it all, can bring themselves to higher quantum levels as a trial lawyer. Now, it's not enough to just go to these trial law as colleges and to be in the safety of just uh a bunch of friends. So they mixed it up over at the National Criminal Defense College where actors were hired uh to be our clients. So one day uh we would sp we would focus on dealing with the client, initial client interview, the next day we would deal with choosing a jury, the next day we deal with uh cross-examining uh opposing witnesses, direct examining our own clients. It was amazing doing it with actors, and not just doing it with actors, but great actors, and then the instructors would then say to the actor, Well, how do you feel about how John is doing this? How do you feel about how Jane is doing this? Uh just amazing. So the idea is you you then come back to uh doing these trials, and none of this is about manipulation. All of this is about constantly improving ourselves. Uh and also it's just important that you know that your lawyer knows how to do it. You do not want your lawyer to push a plea on you, to push a settlement negotiation out of the lawyer's fear of going to trial, out of your lawyer's unpreparedness to going to trial. So we have to have at least two or three things to do great at trial. Rachel, what do you think they are?

SPEAKER_01 10:14

Um, let's see. I guess going in, you need to be confident and have experience. Um you would probably want to know your case inside and out, and know that what you have can win at trial.

SPEAKER_02 10:32

That's right. And how important is it to integrate our clients into all this?

SPEAKER_01 10:36

Oh, very important. They're the center of everything.

SPEAKER_02 10:39

Exactly. Rachel, where do people reach us if they need to do so?

SPEAKER_01 10:43

Well, you can reach us at beatheprosecution.com. Um, you can call us at 703-383-1100, or you can text us at 571-406-7268.

SPEAKER_02 10:56

Rachel, have I told you about the uh trial I won where I uh themed it as Club A versus Club Blah.

SPEAKER_01 11:05

Very briefly, but I have heard of it.

SPEAKER_02 11:07

So here's a great example of winning a trial using storytelling being in the moment, using storytelling to avoid the legalese. Uh in this one, we didn't use psychodrama and uh case reenactment. Well, we we did to a point because my client did testify. So um we've got uh I better take a piece of paper to write down these names. So Sam claimed that Jason assaulted him at Club Blah. What was Club Blah? Club Blah was this preppy uh nightclub right across the street from the uh dive nightclub. Uh my client, we're gonna call, yes, my client was Jason, who Sam claimed assaulted him. Uh my client would never have got been caught dead over at Club Blah. He liked going all the time to club Ah, the Dive Night Club. So we showed up at trial. The prosecutor would not dismiss the case. I tried telling him this is clearly a case of misidentification. Yes, it does seem that uh Sam was assaulted, but clearly it was not Jason. The prosecutor wouldn't go for it. It's easier sometimes for prosecutors just to say, at least if it's a bench trial, which this was without a jury, but this would have gone well with the jury too. It's sometimes easier in a prosecutor's mind to say, we'll just let the judge or jury deal with it rather than me to uh parse it out about who's telling the truth or not, and then have the alleged victim complain to me, complain to my uh boss and make it a living hell. What's wrong with that scenario, Rachel?

SPEAKER_01 12:48

Well, you're not really looking for justice. I feel like you're just looking for someone to point the blame at.

SPEAKER_02 12:53

You who, who you?

SPEAKER_01 12:54

Oh, the prosecutor.

SPEAKER_02 12:55

Thank you. Or the persecutor. Do you know that have you ever heard me call them persecutors?

SPEAKER_01 12:59

A time or two, yeah.

SPEAKER_02 13:01

And somehow I've never let it slip calling them persecutors in court. Well, there are the prosecutors who are not persecutors, and there are the prosecutors who are persecutors. Moving along. So, what happened with the club A and Club Blah case? So Sam testifies I was minding my own business over at Club Blah, and uh, all of a sudden uh Jason comes up to me and he yells at me, You stole my jacket. And I responded, I did not. And all of a sudden, boom, I'm hit in the face, knocked out cold. Well, is that a beautiful scenario for limited ability to identify uh Jason, who Sam had never met before?

SPEAKER_01 13:46

Oh, definitely.

SPEAKER_02 13:47

And the prosecutor asked, Sam, well, how did you narrow down that it was Jason then? Uh was Jason still there? Uh, or the person who hit you still there after you uh came to, after you woke up from being octave? No. But uh I described to some friends and and they said that sounded like just like Jason. Uh they showed me his picture, that's Jason. So the prosecutor said, Do you see uh the person who hit you at Club Blah over in the courtroom? And uh the complainant uh pointed out to my client, Jason. So um I saved the best for Laz Jason. I put two of his friends up on the witness stand, um, as well as his uh uh uh stepfather, who had a security clearance, to to to uh show that even the stepfather's understanding was that uh Jason never stepped foot in club blah. And uh so the two of Jason's friends got up and they said, Well, we we go with Jason all the time to club A. He detests club blah. We all detest club blah. Um that's an exaggeration, but detesting club blah. But you you get the picture. And then Jason got up and he and he said, I've never stepped foot in club blah. I would never want to step foot in club blah. Um, club blah is club blah. That's across the street. I will not go across the street to club blah. I like club ah. Well, then when it came to closing, I reenacted ah, the story, the reenactment, the psychodrama. I reenacted to the judge what happened and how it was a split second, a moment's notice that took place, and I played the role of both uh Sam and Jason. So I started out with with uh, well, not Sam and Sam and Jason, but Sam and his assailant, who of course I argued was not Jason. And so I started off with the assailant. You stole my jacket! And then I so I'm in, you you have to put yourself physically where you are as the lawyer to be speaking in the moment and not in legalese. And then I changed my body position and turned over to the assailant as Sam. No, I didn't.

unknown 15:59

NOG!

SPEAKER_02 16:00

And I banged my fist into my face and I fell down, and the judge was laughing as an hysterics. Now, some people might have thought that that was um disrespectful to to Sam, but no, I uh I never contested whether Sam was uh Sam was victimized by an assault, but I I just made the point that we can't make uh Jason a victim uh as well, since there's reasonable doubt about whether Jason was guilty. And uh I did talk about one of my favorite songs a moment's notice that uh you know that that phrase right there, that this was just a moment, a brief moment. This was not long enough for uh Sam to have known who had assaulted him. The judge found my client not guilty, we were victorious. Okay. Well, if only every one of our cases was as easy as that. You've helped me prepare cases. Uh can you without telling about the specific clients' names or the specific types of cases, can you cue the audience in on some of the heavy amounts of preparation we have done in our cases to get to yes to get and not guilty?

SPEAKER_01 17:08

Yeah, I mean, we get so much discovery from prosecutors sometimes. There's a lot to sift through in the beginning. You've got police reports, you've got videos, you've got to see where your client was, and if your client's even in the videos. I mean, the amount of just information that comes in is a lot to prepare, and then you have to talk through the client, get them ready for what to expect and what you're gonna do and what the possibilities are.

SPEAKER_02 17:35

And uh how how often have I spoken to you about how we're gonna get the best results in our trials?

SPEAKER_01 17:41

Oh, almost every time. We we go through everything, combing through all the discovery and all the information.

SPEAKER_02 17:48

Yes, it's not just for it's not just for lawyers to figure out how to win these cases. We need the perspective of non-lawyers. Well, also, Rachel, you have an additional perspective. Uh are you willing to share anything about your law enforcement background?

SPEAKER_01 18:00

Oh, sure. Um, for about eight years, just over, I was a military police officer in the United States Army. Um, been a few places here and there. I got to do some uh detainee ops and I did some road patrols, and unfortunately I do have some arrests under my belt, but that goes with the the nature of the the work.

SPEAKER_02 18:21

And how has that helped you in giving uh me input and uh and us input on how to win our cases?

SPEAKER_01 18:27

Well, I think I have a view on what the police see when they show up to the scene of whatever the alleged crime is and what they're looking for, and then how they kind of relay it to the prosecutor a little bit.

SPEAKER_02 18:39

Alright. So uh lawyers can never rest on our laurels. So even though I've been in this business for decades, taking hundreds of cases to trial, uh I never rest on my laurels. So uh Rachel, to what extent have I talked to you about joining with uh other alums of the trial laurels college and other really good trial lawyers in finding the most persuasive story in our cases and in dealing with psychodrama and reenactment?

SPEAKER_01 19:05

Oh, often. I mean, I know you've even told me stories of when you've gone over and met with everybody and reenacted the trials that you're about to commence.

SPEAKER_02 19:13

Again and again. And and how much have I talked to you about even working with uh psychodrama professionals?

SPEAKER_01 19:19

Oh, often, yeah, and I know that you have some that you hold near and dear because they do so well.

SPEAKER_02 19:24

Like Don Clarkson in Maryland. Well, uh psychodrama at first might sound like an alien concept, but psychodrama was developed by uh Moreno, that's psychiatrist Moreno, and it is about solving problems through role-playing and reverse role-playing. Moreno, having been a psychiatrist, he used it as a form of psychotherapy. While somewhere along the way with Jerry Spence andor before Jerry Spence, um Jerry uh was one of the people who figured out that psychodrama can be used for winning cases. Uh this is not for the faint of heart, uh, because when we do psychodrama, we are getting in touch with ourselves as the lawyer who's doing the case, and so is our client. So I have to warn the client if we're going to hire a psychodramatist to prepare your case, uh, be ready. Be ready to uh dig into the deepest depths of yourself, be ready for your proverbial skin to be removed. It's going to be a very supportive and nurturing uh situation for lawyers, and it's helpful also with my clients. Be ready to uh role play, uh sorry, uh get under the other person's hide. So I'll give you an example of a case reenactment uh session that we did with a client of mine who uh decided he wasn't ha so uh thrilled about his um his situation in life. So uh he and his uh well let's see what we can do to not make it obvious what the case was. So let's just say that we prepared our clients' testimony on a 40 plant marijuana case to show that his only intention uh for the um for those plants was to uh figure out maybe uh trying his green thumb at selling uh marijuana in the uh soon-to-be legalized medical marijuana market, which then became uh marijuana has become legalized uh for cultivation, for uh, and and retail sales for recreational marijuana in some places. Well, we really had to do a lot of work with him, this included getting some Laura's together, and uh we were able to prepare his testimony persuasively uh that his body was really broken down, he had severe ridiculopathy with pain going here and there, with the with. With uh diabetes and uh marijuana gave him relief. So his point was that any marijuana that was left over from uh uh from growing the marijuana would have been used for self-medicating purposes. And thankfully for our client, he was willing to invest the resources also to go ahead and hire a um one of the nation's top marijuana cultivation experts, Chris Conrad, who I've worked with many times, and one of the nation's top medical marijuana physicians named David Beerman. Both of them are from the left coast, I mean from California, and I've worked with David a lot. Um not to digress here, but this really shows Rachel, it's it's not just about storytelling, it's about integrating everything, right?

SPEAKER_01 22:47

Yeah, definitely.

SPEAKER_02 22:49

So at the end of the day, the judge found our client guilty of possessing marijuana. I mean, he admitted that, uh, but not guilty of possession with intent to distribute marijuana, but guilty of cultivating marijuana. So the judge set a separate trial uh sentencing date, and I diligently I diligently prepared a uh post-trial memorandum showing the judge that under Virginia law it's impossible to be uh culpable of cultivating marijuana if there was not possession with intent to distribute. I think the judge wasn't too happy that that was the state of the law, but the judges cannot make up the law. So he ended up finding my client only guilty of possessing marijuana, which carries up to 30 days in jail versus cultivating marijuana, which is many, up to many, many years in jail. So what we do with the uh with the psychodrama is we start out with having a director. Now, once again, this is not this is not at all for amateurs. Once again, disclaimer, none of this is legal advice. We're doing this with people who are well trained in doing the reenactment and in the psychodrama. We choose a director. The director then asks uh the lawyer who's doing the case, what scene do you want to develop in this case? What uh what is your biggest concern in this case? And uh certainly when I've worked with Don Clarkson, uh who's a great psychodramatist, uh it always comes back to me when he's talking, uh when he's talking about cases with me, and he says, How are you uh responding to this? How are you dealing with uh um your client? How are you dealing with the prosecutor? Um what about this case uh rings true to you uh from your past, from your childhood? I mean, this can really bring out emotions in the Laura as well. And if the Laura is not willing to get in touch with his emotions, with his or her feelings, how on earth is that lawyer going to persuade the jury and the judge to get in touch with their emotions and feelings?

SPEAKER_01 24:58

I don't think it's possible.

SPEAKER_02 25:00

So I've had uh trial preparation gatherings before that have included uh staff members of mine, uh lawyers, and uh I've had some clients who have been very, very open about the experience. So we go through the story of the case, we sometimes go through uh a relevant part of the client's childhood or or past life that relates to the case to get the client to open up, to get the client to be honest. Honesty is so important. Uh when we storytell, it's so much harder to uh tell fibs, to to prevaricate. And uh sometimes we're together for two, three, four hours preparing our client's testimony. And um by the time we're finished with that, what we do is we do sharing. We're in a non-judgmental way, not focused on anyone other than the person who has shed their proverbial skin, both the lawyer and their client, or at least the client. We have sharing. For instance, if we're dealing with a situation with a uh, well, for instance, I had my client who uh he prepared, we prepared his testimony for showing that no, he did not assault his wife. His wife was off a rocker uh about that, um, or his ex-wife actually. We ended up settling the case and not needing to uh to go to trial. We arranged for an ultimate uh dismissal. Uh so on that one, what was interesting, we started out with uh what you call a warm-up exercise where people shared something from their childhood, and our client shared that uh his family had so little money when he was growing up, he'd be lucky if he could even uh have the money in one year to have a few pecans. Uh so you know one of the focuses there for everyone to get to know my client before we prepared his testimony that no, he didn't assault his wife, his ex-wife was uh, you know, how remarkable it was that he had grown up from uh this uh situation of not having a lot uh to becoming uh very successful. Well, I'm not gonna use his uh situation as a further example, but what I'm gonna say is that so we go around sharing, and uh, well, for this one, for instance, about sure, about the the assault case, then each of us would be able to talk about, for instance, a situation where we were falsely accused of something, and um, and then by the end uh that we're finished, uh it comes back to resolution where we're all pumped up and ready to go, and uh our skin has been returned to us. And did I tell you about the hugging portions of these gatherings?

SPEAKER_01 27:39

Oh, I have heard.

SPEAKER_02 27:41

Well, it it took me uh a little getting used to it, the Trialora's College. That place became such a hug fest. And on the second to last day of the Trialora's College, we did what we called the vision quest, where we were asked to go off into some part of the mountains on our own and reflect on where we'd come from, what we had learned and where we were going to. And everything was supposed to be silent until the silence was broken after breakfast. And so breakfast was in silence, and then we went to the big barn because this was at a ranch, and uh Neil comes right up to me with the biggest smile on his face, and there was no avoiding that hug. And uh, the hugging here, the hugging there. I mean, it's been going on the whole summer, but uh this was a big hug fest. So do not join one of these um trial oras gatherings if you're not ready to be hugged and to give hugs. Now, I don't offer unsolicited hugs to my staff, but uh so this is different. This is uh this is when we're we're we're all together here. Um Do you think, Rachel, that some people might uh think I'm a bit of an oddball that I uh mine these kind of depths to obtain such success for our clients?

SPEAKER_01 28:55

I think that's how you need to be successful. You need to go out of the box to do something that maybe not every lawyer is gonna do, or certainly the prosecutors aren't gonna do, to be able to win at court in trial.

SPEAKER_02 29:06

Whatever it takes. Now, one of my biggest concerns about having a show like this, about blogging about uh these kind of items, is will the prosecution be able to use it to win? And I like to tell the joke uh to uh I have I've had one or two staff members uh who said they were gonna go on to a law school and maybe prosecute at least one of them, and I said to her point blank, I said, This will not work as a prosecutor. Well, it can, but the the the whole thing is that if you don't have the devotion as the Laura to win, it's not gonna work. And I've got that drive, and I have that drive for many reasons. Uh big part of it is that I know I'm on the side of the angels. And also I remember asking a more experienced lawyer when I started doing criminal defense, they said, okay, well, how do you feel about representing someone who uh clearly is guilty, clearly did something vile, and his response was just great. It was no matter what they actually did or are accused of, I'm the only thing that's standing between my client is and his being screwed over by the judge, by the jury, by the prosecutor, uh, by the system. I know I am at the side on the side of the angels. I don't have any hesitation whatsoever about that, and I just love winning. Uh it's not my obligation, Rachel, uh, to have a person who committed the crime be found guilty. It is my obligation to get them as close as possible to winning. And if a person who committed a crime uh wins, I am not losing sleep over that. That is the prosecutor's burden to prove beyond to try to prove beyond a reasonable doubt that they are that they are guilty. Now, uh, Rachel, I mean, there are a lot of judges and prosecutors who want to just rush along the cases.

SPEAKER_01 30:53

Yeah, that is true.

SPEAKER_02 30:55

And uh one of the great things about storytelling and uh case reenactment, it doesn't have to be extra long. You know, it's expected in the courts that we get more time in front of a uh jury and in felony cases than uh necessarily in misdemeanor cases in district court. Uh, you know, that song from the Beverly Hillbilly is uh come and hear a story about an man named Jed. That was about a one-minute song at most. Couldn't be more than a minute, because you know the TV show itself wasn't more than 30 minutes, including the commercials.

SPEAKER_01 31:23

Yeah, got can't take up all the time.

SPEAKER_02 31:26

What else do you think that the listeners might want to know about, or have we pretty much covered it?

SPEAKER_01 31:30

Well, how important is it that the prosecutor knows that you're ready to go to trial, that you're not bluffing, and that you're not relay like you're not relying on a deal.

SPEAKER_02 31:41

Excellent. I think prosecutors know that I chomp at the bit to go to trial. That whenever my client says not guilty, won't take a uh a plea deal, I take that as a personal favor by my client because I love taking cases to trial. Now, interestingly, another great trial lawyer who's over in Chicago, he takes the opposite approach. He likes to say that uh, well, since he's a civil trial lawyer, a lot of his opponents don't know about him because you have a lot more civil trial laws out there than criminal trial laws. And he says he he doesn't try to make it obvious to the opponent about how good he is at trials because he thinks the opponent is less likely to be ready for trial. My view is let the opponent uh get ready for trial as much as they want. I mean, this is similar to the uh Chinese martial art of Tai Chi Chuan that I do. Sometimes I even do to the office, right?

SPEAKER_01 32:28

That's true, yeah.

SPEAKER_02 32:29

And uh Ben Lowe, who uh was one of the who was the greatest living Tai Chi teacher until he passed away a few years ago, I was blessed with having uh trained with him uh for for a few weekend sessions when he came over from California to the East Coast. He would aptly say, uh, when you fight, you're not trying to uh exceed or meet the power of the other side. In fact, what you want to be at is zero. Now that might be an over-exaggeration, but in Tai Chichuan, we use the uh energy of our opponents, and uh and of course we want to strengthen ourselves. There are many ways to strengthen ourselves, but it's not to meet tit for tat and tit for tat. One of the uh fun things I like to do. Well, you know I'm an amateur magician, right? Yes. And amateur magici magic often, well, not amateur magic, and magic has to do with the sleight of hand, you know. I I I love it so often how how prosecutors focus on my left hand when it's the right hand that's packing the wallop. Did I ever tell you about that prosecutor who uh who was so self-assured that she knew everything and was going to show the judge of that, that that's how she lost her case?

SPEAKER_01 33:33

Um, I remember briefly, but I don't know if I remember the details.

SPEAKER_02 33:37

So for this one, it was a cocaine possession case. My client was a passenger in a car, the cop stopped the car saying that it was speeding. Um, and everyone gets out of the car, the cop says to everyone in the car, Do you have anything illegal on you? And my client says, I have cocaine in my purse. Uh come on, put that crazy glue, that proverbial crazy glue on your lips before you speak to the police. Meaning, don't speak to them when you don't need to. Um So uh the chemist from the uh state chemist lab was there at the courthouse. I was asking the chemist to show me uh her notes, and at one point the prosecutor said, You don't have to show them that. And I smiled at the prosecutor and I said, Ha, are you really gonna go down that route? She said, What are you doing? You're saying that I'm being unethical? I said, I don't have to do that if you take back what you just said, and if the chemist shows me those notes, and she took back what she said, and the chemist showed me the notes, and then we start for trial. And the cop, all self-assured, got up on the witness stand and he said, Uh, well, I um I clocked the car, it's speeding, and I objected. And the judge said, Why? I said, Well, the cop is saying that he was uh pacing my client. Uh so we don't have anything here about uh calibration of or certification of the speedometer on the uh cop's car for pacing my client. And little did the prosecutor realize that uh you know this kind of certification might be necessary and important to prove beyond a reasonable doubt to get a conviction for speeding, but not necessarily to stop for speeding. Judges all the time uh let the let cops uh eyeball say, you know, through eyeball that it looked to him like uh the cop car was going to at least 10 miles over the speed limit. And in fact, the judge overruled my objection. But what did the prosecutor do? Well, she was gonna show me, because in her mind she knows better than I. So the prosecutor went ahead and she proceeded to uh work to show that I was wrong and she was right, but the cop kept saying, no, there wasn't a calibration of my car. It had just come over from Detroit, it had 12 miles on the uh, what do you call it, the odometer at the time, and uh the prosecutor couldn't figure out how to uh prove that uh the stop was good, even though the judge had overruled my objection. Uh so the prosecutor gave up and I won the case. And so then I ended up representing the driver of the car two weeks later. He didn't have a lawyer, he got a postponement. Not two weeks later, four weeks later, you think you would think that the prosecutor would have figured out her error there, but she calls me up a few days later and says, Would your client go along with a paraphernalia uh possession um play? And because he had on him, I think, cocaine or marijuana when it was uh still criminalized. And I did the cat's hemin' and horn. Now you gotta do this, can't do it dishonestly. The hem and horn. Okay, I don't know. What are we gonna do now if the process is here? The cat's hem and haw. Well, it doesn't matter. It doesn't uh the hem and haw comes for different sources. Ah I don't know. I don't know. She said, What do you mean? I said, I don't know. My clients paid me a lot of money. I don't know if he's gonna like this, if he's gonna think I really um did my job here. She said, Well, do you think he would take an ultimate dismissal? I said, I'll see. And so, you know, I'm jumping for a choice. He doesn't see this while I'm on the phone. My client, of course, goes for it. So this is an example, Rachel. You know, I'm all about transparency. Let the pro let the prosecutors know what I can do. I mean, Muhammad Ali in his prime, he would he would win boxing championships when when his opponents could watch all sorts of videos from before, and in his prime, he'd still wallop them.

SPEAKER_01 37:28

Yeah, there was no beating him, so there's no beating you either.

SPEAKER_02 37:32

I'd like I'd like to take that approach. Well, Rachel, unless you have anything else that you think the listeners might want to know.

SPEAKER_01 37:39

I think we've really covered it.

SPEAKER_02 37:42

Yes, you've heard a lot of pearls today. And Rachel, thanks so much for joining us. Thanks so much for your excellent work as a member of our team over here. Uh this has been John Katz, criminal defense and DWI defense law in Northern Virginia, Fairfax, where you can reach us at beat the prosecution.com. Info at beat the prosecution.com 703-383100. Finalizing with our disclaimer, none of this is legal advice. You can only get legal advice from me if you're my client. Thank you so much.

SPEAKER_01 38:13

Thank you for having joined us for this latest episode of Beat the Prosecution. For more information, please contact us at beatheprosecution.com. Call us at 703-383-1100 or text us at 571-406-7268.

SPEAKER_00 38:32

Thank you for listening to this week's episode from Beat the Prosecution. This is a regular podcast giving people a leg up against police investigations and prosecutions. We welcome you contacting us at info at beatheprosecution dot com by calling seven zero three three eight three one one zero zero or texting us at five seven one four zero six seven two six eight.