SPEAKER_00 0:00

Welcome to Beat the Prosecution, presented by Northern Virginia Criminal Defense and DUI lawyer Jonathan Katz. We are here to regularly present you information and ideas for beating your prosecution as best as possible. Now for your host, John Katz.

SPEAKER_01 0:16

Hello, everybody. This is John Katz at Beat the Prosecution. I am a criminal defense and DUI defense lawyer in Fairfax, Virginia. I have had the creme de la creme in the fields of every single speaker I've had today. Not today, but the all the shows where we've had guests, and now we have double that pleasure. We have Jaleve Benavraham, a great criminal defense lawyer with the Prince William County, Virginia Public Defender's Office. And I say the same thing about Sean Stout and listen to that alliteration. We got Sean and Shaleb. Sean, please introduce yourself.

SPEAKER_02 0:56

Hi, I'm Sean.

SPEAKER_01 0:59

Okay. And Shalev.

SPEAKER_03 1:02

Well, I don't know how to follow that up. Now it's your brevity is the soul of wit, Shakespeare said. So I'm Shaleb.

SPEAKER_01 1:09

Okay. Uh I am telling everybody what is obvious. These two folks are speaking uh on their own. They're not speaking as representatives of the Princeton County uh public defender's office. What I I want to tell you why I invited these two guys, because really I have only thus far invited the creme de la creme of people in their fields. And this continues here with Jalev. He and I both attended the Chamberlores College in Wyoming on separate uh years. He's great. He's been so selfless. And I don't want to encourage other people to call him off the hook, but he's been so selfless with me and brainstorming with me on some of my toughest cases. And he's been on the money at all times. And uh he's a badass also, in addition to everything else he does for having been a capital defender. And uh Sean is in the same realm. Uh Sean is on the money with his advice. He's on the money with uh being very uh generous of his time talking with me. Uh he is very active with um uh the legal reform movement to help out criminal defendants, and maybe Sean is uh as well for that. Uh Sean, what what was the slogan in your ad when you were with those two law partners? Uh we fight the government, we represent criminal defendants, we have beards.

SPEAKER_02 2:30

Close. It was um we defend people up against the government, we stand up for your rights, we have beards. I think the website's long been taken down, but there's still the dumb above-the-law article they wrote because they wanted to uh laugh at our beards.

SPEAKER_01 2:48

Um this is all on audio. Let's just say that uh Sean has a full beard. Shalev has a beard too. Now, one thing that really caught my attention, Shaleb, about you, Frenny slogans is uh if you'll permit me to share this. My understanding is that you were once at a lawyer's gathering and you said you are in it for life to be a public defender lawyer.

SPEAKER_03 3:12

That is close. I uh if you want me to tell you exactly what it said, I'll tell you I was at the trial lawyers college. And um, without getting in into all of it, because you may someone may go there, but there's a part where you have to get up and um answer two questions for the whole group you're in front of in a big bar. I don't know if John, if they had you you do this way back when. And I got up after, I don't know, a bunch of people had gone and they had all moving things to say. And you had to answer two questions, which was, Who am I? And what am I gonna do with the rest of my life? And my answer was 10 words. I walked to the middle, I picked up the mic, and I said, I'm a public defender and I'm a fucking lifer. And then I dropped the mic and walked out.

SPEAKER_01 3:57

Excellent. And uh, is that still the way it is with you right now?

SPEAKER_03 4:02

I it sure is, yep.

SPEAKER_01 4:05

Now, uh, Shal, why did you become a public defender lawyer?

SPEAKER_03 4:10

Um, you know, it's funny uh when I get asked that question, um, there's a variety of reasons why, and it depends on any given day what what is more um the main reason. Um, I guess I believe in fighting um against authority. I think I believe in fighting against the overwhelming bulliness, if you will, of the state um against people in a criminal situation where, you know, uh I'm I was always used to say when I was in Fairfax, you know, the Fairfax uh has, you know, 1,500 sworn officers or whatever they have. You've got, you know, the Fairfax County Sheriff's Department, they've got the the Virginia State Police, they've got the FBI if they want them, they've got all these people, and my client has one person or two people, you know, from the public defender's office. And so the the odds are stacked up against the people who are um constantly, you know, accused of crimes. Um, and so that's one of the main reasons. I have I have other reasons that that vary at time. I I I believe in some of the more uh Frank Capra-esque concepts of our constitution, but I also am a very skeptical of our constitution in a lot of ways.

SPEAKER_01 5:29

You know, that's well said. And uh, you know, I have found I'm careful about the uh prosecutors I'm friendly with. When I was a public defender when I started in Maryland, I did break bread one day with a prosecutor, and he said to me, How would you like being a prosecutor, uh a prosecutor? And before I could even answer, he said, You wouldn't be able to stomach it, would you? I said, No, I wouldn't.

SPEAKER_03 5:52

Yeah.

SPEAKER_01 5:54

Criminal defense is what was made for me. Sean, why did you become a public defender lawyer?

SPEAKER_02 6:01

Uh, so I was in private practice before all of this, but I think it's where my heart always was. It's what I like, I my summers during law school were spent interning at the Fairfax Public Defender and then PDS in DC. Um, and public defenders are really just like my people. Um, they care in a way that no one else does. And while, you know, our caseloads are enormous and there are various strains and things, um, being able to sort of share all of the ups and the so, so, so, so, so many downs with a bunch of people who kind of feel similarly, uh, who care about the clients in the same way, who are similarly driven by just the rage at the the absolute injustice of the machinery we face against each day. Um, it it's it's just better than anything else I've done. I was in private practice um for a long time by myself, uh, and then for a few years for someone else. Uh, and there's just there's nothing like being in an office full of people who wake up every day wanting to do the things that I want to do and for similar reasons. Like we we really we we fight together, we laugh together a lot, and we, you know, cry, rage, scream, kick things together. Um, it's I don't know, it's just it's a perfect environment for who I am and what I do every day.

SPEAKER_01 7:27

Well, that sounds a little different from when I was a public defender in Maryland. A lot of the public defender lawyers didn't seem to have a political axe to grind. They just wanted to try cases. Uh, and and maybe they were a law clerk for someone who recommended them to the public defender's office. So what you seem to be telling me, Sean, is that your your office is much different than that. You have a lot of true believers in your office for the criminal defense for the indigenous, sounds like.

SPEAKER_02 7:53

Yes, well, I'll say this. I think that's somewhat generational. Like even when Shalev and I started, I don't think that the offices were comprised in it. You know, it depends on where you're at and what your like hiring draw is from. But uh it it's it was much more rare to come across true believers when we started out a decade ago. But now the the I don't want to say kids, but the young people that we interview uh are amazing, right? They've come through law school with this mindset looking at the world in the way that um, you know, they it it didn't really exist on a large scale in law schools back when we were there, maybe some, but uh, you know, the the the abolitionist framework and just general like sort of burn it down mentality, uh, I think is a lot more common against young people or amongst young people today. And like you can call it, you know, wokeness or whatever, but they seem to be much more aware that our system is evil than than people did back when when we were getting started. And there were those people, right? I met true believers back then and they sort of fueled a lot of of my fire. But um now there are just these huge crops of people coming out of elite schools uh who could really do anything, could make all the money, could go be, you know, uh federal clerks, could do really whatever they want with their legal careers, and they choose to do this because it it's the best way to use a law license.

SPEAKER_01 9:24

But how does that fit in with the fact that the head of your office uh ran uh to be the chief prosecutor in your county just a few years ago?

SPEAKER_02 9:34

Shallet, do you want to not answer this question or you want to be not answer this question?

SPEAKER_03 9:38

Um I I can I so I'll answer it and I'll be I'll be honest and blunt about it. And I don't know what Sean, Sean and I have never sort of discussed this. Yeah, so you know, the Prince William Public Defender's Office opened in August 2020. So let's just quickly understand, this was, I believe, the second largest uh population county in the state of Virginia that did not have a public defender's office at the time. Or it might be the largest actually uh population center that didn't have a public defender's office. So for people who don't know, not every county in Virginia has a public defender's office. There are still counties that just use the court-appointed system. Um and when the our parent organization agency, which is the indigent defense commission, was searching for a chief uh public defender to start it, Tracy Lennox, our boss, applied. And yes, John, she had run um for uh for the Commonwealth attorney back in what was it, 2080, I guess, 2018, something, whatever the off year is. She was the progressive prosecutor choice. Um, and she wanted to do a lot of things that I can tell you that if she had been made Commonwealth's attorney or devoted that, Prince William's justice system would still be bad, but would look a lot better and be a lot more fair than what it actually is right now. Um, the the battles we have to fight on a daily basis to get discovery, to get Brady material in Prince William. We do not have one of these progressive prosecutors in Prince William, even though she the cops appear to not like her. Um, the Republicans don't like her. But any of us, I mean, you know, we take what we can get, but I would not say she's anywhere near like the prosecutor in Arlington or the prosecutors in Alexandria, or dare I even say the prosecutors in Fairfax, she's much more conservative um with how she approaches cases. Wouldn't you say that's fair, Sean? Uh completely fair, yeah. Yeah. And so um, yeah, it was at first we're like, well, Tracy, this is weird, she ran for prosecutor. But when you got to know her and got to talk to her, her ideas about her understanding of um the the structural changes that needed to happen in Prince William County. For example, when Sean Sean practiced more in Prince William than I did, because as a public defender, I was you know confined to the jurisdictions I was at. But we used to not be able to, John, do bond motions. Bond appeal motions would take two days in Prince William to happen from a general district court. So a person comes in, they get a bond motion, we'd have to wait two days, and they didn't do bond motions on Friday, which means if your client was denied a bond in the district court on a Thursday, they could not even get a bond appeal until Monday.

SPEAKER_02 12:34

This is on a Wednesday, on a Wednesday, right?

SPEAKER_03 12:38

Because they didn't do Thursday. Yeah, they didn't do right.

SPEAKER_02 12:41

Well, well, if you right, right, because they didn't do, but uh you right, if but in general district court, they did they did them on on you'd have yeah, so you could get denied on Wednesday in GDC and then you file it on Wednesday, but with two days you couldn't get it on Friday. This is a little in the weeds for your podcast, John. But really, you could go Wednesday to Monday on a GDC denial before you have your bond appeal.

SPEAKER_03 13:03

In a county that literally the Fairfax County Courthouse is 10 miles away where you have bonds every single day that you could appeal within 24 hours. You tell me, I mean, that's the type of things that we had to start to fight and change, and they have changed. You can now get bond appeals heard within 24 hours. So you lose in district court, you get your bond appeal in the circuit court the next day, and you can get them on Fridays. That's the type of things that the public defender's office and that Tracy, when she was hired, realized the systematic issues that were at play in our courthouse and has had to constrain, I would say, Sean and I at times from filing motions and doing things because she wants to try to do an olive branch before we go total war and litigate. And the way I think about it is you know, I let her try the diplomatic approach, and when that fails, she lets me try the litigation approach. And I think that's the same for Sean. And that's why I actually like working for her as much as I do, because she kind of balances the the desire for Sean and I to, I think, go in and you know raise holy hell. And but eventually when it doesn't work, she lets us do it, and we go in and we do it for our individual clients, you know.

SPEAKER_01 14:23

So, Charlev, uh you attended the trial or as college in what year and and which follow-up programs did you do?

SPEAKER_03 14:30

So I um did my three-week course in uh the the second course in 2016. Um, so I did um the three-week trial course. It was in September. I got out there and left by you know the end of September, early September to the end of September. And then I did uh the one of the grad courses, I want to say it was grad course two at the time, um, the next year, which was a week-long course back out there. So that was the the two I did um when I did it.

SPEAKER_01 15:03

Okay, and so how much benefit have you gotten from the trial or as college in your practice? Did you attend making or some other major programs? I guess for instance, when you were a capital defender, and to what extent, and and what's the continuing legal education and and training system like, not only for the Prince William Public Defender's office, but for the public defenders as a whole in Virginia?

SPEAKER_03 15:27

Oh, that's a lot. So let me try to go through it and Sean, if I forget anything, uh, you know, step in here. Okay, so um the the trial lawyers college was um transformational for me um in a lot of ways. And I I've said this to a lot of people. And one of our colleagues right now, I convinced her to apply, and she got in and she's now down there. She went on Saturday, and she's now doing they're in New Mexico now, so she's doing the three-week trial course in New Mexico. Um it I went to law school, John, and I spent three years learning how to think like a lawyer, write like a lawyer, talk like a lawyer, um, approach life like a lawyer. Then I got out of law school in 2011, and I spent a solid five years trying to be the best lawyer I could, the best legal lawyer, writer, arguer. And I went to the trial lawyers college, and I realized that the success that I could ever have for my clients to make a difference was to stop being a lawyer and being a human again. And and to embrace um humanity, to embrace quite frankly, this is gonna sound kind of hippie-ish, but love and to embrace it through the jury trial system. That the jury trial is the true check. Um, and I always sort of believe this. I said Frank Capra S, right? And they've always I always I always believe this, but the jury trial is the equalizer when you have this government, this overbearing government. And the way you do that is by being truthful and honest with the jury and open to the jury so they see that you are providing that. So that's number one. In terms of training going forward, um when you first become a public defender now in Virginia, things have changed from even, I want to say 20 years ago when it started. But but now when you first become a public defender, um you um you go to a what's called PD boot camp. Um, and so they send all the, usually it happens twice a year, um, and they send all of the new public defenders across the state in Virginia that are in public defenders' offices, and they go to a week-long training by other um public defenders to help put it on who've been doing this for a long time. So I don't know if you remember Brad Lindsay, for example, he moved away, used to be a public defender in Fairfax, um, Allison Powers, you know, there's there's all these Ashley Shapiro, like there's all these people who um go and uh spend weeks on end to help train new public defenders. But when what happens is because it's also sort of decentralized, public defenders will then go to their own offices, and each office has to like come up with their own training plan and continued training plan. And some of the some of the public defenders will go to other CLEs um around the country. Some of them will apply to do the NCDC. You mentioned Macon, which is no longer in Macon. John, do you know that's actually in Fairfax?

SPEAKER_01 18:28

It's in Fairfax. I had to go there to the airport in Atlanta because there was a hurricane that sent it out of Macon. And quit and plug for NCDC.

SPEAKER_02 18:37

I got to do it in Rhode Island, which was beautiful. Um, doing it in Fairfax is sort of a travesty. You don't get the uh brutal southern summer heat or like Rhode Island like was a vacation for everyone there. They took us out there, we ate ate oysters every day, and it was gorgeous.

SPEAKER_03 18:52

Yeah, the Fairfax, the decision to go to Fairfax was a fascinating one to me, too. But so some people get to do that, and we've had people in our office who have have done that. Sean obviously did it. Um, I didn't do I didn't do NCDC. And then the so each office does its own sort of training. And just quickly on this, there's then an advanced training that we also put on in the IDC once a year for select people they have to apply to it. It's called Shark Attack, and it's also a week long now, and I'm one of the instructors of that, um, along with like, you know, Andy Elders, who you know is the deputy public defender in Fairfax, and some other main deputy public defenders around the state and senior public defenders who are just incredible at what they do. Um, there's a public defender down south, Ronnie. Um, she's incredible. I mean, just awesome. And so then those that's advanced stuff where we do more on voidier, we do more on how to cross experts, and we get to bring in pathologists, DNA experts, and citizen jurors to let this smaller group of PDs um practice that stuff. So that's really cool training stuff. And then um, Sean, I don't know if you want to briefly talk about kind of what our office does, which I don't want to get other public defenders, if they listen to this in the state of Virginia, upset at us, but I do think we do something uh a little more unique and we have a little more training in our office than potentially other offices do. And please, no one get mad at me for that, but I think that's probably fact. But do you want to tell them, Sean?

SPEAKER_02 20:25

Yeah, so I, other than being an intern, have never worked in another public defender's office. Um, I love all of you, but we're better. Um, our training, uh, I don't it it's just it's kind of intense. Uh, and it's something that I really wish when I started out uh just in private practice with nothing in the world except for you know a handful of public defenders really who served as my mentors despite having their own jobs and people to train and things. But we put people through is it a month or six? Six weeks, I don't know. By the time they're done with training, they've done five-ish mock trials. Um, basically all the stuff that you would try starting out, plus uh a domestic, uh, which in our office you don't get to JDR for a while, but we have people go through uh a bunch of essentially misdemeanor trials and um mock client interviews, uh client interviews. Um there's I mean it we start off from sort of like a uh a mile high sort of point of view where we're you know talking about why we're here and what we do the job for. Um I think on uh day one we play what do we we still do the TED talk from uh Jonathan rapping province.

SPEAKER_03 21:43

Yeah, yeah, yeah.

SPEAKER_02 21:44

And so we start from like a big picture theoretical point of view, but then we nail it down and we are somewhat brutal and demanding in the work that we have them do. Uh we're not giving them cases for those first you know, five, six weeks, whatever, however long it takes. Um, we they are in either a room doing trials or working together, or they're preparing their mock trials on their own, or their other uh like bond motions and things like that that we do as practice. Um, they are fully committed to being trained uh as opposed to just being handed, you know, uh a bunch of cases and sent out in the world with somebody watching them, which we do that eventually too. Uh and I I know some of that is because we are a large office and can make it happen. And it it certainly tests our capacity uh as attorneys and trainers and supervisors to do what we have to do with the office's caseload while still trying to do what we can for each new little pack of lawyers that comes in. Uh, and ideally, this happens once a year. We've been kind of lucky in that we've been able to do training classes so that they're working together and working through these things in at least, you know, small groups of a few people. Uh, but it and we make it work, even if we have one who comes in at an off time a year. But it is really focused, it is really um sort of arduous. We haven't made anyone cry in a long time, at least not in front of us, but it's just it's hard work and it's a hard job, and I think it prepares them in some ways just for that aspect of it. Because while law school is difficult, no one has prepared you for the stresses of a trial practice and uh all of the things that come with having clients and what the duties of this job are as a criminal defense attorney and particularly as a public defender.

SPEAKER_01 23:40

Okay, so that's great training. And what's the dichotomy between that and the court-appointed lawyer system? And that to me, there's some great court-appointed lawyers, but it's not their pay that's motivating them. And let's also get into this uh substitute judging system as well. They're not getting paid much either to do a good job as substitute judges. So we've got the court-appointed lawyers and the substitute judges.

SPEAKER_02 24:09

Yeah, so for the first six and a half, seven years of my practice, that's mostly what I did was court-appointed criminal defense. Um, it is certainly not for the financial incentive. Uh, we were just four for seven years while I had my own practice with people I went to law school with. Um, and the the system of compensation was abysmal. Uh, as John is, I think, trying to get at, it did just get raised this legislative session, but still abysmal. Uh, so rest assured that can it will continue to be the case that no one does court-appointed criminal defense work because it is uh financially um uh rewarding. It's not that. Uh so that you have these sort of two extremes, and then people who fall all along the middle with regard to court-appointed lawyers, um, is that there are amazing lawyers who do court-appointed work and they do it for the same reasons that we do it, right? We care about justice, we care about the human beings that the system grinds into dust, we care uh that that doesn't happen without us getting in the way in every possible way we can. And then on the other end of that spectrum, you have people who are just gonna scrape out, you know, whatever they can from a court-appointed case, plead up as many of them as they can, uh, and and really, you know, be that uh sort of stereotype of what I think public defenders used to be. And I think we've sort of started, especially in in places with robust systems, to shed that idea of what a public defender is. But I think uh there's certainly this realm of a court-appointed lawyer, and there are still you know public defenders who are you know just there doing a job, scraping out a paycheck in whatever way they can. Um and it out in the middle is every other uh uh you know kind of person trying to make it. And I greatly appreciate everyone who does the job, does the job well, and especially people who can make money at it uh in the private practice, but still use some of their time to take on these clients because even in counties with a large public defender like ours, there are going to be conflicts. We can only take so many of the cases, and so somebody has to do that work. The the public defenders, and I think very highly of public defenders I always have, you know, they they can't take them all, even if if only because of conflicts, and so uh it's awesome when you have a good group of people who will actually take those cases and do the job well, but it it is definitely the case in every county, and ours is no exception, that the the court-appointed bar one is not incentivized to be great, um, and and two they are sort of responding to the various financial and and other pressures that are out there. Um and I and some just may not care, right? It's true of lawyers of every kind, uh, that that it is just a job, right? They see it in a much more sort of black and white way as opposed to doing this job. And I say this not be I say for the love of the game, but honestly, I hate the game. I think the game should be ended in the way it exists. But and I think there's there's this whole stretch of people, and it is good that they just raise the pay, but um, the pay for court-appointed lawyers is only kind of half the battle, and there's there's no way to ensure that you're everyone who does it is gonna do it the way that we all think it should be done, right? But um that's that's true for I guess the entire arena of private practice as well, right? There's people who probably make lots of money and don't do a very great job. And I bet all three of us could look at each other right now and think of at least one person right off the top of your head. But I don't we'll move on.

SPEAKER_01 28:14

Well, right. Well, well said. So there are the great lawyers among the court-appointed lawyers, public defenders and private practitioners, and they're the ones who are schmuck and worse. Now, how much uh access do the court-appointed lawyers have to all this great training you're talking about, whether it's in a formal basis or even an informal basis? I mean, do the do the two of you guys uh give more of your time and attention permit perhaps to a court-appointed lawyer who needs to brainstorm than a than someone who's charging a lot more for the case and wants to brainstorm with you?

SPEAKER_03 28:46

Well, so I'll I'll answer that a little bit, right, John? I mean, um there are there are a few um uh lawyers that I will talk with a lot and they'll brainstorm and they'll either think sometimes they'll email me like you do, sometimes they'll see me in the courtroom uh or in the courthouse and we'll talk. Um, I have tried to give my time to anyone who wants to ask questions and I'm there to help. I believe in, I really do believe in the concept that if all you want you talk about is beat the prosecution, you know how you beat the prosecution? Trials. You know how you get trials, you get every lawyer to convince their clients that it's in their best interest to give it a shot and go to trial, especially in our district courts, which and I don't know if you could explain kind of the legal process in Virginia, so I won't, but how there's the district court versus the circuit court, and so to me, if I can help some court-appointed, if I can help some paid attorneys to learn about a case that's gonna work or to fight a case, it means they're taking up prosecutors' time, they're taking up court time. Here's the truest thing that they'll never tell you if every single person who was charged with a crime decided to go to trial, the system would collapse tomorrow. It just can't be done. The plea bargaining system is the only way that this current criminal justice system plays in place. And as lawyers, unfortunately, our ethical duty is we have to always present a plea offer to our clients and we have to advise them ethically. They we can't tell them if it's a good plea deal to not take it. We we have to advise them, but it is the client's choice. And so when a new court-appointed, an old court-appointed, uh, just a private attorney, a great attorney, a mediocre attorney, a bad attorney wants my advice, I give it to them. I try to help them and I try to help everyone because I think it helps my clients when the prosecutor's occupied for two and a half hours on a DUI trial and the judge is getting upset about how long it's gonna take because it's running into their civil docket, that they're maybe gonna give me the offer then on my case afterwards that my client is looking for, right? Um, so in terms of just quickly, you said formal training for court appointed. My understanding is that the the indigent defense commission, which is the overarching Virginia parent company that you know kind of runs the public defenders, also keeps what's called a the court-appointed list. You have to be certified to be on the court-appointed list. You have to be certified to do juvenile cases, certified to do misdemeanors, and certified to do felonies. And there's an initial certification process, which includes watching videos and proving sort of basic knowledge of how to do these types of cases. Um, they then people, lawyers have to retain that certification every two years by proving that they've done approved CLEs and continuing in the realm. In terms of trainings, they offer, they do offer some online free CLEs and sometimes some live CLEs. Um, and then there's once a year, I know there's the the Virginia Supreme Court in conjunction a little bit with the Indigent Defense Commission, but more on its own, also does an advanced, what they call an advanced trial, criminal litigation trial thing down at Richmond, and they also have satellite sites. So all the court appointed can get some CLEs and do a training. Is there intense training the way that our public defender offices have set up, either the boot camp, shark attack, or the way our individual offices? I don't believe so. I don't think that those opportunities necessarily exist. So if you're a court appointed and you want to get more trial level training type stuff, you have to find CLEs. There are scholarships. Maybe you can sometimes there's scholarships if you just primarily do court-appointed work, NCDC, the one you know, people go out and do trial lawyers, college, stuff like that. So um that's the quick answer. They don't, we I don't think we offer to the court appointed the same level. Um uh and and I think if the budget was there and we had the ability to do it, I think it would make sense. But I will say that the IDC has tried. Um, the the training people who run the IDC, I know them well. They're trying to put out more CLEs, they try to help people, they're trying to raise the bar, if you will, raise the level of competency amongst all the court-appointed lawyers. Um, and so yeah, that's kind of a just a quick general idea of how that that works.

SPEAKER_02 33:22

And of course, just really quickly, the IDC is doing a seminar just for court-appointed lawyers at our office this week. They're doing two separate sessions, they're both the same session, but it's three hours, and some of it is what we get. Like I think their sessions that we had at our uh annual PD conference, which is you know just for the public defenders, but I do think the IDC and uh a lot of the training people are public defenders, but are trying to put out as much of this education as possible to the the court opponent bar because we all share the same goals.

SPEAKER_03 33:58

And just quickly on that, one of the sessions is about Brune. Um, I don't know if you know about Brune, John. Um the yeah, and so um one of the one of the the public defenders, uh William Seifert, is um, and I've talked to him about this too, well, because we've um, you know, I believe this is well, what my what my position on the Second Amendment is doesn't matter. The U.S. Supreme Court has seemed to suggest that if it was part of the regular uh gun culture, if you will, in 1800, then it cannot be a crime. Virginia charges children under the age of 18 all the time with possession of a handgun. I do not believe that is a crime anymore under Brune, because if you go back to 1805, the militia in Virginia, you could be 15 and be in the militia and you had to supply your own gun. Um, and so the the the the rules and laws about guns in in Virginia and in the United States in 1805 meant that 15 and 14-year-olds could have guns. So that can't be a crime anymore. So this is the type of thing that they're putting out. So yeah.

SPEAKER_01 35:07

Now I want I'm gonna give a pitch for the public defenders. I mean, I started my criminal defense career as a public defender. There's a great story about a great lawyer who smoked himself to death, apparently, Alan Goldstein, and he shows up at the preliminary hearing or I guess arena or something like that, and he's gonna be charged with the murder. And the gunman charged of the murder, he says to Allen, who the hell are you? He says, I'm your commitment poem in the law. He says, Screw you, and I'm gonna go hammel and goldstein. He's gonna go to the committee poem in the morning, courtroom, somebody says, Jason and says, that'll be half a million dollars. Um I mean, I don't know if that's more um common other states where uh the clients disrespect the lawyers just because they're a public defender or um um or common deployment lawyer. Can you can you uh touch on that, Sean?

SPEAKER_02 35:58

Yeah, I mean, I think you're always gonna get that. But like I was saying, like I think it has like with the next generation started to somewhat change in the perception because you do and have now for you know decades at this point have these really robust systems of public defense. Um, and you know, they were mostly in big East Coast cities, but even now, like uh California, Colorado, uh Nevada, even now have built up uh these very good public defenders' offices. And so at least in those places, I think people start to speak differently. And then you have the the generation of people who are coming up and want to be public defenders because of this belief in something. And so I think the perception has changed, but not all that much, right? People still think uh I like I I had somebody less than a month ago um look at what they were facing on a probation violation, look me in the face on the first time I met them and say, Yeah, I think for this I gotta hire a real lawyer. Like that that's always gonna be there. And you know, I I as far as lawyers' reputations in the jail go, he could ask around and find out about us. But like, nah, he he he looked at me, he's been around, he's like, nah, I gotta, I gotta get a paid lawyer. And so there's always gonna be that perception that if you pay someone, you will get a better result. And it is true that, like, you know, if you got uh six figures to pay a lawyer, you can probably find someone who you can pay you more attention than I have time to do, but maybe not who will actually pay you more attention than I can because I'm in the jail every day. I don't know, it it's it's sort of baffling to me that it continues to persist in places where we have these amazing offices that that build these reputations. Like, and honestly, like in places like Fairfax, where they've been awesome for a long time or Alexandria or in DC, I think again, the perception changes over time in the community as to what it means to have a public defender. Uh, but yeah, there's always going to be that disrespect. There's disrespect amongst the bar uh from people who, quite frankly, are not remotely on our level. Um because of what we do and what we've chosen to get paid to do it.

SPEAKER_01 38:27

Whenever um I get contacted by a defendant who has a public defender lawyer or the relatives, and they say, hey, you know, we're not happy with them. We want to change. Um when it's um a public defender lawyer whom I know is excellent, I say, they're excellent. I don't, I really don't know why they want to change. And um hopefully that makes the life of um the public defender lawyer who's dealing with it um when they get that praise. I want to talk about racism in the criminal justice system. Let's just let's start with Sean. I was talking with the public defender law in another jurisdiction about why we do criminal defense and why we would uh both feel uh wouldn't be able to stomach doing prosecution. And she immediately immediately said, We all know the system is racist. Is that an oversimplification, Sean, or is that spot on? Spot on.

SPEAKER_02 39:18

Um I I would never be a prosecutor because it's evil, but it is inherently and systemically uh again, racist is such a like sort of um what's the word? I don't know, it causes feelings, right, amongst people of political persuasions uh to call a system racist because people are racist, but people who are racist created a system that has very racist impacts. And so um it is perfectly a fair assessment of our system to say that it is racist, and that it was designed through various periods of our political history in order to negatively impact people of color and poor people as well, and sometimes that just goes hand in hand, but it it was designed to do what it does, and what it does is overimpacts communities of color with the damage that it inflicts. Does it damage white people too? Absolutely, does it damage rich people barely, but it it it certainly like causes damage for most of the people who get wrapped up in it? And I say that and I I include people who are also the victims of crime. I think the system doesn't do a whole lot of good for anyone, uh, but those negative impacts are just greatly disproportionate to population when it comes to people of color being caught up in it.

SPEAKER_01 40:48

What do you think about that, uh, Shalev?

SPEAKER_03 40:51

Yeah, I I think I think Sean is spot on. Um I think that throughout long periods of our history and long periods of how uh laws were created, um, they were created at times and the rules that have been associated with it over hundreds of years were created um when we had uh legal um segregation, uh legalized racism, right? Um you know, uh and so it's hard sometimes to square the idea of using something like the law um and not recognize it. And you know, you go back to guys like Clarence Darrow, right, in the in the the 1920s, and I think it's in the sweet trial, maybe not the sweet trial, it might have been in the Leopold and Loeb trial. I don't remember, it might have been Leopold and Loeb actually, where he says to the jury at some point again, it could have been sweet, I don't remember which one. You know, this case is all about racism. That's what it is, and he confronts it and says, you know, basically, um, if it if this had been a white defendant, or I think in Leopold and Loeb's case, I think his argument was if they hadn't been rich, so it must have been the sweet trial, um, that you know, if if this had been a white defendant, we wouldn't be here, right? That that racism is everywhere here, and he confronts it, and that's that going back to that TLC thing about the truth of it, he's got an all-white male jury, and he's telling them that all of them are racist, and it works, right? It works because there's some truism to it for them, and um, you know, part of it is that also part of it is, and I'll just if I can for a second, you know, it's tough. Um, because like I said, uh I I believe in the ideals of the constitution. Um, I probably believe more in the ideals of um the declaration of independence, if that makes sense. Because the constitution to me, the more I think about it, forget the Bill of Rights part, but the more I think about it, the constitution is a free trade agreement amongst the states. That's what it's about, right? If you if you take the Bill of Rights out of the Constitution, what do you have? You have a free trade agreement, um, no different than the European Union, right? As it is today. So it's hard sometimes for me to sit here and then realize that you know we have this document that we're supposed to put forth as our shining thing. And what really does it do? It sets out how we're gonna make the economy work. And um, it's not until there's some bill of rights that talks about the individual freedoms and liberties of people, and then we can get into, and that's a longer debate for another day, about how much erosion the court has done, um, the courts over the years on what it means for the right to be secure against you know illegal. Search and seizure or unconstitutional search and seizure. So, anyways, that was a long answer to stay, but yeah, I agree with what Sean says.

SPEAKER_01 44:07

Okay, as uh as Shalev pointed out, the name of the show is Beat the Prosecution. So let's go right into it, Shalev. You talked about uh beating the prosecution by going to trial, uh, but but let's let's uh let's go deeper. What is needed to beat the prosecution? How do we deal with the judges who urinate on the constitution? How do we deal with the prosecutors who will violate the requirement to disclose exculpatory evidence, do underhanded things with cops, uh violate uh the rules on witnesses by talking to witnesses in the middle of trial when they're not allowed to?

SPEAKER_03 44:44

Oh boy. Um, so uh this is you know, this is tough. So Sean, Sean has spent more time dealing with how to fix some of these things legislatively. And I do think that that's important. But you know, and to give a quick example, right? Um, the Virginia legislature a few years back said, listen, we don't like that people are getting pulled over in cars. And just because there's a smell of marijuana or they're or or they get permission, the cops get permission to search the car, the people are getting charged with like marijuana. So we're gonna make it inadmissible, meaning it doesn't matter whether there's consent, it doesn't matter whether there's in fact a legal right to search that car under the federal constitution. Any marijuana products found while driving that car um cannot be used in trial, can't be used as evidence, right? What did the judges do? The judges said, first they said, well, that can't apply to anything before this law came into effect. And that's just not true. And here's why they're wrong. And they they came up with their reasons why they're right, and they were supported by the appellate courts to some extent. And and what it was was they said, well, there's a difference between substantive laws and procedural laws. Well, the legislature wrote a procedural law, they wrote a law that is an evidence law, and in every context, evidence laws are procedural. So if I'm charged with a DUI on the GW Parkway, which is federal property, the evidence rules are the federal rules of evidence that apply when I go to court because I'm in a federal court. It means I don't necessarily get a jury, I get a magistrate judge. There's all sorts of things that happen that are procedural. Um, yet these judges claim this law of evidence was substantive. And so you have to ask yourself, and this gets back to a debate that they talked about in the 20s and 30s about legal realism and the idea that judges decide how they want to rule on a case and then they find a way to make that precedent or they go back and find the cases that will um make their case for them, you know. So, how do you beat the prosecution? You can go at it from a legislative effect, but I really think the true, the true issue there is we have to deal with judges. We have to actually making fixes to the code might work. They don't really want to listen to that. I think we have to hold judges accountable. I think that we we have an interesting system in Virginia. I think we're now in one of two states that doesn't do election of judges. I think that might be right. And I'm not saying we should be electing judges either. I don't necessarily like that sort of theory of it, but the legislature needs to be quicker to yank judges who are bad. There needs to be a professional group that monitors judges and trains judges that sits in in private and watches how judges handle cases. And if judges are doing things wrong, not following the law, they get written up and eventually they get pulled. There's no reason that judges are not fallible. They in Virginia they are not Article III judges, like in the federal system where they're appointed for life. We should have oversight. So that's number one from a legislative challenge. Now, what do we as criminal defense lawyers really do? We have to try cases. And you're going to be obstructed by the law because the law is against your client. Because, like we said, it's written by whether it's written by people who were racist or whether it's written by people who want to keep those in power economically to stay in power and it favors the rich and those who are there. Perhaps that's a, you know, that's kind of what I think it kind of does sometimes, because laws are produced by the people who have money to influence the politicians, and that's rich people, not poor people. Then the only equalizer that I can ever see is going to 12 jurors, right? There are four boxes of freedom, John, in my opinion. I use this sometimes. I talk about there's four boxes of freedom. There's the soap box, there's the ballot box, and there's the jury box. Sometimes you have to go to an ammo box. I don't like to talk about that that much. You don't want to go there. It doesn't really work. But the jury box is a check on the government. And when I look at the Virginia State flag with its six semper tyrannis, which, by the way, is what John uh John Wilkes Booth said after he shot Abraham Lincoln. So you want to talk about what's in these courtrooms, a flag that has the saying of the guy who shot the president and killed him who freed the slaves. You want to talk about racism? Let's talk about racism. That's on the state flag. And when I look at that state flag and I tell that jury it does say six cent for Tyrannus, and you know who the tyrant is? It's that guy sitting right there, the Commonwealth. You know how you make sure that you make that, you know how we talk about freedom? You want to talk about service? How about the guys who the 80th anniversary of D-Day is in what two days, three days? Let's talk about what those guys did when they jumped out of planes, when they came across the English Channel. And what did they fight for? They fought for the right that 80 years later, my client, John Smith, sitting right here, will have you, jury, hold that government to its burden beyond a reasonable doubt. That is what this is about. Don't let that sacrifice, whether it's at the beaches of Normandy, sacrifice on the 38th parallel in Korea, in Vietnam, in the Gulf, or all that people are doing now, don't let that go to waste. Don't make that in vain. That's how you equalize it. You go to the jury. Never have a bench trial. Never. I've once you get a chance to, I mean, we have bench trials downstairs. Once you get a chance to go to circuit, there is no reason I have ever found that you should ever have a bench trial when you could have 12 or six or seven jurors that you can talk to. That is where the power is. And so we need to make trial lawyers who want to speak to jurs, who want to speak truth to power, right? Power to truth or whatever that phraseology is. Sometimes I get my idioms mixed up, right? We want to do that, and we want to bring, we want to bring, I'm not great at it. I'm not great at them, you know. We want to bring that to the jury, and the jury is the equalizer, they're a box of freedom. And so I'll say this. I told Sean I was gonna tell you this, John. Will the Donald Trump conviction do more for criminal justice reform than any progressive politician or progressive prosecutor or progressive judge ever? Possibly. Because for the first time, all the people who are now going, wait, prosecutors just get to decide who they want to charge? Wait, a judge can hold say no to evidence? Uh uh, they have all these rules that are in favor of them. It boggles my mind. But perhaps in some way, in the way that we would say that Scalia, in his Crawford ruling and brought confrontation back, has freed more people on confrontation issue, even though it's someone who's probably not in line with that. Maybe the Trump convictions will bring more progressive reform to the criminal justice system than anything any progressive has done.

SPEAKER_01 52:05

Well, I'm up with soapbox now. Okay, so before we go to Sean, do you have prosecutors filing uh motions to prevent you from calling them tyrants to the jury?

SPEAKER_03 52:15

Not yet, but if they hear this, they will next time.

SPEAKER_01 52:18

And and how do the judges react? They don't sometimes just on their own say, hey, you can't go there.

SPEAKER_03 52:23

So, so I think I I've never said the word tyrant in that way, right? Um, but I have said that the prosecutor is the one who brings the charges. The prosecutor, you know, one of the I don't want to give all the secrets away, right? Because I want to keep them for my clients. And I you are putting this out on the airwaves. If we were in private, you know what I would say. You know what TLC teaches, you understand what we teach about storytelling and these truisms, and it's so easy, they make it so easy to give us the stories to tell these juries who then are upset about it. I mean, we I sat on a jury uh a month or so ago where um they the officer just didn't preserve video of what happened, and the jurors were kind of enraged by that. And so they found the client absolutely not guilty after he'd sat in jail for two years waiting for a trial, not guilty of anything because the jurors, we talked to them afterwards, said, I don't understand how an officer has a body worn camera on and he doesn't turn it on, or when he does turn it on, he turns the sound off so we can't hear what's being said. We don't like that, and you know what we talked to the jury about? I didn't do it. My colleague is the one who talked to the jury. She talked to the jury about that very thing. How is that fair? How is that fair? You have you have you could have preserved this evidence, and that jury said, you know what? That's right. We don't think he did it. And even if they did think he did it, they were gonna say not guilty because the government has a burden and the government shouldn't be playing games with it, and the government shouldn't hide evidence, and the government shouldn't be allowed to lie to us and tell you lies um when it comes to things like this. And I think jurors take it serious. That's the other thing. I want to say it just quickly. I'm sorry, I'm I'm on a rampage. Sorry, Sean. Jurors, I have never found when I've talked to jurors afterwards. I have never found a juror who was like, Yeah, I just didn't want to be here and I didn't take it serious. Every single one of them, once they're picked and once they get in there, they feel the gravity of what they're doing. They understand that, and it's it's you know, civic duty, whatever, it's they understand what's at stake, more so than some of the players in the system normally. I think prosecutors and defenders, and whether court-appointed public defenders or or uh, you know, uh paid uh attorneys, police, sheriffs, whatever, judges, clerks. I don't think they truly they see it so often that they get desensitized to what it means to put someone in jail and to say someone is guilty. And jurors don't, and that's why they're the equalizer. Jurors are the equalizer to this whole thing, and that's why I believe in jury trials. Sorry, now I'm done. I promise.

SPEAKER_01 55:16

Uh this this has been a great uh conversation. Sean, uh, can you please address uh your work with civil justice and anything else and reforming the legal system, including discovery uh in general district court and uh in Prince William. Uh and also are you willing to um talk about not only prosecutors who urinate on the Constitution and are just heartless, uh, but also maybe about this uh what I think doesn't exist doesn't belong here, the substitute judging system.

SPEAKER_02 55:48

Oh God. All right, let's see if I could keep that straight. You said first reforming the system uh is extremely frustrating. Uh Virginia did uh over the last few years and largely uh thanks to you know Justice Ford getting a bunch of other groups together and really leading the way, uh, but made some pretty substantial and monumental changes. Ever since then, you know, the people on the right and evil people on the on the middle have been trying to dial those back, right? Anytime you have a swing that goes moderately in the direction of criminal legal reform, you're gonna have, you know, the the tough-on crime barrage just sort of beat it back the other direction, uh, because policy is created by fear largely in this country and I guess everywhere. But that that leads us to like take two steps forward and then a million steps back. Luckily, they haven't sort of dialed back most of the good work that was done in 2020, 2021 with probation reform and things like that. But they passed some good things this year and and the governor vetoed them all out of spite because he didn't get his stadium. So politics is messy. The closer you get to it, the grosser it is. Um, and I, you know, I still like it when they make progress, but um it is at least day to day a lot more tangible and a lot more, I guess, personally both enraging and satisfying to be able to deal with these things on the ground for each individual client. Um, but it there is always room to improve it. They they improved it in the past. Someday maybe we'll come to an enlightened state of being. I'm not super hopeful given this country's politics and how we discuss things and just how dumb we are in general. Uh, what was the second thing? You said something about discovery in Prince William County, an ongoing and forever battle as long as the people who are in power are in power. Judges are way too deferential to prosecutors. Judges won't enforce their own orders if it means doing something bad to the prosecution. Um, and it this all goes back to the whole law and order, and the reason policy swings back the other direction is because it's really easy to make people scared of crime. All people are scared of crime, nobody loves crime. Um, I mean, I'm probably more pro-crime than the average person just because I've been radicalized. But like, it's just I'm so anti-everything that they do. Um, that I'm like, I don't know, some crime's not that bad. Like when you get to be seven years old, I have a firm belief that like every year of age you gain after that, you should get to commit a slightly more serious crime, maybe once a year. Like old people shoplifting, sure, let's go for it. Um, but all in all, judges are very deferential to what the prosecutors want to do. So the prosecutors get to dictate what it is that we get in discovery, unless you can uh have the legislature make drastic change to that, and that's difficult for the same reasons I've already discussed. Um, and then appellate courts are somehow even worse about actually defending the the big picture rights of people going forward. No one ever wants to, you know, make the decision that frees someone who did something bad. And so we do horrible things to people who did bad things, but we also did horrible things to to everybody else who gets caught up in this horrific system. And what was the last thing you mentioned?

SPEAKER_01 59:06

Okay, so we've got this substitute judging third.

SPEAKER_02 59:09

Yeah, I kept it in my head. I don't have strong feelings about how substitute judging works, except for Shalev. Yeah, I don't have strong feelings about specific people. Um but yeah, let's Shalev uh address that.

SPEAKER_03 59:22

Yeah, just quickly, I mean, the the substitute judge system, there there are like there are some who are really good when they're substitute judges because they call balls and strikes. Like at some point, I've come to realize that what I want is I want a judge to apply the law as it's currently written, even if it's against my client, because I'm smarter than other people and I figured out how to use the law to my client's advantage. The problem is judges don't call balls and strikes. That is their job. It is not their job to make the prosecution's job easier. It's not their job to prompt them, hey, um, officer, did this happen in Prince William County? That is that is putting their thumb on the scale of justice, which they are not supposed to do. Substitute judges in Virginia, um, just so everyone knows, right, what happens is there's an application process, and uh usually the chief circuit court judge at the time of your jurisdiction gets to create who the substitute judge is. Um, there's really no there substitute judges are then um bound by the same judicial uh ethics as regularly sitting judges are, which means they're I my understanding is they're not supposed to be donating to political campaigns, they're supposed to be kind of like beyond reproach sort of situation. Um, but there is no method to actually remove them other than to tell the chief justice, chief judge of your jurisdiction that this substitute judge is bad and should be removed. But let's think about that logically for a second. I'm a chief judge and I've said, after all these applications, I picked this person, this person's gonna be the person. And then, like a year and a half later, someone says, Hey, you should remove that person. They're really bad at this. What are you actually saying? You made a bad choice. Do we think that that chief judge wants to remove people who are bad at this? No, right? That that that's that's it's very rare that anyone, whether a judge or otherwise, will ever admit they're wrong. Um, so the legislature needs to do something, the legislature needs to um do evaluations, the legislature needs to create, as I said before, some kind of judicial entity that truly evaluates. Right now we get these surveys and we don't get them for subjudges, but we just get regular surveys, and the surveys say things like, you know, on a scale from one to ten, does your judge show up on time? Right? From one to ten, how are they on the law? From one to ten, um, are they courteous in court? It's a bunch of BS. These surveys do nothing to talk about does the judge understand the law? Does the judge apply the law fairly? And they put them in such a way that they they tend to give to skew that judges are gonna have higher scores. And then when the legislature gets it, what do they do with it? Right? Um, basically they look at it and like, oh, is it sour grapes? It's a bunch of lawyers saying that these judges are bad at their job because they ruled against them. No, these judges are not good, they don't call balls and stripes. That's what they're supposed to do. And I will say this, and I won't say the person's name. There is someone, I mean, a lot of judges are former prosecutors. That's just the reality of it. There is a former prosecutor that I go in front of uh quite often in in various courts. So there's multiple of them, and they are, and this is in various courts, and when I say various courts, I mean in I've done it in Fairfax, I've done it in in Arlington, uh, I've done it in um in Prince William. And there are prosecutor judges that call balls and strikes and do not give advantages to um the Commonwealth. And I'm perfectly fine. Give me that because you know what? I'm gonna, there's no one is ever gonna outwork me, which means I'm gonna find the cases, I'm gonna find the the sort of like the rationale and reasoning. And if you're not putting your thumb on the scale and you're just calling balls and strikes, it's gonna help my client. Um, and that's and that's prosecutor judges, former prosecutor judges, you know, um, who who give a fair trial. And that's all I really want, you know, fair trial.

SPEAKER_01 1:03:38

Well, guys, I say this would be 60 minutes. We've gone a little over time, but I do want to know if Sean has any further ideas on beating the prosecution, including dealing with those prosecutors who are urinating so blatantly on the constitution.

SPEAKER_02 1:03:52

Oh man, John has used the word urinating on the constitution multiple times. He really wants one of us to talk about someone being on something. Exactly. I I I'll just say like we just we keep fighting. I the driven by rage and caffeine every day. Um, and I I I don't know, it's very like it's a such a graphic description. And I haven't even sworn, I haven't sworn once this whole time. So I yeah, he did. I'm just gonna finish by saying fuck.

SPEAKER_01 1:04:26

Okay. Uh I think that's uh that's an acronym for the Foundation for the Unrestricted Creation of Knowledge. This has been Beat the Prosecution. I am so delighted, and I have been uh working very hard to contain my excitement on being here with Sean Stout and Shaleb Ben Avraham, two excellent people in their own right, two great lawyers in their own right, two great public defender lawyers in their own right. Thank you very much. Stand by, guys.

SPEAKER_00 1:04:56

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 infobeatheprosecution.com by calling 703-383-1100 or texting us at 571-406-7268.