SPEAKER_01 0:00

Welcome to Beat the Prosecution, presented by Northern Virginia, criminal defense and DUI lawyer Jonathan Katz, where we are here to regularly present you information and ideas for beating your prosecution as best as possible. Nothing on any of our media sources, such as our podcast or website, is legal advice. John Katz only provides legal advice to current clients or for individuals who have paid for a consultation. And now for your host, John Katz.

SPEAKER_00 0:30

Hello, everybody. This is John Katz at Beat the Prosecution. I'm a criminal defense and DWI defense lawyer in Fairfax, Northern Virginia. This is a little break from us having guests. We're going to have an outside guest, that is. We're going to have a dynamite outside guest next week, my martial arts Tai Chi teacher. And I'm going to be talking to you about how martial arts integrates well into beating the prosecution. It is my delight to introduce you to our new podcast master and legal assistant, Hannah Belliacci. Hannah, please introduce yourself.

SPEAKER_02 1:05

Hi, my name is Hannah Belliacci. I started working as a legal assistant for John early this month. It's been a delightful learning experience, truly. I got my bachelor's uh in public relations from the University of Lynchburg with a minor in political science. Um so this isn't my uh first go-around with uh political discussions regarding President Trump.

SPEAKER_00 1:26

Uh-huh. So you've revealed what we're talking about today. Thanks for joining us, Hannah. Uh the time that we're uh recording this is approximately 2 o'clock p.m. on Thursday, May 23rd, when I guess the verdict's coming in at any point against uh that was a slip against Donald Trump about Donald Trump. Uh I don't believe it's necessary for talking about beating your prosecution for me to say whether I like him or dislike him, but I think we've learned a lot. Uh uh criminal defendants can learn a lot from what happened, right and wrong, at this trial. Uh I don't believe in the idea of getting on the bandwagon of talking about what everyone else is talking about. Uh this case is in the news, so I'm putting my own spin on here about talking about beating the prosecution and ideas from that. I will point out, though, politically, um that uh my understanding is this is the first former president, let alone current president, whoever has been prosecuted for an alleged crime, and I guess it might go along with any uh major party candidate either. Uh Nixon was going to get prosecuted if he didn't resign, I think, but he resigned. A little tidbit here. Do you know that I uh I've seen at least um uh two presidents in person? Did you notice three current and former presidents? So when my family came to Washington in 1974 in April for our first family trip to Washington, we stayed at the uh Washington Hilton, which is north of DuPont Circle, and uh I think the person check us in said, you know, Nixon's coming for a a press conference. Well, all I already didn't like Nixon because I knew that he taped conversations in the Oval Office. If nothing else, I didn't like him for that. And uh but we waited for him to come and he uh and I was very upset at myself. He uh came out of the limousine, he had this big grin on his face, and he was been giving a big wave to the crowd, and I waved back at him and I almost grabbed onto my arm that was waving to him and to shove it back down. No, you don't like him, don't wave to him. Well, later I found out that if I was going to dislike Nixon for uh recording in the White House, well, there's things I dislike about him more than that uh that I found out later. I was only 10 at the time or going on eleven. Uh well Lyndon Johnson was so excited about showing Nixon into the Oval Office uh soon before Nixon was uh inaugurated, and Johnson took him over to this cabinet area and showed Nixon Johnson's recordation device. That's right, it started at least with Johnson, and my understanding is that John Kennedy would record phone conversations as well. Well, as it turns out, in Virginia you don't even have to have the uh the permission of the person you're speaking to to record them. So that just brings it full circle. So if Nixon was in uh Virginia, what he did would have not been illegal at all. I don't know if it was under federal law to be recording people.

SPEAKER_02 4:21

Yeah. I mean with the borders being so close, uh you could always push it one way or the other.

SPEAKER_00 4:26

I have a saying that uh one reason why a lot of people are so polite in Virginia is we don't know who's packing heat because it's so easy to get a concealed carry permit for handguns, but uh the U.S. Supreme Court made it easier in the rest of the nation, and you never know who's recording you. So before you go dropping F-bombs and all that other stuff, you don't know if they're recording you. Now on to our topic. Well, let's talk about what went really wrong for the uh Trump side on this. I think that even the best lawyers, and I I have not been following his case closely, but I think that even the best lawyers would have a lot of trouble reigning him in, and his lawyers probably realize that. For those who like the almighty dollar, they might like the idea of being paid by Trump, at least if he pays them in advance. There's uh been questions in the past about whether he pays all his vendors timely. Um but uh nonetheless, regardless of the motivations for uh Trump's uh lawyers to be defending him, uh, you know, my view is if my client's gonna uh pay my bill and is gonna work with me as a team and is gonna be too much of a headache, I will generally defend them. Uh if Donald Trump came to me to represent him for something, I would think twice. I think he's a liability. He's a loudmouth, he's full of himself, he's a control freak. Oh, did I say earlier I wouldn't give my opinions? Well, I didn't say anything about politically about him. Uh no, really, he is an example of your client from hell. And he's gonna feel all the more entitled because he's paying the money, and he's paying good money and uh when he pays the money. Uh but nonetheless the reports are, you know, for whether the reports are true or not, that he would do a lot of eyeball rolling in the uh court, uh, that he would even say expletives, and uh to the point where he had warning, well, he had several contempt findings. He's already well, I think he's a convicted criminal already, if he got contempt findings, unless these were civil contempt findings, I think these were criminal contempt findings. So he may be the only uh uh the only president in history who got who's been convicted of a crime already. I mean, it's a misdemeanor, I think, to be convicted of contempt of court. And uh the judge warned him on at least one occasion, look, you know, I know you're a presidential candidate. I don't want to have to put you in jail. I mean, yes, it's true. Uh for people who want a democracy, this this trial timing couldn't come at a worse time. Uh when we're gonna have the presidential election, it's gonna be in 2000 It's gonna be this year. My gosh. It's gonna be in seven months. And sure, you know, Trump would want to be uh campaigning. But I mean there's only so much that a lawyer can do to uh put the reins on their client. I mean, if my client was doing the eyeball rolling and and and the expletives, you know, I would uh I would have a talk with them and and just make sure they're making an informed decision. And I'm not gonna let my client drag uh drag me down with them. Um so uh that that's that's just not easy because I don't think that the lawyers are gonna get in trouble for for what Trump is doing, but that doesn't help make the lawyers look good. They are trying to defend this man, and he is engaging in sideshows with the eyeball rolling, with the expletives, if nothing else, uh with even the evil eyes, if that's what he's doing uh to some witnesses. So how would I handle it if I had a client who was doing that? Well, I want to defend them, and uh and I should have sensed in advance whether this was a client who was gonna be doing that. I think it should have been very obvious to Trump's uh lawyers that he would engage in such shenanigans. He's doing it now. So what are his lawyers gonna say to him other than, hey, look, you know, uh I just want to make sure you're making an informed decision. How much do you think it's worth it for you to be put in jail, uh found a contempt of court? Do you think this is gonna get you more votes than not more votes? And uh and do you think maybe this is just gonna send you right to an impeachment trial if the uh Senate and House have enough Democrats to vote you out of office and say that they're gonna uh base this on convictions as well. And he's uh he's also got more uh criminal trials coming up too. I don't know when they are scheduled. Now, what did go good by his side? I don't know how uh how good a job uh Trump's uh lawyers did on this, but uh Michael Cohen talk about fodder for the defense. Well, he was fodder for both sides, an admitted liar, uh Trump's uh former lawyer. Uh this trial that's going on with Trump right now is not about whether it was illegal to make a payoff to Stormy Daniels, uh his alleged parallel or date, uh, to hush her up about the story, but about whether fraud was committed on that. Uh Hannah, did you know that I worked on Wall Street for a year or for a Wall Street bank for a year before a law school uh as a financial examiner at a Wall Street bank?

SPEAKER_02 9:21

Yeah, I believe you told me about it briefly.

SPEAKER_00 9:23

It was called the Irving Trust Company, interestingly named after Washington Irving, who I think wrote The Legend of Sleepy Hollow. Well, I mean, there was nothing about that law firm that seemed uh to be involved with the high literature versus high finance, but that's that's what it was. And they got bought out by the Bank of New York, and that then got bought out by Mellon Bang. Uh but a a big mindset I have as a lawyer is to leave no stone unturned, and it's hard for me to get bored by looking by sifting through a lot of evidence and facts. That's a lot of what we did as as auditors, uh, because I know I'm sometimes finding those specks of gold among all of this. So with uh with all these documents involved with Trump, these can be double-edged swords, they can help him, they can hurt them, uh they can they can help him and hurt him. Uh but hopefully for Trump, on his legal team, hopefully there's at least one lawyer who knows how to deal with detail and know the forest for the trees, but not lose sight of the detail and how to work on it. There was probably a mountain of evidence in this case, at least I should say a mountain of discovery, a mountain of financial documents. And so hopefully Trump's team was not only involved themselves in reviewing all these documents, but also having some uh good number crunchers, good analysts to look over all this because what does it take to be found not guilty, Hannah? Reasonable doubt. Uh Hannah, by the way, we've been talking for a while. How do people reach us?

SPEAKER_02 10:53

Uh so you can reach us at um beat the prosecution.com. You can go to our website and uh find a lot of information regarding our law office there. Um you can also reach our office number at 703-383-1100. And John's email himself is John J O N at Catzjustice.com.

SPEAKER_00 11:16

John at beatheprosecution.com. Did you tell everybody what our texting number is?

SPEAKER_02 11:21

And our texting number is 571-406-7268.

SPEAKER_00 11:28

Okay, so how to tear apart Michael Cohen? Uh, not in the uh literal sense, but in the uh uh in the proverbial uh sense. Uh this is a man who I don't think is popular with anybody, but he sells books. Why does he sell books? Because people who are buying his books aren't people who like them. They they want insight, they want titillation, whatever they want, they want. I haven't read any of his stuff. Uh so we have this admitted liar on the witness stand that is fund cross-examination. I guess if I had been uh following the uh prosecution more, I would find out what the prosecutors are doing this are are doing to say, hey, uh, but uh they're probably saying something there are facts beyond change still. I don't that no one is disputing that Stormy Daniels did receive these payoffs. And um how this control freak Donald Trump, how could Trump not have known uh that these payoffs were being made? And so uh and and and if any uh documents were being falsified, hidden to not show the payoffs, how did Donald Trump not know? And that loops back to the mistake Trump is making, has been making in court. You know, the jury is deliberating right now. We could do a play-by-play and be checking check online every once in a while to see if a verdict back. That would be verdicts back, that would be fun. Maybe you can check that out, Hannah.

SPEAKER_02 12:48

See if they've got any uh court highlights.

SPEAKER_00 12:51

Uh but not I don't know if you want to do it on the computer. Um is that gonna send off the uh the sound on here or maybe on your device instead? But in any event, um it doesn't turn it off. If Trump is uh does not seem to be following the uh the simple advice of his uh of his uh legal team, um then he might be coming across as the control freak. It reminds me there was this great uh there there was this great editorial cartoon um during the Iran Contra scandal. I guess this was before you were born, Hannah was 1986, uh where it turned out that uh money was being funneled from uh covert arm sales to Iran to finance the uh Contra guerrillas over in uh Nicaragua. And there was a great uh political cartoon that had Reagan, uh who was present at the time, uh being uh held over two sharks, and one shark it said knew, and the other one said didn't know. So Reagan was damned if he did and damned if he didn't. If Reagan knew that the money was being funneled over to the Contras, he was committing a crime, and if he didn't know, he was just a dunce who was letting people uh control everything. So uh Trump has a long history of making it look like he is in control, he knows everything that's going on. Now, Hannah, uh what do you think about the uh fact that Trump's team called two witnesses rather than not putting on any wit uh on any evidence at all at this trial?

SPEAKER_02 14:21

I think they're trying to paint him more as, you know, they're trying to paint more to his character, which again, there's a lot to be debated there in general, but uh I feel like calling of the witnesses as opposed to documental evidence or any other kind of evidence, um, it goes to show that they're looking to sway more of a positive bias uh in regards to the witnesses' opinions or the witnesses' interactions with Trump, which as we know, the way that you talk to different people is gonna be different for every person. And so um as opposed to looking at a document with reasonably um you know concrete um facts and proof of some occurrence of an event, um, the looking to make it seem more like a personal connection with calling the witnesses.

SPEAKER_00 15:08

Okay, so a def a criminal defendant has no obligation to put on any evidence at all, any witnesses. It is the prosecutor's burden to uh uh uh seek to prove the defendant's guilt beyond a reasonable doubt, that the defendant is guilty beyond a reasonable doubt, the defendant is presumed innocent. Uh my understanding is that um one of the two witnesses that was called by the defense ended up being more favorable for the prosecution than the defense. And this goes to uh just as with um uh if a presidential candidate has a running mate for vice president, that vice presidential candidate has to be vetted like crazy. Uh right here. It was it's always very important for the witnesses for the defense uh to be vetted to be carefully uh reviewed. But then again, I think I may have read something that there was a skeleton or more in Michael uh Cohen's clause that the prosecution didn't know about uh beyond the skeletons that were already known. And and you just got to deal with this as it goes. Um it is always a risk for a criminal defendant to put their for a criminal defense lawyer to put their uh client on the witness stand uh because then if the criminal defendant is uh putting a noose around their head and tightening that noose during cross-examination, there is nothing the criminal defense lawyer can do for them, and this gets to preparation. So I say to my clients, no matter how much you you're claiming, I'm 100% honest, you don't have to prepare my testimony. We over-prepare, over-prepare, and over-prepare. It reminds me of when I was coming back from Juarez, Mexico. I may have mentioned this on an earlier show. Um, I had an interview with the Federal Public Defender's Office in Las Cruces, New Mexico, that's not far from El Paso, New Mexico, which is right over the border from Juarez, and I went to visit a friend from law school in Juarez who has a law firm over there right after the interview. And the next morning, uh I'm hanging out in um in El Paso and Las Cruces, and then I start driving to Albuquerque where my plane's gonna leave the next morning, and I get stopped in the middle of the street by Border Patrol. And the U.S. uh Supreme Court has said Border Patrol officers can stop people, I think as far as 60 to 90 or 100 miles an hour inside the border. It is crazy, but that's the state of affairs. So I just want to get to sleep. I'm going to visit a public defender client of mine. I was a public defender lawyer then too, just like crash at his place and go to my plane flight the next morning, and I'm getting irritated. There's a car in front of me slowing me down. And then I get there and I'm getting uh asked, for instance, is this your car? Now, of course, I tell my clients, don't even answer questions. Uh, consider asserting your Fifth Amendment right to remain silent with law enforcement. But this is Border Patrol, they could have been my life hell if I didn't at least answer some simple things like, you know, where am I coming from? Is this your own car? I said, yes. I said, no, it's a rental. Uh-huh. It was 10 o'clock at night. I was exhausted. I was irritated by these folks. I had no reason to lie whether this was my car or not. It was a rental car. So if that could happen to me, that could happen to you, especially if you're not a lawyer, especially if you're not accustomed to dealing with law enforcement. Okay, so how does a criminal defense lawyer deal with someone like Trump to prepare their testimony? I uh I would it would come down with me if I had a client like Trump who says, look, this is a principle of the thing, uh, this is a witch hunt. You know, uh Trump probably already has his two speeches ready. His speech for if he gets convicted, and his speech for if he gets acquitted. If he gets acquitted, he'll say, despite the witch hunt, uh the the the the jury saw the reality of it, we still have some decent New Yorkers, and if he gets convicted, he's gonna go railing against the judge, against the prosecution, against the jurors. Those New Yorkers don't like me. Uh I'm one of their own, but they turned on me. Uh, you know, it's I've dealt with political activists at trial. At least uh at least I had one set of them. Uh it was the uh plowshares activists uh who uh in 1999, Phil Berrigan, Elizabeth Walls, uh Susan Crane, and Steve Kelly, father Steve Kelly, all went on to an uh the Essex Air National Uh Guard base or some of that outside Baltimore in Baltimore County. Uh they went ahead with wire cutters. I mean, they got far into there. This is national security, not at its best. With wire cutters, they uh they broke through the chain link fence, they got over to two A-10 Warthog uh warplanes uh where which they uh which would fire depleted uranium bullets. Depleted uranium bullets can slice into a can can I should say burrow into a tank like a knife into butter. And these activists consider uh depleted uranium to be a form of a nuclear weapon. So they went to these uh warplanes and with ball peen hammers, uh they started hammering on the warplanes, and if you know warplanes, they're made with really thin metal. So each time they're striking the warplane, it's it's leaving an impression of the ball peen hammer. And then each of them had a bottle of their uh blood, babies, uh well, baby bottle with their own blood, and they poured the blood onto the two warplanes representing the uh the blood of Jesus to cleanse the uh sins of mankind. And then they took two huge, very beautiful uh rosaries and they hung them from the nose cones of each of the planes. This is the point's getting here soon, and then they waited to uh be arrested. And if the law enforcement folks didn't come, they got there. They would have called up and they said, Hi, ready to be arrested, because they call it uh two witnesses in the radical Catholic uh protest action. The first uh witness is the actual uh effort to disarm or uh disarm the uh armaments, whether that really disarms them or not, whether it's symbolic or not. And then the second witness is the trial. So when I had witnesses like that, they're gonna get up on the witness stand, they're gonna admit what they did, uh, and they're gonna take their lumps if they're lumps, and they're and they're ready to uh at least the pro se defendants argue international law, this was their duty to do this, and therefore they're not any more guilty than the people who helped the slaves escape from the uh in the Underground Railroad back in the 19th century. So, yes, if uh Trump wants to use the trial for those purposes, fine. Uh but his finances aren't in the greatest shape. With uh one of the civil litigation cases, the Trump organization was ordered either to stop uh operating in New York or else uh Trump uh himself and I think his children, at least two sons, uh not to operate there. Well, that's gonna dry up some of his finances right there, probably. And who knows what his other finances are. So if his finances are are dropping, no, he doesn't want to be uh convicted because if he gets convicted then he's possibly put in jail. And if he's put in jail despite All the logistics about dealing with uh probably being a really nice place because he's got to have the Secret Service people there still protecting them and having uh free ingress and egress. So no, he doesn't want to be in jail. Uh that's especially then he's gotta work out the headache of how he's gonna get to his other trials. So what are the lessons then, recapping it uh for defendants here? Work closely as as a team with your lawyers. If you have a political ax to grind, if you want anything more than uh than to be able to get as much justice as possible, let your potential lawyer know that. Make sure your lawyers on board. But if you want to get the best possible outcome and acquittal, or if convicted, the lowest possible uh get convicted of the least serious type account. Uh and if you're convicted to get the best possible sentence, ask yourself, what would Trump do? And do the opposite. Do the opposite of Trump. And if you're a lawyer with the client like Trump, if you're gonna stay with them and not try to ask to get out of the case, uh know in advance before you sign up that client what kind of liability there might be. And if you have a liability of a client, uh do your best to talk sense to them to make sure they make an informed decision. And if you think your client might be mentally ill, I'm not gonna uh ascribe that to Trump, but if you think they may might be mentally ill, watch out whether the uh medicine you might try to use for that might be uh worse than the poison. So I I'm aware of one or more colleagues who wondered, gee, if my client is uh is seriously mentally ill, should we go ahead and have a uh a mental fitness exam for them? Well, if it's a misdemeanor, why? Why? A misdemeanor in Virginia doesn't cover more than up to a year in jail, uh, and you serve half that if it's non-mandatory time, uh, unless you've been found in violation of the rules and regulations of the jail, uh, why have a psychological evaluation, at least one that's uh sanctioned by the court? It's okay to get a private one if it's not revealed, then have the results revealed to the court, and if the results revealed to the court are that the def that this defendant is a risk of harm to himself or others, that might then get the person sent longer into a mental institution uh until they're deemed not to be a harm to themselves or others. Well, do you think uh do you think, Hannah, that um we have mental health professionals all over the place who are going to give that favorable recommendation?

SPEAKER_02 24:38

Uh maybe. There definitely could be.

SPEAKER_00 24:40

All of them, though? No.

SPEAKER_02 24:42

Definitely not all of them, but I'm sure if you look hard enough, you'll find the ones who do.

SPEAKER_00 24:46

What else should we be discussing uh here that uh we haven't about this uh Trump trial? Let me see. While you're doing that, uh looking over some of our notes, I'll tell you about my other two encounters with uh presidents or people who became or were no longer presidents. My former law partner Jay Marks, who I was on the show with about two weeks ago, we are we remain good friends. He convinced me when we were seniors in high school that uh Reagan was the greatest thing since slice of bread. He didn't convince me of that, but he convinced me that it was a good idea to go ahead and see Reagan at a rally, or maybe we were juniors and I don't know. So I went to the ratt to the rally, totally non-plussed. I was I said to Jay, what was that? He said that was his stump speech. I said, Well, that was a little light on substance there. And then in 1992, on a drive back from Disney World, I took a detour to Plains, Georgia. It was the day before New Year's, and I was at um Hugh Carter's store. He was a cousin of Jimmy Carter, who was perhaps uh milking the Carter name for all it was worth at his Brickaback store. And um someone came and said, I met him, I met him, and I said, Who do you mean? He said, Jimmy Carter, and Hugh said, That's right. Jimmy's having uh day before New Year's barbecue at so-and-so's stationary store, and he's knowing nonsense, he won't dilly-dally over his meal. So if you just wait outside the stationary store, he'll come out, and sure enough, within about 15 minutes from getting to the stationary store, he came out. I said, Mr. President, so at least he knew I wasn't gonna throw a pie at him. Had a little discussion with him, and uh what a brilliant man. Regardless of what you think about uh Trump's effectiveness or not, a totally brilliant man, a total, a total hard worker. That Toothy Grin uh uh didn't uh didn't show that he was he was really tough on his uh children, at least his sons, for instance, maybe maybe too tough, too tough on his staff. With that, do we have any additional things that we should be addressing?

SPEAKER_02 26:48

Uh yeah, so um with the Trump indictment and this trial in general, he's a very high profile client, and so with that will come media engagement and media perception. Yes. And so how how do you you recommend that these lawyers um you know engage with the media as they're working with Trump?

SPEAKER_00 27:07

If you are a high profile criminal defendant, if you have a criminal case that is high profile, is going to get media attention, talk to your lawyer and make sure your lawyer is not gonna put their media uh free advertising interests above you. Fortunately for me, I've had enough high profile profile clients, I have had enough media attention uh to know never to talk to the media when I am not sure it's gonna help my clients, and to certainly check with my clients when I need to. Uh by the same token, you may want your client to talk to the media, you may want your lawyer uh to put at least some sort of positive uh angle on it. So find out what your lawyer's experience is before the cameras, before the mic, being able to do this without sweating. I mean, this brings me right back to my cousin Vinny. Have you ever seen my cousin Vinnie? Oh no, I haven't. What a great movie. Uh in my cousin Vinny, these two guys who are falsely accused of murder, uh they both decide they've got a very good uh court-appointed lawyer, and not until he does his opening statement do they find out that he is he just melts down in front of the jury. He he can barely string together a sentence. Make sure for many reasons, not just the media, I mean being in court and everything else, that your lawyer is sufficiently confident, powerful, and focused on you, focused on you, focused on you. Now, we see some uh people who really uh get us irritated when they speak to the media, beating around the bush, not answering the question. But by the same token, lawyers and everyone else have to remember the media does not care about anyone but themselves, the reporters do not care about anyone but themselves, even the even the above uh the above board uh uh reporters. When I say they don't care about any anyone but themselves, okay, so if part of themselves is uh serving the public and informing them, okay, but they're not trying to help you, they're not trying to help your lawyer. Uh there was a lawyer who um represented a woman being charged with uh prostitution, and uh tragically she committed suicide apparently uh while the case was going on. And a reporter got this Laura on the phone, and to me, in a moment of weakness, or certainly uh not in a moment of helpfulness, he was a little too candid uh uh about his feelings about this. I don't remember what it was. It it just it wasn't good. Uh a Laura has to watch out, anyone has to watch out if they're emotional, when they're speaking to the jury, when they're speaking to the judge, when they're speaking to reporters. Well then now that brings me back to Andrea Lyon, who was on our last uh podcast episode. Uh Andrea is a great law, she's uh helped spearhead uh, or at least she was a um uh a trailblazer, a pioneer in successfully uh presenting the battered spouse syndrome uh to win one or more uh murder trials. And well, she'll get emotional at trial, so how does she do it? Uh I didn't ask her that question, but I think she uh like any good lawyer is if we're feelers and we care enough about our clients that can go a long way to persuade jurors, to persuade judges on the criminal defense level. But we have to know when we are getting so emotional that we have to take a break, that we have to not be speaking to people we don't need to speak to. We do not need to speak to the media. Now the media can say all they want, he didn't answer the phone call, uh he he didn't answer our questions, the other side did. Uh just remember, uh, you are in the court of of uh justice, you are in the court of public opinion when you're a criminal defendant, when you're a lawyer, make sure that your uh lawyer is uh uh looking good for the camera, that you're looking good for the camera when you walk out of the courthouse. I'm not talking about wearing the fanciest clothes, I'm not talking about having the best haircuts, but I do like to joke with my hairstylists. My hair grows like a weed, you had water, it grows as say to or you know, I gotta have my hair uh camera ready, you know, just in case for when that happens next. Uh just make sure that everything is focused on you. Your lawyer has to focus on you. I can't tell you how many times I have had criminal defendants say to me, hey, you know, represent me pro bono, represent me uh low price, because you're gonna get a lot of free advertising. No, that's not the way it works. The way it works is that I am only gonna go into the battlefield to defend a criminal defendant if I am fully armed, and uh that promise of publicity that may not even be good for you, and if it's not good for you, I'm not gonna assist it. Uh that is a red herring at best.

SPEAKER_02 31:54

Yeah, uh you know, they do say, especially in Trump's case, he does say that all press is good press. Um, and so it depends what uh angle you take it, but for sure, there's uh places you want to be and places you don't want to be in terms of what you attach your name to.

SPEAKER_00 32:09

Well, I think it's also good to talk about respecting the judge. Uh a good way of conceiving of this is respecting the robe, uh, just like there are people who say uh that they respect the role of the presidency, and this is why uh, for instance, there are some very good people who will actually uh join a Trump administration even if they are skewered in the public for being with such a controversial and polarizing person. Uh this is why Nixon was able to get uh get and keep uh very good people in his administration to a point. You know, there was the Saturday night massacre uh where what was it um he or I think he ordered uh Elliot Richardson, his attorney general, or or one high some other high-level person to fire Archibald Cox or whoever was uh the special Watergate prosecutor because he was getting too close, and that person resigned to the next person resigned, and that left uh um uh Bork, Robert Bork, to fire him. And then Robert Bork has his own interesting history about how he didn't get on uh to the Supreme Court. Uh but judges are humans, so judges will make mistakes, right? And uh then being human, some judges will be racist, although some people say everyone has seeds of racism in them, or worse. Uh so some uh people show the racism more than others. Well, uh Trump has been skewering, verbally skewering his judge left and right uh for the longest time in this case. That's gonna get him nowhere with the judge, nowhere with the jury, nowhere with his lawyers, nowhere with the prosecutors. So fine if he wants the court of opinion, just as long as he's making a conscious and educated decision and looking at the pluses and minuses of it. So how do we deal with judges who seem biased, who seem not to care about the defense, who seem like prosecutors and robes? It brings me back to one of my favorite teachers, Stephen Wrench, who I've probably talked about at least two or three times before. Uh Steve would say, uh, when I said, Steve, you know, how do you deal with a fascist judge? Steve said, Well, you know, you can deal with a difficult judge in one of two ways. You can either look at him like a boulder. You can either drive around the boulder or try to pick up the boulder, get that hernia, get the get the hernia operation, the whole thing. And Steve would say, well, Jay brought this up too, uh, uh, about how that helps him so much what Steve said, which is if you can't say anything about the judge, tell the judge something nice about something that happened uh in the courthouse. Your uh court clerk was so helpful to me. The people in the clerk's office were so helpful to me. I appreciate that. Or even the deputy sheriff. The deputy sheriff was so helpful to me uh by letting me out the in the uh the back door and not requiring me to spend an hour going through security in the front door to bring all my boxes and boxes and more boxes of evidence. The fact of the matter is, on the one hand, we are in a democracy. I really think I see the judge, judge's role as almost non-democratic. This idea of the person in the black robe coming in and the deputy sheriff is saying all rise. And if anyone doesn't rise, maybe having the judge look a scant of them. I I'm gonna go on a tangent here. There is a substitute judge, I forget which um which court he's usually in, who uh starts the day by saying, I'm not gonna look at any of you to see who's not who's not participating, uh, but I'm gonna I always start with the Pledge of Allegiance and he faces the flag and a bunch of people stand up and and they do the uh Pledge of Allegiance too. I'd I'd like the Pledge of Allegiance better if it didn't have the under God part. I think that really clashes with uh church and state. I forget if I met him, that guy New Dow or whatever, who took that uh Pledge of Allegiance case right to the Supreme Court. He didn't do a very good job of it. I I was present, I think, in the uh in the outer room of the Supreme Court, listening to him live when he was doing that uh uh that oral argument. The the Supreme Court wouldn't give him a standing for the case because it was his daughter who was affected by him uh by the Pledge of Allegiance, and the uh the Supreme Court said that he was too attenuated uh from there. But I uh there is a retired judge. I don't know if he still uh sits uh substitute, his name is Ian O'Flarity, and uh he would make clear to the uh security personnel in the courthouse, do not ask people to rise when I come in. There are judges like that. They they just remain seated. There's some judges who, when they come into the courtroom, uh the courtroom security will say, Remain seated. And sure enough, though, one day some people stood up nonetheless when Judge O'Flarity came in, and Judge O'Flarity said, I don't know why you're standing up, you pay my salary. Now, I always liked, I should say almost always liked having a trial in front of Joe Judge O'Flarity. He was definitely firm-tongued, firm-tongued, sometimes sharp-tongued. Often to me, had a uh uh a low uh a low threshold for the definition of uh probable cause, but a high threshold before he would say that someone was found guilty beyond a reasonable doubt. Uh I loved it how he would make some um uh make my case for me sometimes from someone I would challenge the field sobriety tests. Uh he would interrupt me someone and say, you know, sir, those field sobriety tests were developed with uh with with people who were uh really healthy and physically fit males between the team the age of 18 and 36 who said, Good point, Your Honor. My client is 56 and overweight. Um and uh when I first met Jojo Flarity, I came to the courthouse this was over 20 years ago, and there was this man who was directing traffic, letting people know where their courtrooms were. This was before they had a bulletin board, a video screen in the Fairfax courthouse to tell people where their court was. They would have to go up on the wall and try to find their names.

SPEAKER_02 38:09

Oh wow.

SPEAKER_00 38:09

And I resisted the temptation to say to him, excuse me, sir, uh, is it okay if if you hurry up a little bit? I really need to know where my courtroom is. And I got to my courtroom, and guess who was there?

SPEAKER_02 38:20

Flagerty?

SPEAKER_00 38:21

It was Judge O'Flaherty, he's the one who was directing traffic in the hallway. And I and I I said to him, I I I said to him uh uh later on, I said, I didn't tell him about the hurry up uh thought that I had, but I said, you know, who happened to have been at the bench, the person who was uh directing traffic in the courthouse. He said, Well, I don't drink coffee in the morning, so I have to have something to do. That was modest. This was a man who very much uh appreciated the position he had uh and once again said, you know, you pay my salaries. I never saw him in action doing this, uh, but um he uh he was at someone's even cut the grass over at the uh over the courthouse grounds.

SPEAKER_02 39:06

Very involved civil servant, truly giving back to the community.

SPEAKER_00 39:10

There you go. So um yes, if you're irritated at the judge, whether you're a lawyer, whether you're the criminal defendant, whether you're a witness, wait until court is finished. Wait until you're far from anyone else to just go and yell your head off inside your your lawyer's office, for instance, make sure that it's hermetically sealed and then no one else uh hears it. I mean, I say the same to my clients to say if you're gonna get up on the witness stand, uh you might get very irritated to say the least uh at the um uh at the prosecutor. Wait until you're at the at your lawyer's office to get all upset and uh and hot and bothered about that. Hannah, are there anything else is there anything else we should be talking about this topic or tangents on the topic? Because I've certainly gone uh through some uh through some tangents.

SPEAKER_02 40:01

Yeah, don't worry, uh don't worry, John. Your tangents always add to the conversation. It's always a pleasure. Um but no, I think we've covered every every bullet.

SPEAKER_00 40:09

Okay, well, do you think maybe while I talk down some more we can look up to see if there's a verdict here so we can talk about that? Because if not, we'll talk about it another time. This is Beat the Prosecution with John Katz. I'm a criminal defense and DWI defense lawyer here in Fairfax, Virginia. I'm right across the street from the courthouse. We're gonna see if there is a verdict in this uh Trump trial. No verdict yet. Okay, well I do have something uh to uh to talk to you about that one, uh, which is that uh about jury verdicts. Uh there's a question about whether the jury being out for a long time is more favorable to the defense rather than the prosecution. I don't think there's any simple wisdom on that, uh, but I also like telling my clients sometimes that the longer the jury is out deliberating, once we get past the one-hour mark, and certainly the two-hour mark and uh and and and the three-hour mark, that uh at least even if there is a guilty verdict, the jury was not so convinced right away. The jury had things to think about. Uh now that's no consolation if the defendant is found uh found guilty anyway. I once had a jury deliberate overnight just on a refusal to do a breath test case. This was over here in Fairfax. We won the DWI part of the trial. We lost the refusal trial. Uh we started the trial at around um 10 o'clock in the morning. The case went to the jury, you know, after having lunchtime and some other delays. I think the case went to the jury by 3 p.m. They were still deliberating at 4 p.m. They came back the next day where they were deliberating at least an hour or more. I mean, that's quite a long time for something that's not jailable. And my defense in the case was I got up for my closing argument, I went right into the mode of uh of first person, and uh I I went right into the role of someone who's tired, and I I came close to yawning and said, I wish you could see this uh visually. I'm tired. It's 4 a.m. All I want to do is get to sleep. So I looped that into my closing argument to the jury to say, it's 4 a.m. My client is asked to do uh breath testing after he's been arrested for DWI at 4 a.m. All he wants to do is get to sleep. Now the kicker is that the prosecuted and focused on on whatsoever was the video counted that. The video showed my client wasn't tired at all. The video showed that my client was standing fine. Well, this gets back, this gets to the storytelling aspect of doing trials and doing persuasion. When a lawyer puts himself or herself in the role of the defendant, in the role of someone else, or reenacts a scene, they are taking away the legalese, they are taking away the overintellectualization, they are taking away the overinterpretation and talking just folks, just like folks to the people. Like Andrea Lyons said about uh one or two shows ago, I said to Andrea, how important is storytelling to you? And she said, it's extremely important, it's necessary, it's the very focus. It's because all of us go through the day deciding things through storytelling, persuading through storytelling. I challenge you to go through an entire day without storytelling unless you are not talking at all, unless you are not communicating at all. Can you go through an entire day without even reading something? We have stories in the books, we have stories in the newspapers, and I don't know, for people who read snippets online with all this uh this chatterbox Instagram and stuff and and tweets, there's stories in there too, right?

SPEAKER_02 43:53

Yeah, no, there's definitely stories. If anything, with social media, they might be more visual with the actual stories on Instagram and Facebook. Facebook, um, but there's still you still get a good bit of news on and what you're reading.

SPEAKER_00 44:05

Without naming names, we're on a tangent here, but this is about criminal defense. Without naming names, without identifying what their specific cases were about to identify them. Uh, do you have any interesting stories from being with me in court this morning for about 30 minutes?

SPEAKER_02 44:20

Uh yeah, I would say it was very impressive to uh watch um you get that case dismissed uh with just because the officer was uh he was terminated by the PD. Um and so it was kind of funny to see the prosecution talking about how they were excited um because the police report was so well done. Yeah that they were ready to um take it to court. But unfortunately they didn't get to they didn't get to battle the battle it out with you uh to this morning.

SPEAKER_00 44:47

And this is about the importance of overcovering risks and going to court. Uh this is a client I've been with for a few months for various reasons. Our trial wasn't reset until for today. He was charged with DWI with an elevated blood alcohol concentration. Uh BAC uh once I saw who the prosecutor was, I knew that uh she was not going to be a pushover in negotiating if we were going to negotiate this case at all. And I knew that she was going to be prepared. And yes, she was excited to try this case. She was excited to uh tell me for negotiations that she didn't feel she had any weaknesses in the case. Uh well she did, but uh she maybe didn't know uh what all of them were. And well, wasn't this interesting? How was it that the breath technician in the case even ended up coming down to the courtroom?

SPEAKER_02 45:33

He was there for a different uh he was there for a different case, but I went to the police liaison office and then asked for him uh just to see if he had checked in. And I guess they sent him down to the courtroom anyway.

SPEAKER_00 45:44

Right. So when we do this uh checking of whether witnesses are present, we're not asking for them to be present. We want to know if they're not present because we're not because I'm not gonna advise a client to take a harmful approach of uh negotiating their case if the prosecutor doesn't even have the necessary witnesses and evidence to to go there. But the opposite happened here where someone from the liaison office uh found out that we were asking about his presence, and uh I don't even know how he figured out what well I guess maybe what the liaison maybe tried to figure out which courtrooms I was in. I don't know. He found us and he gave us the smoking gun, better than the smoking gun. He said the office well, you found out that he wasn't there. So what did liaison tell you about the arresting officer? Just that he wasn't with the force anymore?

SPEAKER_02 46:28

Yeah, he just said he that they he no longer works for the PD. Um and then they had somebody check the location um for the um breath technician, and actually the clerk came and found me after he had already come to us and said, Oh, um, he's right over there. Um so I think that they had called him and maybe given them my description um to try and find that I was looking for them.

SPEAKER_00 46:52

So when I found out that this police officer wasn't on the force, uh I asked you, uh maybe you can check online to see if there's any information about that. I was ready to check with some client clients, sorry, some colleagues, and no sooner did that happen that uh the officer, the breath technology, showed up and said he was terminated from his job. Yeah. Now, of course, you know, that's not uh good news for him that he was terminated, but that was good good news for our client. And um I asked my client, I said, uh, have you been praying recently? He said, uh yes, every Sunday when I go to church. I believe strongly in the power of prayer. I don't have to share right now what my religious tradition is. My view is if nothing else, with prayer, this helps get the gunk out. This helps uh cleanse a person's inside and their view, gets them more focused. Uh I don't think that his prayer made this guy, uh, this cop um uh leave the force. Uh but I'm I'm sure that my uh client felt that the time he spent with prayer was uh was well used. Okay.

SPEAKER_02 47:56

He definitely did say that uh he it was time for him to start going to Bible study after this. So he's definitely a little more motivated.

SPEAKER_00 48:04

There you go. Well, Hannah, thank you so much for joining us for your first episode of Beat the Prosecution. Uh Hannah, please remind the audience where they can find us, and then you'll hear our closeout.

SPEAKER_02 48:17

You can find us at beat the prosecution.com. Uh our office is located on Judici Judicial Drive in Fairfax, Virginia. Um and if you you can reach John at his email at John J-O-N at Beatheprosecution.com.

SPEAKER_00 48:32

Thank you, everybody. Take care.

SPEAKER_01 48:37

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 seven zero three-three eight three one one zero zero or texting us at five seven one four zero six seven two six eight.