SPEAKER_00 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_01 0:31

Hello, everybody. This is John Katz. I'm a criminal defense and DUI defense lawyer here in Fairfax, Northern Virginia. This is Beat the Prosecution. I am delighted to have this winning lawyer on our show today. This is David Osborne. He won the defamation trial on the side of the Angels, meaning on the defense side for Afroman, whose full name is Joseph Edgar Foreman. And David's full name is David Osborne Jr. over in Ohio. Now I can't keep track of every high-profile case that's going on, but there were feeds going on on my LinkedIn page here. And when I found out that this rapper who was singing about lemon pound cake uh to get back at the cops uh serving a search warrant on his house for drugs and I guess possibly kidnapping and finding nothing. I mean, what a brilliant move that was. But if it would only stop there, that's first Amember Protected to just make fun of the cops looking at the lemon pound cake in his kitchen. But Afroman went further. Apparently, a fact beyond change was he accused one of the police officers about their gender and another one about being a pedophile. Another one may have been a little easier about accusing them about theft since uh he was short at $400 on the return of his cash at first. With that, this is David Osborne. David, please introduce yourself.

SPEAKER_02 2:00

Hello, pleasure to be here. Uh my name's Dr. David Osborne Jr. Um don't know how much you want me to introduce myself. I'm not very good at introducing myself. I'm just a small attorney in middle of nowhere, Ohio.

SPEAKER_01 2:15

Well, uh the snippets I read about you, you said you have a website. I wasn't able to uh find it. What is that website that I haven't been able to find?

SPEAKER_02 2:24

Well, I let it go about a year and a half ago. That's it. There was no point in it. We've uh always had good amount of business, um, keeps us all busy. And so I just kind of let it go because most everybody so when we get a new client in, one of the things we usually do is kind of unofficially pull how did you get here? We find that most of our stuff is referrals from other clients, and so we usually don't have a problem with that. It's like it's like we're one of the few law firms that we bill very little up front, we bill most of it on the back end, and everybody's like, Well, no one ever pays you. We have we have almost nobody not pay us.

SPEAKER_01 3:00

So what is your contact information that you want people to have, and what kind of legal cases do you focus on?

SPEAKER_02 3:06

So we focus on anything that would be considered complex litigation. We just do not do fit or personal entry, we don't do social security. Um we do a little bit of criminal law, but it's kind of scaling back some. Uh but we're a general practitioner in Ohio.

SPEAKER_01 3:24

And you're in what uh what county, sorry, what county, what town or city?

SPEAKER_02 3:28

Um so we're in Adams County, it's the uh technically the poorest county in Ohio. Um so if you look at the state and it comes down to a point, we are just over west of the point, about one or two counties. That's Adams County, right on the river of Kentucky. And our county seat is West Union, Ohio.

SPEAKER_01 3:48

And you ran uh to be chief prosecutor in your county, was it?

SPEAKER_02 3:53

I ran to be elected prosecutor in 24 and um as a Democrat in a extremely red county. So uh I guess in retrospect you say I didn't have a snowball's chance, but we did pretty well.

SPEAKER_01 4:07

Okay, well let let's get right to it. Although I'd love to know how uh Afroman found you. You'll probably say that's attorney client privilege. Am I correct about that?

SPEAKER_02 4:17

I would probably uh give it very generalized that it'd be a waste of time.

SPEAKER_01 4:21

Okay, I'll go to the next one. He did find you, he found the Laura to win. Uh please tell uh the audience what was what was this case about, and uh and then I'll start uh interrupting as we go along.

SPEAKER_02 4:37

Okay, uh well, let me start at the beginning because I I kind of got a little upset because I as I sort of see this on the internet, it becomes more of a fish tale. And so if you start at the beginning, so officers did their search in August of 22. Joe made his uh first kind of three films in that series going up to December of 22. In March of 23, the officers filed their lawsuit. When they filed their lawsuit, they had five claims. Well, they technically had four, and then they added a fifth claim, defamation. But they started out with four invasion of privacy claims. The first two involved the use of their image in the video's lemon pound cake. And then the other two was uh false light and invasion of privacy. And then, of course, they added defamation. Um, there was a judgment on the pleadings, and so that tossed out the first two claims for use of their image. They were determined to be public officials, and the judge kind of said he couldn't see actual malice, but he let the two invasion of privacies, or basically invasion of privacy in false light, and the defamation claim move forward. Uh, from there, uh Mr. Foreman threw his attorney counter sued on, I want to say, uh, a number of causes of action, but those were in due to the missing money, damage to the door, damage to the closet where they were looking for the non-existent secret compartment, and um tortuous interference with the business contract for suit, different things like that. Over time, we weeded those down, and we were left with a number of um claims mainly relating to the search of the property and the damage with that, and then one other, which was abusive process. And the abusive process was never ruled on and I guess is now just gone. Um, but uh that had been filed also, and so that kind of got us up to trial.

SPEAKER_01 6:32

So we had originally back up. Uh uh, if I can back up then, uh what was this uh search warrant about? And uh how do the cops end up empty-handed? It was this just sloppy police work that issued the search warrant in the first place?

SPEAKER_02 6:49

Definitely sloppy. Uh so the search warrant was originally to go in and look for narcotics and kidnapping victims, which creates a bit of a problem when your confidential informant is talking about marijuana. So, how do I get from marijuana to narcotics? And she's talking about people coming and going, and how do you get from that to kidnapping? And so there's a whole weird thing how they made these leaps. But they went in looking for a dungeon, kidnapping victims. And um, I know if you go look at the depositions, it's a mess because every officer was looking for something different. You had one officer looking for a juvenile, you had one officer looking for sex trafficking, you had one person looking for marijuana, one person looking for narcotics. It was just a uh mess and a half, but it was all based on a confidential informant who, from my understanding, they verified because she could describe the kitchen of his house, which crazy.

SPEAKER_01 7:47

So when the is in the actual video, right? Was anyone at the home? Uh was his was uh was Joe's wife at home at the time?

SPEAKER_02 7:56

She arrived at she arrived later. So when they uh breached the door, no one was home, but she arrived about the time they started breaching.

SPEAKER_01 8:06

And the camera that showed the uh police officer purportedly uh looking at the lemon pound cake, uh, was that from security camera, uh, one or more security cameras that were in the home, or was that from police body cam?

SPEAKER_02 8:19

Oh, that was from his uh personal uh surveillance system in the house.

SPEAKER_01 8:24

Where does this interest in lemon pound cake come up? Have you ever heard of uh of lemon pound cake being very popular with people?

SPEAKER_02 8:32

Um, it has been since the trial's been over. Um Hillsborough told uh I got word up there they sold out. They one bakery made it and they sold out. Um I know they were handing out during our last day of trial, they were handing out uh some protesters were handing out slices of lemon pound cake, and they ran out about one o'clock. So and they had bought everything Walmart had. So uh it seems to be very popular down here.

SPEAKER_01 8:58

So Joe Joe followed up with a series of uh videos and other social media posts about this case, right? Uh running from it from what I can tell, uh clearly First Amendment protected activity, like you know, showing the the images of the police. That's kind of silly, they claim uh privacy. Uh, but what were the alleged lies that were told by him beyond was it anything more than uh lying cop about the money, uh challenging the gender of one of the cops, and uh saying that one of the cops was a pedophile?

SPEAKER_02 9:31

That so that that was what was weird because I tried to nail that down in my cross-examination. And so it seems like four of the officers were going off a general post where he would say the Adams County Police Department stole my money. He wouldn't actually single any of them out. So it seems like four were on that uh because you had uh Sean Cooley. Um he's he testified it wasn't officer pound cake or anything, it was only being called a thief. Justin Cooley, the same thing. Uh Sean Grooms, although he also talked about being called Quasimodo, and then I keep missing one. Who am I missing? Yeah, Mike Estep, yes. Mike Estep would have been the other one for the theft because he was called King Kong Bundy, so it the uh that was not what he was uh suing on, he was suing on the theft. But that was a very general post that really didn't identify him, just identified the Adams County Sheriff's Office, which, depending on how you want to calculate it, could be a small number of people if you just look at road officers, or if you look at actually everything under the umbrella of the sheriff, which includes the jail, all the jailers, it's actually a significant number of people. But that was the four there. You had then Randy Walters. Randy Waters had the additional one where he was um suing on the fact that um Mr. Foreman had made statements that he had sex with his wife. And then, of course, you had Brian Newland, which had the thief, and also he was um there would been questions about him being a pedophile, and then of course, uh Lisa, there was uh where he talked about her being a possible lesbian and calling her gender in the question. But that was pretty much what everybody was suing on.

SPEAKER_01 11:19

I think that aside from the allegations of lies by Joe, that was just brilliant for him to turn uh uh lemons into lemonade by uh creating performances. I don't know how much he money he made from it, but turning it into performances rather than just complaining in uh uh letters to the editor and in uh uh social media posts. I think that was just brilliant.

SPEAKER_02 11:44

Well, I mean, it's isn't it the perfect form of protest, really? Is I mean, it's like uh Sean Cooley is like, well, they sent pound cakes to the office. I'm like, you know, we always talk, we want everybody to be constructive in their protest. What is more constructive than sending someone a pound cake saying we're unhappy about what you did here? And so uh I just find it funny because it's like the ultimate form of polite protest. Now, videos, they may not like the videos, but you got to think about it. He's not actually going out there, going to anybody's house or doing anything.

SPEAKER_01 12:18

So, how much can this be turned to civil liberties help uh for more actual and potential clients in the future, for instance, for police to think twice before they just do a slapdash application for a search warrant, a slapdash sloppy uh abusive execution of a search warrant, for instance. I mean, they this has to have some play beyond helping Joe. It's important to help uh uh more people dealing with the police as well, I think.

SPEAKER_02 12:46

Well, I think as you look through the depositions and you see all the um contradictions around the confidential informant, you can sort of see what's missing. And this is one of those things where you usually you go to a judge, the judge is gonna ask you a million and one questions to make sure that search warrant's correct. And if anything, this should be somewhat of a cautionary tell that what we see in the search warrant does not equal what you uh get out of it. And actually, the search warrant is like the most cherry-picked, you know, things that would help them rather than a balanced view of everything. So, I mean, if the police department took it, changed their policy, you know, put in procedures, you know, those things would be what you'd want to see from this. Because really, every time you have a case like this comes up, you should have a change in policies, a review of everything. Take the counting of the cash. I mean, the evidence bag should be listed: $10 bills, two, five dollar bills, one dollar. It should all be labeled out. Hell, they can't even decide whether the number's written on the outside the bag or a piece of paper in the bag.

SPEAKER_01 13:49

Is this an example, David, of why judges shouldn't be so strict about when they allow a Franks hearing under Franks versus Delaware from the U.S. Supreme Court, uh, which makes it uh very rare for a judge to allow a challenge to a search warrant by the defense that goes outside the four corners of the search warrant application.

SPEAKER_02 14:11

It's funny you mentioned Frank. So so uh well, I will save that for later, my entire Franks question for you. But I think you're not gonna get any judge to be liberal with a Franks hearing. And I actually will be honest that this is one where you would you'd have to be able to do depositions of the officers to be able to really prevail in a Frank's hearing, or at least the ones I've tried. Um, and it's just usually you never get to do that. This is one where unfortunately we had a civil matter, and so a lot of the normal things of a criminal case wouldn't apply.

SPEAKER_01 14:46

I'm fascinated that you got this win without being a member of the First Amendment Lawyers Association. You're not a member yet, right?

SPEAKER_02 14:54

I didn't know there was an association until just now.

SPEAKER_01 14:56

And it's easy, it's easy to become a member. You don't need a sponsor, but I'd sponsor you. And um my understanding, you had not done a defamation case before this one. Is that true?

SPEAKER_02 15:07

Yeah, that's correct. This is my first one.

SPEAKER_01 15:09

And my understanding is you did not talk with lores who've done defamation defense before doing this case. Uh no, we started out with uh we started out with uh we started out with defamation law and started going from there. Which defamation law is that? Because I think you covered the name of the author. Maybe I uh that is Rodney Somala, S O S M O L L A. Because you made some arguments there. I didn't get to watch all of the uh trial, but one of the snippets I saw from the trial, it was right on point. You argued to the jury, of course, this is this was exaggeration. This wasn't lies. Look at the way that uh Joe's dressed in that suit with the American flags. He's all about exaggeration. His rap is about exaggeration. Where did you come up with that idea?

SPEAKER_02 16:03

Just um just thinking about it. I mean, a lot of my case, you start in Vor Deer building your case, and so I had started in Vor Deer to try to uh get everybody in the idea that public officials must take a certain amount of of uh uh hate is is and just criticism and exaggeration. And so it was just kind of like the natural conclusion of it in uh closing.

SPEAKER_01 16:26

Yes, law enforcement officers have to be ready for for attacks and exaggeration. That's an argument I sometimes have used in uh uh disorderly conduct cases where the only uh possible uh person receiving the disorderly conduct on the receiving end is a police officer. And I say, police officers are supposed to be ready to hear F-bombs and S bombs and uh and angry people. This is all First Amendment protected, I argue.

SPEAKER_02 16:51

You're telling me that officers. So I when I was a prosecutor, it was one of those officers were very hard to be the victim of um of basically insults, even with disorderly conduct. You had to have a third party who's not an officer.

SPEAKER_01 17:08

That's my argument.

SPEAKER_02 17:10

That's interesting.

SPEAKER_01 17:12

Meaning I'm agreeing with you.

SPEAKER_02 17:13

Well, I know, but I'm just kind of it's kind of fascinating. You guys don't have case law on that because we do.

SPEAKER_01 17:18

Well, I'm not naming the jurisdictions. I've been in uh more than one place where I've uh where I've defended it. Okay, so what got one uh do you call it summary judgment over in Ohio?

SPEAKER_02 17:30

Uh yes, they won summary judgment on all of the claims, um all the counterclaims by Joe.

SPEAKER_01 17:36

And what were the counterclaims?

SPEAKER_02 17:38

Uh that was for the missing money, which I'm still not sure how in the hell you went on that one. Uh, because as I said, there is never any immunity for theft. I've never heard of such a thing. And the fact that the court says it doesn't matter is without, and I should say when they made that ruling, there was nothing in there about the counting of the money or anything or any of the investigation. So the judge just ruled on that as it was, but it covered the $400 missing money, it covered the um damage to the door, the closet, the trim for the closet, and um the gate. So all those things were uh all the damages and counterclaims for that were dismissed on summary judgment in favor of the uh plaintiffs.

SPEAKER_01 18:25

And uh your side, Joe's side was not successful on any summary judgment arguments?

SPEAKER_02 18:30

Uh we did a motion to dismiss which uh we were not uh we were not um we did not prevail on.

SPEAKER_01 18:39

What did you do to get the most favorable possible jury? Did you do a jury questionnaire or just do the uh jury selection in court?

SPEAKER_02 18:46

Uh well, we had a basic jury questionnaire that they all fill out when they come in. Uh basic information, age, you know, what you would expect from the juror. You know, age, have you served on a jury before? Have you ever been convicted of a crime? Basic stuff like that. And of course, you have the big section. Is there any reason why you couldn't serve as a juror? Uh, which is where you get your most information? Uh but other than that, it was just um sort of through the normal voidier process. That's about all we get. And we usually get get that about five minutes before the jury comes in.

SPEAKER_01 19:18

So this is not a uh lawyer conducted uh jury selection voidier uh uh state or county where the lawyers get to ask a whole bunch of questions to the jurors themselves without the judge being a filter?

SPEAKER_02 19:30

Um you so the judge starts off by asking the first round of questions. And then, of course, plaintiff's attorney can ask questions and sort of you can go for cause. Um, and then of course, defense is next. And once we get through there, we kind of swing, we kind of, I should say, wing it after that, depending on how many jurors get kicked off for cause.

SPEAKER_01 19:52

I noticed you asking some open-ended questions, at least to the first uh the the first plan of witness. Uh, what got you to do that? Because uh I watch out about asking open-ended questions unless I know what the answer is gonna be, or unless I know that the answer is not gonna hurt me.

SPEAKER_02 20:09

That's the two reasons why you asked them. Most of the questions I asked, it was either the answer didn't matter or I knew what the answer would be. Now I will say that there's a couple questions I asked that like uh take Brian Newland, him agreeing that Mr. J Mr. Foreman's uh statement of him um about being uh hard P uh was um an opinion. I had two more pages of questions to walk him to that point when he just admitted it just cut off two pages of work. So but most of it was just we knew the answer to most of the questions, or we didn't care what the answer was.

SPEAKER_01 20:46

Okay, right. So well, you had gotten the benefit of getting depositions, which we're not able to do uh for criminal defense, at least in the jurisdictions where I practice. So did you know that that officer was going to uh admit that this was uh just a statement of opinion about being a hard P? Did you already get that in the discovery process?

SPEAKER_02 21:05

No, we did not ask any of those questions at deposition intentionally, yes.

SPEAKER_01 21:11

And so how did you were how were you responding inside when you got that amazing answer that that was just a a statement of opinion?

SPEAKER_02 21:20

Just like okay, check, check, check, flip to the next one and move on, lock in and move on.

SPEAKER_01 21:26

Okay, and inside you weren't all excited and trying to control your excitement?

SPEAKER_02 21:31

I'll be honest, I didn't so the first day when Brian was there, I didn't even know the camera was on behind me. I was so focused on what I was doing with just questions and everything. So I would like to say I had a feeling nope, I was too much uh business focused on it.

SPEAKER_01 21:44

You didn't even know that this trial was being televised?

SPEAKER_02 21:48

Not until later that night when my son, when I'm talking to my son, I said, Well, I'm sorry you couldn't be here, it was a hell of a trial. And he goes, No, I got to see it on the internet. That was when I learned it was streaming.

SPEAKER_01 22:01

Now, I also noticed, I wish I had uh looked at more of it, but I looked at some of the uh some of your direct testimony of uh of Joe and some of the cross-examination testimony. And it seemed to me, correct me if I'm wrong, that Joe was really answering numerous of the cross-exam questions, uh, really uh beyond the scope of the cross-exam questions. Uh, am I right about that? And to what extent was the judge letting him get away with that?

SPEAKER_02 22:28

Well, I never called so that's the key thing is that Bob, uh the uh defendant uh Robert Klingler, I I refer to him as Bob, right? Who was the who was the lead attorney for the plaintiffs, um, in their so that I I guess I gotta clarify that. So when you talk about the attorneys for the plaintiffs, you have two sets. You have Bob and his associate who are prosecuting their case that they brought. Then you have the counterclaims, which was prosecute uh which was defended by the insurance company for the uh police department. So they got out of it when those claims were summary judgment out. Now, Bob, Bob called Joe in his case in chief as his last witness, but he called him as if on cross.

SPEAKER_01 23:15

Right.

SPEAKER_02 23:15

I never actually recalled Joe to the stand and asked him any questions.

SPEAKER_01 23:21

Okay, then maybe I missed that. Um so to what extent did the judge just let uh uh let Joe um I I thought he was running away with some of the answers, probably to his benefit.

SPEAKER_02 23:34

I think um I think that is a perfect example of a lawyer losing control of a witness on the stand. Because Bob lost control of him, and he was asking open-ended questions and he was not keeping things under control. It almost as if Bob was uh trying to I almost think Bob was trying to elicit some kind of response uh from Joe that I don't think was gonna happen.

SPEAKER_01 24:02

And to what extent are you are you able to say uh about what you did in preparing Joe for testifying? Because uh that that's one of the most critical things uh uh for for me to do with my clients. You know, just uh have them fully prepared to testify if they're gonna testify.

SPEAKER_02 24:20

Usually I I tell all my clients a very basic thing. I usually put them through a little paces, have a secretary set here and try to do good cop, bad cop so they know what what questions are like. But usually I tell them, okay, when you're asked a question, count to four in your head after they stop talking. That way you one have time to think about the question, and two, if they breathe, you're not trying to answer over each other. And then, of course, I tell them you got to think about if it's more than one question, you answer them one at a time. So if you get a compound question, you gotta ask them. Now it I tell them if you have problems remembering the compound, ask them which question you wanted to ask first. This or this. But for the most part, I tell them that to give your answers, try to keep them as short as possible. Um, don't elaborate unless unless you desire to. Um, and then other than that, I tell them don't worry about it. I we'll clean it up on redirect.

SPEAKER_01 25:14

So you didn't do any focus groups, you didn't do any role playing or reverse role playing with Joe?

SPEAKER_02 25:21

Uh, just our basic, nothing expen, nothing excessive. As far as um uh what was the first thing you asked? Role playing. I mean, you know No, no, the before that, uh focus groups.

SPEAKER_01 25:34

Focus groups, right?

SPEAKER_02 25:36

Actually, we did some unofficial focus groups. Uh, we did have some people we would show. Um, there was a lot of people that I had come in, tell me, hey, what do you think of this evidence? What do you think of this? We did poll a lot of people talking about that, yes. Now, granted, we pulled I pulled a lot of people that were in college, tried to get a demographic across the age range from pretty much 70 down to about 22.

SPEAKER_01 26:02

And so, how did you arrange those focus groups and how in depth uh did you do that preparation?

SPEAKER_02 26:08

So a lot of the a lot of those were impromptu based on people we all knew. Um, some of them we would have people that would actually like friends of mine, I would talk to them and they'd say, like, hey, we're getting together, let's bring everybody together. So we bring together a couple people, do a mini-focus group on it. Uh, we did not go into too much detail with it. Most of it was very generic, uh, just to get some feedback on it. As far as preparation, it's an insane amount of preparation we put in for this trial.

SPEAKER_01 26:39

And and what was the the biggest uh uh several focuses of your preparation?

SPEAKER_02 26:44

Um, a lot of our focus of the preparation was appeal. Uh, this is one of those that it was a good possibility we'd lose on Brian Newland. So everything was prepared for an appeal. All the case law was done, and you can actually see a lot of my questions are designed for the appeal process to fit into the case law.

SPEAKER_01 27:05

And um to what extent did you prepare uh uh Joe any more for deposition uh testimony than you did for trial, or was it just all in one?

SPEAKER_02 27:18

It's pretty much the same kind of same kind of uh prep for it. Count to count to four, think about the question, give an answer. You know, do not be afraid of silence.

SPEAKER_01 27:32

Maybe you expect that Joe is going to tell the truth, but is that the way you deal uh with your clients you think are gonna are not gonna tell the truth? And and uh when you don't think your clients can necessarily tell the truth, what do you do to go more in depth on that, both to make sure they're not telling lies on the witness stand, which will come to back to bite them, and also you know, to to just help your clients deal with surprise questions that they never expected, and not to do a gestalt, not to fill in the blanks, just to tell what they know and not to guess and not to fill in the blanks.

SPEAKER_02 28:03

Well, that's a multiple compound question.

SPEAKER_01 28:06

That's right.

SPEAKER_02 28:07

Um, one I I you can't tell you got to tell your client to tell the truth. And I tell them good, bad, go ahead and tell the truth. We go, we'll go ahead and get it out as soon as possible. If we have bad facts, you just put them out there. Because it's sometimes worse to not put them out there and then have them come out later. So if we have bad facts, we just go ahead and put them out there. There's no reason to uh to hide the ball on it. Um just like I tell all my clients, you tell the truth in depositions because, and even on the stand, because a lie is worse.

SPEAKER_01 28:43

Well, in the trial or as college, for instance, uh, we talk about discovering the story, and often that can take a long time, spending time with our clients to really find the persuasive story, and sometimes the client doesn't understand it. Maybe you know, maybe this is more for criminal defense, but you have criminal defense experience. Uh, you know, and and sometimes we're we're sitting down with uh with my clients and one or one or more sessions of scene reenactment and role playing and reverse role playing. Do you ever do any of that with any of your clients?

SPEAKER_02 29:19

Not role-playing, no. Now I will say that me and Joe spent a significant amount of time together, obviously talking about the case, educating me on the music. Um, it I guess it would not be surprising anybody to know that um other than because I got high, I had never listened to anything else that uh Joe had wrote. So uh that was um I had to be brought up to speed on that. But no, usually not with role-playing. Um, if we do anything, it'll usually be a series of explaining. We will go through evidence with them while walking through what I think a timeline is of what happened. It's like, for example, as in Joe's case, we had to on the search, we rebuilt the timeline of exactly what happened, trying to put together step by step. And a lot of that was through the depositions, working with Joe, what happened on your security camera, what's the time stamp. So, with a lot of stuff, we were building that, but we do not do a lot of role playing. Um, I know in my criminal defense practice and what I've done, I've only ever had the client take the stand once. Uh, most of the time, my clients do not take the stand. So we never have to worry about that too much.

SPEAKER_01 30:26

Okay, so you did spend a lot of time with Joe preparing for the trial. You just didn't spend a huge amount of time preparing his testimony. Is that what I'm hearing?

SPEAKER_02 30:35

That would be correct, yes.

SPEAKER_01 30:37

And uh was there anything else that you're able to tell about what you were doing with Joe and spending the time with him beyond walking through the timeline and beyond you understanding the evidence, and beyond him understanding the procedure?

SPEAKER_02 30:52

Now we did have different ideas. I mean, of course, we talked about evidence, you know, what would you present, when would you present it? This witness versus that witness. Um, a lot of things I try to do with my clients is at least make sure they understand what's going on. Um, it's like if you watch the video, you see I'll lean over and try to tell Joe in real time what's going on, just so he has a general idea. Because there's some things like vor deer that how do you explain vor deer to your client? Uh it's one of those that you do your best explanation and tell them to trust you so you go while you're doing it. But for the most part, um it was just making sure Joe understood everything, and then us talking through the case and different outcomes and the evidence, what I would present, what he would present, um, and go on from there.

SPEAKER_01 31:36

For the jury selection, uh, I don't know Ohio procedure for these civil cases. How many peremptory strikes did you uh did you have available to you?

SPEAKER_02 31:47

Um I want to say I had three, I believe I had three peremptory strikes and one strike on the alternate.

SPEAKER_01 31:54

Okay. Did you make all those strikes and how many uh cause challenges did you make to the potential jurors?

SPEAKER_02 32:00

I made one cause challenge that was denied, and I exercised all three.

SPEAKER_01 32:05

What was your ideal juror, and to what extent were you able to accomplish that? I guess you can't accomplish too much with that many strikes.

SPEAKER_02 32:12

Um, well, the ideal juror, so that's where we did a lot of the study in the focus group, because ideally you wanted a juror who was younger. Um, I remember being in law school, there was a lot of discussion about younger jurors and how they viewed personal injury and injury cases. And the the gentleman I was talking to who up held a PhD in psychology and a and a jurisdocate, um, in talking with him, he's like, Yeah, the younger the jury, the lower the awarded damages. So I had always kept that in the back of my head because he told me he's like, Yeah, you could have a person who lost one arm. If you have a juror that's you know 20 to 30, they'll tell you what job he can do with one arm. And so ideally, I wanted younger jurors because obviously they look at the world such as that, they're gonna look at things a lot differently. Ideally, jurors also, sometime between the age of 55 and 40, was also because that would be in the millennial generation, which uh tends to be very critical of law enforcement. So you kind of got that area, and uh that was sort of our idea range, but that puts us a pretty good range when you're looking at 55 all the way up to 18. Now, our jury in uh in Adams County tends to be an older jury, so there was some older people on it, but that was where you have to kind of factor that into account. But you ideally just wanted jurors within that range. Ideally, military service would have been good. Uh, when you're dealing with First Amendment, military service is always a positive to have. Um, actually, I find anytime you're dealing with the Constitution, military service is good. So we was looking for people with military service. Um we never asked any questions about what music anybody liked, um, because I did not consider that relevant in my mind. But um ideally I wanted farmers, uh, semi-professionals. Uh, when I say semi-professionals, I mean like teachers, nurses, um, like that, because they're they know how to weigh the evidence, they know how to look at rules. You know, they're used to the idea of putting together, okay, you have to have four elements and you have to meet them. So that was kind of what we were looking for was that was our jurors that we wanted.

SPEAKER_01 34:35

I did listen to your opening uh statement of the case. I listened to Bob's too, and that was excellent for you to talk to the jury about context. You can't just take uh the words and they're abstraction, you have to have the context. So, where did you come up with that idea? Was that from the textbook? Because that was as that was essential for you to lay out to the jury.

SPEAKER_02 34:55

Um I don't really remember where I came up with it. I remember that the vacuum idea came from it because there was something I was listening to, and that was the argument that was being made about it being in a vacuum. And and I just remember that stuck with me, but I cannot remember where I heard that from. But I had heard it about three days before the uh opening.

SPEAKER_01 35:18

Only three days, only three days before. Yeah. Amazing. Does do the rules in your jurisdiction allow the lawyers to talk to the jurors after the verdict? And if so, did you have any communication with any of the jurors after the verdict?

SPEAKER_02 35:35

So we usually do the polling of the jury, which is you know, as they come out after the court thanks them and talks to them and everything. Usually you can do the polling. Um, the later it is at night, the less likely we are to do the polling. Um, and so usually I don't, in this case, I would not have worried about it because it was awful late. They'd already deliberate deliberated six and a half hours. The judge is going to go in there and talk to them for at least another 30 minutes, um, usually telling them, hey, you know, here's how you redeem your voucher. You know, if you need anything for work, let us know. You know, we appreciate your service, you know what they normally do. Um, and so this would not have been one the poll. Now, I do know that Mr. Klingler has reached out to some of the jurors um talking to them. And I know I have inquired of the court, and the court says it's perfectly fine. Although I I will be honest, it is awful odd to me because short of polling or running into someone at Walmart who wants to tell you about it, um, I have never reached out to a juror to ask questions before.

SPEAKER_01 36:39

But I have heard of jurors who reach out to the lawyers, so I take it none of the jurors have reached out to you.

SPEAKER_02 36:45

I did run into a juror. Um, I was over in the courthouse, and uh he was looking for um some help trying to find some documents, and I helped and told him here's where you need to go. He's using the wrong words, so kind of guided him through the process, and he talked to me for a bit, but that's that's about the way we do it is you run into person and you kind of talk with them. And I'm kind of notorious in southern Ohio for if you come to my office, even if I can't help you, I'll still talk to you for a while and try to give you some information to let you know why I can't.

SPEAKER_01 37:14

One of my most favorite uh renditions of a lawyer talking to a jury after a trial is uh one of my trial law gods, Steve Rynch from uh Denver. He uh he won a trial for this woman who was caught red-handed pickpocketing this man she was dancing with in a bar. And what he did was he pointed to his client speaking to the uh uh the bailiff in the courtroom or the deputy sheriff when the jury was in the courtroom uh to let the jury, apparently let the jury know that his client was being held pending trial. The jury found his client not guilty. And a possible theory there may have been the jury perhaps figured out she's been locked up, she's served her time, the guy that she pickpocketed maybe was kind of an unseemly guy who's maybe at this CD bar, uh uh maybe uh uh cheating on his wife or at least dancing with some woman when his wife didn't know. And so Steve said that he walked up to this um uh juror who he bumped into, I guess, a few days ago, might have been at the grocery store or whatever, and he said, Is it okay if I talk to you about the case briefly? And the juror said, Your client is okay. It's this whole thing about those jurors who no matter how much they uh give their oath and say they're gonna follow the judge's instructions, they're often gonna just find some practical way just to apply uh their own thought about what makes sense regardless of the law. Now, I guess I'm not gonna be able to get you to say that you were trying to seek any jury nullification here or jury deviation from what the judge was telling them.

SPEAKER_02 38:52

I can safely say after talking with the one gentleman, I have a lot of respect because he did say they they worked hard. And being that they took six and a half hours, they they truly deliberated it. They did not you always worry about you go in there, and next thing you know, you're like, wait a minute, it's been 15 minutes. How do you have a verdict by now? That's always what scared me. But this is one where they deliberate, they did a hell of a job on it. And and in talking with him, even with what he said, he's like, Hey, we we talked about it, we discussed it, he did everything we could ask for. There was no um, no, like, hey, I want to go home, let's just do X. Everybody actually put effort into it in a significant amount. So I was quite proud that no matter how it came out, they they did their job as jurors, which is is all you can ever ask for.

SPEAKER_01 39:41

How many jury members were there?

SPEAKER_02 39:43

Uh so we had eight total, um, because a civil trial, and we had two alternates. Um, we did not need to use the alternates, which this is the first trial I've ever had where I didn't have to use an alternate. Uh, usually with my trials, I always like to have two because I'll lose one within the first day. And so I always like to have that extra one. This is the first trial where we never used any of them.

SPEAKER_01 40:05

What did you think before the trial started? Were your chances of winning a trial versus having to go through the appeal process?

SPEAKER_02 40:14

It was a mixed bag in my mind when you look at the plaintiffs. Um, I I felt that five of them should have went on on the rule, you know, on the directed verdict. And then I figured the other two was a toss-up, and uh that's why I was preparing for appeal, because it was a toss-up. Anything that's a toss-up is not a certainty, and if it's not a certainty, you prepare for appeal.

SPEAKER_01 40:39

You're saying you you expected uh some of the plaintiffs to win on directed verdict?

SPEAKER_02 40:44

No, I expected to lose five on directed verdict.

SPEAKER_01 40:47

Right, okay. Got it. Um I thought I heard the judge say after you gave opening statement to the jury that this is not about sending a message, and he may have said something else as well, that maybe this isn't about uh the um uh whether that search warrant should have been issued or not. So can you clarify what he said about that? And uh and what do you feel about uh after the judge said that about you having made that uh those points in opening argument?

SPEAKER_02 41:20

So the judge after after I concluded my opening uh said he could tell us what this case was not gonna be about. This was not gonna be about the search warrant or the amount of force used in the search warrant or in the execution of it. He also said that this was not gonna be a First Amendment case. Uh the First Amendment goes to publication, not to everything else. And so a lot of that was, I guess, in his mind, to clarify to the jury what they would not be hearing to kind of keep them on track.

SPEAKER_01 41:52

Um did your statement about sending a message uh just bleed over from uh maybe arguments you had made in closing argument when you were a prosecutor?

SPEAKER_02 42:04

Uh not necessarily. Most of my thing, so I tend to believe when you do your opening and closing, it's like, well, I had a rough draft of the opening ready. Your opening still has to bounce off of the plaintiff as a defense attorney. And we're solely in defense at this time, so there is no we our counterclaims are gone, so we're in total defense mode. So I had my rough draft, but a lot of it was basing it off of what Bob was saying because I want to counter some of his points, not just sound like we both stood up and we're talking about different things. And so it when he says it's about sending a message, that's where I come back and say, and you can see that in my closing, because he talks about what kind of world will this be, and then I bring it up basically saying, Bob said this, well, let's talk about it. So a lot of it is to bounce off of the plaintiff to present the alternate view of it.

SPEAKER_01 42:58

Got it. Well, I I think I started falling asleep almost with Bob's opening, so maybe I missed that with them. Uh, what firm is Bob with and what's his background?

SPEAKER_02 43:09

You have to take this with a grain of salt, but uh, I think Bob, I think he has his own firm. I forget the name of it. Um I think I actually think it's his name, and it's an LPA, but but I want to say if what I don't think he does a lot of civil rights cases, as I recall, because I was looking them up on Lexus, and it seemed to have a lot of employment stuff that and arbitration stuff he did. Not necessarily civil rights and defamation. So I was a little surprised to see he took this case.

SPEAKER_01 43:40

Now, to what extent in preparing for this trial, uh David, did you um look at it from the other side and what you expected the plaintiff's side to be doing?

SPEAKER_02 43:53

No, that's pretty much how I did it. Is so we had their complaint, so I pretty much took everything. The evidence said, okay, if I was Bob, how would I do my case? Put it together and then turn around and say, okay, that's how the defense or that's how the plaintiff will do it. Here's how we're going to counter it. Here's what the appeal is, and sort of put it together that way.

SPEAKER_01 44:13

And to what extent did you do the same thing at uh uh anticipating what uh the plaintiffs were gonna say on the witness stand, but of course you had deposed them as well.

SPEAKER_02 44:22

I had deposed them a significant amount about uh various things, but nowhere near as much as I knew because a lot of it, a lot of the stuff I already knew. Uh take the stuff like um Mikey Step's wife. Um I we already knew all that stuff. I mean, that stuff's been public knowledge for years here in Adams County. Uh the same stuff about Brian Newland's brother. We've all read the newspaper. I don't need to do a deposition and ask him questions on stuff I already know. And that's one where if Bob didn't know that, then Bob would have needed to interview his client better because you're sitting there with a mugshot of your brother next to you. I would ask about that. But we went and pulled all the newspapers. I reread the newspapers, got certified copies in case we need them for impeachment. I mean, we sort of had everything ready for that, and we didn't need to talk about it in depositions.

SPEAKER_01 45:14

How long did the depositions take?

SPEAKER_02 45:16

Um, I had two full days uh doing all the officers, and Joe was deposed twice for I think a total of six, seven hours.

SPEAKER_01 45:25

How uh contentious or not did the depositions get?

SPEAKER_02 45:32

Depositions sometimes get heated. Um, usually what I do is when they get heated or getting emotional, I tell everybody let's take a break, come back with a clear head. Because the reality is if they get upset or get emotional, you don't get any answers that make any sense. So usually a nice break to calm everybody down, get a cup of coffee, come back. That's usually all it takes, and then we keep going.

SPEAKER_01 45:53

How did uh Joe hold up? I mean, that takes some stamina if he was being deposed for six to seven hours.

SPEAKER_02 45:58

Um they did it in two go and two separate uh times, which actually made it a lot easier. I think the first one was three, three and a half, and then the second was the remainder of the time.

SPEAKER_01 46:10

And how did he all hold up with keeping his cool in depositions? He did really well because intrala seemed to keep his cool and be passionate.

SPEAKER_02 46:19

He did very good. The only thing he keeps complaining about is my chairs in this conference room is not very comfortable, so so I don't blame him for that because as I told him, the chairs almost are designed to be uncomfortable. You don't want everybody to stay.

SPEAKER_01 46:33

So this is this is your conference room you're in. Yes, yes. All right, so that those I don't know enough about firearms. Do those firearms still fire?

SPEAKER_02 46:42

Uh it wouldn't be much use if they didn't.

unknown 46:44

Okay.

SPEAKER_02 46:46

Everybody keeps asking me that, but no. Uh they're just unloaded, but they do still work.

SPEAKER_01 46:51

I don't know. Maybe it's just that I'm from another part of the country. Because if I did if I was in a deposition room in my office, I'd want I wouldn't want to have firearms available to the other side.

SPEAKER_02 47:01

I joke with everybody, it shouldn't be the ones you see you worry about, it should be the ones you don't see.

SPEAKER_01 47:05

Yeah, right.

SPEAKER_02 47:07

Because I imagine, Jonathan, you're if you're uh doing defense work, you've been threatened once or twice. So I usually tell everybody, don't worry about these. If you're threatening me, worry about what you don't see.

SPEAKER_01 47:17

Uh, David, the name of this show is Beat the Prosecution. Do you have any ideas for uh persuading in court, whether it's in criminal defense or anything else, beyond anything else you have said?

SPEAKER_02 47:32

Um, I truly do believe that the more I've practiced, the more jury trials I've done, the more I see that vor dir is the most important part. And I think that's where most cases are lost is in vor deer. If you don't have a good vor deer where you're educating the jury, you're getting your kind of start of your message, then that's really where most of the failure is. And I think what you find is when I go up against prosecutors a lot, they always have a playbook. It's always the American flag, and it's always a canned thing they do. And it kind of gets to be where I see a lot of attorneys, they'll usually sit there and struggle with how to come back with that. And so I think they need, I think if you put a lot of work in the vordear, you get a hell of a lot better outcome out of your cases. And uh I'd like to say I see more good vordeers than bad, but I see more bad voiders than I do good.

SPEAKER_01 48:24

Voordier is critical, and at least in Virginia, we get to do jury-directed uh voidier, unlike in uh uh most of the federal courts. Although in uh the Western District of Virginia we can do uh Lord directed void here too in federal court. Uh okay, but it's got to be more than voidier. You know, what what do you apply for for doing directing cross-examination? For instance, what do you apply for doing opening and closing argument and uh dealing with cockamami objections from the other side that might uh uh sit well with the judge and and uh and and if the uh other side is just uh trying to throw mud in your eyes one way or the other?

SPEAKER_02 49:01

So that's interesting you mentioned objections because I I'm a big fan of write down your questions, and I mean write them down. I I hate it when people type them up. I'm a still believer you write them, you put notes on this pad, and it's kind of interesting because when I would like put write my question, I'd actually write in the margin if they objected what my argument would be against the objection. And then I also think that a lot of times everybody gets in a hurry on uh on their closing. Now, on your closing, I think your closing should never be written until about 30 minutes before you need it. Because you don't know what your evidence is, you don't know what got admitted, and if you're writing your closing before you've had your trial, you have no clue what you're doing because you don't know what happened. Um, I wrote my closing, about half of it was ready, and then the other half was a direct response to what Bob was saying because you know I had no clue what he was gonna say until he said it. Now, I will say um usually on direct, when I do direct, um take uh Miss Groom's a perfect example. I I hate it when you go too fast because I think you depersonalize your witness. I think you need to take your time, introduce who they are, talk about them a little bit. Let let the jury see they're a person also, not just a piece of evidence to be put on the stand and kicked off. So I usually tell everybody take your time, make it very conversational, not robotic, like it sometimes looks like. Um, and then on cross-examination, when you're cross-examining an officer, lock them into the report and then hammer inconsistencies. And most of the time, I usually find just keep control of the officers because a lot of officers want to take control of the uh stand, and you got to keep them from doing that.

SPEAKER_01 51:01

Have you attended any of the great uh trial programs, such as or read the great uh books beyond that uh libel book? For instance, uh Exposing Yourself to Larry Posner on Cross.

SPEAKER_02 51:15

Nope, about the closest I got is about the closest I got. Yep, so that's about as close as I've got to but I do still watch his videos and I too bad he's passed on. He he would be amazing to learn from if he's still here.

SPEAKER_01 51:38

How long were you a prosecutor? Three years and what kind of cases were you prosecuting? How many uh trials, including jury trials, did you do then?

SPEAKER_02 51:49

Um so I don't know how many trials because I never counted bench trials. Um I know I did three jury trials or four jury trials, I can't remember exactly. Um I was in Lyme in the municipal court, so we we touched thousands of cases. Um but no, I don't remember all I had.

SPEAKER_01 52:12

What was your purpose for becoming a prosecutor? And did you ever have trouble sleeping at night with anything you were doing as a prosecutor?

SPEAKER_02 52:25

I never had a problem sleeping at night because I gave everybody the same fair shake, whether you had an attorney or not, whether your attorney was good or not, you still got a fair shake. And I would tell everybody I treat them the way I'd hope a prosecutor would treat me. Um just like I told everybody when I'm an attorney, I tried to be the attorney I'd want to hire. Um, but so I never had a problem sleeping, and actually it was um kind of interesting because uh Lima had a Facebook page, or not well, this one gentleman who had got prosecuted had a Facebook page, and it was kind of funny because every time I'd run into him in Walmart, he would just say how I treated him fairly. He was not mad about getting convicted, he was just happy he got treated fairly, and that's what I found out with most of the people is that they don't mind paying for the crime, it's just they want to be treated decently when they do it. And if you do that, there's no problems. Now, I forget what was the other question. There was a first part. I answered the second part, not the first.

SPEAKER_01 53:24

Was there anything you were uncomfortable about doing as a prosecutor? But I think that relates to the uh uh not sleeping well. Oh, what made you decide to become a prosecutor?

SPEAKER_02 53:34

Um so me and John Codwell was talking about that. Um at that time I looked at my firm and found out that 75% of the business I was doing was my own work. Uh, between my rentals and commercial property and everything, that was my own work. So I got a little tired of that, and I was talking with uh Randy Lamar. Randy said they were looking for a prosecutor in Lima. I talked with John Codwell, and John told me that if you want to be a good attorney, you've got to be a prosecutor because being a prosecutor, you'll learn how to put together your case. And he's like, it's a lot harder to be a prosecutor and do it good than it is to be a defense attorney. And so he encouraged me to uh to take the position, to get the skill set and the knowledge, and so uh they made me an offer I couldn't refuse. So I went and did it. And uh, I gotta say, it it taught me a lot about trying cases because it was a hell of a lot harder to meet that high burden and do it right than it was to uh be defense sometimes.

SPEAKER_01 54:40

To what extent do you think that uh Joe will become a defamation uh defendant again in the future? Because he seems really outspoken, and I'm so happy that he's so faithful to uh exercising his free expression rights.

SPEAKER_02 54:56

I would I would hope it doesn't, but we're in a world where I hate to say it, but we are in a world where everybody will sue everybody, and it's no longer really a question of right or wrong. People sue you just uh shut you up, and that's really what this lawsuit was was a lawsuit to try to silence him, and it's kind of sad that's where we're at. So, do I think someone will try it again? I don't know if it'll be Joe, but I got a feeling that we'll see more of these lawsuits in the future as people start trying to sue other people just to get them to uh not say what they don't like.

SPEAKER_01 55:29

David, I told you we'd be here till 5 p.m. Eastern time. I think it's hit that time, so I want this to be your opportunity to say anything to everyone that you haven't already said or emphasize anything. It sounds like you feel you have so many clients, you don't even need to share your phone number, but feel free to do that as well.

SPEAKER_02 55:48

I I have been blessed. I cannot complain about my clients. They are some of the best people I could ever represent. And um, it's a nice little community down here. I mean, honestly, our worst problem is that we need more attorneys in the uh country because if you look at it in Adams in well, in Adams County, there's only two of us that do civil litigation.

SPEAKER_01 56:08

Wow.

SPEAKER_02 56:09

Um, and so it's like there's some counties that by the time you get the judges and the prosecutor field, there's not going to be any attorneys left. So it it's and also it's one of those things where your reputation precedes you. If you do a good job, your reputation will be what you work on. It takes a lifetime to build and then 10 minutes to destroy.

SPEAKER_01 56:30

Well, thank you, David. Everyone, you've heard from Dr. David Osborne, that's OSB O R N E Jr., who successfully won a few uh only about a couple of weeks ago, right? Uh the trial against Joseph uh Edgar uh Foreman, uh also known as Afro Man. Uh David's uh represented the site of light, Afroman won. Everybody, this is John Katz at Beat the Prosecution because there is no other way. I am a criminal defense and DWI defense lore in Fairfax, Northern Virginia. Thank you so much, David. Stand by. Thank you.

SPEAKER_00 57:10

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. Nothing discussed on our media sources, such as our podcast or website, is legal advice. John Katz only provides legal advice to current clients or to individuals who have paid for a consultation. We welcome you contacting us via email at info at beatheprosecution.com by calling our office at 703 383 1100 or texting us at 571 406 7268.