Latest / Blue Grit Podcast: The Voice of Texas Law Enforcement / #070- "Legal Lifelines" with Doug O'Connell and Ken Ervin Part 1

Transcript

#070- "Legal Lifelines" with Doug O'Connell and Ken Ervin Part 1 · Blue Grit Podcast: The Voice of Texas Law Enforcement

• 0:02
  Speaker 1: One of the things we did to kind of shape the battlefield was have a pretrial hearing to bring in the lead SIU detective, mic drop.
• 0:09
  Speaker 1: Moment of that hearing was the detective pronouncing that her investigation was concluded.
• 0:15
  Speaker 1: She did not find any criminal offense.
• 0:25
  Speaker 2: Welcome back.
• 0:25
  Speaker 2: Viewers, watchers, listeners.
• 0:27
  Speaker 2: I'm your host, Tyler Owen and Clint McNair.
• 0:30
  Speaker 2: What's going on?
• 0:33
  Speaker 3: Normally it's a really smooth drive in.
• 0:34
  Speaker 3: This morning was almost four hours.
• 0:36
  Speaker 3: I don't know what the deal was, but it was four.
• 0:38
  Speaker 3: How?
• 0:39
  Speaker 2: are you Good?
• 0:39
  Speaker 2: Good, everything's going good.
• 0:41
  Speaker 2: We all got back from DC and it was a good trip.
• 0:43
  Speaker 2: Paid tribute to the following so several of us went and man, what a week that is, if you ever get the chance to make it up to DC.
• 0:51
  Speaker 2: Anybody watching listening strongly, strongly urge you to get up there and participate in that.
• 0:58
  Speaker 3: Yep Bucket list item for sure.
• 1:00
  Speaker 2: Absolutely, absolutely who we got on today.
• 1:03
  Speaker 3: Two superstars here in Austin Been in the news a little bit lately and kind of honored to have them on, because it's an uphill battle defending law enforcement a lot of times in this day and time and then, depending on where at in the state and the politics of that area, it can be about 10 times more challenging.
• 1:23
  Speaker 3: So a couple of star attorneys from around here.
• 1:27
  Speaker 3: I'll let you, gentlemen, introduce yourselves.
• 1:29
  Speaker 1: Hey, well, thanks for having us on.
• 1:30
  Speaker 1: I'm Doug O'Connell and I'm with Ken Irvin.
• 1:35
  Speaker 3: Welcome on guys.
• 1:36
  Speaker 3: Yeah, welcome on.
• 1:37
  Speaker 2: Welcome on.
• 1:37
  Speaker 2: I will throw out there a couple weeks ago, most likely because of y'all's success and y'all's well, I shouldn't say aggressiveness I Most likely because of y'all's success and y'all's well, I shouldn't say aggressiveness I'll go ahead and leave it at success.
• 1:47
  Speaker 2: We actually did meet with Jose Garza at the DA's office.
• 1:51
  Speaker 2: It was a pleasant meeting.
• 1:53
  Speaker 2: It went decent.
• 1:54
  Speaker 2: We'll see how those talks continue.
• 1:56
  Speaker 2: But because of y'all's success, again in the courtroom and you guys are going to dive off into a couple of cases.
• 2:01
  Speaker 2: But yeah, it's a great job.
• 2:09
  Speaker 1: You know, I don't think aggressiveness is the wrong description.
• 2:12
  Speaker 1: We know that when an officer is charged and we're representing them, the best thing we can do is, to the greatest degree possible, be on the offensive to dictate the tempo and the shape, shape the battlefield, and we've learned from our officer clients the concept that action beats reaction and we tried to bring that to bear in criminal cases whenever we can.
• 2:39
  Speaker 3: And I think that's a good point and I don't think it's unfair to say generally you want your attorney to be methodical and professional, but that all changes, as you said, on the battlefield.
• 2:53
  Speaker 3: You've got to change accordingly.
• 2:54
  Speaker 3: And you know the DA at one time posted if you're interested in prosecuting police we're hiring, Come on down here.
• 3:00
  Speaker 3: Well, if that's not aggressive, I don't know what that is.
• 3:03
  Speaker 3: And so if you know someone is already postured looking to aggressively prosecute police, the defense better be equally as aggressive, ready to figure out how to operate in that battle space.
• 3:16
  Speaker 3: Because if they're coming aggressively, you better have a plan on how to defend that, and you guys have done a phenomenal job with it.
• 3:26
  Speaker 3: Before we get started in this, we'd like to start from the ground floor.
• 3:28
  Speaker 3: Just tell us a little bit about who you guys are, where you grew up, background about you, and then kind of what led you, what steered you in the direction of where you're at today.
• 3:39
  Speaker 4: Sure, Right, ken Irvin moved to Austin uh 97.
• 3:47
  Speaker 4: Uh enrolled at ut, got a philosophy degree.
• 3:50
  Speaker 4: Didn't know what I was going to do that didn't know what I was going to do really period.
• 3:53
  Speaker 4: Born in texas from here, yeah, from amarillo, texas oh nice yep um, born in arlington but don't remember that so raised in amarillo and moved out pretty much as quick as I could after high school to go somewhere else.
• 4:07
  Speaker 4: So moved here to Austin, actually with a band.
• 4:10
  Speaker 4: That didn't last very long, about six months before we hated each other.
• 4:14
  Speaker 4: So enrolled in school and then it was law school.
• 4:18
  Speaker 4: After that, practicing law seemed appealing to me.
• 4:22
  Speaker 4: I didn't know exactly what I wanted to do.
• 4:23
  Speaker 4: I was always drawn to the criminal world, whether it was watching cops or maybe courtroom TV shows.
• 4:28
  Speaker 4: So it didn't matter what kind of where else I looked, what other fancy legal jobs there are.
• 4:35
  Speaker 4: That was just what I wanted to do.
• 4:37
  Speaker 4: So I went to work as a prosecutor, first misdemeanor and Travis.
• 4:42
  Speaker 4: County, travis County, and then felony for for five years, so total about 11 years as a prosecutor and then jump ship.
• 4:49
  Speaker 4: But the the tail end of my time at the DA's office was extraordinarily important because I was in the unit then called a critical incident unit and that investigates officer involved, shootings in custody, death.
• 5:01
  Speaker 4: So I was going out to shooting scenes and OISs for three years a little bit longer and then investigating those cases and then presenting them to a grand jury for review, which was the policy of the DA at that time, who was Rosemary Lindbergh, and at the time I mean they're thoroughly investigated by whatever the department is that's investigating, and then us as well.
• 5:25
  Speaker 4: And then we would go in and give a very neutral factual presentation to the grand jury and what laws may or may not apply.
• 5:34
  Speaker 4: But we really gave it up to them.
• 5:36
  Speaker 4: We didn't look for indictments, we didn't look for no bills either.
• 5:40
  Speaker 4: It was just this is everything we could possibly give you, no bills either.
• 5:44
  Speaker 4: It was just this is everything we could possibly give you.
• 5:46
  Speaker 4: And it was a policy of her and some other DAs, including Garza now, to have a grand jury review everything.
• 5:51
  Speaker 4: And there are some benefits to that.
• 5:52
  Speaker 4: There's some drawbacks too, but that was the policy.
• 5:57
  Speaker 4: But that experience was enormously helpful, obviously, to now defending police officers.
• 6:01
  Speaker 4: So I finally made the jump to defense work and I believe it was the first week that I was doing.
• 6:10
  Speaker 4: That Awesome police officer named Donald Petraeus came in to see my senior law partner, referred to him because he was under a very quick investigation.
• 6:20
  Speaker 4: His case was going to be going to grand jury very soon extraordinarily quickly.
• 6:24
  Speaker 4: Well, my partner was about to leave for Europe for a month and just couldn't do it, but I was perfect for it.
• 6:30
  Speaker 4: I mean, this is I.
• 6:31
  Speaker 4: That was the my favorite part of being a prosecutor was in that unit Backbone, yeah.
• 6:36
  Speaker 4: So, um, perfect fit, took them on, represented them, and that's how I first connected with Doug doug.
• 6:44
  Speaker 4: There were two defendants charged, donald patritis and then rob path, who hired doug.
• 6:49
  Speaker 4: So we kind of knew each other.
• 6:52
  Speaker 4: We were actually on opposing sides a few times.
• 6:54
  Speaker 4: So he represented at least one, if not two, couple yeah, police officers undergoing grand jury review that I was conducting, and so we were opposing counsel a couple of times, didn't talk too much, I was kind of scared of him.
• 7:07
  Speaker 4: I was actually intimidated and I don't say that about really anybody, but it was a vibe, it was a little bit scary, but okay, you know, grand jury did the right thing for both of his cases.
• 7:23
  Speaker 4: So, teamed up, I realize he's not as scary as I thought he can be, but, right, there's lots of sides to everybody and then it's just been extraordinarily easy to work with them from that point forward.
• 7:36
  Speaker 4: And we jointly represent pretty much any police officer.
• 7:39
  Speaker 4: That comes to either one of us because we're a really good fit in terms of what each person strengths and limitations right, we kind of make up for that mutually.
• 7:43
  Speaker 4: Comes to either one of us because we're a really good fit in terms of what each person's strengths and limitations.
• 7:46
  Speaker 4: Yeah, right, we kind of make up for that mutually.
• 7:50
  Speaker 3: How long practicing law altogether?
• 7:53
  Speaker 4: Since 2007,.
• 7:56
  Speaker 2: whatever that number is, Nice being where you're at now as defense, the prior DA was also on the Democratic Party, correct, correct.
• 8:07
  Speaker 2: As defense, the prior da was also on the democratic party, correct, correct.
• 8:11
  Speaker 2: Typically a da's office is very uh, I guess mirrored to a sheriff's office.
• 8:13
  Speaker 2: They typically bring in people who have the same values, have the same political mindset.
• 8:17
  Speaker 2: You, being on now on the defense side and seeing what was your office then, what is your opinion and what is your views now of what the DA's office truly?
• 8:28
  Speaker 2: Clint says it best when he says that some of the current DA's in Texas what we consider rogue DA's in the very, very blue cities weaponized Texas Penal Code to fit their political agenda.
• 8:40
  Speaker 2: We had Democrat DA's before all this bullshit happened and it's like it's gotten worse.
• 8:46
  Speaker 2: And so what is what's your thoughts on that and, kind of, what's your viewpoints now, as being someone who has represented that office before?
• 8:54
  Speaker 4: It's a really horrible combination of politics, but it's ignorance too.
• 8:58
  Speaker 4: I mean it's at least half.
• 9:00
  Speaker 4: So you get a certain DA who gets elected to a big county and has very little experience actually as a prosecutor, whether it's trying cases or defending them, or even with the very niche world of police tactics and use of force.
• 9:16
  Speaker 4: So that person is just a regular citizen who gets elected, but they're coming in with all the knowledge a regular citizen has, which is next to zero or zero.
• 9:27
  Speaker 4: And so if you're a certain person, you have these certain ideas about how police officers work or should work, or the abuses, right, and the targeting, the racism, all of the sort of things that you can hurl out, and what they don't realize is that's.
• 9:44
  Speaker 4: I'm not saying those things don't exist ever, but it's not like you think.
• 9:48
  Speaker 4: And so when I worked as a prosecutor investigating police cases, it was just such an eye opener to see the vast majority of people who signed up for this job.
• 9:57
  Speaker 4: They're just regular people, they have families and they can write to go home and they want to do the right thing.
• 10:02
  Speaker 4: And they're police officers for the right reasons and nobody's perfect in their job.
• 10:06
  Speaker 4: But there can be enormous consequences for getting something a little bit wrong as a police officer.
• 10:10
  Speaker 4: So it was.
• 10:12
  Speaker 4: It was discovering the nuance of the job, of what it's like to be on the street and have to make these critical split second decisions where something can go really horrible, you know, or really ride, depending on what you do, and it's just such a fine line sometimes.
• 10:27
  Speaker 4: So you start to appreciate the difficulty behind the job.
• 10:31
  Speaker 4: But you also appreciate the people too that are underneath the uniform and realize maybe they're not what you had thought.
• 10:40
  Speaker 4: So, but going back to the DA, that person, if they don't, you know, have any, any any of that knowledge and if they're not getting it from an institution that they join, then they're just left with these bad preconceived notions, get a lot of indictments because it's easy to do, and we can talk about grand jury manipulation and how you could do that.
• 10:59
  Speaker 4: But we're seeing the results now, which is nothing.
• 11:03
  Speaker 4: Nobody's getting convicted.
• 11:05
  Speaker 4: We have acquitted some police officers, some have had mistrials, but nobody's been convicted yet, and so it's a long time coming.
• 11:16
  Speaker 4: But that DA is getting the reality check that it's not what you thought it was.
• 11:21
  Speaker 1: And it's not easy at all.
• 11:23
  Speaker 1: It's going to be painful, at least every time we're involved correct yeah, and it's so it's hard to digest.
• 11:32
  Speaker 3: I've been around law enforcement um 30 years.
• 11:36
  Speaker 3: My dad spent 35 years working police shootings and working crimes against persons in Dallas PD, so I grew up around police department and DA's offices, and law enforcement and the DA's office are not on the exact same team, but by God we should be partners with the same mission, which is justice.
• 12:00
  Speaker 3: Yeah, the greater good, the greater good of justice and if somebody commits a crime, being sure they get a fair trial and they go to prison or whatever justice looks like for them.
• 12:09
  Speaker 3: But we're partners in that and the pure adversarial relationship that four or five of the major cities around Texas and even across the country, that it's not even close to a partnership, it's sometimes just purely outright adversarial, it's hostile In the weaponization, it's sometimes just purely outright adversarial, it's hostile.
• 12:26
  Speaker 3: In the weaponization of the law.
• 12:27
  Speaker 3: There's an officer I'm retired from Garland.
• 12:30
  Speaker 3: There's an officer from my agency that is indicted for aggravated assault with a deadly weapon by a peace officer by threat.
• 12:37
  Speaker 3: I pulled my gun in the 90s, early 90s.
• 12:41
  Speaker 3: I pulled my gun probably six nights, six times a night.
• 12:44
  Speaker 3: In the 90s, early 90s I pulled my gun probably six nights, six times a night.
• 12:46
  Speaker 3: I guess I committed aggravated assault with a deadly weapon by threat by peace officer six times a night for ten years in the 90s.
• 12:53
  Speaker 3: How you stretch the law just to achieve a political agenda, and it's abuse.
• 13:01
  Speaker 3: It's, it's abuse and and so we've gone from not even being a partner for justice to I mean and being enemies and the only people it really hurts in the end is the community, because they're not getting the effective justice that they need, because we're all fighting behind the scenes and and playing games, and it's really, really, really a disappointment and we've talked on here a lot about.
• 13:27
  Speaker 1: Hopefully at some point, the reasonable people in the large communities wake up and realize you know, elections have consequences and it's so bad in Austin that we've had clients who are detectives tell us that the majority of the detectives in Austin when they have to talk on the phone to an assistant DA, they are recording that phone call to protect themselves.
• 13:51
  Speaker 1: That's how bad the level of trust is.
• 13:56
  Speaker 4: And the effects of Ripple.
• 13:57
  Speaker 4: I mean they're very concrete, like you said, to the community.
• 14:00
  Speaker 4: So a new DA comes in and a police officers start getting indicted left and right.
• 14:05
  Speaker 4: The effects are people are retiring early.
• 14:09
  Speaker 4: They're even, you know, buying forward to retire early because it's just they want out, because every, every shift I go on is another chance for something to go wrong.
• 14:17
  Speaker 4: And now I'm next.
• 14:18
  Speaker 4: Uh, less proactive policing, because and and you hear this, you know, I mean we hear it from people we represent, even in show up, you know, at first maybe it was just suggested, hey man, you know, maybe just take your calls.
• 14:33
  Speaker 4: And then it's just take your calls.
• 14:35
  Speaker 4: Yeah, you know, you go.
• 14:37
  Speaker 4: And if you're stirring up interactions and you're looking for enforcement actions, every single time is again, uh, that could be your indictment.
• 14:44
  Speaker 3: So policing is real.
• 14:46
  Speaker 4: People often ask us deep policing real or I promise you deep policing is real, yeah, that, and promoting to people who really love to be street officers, getting out and and promoting when that person is such a good fit and so ideal and so helpful for the community and you lose them.
• 15:02
  Speaker 4: And so it's, you know, more of a series of new officers and just a lot of inexperience, which you know can work, but it's not ideal.
• 15:11
  Speaker 2: Well, Doug, where'd you grow up and how did you get in law?
• 15:15
  Speaker 1: Yeah, so I grew up in Maryland and ended up down here because my first I was in the army after college.
• 15:23
  Speaker 1: So my first assignment was at Fort Hood, now known as Fort Cavazos, and Killeen back in the late 80s was a desolate kind of place, and so we would come down to Austin to hang out on 6th Street, try to meet girls.
• 15:41
  Speaker 1: Sure enough, I fell in love with this town.
• 15:46
  Speaker 1: It's not the same town it was back then.
• 15:49
  Speaker 2: It was just weird, it wasn't dangerous.
• 15:51
  Speaker 1: Yeah, After law school, like Ken, I got a job at the county attorney's office and then I moved to the DA's office and then for a period of time I was at the US attorney's office as a federal prosecutor and then, after 9-11, I got called back to the military a bunch.
• 16:11
  Speaker 1: After 9-11, I got called back to the military a bunch and then, after that was all over, entered private practice and then, like you described, we ended up teaming up to represent PATH and Petritis and those guys were acquitted and we had a lot of fun representing them, figured out, we worked well together and so now we continue to represent officers, not just APD officers.
• 16:42
  Speaker 1: We've done DPS officers, other surrounding jurisdictions.
• 16:46
  Speaker 1: You know we recently represented Zach Camden, a TMPA member.
• 16:52
  Speaker 2: Yeah.
• 16:53
  Speaker 3: Where at in Maryland?
• 16:54
  Speaker 3: And what was your MOS in the Army?
• 16:57
  Speaker 1: So Howard County, maryland, so that's kind of north of both DC and Baltimore.
• 17:05
  Speaker 3: Okay.
• 17:06
  Speaker 1: And in the Army.
• 17:07
  Speaker 1: I started out as an engineer officer and then later became a special forces officer at Green Beret oh nice, Excellent.
• 17:16
  Speaker 3: Listened to a podcast on the way down here with a really sharp Green Beret guy that specializes in Russian now and got a son in the Navy trying to transfer over to speaks Arabic.
• 17:26
  Speaker 3: So he's trying to transfer over to Green Berets because he's a bit bored in the Navy.
• 17:29
  Speaker 3: That's a whole other story.
• 17:31
  Speaker 1: Yeah.
• 17:32
  Speaker 3: Appreciate your service.
• 17:33
  Speaker 3: Thanks.
• 17:33
  Speaker 3: What law school ut?
• 17:36
  Speaker 1: I went to uh wake forest in north carolina for the first two years and that's where the degree is from.
• 17:41
  Speaker 1: But I knew I wanted to live in austin and so I did the third year of law school at ut as a visiting student nice, that's awesome.
• 17:49
  Speaker 2: So, speaking of the the recent victory, let's dive off into the TNPA, member Camden, and let's talk about how your involvement got involved with this case and kind of how that case got kicked off.
• 18:04
  Speaker 1: Yeah, so early on that case was languishing for a long time.
• 18:10
  Speaker 1: Years a long time, years, years and had sat at the da's office unindicted with no interest in doing anything.
• 18:19
  Speaker 2: Uh, was garrison da when that first league kicked off, or was it?
• 18:21
  Speaker 2: No, it was his predecessor margaret moore.
• 18:23
  Speaker 1: Okay, and so the case was languishing.
• 18:25
  Speaker 1: We believe they didn't intend to do anything with it.
• 18:29
  Speaker 1: And then, of course, already indicted.
• 18:32
  Speaker 3: No, no, no, no, not even indicted, not even indicted nothing going on with it.
• 18:36
  Speaker 1: And then the media got ahold of uh, the APD officer who assisted them got ahold of his body cam and published it and wrote a expose, if you will.
• 18:50
  Speaker 1: Uh, and of course this was on the heels of the George Floyd incident, and so the decedent in the Camden Johnson case also said something along the lines of I can't breathe.
• 19:01
  Speaker 1: And all of a sudden you had a media sensation, spectacular.
• 19:08
  Speaker 2: And this was post-election or during the election.
• 19:10
  Speaker 1: During Garza's election for office, pre or in the early days of the election, during during during garza's election for office pre in the early days of the election, but he had not been elected, but he used that in his campaign.
• 19:21
  Speaker 1: In his campaign and said I'm gonna fight for justice for the ambler family.
• 19:26
  Speaker 1: Keep in mind he had not seen any evidence, he had not seen the case file, he didn't have access to anything, but he concluded that from a media report that Zach and JJ had violated the law and he was going to prosecute them and seek a conviction.
• 19:45
  Speaker 3: Ballpark at that time.
• 19:47
  Speaker 4: How long had that case been sitting unindicted and I want to say, plus or minus a year long enough under the previous DA that if that, if it was a problem and they thought there was a crime, it would have been indicted.
• 20:00
  Speaker 4: And so Doug described it as languishing and it was kind of languishing.
• 20:03
  Speaker 4: You know it's, it's not.
• 20:04
  Speaker 4: They haven't issued a declination letter saying we're not going to take this grand jury, but they hadn't taken it to grand jury either.
• 20:09
  Speaker 4: Um, but there was certainly no urgency and our opinion is because the previous DA didn't think there was a crime.
• 20:18
  Speaker 2: And for those that don't know, the case that we're referring to.
• 20:20
  Speaker 2: It was two Williamson County deputies.
• 20:21
  Speaker 2: Evening night I'm not really sure the time of day had a pursuit.
• 20:25
  Speaker 2: Start.
• 20:27
  Speaker 2: Began in Williamson County, ended in Travis County my understanding is very close to where this office sits today.
• 20:33
  Speaker 2: Ended in Travis County.
• 20:35
  Speaker 2: I'm understanding it's very close to where this office sits today.
• 20:40
  Speaker 2: The subject continued to resist upon his exit of the vehicle During the deployment of a taser.
• 20:48
  Speaker 2: He subsequently ended up dying During the him resisting.
• 20:51
  Speaker 2: Essentially there was heart condition.
• 20:52
  Speaker 2: I mean, there's a whole lot to this case and we're going to dive into it.
• 20:55
  Speaker 2: That's kind of where you guys got brought in and now this case has been sitting.
• 20:58
  Speaker 2: So for those that don't know, it was a very publicized, high-profile case here in Austin.
• 21:03
  Speaker 2: I did not know about him using it as a campaign slogan.
• 21:06
  Speaker 2: Essentially to get into office Makes sense.
• 21:09
  Speaker 2: How far into the case?
• 21:12
  Speaker 3: how far after the incident did you guys become involved?
• 21:16
  Speaker 1: Probably a year yeah.
• 21:20
  Speaker 4: So Garza's campaigning and naming this case by name, saying he's going to get justice for the Ambler family, and it was time to freak out and get an attorney and that's what they did in anticipation of what was coming.
• 21:33
  Speaker 4: The other big part of this case was the live pd aspect of it.
• 21:38
  Speaker 4: Yeah, because they were in the car and filming and and we're doing that with williamson county sheriff's office at the time which is another that's around two.
• 21:47
  Speaker 2: Well, probably had to follow back up within a year or so which got its own law passed.
• 21:52
  Speaker 2: Yeah, it did.
• 21:55
  Speaker 3: Yeah, it did.
• 21:55
  Speaker 1: During that time the case had been languishing.
• 21:58
  Speaker 1: The district attorney's office tried to send a subpoena to New York City to obtain the video footage from Live PD, and they sent the wrong subpoena.
• 22:12
  Speaker 1: They sent an in-state subpoena to an entity out of state, and so the New York City lawyers laughed at them.
• 22:19
  Speaker 1: The live PD video was never produced to the DA's office.
• 22:25
  Speaker 1: We never got to use it.
• 22:27
  Speaker 1: We felt like that would have been the best evidence showing our clients didn't do anything wrong because you had a professional cameraman.
• 22:37
  Speaker 4: Two of them.
• 22:38
  Speaker 1: Two of them with professional cameras, basically standing over Zach and JJ while they grappled with this 400-pound man.
• 22:46
  Speaker 2: Yeah.
• 22:48
  Speaker 3: Interesting question and I'm completely asking out of ignorance but a private entity like a live PD?
• 22:54
  Speaker 3: Are there retention requirements on a private organization?
• 23:01
  Speaker 4: This is a complicated legal question.
• 23:02
  Speaker 4: So, yes, they had their own.
• 23:05
  Speaker 4: So this is just to be clear.
• 23:06
  Speaker 4: This is not our case and we don't represent the two people who are still under indictment for the disappearance of that footage people who are still under indictment for the disappearance of that footage.
• 23:15
  Speaker 4: But of course it was in our world, because everything, because that came out of the use of force incident that we did handle yes, there were, there were retention policies and there were policies of life PD the show as well, which was if somebody dies during a law enforcement encounter, that's not aired, and so that footage was always going to be deleted and written over.
• 23:36
  Speaker 4: So the process as we understand it was there are just SD cards and they're shipped to the live PD cameraman, they fill them up and then they ship those back to New York, and so there's this constant rotation of new and used footage and there's just not unlimited storage everywhere all the time, and so if something is not used on this expensive SD card for this camera, it just gets written over and it gets put back into circulation.
• 24:04
  Speaker 4: So because of the death, it was never going to get used and we believe it appears just the normal operation of the show wrote over the footage and that they probably would have produced it.
• 24:18
  Speaker 4: Maybe, um, if they'd received the proper spina in time or were asked, but it didn't happen.
• 24:23
  Speaker 4: But it gets more complicated than that because, just because they're a private entity showing a reality tv show, they may have some first amendment protections, just like the media and police may not have been able to even legally seize that footage, just like a police officer can't take the camera right of a reporter at the scene of something that's First Amendment.
• 24:43
  Speaker 3: Right, I guess that was my thought.
• 24:45
  Speaker 3: Asking the question is if I own my own private company, I don't have a law.
• 24:49
  Speaker 3: There's no law that says I must retain this, or I mean, depending on what my company is affiliated involved with, but Definitely no law.
• 24:57
  Speaker 4: Definitely no law that says you have to keep that Okay.
• 25:01
  Speaker 3: That's good to know.
• 25:01
  Speaker 3: Yeah, just the more I got to thinking about it.
• 25:04
  Speaker 3: And what's weird completely out of ignorance, because I watched this case play out from a distance Is it, is the media made it appear that no one wanted that video to surface.
• 25:17
  Speaker 3: And then to hear you guys say the video, it would have probably been really, really helpful to our case as an outsider that just kind of followed through the media.
• 25:25
  Speaker 3: I was like, okay, yeah, everybody hopes this thing disappears so that it can never come to light.
• 25:30
  Speaker 3: And it's really fascinating now to hear oh yeah, we'd love for people to have actually seen what the facts were as they played out.
• 25:38
  Speaker 1: So you know, part of our job in any trial is educating the jury about why officers do what they do, and part of that is to describe the training they received at the academy and after the academy.
• 25:52
  Speaker 1: Part of it is to explain procedures that civilians may not understand and the why behind that, and so having a camera on top of a panoramic view, if you will, of this attempted use or attempting to take Ambler into custody would have been spectacularly helpful for us.
• 26:20
  Speaker 2: As he's continuing to resist.
• 26:22
  Speaker 1: Exactly.
• 26:22
  Speaker 2: You know?
• 26:23
  Speaker 2: Yeah, so this case was going on a year.
• 26:27
  Speaker 2: I do want to point out something.
• 26:29
  Speaker 2: Tiger, to my knowledge, we were looking at this about four months ago tiger hanner, originally, had showed up to the scene that night to represent, I believe, camden.
• 26:41
  Speaker 2: Um, if not both, at what point did you guys get involved in this case?
• 26:48
  Speaker 2: Uh, was it?
• 26:50
  Speaker 2: It was with camden, correct?
• 26:52
  Speaker 4: it was both at the same time.
• 26:53
  Speaker 4: I was trying to remember exactly how that worked.
• 26:56
  Speaker 4: I know JJ came to me.
• 26:58
  Speaker 4: I know Zach was at the office.
• 26:59
  Speaker 4: It's been so long I don't remember initially how we hooked up.
• 27:05
  Speaker 1: We had our initial meeting with both of them, and Tiger had contacted me prior to that meeting, when it was apparent to everybody that these guys were in trouble.
• 27:17
  Speaker 4: Yeah, yeah, I think, tiger, tiger, he's got his his, his role in his field, and he knew this is going criminal and that's not my, my field.
• 27:24
  Speaker 4: And then it was time to hand off.
• 27:26
  Speaker 2: Well, I mean, you guys have a track record of success with Travis County and that's a.
• 27:30
  Speaker 2: I mean that's the Superbowl essentially Right.
• 27:32
  Speaker 2: So kudos to him for recognizing.
• 27:34
  Speaker 2: You know what's going on.
• 27:35
  Speaker 3: Tiger does a great job.
• 27:36
  Speaker 2: He does a great job, yeah, so anyway, score a moment, sorry, so you guys get the case.
• 27:54
  Speaker 2: Uh, you're, you're reviewing it, kind of, let's walk us.
• 27:55
  Speaker 2: Let's walk us through the process of okay, now we're starting to really see okay, this, this, this has hit the fan and we're now we're, we're zoned in.
• 28:01
  Speaker 1: yeah, so one of the things we routinely do initially in every case is to file a bunch of motions legal motions some of those are boilerplate just to get them on the book so we don't have to worry about them later while we're trying to prepare important stuff.
• 28:19
  Speaker 1: But some of those are designed to influence the direction of the case from the perspective of the judge, in other words, try to educate the judge to the degree we can through pretrial motions.
• 28:34
  Speaker 1: And so we did that, while also reaching out and interviewing everybody we could.
• 28:41
  Speaker 1: So we were trying to talk to the live PD camera people.
• 28:46
  Speaker 1: Their attorneys wouldn't let us near them.
• 28:49
  Speaker 1: We interviewed Austin Police Department officers who responded and tried to help Zach and JJ.
• 28:57
  Speaker 1: We looked at all the body cam video from APD.
• 29:02
  Speaker 1: We could get a hold of All of that sort of thing to jumpstart our representation of these guys.
• 29:10
  Speaker 2: And APD was the investigating agency, I guess per se, or was it the DA's office themselves.
• 29:15
  Speaker 4: It was APD.
• 29:15
  Speaker 4: Yeah, Awesome police special investigations unit.
• 29:18
  Speaker 4: There were.
• 29:19
  Speaker 4: There were some, I guess, confusion that night because it was Williams County Sheriff's department.
• 29:24
  Speaker 4: And you know they're going to have their internal affairs to do, Right.
• 29:26
  Speaker 4: But yeah, after I guess some talking about it it was APD, I say you handled it.
• 29:31
  Speaker 4: No criminal investigation to speak of from Williamson County.
• 29:36
  Speaker 4: Okay.
• 29:49
  Speaker 1: So, speaking of SIU, one of the things we did to kind of shape the battlefield was have that when her investigation was concluded she did not find any criminal offense, and so again, you know that probably never made it into the media, but certainly the judge heard that.
• 30:09
  Speaker 3: Can I take time out Two important things that just popped into my head with that.
• 30:13
  Speaker 3: You know, years ago I worked officer-involved shootings.
• 30:17
  Speaker 3: You have officers that show up that night, you have all these different players, but the SIU detective is the keeper of all the facts.
• 30:25
  Speaker 3: So the person that responded to the scene, that has collected crime scene, all these things, that's who used to testify at grand jury, because they're the one person that is the holder of the facts.
• 30:37
  Speaker 3: There's some counties now that don't allow the lead detective to testify in grand jury on an officer-involved shooting.
• 30:46
  Speaker 3: Now we have some counties that won't allow the lead detective because of what you just said.
• 30:53
  Speaker 3: They won't call him as a witness.
• 30:54
  Speaker 3: I know of two instances in North Texas where the state's lead detective is a defense witness.
• 31:04
  Speaker 4: You described, I think, every case we have.
• 31:06
  Speaker 3: What a upside-down, turned-around backwards.
• 31:09
  Speaker 3: Two of them specific.
• 31:12
  Speaker 3: I know personally.
• 31:12
  Speaker 3: In Dallas, the star witness for the defense is the lead detective that the state tried to block from being able to testify.
• 31:21
  Speaker 4: And they can do that early on.
• 31:22
  Speaker 4: They can do that with grand jury and having taken cases to grand jury, you can see how extraordinarily easy it would be to abuse that.
• 31:32
  Speaker 4: You control the flow of information to what these 12 average people hear and you can control what they see and what they don't.
• 31:38
  Speaker 4: So if I just give you what I think you need to see to get a result, it's very easy to do and that's extraordinarily frustrating because there's very little that we can do about that.
• 31:51
  Speaker 4: We can race hell about it in the media.
• 31:53
  Speaker 4: We can try to get into the grand jury room.
• 31:55
  Speaker 4: Well, it's at the DA's discretion and they can say yes or no, and they can kick the lead detective out if he's not going to say the right things, or they can try to change his testimony.
• 32:04
  Speaker 3: But it lends credibility to the old saying you could get a ham sandwich indicted.
• 32:08
  Speaker 3: 100% true.
• 32:09
  Speaker 3: I mean, when I get to dictate exactly what the 12 people are allowed to hear, you can get an indictment.
• 32:14
  Speaker 3: If that's solely your purpose there, you can get an indictment.
• 32:17
  Speaker 1: No doubt.
• 32:18
  Speaker 4: And you just hit on it, exactly right.
• 32:20
  Speaker 4: If that's your purpose and that is the purpose, I think, it's just to get the indictment.
• 32:26
  Speaker 4: Whether you're wrong about thinking you can prove the case later on, it can also be.
• 32:31
  Speaker 4: You just don't care.
• 32:31
  Speaker 4: You just want the indictment, you want the splash and story.
• 32:35
  Speaker 4: Hit that checkmark Right and then you know the chips are going to fall where they may later on.
• 32:40
  Speaker 4: And we're seeing where those chips are falling and it's not working out.
• 32:42
  Speaker 4: But our fear is that it just that doesn't matter.
• 32:45
  Speaker 4: To a normal prosecutor that does matter.
• 32:46
  Speaker 4: If you have a certain opinion about these cases and they're not going your way, you need to reevaluate your opinion.
• 32:52
  Speaker 4: You're the person who's wrong.
• 32:54
  Speaker 4: But that again that depends on the prosecutor doing the right thing and seeking justice.
• 33:00
  Speaker 4: If that's not what they're after, then a bunch of acquittals down the road don't mean anything.
• 33:05
  Speaker 4: Second, part.
• 33:06
  Speaker 3: I was going to ask not because I'm questioning what you did, just because I'm curious, fascinated by this.
• 33:13
  Speaker 3: You guys both seem like heavy guns, hired guns, no pun intended, and when you watch trials play out high-profile trials like this there's the Trump approach, where you speak to the media and you hold a press conference on the steps when you walk out and you do the race horse hands flamboyant, speak to the press and educate the people and then you guys just kind of quietly behind the scenes, are plugging away, knocking out strikes behind behind the curtain.
• 33:48
  Speaker 3: Is there discussions going on of?
• 33:50
  Speaker 3: Do we need to try and do something public?
• 33:52
  Speaker 3: Do we hold a press conference?
• 33:53
  Speaker 3: Do we try and educate the public, or is it just not y'all style?
• 33:57
  Speaker 3: Or is that not y'all's philosophy?
• 33:58
  Speaker 3: Or was there a strategy to quietly knocking out objectives and not doing any of that?
• 34:04
  Speaker 3: Would you share on that?
• 34:07
  Speaker 1: So that case was around so long that it's hard to remember exactly what we did in terms of media communications, but I think we did some.
• 34:18
  Speaker 1: We normally do.
• 34:20
  Speaker 1: We're not shy about talking to the media.
• 34:23
  Speaker 1: We stay within the ethical boundaries of what attorney ethics require.
• 34:29
  Speaker 1: But you know, part of our job is not only educating a jury but also educating the public about what is going on and why it may or may not be fair what is going on and why it may or may not be fair.
• 34:46
  Speaker 1: And so you know, for example, in the Austin riot cases, where we represented 12 of the 17 indicted, we actually rented a hotel ballroom and held a big press conference because we wanted to educate the community that these indictments weren't going to go anywhere and it was all political theater and you were absolutely right.
• 35:11
  Speaker 3: That's what happened, I think, with 17 to the 19 so far, 19 to 21 19 to the 21 yeah, the the challenge is um, so it's a mix right?
• 35:22
  Speaker 4: so, yeah, we're not shy about talking to the media.
• 35:24
  Speaker 4: We've called press conferences, we've done interviews and we issue press releases in the right cases at the right time.
• 35:31
  Speaker 4: But it's never about, you know, just talking to the media.
• 35:35
  Speaker 4: It's is this going to help this case?
• 35:37
  Speaker 4: And the difficulty is not difficulty, but what you need to do is maintain is this going to help the defense of this client?
• 35:44
  Speaker 4: Yeah, and if so, then that's what you do.
• 35:47
  Speaker 4: And if that means total media blackout, that's what you do.
• 35:50
  Speaker 4: And if it's a bunch of talking and grandstanding, then that's what you do.
• 35:53
  Speaker 4: But it's.
• 35:54
  Speaker 4: It's not about doing that just for effect.
• 35:57
  Speaker 4: It's with the ultimate goal down the road in mind.
• 36:05
  Speaker 2: And there's the right time and the right place for for all that stuff.
• 36:09
  Speaker 2: Okay, I like it.
• 36:09
  Speaker 2: Good point, yeah.
• 36:09
  Speaker 2: So uh, they've been indicted y'all, y'all y'all doing some motions before the court to kind of educate the judge.
• 36:13
  Speaker 2: Talk about the feeling the first day of the trial.
• 36:17
  Speaker 2: You know you're getting ready, you're looking in the mirror, you're putting a tie on.
• 36:21
  Speaker 2: What are you guys feeling?
• 36:22
  Speaker 2: I mean because you're this is going to be a heavy case.
• 36:25
  Speaker 2: It's a lot.
• 36:26
  Speaker 2: Y'all have put so much blood, sweat and tears into this case.
• 36:30
  Speaker 2: Talk about what you're thinking on your drive to the courthouse.
• 36:36
  Speaker 1: I'm always excited on trial day.
• 36:40
  Speaker 3: I'm pumped up.
• 36:41
  Speaker 1: I'm ready to go.
• 36:42
  Speaker 1: Because we've done so much work to get to this point.
• 36:46
  Speaker 4: You're ready to dance?
• 36:47
  Speaker 4: Let's go.
• 36:47
  Speaker 4: Mm-hmm, mm-hmm, right, so right.
• 36:53
  Speaker 4: We do represent police officers, but we represent regular people too, right?
• 36:56
  Speaker 4: Somebody gets a DWI and that trial is different.
• 36:58
  Speaker 4: Every trial is a little bit different.
• 37:00
  Speaker 4: What's unique about police officer cases is there hasn't been one yet where I've driving into work for that first day of trial thinking that we're going to lose or that I need to get my guy out of something he did.
• 37:11
  Speaker 4: He didn't do anything to begin with, so it's.
• 37:14
  Speaker 4: I don't want to say it's easy, but when you start with an innocent person, it should be easier to defend that person.
• 37:23
  Speaker 4: Now there's all these other challenges because of the nature of where we lived and the politics and policing.
• 37:27
  Speaker 4: But again, if there's any sort of pressure or nerves, for me it's how do I not fuck this up?
• 37:36
  Speaker 4: Because he is, in fact, innocent and if he is convicted, that means I fucked it up.
• 37:40
  Speaker 3: Well, that's a grill on your back.
• 37:41
  Speaker 3: I mean that's a burden to bear.
• 37:42
  Speaker 3: It sucks.
• 37:43
  Speaker 3: I've got a completely innocent guy that may go to prison.
• 37:46
  Speaker 4: Right.
• 37:46
  Speaker 4: It's different when you go to trial with, maybe, a regular client and are absolutely guilty.
• 37:52
  Speaker 4: And I know that that's not my job and I don't care about that.
• 37:56
  Speaker 4: I'm defending this person.
• 38:10
  Speaker 3: But if they're convicted, well, that's what should have happened and that goes back to what we started off with 20 minutes ago.
• 38:12
  Speaker 3: Is intent or the spirit or what the officer was intending to do when they did something.
• 38:14
  Speaker 3: That's all gone out the door in the review of some of these officers conduct in the Amber Geiger trial in Dallas.
• 38:17
  Speaker 3: There's been a few other police incidents where a horrific tragedy police incidents where a horrific tragedy, tragic circumstances doesn't always mean there was a crime committed.
• 38:28
  Speaker 3: It's just a tragic incident and unfortunately somebody may have lost their life or was significantly injured.
• 38:34
  Speaker 3: But because a police officer was involved in that bad tragedy doesn't mean every single time it's a crime.
• 38:39
  Speaker 3: And we've come to it now that something happens and by God, it must be a crime and the cop committed it.
• 38:43
  Speaker 3: That's why you're working backwards.
• 38:44
  Speaker 3: Right, yeah, there was a crime and we've come to it now that something happens, and by god, it must be a crime and the cop committed it that's why you're working backwards right yeah there was a crime.
• 38:47
  Speaker 4: Now let's find out what it was.
• 38:49
  Speaker 4: But no, that's not true that there was a crime committed.
• 38:52
  Speaker 1: Let's start from maybe and investigate and then reach that decision so we've learned that no use of force looks pretty no and especially to the average civilian who doesn't know anything about law enforcement or the why or the training, the why they do these procedures or take these actions.
• 39:15
  Speaker 1: And so none of these use of force in custody death cases.
• 39:21
  Speaker 1: The video none of it looks pretty, but because it's not.
• 39:25
  Speaker 2: Because it's not.
• 39:26
  Speaker 4: It's not, it's violent, it's violent this is a use of violence and it's tough to look at it doesn't mean a crime occurred, correct.
• 39:34
  Speaker 1: The other problem we see is, early on, people, whether they're personal injury attorneys or the DA, get to the relatives of the decedent.
• 39:44
  Speaker 1: They convince that person that you're a victim, your loved one is a victim of police violence You've heard this term and then they go on TV and they're screaming bloody murder.
• 39:58
  Speaker 1: And the media loves that.
• 40:01
  Speaker 1: And you have story after story which in turn fuels the fire Exactly.
• 40:09
  Speaker 3: Yeah, and we keep saying on here we hope reasonable people become the vocal majority at some point.
• 40:17
  Speaker 3: And the last trial I testified in as an expert, the plaintiff attorney said so you think this force looks good?
• 40:26
  Speaker 3: And I said no, I don't.
• 40:27
  Speaker 3: So you agree that it doesn't look good?
• 40:29
  Speaker 3: And I said I absolutely agree that it doesn't look good.
• 40:31
  Speaker 3: And I'll testify right now that every use of force you're ever going to see in your life doesn't look good.
• 40:36
  Speaker 3: And if somebody looks at a shooting or an officer having to strike someone and says, oh, that looks awesome, then maybe they've got a problem.
• 40:44
  Speaker 1: It doesn't look good.
• 40:45
  Speaker 3: This isn't a football drill Making sausage is ugly, but unfortunately you've got to do that.
• 40:50
  Speaker 3: Reasonable people understand that concept when you can explain it to them in a civil matter or in a decent matter, not through the perversion of the media, slanted through the media or some activist attorney that's just trying to make a name for themselves.
• 41:07
  Speaker 3: Reasonable people get it when they have the opportunity to.
• 41:11
  Speaker 3: But cases like this get so perverted early on that you guys have a mountain to climb to get that term back around.
• 41:20
  Speaker 4: Yeah, it does present some difficulty.
• 41:22
  Speaker 4: So we've had one particular client we still represent.
• 41:25
  Speaker 4: We've had two mistrials for him and the first mistrial was because there weren't enough people left to be eligible to sit on the jury at the end of three days of jury selection.
• 41:37
  Speaker 4: So, yes, and that's due to pretrial publicity and the way, the unfair way that it comes out.
• 41:45
  Speaker 4: So, and it's the same thing every time, it's.
• 41:49
  Speaker 4: This here's a little snippet of what happened, and sometimes it just blatantly cuts off preceding events.
• 41:55
  Speaker 4: Maybe they weren't captured, but sometimes, no, they were intentionally omitted.
• 41:59
  Speaker 4: And then, yes, we're digging out from that hole the entire time and you can find people to sit on the jury to listen, and even if they have preconceived ideas, the strategy is to find those people who will just listen, even if you think maybe they're against you right now.
• 42:19
  Speaker 2: Tune in next week for part two.
• 42:27
  Speaker 1: And so that was the objective either show NMI or show that sometimes it doesn't work.
• 42:33
  Speaker 1: And of course in this case it worked beautifully.
• 42:39
  Speaker 1: And funny side note, we were in the same court in front of the same judge as the very first officer case we did together, the Paffin-Petratus trial.
• 42:52
  Speaker 4: And because it's just such a dramatic and unusual thing.
• 42:55
  Speaker 4: So, according to Axon, I was the first live what do they call it?
• 43:00
  Speaker 4: Live Tasing Exposure, exposure First, live exposure, yeah, and a controlled live exposure in a courtroom.
• 43:09
  Speaker 2: Our bread and butter is legal coverage.
• 43:10
  Speaker 2: Camden, how much of the legal fees are pending and is there a balance that you guys are owed with the legal fees as far as what TMPA is owed or kind of talk about that?
• 43:22
  Speaker 2: Because there was some.
• 43:23
  Speaker 2: There's some mix up and there's some discussion about what TNPA didn't do and we just wanted to kind of clear the air on on what, what hasn't been paid.