Case Highlight: Charged with a Felony Based on a Lying Snitch.  Prosecutors charged our client with felony firearm possession based entirely on the word of a five-time convicted felon with a prior gun conviction. There were no fingerprints, no DNA, no video, no eyewitness, and even the officer admitted he never saw a gun. At trial, we showed the jury exactly what the case was: an uncorroborated story with zero physical evidence to back it up. The jury held the Commonwealth to its burden and returned the only verdict supported by the evidence: Not Guilty.

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First off I would like to thank every one of you for being here. This system doesn't work unless people answer the call for jury duty. In a lot of cities especially in the age of Covid, jurors aren't showing up. I genuinely appreciate you being here. None of this works without people like you who do your duty. [The defendant] has been waiting a long time for this day, and it's only possible because you've shown up to do your service. So thank you. Before we even get into the evidence, I did want to touch on one thing that you didn't hear today. You didn't hear from [the defendant]. You're going to get a piece of paper that says that you can't consider him not testifying at all in your deliberation. But I've done enough trials and talked to enough jurors to know that people do consider it. Some of you might very well be wondering, why didn't he get on the stand to tell his version of things? You're probably familiar with the 5th amendment, the right to not testify. The framers obviously thought it was important. So important that they put it in the Bill of Rights. And they put it in the Constitution because of exactly situations like this. If he testifies, it does nothing. He already pled not guilty. [The prosecutor] is a skilled and seasoned veteran prosecutor. [The defendant] doesn't have legal training. So we talked it over and we said let's make this a little more of a fair fight. Let me stand up to talk for him since I do have legal training.

 

At the beginning of this case, the government promised to present evidence so compelling that you would be left in a state of near certainty that [the defendant] possessed the gun found under the car in the parking lot. Well, we're at the stage now where all of their evidence has been presented. And it has come and it has gone and it's failed. It's failed because they haven't produced one shred of real evidence tying [the defendant] to the gun. Not one single fact tying [the defendant] to the gun has been provided to you. My law partner [co-counsel] told you in the opening statement that you would see no physical evidence in this case and that was proven absolutely correct. There is no evidence of [the defendant's] fingerprints on the gun. A technology that has existed since the 1800s. There is no DNA evidence. A technology that has been around since the 1980s. There is not a single photo or video from the oceanfront, the most highly recorded area in the city, showing him with a gun. There is not a single witness who saw him with a gun. They have provided with absolutely no history of this gun. I am not exaggerating when I say that there has been one piece of cold hard evidence factual evidence presented. That's remarkable.

 

And it doesn't make much sense why they wouldn't be able to present any factual evidence to you. This was the summer time. The testimony is that [the defendant] is running. He's supposedly clutching a gun. His hands are going to be sweaty. He's not wearing gloves. There is going to be sweat, DNA, and fingerprints all over that gun. But there is somehow absolutely nothing to present to you. There is not one piece of real tangible evidence in this case. That should be terrifying to all of you. Because this case shows that each and every one of us can be put in handcuffs and thrown in a jail cell when there's not even one bit of real evidence to support a criminal charge. The only thing that it took for [the defendant] to be arrested was the word of one man. [The prosecution witness]. The prosecution's entire case rests on a multi-time convicted felon. A multi-time convicted drug dealer and drug user. A guy who actually has a record for dealing drugs with a gun. That is the government's entire case. That's a fair statement because they have no facts to support his story.

 

[The police officer] acknowledges that he never saw a gun. [The police officer] never saw [the defendant] crouched by the car. [The police officer] never heard a metallic sound. [The prosecution witness] is the prosecution's entire case. And it really sets up the theme of this case blind faith in a convicted felon vs. facts and evidence. And which one is more important in a court of law. The prosecution is asking you with no scientific evidence, no forensic evidence, no corroborating witnesses, no video evidence, no history of the gun. Without any evidence, They are asking you to put blind faith in [the prosecution witness]. Because they certainly don't have any real evidence to back up his story. There's no DNA, there's no fingerprints. They have nothing. I'm sorry, but that's not what the justice system is about. The criminal justice system is not based on "take my word for it" from a multi-time convicted drug dealer. Why would we bother spending millions of tax payer dollars on state labs and police forensic units if all that's required in a court of law is "hey everybody, this gun totitng, drug dealer says it happened." And it strikes me as more than a bit odd for the government to ask you to accept the word of the guy who just happens to be a convicted gun felon in a case that just so happens to be about possession of a gun.

 

This is probably a good moment to pause and talk about what the legal standards are in a criminal case. [The defendant] is presumed innocent. We're all familiar that in America, a man is presumed innocent. Right now, [the defendant] is sitting there as an innocent man. And he remains an innocent man unless the prosecution can prove his guilt beyond a reasonable doubt. Beyond a reasonable doubt is the highest burden that exists in any kind of case in this country. We're not always here for criminal cases. Some cases involve over money or custody. The standard in this case is higher than the burden required to take your money away from you. It's even higher than the burden required to take your children away from you. The most precious thing that you can have. The burden the prosecution has here today is even higher than that. It is the highest standard that exists in any courtroom in this country. It is the gold standard, the platinum standard. Whatever you want to call it. And the standard is that high in a criminal case because convicting people and taking away their freedom and locking them in cages is a big deal. We take liberty seriously in this country. It's what we were founded on. So when we're talking about taking away a man's freedom, we demand the highest burden of evidence that exists in this country. And it only makes sense that if the government is going to satisfy the highest burden that exists, it demands the highest quality of investigation and evidence.

 

Ask yourself: has that kind of high quality investigation and evidence been presented in this case? No fingerprints. No DNA. No video. No history of the gun. Absolutely nothing. Instead, the only thing provided to you is the completely uncorroborated word of a multi-time convicted felon, drug dealer, with a felony gun conviction. That's it. That's all the government has. Think about it like this. Today, you're going to be asked to make an important decision. Whether [the defendant] is convicted of a felony and faces significant prison time. That's an important decision. And anytime you're making an important decision in life, you want to make sure that you have the best information. You want to make sure that you have trustworthy information. So let's think about examples of that. Let's lower the stakes a little bit. Instead of a man's freedom, let's think about one of the significant decisions that we might make in life. Buying a car is a big deal for most of us. It's one of the bigger financial transactions that most of us make. So you want to do your homework to try to make the best decision. Let's say that you go to a used car dealership. You're checking out a car and considering it. So you ask for information about the car. You want some real tangible evidence about the car. You want facts. So you ask for the vehicle history report. And the salesman says, well we don't have that. You say, can you show me the service history of the car. No, we don't have that either. But the salesman says you can trust me. This is a rock solid vehicle. Just trust me. Would you buy a used car with no real evidence, with no real information? Of course not. Well then imagine, that you find out that the salesman trying to sell you the car is a 5 time convicted felon drug dealer. That he has a criminal history with guns. How would that affect your decision making process? Would you buy a car from that salesman? Heck no. If you're a rational person making logical decisions, you would run out of that car dealership. Well the stakes are a lot higher today. We're not talking about buying a car. We're talking about the risk of falsely convicting a man. Taking away his freedom. That is a really big deal. And that is exactly why the burden of beyond a reasonable doubt is so extraordinarily high. We don't take chances on sending innocent people to prison in this country. We don't guess people into criminal convictions in this country.

 

All of you are adults. And something that you've learned by now is that no intelligent person blindly accepts every word that comes out of a man's mouth. I don't know [the prosecution witness]. Neither do any of you. I hope that he has genuinely turned his life around and maybe he has. But as a juror, you have a duty to be skeptical. You're not doing your job as a juror if you blindly accept any testimony. Your job is to poke and prod and determine if real evidence, factual evidence corroborates and supports the testimony. Because human beings are complicated. They misremember. They misperceive. Sometimes they exaggerate. Sometimes they lie. What kind of evidence doesn't lie? What kind of evidence isn't biased? Factual evidence. Physical evidence. DNA doesn't lie. Fingerprints don't lie. Video doesn't lie. Real evidence is evidence based on facts. We don't have a single iota of unbiased, objective, factual evidence in this case. Not one shred. Not a single fact has been offered to you that ties [the defendant] to the gun.

 

You have to closely evaluate [the prosecution witness's] story. Yes, as a 5 time convicted felon, of course he has extensive credibility problems. But the problems with his story go a lot deeper than that. He says that he heard a loud metallic clanking sound. A sound like a gun hitting the asphalt. That is critical to his version of events. Let's evaluate that. (1) You heard testimony that the oceanfront was total chaos that night. It was packed with hundreds of people exiting bars at closing time. People screaming, cars revving. [The police officer] testified that he couldn't hear anything. (2) According to [the prosecution witness], [the defendant] was crouched down. So why would there be a loud metallic clanking sound? He wouldn't be throwing a gun on the ground if he's crouched down. (3) Why would there be a loud metallic clanking sound when it's a polymer pistol. The frame of the gun is made out of plastic. This is not a metal framed gun. So ask yourself, does it make sense that he heard a loud metallic clanking sound under those circumstances. When it's chaotic, loud, and he's distracted by other things. When according to his testimony, the gun wasn't thrown. And the gun isn't made out of metal. And interestingly, [the police officer] never saw [the defendant] crouched down. The only person who claims that [the defendant] was ever crouched down was [the prosecution witness].

 

Let's consider another aspect of the testimony. The testimony was that [the defendant] was wearing pants that were so baggy that they were falling down. He had to literally hold his pants up as he's running. So ask yourself, where is the gun supposed to be? It can't be tucked in his waistband. It doesn't make much sense that it's in his pocket. According to their version, [the defendant] must have gone down to the oceanfront and walked around all night with a gun in his hand wrapped in a jacket. I'm sorry, but that doesn't make any sense. Picture that this was a murder case. Because the burden of proof is the exact same whether it's a murder case or a possession of firearm case. Let's say that there's a dead body on the ground with a bloody knife next to it. And an officer runs up. The only person there is [the prosecution witness]. And [the prosecution witness] says, "that guy did it!" and points at someone else. That guy says "That's not true, I didn't do it." "Test the knife. You'll see, it doesn't have my fingerprints, it doesn't have my DNA. Check the surveillance videos. Look up information on who might have purchased the knife. I'm an innocent man." What if the response was "nah, that's not important. This multi-time convicted drug dealer says you did it, so we're not going to bother with any of that, you're guilty." Obviously, this isn't a murder case, but the legal standards are the exact same. You would never convict a man under those circumstances. And you can't convict a man here. It's not a murder case, but this is a big deal. Maybe the most important day of [the defendant's] life and no real evidence, no factual evidence has been presented to you.

 

If he had handled that gun, his fingerprints and DNA would have been all over it. Think about it. This was a loaded gun. With a magazine containing 17 bullets. Each and every one of those bullets are loaded into the magazine, pushed into the magazine presumably with a thumb. The magazine itself has to be loaded into the gun. There would be fingerprints on the bullets, there would be fingerprints on the magazine, there would be fingerprints on the gun. The testimony was that [the defendant] was running. He would have been nervous, he would have been sweating. His DNA and fingerprints would have been all over that gun. I'm sorry, it doesn't make sense that there is no forensic evidence in this case. Again, your job as a juror is to look at things skeptically. You don't just blindly accept testimony, you challenge it. You ask questions. You should never accept testimony on blind faith. You shouldn't blindly accept the prosecution's arguments. And you shouldn't blindly accept my arguments. It's your job to evaluate all of the evidence and to make your own independent determination to see if the accusation holds up beyond a reasonable doubt.

 

I've told you that beyond a reasonable doubt is the highest legal standard in any courtroom in this country. You will get a piece of paper saying that a probability of guilt is not enough. A suspicion no matter how strong is not enough. I have my own personal concept that I think of to help me conceptualize beyond a reasonable doubt. And it's a little cheesy, but stick with me for a moment. I think of beyond a reasonable doubt as being a boat crossing a large body of water. Your boat is starting at the presumption of innocence and the boat has to get all the way across the ocean to beyond a reasonable doubt. The boat has to be strong, sturdy, and airtight enough to get across without sinking. Maybe it can survive some small holes and minor imperfections, but if there are enough holes and it starts taking on water, it sinks to the bottom. So picture this case with that imagery. Our boat is pulling out of port, and we're starting our journey trying to get to beyond a reasonable doubt. 1. There are no fingerprints on the gun even though it seems like it should have been pretty easy to get them if he actually handled the gun; that's a gash in the hull of the boat, it's starting to take on some water; 2. The testimony is that he has his bare hand on the gun, sweaty after running, and yet there is no DNA evidence. That's another hole in the boat, it's taking on more water; 3. There's 17 bullets in the magazine each of which would have his fingerprints all over them. But there is nothing to present to you. That's another hole. Our boat is already taking on a lot of water; 4. There is no video evidence whatsoever despite this taking place at the busiest section of the VA Beach oceanfront. Another hole in the boat. 5. Not a single person puts the guns in [the defendant's] hands. That's another hole in the boat. The boat is taking on water quickly now, it's sinking; 6. The only witness who claims to see [the defendant] crouched by the car is a 5-time convicted felon with a history of drug dealing with a gun. That's a big hole. The boat is flooded, it's sinking, it's underwater.

 

In just a moment, I'm going to be done. This is the last opportunity that I have to speak to you. The Commonwealth gets one more chance to make a rebuttal as they call it. But just know that because they say it last doesn't make it so. I'm sure that I'm going to be itching to jump up and say something, but I can't. Just keep in mind during the rebuttable that excuses aren't acceptable in a criminal prosecution. Excuses for why they have no forensic evidence. Excuses for why there's no video evidence. Excuses for how a gun with his pants falling down is carrying around a gun all night. If you hear excuses, then guess what? It's nothing more than an admission that there's reasonable doubt. Excuses don't cut it when we're talking about a man's freedom. I suspect they will focus on the only fact that they have. It doesn't connect to the gun in any way. But yes, [the defendant] ran from the police for 2 blocks before he was taken down by a police dog. And they're going to say, well why would he run from the police other than he must have a guilty conscience because he put the gun there. The problem with that theory is that it completely ignores that there are a lot of reasons why someone would want nothing to do with the police. This was less than a month after George Floyd died. And look, [the defendant] isn't a perfect angel. As you've seen, he does have a criminal record. Do you think a person with his background wants anything to do with the police?

 

You don't get to paper over your total lack of evidence by saying he ran and therefore he must be guilty. That's not a substitute for real evidence. Your duty today is to hold your government accountable. It is your responsibility to uphold the value of men and woman being presumed innocent. It's your duty to uphold the requirement that overwhelming evidence is required before a man's freedom is taken from him. Because taking a man's freedom demands the utmost seriousness of investigation. And you have to ask yourself is that standard met when there are no forensics linking [the defendant] to the gun? Is that standard met when there was no investigation into the history of the gun? Is that standard met when not a single witness other than a multi-time convicted drug dealer with gun convictions is the only significant witness. The answer is a big resounding NO. Your verdict has to be unanimous. Every single one of you has to agree on the verdict. I think that there is a way of putting that which makes it a little more meaningful. Each and every one of you is individually responsible for the outcome in this case. Each and every one of you is holding the outcome of this case in your hands. Any single one of you can and in fact has an obligation to stand up and speak for yourself. And you should feel good about standing up and saying not guilty in this case. If our rights as citizens are going to mean anything, it requires people like you standing up and holding the government to their burdens. It means demanding investigations and actual evidence before we throw people in jail. You should walk out of this courtroom with your head held high and feeling good about yourself by returning a not guilty verdict because you will have proven that the criminal justice system in this country works. You will have proven that we don't throw people in jail in this country without a proper investigation and without factual evidence. Not guilty is the only proper verdict in this case. And by finding [the defendant] not guilty, you will have done the job that you swore to do. Thank you for your time, your attention, and your service.