Double jeopardy allegations in hate crime hoax; Camera arguments in Kohberger’s trial – TCD Sidebar
In this episode of True Crime Daily The Sidebar Podcast
Bob Motta joins host Joshua Ritter to break down the biggest cases making headlines across the nation. They discuss defense attorneys for Jussie Smollett appealing the “Empire” actor’s conviction, the murder trial for an alleged obsessive ex, and attorneys objecting to cameras in the courtroom during Bryan Kohberger’s trial for the slaying of four University of Idaho students.
Tweet your questions for future episodes to Joshua Ritter using the hashtag #TCDSidebar.
Joshua Ritter:
[00:00:10]
Hello and welcome to The Sidebar, presented by True Crime Daily, taking you inside the courtrooms of high profile and notorious cases from across the country. I'm your host, Joshua Ritter. I'm a criminal defense lawyer based in Los Angeles and previously an LA County prosecutor for nearly a decade. You can find me on Instagram and Twitter at @JoshuaRitterESQ or at joshuaritter.com. We are recording this on Friday, September 14th, 2023.
In this week's episode, an obsessed man faces murder charges for the death of his ex-girlfriend, a high-profile Hollywood sex therapist, and a case where prosecutors alleged, he broke into her home, strangled her and eventually threw her over a third story balcony to her death. In other news, attorneys hammer out the issue of whether or not to allow cameras in the courtroom for the highly anticipated murder trial of Brian Kohberger, the man accused of slaying four University of Idaho students.
But first, an appeals court is now considering the case of actor Jussie Smollett following his conviction for staging a hate crime in a hoax that made national headlines. Today, we are excited to be joined by Bob Motta, a criminal defense attorney and legal analyst. Bob is also the host of Defense Diaries, a true crime podcast you can listen to wherever you get your podcasts. Bob, welcome back.
Bob Motta:
[00:01:35]
Thanks, Joshua. I'm thrilled to be back. Had a good time last time.
Joshua Ritter:
[00:01:38]
Yeah, we're thrilled to have you. And for those listeners who didn't get a chance to hear you the first time around, tell us a little bit about your practice. What have you been up to lately?
Bob Motta:
[00:01:47]
So long time criminal defense guy, 20 plus years, trial lawyer, always been on the defense side of things. My father was a defense attorney, so I come from a very short line of defense attorneys. Did that for a long time. A couple of years back, I decided my wife, who was my law partner and a pit bull defense attorney herself, was kind enough to let me step out of the practice and start a podcast, which I did, because I told her, look, I'm going to go all in on this thing. I can't go half on it because it won't succeed. There's just too much competition out there. So she let me do that. So I've been doing the pod for a couple of years, and it's taken off and I'm excited about it and it's been a lot of fun, man.
Joshua Ritter:
[00:02:29]
It is taking off. It's getting a lot of popularity. I see it pop up all the time and I really appreciate the commentary and notes that you have both on the podcast. And when I catch you on TV, you always have a very interesting take, so we're excited to have you on today. Thank you again for coming on.
Bob Motta:
[00:02:48]
Excited to be here. I appreciate that. You know, I'm trying to teach the people one at a time that defense attorneys aren't scumbags. And it's a tough job, man.
Joshua Ritter:
[00:02:57]
Good luck with that. It's an uphill battle.
Bob Motta:
[00:03:00]
It really is.
Joshua Ritter:
[00:03:01]
Well, let's see if we can't disabuse some people of those preconceptions today on talking about these cases. We'll jump right in. First out of Chicago, Illinois, the never-ending legal saga of former Empire star Jussie Smollett continues as a Illinois Supreme Court hears arguments from the actor's attorneys seeking to overturn his conviction. Smollett was convicted of staging a racist and homophobic attack against himself, hiring two Nigerian actors to assault him, wearing ski masks, even instructing them to shout, "This is MAGA country". That's a quote.
The case became a lightning rod for racial tensions at the time, with celebrities and politicians quickly rushing to support Smollett publicly. Defense attorneys for Smollett argue that his 2021 conviction should be thrown out on the basis that the actor should not have been punished twice for the same crime. In 2019, Smollett reportedly reached an agreement with prosecutors to drop charges against him in exchange for a $10,000 bond and community service.
However, in 2020, a special prosecutor was appointed to the case, which led to a trial and Smollett's eventual conviction. Smollett was subsequently sentenced to 150 days jail time to be followed by 30 months of felony probation. He was also ordered to pay over $120,000 in restitution to the City of Chicago, along with a $25,000 fine. A three-judge panel will now consider Smollett's appeal. If the appeal is unsuccessful, the actor will be required to finish out his 150-day jail sentence.
All right, Bob, jump right in. We're talking about the Fifth Amendment here and double jeopardy. Could you first explain for listeners a little bit what we're talking about as far as why this is a concern in this case?
Bob Motta:
[00:04:55]
Well, the primary concern is because theoretically, at least, there was a disposition to the case. Now, it's unusual in the sense that the state made a plea offer, but the plea offer was to drop the case, but with the attachment that there was going to be some penalties included. So like the community service and the fines.
So in terms of this particular case, I find it fascinating because that question of whether or not double jeopardy attaches, which if you guys don't know what it is out there, essentially if you've gone to trial and it's been adjudicated fully, they're not able to come back at you. I mean, double jeopardy attaches, and they're done. And this case is interesting because of the fact that there wasn't really adjudication in the typical sense of the word. I mean, clearly, there was an agreement between the state and between Smollett and his attorneys, and that agreement ended up resulting in them like dropping the charges. So he didn't plead out.
He didn't have, like in Illinois and I'm a Chicago guy. We have things like they call supervision, which means you plead out to supervision and they give you some parameters. You have to finish the community service. You have to pay the fine. Maybe they send them some kind of counseling. And if you get those things done within the time frame, then what happens is then they drop the case. But there's still a disposition here that never happened. Like he never stood in front of a judge. A judge never admonished him. None of those things happened.
So right now, what they're arguing about, his defense is saying, look, like this is double jeopardy. We had an agreement. He paid the fine. He did the community service. He paid the penalty, despite the fact that there was not any kind of real adjudication, at least on the record, in terms of the eyes of the court. So how it's going to shake out, man, I'm really kind of fascinated to see. What are your thoughts on it?
Joshua Ritter:
[00:07:00]
No, I completely agree with you. This is not a small issue. I mean, this is not just one of those typical appeals that you see where they're just trying to throw a bunch of stuff against the wall, see what sticks. This is a real question that they're going to have to figure out. And usually, double jeopardy, we call it double jeopardy attaches when a jury is sworn. So you get 12 people, you've now picked them. They immediately swear that jury.
And now double jeopardy attaches, meaning that whatever happens after that point, that is the prosecution's only bite at the apple. If their case falls apart, their case falls apart. There's nothing they can do about it. That's why and I know listeners are wondering, well, then how do you get retrials on the same case? That's why when there is a retrial, when they can't reach a verdict because the jury is hung or for whatever other reason, the judge declares a mistrial, essentially saying that trial did not occur, which solves the double jeopardy issue, the idea of jeopardy attaching so that they can be retried again.
So this is different and is fascinating because I don't believe that jeopardy ever really attached in the disposition that he arrived at, if you even want to call it a disposition. But you and I both know a plea agreements and diversions, we call them here in California, you have the same mechanism it sounds like in Illinois, where there's an understanding that if they do certain obligations, community service, pay some fines, whatever else that the prosecution is asking, that they will dismiss their case. But it almost sounds like what happened here was a step beneath that. And the prosecution in their argument is saying that this was not a plea agreement in that traditional sense, but it's a mechanism that they're calling and maybe you know how to pronounce this better than I do, Nolle prosequi, where --
Bob Motta:
[00:08:56]
We just call them nolle pros out here.
Joshua Ritter:
[00:08:58]
Nolle process. Okay. No. Okay, great. Thank you for telling me that. So nolle pros, which my understanding of it is basically they're saying we're not even going to prosecute. We're not even going to file charges because he's done A, B and C, and therefore we're not even going to go to the point of getting a case in front of the court. Is that basically what they're saying took place and why this should be treated differently?
Bob Motta:
[00:09:21]
Yeah. Typically, and it's still unusual. Like when typically, I go in on cases and say for instance like a lot of times we get nolle proses on domestic violence cases where you have that circumstance where it's a boyfriend, girlfriend, husband, wife, you go, you set it for trial more quickly, cooler heads prevail. And or the actor like bullies the other, the victim into not showing up to court.
So often what happens is I'll go in if I'm defending the case and they can't get service on the victim, they'll typically give them two or three contingencies in order to try to get the victim served, in order to bring her into court if it's a female in that situation. If they can't get it done, typically what they'll do is they'll normally process it where it leaves them the opportunity to come back. That's the thing. They can recharge the crime.
And there's a difference when I was talking about supervision. Supervision is one thing, but they also do have the same thing as you guys have out there with the diversion program. And it's the same thing but the difference in terms of, and I'm in Illinois, all right. So Kim Fox, who was the former prosecutor, who was the one who originally dropped the charges and the entire world's head was going to explode, everyone was so upset about it. And she's the one who basically made this sweetheart deal.
But typically, out here, if I get my guy into a diversion program, like what they do is they go in and they plead it out. So there is -- it is adjudicated. There is a disposition. You know what I'm saying? So they're pleading it out. They're staying it. And at that point, if he can finish the program, then it gets dropped.
So what didn't -- it's missing that crucial step here where they basically had him plead out either, and it's the same with supervision and both situations, you're pleading guilty, but they're going to stay prosecution until the time to see if they can finish the program and finish whatever the requirements are under the plea deal. If they can do it successfully, boom, it's gone.
And it would be considered like in those cases, I would say that jeopardy attached. Here, I think it's a real uphill battle for Smollett's team because I agree with you. I just don't think that they hit that necessary requirement for anything of note. Like I don't even know what the appellate court can hang their hat on in terms of saying, okay, well there was a disposition to this case. Well, a backroom disposition maybe, a handshake deal, but there's nothing on the record.
I mean, what is the appellate court going to look at in terms of trying to because they're bound by the record, right. So they're going to be wondering, well, what are we basing this on, because there is no record. I'm curious to see how it's going to shake out, but it really is fascinating issue, though.
Joshua Ritter:
[00:12:24]
Yeah. And if there wasn't even a case filed, to me, there is no double jeopardy issue here. But there might be some sort of almost contractual issue here because, listen, you know this, this happens all the time where when you're plea bargaining, you're essentially entering into a contract that prosecution says here's your offer if you'll do such and such. And he accepts that we will do such and such meaning, dismiss some of the charges, have him plead to something lesser. Nobody's signing pieces of paperwork. Sometimes they are, but most of the time this is just kind of oral contracts that are taking place.
And I think there's an argument for Smollett not to say that he's been tried twice for the same crime. But listen, you made me do something. You said give you a $10,000 bond and do some community service and you wouldn't prosecute. And he did that. Now, the only wiggle room here is, as far as my understanding in the moving papers, is that there wasn't that promise of we would not prosecute. There was just this idea that they would go in with that nolle pros, which again, I guess if you're arguing on his behalf, you're like, well, then what was I doing it for? If it wasn't for a promise to not prosecute, what am I giving you $10,000 for and doing all this community service? So it may just come down to bad faith on the part of the prosecutor's office, which happens.
Bob Motta:
[00:14:00]
Yeah, totally. And like you said, man, like a majority of the time when I'm working out a deal and whether it be with just strictly the prosecutors or if I'm working with law enforcement as well, if I've got a guy that's interested in maybe working with law enforcement in order to kind of skate out of some type of charges that he had picked up or they had picked up, it's not in writing, like ever. They're never like -- I'm always asking for it in writing so that I have something to say, okay, this is what they wrote. This is the agreement. They're breaching it. Because without that, it's he said she said, or he said they said, whatever the case may be.
Yeah. Like in this situation, I agree. I don't think it's a double jeopardy issue at all. And I don't think that there's going to be a record. And frankly, I don't know if there was anything put in writing. So then we're talking about an oral contract. And contractually, how is that going to factor in when we're talking about a criminal sentence. You know what I'm saying? It's like we're trying to merge contract law and criminal law. It's a nutty case. It was crazy to begin with, and it hasn't gotten any less crazy.
Joshua Ritter:
[00:15:16]
No, no, it hasn't. And I think you're right. Somewhere, the Court of Appeal or the Supreme Court there in Illinois is going to have to clarify all of this and work their way through the muck to figure out what exactly took place. I for one, though, am interested to see how they decide on this. And I'm also interested in the day that we're no longer talking about Jussie Smollett. It would be nice to just put this chapter behind us.
Bob Motta:
[00:15:44]
You and me both. That Murdaugh murder, I'd like to put both of them in, like, a closet and, like, lock that closet, never to open it again.
Joshua Ritter:
[00:15:52]
No such luck. Looks like it's never going to happen. Anyhow, let's now turn to Los Angeles, where the trial for the slaying of a high-profile Hollywood sex therapist is underway on the infamous ninth floor of the Downtown Criminal Court building here in Los Angeles, where Dr. Amie Harwick died in the hospital hours after she was found on the patio of her Hollywood Hills home, having suffered manual strangulation and a 20-foot drop from her third-floor balcony.
Prosecutors allege that her former boyfriend, Gareth Pursehouse, broke into Harwick's home, lying in wait before attacking the therapist. Harwick and Pursehouse, dated briefly before the doctor ended the relationship in 2012, eventually seeking protective orders against Pursehouse. A chance encounter in 2020 at an award show allegedly reignited Pursehouse his obsessive fixation on Harwick, which intensified in the month before her death.
Defense attorneys for Pursehouse have alleged that the man fell into a deep depression following his encounter with Harwick before going to the doctor's house to seek a resolution. Pursehouse claims he only wanted to speak with Harwick, right, who attempted to escape him, ultimately falling to her death from her bedroom balcony in a terrible accident.
Bob, from a legal perspective, this case presents, I think, an excellent opportunity to talk about the felony murder rule and then talk a little bit about how it's changed in California and how it might benefit the defendant in this case. But first, for our listeners benefit, could you walk us through just kind of general understanding of what the felony murder rule is?
Bob Motta:
[00:17:38]
Yeah. Essentially kind of breaking it down in the simplest form is if in during the commission of a felony. So say you're going to rob a bank and your intent when you left the house was not to kill anybody but to go rob the bank so you can get the money. And you get into the bank and you've got a feisty old security guard there and you're in the commission while you're actually robbing the bank, the old security guard pulls out his gun and you take out your gun and he gets killed. And you didn't even mean to shoot him. So say you just shot up in the air and the bullet came down and went through the top of his skull without any intent.
So your intent is not -- because that's really what it boils down to when we're talking about felony murder, that rule is that somebody gets killed during the commission of a crime without you intending on killing them. Now, that rule used to be too bad. You were committing a felony. Somebody died during the commission of the felony. You're going down on felony murder. So because typically with murders, Joshua, there's got to be the intent, meaning that you had to intend on killing that person.
So that's kind of like the bottom line. It's basically where if somebody's - and a lot of times where it happens or where you have multiple people, multiple actors where like the easiest way is like, look, we're going to -- Joshua and I are going to go rob a liquor store and he's going to be the getaway driver. I'm going to go in and I'm going to do the robbery. He waits out there or he comes in with me, gets the money. I say, go get the car ready, pull it up. He's like, all right. Goes out. I have beef with the cashier. I end up shooting and killing the cashier while Josh is quietly sitting in his vehicle, minding his own business, listening to some music, patiently waiting for me to come out. I jump into the car. I'm like, oh man, I just killed that guy.
Back in the old days -- and it sounds like in California, you guys, it's still that way in Illinois. It sounds like in California, you guys changed your law there. Back in the old days, Joshua is going down on felony murder because he was a participant in the crime. He's just as guilty as I was, even though he wasn't the shooter. So it's kind of how the rule works.
Joshua Ritter:
[00:19:52]
Yeah, no. That was an excellent explanation of that. And just to add to that, so people aren't concerned as to why are we applying murder charges to somebody who didn't actually pull the trigger. The idea behind it is it's not just any felony. I mean, we're not talking about tax evasion. We're talking about violent crimes, like you said, armed robbery, rape, residential burglary. These types of crimes where there's a high possibility of harm or even death to others.
And so what the law decided was that we're going to substitute essentially the intent to kill for the intent to commit that felony, because there's the understanding you participate in this type of ultra-violent, ultra dangerous behavior. You can't then claim I'm so shocked that somebody ended up dead. In other words, to use your example, I'm the getaway driver, but I know you're going into the liquor store with a gun. It's a very real possibility somebody could end up hurt or dead. And therefore, I can't just claim, hey, all I was doing was driving the car.
But you are correct to point out that they changed that in California and California essentially gutted that to a large extent. And what they're now saying is that you have to -- you cannot just be the person sitting in the car. You have to have actually intended to have committed the murder or been a major participant in that crime, which leads to the question, what is the major participant? I have no idea. I don't know if California has even ultimately decided what that means.
But more importantly, how it applies to this case here is very interesting because he's committing a residential burglary. That's a felony. She ends up dead under the felony murder rule. They could just say, listen, if you find that he committed this felony and she ends up dead in the course of committing that felony, he's on the hook for premeditated murder, first degree murder. Here, his defense is making the argument it was all accidental and that could have a huge effect on this case, yes?
Bob Motta:
[00:22:04]
Massive effect on this case. And it's like this case is another one where you're just sitting there listening to the fact pattern. And it's going to be so difficult for the state to prove that she didn't jump because basically the defense's theory is like, look, she was trying to get away from him and she, like on her own accord, jumped over the balcony because she thought she could survive the jump and didn't make it. Obviously, the prosecution is saying, no, that is not what happened. He tossed her over. He killed her. This guy was obsessed with her. And like they've been making the argument that the obsession started way before the little gala where he ends up running back into her, that it's deep seated and long standing.
So in terms of that concept applying where it could be argued, I mean I think there's a valid argument for it in the sense that, yeah, it's going to be really interesting to see how that one shakes out. And I had not thought of that concept until you brought it up to me in terms of how it's going to shake out ultimately in terms of are they just going to get him on the res burg with the felony because obviously, if the jury finds that he tossed her over, it's moot, right? He's going down on the murder.
So the question then becomes how is the statute going to apply? And like you said, when we're talking about major participant, obviously that seems to me to require at least two actors, right? So I don't think that's the issue. But like the way that all new statutes end up getting fleshed out is through appeals. Like so when someone gets convicted and obviously, I know you know Joshua, but like when someone gets convicted on a new statute or a statute that's been amended and it hasn't been up to the appellate court, that's what lawyers do. Like we're sitting there arguing how the application should be applied.
Like when the law, the new law, how that should be applied. And that's what the state and that's what the defense are arguing about. Like we'll often have very different ideas on how the law should apply. And this is going to be one of those cases potentially where they're going to figure out how the amended statute is going to apply. But I think it's going to require in order to get to that point, it's going to require him to get convicted at least. I mean, I think he's done on the riseberg Right. I mean, we could feel pretty confident.
Joshua Ritter:
[00:24:35]
Well, not to interrupt you, but I think they've conceded that. They've said, he was -- yeah, he broke in. Yeah, he was there, but he never intended for her to end up dead and he never pushed her over. And that's where they're finding a lot of wiggle room in this new change in the law.
Bob Motta:
[00:24:52]
Yeah. And it is a lot of wiggle room because back in the old days, he's done.
Bob Motta:
[00:24:59]
Right.
Bob Motta:
[00:24:59]
You know. Now --
Joshua Ritter:
[00:25:01]
No. I mean to, again not to interrupt you, but my last point on this was not only is it -- I mean we're talking a vast difference because there has also been a change in how they view the death penalty in California. So this is a person who, under the old laws is a lying in wait felony murder, looking at possible life without parole, even possible death penalty with the aggravating circumstance of lying in wait to now, there's a possibility, like you pointed out, he could be convicted of nothing but a residential burglary, which is no, nothing to sneeze at. But we're talking about a few years in prison as opposed to the rest of his life.
Bob Motta:
[00:25:42]
Right. Yeah. And that is -- so are you -- you guys are currently under a moratorium on the death penalty. Is that what's going on?
Joshua Ritter:
[00:25:50]
Right. Right.
Bob Motta:
[00:25:50]
And so Illinois did that probably at this point about 20 years ago and like the moratorium never went away. So. Like what is California's like final destination with that? Are they looking to --
Joshua Ritter:
[00:26:05]
The Governor Newsom has already said that he intends to dismantle death row. So if -- yeah, it's under a moratorium, which we could have a whole episode on this. But the voters of California have several times have this come up on whether or not they still want the death penalty to be on the books. And it's always been reaffirmed, but he has taken it upon himself to not only put it into a moratorium, but now he's dismantling death row altogether.
Bob Motta:
[00:26:33]
Wow. Yeah. And how -- like at the end of the day, for the purposes of this case, it doesn't seem like it's going to be a factor. But like trying to figure that out, that lying in wait aspect of it, but you have to presuppose if they get him on that aggravating factor of lying in wait, that means that they've clearly found that he did kill her, right? I mean, like that has to be the end result in terms of what the jury came to.
Yeah. Like it will be fascinating to see how that does apply. And like I'm actively following that case through Court TV and Law & Crime. So we're following it pretty, pretty closely. So I'm going to be very curious to see how it shakes out with the jury because like where I'm sitting on it right now and I don't know if you've been watching the case much, I don't know. Like I don't think that the state has met their burden thus far. Yeah. So it's a tough case, though.
Joshua Ritter:
[00:27:33]
It is a tough case. I saw some interesting testimony that when they arrived at the crime scene, like her necklace had been broken. There was like beads from her necklace all over the floor. And there was also a urine on the floor, which there's the argument that that could be one of the effects of somebody having been strangled. And so there is at least circumstantial evidence. There's a witness that says he heard a struggle.
So but again, he could it -- but again, it pushes the idea of will he have to take the stand to explain that? Yeah, we got into a fight. Yeah. We struggled a bit, but then I took my hands off of her and said, okay, fine, I'm going to leave. And she ended up trying to run and jump off the -- I mean, who knows if that is going to hold water with a jury. But you're right, it's not a slam dunk case.
Bob Motta:
[00:28:27]
It's not. And but at the end of the day, my gut is, is that every single person on that jury are going to put themselves in the place of the victim. And just for one moment, sit there and think about how terrifying that would be to walk into your home with that kind of invasion of privacy. And I just think it's going to be -- I think it's going to end up in the conviction on the murder, but not necessarily because of the evidence. I just think because of the totality of the circumstances, it's going to end up that it seems implausible that you came up there just to have a chat.
Joshua Ritter:
[00:29:07]
You're a man who dated a woman for less than a year, eight years prior. And you by chance, we'll see how true that is, run into her at an event and are so obsessed that you decide to break into her home to have a chat with her. I think I agree with you. The jurors on that jury are going to have a real time handling all of that, that argument.
Bob Motta:
[00:29:32]
A hundred percent. A hundred percent.
Joshua Ritter:
[00:29:33]
Anyhow, we will watch that case. Keep a close eye on it. Let's turn to our final case out of Moscow, Idaho, where the judge presiding over the University of Idaho slayings case is considering the presence of cameras in the courtroom as Brian Kohberger's upcoming trial continues to generate public fervor. Kohberger faces four counts of first-degree murder for the stabbing deaths of Kaylee Gonsalves, Madison Mogen, Xana Kernodle and Ethan Chapin, who were slain in their off-campus apartment.
Prosecutors in Kohberger's defense are surprisingly in agreement on this issue that the presence of cameras in the courtroom could negatively impact the trial, with the state alleging that the high-profile nature of the case could affect the security of potential witnesses. Meanwhile, Kohberger's defense is concerned about their client's due process rights, citing previous media coverage of the case in which cameras zoomed in on Kohberger's facial expressions, despite a judge's instruction to not focus solely on the defendant.
Media organizations have been vocal proponents for allowing cameras, arguing that the public has a right to transparency in the proceedings and that increased coverage could prevent public speculation or misinformation. The judge heard vocal arguments on the matter on September 13th and is set to make a ruling at an unspecified future date. Bob, I'm just going to let you jump in. What are your thoughts about cameras in the courtroom generally, and in this case in particular?
Bob Motta:
[00:31:05]
Well, are you asking Bob Motta, the lawyer or are you asking Bob out of the podcast, because it's two different answers?
Joshua Ritter:
[00:31:12]
Yeah.
Bob Motta:
[00:31:13]
Yeah. From the criminal defense attorney side of it, I just assume not have cameras in there. If it's a high-profile case. Look, there is that balance of the First Amendment, the media's First Amendment right to be able to, you know, but like to me, as a criminal defense attorney, fourth, fifth and sixth are always there my Bible. And in terms of the defendant's right to a fair trial and in a case like this where the media and it's not just mainstream media, it's social media, it has been beyond anything that I've ever seen.
And I'm no spring chicken. I was around when OJ was, you know, just like everywhere. It was appointment television, but we didn't have social media back then. And social media is an entirely different beast. And I worry truthfully about him being able to get an impartial, fair and impartial jury in there. I mean it's a real thing.
People, you know -- and Joshua, we come up against it all the time, like folks that don't practice law, that haven't tried cases have a very hard time believing that it's going to be that hard to find 12 people that haven't heard about the case and haven't formed an opinion on it. And the reality is it is that hard.
In a case like this because like I'll get in the debates constantly on Twitter where people are like, oh, I just talked to three people the other day, they had no idea what the Idaho Four case was. And I'm like, man, like, did they live in Idaho? Did they live in Moscow? You know what I mean? Like you have to look at it through the lens in which it needs to be looked through. And that's, are the people of Idaho who would ultimately be seated in that jury box, are they the ones, are they going to be able to find 12 people that are going to be able to be fair and impartial?
And you know how it is. Like we've gone through when we're picking a jury and I'm trying to get a juror removed for cause because I don't want to use one of my challenges and I've asked the question or the judge has asked the question, have you heard about the case? Have you read publicity about the case? Have you seen or read or heard anything about the case? Sure, says yes. Okay. Well, have you formed an opinion on the case? And the juror says, pretty much, yes, I think they're guilty. So then the judge has the opportunity to try to cure them. Okay.
And the judge will say, okay, now, I understand that you've answered those two questions affirmatively. What I'm going to ask you is, despite that, do you have the ability to follow the law and to listen to the evidence and make your own judgment based on those two things alone, without taking whatever your prior bias or consideration was into effect or into account. And if they say, yes, I can do that, the judge, for the purposes of considering that juror cured, considers them cured.
And so I'll lose my cause challenge. I'll have to use one of my peremptory challenges to get that guy off. Because the reality is I don't believe, and I've been trying cases for 20 plus years, that any juror that says that really means it. And I think that we're human beings. I think that when we form an opinion on something that it would take the moving of mountains or just absolutely smoking gun evidence to get that person to change their mind one way or another. That's just that is human nature.
I'm sure that you've debated people on social media. And I have never and I'm a very persuasive guy, and I have never changed anybody's mind on social media, ever. And it holds true in a court of law. Once people are dug into their position, they're stuck in it like in a rare circumstance.
And when you're talking about a circumstantial case and this is a circumstantial case, like the blood on the sheath is circumstantial. It's not direct evidence. Direct evidence is when you have an eyewitness or a video that sees the act occur. This is a wholly circumstantial case and people are going to have their opinions on this thing one way or another. So ultimately, from the defense side of it, I think that it's probably the best bet that they do what they did with Vallow and just have it audio.
And from the podcaster side of it, I want the thing televised. I want to see all of it because the audio is sufficient. Obviously, as observers of the case, we'd like to see the people on the stand. We'd like to be able to look at their body language. We want to be able to see how they're acting on the stand. We like those types of things. Help fill out a picture for us in terms of getting a total picture. But when you're balancing what's more important and I realize that people are going to say, well, my interest in the case is more important than the defendant's Sixth Amendment right. And I wanted to say, well, no, sorry, that's factually incorrect.
But from the perspective of both sides making the argument, the prosecutor's concerned about the safety of both the witnesses and the jurors. And obviously, the defense is concerned about them being able to get a fair trial for the guy. I mean, because we're talking about two different time periods, right, Joshua? We're talking about pre-trial and but we're also talking about trial. I mean, once the jury is impaneled, I mean, really, the defense's concerns are gone. You know what I'm saying? But the states aren't.
Joshua Ritter:
[00:36:53]
That's kind of where I wanted to push back on you a little bit on. First of all, I have to add to your comment about the judge when they try to rehabilitate a juror and they say, can you follow the law or follow my instructions? And I agree with you. It's so frustrating because you could have done such a great job of exposing all the biases that this person carries into the courtroom. And by the way, we're not trying to say that makes that person a bad person. That just makes them not appropriate for that case. They just have some preconceived notions that they shouldn't sit on this type of a case. Fine, you're a great person, but this isn't the trial for you.
When you do a great job of exposing all of that and the judge goes, can you follow the law and my instructions? And they go, yes. And I've said this to judges before, who's going to say no to you, Your Honor? Who is going to sit there in a group full of people with a judge with a robe sitting up on the bench there and go, no, I'm not going to follow the law and I'm not going to listen to what you have to say. No one's going to say that. That does not rehabilitate that person. So I completely agree with you on how frustrating that is.
Bob Motta:
[00:38:04]
Frustrating. Such a frustrating thing.
Joshua Ritter:
[00:38:06]
But I, also to the point that you were just making, all of the complaints, all of the concerns that the defense has about it, the damage has been done. And by the way, cameras in the courtroom aren't going to undo it. If people have heard about this case, they have already heard about it. They've already formed some sort of preconceived notion about it. And if they're going to bring that in, they're going to bring that in and they're going to have to do a good job on voir dire. I agree with you.
But I think the point that I was going to get to, and you were starting to get to is, okay, fine, we've mitigated what we can. But now that the trial's started, what concerns arise by having some transparency of what took place in the courtroom?
And before I let you get into it, think about the downsides of not having cameras, because, by the way, just because you have no cameras doesn't mean everybody's going to forget about this case. You're still going to have a courtroom full of reporters who every time they take a break, are going to rush out the door to get on their phones and report what's going on or step in front of a camera and report what's going on. And you're going to have all those different takes on what actually took place in court rather than live video of what we knew, know took place in court. Do you follow me on this or where do you come out on that?
Bob Motta:
[00:39:35]
A hundred percent. And to like start off with that point of where you've got the reporters running out. And look, you and I have been doing this for a long time. I've handled cases where it's like the accuracy of reporters and I love them. Like this is -- I'm not trying to cash in on reporters. However, short of them having attended law school, they just don't know what they're reporting on in terms of getting the intricacies correct.
Like that's precisely what you're talking about. That is the advantage for the transparency for all of us to be able to accurately see what actually happened in court. You and I are going to have very different views than laypeople in terms of what's happening in court just because of our educational background and because of our experience in practicing. So that is a major factor in this.
And I agree, because to me, the way that it shifts at trial, I think the defense no longer has a beef. I think at that point, which really seemed to be the thrust of what the state was saying, is they were concerned about having the trial televised for the purposes of the witnesses being harassed and or threatened. And the jurors, if, God forbid, like in their eyes, they came back with a not guilty on the thing, they're very concerned.
So like those two things are competing factors, but they're all kind of like ending up at the same place where both sides, which is unusual, frankly, that both sides came into that hearing wanting the cameras out of there. And like, I wish I could be a fly on the wall in either office, either in Taylor's or Johnson.
Joshua Ritter:
[00:41:18]
And I just think they know it makes life easier for them. I mean --
Bob Motta:
[00:41:20]
Way easier.
Joshua Ritter:
[00:41:21]
That's just true. I mean, I've had trials that you got a camera in court every single day. And it's just more difficult for you because you've got to compete with all of that and then realizing that you're going to be scrutinized for everything that you did in court that day. So, yeah, as far as they're concerned, I can totally understand it from their very personal, selfish perspectives. I'm not calling them selfish, but I understand why it makes life easier for them.
But I just feel, I mean listen, we are in the -- this is happening, folks. We are in the day and age of where everybody wants a camera somewhere to see what's happening. I think Idaho's taking itself maybe a little too seriously or overthinking this. We had the Murdaugh case that had cameras every single day. We had Johnny Depp and Amber heard that took over the entire country, cameras every single day. They managed to pull both of those cases off.
And I don't think there's an argument that the cameras fundamentally affected what took place. You could probably argue that it changed some people's behavior and everything else, but I don't think it fundamentally changed it to the point that there was a miscarriage of justice. And I just think that there's a way to do it that addresses everybody's concerns. And I think that if they end up not having any camera, even a stationary camera in court, I think it would be a disservice to people watching this and people concerned with how this case ends up.
Bob Motta:
[00:42:49]
I agree completely. And I think -- and what's different about this case in terms of it being televised as compared to anything else that we've seen in the past, and it's the thing that I'm always talking about on my podcast, man, like the real wars aren't the trial. It's the motion work that takes place going into trial because that is where the judge is deciding what's getting into evidence and what's not. And like for the better part of our lives that has never been televised.
So this happens to be that case where they're televising all of it, where the motion work, which I've always said they should be televising, because it's fascinating. It's where the real battle is. And you're just seeing the culmination of it at trial. Like this is that situation. And that's why I think if they're going to have to say, okay, look, I'm going to -- if I were the judge, I'd say I'm going to cut the cameras for the motion work as much as I don't want to, I think it should. But there's going to be trial. During the trial, there's going to be cameras.
Joshua Ritter:
[00:43:48]
Ironically, that would probably be the way to best preserve the integrity of the jurors and everything else is. It's all this behind-the-scenes stuff that you're really concerned about, people who might be sitting on the jury seeing. Yeah, that's a really, really good point. Well, I think we're going to find out any day now how they fall on that. And whenever this comes to trial, which I don't think will be anytime soon, but we will continue to watch it and keep our eyes on it and report back about it. But in the meantime, that's our show. Bob, thank you again so much for coming on this week. Where can people find out more about you, about your podcast?
Bob Motta:
[00:44:28]
Yeah. I mean, I'm on TV quite a bit, do Court TV, Law and Crime, News Nation, or wherever they call me, wherever they back in, I show up. But in terms of my pod, which is really my real passion, my love, you can find it anywhere you get your pods, called Defense Diaries. I've got a side pod called The Docket. Unfortunately, Joshua, they're both on the same feed right now, which we're rectifying because people are getting confused.
And right now on The Docket and my wife is my co-host who I said is my law partner and obviously my partner in life as well, we are covering the Steven Avery case and we're doing it like no one else has done it. So if you're interested in that case or if you're watching Convicting a Murderer, we have no agenda. Both of us are going into it. We both watched, obviously Making a Murderer. And I realized as soon as I watched it, I'm like, well, they forgot some stuff they had to. There's no way they got a conviction on what they showed there.
So the Making of a Murderer, which is, or Convicting a Murderer which is out now, they both have agendas. We're not doing that. We're going through the entire case. It's going to be a deep dive. So we're excited about it and we're fascinated about it. But that is on The Docket. But Defense Diaries is anywhere you get your pods, that's the spot.
Joshua Ritter:
[00:45:41]
Awesome. Yeah. I am fascinated on that Avery thing. I will turn in because I know that I felt the same way watching that documentary. I'm like this. I'm talking about the Making the Murderer one. I'm like, I thought they did a great job, but I'm like, nah, none of this, some of this does not seem to be fitting together here.
Bob Motta:
[00:46:00]
Holes.
Joshua Ritter:
[00:46:01]
Yeah. I feel like we're not getting the entire story.
Bob Motta:
[00:46:03]
Big holes. But it was unbelievable. Like, man, when it dropped and it was around Christmas time. The kids were like out. We were all at home and man, I binged it and it was really, really well done.
Joshua Ritter:
[00:46:16]
Oh, yeah. Oh, yeah. Highly entertaining.
Bob Motta:
[00:46:20]
Yeah, exactly. It was. It geared more towards entertainment. And as we're finding out through the other one, the Making of or Convicting a Murderer, there's clearly things they left out. But they're going to do the same thing that's got a slant that's got an agenda as well. We're not doing either. We're giving everybody all the evidence.
Joshua Ritter:
[00:46:38]
There you go.
Bob Motta:
[00:46:39]
Go through all of it. And we're going to --
Joshua Ritter:
[00:46:41]
If you want the unvarnished, unbiased take, tune in.
Bob Motta:
[00:46:46]
That's spot.
Joshua Ritter:
[00:46:48]
All right. Well, thank you again. I'm your host, Josh Ritter. You can find me on Instagram and Twitter at @JoshuaRitterESQ or at joshuaritter.com. You can find our Sidebar episodes wherever you get your podcasts. And we want to hear from you. If you've got questions or comments you'd like us to address, tweet us your questions with the hashtag #TCDSidebar. And thank you for joining us at the True Crime Daily Sidebar.
