Judge to allow ‘sexually explicit’ evidence; Bombshell in Kristin Smart murder trial — TCD Sidebar
In this episode of True Crime Daily The Sidebar Podcast
Jack Rice joins host Joshua Ritter to break down the biggest cases making headlines across the nation. They discuss a judge allowing “sexually explicit” evidence in the trial of OnlyFans model Courtney Clenney, a Theranos whistleblower approaching Elizabeth Holmes, the conviction of an Australian man for the murder of his wife, and authorities utilizing a popular podcast in their investigation of Paul Flores.
Tweet your questions for future episodes to Joshua Ritter using the hashtag #TCDSidebar.
Joshua Ritter:
[00:00:09]
Hello. And welcome to True Crime Daily’s, The Sidebar, taking you inside the courtrooms of high profile and notorious cases from across the country.
[00:00:18]
I'm your host, Joshua Ritter. I'm a criminal defense lawyer based here in Los Angeles and previously in LA County Prosecutor for nearly a decade. We're recording this on Friday, September 9th, 2022.
[00:00:29]
In this week's episode, we have a judge will allow the exhibition of potentially sexually explicit evidence in the murder trial of an OnlyFans model.
[00:00:40]
Also, Theranos’ CEO Elizabeth Holmes seeks a new trial after a key prosecution witness showed up at her house to express his regret in her conviction. As well as the conviction of an Australian man for murder, that may have been influenced by a podcast investigating the crime. And finally, a bombshell and the Kristin Smart murder case involving wiretaps and yet again, another popular podcast investigating that killing.
[00:01:08]
Today, we're happy to be joined by Jack Rice, a former prosecutor and CIA officer, currently a criminal defense lawyer and legal commentator for Court TV, MSNBC, Fox and a friend of the show. Jack, welcome.
Jack Rice:
[00:01:20]
It's great to be with you again.
Joshua Ritter:
[00:01:23]
For those of us who weren't able to catch your episode the last time you were on, could you tell us just a little bit about your background and what your current practice is?
Jack Rice:
[00:01:32]
You bet. I've been a criminal defense attorney for 20 plus years. My area sort of focus is violent crimes, criminal sex cases, rape cases, murder cases. I’m a board-certified criminal law specialist. About less than three percent of all criminal lawyers actually have that designation where I practice.
Jack Rice:
[0:01:53]
And generally, what that means is we try a lot of cases. We’ve been doing it a long time. We got a lot of people who are either telling us we're great or we're idiots, but we fight them anyway. So, it's just part of the game.
Joshua Ritter:
[00:02:04]
I know you just got out of a trial. How many trials are you doing a year now?
Jack Rice:
[00:02:08]
I don't know. You know, it's not that many right now. Things have slowed up. Covid, and you know this too, Covid, it's really had a massive impact upon the court system and we've seen it sort of trying to break loose right now.
Jack Rice:
[00:02:21]
I'm just out of a trial. I think the most I ever had one year was 13 or 14.
Joshua Ritter:
[0:02:28]
Wow.
Jack Rice:
[0:02:29]
I once tried five cases back-to-back to back-to-back to back. And so, you can imagine about three cases into that, it was pretty funny. I remember. In the other courtroom, cleared and I was face down on the table in front of me. So, my head was literally on the table and the judge walks in and who I know and he's like, “Jack, how you doing, man?” He could come talks like that. It's like Sammy Davis. “Jack, how you doing, man?” I'm not doing very well, Judge. I’m not doing very well at all.
Jack Rice:
[00:03:05]
But it's the game and this is what we do. This is why we do it. Josh, you know this man. We've been doing this a long time. I the reason I come on with you, it's because it's like we're just talk and shop.
Joshua Ritter:
[00:03:15]
Yeah, yeah, yeah.
Jack Rice:
[00:03:15]
It's awesome. I love it.
Joshua Ritter:
[00:03:17]
Well, that's why we're having you here. We are looking forward to hearing and calling upon your vast trial experience to talk about some of these cases. So, let's jump into them.
Joshua Ritter:
[00:03:26]
The first case we're turning to involves a OnlyFans model. This has been all over the Internet, all over social media. This model and social influencer, Kourtney Clenney, 26, is slated for a December 19th trial for the accused stabbing of her boyfriend Christian oh Boom Sally, 27 years old
[0:03:45]
This Tuesday, a judge denied a pre-trial motion filed by Clenney’s defense and attempt to limit the release of salacious or “sexually explicit evidence”. Clenney’s defense argued that the model who produces adult content could be unfairly judged by the material, which they argued isn't pertinent to the case.
[0:04:05]
The prosecution's evidence includes surveillance footage of the couple fighting with Clenney shoving and hitting the victim, along with crime scene photos, the murder weapon, as well as thousands of photos, audio and content from Clenney’s online activity.
[0:04:19]
Jack, my first question to you is why? Why does the prosecution feel they need this type of evidence talking about the salacious sexually explicit evidence? How is it relevant and could it backfire on them? There's a whole bunch of stuff for you to run with.
Jack Rice:
[00:04:34]
Yeah, let me go to the last one first, can this backfire on them? Absolutely, it can. Let's be clear, this is porn. That's what this is.
[00:04:41]
And the thing is, as my response – I'm a defense attorney. I'm a former prosecutor, I’m a former U.S. Federal agent, yes, but as a defense attorney, when I look at this, I thought to myself, how do I argue a case like this?
[00:04:54]
What happens if this guy is the guy that put her on the treadmill? He put her on the porn treadmill.
Joshua Ritter:
[00:05:01]
OK. Yeah.
Jack Rice:
[00:05:01]
This is why she's doing it. All of a sudden, she's victimized again and again and again and again. That's part of my theory. That's part of the theme of my case.
[0:05:11]
And then what I get to do is I get to turn around and say, “And by the way, do you know who made sure that you get to see every single piece of this?” The prosecutors did. They have victimized her too because that's what this is about. That's what this has always been about,
[00:05:25]
I think part of the issue that helps me in this case is I get to use that and show that for people who are disgusted by it, those people may actually buy into what I'm saying. For those who aren't disgusted by it, they may equally look at this issue and say who was the driving force with making her do these various things.
[0:05:45]
And when you get that, that may be a part of a defense that you can build in this case, he was abusive. He was abusive mentally. He was abusive physically. And she was trying to defend herself for a very long period of time.
[0:05:59]
You get to make an argument like that. It can stick. And this can bite back against the prosecutor who is fighting so hard, I think, to taint a jury pool and say we want you to hate this woman and we're going to give you a whole bunch of reasons to do it.
Joshua Ritter:
[0:05:59]
That is not the way I thought you were going with this. That is very interesting. No, I didn't even think about that, that if they let it in, if the defense even doesn't object to it and let sit in, it’s – well, she's not the victim, right?
[0:06:29]
But it could be seen as victimizing her for something totally unrelated, shaming her, embarrassing her. I mean, because she's going to be sitting in the courtroom. And this is going to be uncomfortable for jurors to watch this type of stuff with her sitting there and then they're kind of looking at themselves, like, why are we watching this? What does this have to do with the killing?
[0:06:45]
I hadn't even thought about that, the way I was thinking about it was on appeal – a judge on appeal, though, appellate court is going to look at this and go what, why did we show this to jurors? How did – what probative value did this have?
[0:07:00]
It likely had a prejudicial value, whether it worked towards your argument or worked against her. And that, you know, they're up there saying, well, on top of it, she's this complete slut or something else
Jack Rice:
[0:07:09]
Right.
Joshua Ritter:
[0:07:10]
And, you know, we're going to convict her for that alone. I've always as being a prosecutor, you as being a former prosecutor, one thing that always bothers me is the overkill. You've got evidence, you've got, you know, you've got the murder weapon, you know that it's her, you're going to be able to piece this case together. Why go above and beyond and create appellate issues for yourself?
Jack Rice:
[0:07:31]
Right. Well and you know what, and you just nailed it too, right? There's two pieces here. There's more prejudicial than probative. That's always going to be the standard in this case. Why do we need to see salacious video after video after video after still photo after still photo after still photo?
[0:07:45]
How does that make her any more or less guilty? And that really is the question you're going to ask. And this sort of helps, I think, the defense in that sense. But I really do think you have the potential of turning this around and saying what you're really seeing here is of victimization. Do you think anybody would choose to do this on their own simply because they can? Or you think this is more like and more consistent with the argument that if you're driven into a corner and you have no choice, you're willing to do just about anything?
[0:08:20]
Now, think about what that means if you're thinking about building a defense. This is actually using – and I argued this over and over. I think the most powerful evidence, sometimes, that a defense attorney can use is when they can take the states’ evidence and they repurpose it for their own uses.
Joshua Ritter:
[0:08:37]
Oh yeah.
Jack Rice:
[0:08:37]
And you realize it's the prosecutor that is cutting themselves and taking themselves down. That is power.
Joshua Ritter:
[0:08:43]
Yeah. When you have the prosecution starting to object to their own evidence, you've got them, you've got them in a really good spot, right? The other thing that we've all seen on this case is a video. It's inside of an elevator. It's surveillance video of her just wailing on the victim in this case who we find out later on is the victim of murder in this case.
[0:09:07]
Is that any different? Is that evidence, do you think, is any different? Because the way I was looking at it, if you want to put your defense attorney hat on, is what does this have to do with what happened on that night? Yeah, yeah, maybe they had problems in the past, but you can't convict her over the fact that you saw her beat him up before. She's not being charged with a prior assault. She's being charged with murder. So what are we doing looking at that evidence?
[0:09:32]
The prosecution sees it a little differently, right? They're talking about maybe perhaps she has a pattern that they could say that, listen, she's been violent with him before. That's why she was violent with him now. What are your thoughts both from the defense and prosecution end on that video?
Jack Rice:
[0:09:48]
Well, let's talk about it from the prosecution standpoint first. They're going to talk about history of the relationship. I mean, that's really what they're arguing and they're saying look at her violent behavior toward him. And this, that we see in this video is consistent with what we're talking about on the day in question. That is going to be their argument.
[0:10:06]
And again, I have to spin this around on the defense side. If you've watched this entire video, go back and watch it again if you have the opportunity because I counted three situations where he reaches out with his hand, and if he doesn't punch her, he uses the palm of his hand and he pops her in the face three times.
[0:10:27]
And my response is, you know, prosecutors do this all the time, how tall was he? How strong is he? How much does he weigh? How little is she? He's got a foot on her. He's got probably 50, 75, 100 pounds on her. What is the potential for this man to hurt her?
[0:10:46]
Now, let's watch him do it. Think about the power again, this is how a good criminal defense attorney works, if you can do it. If you can take that evidence, look it on its head and say, by the way, remember all those promises during openings, ladies and gentlemen of the jury, that you got from the prosecutor and they talked about the evidence they were going to show you, let's look at that evidence together. You and me. Come on, let's do that.
Joshua Ritter:
[0:11:12]
Yeah, yeah. Really, really good arguments you're bringing. Last thing on this. And I'm curious how you would handle this. She was arrested in Hawaii, right? So, there's this whole, you know, who commits a murder and then immediately starts buying a ticket and ends up in Hawaii?
[0:11:31]
The prosecution, of course, is going to exploit this and say that's, you know, consciousness of guilt. She's fleeing the crime. What if – as her attorney, how do you handle that?
Jack Rice:
[0:11:41]
Yeah, the problem with that argument is that it does have some validity, right? It does have some value to a jury who could hear that and say that seems odd somebody who you were living with and all of a sudden, you’re fleeing the scene. Well, on the other hand if you did not do this, if you were defending yourself and you know that, what you're trying to do is you're trying to create space from the trauma, and you're trying to get away from the trauma that you face, and you recognize that you didn't do this and you didn't know they were even going to charge you in the first place.
[0:12:12]
I'm shocked that this was going to happen. I've had cases where I've been waiting for a year, two years, sometimes more. In criminal sex cases now, I have cases that they're charging them out five, six, eight, ten, fifteen years after the fact.
[0:12:30]
And so, my response is what should those people have done? Running around, holding their breath until somebody in some prosecutors’ office decided to pull the trigger? I'm sorry, that's just how I think about it.
Joshua Ritter:
[0:12:41]
Yeah. It's just funny to me because whenever you have that type of evidence, I notice this, especially as a prosecutor, I would always want to bring that kind of consciousness of guilt type evidence in, even if it wasn't all that powerful because jurors really seemed to hang their hats on that type of stuff, like oh well, if he ran afterwards that must mean he's guilty.
[0:13:02]
And they can't contemplate really. It's a hard time to get them to contemplate other reasons for why a person might do that. We're going to see this a little bit later on in the podcast.
[0:13:12]
But the other thing they like to hang their hats on is the words out of the defendant’s own mouth, the things they may have said afterwards. We're going to get into that a little bit later.
Joshua Ritter:
[0:13:22]
We're going to talk about a case out of San Francisco. This is the disgraced former CEO of Theranos. Elizabeth Holmes has requested a new trial after a whistleblower and prosecution witness, Adam Rosendorff, visited her house to express regret for the part he played in her conviction.
[0:13:41]
Elizabeth Holmes is currently free on bail after being found guilty of four counts of fraud and conspiracy for her role in Theranos, which defrauded investors offering faulty blood testing technology.
[0:13:53]
Rosendorff expressed concern about the accuracy of Theranos’ blood testing technology, and his testimony was highlighted by prosecutors and their closing arguments. Holmes faces a sentencing hearing on set for October 17th in San Jose.
[0:14:07]
OK. So, Jack, according to their moving papers, the Holmes’ team is saying that Rosendorff expressed that “He tried to answer the questions honestly, but that the prosecutors tried to make everyone look bad.” My first question is, isn't that just plain old advocacy?
Jack Rice:
[0:14:23]
Amen, brother.
Joshua Ritter:
[0:14:24]
Right.
Jack Rice:
[0:14:24] That's how it works. You know what, it's like once you put it out there, you don't know what people are going to do with it. And prosecutors or advocates, just like defense attorneys and what they're going to do is they're going to take what they get and they're going to twist it to support the arguments that they're making. Welcome to the criminal justice system.
Joshua Ritter:
[0:14:42]
Right. I mean if he had approached her and said I lied, we'd be in a whole different ballpark, right? But he's not saying that, and they're not even saying that in there moving papers. They're saying that that the prosecution manipulated his words, or twisted his words, or took part of what he was saying and exploited that. Is any of that enough to get her a new trial you think?
Joshua Ritter:
[0:15:07]
No, it's really not. And in fact, as you said, if he came out and he said I lied, they forced me to say something else, they limited my ability to say something and I wanted to say these other things. Uh, even that last one probably isn't going to be enough. It's going to be that, they forced me to say something or I lied.
[0:15:26]
That's just about it because frankly, from the defense perspective, you should have the ability to say, well, fine, let's do some cross. Let's finish up on that, Mr. Witness. Let's talk about what it is that the state did not allow you to finish and did not allow you to expand upon because I know this jury absolutely wants to see that.
[0:15:44]
That's what a good defense attorney has to do. It's not just about dealing with your own witnesses. It's not just about being on the defense. Sometimes, you have to go on the offensive. And with a guy like this, it sounds to me that Theranos’ lawyers are the ones who should feel a little bit upset that they didn't do the things that they really should have done.
Joshua Ritter:
[0:16:03]
That's an interesting point. Yeah, why weren't you lowering the heck out of his testimony, just like the prosecution was?
Jack Rice:
[0:16:09]
Absolutely.
Joshua Ritter:
[0:16:11]
I even wonder, even if he said, listen, you know, I wasn't able to give the entirety of the truthful testimony that I wanted to give, I wasn't given that opportunity, blah blah blah blah blah, I feel like I need to tell more of this story. A judge is still, I think, reluctant to grant a new trial because you weren't the only witness.
[0:16:35]
I mean, there were several other witnesses called. This trial lasted for weeks, unless they felt that this entire trial hinged on that one witness, I still don't think it's enough to overturn it. Have you ever experienced anything like this where you're attempting to get a new trial based upon some sort of actions that occurred since the trial?
Jack Rice:
[0:16:53]
You mean have I failed to do that? Yeah, yeah, yeah, I have Josh. Thanks for asking brother.
Joshua Ritter:
[0:17:01]
Bring up old wounds, yeah?
Joshua Ritter:
[0:17:03]
Yeah, I know. Thanks for having me on the program. Oh no, it's just not going to happen. I mean, in the end judges are hesitant, certainly at the trial court level, at the appellate level especially. They're absolutely hesitant to overturn a jury’s decision.
[0:17:22]
They just don't want to do it unless they have something that almost forces them to do. So, what they're going to do is they're going to come in and say the equivalent of no harm, no foul. Suck it up, Princess. That's just how it. It's just how it is and that's what we have to do. Suck it up, princess, that's what I do.
Joshua Ritter:
[0:17:38]
Yeah, I agree. I agree. It would have to be such a huge bomb for this to change anything.
Jack Rice:
[0:17:42]
Massive.
Joshua Ritter:
[0:17:42]
But what about sentencing? Do you think this affects her sentencing at all?
Jack Rice:
[0:17:46]
Well, I mean, I think it's potentially an argument because at least what you're saying is it all goes to culpability. And if what you can potentially get is think about what you could use for mitigation. And if the mitigation actually is the prosecutors witness who could come in and say this was actually my intent, this was my hope, this was my thought, this is what I saw, it doesn't make all the difference, no. But what it may do is it might drive the judge.
[0:18:14]
We have half their notes in a box, meaning a sentencing guidelines box. We're going to look at the issue of saying, well, are you going to go up, are you going to go down, are you going to move that around? How much flexibility does the court have in this case to run concurrently, to go down, to do all sorts of things and could that help? You know what, you're going to use everything you've got, including that guy. At least I would. I know you would do too.
Joshua Ritter:
[0:18:38]
Yeah, I would. Problem is, they're in federal court, and these federal judges tend to not be too persuaded by this type of stuff. So, you know, we'll see what ends up happening here.
Jack Rice:
[00:18:48]
Yeah, yeah, you, by the way, just on that point. I mean for people who missed this thing, you got to remember, there's always two court systems running at the same time. We got state court and you have federal court.
[0:18:58]
The thing about the difference between federal court is that they're in the most federal judges would acknowledge that this if you actually have to talk to them and that's they’re really shackled. They’re shackled by the sentencing guidelines, which means they almost have no choice whatsoever and they have the most draconian system in place. So, if you go down in federal court, you go down really, really hard.
Joshua Ritter:
[0:19:23]
Yeah, yeah. From being a state court guy, for the most part, I remember the first few federal cases I handled. It is, you are not in Kansas anymore. It really is draconian, that's the best word to describe it. They have got you pinned against the wall and there's really no relief. So not good news for Miss Holmes, but we'll see what happens.
[0:19:46]
I’m turning to a case outside of the states. This I thought was fascinating. We're talking about out of Sydney, Australia, Christopher Dawson, 74 years old, was convicted for the 1982 murder of his wife, Lynette Dawson, in New South Wales Supreme Court. He faces a possible life sentence for the killing.
[0:20:06]
Interests in the case was renewed after nearly 60 million people listened to the podcast, The Teacher’s Pet, which focused on the murder, laying out a circumstantial case that he killed Lynette. The popularity of the podcast influenced Dawson to opt for a judge trial, we call it a bench trial here, instead of being tried by a jury. Dawson was in a relationship at the time of the murder with a teenage student and former babysitter of the couple’s children identified only as the initials JC.
[0:20:37]
JC and Dawson later married in 1984 and divorce in 1990. Lynette body has still not been found to this day. And in spite of that, the judge rejected the possibility that the wife abandoned her husband and children to vanish without a trace saying, “The whole of the circumstantial evidence satisfies me that Lynette Dawson is dead, that she died on or about January 8th, 1982, and that she did not voluntarily abandoned her home.”
[0:21:06]
First question, you know, I'm going to ask you and I know we're at now Australia, we're not in the U.S. and there might be reasons for this, but why in the world would you put your fate in the hands of one person and not a jury of your peers? Do you think that affected this case?
Jack Rice:
[0:21:21]
Yes. Absolutely, I do. I think that there is always this question on whether or not you take any case. And sometimes we had these debates and I'm sure you've had him in your office and all your friends do. Well, something particularly egregious usually. It's usually egregious, really like horrible facts and the idea that if I can get the judge to look at this or readability isn't a better option.
[0:21:45]
The problem is this. I get a jury of 12. I need one. I need one person to say I don't know. I'm just not sure in this case. And so, the idea that she would waive that and put all of that in the hands of a judge, many of whom I find to be, what's the word that I want to use when we talked before we started today, I find some of the judges that I find to be cynical, for lack of a better word. And I find them to have pre-existing conditions and ideas in their heads about who people are who are in the system.
[0:22:23]
And I've watched enough judges smirk when I walk into the room. Maybe it’s me. Maybe I’m taking this personally, Josh. What do you think? I don't think I would ever waive a jury, certainly never again. For whatever time I've got left, I'm never going to do this in front of [inaudible].
Joshua Ritter:
[0:22:42]
Yeah, speaking strictly here about the states because, you know, we've got Australian listeners. So, if they know a reason for why this might be different, you know, please let us know.
[0:22:52]
But like you said, the only way I could contemplate it is if you were dealing with really, really awful facts and your only defense was a very nuanced legal argument that you felt like jurors with no legal background might have a hard time wrapping their head around, but a judge would understand it and not allow a motion to play a role and say based upon the law, I'm going to acquit here in spite of the you know, how awful the facts may be.
[0:23:21]
Only time I could see taking a risk like that, in this case, the reason given, at least by his team, was the amount of kind of attention from the community based on all this podcast attention and that they felt they could have got a fair trial. I don't know. Maybe their system is different, but I just can't see through the jury selection process. Would you be afraid of not being able to find a fair jury? I would much rather take my risk and wader the heck out of those people and make sure that they had no prior bias from this podcast than still putting it in the hands of one person.
Jack Rice:
[0:23:56]
Yeah, I do too. I mean, it's interesting, because what makes this case common, if you will, is that it's all circumstantial. And you know, it’s an old line but it's still a goodie, is that circumstantial evidence is still evidence.
[0:24:13]
The problem is this circumstantial evidence can pin almost anybody to a wall. It just can, because if you're the wrong guy in the wrong place, you could be the guy. It’s just how it is and you realize what that means.
[0:24:28]
I think it really changes when I deal with cases like these, and I'm sure for you too, that it really forces us when you have a circumstantial case, not to be on the defensive, but frankly, oftentimes to go on the offensive. You have to be able to give a better story for lack or at least a good alternative story.
[0:24:50]
And then at the end of that look at this journey and say, ladies and gentlemen, when you go back into the deliberations and you look at all of this circumstantial evidence that you heard, what do you wish you really had? What is the evidence that you really wish you could have seen from step one and you work them through it?
[0:25:06]
And then you say, I want you to write that down on a piece of paper as you're going through deliberations and I want you to put that in the middle of the table and just put that question. Or if it's two or five or ten, just put each one of those there. And then, after you've done deliberations for a little while, I want you to look at that table, and I want you to look at that pile of questions, each one of those is reasonable doubt, each one of those singularly is reasonable doubt. Just because they give you a potential option that seems to fit, that is not proof beyond a reasonable doubt. It's answering your reasonable questions because you are all, ladies and gentlemen, reasonable people, right?
Joshua Ritter:
[0:25:47]
I love that. I’m stealing that and I'm giving you zero credit for it.
Jack Rice:
[00:25:50]
That's right. Damn right, I stole it from somebody way smarter than me a long time ago too.
Joshua Ritter:
[0:25:57]
I mean, you talk about this, it's a circumstantial case. Not only that, it's a cold case from 1982. Isn't that what we’re talking about?
Jack Rice:
[0:26:03]
Yup.
Joshua Ritter:
[00:26:04]
And it's a no body case. So, if you're the prosecution, this is as hard as hard as it gets. But you make a really interesting point. And a prosecutor that I used to work with for many years, a good friend, his name is John Lewin out here in Los Angeles, specializes in these types of cold cases, especially involving no body cases. And he talks about how it's sometimes far less about who did it as much as it is who else could have done it.
[0:26:33]
And if your answer is no one else could have done it, then you've got the right guy sitting in the courtroom. And I think that's kind of what happened here, and you kind of pointed out that as well. If you don't present them with an alternative that makes just as much sense, then they're going to have to hang their hat on the story that's being presented to them by the prosecution.
[0:26:54]
And in this case, the judge almost basically says that, that if your alternative is that she left with the clothes on her back, abandoned her husband and child, and just disappeared into the unknown for the last 30 plus years, going on 40 years, without explanation, that makes no sense to me. What makes far more sense to me is that you, Sir, sitting right here with the motivation and everything else are the one who caused her death. And I think that's what it came down to here, right, is that there was no else that could have done it.
Jack Rice:
[0:27:28]
Listen to you, man. You’re saying you got that 10 years sitting in that office talking down to these four people, how dare you, young man? No, you know what, you're right. I mean, what's so interesting about that argument when you say it like that, who else could have done it, that actually is shifting of the burden.
[0:27:48]
I would have gotten to that, really, because you're literally saying I don't have to prove they're not coming up with a better story. And my response is that's not my job. My job is not to come up with a better story than yours.
[0:28:00]
Your job is to answer every question that this jury should be able to ask and you must be able to answer. So, when I see that shifting burden and it absolutely does happen, I think you've got to stand up on the defense side and say this can't happen this way.
[0:28:18]
Hence, we see things like prosecutors, I would argue is misconduct. I would also argue when you do things like have juries go out to crime scenes, when you have juries go out and start almost becoming investigators of their own, when they're looking at – I think of the Parkland shooting case where they ran them through that school, the idea is, let me get this right. You're just going to let them walk around and look at this as long as they like and you're not going to control it? You're not going to put them out there. Instead, you're going to say go out and find what you think is appropriate here. The problem is that it shifts the burden.
[0:28:52]
It's one of those examples where you're saying now all of a sudden, they're carrying information with them, rather than saying we are completely and utterly dependent upon the prosecutor’s office to provide us each and every piece of evidence in order to make a determination.
[0:29:13]
You're actually alleviating some of that burden from them, and that is that shifting of the burden piece, which I think is completely and utterly inappropriate. But some of these judges, they don't care. I'm sorry, there's no other way to put it but they don't care.
Joshua Ritter:
[0:29:24]
Yeah. And sometimes, jurors, as much as you try to drill it into their heads, it's not that they don't care, they just kind of don't get it. You know, we can say the prosecution has the burden, the prosecution has the burden. But if you're sitting over there and you're not giving them another bad man, then they're like, well, what else am I supposed to do?
Jack Rice:
[0:29:44]
Well, you know, I mean, it's interesting. I don't know how long we're going to talk today, because I could probably talk with you for a long, long time on this. But if we think about that issue, I actually think that's one of the reasons when you talk to a jury during jury selection that there's always this sort of hesitancy to go straight at them.
[0:30:01]
And I understand you can't talk about the facts of the case and judges will kind of rain you in. But the problem is, is these are actually the real questions because when we talked to them about this issue and you're saying, you know when we think about this and if the state presents an idea of what the answer is, and that there are holes in it, what does that mean? How does that work? Is there an obligation? Should I have an obligation to put anything forward?
[0:30:27]
I don't want to hear about what the judge thinks is going to tell you what the law is. I want you to tell me about what you think I should have to do and what more leash I should have to do, what honestly, I should be required to do. I don't care what the law says, I want to know what you think.
Joshua Ritter:
[0:30:46]
Really good. Good stuff. Yeah, I like that. Last point on this, and because it kind of dovetails into the last story we're going to cover, but this podcast Element, that this whole thing, you know, 40 years later, the guy is probably thinking I'm good.
[0:31:03]
This podcast come out 60 million people listen to it. As a defense attorney, what are your thoughts on this kind of the influence of these social media investigations arm chair detectives, what are your thoughts on all of that?
Jack Rice:
[0:31:17]
It scares me. I mean – wait, let me rephrase that. I mean, you know, my background cuts both directions. I've been doing this a long time. And frankly, I'm just sort of looking at the human condition half the time like you are.
[0:31:32]
And there is the part of me that loves the idea to say that if there's somebody who was taken from us, from you, from me, from my family, the idea that somebody would care enough to say we should find justice for those people, I sort of appreciate what that means.
Joshua Ritter:
[0:31:50]
Sure.
Jack Rice:
[0:31:50]
And I do. I honestly do. I can see why that is. But the problem that frequently happens is with podcasts is you'll get a myopic view that says this guy did it, this guy right here did it. And now let me show you why and they’ll run sort of the viewpoint about this wide and they’ll run it all the way down until it makes sense. And by the time you get done, the response will be just like your buddy, well, who else could have done it?
[0:32:22]
And so, it's based upon a myopic view that runs that direction. And then when you get something that's so popular, it has the potential of having a very real impact upon your jury pool. And so, I am concerned about that issue.
[0:32:38]
I also think it really requires a lot of effort on the defense side to think about what that means so you can actually come back and really address it. It's a really, really hard, challenging thing that we do. And yet, that's why we do it.
Joshua Ritter:
[0:32:57]
Again, we're going to talk about podcasts. We're going to turn to Salinas, California. And so, we have the murder trial continues for Paul Flores and his father, Ruben Flores, were charged with the killing of Kristin Smart and the concealment of her body. Smart was a Cal Poly freshman who went missing in 1996 and was declared dead in 2002, though her body was again never found.
[0:33:19]
Paul and Ruben Flores were arrested in April of 2021. Again, the podcast, this time called Your Own Backyard, is credited with renewing interest in the case prior to the Flores’ arrest. According to testimony, Paul’s mother instructed him, this was testimony that just came out in court, this is over a wired tap, Paul’s mother instructed him to listen to the podcast saying I need you to listen to everything they say so we can punch holes in it.
[0:33:49]
Detective Gregory Smith with the San Luis Obispo County Sheriff's Office testified that wiretaps were authorized to monitor the conversations of Paul Flores and Ruben Flores, as well as Susan Flores, Paul’s mother, and Paul’s sister, in which these conversations referencing the podcasts were heard.
[0:34:07]
Smith also testified that he and his team, and this is fascinating to me, provided the podcast creator with information about the case as a way to control the reports the Flores family would receive. OK, wow. Jack, jump right in. First of all – I mean I'm not going to even ask you a question. You just give us your thoughts on all of this and the police investigation with the podcast.
Jack Rice:
[0:34:30]
I’m petrified that the government goes on the offensive and they can actually try to manipulate the media in order to do what they think is right. And it's actually manipulation. And that concerns me.
[0:34:42]
And actually, when you and I discussed this, let me give you the analogy that I actually gave you before. I'm a former CIA case officer, OK? Our job was on a worldwide basis to go out and target and acquire challenging and difficult things and challenging and difficult people.
[0:34:57]
Now, the thing is, is the US government, on a worldwide basis, reaches out into the world and manipulates all sorts of things. The thing is, is what they're not supposed to be doing is they're not supposed to be manipulating the media inside of the United States. There's actually laws in place that say so.
[0:35:14]
My concern in a case like this, is what you're talking about, is the Police Department prosecutor’s office is coming in and saying what we're going to do is manipulate the media so we can watch the response that's created from our manipulation. So, when I hear that, it gives me a lot of concern because people make all sorts of decisions when they think they're in the right.
[0:35:42]
And my problem is, is how far can you take this? And so, that was my first sort of major concern when it comes to this. How about you?
Joshua Ritter:
[0:35:50]
You know, it's funny. I'm not pushing back on you. I agree with everything you're saying as far as we, I think we should all of us be concerned about the government’s involvement, manipulation with media and everything else, but I thought I was thinking about it from a purely kind of a criminal investigation perspective. And police do a lot of things that people might not appreciate. They're allowed to flat out lie to you. I mean, there's always –
Jack Rice:
[0:36:13]
Flat out.
Joshua Ritter:
[0:36:14]
There's always the, you know, the joke about they come in to do the interview and they slam a huge file down on the desk and it's three inches thick and you know, two or three crime scene photos sloppily pop out of it and you think, oh my God, I'm cooked.
[0:36:29]
And it's all a bunch of, you know, random paper that has nothing to do with you and they're just trying to intimidate you or that they tell you that they have witnesses who've, you know, ID due at the location and they have no witnesses. Or they say to you, what are you going to do about the video tape that I have, and they have no video tape, but it gets you talking or something. And they're allowed to do all of that and we could probably have a whole podcast on about, is that fair? Should that be allowed or whatnot?
[0:36:54]
The other thing they're allowed to do, and I thought this was kind of similar too, is in California, here we call him Perkins operations, where you're in the cell you're waiting to, you know, you've just been arrested, you have no idea what's going on, and they put another person in the cell with you to start chatting you up.
[0:37:12]
And what you don't realize is that's not a guy who just got arrested for a drunk in public or something. That guy is working with the government and that guy is trying to get information out of you. So, there's all these kinds of deceptive things that they're allowed to do. And I thought, OK, well, they got a warrant for a wiretap, which is extraordinary in a state case to begin with. And the Feds, they kind of do it far more often than they do in a state case.
[0:37:35]
So, they had enough here for a wiretap. They're already hearing information that we're going to get back to, which I feel is very damaging to the defense case in this case. But the idea of them feeding stuff to the podcast was I guess you could look at that as a brilliant step on the investigators part or is it a step too far, which you might be saying in that they're trying to manipulate.
[0:37:35]
But I'm wondering if they're feeding stuff – I guess we have to find out what it is. If they’re feeding false information and they're waiting for him to react to it, to say that that's wrong and he'd be the only one to know that that's wrong, I guess that would be one way of looking at it. But if they're feeding him, feeding them good information just to see how the reaction is going to be from Paul, like, oh my God, I had no idea they knew that, in one sense I agree with you, it's a little scary. But in the other sense, I find it to be incredibly clever. But getting back to --
Jack Rice:
[0:38:34]
Well, they do it now. They do it now. I mean, you're absolutely right. I mean, even when you have an active investigation going on, there is always going to be a calculation on behalf of the Police Department where they turn around and say what do we disclose right now? There are some aspects of a crime scene of an assault where they may literally say this was a stabbing or there were actually three stabbings or there was something.
[0:38:56]
And you may not want that out because you actually want that for confirmation and you can use it later. But you may not want to expose it.
Joshua Ritter:
[0:39:02]
That they released to like the news outlets and the newspapers and they want to withhold something. In case they have to interview someone, they want to know that they actually know what was going on. There's this one crucial piece of evidence. You're right, they do kind of do that now.
[0:39:15]
But this kind of baiting, right? That's what it is. They were baiting him to see if they could hear more information over these wiretaps. And maybe as the evidence continues to come out, maybe it did work.
[0:39:29]
But from what I've heard alone, and we talked about this a little bit earlier, about jurors hanging their hat on things, her saying – and I want to get the mother’s quote again that, “I need you to listen to everything they say so we can punch holes in it.” That may not be a confession and it's not coming out of his mouth, but that's something I think the jurors are going to really hang on to. What do you think?
Jack Rice:
[0:39:54]
Yeah, I do too. And yet at the same time, I could look at it like this. How long has he been in the crosshairs of this investigation? How long? Since 1994, 1995? Something like that? So, we're talking 27 years at this point.
[0:40:10]
How long should anybody -- I mean if I'm having to defend, how long should anybody have to defend themselves against allegations when nobody could ever bring charges, nobody could ever find a probable cause, nobody could certainly prove beyond a reasonable doubt, and this went on and on and on and on and on.
[0:40:28]
And at what point do you think it's reasonable for somebody to say you know what, let's punch holes in this like we have to punch holes in everything else because we're defending ourselves against every allegation and we have for almost 30 years, despite the fact that we didn't do anything? But it doesn't matter because they have their podcast to sell and they're probably giving another selling energy drinks and whatever the hell else they sell and so therefore they're just using my life as something to grab onto so they can use it as a traction. That's what I am to you, I am just traction to you. How dare you, Josh. How dare you, Josh? I’m angry.
Joshua Ritter:
[0:41:09]
I like it. I like it. No, it’s a really good point, I mean you could easily as a defense attorney, say, hey, when she's saying “Poke holes in it”, that's because this man has been living this life defending himself against these outrageous allegations for the last several decades. And he knows this case better than anybody else, and so he can poke holes in how they're trying to pin it on him.
Jack Rice:
[0:41:35]
But the problem is the defense has to now do that and what prosecution has to say is oh, we're not saying this is all it's about. This is just one more labeled thimble full that's filling up that bucket. That's all. That's all, nothing more. But isn't it interesting that her response was – because you would know what's wrong, because what? Because you did it. You did it.
Joshua Ritter:
[0:41:59]
And it goes back to what we talked about before. Jurors love that kind of consciousness of guilt sort of stuff that –
Jack Rice:
[0:42:06]
They do.
Joshua Ritter:
[0:42:07]
They are constantly placing themselves in the position of the defendant and they say, would I have run to Hawaii if I were innocent? No. Would I be having this type of conversation with my mom if I were innocent? No. And they start to hang their hats on that type of stuff.
Jack Rice:
[0:42:22]
Isn't it interesting? We've seen this so many times where somebody makes an allegation against you and you all have jurors say this and I've heard lots of people say the first thing, I would never plead guilty to something that I didn't do. And my response is, really? Let me give you a couple of examples.
[0:42:39]
And I can run people through and it's like, you know what somebody could say I did something and if I lose, I go down for 25 years. Or I can walk on a simple charge that puts me on probation right now. And I could prove that I was somewhere else but I'd have to go to trial and convince the jury that I didn't do this horrible, heinous this thing.
[0:42:58]
I don't know, man. Juries do weird stuff all the time. And they have absolutely convicted people who were innocent, not just not guilty, but absolutely innocent and sentences project.
Joshua Ritter:
No. I mean, we've got the best – I feel like we've got the best system in the entire world here still but you're right. Sometimes, sometimes things slip through their tracks.
Jack Rice:
[0:43:20]
You know what I have taught prosecutors and defense attorneys all over the world. So, I mean, I was working a couple of times I was in Republic of Georgia. This was behind the Iron Curtain and watching what the Georgians were trying to do.
[0:43:35]
I've taught in central Russia. I've taught in Uganda, Kenya, South Sudan, Tanzania, elsewhere and you got to realize what this system is and who we are and why it matters so much. So, when we talk about rule of law, and this is maybe my parting shot dare I say it this way, is I remember I was in South Sudan in in the capital, it was called Juba distress, about four years ago and the Civil War was raging on both sides of the city.
[0:44:05]
And I was sitting down with the senior judge in the court room and what he told me was this, he said, you know what, Jack – and I was talking about rule of law in this very highfalutin way, and I'm embarrassed now as I think about it. And he looked at me and he just said, you know, rule of law is a great thing until six guys with AK-47 walk in and cut you in half and they cut you in half.
[0:44:27]
And my response is I went back into my courtrooms here in the United States, I thought to myself, damn yeah, just shut my mouth and be really thankful and just fight the fight. So, I don't shut my mouth very well but I guess I still fight the fight. Just like you.
Joshua Ritter:
[0:44:43]
You’re still fighting the fight.
Jack Rice:
[0:44:45]
Just like you.
Joshua Ritter:
[0:44:44]
Still fighting the fight.
Jack Rice:
[0:44:46]
That's right, baby. This is all we got, right.
Joshua Ritter:
[0:44:50]
Jack, it's always a pleasure. Thank you so much for coming on this week. Tell us where can people find out more about you.
Jack Rice:
[0:44:57]
You could find out more about me at jackricelaw.com. That's the website. But I mean I do a bunch of stuff, you'll see me. Heck, you and I are on sometimes together in various places. I do a ton of core stuff and I'm going down to Atlanta again here pretty quick.
[0:45:13]
And so, I just do a ton of stuff on sort of wherever they want me. They just cart me out and you know, prop me up and tell me to start talking. They stick nickel in me. I don't want to talk about where, it's just a frightening perspective. Just go with it. It'll be fine.
Joshua Ritter:
[0:45:30]
Love it.
Jack Rice:
[0:45:31]
Just relax. Just relax. You’ll be fine.
Joshua Ritter:
[0:45:35]
We're looking forward to seeing you again. And I'm your host, Josh Ritter. You can find me on Instagram and Twitter at JoshuaRitterESQ. And please check out my new website, joshuaritter.com. And you can find our Sidebar episodes wherever you get your podcasts.
[0:45:49]
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 #TCDSidebar. And thank you for joining us at the True Crime Daily Sidebar.
