Kim Kardashian’s SEC fines; Brad Pitt abuse allegations; Jury deliberates in Kristin Smart case
In this episode of True Crime Daily The Sidebar Podcast
Kirk Nurmi joins host Joshua Ritter to break down the biggest cases making headlines across the nation. They discuss Kim Kardashian’s hefty SEC fine for promoting a cryptocurrency, the countersuit leveled by Angelina Jolie against her ex-husband Brad Pitt, ongoing trial delays as the suspect in the Waukesha Christmas parade massacre represents himself, and the closing statements in Paul Flores’ murder trial.
Tweet your questions for future episodes to Joshua Ritter using the hashtag #TCDSidebar.
Joshua Ritter:
[0:00:11]
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.
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 are recording this on Tuesday, October 6th, 2022.
In this week's episode, we will cover the SEC fining Kim Kardashian in excess of $1,000,000 for failing to publicly disclose a paid endorsement for cryptocurrency on her social media. Plus, allegations of Brad Pitt's emotional and physical abuse detailed in a suit filed by Angelina Jolie against her ex-husband. Also, the ongoing outbursts of Darrell Brooks, who has chosen to represent himself in the murder trial of the Waukesha Christmas parade massacre. And finally, we'll talk about closing arguments in Paul Flores’ trial for the murder of Kristin Smart as the jury continues their deliberations.
Our guest today is Kirk Nurmi, a former criminal defense attorney, author, public speaker and cancer survivor whose work speaks to the power of finding joy in your life. Kirk, welcome.
Kirk Nurmi:
[0:01:24]
Josh, thanks. It's a pleasure to be here. I look forward to talking about all these fascinating cases with you.
Joshua Ritter:
[0:01:29]
It's our pleasure to have you come. Before we jump into these things, can you tell us a little bit about your background and what the current work is that you're involved in?
Kirk Nurmi:
[0:01:37]
Sure. At Alaska, we’re invited to work with the Public Defender’s Office in the Maricopa County, which is one of the largest court systems in the nation. I did exclusively criminal defense work for first ten years. So, my career that included death penalty work. As a matter of fact, the last five or so years of my career was doing a death penalty litigation. People know me most interestingly from the Jodi Arias case, the case that got worldwide attention.
After that, you mentioned – you kind of mentioned I was a cancer survivor. After that case, I concluded two and a half years after it started, cancer came into my life. And I decided it was time to make some changes in my life. And I've written a book because Ms. Arias had told some lies about me and I felt like I was ethically entitled to respond. The bar took a different opinion and they wanted to suspend me for four years. But I asked the disbarment because when I made the choice to go onto the chemo chair, I didn't want to leave my remaining days away. I had my prior days. I didn't want to just run out the clock as a lawyer and I knew if I had that safety net, I wouldn't be able to resist going back.
And so, once asking for disbarment and becoming a cancer survivor, I started the journey of writing several books. I have eight total now.
Joshua Ritter:
[0:03:00]
Wow.
Kirk Nurmi:
[0:03:00]
And taking care – taking better care of myself. I really got on the journey to do that once I went from cancer survivor to my cancer being in remission to being cancer-free, which is something you hit at the five-year mark. So, once that happened, just with synchronicity I connected to the great people at Radical Body Transformation. And I've been working their program and we'll have two fitness shows to kind of document part of my journey and a lot of inspirational stories coming out on Amazon Prime next year.
Joshua Ritter:
[0:03:32]
Wow, that is fantastic stuff. I'm really excited to hear about that journey of yours. And we're excited to hear your thoughts on these cases. We've got a wider range of things that we're going to be talking about here, so let's take a look.
First, out of Washington D.C., billionaire influence or Kim Kardashian has reportedly agreed to pay $1.26 million in SEC charges after she failed to disclose a payment she received to promote Ethereum Max. According to the allegations, those promoting a stock are required to disclose that they have received payment in exchange for their promotion.
Though she did include a hashtag ad denotation in her post promoting Ethereum Max’s , EMAX tokens, she failed to disclose that she was paid $250,000 for the post. This isn't the first public figure to face scrutiny over the promotion of Ethereum Max, with investors also leveling suits against Paul Pierce and Floyd Mayweather for the promotion of the cryptocurrency.
All right, Kirk. So, while $1.6 million is a lot of money for a lot of folks, it's not that much money for Kim Kardashian. Do you think Kim was in jeopardy though of possible criminal charges from the SEC referring this over to the DOJ given the size of the fine that they did levy against her?
Kirk Nurmi:
[0:04:55]
You know, it's hard to say because I think it would really relate to this idea, what you mentioned Josh, is the idea of ad. I mean to me, there must be another most meaning the violation must be the most technical because it seems like she was acting in the spirit of the disclosure you have to be paid. To me, that somebody’s making an ad, that means they were paid to do that, right.
So, I think just looking at that plain language, it looks to me like it might have been pretty tough bringing a criminal charge, given her intention, you know. And we have to have an act – we have to have the intention to have a crime, right? But it's certainly possible, and it's someone who is, my understanding and really hoping to be a lawyer in California, she's probably looking to put this behind her quickly. So, my guess is that that might have been a possibility but her real motivation was to just get this out of the headlines.
Joshua Ritter:
[0:05:48]
Yeah, I agree with you and good luck to her on that. It seemed like everybody was covering it for a while there. But you got to imagine, she's got a team of lawyers who were dealing with this. And I agree with you, it seems like she had somewhat of a defense by putting in that hashtag, you know, alerting people to the fact that this was an ad. You would assume that that means that she's somehow getting compensated for it.
But still, the SEC, like I said, I don't think that's a small fine. I mean to anybody else that would be a large amount of money. So, they – especially because it's several multiples of what she apparently got paid for the ad.
My question, I wonder, is it sounds like now this Ethereum Max is reportedly under investigation for allegedly operating one of this kind of pump and dump schemes where they try to really boost up the price, they all make a profit, then they sell it out, and everybody else who invested in it, meaning her millions of followers who may have listened to her advice, they get left with the tab. Do you think that brought more attention from the SEC giving that kind of speculative nature of the investment?
Kirk Nurmi:
[0:06:53]
Perhaps so and but the question that comes to my mind is, as an actor, is does she have a duty to investigate all that before she goes forward and puts an ad? I mean, she's being hired to put forth an ad. I don't know that that should put a duty on the actor because that's essentially what they are, you mentioned other public figures. They’re public figures, actors, influencer, whatever we're going to call them these days.
It's the idea that, you know, are they to investigate everything behind the company that they're going to aid by their employer in essence? To me, that kind of shifts the burden a little bit when you were talking about defining everything, I think yeah, the fine is not right.
But also, you have to think about too what would her litigation call (inaudible). Or you have to think the best price factored in there too and just wanting to wash your hands with this whole thing because, you know, he might have action against the company that hired her, but they might be insolvent by the time she gets there so.
Joshua Ritter:
[0:07:51]
Yeah. Along with this, it appears like she might be the first of several. We already mentioned a couple of athletes, but other influencers are apparently being investigating. When I use that term influencer, I mean people who just have such a social media presence that, you know, here she is for one post getting $250,000 so you can imagine the value that that type of a post has to people who want to advertise using her and others like her to promote their products or cryptocurrency or would have it.
Do you think this is maybe a sign that the SEC and the government at large views these influencers far less as just kind of social media folks and that they're more kind of in the era of being legit businesses that should be under the same type of regulation?
Kirk Nurmi:
[0:08:40]
Yeah, I think we're seeing that they are being treated as legit businesses. And to some degree, I think they should be because you mentioned, you know, if they're going to pay her X amount of money or whatever, it's Kim Kardashian or any influencer, if they're going to pay them to promote the product, they assume that they're going to get return on their investment, right, that they're going to sell more product, get more money than they would have if they didn't pay that particular touch.
And you're right. I mean, you think about these people, whether they're Kim Kardashian or somebody on TikTok who's – who maybe as older guys haven't heard of, it's got 10 million followers and making, you know, as an influencer. I do think the SEC is moving towards the fact that these people are legitimate businesses. They are worthy of scrutiny in that regard. And I think obviously we're seeing that with Kim Kardashian’s case.
Joshua Ritter:
[0:09:29]
Yeah, yeah. Well, sounds like she got herself out of trouble for now, but I bet you she will think a little more carefully the next time she's willing to take some money to kind of promote a product that she's just not that familiar with.
Moving on now, though, to Los Angeles, California. Angelina Jolie has filed a countersuit against her ex-husband, Brad Pitt, in the legal battle over a French winery the couple shared. According to Julie, negotiations between the former couple to sell their shares in the winery broke down over the terms of a non-disclosure agreement that would bar Julie from speaking publicly about Pitt’s physical and emotional abuse.
The lawsuit alleges that Pitt acted abusively towards Jolie and their children on a 2016 private flight from France to California. According to Jolie, the dispute began after Pitt accused Jolie of being “too deferential” to their children. Pitt is accused of choking Jolie, then choking one of their children who came to her defense.
He later allegedly poured beer on Jolie and beer and wine on the children. So, really, awful kind of stuff of what's being alleged here. The incident, it was investigated, however, by the FBI in 2016 and charges were never pursued. Though, this was reportedly the last straw for Jolie before seeking an end to their marriage.
First off, Kirk, this was already investigated by the FBI. Charges never materialized. Do you think that that's the end for any kind of criminal charges for Brad Pitt?
Kirk Nurmi:
[0:11:02]
I think so. I mean, I don’t know the statue limitations on something like this just off the top of my head, but I think so. I mean there's the claim that Jolie is making that it was investigated and that supposedly an FBI agent found probable cause. We don't even know if that part of it is accurate, right? Because the affidavit, as I understand it, is heavily redacted is not attached to this filing of hers at least in a way that let us know, whether or not, that is the truth or not?
So, you know, I mean it's hard not to, you know, go back to the Amber Heard-Johnny Depp trial when we talk about allegations like this, and we talk about it in the terms of the end of a relationship because anybody can make allegations, right. And, you know, this having been on both sides of the law in divorce cases, what have you, it's so easy for somebody to make an abuse allegation against their partner, soon to be former partner, because they want to gain leverage in whether it's custody or some kind of property dispute or anything else.
So, what we're seeing here, it's just a private jet and a, you know, winery in France as opposed to what you or I might encounter in day-to-day life.
Joshua Ritter:
[0:12:11]
Right. Later, I'm working on the jet. But I wanted – I'm glad that you brought up the comparison to Depp and Herd because I wanted to talk a little bit about that and how these types of allegations are sometimes used as leverage in these family law cases. But I wanted to touch on a little bit first, just the allegations that she’s making in the idea that it did – the FBI didn't bring any kind of charges and she's saying there was some sort of declination from the U.S. Attorney's office.
But if there are corroborating witnesses, because even in her own allegation, she's saying that the children were involved, I imagine there's other personnel on that flight who may have witnessed things. If there's these people who witnessed it, and they came forward to the FBI, and the FBI did a thorough investigation, which they always do, I find it hard to believe that either, one, those corroborating witnesses existed, or two, there was any kind of evidence here, because it seems like if they could corroborate it, they would have brought charges. Don't you think so, in spite, of his celebrity status?
Kirk Nurmi:
[0:13:19]
Yeah, I mean, a lot of people might be suspicious saying, oh, he's Brad Pitt, he's rich, he's going to get away with whatever he wants to. But I think, you know, your question brought in the operative word being if, if there were these people, if there were these accusations, if these people came forward.
And my guess is none of the above happened because I don't see the FBI turning a blind eye to child abuse in the airways just because it’s Brad Pitt. I don't think it works that way, right, if you have that kind of evidence. My guess is that kind of evidence did not exist because if there is, he probably would have been charged. We're talking six years now, nothing more seemingly come forward.
So, you know, as I said earlier, anybody can make an allegation. We saw that in the Amber Herd case, right. She made all kinds of allegations, none of which were supported. So, until I see proof of the incident or and or proof that the police or the FBI rather found probable cause, you have to believe that they are just allegations without support.
Joshua Ritter:
[0:14:22]
Yeah. The other thing you mentioned that I wanted to kind of flush out some more is this idea that we have to remember this is being brought up in a litigation about the sale of a winery, right. So, this has nothing to do with her trying to, you know, get criminal charges or what? So, explain to us, and you kind of talked about it, how this is used as leverage in these cases and that we see this unfortunately pretty often in cases involving large net worth divorces or separation of assets where all of a sudden out of the word work comes all of these charges.
And I'm not trying to make any kind of determination here about whether or not Jolie is being truthful or not, but do you think that the teeth was taken out of these allegations by the fact that the FBI did essentially clear him?
Kirk Nurmi:
[0:15:16]
Yeah, ultimately, I think that is the case. I mean, I think they're being brought up now as a way to just a simple act of revenge using, well, he wants to do something, she's dissatisfied with it. You know you can't – for the most part, you know, once you put in a legal brief, does not expose you to defamation. Unlike Amber Herd, you know, an op ed if you will.
So, yeah, I mean this kind of things you see it all the time. Unfortunately, it's not just about vineyards. It can be about, you know, toasters and dogs and different things like that because people get so invested and their feelings come into play and egos come into play. I'm not going to let him do this again. I can’t let her do that to me. And it just becomes this human nature.
And then when these things come up, the other party – the greed party, in this case was Jolie is going to throw everything against the wall to muddy someone up. You're going to make me do something that I don't want to do so, I'm going to make you pay. Man, it's simple, it’s vengeance. That's all that drives these allegations.
Joshua Ritter:
[0:16:19]
Yeah, yeah. It really, really gets messy in some of these situations. Well, we'll keep an eye on it. Let's move to Waukesha, Wisconsin. Accused of driving his SUV into a Christmas Day parade, leaving six dead and dozens injured. Darryll Brooks was allowed to act as his own counsel by Judge Jennifer Dorow last week.
Brooks, who considers himself a “sovereign citizen”, has clashed with the judge and made multiple outbursts prior to the jury selection process, which began this Monday, October 3rd. The jury selection process saw more disruptions from Brooks, which forced the judge to take ten recesses before ultimately forcing Brooks to watch the court proceedings from another room via video link. We have some footage of that. Let's take a look at that now.
Judge Jennifer Dorow:
[timestamp]
Alright, Mr. Brooks. You have got to stop. It's fine if you object, I will rule on it as I deem appropriate under the rules of evidence, which, by the way, I provided a copy for you. See that big book over there? It has the criminal statutes. It has the traffic code and has the rules of evidence.
Darryll Brooks:
[0:17:21]
No, I don't see it. I don't see. I don't see.
Judge Jennifer Dorow:
[0:17:26]
Well, it's on your table. It's behind the microphone and it's there. I've provided it to you as a courtesy so that you have that available to you.
Darryll Brooks:
[0:17:33]
You did not provide anything to me.
Judge Jennifer Dorow:
[0:17:38]
All right. I'm directing the bailiffs to remove him to the other courtroom. I've provided ample opportunity for Mr. Brooks to abide by the simple rules of decorum and civility.
Darryll Brooks:
[0:17:46]
I've never – I've never taken anything. I’ve never taken anything, Your Honor. Your Honor, I don't fit or agree to what you are doing.
Judge Jennifer Dorow:
[0:17:55]
He is – your lack of consent is noted for the record.
Darryll Brooks:
[0:17:56]
I don't give consent. I don't give consent to an estoppel. I don't give consent.
Judge Jennifer Dorow:
[0:18:01]
I'll make a more full record when we are open again to the public.
Darryll Brooks:
[0:18:04]
I don't give consent to estoppel. I don't give consent to be removed from being able to exercise my constitutional right.
Judge Jennifer Dorow:
[0:18:10]
Adam reporter the record should reflect the court is stepping off the bench. You may step off if you want.
Darryll Brooks:
[0:18:14]
I move – I move for a motion to dismiss. You still haven't even ruled on the claim.
Joshua Ritter:
[0:18:18]
Remarkable stuff that the judge has to deal with in this case. Darryll Brooks faces 77 total charges, including six counts of first-degree homicide and over 60 counts of reckless endangerment.
First off, Kirk, I'm going to ask you to second guess the judge here if you choose to, but do you think she made a mistake in allowing him to represent himself?
Kirk Nurmi:
[0:18:42]
I don't think she did, because I think really – and again, I practice in Arizona my whole career, but the case, even on a federal level, seems pretty clear that if a defendant wants to move forward as his or her own counsel, that right is pretty absolute. Now, you could see when they went through this, they took forever, right? I mean, he was so obstinate. He was crossing out words and things of that nature.
You know, she did her best to try to prevent him from doing something. She knows the law and she knows that ultimately she's back into a corner that she cannot necessarily force council on him if he doesn't want it. So, ultimately that was a battle that he was going to win. So, there's – it probably would have been a mistake to do otherwise, because had he asked for council or operates his own counsel and had that right being denied, you get convicted as possible as we come back and appeals this way ultimately diminishes their opportunity to have an appeal on the Council.
Joshua Ritter:
[0:19:44]
Yeah. And we're dealing with the case too where he doesn't have standby which is interesting because I've dealt with pro pers before, but usually there was standby assigned and the judge had to explain to him here that this – that's not – this is not that situation that if he's in this, he's in this for the entirety of the case. This thing is going to drag on forever.
No, I mean, if this is how we're getting even through jury selection, do you think this ends in a mistrial just because of his shenanigans, or is this something that they were just going to have to trudge through?
Kirk Nurmi:
[0:20:21]
I think it's going to be something they have to trudge through because I’d say, my experience was that there always standby counsel as well. But – and let’s just face it, this guy is taking this pro per counsel thing to a different level. I mean I've seen pro pers in the courtroom but, you know, objecting every two seconds, holding assignments, is objecting, you know, taking off his shirt, throwing shoes at things, I mean this is a new level of Austin, right.
And he's certainly probably going to persist in this and I imagine ultimately, he probably will be trying this case in courtroom for the safety of everyone involved, his own as well. So yeah, he's certainly taking it to the next level. But ultimately, I think it's something that's just going to have to be trudge through because of the decision the courtroom, the Judge made earlier. He wants to represent himself, this is what it's going to be.
Joshua Ritter:
[0:21:14]
I mean he's still on trial for murder here. And I realized that he's kind of got his own very strong thoughts on, whether or not, he needs to answer to this court and everything else. But a jury is still going to have to, you know, make a decision about whether or not he's responsible for these murders here.
And again, this might be one of those things where it's just such a convincing case that, you know, I don't care how great of a lawyer he had even working for him that this – there's just so much convincing evidence. But do you think he's just so kind of harming his reputation with the jurors that this trial isn't going anywhere for him anyways? How do you – I guess my question is how do you think the jurors are reacting to all of this?
Kirk Nurmi:
[0:22:01]
Yeah. I don't think he comes in with a good reputation, Josh. I mean – and let's face it too, and I think you hit on the key here, even if he had the best counsel available to you, the outcome isn't going to be any different right. I mean how many times do you have a crime on tape. When the massacre is on tape and you know who was behind the wheel, what attorney is going to be able to do anything? He can't say, don't believe your lying eyes, right.
Joshua Ritter:
[0:22:25]
Right. Right.
Kirk Nurmi:
[0:22:27]
So, ultimately the conviction is a formality in this case. It’s just how much obstinance, how much, you know, of a (inaudible) he’s going to cause in the courtroom getting there, that's ultimately it. And I think on some level, he probably knows that that is the case too so he just wants to cause as much commotion as possible.
Joshua Ritter:
[0:22:50]
Yeah. One last point on this, Brooks notably withdrew a plea of not guilty by reason of mental disease before his counsel was dismissed and he was allowed to represent himself. With all of these antics, with the idea that there is possible mental disease here at play, with the way he's obviously behaving is not as a person who has all their faculties about him.
And even the crime itself, it could arguably be a demonstration of someone who's dealing, you know, with some sort of mental distress, not trying to excuse it at all, but obviously it's somebody not acting, you know, with all their mental faculties about them. Is this just going to be a nightmare on appeal? I mean, are we going to be dealing with this case for years and years to come?
Kirk Nurmi:
[0:23:35]
You know, honestly, I don't think so. Because if the ground they're standing on in terms of making a determination for competency of trial and that's all that really matters. And keep in mind, a lot of people, you know, a lot of viewers might understand there’s a difference between an insanity plea type of thing when you're making a case because you're talking about at the time of the incident. And his competency to stand trial is assessed later closer to the proximity of the trial.
Joshua Ritter:
[0:24:02]
Could you explain that to us? Because that is something I wanted to talk about, but explain the difference there, yeah.
Kirk Nurmi:
[0:24:06]
Sure. When you're talking about an act, when you’re talking about the criminal act, in this case, Mr. Brooks’ case was running the people over driving through the crowd in Wisconsin. An insanity plea will look at his mental state at the time that he was driving, that are the moments beforehand, the moments after him, that sort of thing. And that would be the only thing that would be relevant.
When after he's arrested and what have you, and then there's an issue of his mental health, the issue becomes his competency to stand trial. Not to represent himself but to stand trial, meaning he can understand the proceedings against him, he knows who the judge is, he knows that the prosecutor – I mean there’s a very, very low bar. You know, Josh, very low bar.
And once he can understand that, that makes him competent to stand trial. And sadly, the way it could play out is in that competency, that low bar, the competency to stand trial is, if he clears that, he can also represent himself.
So, the disparity is in the point of time at the trial versus during the time of the event. So, I don't think that's going to cause an appellate issue because, one, that would ultimately, I think I'm under the purview of ineffective assistance of counsel which is really waving by giving up his right to, you know, to have an attorney. So, representing himself so that it's forfeited.
So, ultimately, you know, I think this might be – when I go back to what we’re talking about earlier, the trial might take longer. It might be a tougher hall to get through this trial with new appellate issues and the examination of his mental health would probably be much shorter because there's going to be a lot less friendly appeal, and he's not going to make a good record on appeal. Let’s face it.
Joshua Ritter:
[0:25:49]
Yeah, yeah. And it's unfortunate that underlying all of this is the loss of all these lives and how many people’s – you know, the families of all those folks and how they were affected and at their time when they would be seeking some sort of justice and closure to all of this that we're dealing with these antics of this person, it's just really unfortunate how it's almost continuing to victimize these poor people.
Moving along to Salinas, California. After 11 weeks of trial with multiple delays, the jury has finally begun their deliberation process for the murder of Kristin Smart. Paul Flores is charged with her murder, while his father Ruben Flores is charged with accessory after the fact for allegedly helping to conceal her body.
Smart was a Cal Poly freshman who disappeared in 1996, though her body was never found. She was declared dead in 2002. No charges were brought prior to the arrest of Paul Flores and his father in April of 2021.
And the prosecution's closing arguments, the prosecution told jurors that Paul Flores not only killed the 19-year-old after attempting to sexually assault her, but that Flores had “hunted” the freshman for months, often appearing where Smart went, including her dorm room. The defense rebuked these allegations, making the argument that the prosecution case is entirely circumstantial, with no concrete DNA evidence leaking floors to the crime.
Kirk, Jump right in. I know you've watched this closely. Do you think that the prosecution was able to prove their case after all these weeks?
Kirk Nurmi:
[0:27:29]
Well, you know, when I watch a lot of these trials, I mean talking Court TV, what have you, I usually can get a sense of where a particular trial is going. But this is one of those instances, to me, too close to call because you talked about the fact that the crime happened in 1996. And there is a real lack of evidence.
I mean I think the state’s theory sound it's probably true. We heard about him lurking around her – his behavior, what have you. We know that there's a little bit of DNA evidence at the father's home which would kind of implicate them both. But right now, to me, it seems like the prosecution just has a theory.
Joshua Ritter:
[0:28:10]
Yeah.
Kirk Nurmi:
[0:28:11]
Maybe a really good one. But what, you know – and they've gone, they kind of maybe gone farther than they should have talking about sexual assaults and things like that because they don't have any other evidence to support that allegation. They just have a modus operandi, if you will, and I think that's certainly one of the issues that’s going to be brought up on appeal if he is convicted.
But yeah, to me, I think this is too close to call because if the jurors really hold the state to the burden, it's going to be tough to convict either one of them based on just a simple theory, even though it's a really good one because we have to remember too, it’s 2022 and I'm like in 1996, what we might call the CSI effect is in full effect with jurors. They want to see tangible evidence in order to make a conviction. You're asking a juror – when it comes with the younger Flores, you're asking the jury to put someone away from murder for life based on just a theory. And if those jurors hold to their burden, it’s possible that there could be an (inaudible) on this case.
Joshua Ritter:
[0:29:14]
Yeah. No body, no real forensics, no eyewitnesses, no confession, it's a cold case. It's about as difficult as you can get for the prosecution. One of the strongest pieces of evidence that I felt in this case was these other women who are in uncharged sexual assaults had claimed that Paul Flores had assaulted them on different occasions. And it's important to understand how this came in.
And you touched on it a little bit, but they came in as – in other words, he's not facing trial for those allegations, but they used that as evidence that he committed a crime here because they alleged that this murder took place during the course of a sexual assault. This is my long-winded way of getting around to the fact that if you believe that there's insufficient evidence that a sexual assault took place during the murder of Smart, then you shouldn't have been allowed to get in this other evidence of sexual assaults. And if that's what the jury is going to hang their hat on, I agree with you, and I'd like you to kind of comment on this, could that present a fairly problematic issue on appeal if there is a conviction in this case? Because it's almost like a house of cards that if you don't have the sexual assault, then you don't have this evidence, and that evidence might have been your strongest evidence. What are your thoughts?
Kirk Nurmi:
[0:30:38]
Yeah, I agree. Because – I agree with you that that is ultimately the strongest evidence. That’s why I was saying it's – they have a theory, a good theory about this sexual assault, murdering him, banging around her, what have you. But you're right, in terms of the admissibility of this evidence, it does seem to me to be very ill advised by the judge to allow this evidence in because you hit on the key point. You know, in Arizona, we had something called 404C which is sexual propensity evidence. But there has to be a link and we only have half the sandwich, if you will.
Joshua Ritter:
[0:31:13]
Yeah.
Kirk Nurmi:
[0:31:13]
We have these other women claiming that he sexually assaulted in an uncharged act but there's none making the idea. There's no evidence, period, leading the idea that he did this with Miss Partly, by everybody, what have you, no DNA, et cetera. So, that does become highly problematic because you're saying, well, he did it this time because he did it before. This time, he had to take it further, but ultimately the rule is you can't be convicted on prior bad act. It cannot be based on, you know, solely on prior bad acts.
And I think with Virgil Bill problem that’s why I was very surprised when the judge let it in because, you’re right, it usually works from what the evidence they have, to link it back to prior bad acts. And this time, you're taking the part of that act and hurling them into the evidence of the chart. I don't think that the rule of 404 is going to work that way and I do think that's going to be highly problematic, excuse me, on appeal.
Joshua Ritter:
[0:32:11]
Yeah. And as we're talking about this, it's a really nuanced topic that we're discussing, you know, in getting your head wrapped around it. You really have to kind of have a background in the law and understanding propensity and how it can be used and when it can be used by creating that proper Nexus. All of which might be lost on the jurors, right?
I mean jurors are kind of common-sense people for the most part that might not have any kind of legal background and are they going to be able to split these hairs and parse this and go well, you know, what if the jurors don't believe this was in the course of a sexual assault? What if they just believe that he – well, I guess if they believe that he murdered her, then they believe that he murdered her. But if they don't believe a sexual assault took place, but they're going to, they're going to hinge their verdict on the idea that other women came forward, it just creates, like I agree with you, such a mess and such kind of bootstrapping of an argument by the prosecution that I would not doubt that we see issues like this on appeal.
Kirk Nurmi:
[0:33:13]
Yeah, ultimately because I think biggest way I can frame it is it’s completely backwards. I mean you're trying to confirm a conviction based on prior bad acts, but you don't even know that you have that bad act in the trial. And you're right, the jurors are not going to maybe understand that nuanced kind of deal. They're going to look at him, okay, he's a bad guy. Okay, well, yeah, he's a bad guy, it would appear.
But at the same time, that's not the basis for conviction. It has to be proved beyond a reasonable doubt. That's why I say if the jury fixates and uses that CSI effect to say okay, but where is this sexual assault? Where is this thing? If they look at the state’s case with scrutiny, I think they're going to have to wait towards the coil.
Joshua Ritter:
[0:33:56]
Yeah. And I do agree with you that I think the state definitely has a very good theory. I think there's a lot of stuff pointing towards Flores. I think it's one of those cases where who else could have done this. And so I would hate for this not to bring closure to the families, but to just kind of create other ongoing issues down the road but we shall see if they even come back with the conviction at all.
In any case, Kirk, thank you so much for coming on this week. Where can people find out more about you?
Kirk Nurmi:
[0:34:28]
The easiest place to find me is go to kirknurmi.com. It has a link to my books and what I'm doing in terms of fitness and healthy weight loss if people want to get involved and nurture themselves and I'm @nurmiunchain on Twitter and Instagram.
Joshua Ritter:
[0:34:46]
Fantastic. And I'm your host, Josh Ritter. You can find me on Instagram and Twitter @JoshuaRitterESQ and 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.
