Lori Vallow seeks to avoid death penalty; Prosecutor in ‘Rust’ shooting steps down – TCD Sidebar
In this episode of True Crime Daily The Sidebar Podcast
Franz Borghardt joins host Joshua Ritter to break down the biggest cases making headlines across the nation. They discuss pre-trial motions filed by Lori Vallow’s defense, extended deliberations in the murder trial following XXXtentacion’s death, and a special prosecutor in the “Rust” shooting stepping down from the case.
Tweet your questions for future episodes to Joshua Ritter using the hashtag #TCDSidebar.
Joshua Ritter:
[00:00:10]
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 in Los Angeles and previously an L.A. County prosecutor for nearly a decade. You can find me at joshuaritter.com. We are recording this on Friday, March 17th, 2023.
In this week's episode, last minute motions by Lori Vallow, the mother accused of killing her two children as her trial nears its starting date. Also, the jury's extended deliberations in the case of a murdered hip hop star. And finally, more updates on the Rust onset shooting. A special prosecutor in the case has stepped down.
Today, we are joined by Franz Borghardt, a former prosecutor turned defense attorney and legal commentator you can catch on Court TV and many other outlets. Franz, welcome.
Franz Borghardt:
[00:01:03]
Thank you so much for having me, guys. I love Sidebar. I'm flattered and humbled to finally be on here, so I'm excited to have a conversation with you.
Joshua Ritter:
[00:01:13]
Oh, well, thank you very much for the kind words. Before we jump into these cases, I know you've got a lot of thoughts on these that I'm very curious to hear. Could you tell us just briefly about your background and what your current practice is?
Franz Borghardt:
[00:01:24]
So I started as a judicial law clerk for a criminal court in the State of Louisiana. Then I jumped into the fun job of being a public defender representing poor folk for about three years. I then turned to the dark side, depending on which side you're on, and was a felony prosecutor in Baton Rouge, Louisiana for about a year. And then I went into private practice.
Most of what I do, my practice is pretty much a criminal defense practice and most of what I do is federal criminal defense with a good amount of state as well. So in addition to all of that, somehow, some way I got into this legal commentary gig. And so, for some reason, people think that my opinion on things sometimes matters. And so I do that at a local and a national level.
Joshua Ritter:
[00:02:12]
Well, fantastic. And we know that you follow all these cases very closely, so we're really interested to hear your thoughts. So let's jump in. First, we're going to Boise, Idaho, whereas the upcoming trial for the alleged doomsday killer Lori Vallow draws near, an Idaho judge is expected to rule on several important motions leading up to jury selection in the case.
Lori Vallow and her husband, Chad Daybell, stand accused of the murder of Lori's two children. This is just so heartbreaking to me. Joshua, age seven, and Tylee 16, as well as Chad's former wife, Tammy Daybell. Vallow's case has seen numerous delays before trial, including multiple mental health evaluations.
At one point, she was even declared unfit to stand trial. Then she was found fit. And that's why we're proceeding to trial. And a recent move by Vallow and Chad Daybell to have their trials separated, which is also interesting.
Jury selection is set to begin in the case on April 3rd. Leading up to the start of the trial, the defense has filed several significant motions in limine. In a motion to compel, Vallow's legal team has asked for all statements made by her husband, Chad Daybell, to be turned over by prosecutors.
Now, get this Vallow's defense has received over 3000 recordings of in-custody visits with Chad. However, Chad continues to make phone calls and statements while he is at the Fremont County Jail. The defense has also filed a motion to exclude evidence that was allegedly disclosed last minute by prosecutors. A judge ruled that all evidence must be submitted prior to February 27th. However, Vallow's attorney claimed they received 5000 pages of evidence, along with 3000 phone calls and hours of video on the day of the deadline.
Most notably, Vallow's defense has also filed a motion to dismiss the death penalty due to what they are calling cumulative errors in the case, citing the media coverage and public knowledge of the case, along with limited time for mitigation specialists to weigh in on the case. These issues must be resolved prior to Lori's trial, slated to begin in April, and a case that has reportedly already cost the Idaho taxpayers over $3.6 million.
All right. A lot to digest here, friends, but just jump right in. And if you could first explain for viewers and listeners the importance of these motions in limine and what they are.
Franz Borghardt:
[00:04:33]
So the motions in limine set the tone for the entire trial, right? Knowing what's coming in, what's not coming in, what's going to be excluded. And generally speaking, both sides want to know because it structures everything. It's the foundation of your opening statement for your witnesses. And so there is a solace, Joshua, that comes with knowing, hey, what's coming in, what's not coming in.
More particularly in this case when you start having massive dumpings, and that's going to be the word I use of jailhouse calls, jailhouse video, whatever, it's like a haystack. It's not uncommon for the prosecuting entity to say, hey, look, here's 3000, here's 5000 calls. We may only use an hour of them.
Well, the defense still has to go through them for two reasons. One, is there anything exculpatory in there that may help their case? And two, you know, the things that the prosecution wants to use, they need to have context to them in the bigger picture.
So motion in limine to exclude past deadline or on deadline, well the remedy there is going to be probably, and I know this is going to come to a shock to a lot of people, a continuance, right? Judges are more apt, in my experience, more apt to say, you know what, I'm not going to exclude this evidence. I want the jury, I want the community to have the whole entire story. So defense, I'm going to give you more time.
I doubt that it's going to be an exclusion. I doubt that it's going to be an exclusion of evidence, 5000 pages. Well, you know, we're hearing about that, but what does that mean? Is it 5000 actual pages of discovery or is it like sometimes you get a report and it's 20 introductory pages and then two pages of actual narrative? Well, the response to that is, well, they still have to go through the 5000 pages regardless.
So I think what we're telegraphing here is a continuance of the file in lieu of suppressing or excluding these pieces of evidence. An alternative might be for the judge to look at the state and say, you know what, all this evidence, you need to tell them what you're going to use. You need to narrow these recordings down. Tell them what you're going to use.
But if I'm a crafty defense attorney, I'm going to say, well, Judge, I appreciate that, but that doesn't solve the bigger issue, that I have an obligation to listen to all this. So delay, delay, delay, one of the best friends of a defense attorney.
Joshua Ritter:
[00:07:05]
Yeah, I agree with you. I think a judge is probably going to be inclined to say, no, we're not going to exclude it. I'll give you the time that you need to go through all of it. But you're absolutely right, the stewards of the evidence is the defense, right. They can't just say, oh, well, the prosecution looked through it and they're only going to use these certain calls. What if there are other calls that are exculpatory or other calls that might be helpful to them? They have to, especially in a case of this magnitude where death penalty may be on, you know, an option, they have to go through all of this stuff.
My question to you, too, is, you know, it sounds like this was not a surprise issue and the judge gave them this deadline of turning over everything. And I cannot -- I find it hard to believe that they were only able to get there themselves together on the day of to turn over all this evidence.
To me, it seems a little bit like gamesmanship. I don't want to cast aspersions, but it just, if I were the defense in this case, I'd be very upset at having all of this dumped on me, to use your word, at the last minute. What are your thoughts?
Franz Borghardt:
[00:08:17]
Well, so a deadline is a deadline, right? So I'm not going to be hypocritical. I like waiting until the last minute sometimes to do what I need to do. So the question becomes, is the deadline a deadline in so much as, hey, you need to have it turned over by this date and nobody anticipated it being this voluminous, this much evidence, this much discovery.
That being said, it certainly seems reasonable based on the quantity and the scope of what we're talking about. It certainly seems reasonable with a straight face to look at the judge and say, Judge, look, this is a death penalty case. You know, you haven't yet ruled on our death penalty motion yet to exclude the death penalty, but this is a death penalty case.
And, Judge, how many times do you -- and they may not say this, Josh, but how many times do you want to try this case? You know, how many times? I mean, that is the tradeoff of seeking the death penalty, right, is it increases the stakes for everything, and it makes us all a little bit more skittish. And we give a little bit more time than we would. And, yes, the defense has every right to be like, hey, what the heck? You know, you guys knew, you had to have known, right.
Now, flip side is when we start talking about jailhouse calls, I can't tell you how many times I've had clients where I'm like, hey, they're listening, hey, they're listening, hey, they're listening. And they still produce. And I use the word produce because it's like they're on a film, like a movie set. They keep making new episodes of what we're going to talk about on prison calls.
So that is not totally shocking to me. I think more disappointing as a defense attorney. But that being said, 3000 calls, how many minutes is that? How many hours is that? You know, are we going to start -- I mean, there's only so many hours in a day. And so, the reality is and so your viewers know this, and I feel this is pertinent. A crafty prosecutor is going to say, well, Judge, I know I have an obligation under constitutional case law to give them anything that's exculpatory.
But again, the defense can't rely on that. The defense is like, well, you know, I appreciate that they have that obligation, Judge, but I also have an obligation to make sure I go through each and every little morsel of discoverable evidence that has been tendered to me so that I can make sure that I can represent my client to the best of my ability.
Coupled with that, another thing we haven't even talked about is what if the client wants to listen to each and every one of these calls, which is her right. It's her right to look at the evidence. I don't know about you, but trying to show a client who's incarcerated video or jailhouse calls that takes, you know, 3000 calls, maybe, I don't know, 2000 hours.
I'm just throwing a number out there. Somebody has to sit with her. And prisons don't like you know, let's just be candid, prisons don't let defense attorneys just have free reign of their facilities. So it requires some navigation. And I think that that may be a basis for a continuance. My client has a right to look at all this and Judge, how are we possibly going to prepare for trial and let her look at all this at the same time?
Joshua Ritter:
[00:11:36]
Yeah, really excellent point that I had not thought of, but she does. She has an absolute right to hear and see all of the evidence produced against her, personally herself. Interesting. Let's talk a little bit about the death penalty in this case. And I'm not trying to ask you to weigh in on your politics on the whole thing.
But I am curious, first of all, if you believe that the death penalty is reserved for the most serious of crimes. This, I think, would absolutely qualify. I mean, this is just heinous stuff to murder two children and perhaps the murder also of his ex-wife. Awful, awful stuff.
But sprinkled into that is this element of weird beliefs in doomsday coming. And that's kind of what may have brought this all on. And the fact that she has been in and out of kind of mental health crises, do you think that plays a role or should play a role in the judge's mind in making the determination whether or not to hold her responsible for the greatest penalty that we have?
Franz Borghardt:
[00:12:41]
So first, absolutely the type of case that has those what we call in the business, the aggravating circumstances, the aggravators that would rise a case under state law to a death penalty status and would allow a jury to find for a death penalty. That being said, the mental health components of this case may be the thing that saves her in the event that she's convicted.
Jurors, for good reason, Jurors sometimes don't like putting people with clear and evident mental health issues that may play a part in the case. And I'm not talking about a sanity defense. I'm talking about, hey, but for the fact that she's, and I don't mean this insensitively, cuckoo for Cocoa puffs. She might not have gotten to this point in life. And look, just to remind your viewers, unlike the guilt phase, one juror in a death penalty case can say, I think this is a reason sufficient for mitigation such that I'm going to vote life and that's it. One life vote is enough for it to be. So I think the mental health -- yeah, go ahead.
Joshua Ritter:
[00:13:54]
Not to interrupt you, but just to close that loop. If one juror does find that I'm not going to vote for death, it's not like we have a hung jury. It defaults to life. So that would be the decision right there that she would get life without parole. Sorry. Please continue.
Franz Borghardt:
[00:14:10]
Correct. And so -- well, I don't know if it's appropriate under the Idaho State law for the judge to make that unilateral decision. They filed the motion. So I'm guessing there is something that maybe they can hang their hat on with regard to the mental health components, which I like as an argument. Right. Generally, and look, I've been on both sides of this. I've handled murder cases where we had to decide whether or not we were going to pursue the death penalty. And as a defense attorney, I did a brief stint as a capital defense attorney.
Generally, a prosecutor in looking at the full scope and the full story of the defendant will think about, okay, well, what about this mental health component? Is this going to be an obstacle to me ultimately getting this defendant put to death if I get a death penalty verdict? And I think there's enough weirdness to this and I say weirdness in the sense of the weirdness of the entire factual circumstances of you have this cult like situation. You have this heinous crime. You have people that ordinarily, you know, I'm going to use the word massacre, people that on their surface would not be the kind of people you would think that would do this. And it's just like it's bizarre, weird.
I think you have enough mental health issue here to where it would give anybody pause as to her as to the death penalty. I don't know that the publicity is enough to take the death penalty off the table. And I think, candidly, a good death penalty jury selection process will address that. And if you can't get a veneer or veneer of people sufficient to impanel a jury, well, then you're talking about, well, maybe we need to change venues, maybe we need to move this to something else, or maybe we need to get jurors from outside of that.
That's not going to be what saves this woman in the event she's found guilty and in the event they vote death. The mental health components, the competent, we call it competency in Louisiana, the not being able to understand what goes on is going on and the ability to assist counsel with her defense and then her being restored. The question then becomes is, well, you know, how do we measure restoration? How do we know that like she's restored today? But during the trial, something may not happen.
And so we're clear. Trials are highly traumatic, volatile, you know, stressful, very emotional situations for all parties, including the defendant. Just, if I seem like I'm worked up on this is there's a pathway to her ultimately not getting a death sentence. And I get skittish only because of the quantity of money and the resources that the State of Idaho are going to use.
And that's not me being against the death penalty. That's just I like being a good fiscal responsible human being that if you're going to spend millions and millions of dollars to accomplish something, you want to make sure that the bridge that you're trying to bridge over a body of water is going over a river and not a puddle. So just I think there's a lot of issues for penalty phase for this defendant.
Joshua Ritter:
[00:17:27]
Yeah, interesting, interesting stuff. It's a lot of fascinating issues in this case. And it's just over the backdrop of, again, what can only be described as just a horrible, horrible tragedy to have lost these two young children and his ex-wife as well. Anyhow, we will continue to watch it and keep track of the developments in that case.
Let's turn now to Fort Lauderdale, Florida, where after seven days of deliberations, a jury is still contemplating their verdict in the murder trial of hip hop artist XXXTentacion, also known as Jahseh Onfroy. Michael Boatright, along with Derrick Williams and Trayvon Newsome, are all charged with first degree murder and armed robbery in the rapper's death.
Onfroy was shot in his BMW at Riva Motorsports in Fort Lauderdale after a black SUV pulled in front of the vehicle blocking the BMW exit. Two men then approached the vehicle before firing several shots into the driver's side window, striking Onfroy. The masked assailants then grabbed a Louis Vuitton bag from the victim, which contained $50,000 that the victim had recently withdrawn from a bank.
The perpetrators allegedly posted on social media following the killing, with pictures of them holding large amounts of money from the robbery. A fourth man involved in the robbery, Robert Allen, testified against the other three defendants after accepting a plea to the charge of second-degree murder. Allen testified that the defendants went out that day with the intention of committing a robbery and targeted the rapper, pardon me, after seeing him at Riva Motorsports.
All defendants face mandatory life sentences if convicted. However, the jury must decide separately on each man's fate, allowing any combination of the defendants to be convicted, acquitted, or hung on the charges. So according to Cathy Russon at Law & Crime, this is one of the five longest deliberations covered by that network. Franz, what is your take on this? Why do you think it's taking them so long to come to a verdict in this case?
Franz Borghardt:
[00:19:28]
So my assumption is always the longer the deliberation, the better it sits for the defense.
Joshua Ritter:
[00:19:34]
Kind of the -- I don't know where that comes from, but that does seem to be sort of the logic that you find out throughout prosecutors and defense offices.
Franz Borghardt:
[00:19:44]
So the mentality becomes is if the state proved its case beyond a reasonable doubt, it should be obvious, right? It shouldn't be something that takes seven days. And look, I'm envious. Seven -- I'd be happy if juries in Louisiana deliberated for more than a day. Most of our juries, we're talking about four or five hours for a murder case. Death penalty, maybe a little bit more. But we just don't have that in Louisiana.
That being said, seven days, if I'm the prosecutor, I'm getting a little skittish. I'm getting a little nervous about what that might mean. Now, what could it mean? It could mean that there's some holdouts. And again, under Florida law and under most states, it has to be unanimous, right. So there may be one, two, three people who are saying, hey, I think X, I think he's guilty or I think he's not guilty. And the other members of the jury are trying to convince them or maybe a situation where they just can't reach a decision.
But the judge hasn't either made a decision about that or hasn't been approached by the jury because, remember, the jury is going to make -- if they can't make a decision, the jury is going to tell the judge at some point, hey, we can't make a decision.
If they haven't done that yet, if the jury is just deliberating and they haven't said, well, Judge, we don't think we can come to a decision. If it's really just Judge, we're still talking about stuff. Well, that's totally different, right? So, like I said, if I'm the State of Florida right now, I'm not liking any part of this seven day.
Joshua Ritter:
[00:21:23]
You are not sleeping well over the last seven nights. No.
Franz Borghardt:
[00:21:26]
No prosecutor is sitting there saying, I want to make the land record for longest deliberations. You know, that's not -- and look, at seven days -- and keep in mind, as a backdrop, I'm assuming this jury is sequestered. So they're not going home. They're not with their loved ones. After seven days, I would imagine that's getting a little old for them.
And the fact that they're still cranking away, maybe they're really biting into something that is an issue in this case. And again, that goes back to, well, are they biting over something that may be reasonable doubt or are they arguing about something that may be a reasonable doubt that could lead to the acquittal of one defendant, multiple defendants? I just don't know the answer to that. And to be candid, the longer this goes on, the closer we move to that magical phrase mistrial.
Joshua Ritter:
[00:22:18]
Yeah. Yeah. You make an interesting point that I wanted to kind of flesh out a little bit, and that's how it works here in California at least. If the jurors don't make a peep, then we assume they're working and we just kind of let them do their stuff. I can't even think of an example where I've thought where a judge has pulled them out after they've been deliberating for several days just to be like, are you guys at an impasse? You know what, it would seem to me to be an appropriate to kind of signal to them, hey, you better be coming to a verdict here pretty soon or declare yourselves hung.
So usually, the judges are hands off and let them work as long as they're not saying that they're hung. So it doesn't sound like these jurors have given any indication of that. But you got to wonder what -- I mean human nature is that it does not take you seven days to come to your personal beliefs on something.
So I can't imagine, do you imagine that we're seeing people being persuaded from one side to the other over the course of the seven days and that's why they feel like they need to put in more work? It's funny to me because you don't usually see it in cases that are kind of this straightforward.
And I don't mean that the case is simple, but I mean, we're not talking about a three-month long paper case that involved all sorts of documents that they need to review. We're talking about a shooting, a murder that took place over, you know, one afternoon, and they've got all their suspects. And here you go. Here's the evidence. Sorry. Go ahead.
Franz Borghardt:
[00:23:47]
If you told me this was a federal white collar Medicare fraud case, and that they were deliberating for five days, I'd be like, yeah, that's a paper case. That happens.
Joshua Ritter:
[00:23:59]
They're just getting warmed up.
Franz Borghardt:
[00:24:00]
Right. So normally, to your comment, normally the way we see a jury tell the judge we can't come to a decision is someone will write a note. The foreman will write a note. Hey, what if we cannot come to a decision, question mark. That's how I've always seen it. What I would say is I live in this world where I want to believe the movie 12 Angry Men is a thing, right, that you really can have a jury go from one diametric 11 to 1 all the way back over to the opposite 11 to 1 not guilty. I want to believe that that fictional world exists.
I think what this means is either there's one, two, maybe three holdouts who have dug in like ticks and maybe they're going back and forth, back and forth. And it may be that, look, sometimes they respect each other enough to where they're willing to keep working on it and listening.
We think that they get -- and again, I say we think because we're not back there, right? Most jurisdictions don't tell the jury this is how you deliberate. You know, the judge may say be respectful. I may say in my voir dire or closing, hey, be respectful, honor each other's decisions. But we don't have a camera back there like filming them to determine how they're doing stuff.
So it may really be that they're, you know, hey, this one or two or three of them has an opinion. They're really going back and forth of it, but they're really respecting each other. Or it could be that they really can't come to a decision yet, but they're not giving up. I like it. I like it. But it also is like I want to get my box of popcorn and see what's going to happen because at what point does the judge -- now, here's the other issue. Under that jurisdictional law, at what point does the judge pull them in and say, hey, guys, are you all okay? You know, I don't mind giving you a cotton three square meals a day.
But I mean, like at what point does the judge. Yeah. At what point does the judge intercede? And then does that intercession unprompted by a jury give an issue for one or both sides? Because at that point, is the judge, you know, I don't know.
Joshua Ritter:
[00:26:11]
Yeah, I think it would be the judge kind of signaling to the jurors in some manner that, hey, you're taking too long, which might be enough of a signal for them to go, oh well, then we're hung. And that's problematic. The more we're thinking about this, I think you might be right in that I can't imagine that it's, you know, a 10 to 2 vote, and it's been that way for seven days.
I imagine if there are holdouts, the holdouts are just saying, I don't know, I can't decide. Not that well, I believe he's not guilty or I believe he's guilty. And I'm just going to stick with it, but I'll let you try to persuade me either way. It's got to be that they're just saying, I don't know. I can't decide which way to vote because otherwise it just wouldn't make any sense for them to be sitting there deadlocked in a vote for seven days. But who knows? We'll continue to watch it. Go ahead.
Franz Borghardt:
[00:27:00]
Yeah, I was going to say and look, this is the organic nature of trials, Josh, is that we're talking about it and in real time, the verdict can come in. So I think it will probably --
Joshua Ritter:
[00:27:13]
It is Friday. Jurors like Friday verdicts.
Franz Borghardt:
[00:27:16]
Yeah. So my prediction is it's going to be today. That's my prediction. And it's because it is Friday and that at some point it's like okay, well, we've given it -- nobody's going to say that this jury hasn't tried to come to a verdict at this point. So yeah, I'm curious to see what happens.
Joshua Ritter:
[00:27:36]
Yeah, fascinating stuff. Well, we might have an answer by the time this episode comes out, but if not, we'll continue to watch it. Let's turn to our last case out of Santa Fe, New Mexico. Andrea Reeb, the special prosecutor in the 2021 on-set shooting of Halyna Hutchins, has stepped down from the case, making her decision official last Tuesday.
According to Reeb, she found it best to remove herself from the case in order to disavow any, and this is a quote, questions about my serving as a legislator and prosecutor to cloud the real issues at hand. This is the latest in a series of controversies with the prosecution after opting to charge actor Alec Baldwin and armorer Hannah Gutierrez Reed with involuntary manslaughter following the fatal Rust shooting.
An attorney for Baldwin had previously filed a motion to have Reeb disqualified as a special prosecutor back in February, alleging that elected official's involvement was unconstitutional due to her position in New Mexico's House of Representatives. Baldwin has indicated he intends to go to court on the charges. The next court date is scheduled for May 3rd for a preliminary hearing. Franz, are you shocked? I'm shocked by this. What are your thoughts on this?
Franz Borghardt:
[00:28:52]
So the whole point behind getting a special prosecutor is generally to have someone that's not in the weeds, someone that is in the seat of neutrality, that is generally a very qualified, either former prosecutor or a very qualified litigator who can just take over this one case and handle it, right. Sometimes, we feed them because we don't want there to be a impropriety sense going on.
What's interesting to me is, is that nobody thought about this conflict of, I call it a separation of powers conflict. The special prosecutor is a legislator and a prosecutor at the same time, which is an executive branch. Nobody thought that that may be an issue. And generally, --
Joshua Ritter:
[00:29:42]
Or, sorry to cut you off, or they did. Or they did look into it and decided, hey, there's nothing on the books that says this is wrong. We've run this by some ethics attorneys and we think this is fine, but go ahead. Sorry to interrupt.
Franz Borghardt:
[00:29:53]
I think the bigger issue is I think Santa Fe didn't anticipate Alec Baldwin, who has probably more money than the both of us, lawyering up to the level that he clearly has. And what's interesting is it's not a death penalty case.
So the cost of his defense, while it's probably an hourly thing, the cost of his defense is not going to be the same kind of cost that it would be if he were on trial for his life. It's a small enough felony to be serious, but not a big enough felony that's going to derail the rest of his life. So I think they underestimated what they were going to be dealing with and their response in the media has been this level of whininess about it.
Joshua Ritter:
[00:30:43]
Talk about that because that is something that's really gotten to me.
Franz Borghardt:
[00:30:48]
So when I start hearing. So look, I can go back to being a prosecutor tomorrow. I tell people all the time, I'm a mercenary. I'm not a true believer. I love the litigation of criminal justice, but I can do it tomorrow. But when I start hearing the side of the aisle who has all the resources and gets to make all the power decisions, when they start whining about how unfair it is that someone has a very effective and qualified team of attorneys, my knee jerk is well, now you know what it feels like to be a poor person that can't afford all that and how unfair and that they think it is.
But candidly, what did they think was going to happen, Josh? I mean, come on. This case was never a lock stock and two smoking barrels case, no pun intended. This case was always going to be, hey, we've never really seen this prosecuted before for these kind of negligent homicide cases are not easy. They're not easy.
The actor has a defense. There is a clear defense because they are prosecuting the gun armorer with him. So there is a defense of, hey, look, I'm an actor, I may be the producer, but we hire this expert so that I don't have to worry about this kind of stuff.
Joshua Ritter:
[00:32:11]
That's kind of their whole purpose is to hand me a gun and tell me it's okay so I can go act. Yeah.
Franz Borghardt:
[00:32:17]
I am unsure. I am unsure the zeal that brought them to prosecute him. I am unsure why they are being as whiny as. And look, I'm saying that fully aware of what I'm saying. They are being whiny. They are talking about, you know, when they decide not to do something or they dismiss a facet of the indictment or charging document saying, well, you know, we're not interested in burning lots of money and enriching the defense team.
I mean, come on, you guys did something by instituting prosecution. And by the way, any time you make a mistake, he has a constitutional right to have that legal team challenge and test what you're doing. So, I mean, I think it's disingenuous.
Joshua Ritter:
[00:33:05]
I think it's offensive. I'll go a little bit farther. I think it's offensive to say, oh, you guys are just racking up all these fees. You're trying to put my client in prison. I'm not going to apologize for anything that we do to try to defend him.
I had a case where it carried on for a very long time, but we had filed stacks of motions and all of them righteous. And we won a few of them. And I think, you know, we were not wasting time. We were doing what we felt needed to be done. And I remember at one point the judge kind of referenced this pile of documents on her desk saying, you know, are we going to continue doing this?
And I go, if you think I'm going to apologize for defending my client, absolutely not. That's not just what I'm getting paid for. But this man, you're all trying to put this man in prison and I'm trying to do my best to keep him out of prison. I don't think Baldwin or his team or his "fancy lawyers" have anything to apologize for. And I agree with you, it sounds whiny and offensive, especially coming from the government. They should be the adults in the room.
Franz Borghardt:
[00:34:11]
So let's not mince words. Everybody in that room is getting paid. And the fact that they're not getting paid as well as the private attorneys, my response to that is you ran for an office. You told the constituents, the people of Santa Fe, and by the way, Santa Fe is a beautiful, wonderful place if you haven't gone to Santa Fe. But for this little blemish, it's a perfect, wonderful place to go. Go to the downtown, great food.
But for the fact that they're bringing this, we wouldn't be having this conversation. So to me, it's like, well, you know, you started this fire and now that they're trying to put the fire out, it's like, I just cannot wrap my brain around. I understand why they got a special prosecutor. The problem they're going to have now is would you want to take this on as a special prosecutor?
I mean, because now a special prosecutor is going to have to either be a retired prosecutor who doesn't care about getting compensated, who not only doesn't care about getting compensated well, but is going to have to go head-to-head with what I assume to be some really good defense attorneys. I don't know the defense attorneys he has on his team. But I said from day one, they're probably very, very good, the finest that money can buy. And what you get with good defense attorneys, heaven forbid, a good defense.
So I don't know who they're going to find to be a special prosecutor. And, you know, part of the problem they have is, is they've doubled down. So when you double down, how do you get out of that? There's no safe haven for them to say, well, maybe we made a mistake and maybe we shouldn't move forward. It's going to be a trial. Who's going to try it now?
Joshua Ritter:
[00:35:53]
Yeah. So you bring me to my next question, though. But you think it's going to end up in a trial? That's what I was going to ask is how do you think this thing plays out? You think it's going to trial?
Franz Borghardt:
[00:36:04]
All right. So unless they offer such a low level and I don't know that the felony misdemeanor system there in New Mexico, but I would assume that they have some kind of responsive or some kind of lesser included charge that isn't a felony. If they were to offer that at that point, I would be looking at my client and saying, now, look, we can go to trial, we can fight all this, but they're offering you a misdemeanor.
And if the penalty is low enough to where you can do a best interest plea and say, Judge, look, I'm not saying I did anything wrong, but this is in my best interest to do this. Well, then maybe then it wouldn't go to trial. But I think that I don't know what they're going to offer him that he would take at this point.
I mean, and you're right. They're trying to put him in a human cage. This felony, I said it's a low-level felony, but let's not beat around the bush. It's a felony that could carry jail time.
Joshua Ritter:
[00:37:00]
Yeah, 18 months.
Franz Borghardt:
[00:37:01]
Yeah, I assume. And look, I don't know about you, 18 months of jail for me would be a life altering experience. I'm quite sure that it would be a life altering experience for him as an individual, as a Hollywood actor. So I just I don't know what their escape route is. And that's why I think it may be a trial is can they offer something lesser and still save face?
Joshua Ritter:
[00:37:24]
I think they have to. It obviously has to be something with no custody time. And I see it playing out as they offer him something. I like what you said, something where they can kind of spin it, say face, say we hold everybody accountable in this county. I don't care if you're a Hollywood producer or not. And something where he can kind of save face and say, like you said, this was in best interest. I want to put this behind me. You know, this is more about making sure her and her family are taken care of for this horrible, horrible tragedy and everybody go on their way.
But if they ask for custody time, I think he says, okay, put 12 in the box. Let's see if you can convince 12 people of this really novel kind of stretching of the realms of the law to say that a person like myself, who's an actor who has never had a live gun handed to him on a set ever, you know, and he's, by the way, very long career that I imagine he's been handed guns to him on a set dozens of times. And he's going to say that now all of a sudden I'm responsible for this horrible tragedy that took place. I agree with you. I think it's got to be something good or he takes his chances.
Franz Borghardt:
[00:38:34]
And I wonder what I would like to dig into is in this jurisdiction in New Mexico, in Santa Fe, do they have a diversion program? Is this something that normally is because in a lot of places around the country that have diversion programs. And for the viewers, a diversion program is basically an alternative adjudication where you do some things, you jump through some hoops, and ultimately the charges are dismissed on the back end.
You're never convicted, but you show responsibility. There's a financial component to it. There is a, hey, we're going to watch you for a little while. We're going to make sure that this is kind of a fluke thing. I would be willing to bet that in most jurisdictions that have diversion programs, that a negligent act of this magnitude would probably fall within that, because we know that it's not a specific intent crime.
We know that at the end of the day, at most this is a reckless, gross negligence kind of crime where he didn't want it to happen. So what are you -- that's the other end of this is what are you really doing trying to put this guy away for 18 months? Like, what justice is accomplished by that? This is a great civil case.
Joshua Ritter:
[00:39:46]
Correct. That's what I was going to say. Especially, too, because there still is a remedy in the civil courts to hold him responsible in a way that would at least make the family not whole but address the damages and loss that they have. I don't know if -- not every case needs to go through the criminal courts.
So I agree with you. I think it was a stretch and it's certainly a stretch to bring this serious of charge. I mean, if it were something like, you know, negligent handling or, you know, something along the lines of some sort of misdemeanor, misconduct or something. But, you know, they're trying to say, this is a level of homicide. It's involuntary manslaughter, but it's a level of homicide. And they're trying to hold him responsible.
Franz Borghardt:
[00:40:29]
So the biggest issue that this defendant has is that he is a famous actor. And I wonder how much of that played into, hey, we can't cut him a break because it's going to be perceived that he gets treated differently than everybody else. But by that, you're treating him differently than you would everybody else.
And so that's his biggest defect is that. He's not a perfect human being. Nobody's a perfect human being. But at the end of the day, man, oh, man, if you're going to go after the king, make sure you kill him. And I think that is going to be the issue in this case is I think they've bit off a little bit more than they can chew.
And that's not a derogatory slam against their DA's office. This is not the case that you would go to the mattresses on from a legal battle. I mean, they're going to have legal arguments on this one that may get it cause to be a dismissal based on just litigation before it even gets to a jury. And one of now we have a new prosecutor who's going to have to be brought in.
Joshua Ritter:
[00:41:31]
Yeah. Fascinating stuff. Well, Franz, thank you so much for coming on this week. This was a fantastic conversation. Where can people find out more about you?
Franz Borghardt:
[00:41:41]
So social media Borghardt Law Firm. That's B-O-R-G-H-A-R-D-T, Borghardt Law or Borghardt Law Firm on Twitter, Instagram and then Borghardtlawfirm.com. And then every Friday for Fridays with Franz at 4 p.m. Central on Court TV.
Joshua Ritter:
[00:41:56]
Fantastic. And I'm your host, Josh Ritter. You can find me on Instagram and Twitter at @JoshuaRitterESQ. And please check out my website at joshuaritter.com. 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.
