U.S. v. Dunn 6 - A Seasoned Officer

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:26 Thomas: In Gavelinos I'm Thomas that's Lydia how you doing yeah

0:00:30 Lydia: Doing well. Excited to find out the reveal. I've been waiting.

0:00:34 Thomas: Gonna as you referenced uh yeah big cliffhinger biggest one in show history because we're about to get some some some just truly game -changing testimony and questions and answers and stuff. So I think we need to get to it immediately. So we're going to go ahead and take our first break right away and get you straight to the testimony heard around the world.

0:00:54 Lydia: No more delay.

0:00:55 Thomas: Won't even believe what was revealed in this testimony.

0:01:00 Lydia: Crowd gasped.

0:01:00 Thomas: Mm -hmm.

0:01:01 Lydia: Pretty sure.

0:01:02 Thomas: Right. Well, let's just go. I don't want to wait. Let's go. Away. Here we go. This is make sure you're sitting down everybody. First off, um what you're about to here is shadow. I mean, this is, this breaks the whole case wide open.

0:01:16 Matt: Testimony

0:01:18 Lydia: Amazing yeah

0:01:26 Matt: And I will remind you government exhibit 4000 is a video they do not have a sandwich in the courtroom they don't have a reconstruction of the sandwich they didn't go to have a sandwich artist try to reconstruct the best possible version uh they didn't collect it as a weapon because nobody was thinking about it as an assault at the time I think that's relevant it's very unusual in a case like this not to have the assault weapon which was collected and thrown away or eaten I don't know disappeared I want to know

0:01:26 Lydia: This is it

0:01:32 Thomas: Should. Oh,

0:01:37 Lydia: Yeah yeah yes the weapon oh man

0:01:44 Thomas: That's yeah. The, the weapon. Yeah. Wow. We hear the like, so no, you don't, where is it? Stomach growling uh yeah

0:01:58 Matt: Still

0:01:59 Lydia: Detective henry she was waiting in line for a subway sandwich and she's like well that one's perfectly fine I'll just get that one instead oh

0:02:03 Matt: Wrapped yeah

0:02:04 Thomas: All let's hear this is where lydia really I mean this is your this is your what's the face moment what is it perry this is you're perry mason moment yeah you

0:02:12 Lydia: Perry mason moment yeah is

0:02:12 Matt: Very amazing oh yes because just to remind everybody from the last episode which is very important he did testify that the sandwich exploded when it hit his chest let's keep that in mind ketchup

0:02:19 Lydia: Everywhere everywhere.

0:02:21 Thomas: Can explode yeah

0:02:23 Clip: That's the subway sandwich, correct. I assume so, yes ma' am. And the paper is still on there, correct ? Yes ma'm. It's fallen in a way that the subway has fallen in on the street, right? Yes, ma'am. You don't see what kind of Subway sandwich it is, right ? No, not from the picture, no ma' am. From the picture you can't even tell which condiments are on the sandwich, correct? Correct. You do not know if there is mustard on it, correct, from the picture? From the pictures, no, ma am. You can not see if there's ketchup on it? Not from the picture, not ma'am. You

0:02:52 Matt: That'd be psychotic.

0:02:53 Lydia: Disgusting. In the world?

0:02:55 Matt: She ever had a sub?

0:02:52 Thomas: That's just me yeah I'm surprised that the judge didn't stop the proceedings here I couldn't even get through doing this she asked if there's ketchup on the sandwich does she have small children maybe she has small children because honestly the things they do with ketchup would shock you truly shock the conscience but yeah I just thought that was we both when we're recording they're like what gross

0:03:00 Matt: Ketchup on a sub.

0:03:07 Lydia: They'll put ketchup on anything. Yeah. Yeah.

0:03:18 Clip: Ma am . You can't tell if there are mayonnaise on it. From the picture no ma am ? Lettuce, tomato. It does not appear so from the the picture no ma 'am can't tell if it's a turkey sandwich ham sandwich tuna sandwich not from the picture in fact that sandwich hasn't exploded at all correct I can't see the entire sandwich from the photo that sandwich has not exploded correct from the foto it looks bent and out of shape I'm sorry one side of the wrapper he said it looks Bent and out-of-shape okay let's go through that my question was from looking at the photo you cannot tell the contents of the photo I mean of the sandwich at all, correct? That's correct. Nothing that is within the sandwich has come out of the sandwitch, correct. It looks like a little bit has come out toward the bottom there. Okay, what has come, what is coming out of the bottom that you can see?

0:03:25 Matt: What about hots? Hot peppers? No?

0:03:34 Thomas: Is

0:03:34 Lydia: In fact, let's

0:03:35 Matt: Get them.

0:03:41 Thomas: Again we need to again it looks it's so good it's a little bent the lettuce is a little brown

0:03:49 Lydia: Go through that.

0:04:07 Clip: It looks like some kind of. Like I'm not asking you to guess, sir. I can't tell. Okay, after the sandwich is thrown, the number of people increased, correct, agents, I'm sorry, I should be more precise, agents increase, right? Yes, ma 'am. There was the Metropolitan Police now, right? Yes, ma 'am. There was C.B.P., right? Correct. Correct me if I'm wrong. Every one of those people has an iPhone, right?" A phone, yes, ma'm, probably. Maybe Android, iPhone. Everybody has one, right?' Yes, Ma'm. You have one, right?' Yes, ma'm.

0:04:07 Lydia: She's so irritated.

0:04:19 Matt: Not people, agents.

0:04:20 Lydia: Yeah.

0:04:43 Thomas: There's also weird lawyers who use like old ones that don't make any sense that do podcasts they could add one of those probably probably objection

0:04:50 Matt: A superior phone, you mean. A far better phone with a keyboard.

0:04:55 Clip: One took a picture of the sandwich? The sandwich was at 14th and U, and we were at 15th and U. I don't believe anybody was taking a picture of the sandwich.

0:05:01 Thomas: I love that one uh I love

0:05:03 Clip: One block away. One block away, correct? Correct. Not one of the 20 -odd officers walked back to take a picture of this exploding sandwich, correct. Not to my knowledge. No, ma 'am. Right. After all of this, you received from your colleagues gag gifts mocking this so -called sandwich,

0:05:21 Thomas: The oh here we go yeah

0:05:21 Matt: So -called sandwich. That's a burn on Subway.

0:05:22 Lydia: So -called sandwich. Yeah, I'm

0:05:22 Clip: That's fair. Yes, ma'm. Right. And the gag gifts included, I don't know, a plush sandwich. Is that right? Yes, Ma'm. Like a stuffed toy? Yes, MA'm. What color was it, by the way? It looked like a sandwich. It looked like a sandwich? Yes, ma 'am. What did you do with it? I put it on top of the shelf in my office. Okay. And then did you get a second gag gift? One of the agents that worked the op later on gave me a patch from one of the vendors. What does the patch say? It says felony footlong. What did you do with the patch? I put it on my lunchbox. I have nothing further.

0:05:36 Thomas: Sandwich is coming I

0:05:36 Matt: Sandwich code.

0:05:56 Clip: Thank

0:05:56 Thomas: Rest my case yeah that that's a that's That's a courtroom murmurs.

0:06:00 Matt: Good.

0:05:58 Lydia: Snapping over here like I put it on my lunchbox is where you have to end your testimony, your cross. Cross. Yeah.

0:06:03 Matt: Is so good.

0:06:05 Lydia: Oh, oh, lunchbox.

0:06:05 Matt: Lunchbox.

0:06:05 Thomas: My lunch box. Couldn't you find a more like adult word for, I don't know. Just my, with all the cops speak, you do. I put all my tactical food dispensing unit.

0:06:10 Lydia: My cooler. Yeah, my Yeah exactly.

0:06:16 Matt: My tactical Tupperware.

0:06:19 Lydia: High visibility Tupperware.

0:06:19 Matt: Felony footlong.

0:06:21 Thomas: Put it on my yummy yum's lunch box that my mom gets. It's so funny. God.

0:06:26 Matt: I mean, he's visibly not only accepting that gift and enjoying it, but putting on his lunchbox for everyone to see. Perfect ending. No notes. Really brought it home. Yeah.

0:06:33 Lydia: It was so good so

0:06:36 Thomas: Feel like she probably had way more stuff was like, nah, I'm calling it there. That's why she, I'm George Costanzing out of this meeting.

0:06:36 Lydia: Good yeah like oh that's so good yes thank

0:06:39 Matt: That's too good. That's right. Yeah,

0:06:42 Thomas: I'm done. In fact, that's my closing argument, too.

0:06:46 Matt: Just like you said, this is the exact format you'd expect when you're talking about when they're examining, you know, the murder weapon on the ground, right? And like, trying to determine if this is the same murder weapon that you see know, in in the the video or whatever, right, but it's a sandwich. And it's just, it was a turkey sandwich, just to be clear. We did say that at some point, I think, but for the record, from the news, if you can trust the news.

0:07:04 Thomas: How did you get that information? Oh. Yeah. Alex Jones. I don't know. What kind of news?

0:07:12 Lydia: It's just so offensive to try and claim this as like assault in any manner of speaking like it it's It's so offensive. It's a sandwich. And my best to bring Shroff to life here. I am sure she was feeling a lot of things inside that, you know, I can only imagine. I can at least tell she's irritated, right? Like, she's that we are here, that you're you are not really answering the question I'm asking, that you re trying to take it a different direction. Like, She's getting she's getting pretty perturbed. And it all started because of the reason why we're here, which is that somebody threw a sandwich at somebody.

0:07:44 Matt: Have trouble keeping a straight face. I don't know. I'd be really interested to see the video of this if there isn't any, but that's amazing.

0:07:48 Thomas: I have a feeling she was pretty sarcastic with a lot of this. I think it's so funny. I mean, going the list of ingredients in the sandwich is so good. I mean that must have been...

0:07:58 Lydia: Oil and vinegar, salt and pepper.

0:07:58 Matt: And And she catches him.

0:08:00 Lydia: Like I want like like if she's the actual subway, like barista, the sandwich maker, like walking us through peppers, onions, olives, pepperoncini.

0:08:01 Matt: Everything. Right. Worked through the whole thing.

0:08:09 Thomas: Your Honor, I would like to submit this evidence of the little paper that they sometimes can do an order on. And we'll go through it one by one. Mr. Larmor, read every ingredient that could have been in the sandwitch. Tell me if you saw it that day, on that fateful day.

0:08:26 Matt: Point out, this is excellent cross-examination in this portion because she catches him in a very important inconsistancy. She gets him to say multiple times that it doesn't look like the sandwich has exploded. It looks bent and out of shape. But of course, his testimony was it exploded. She could have brought that home a little bit more, that he did say that.

0:08:41 Thomas: I mean, that's kind of big. Yeah. I mean, maybe she's waiting for later to is a thing that I remember who says this, but you almost want to save some stuff for closing because if you, if you try to confront him with it, then he gets to like answer. But if you leave it here, that's like where he just said it didn't explode. Then you get to just in the closing be like, remember when he said it it exploded but it didn't right yeah

0:09:05 Lydia: Frame it however you kind of want in that point.

0:09:06 Matt: That's right. And no chance he, yeah, he fixes it. Yeah.

0:09:10 Lydia: Interesting.

0:09:10 Thomas: He's not fixing the sandwich there no chance he fixes the sandwich um I I really think of it in those terms as funny as it as it is though matt how rare to have a trial with assault uh with a deadly freaking weapon with a weapon of an officer and then you're like well no one gave a shit about the thing they assaulted them with nobody even saw it grabbed it you know anything else like any other actual assault of an officer with with some sort of weird object I mean a gun obviously but like they they would have it right oh

0:09:30 Matt: I mean, they, crime scene photographer does not even, they're doing this as a still from a video. Nobody came up and took a close shot.

0:09:46 Thomas: We didn't even get the chalk outline of the sandwich

0:09:49 Matt: All the condiments spread out. Yeah, no. know it's I mean this is really it makes the point and of how farcical this really is that nobody thought of this as a weapon or as a really as a part of a crime as an element of anything no um crime scene text coming in to dust it up no little uh markers with the numbers on them right

0:10:07 Lydia: Matt, that ask this question all the time, anything that you would have done differently, any like particular area that you think she should have gone down more?

0:10:13 Thomas: A different order? Would you have ordered a different sandwich or right?

0:10:16 Lydia: That Anything you could have done more? Anything that would have explored differently or area that you would've brought in that Shroff didn't think about bringing in?

0:10:22 Matt: Yeah, I guess the thing I was just talking about, because I was looking for that when I was reading this of, you know, did anybody think, because she does, she does it a little bit of like, you anybody have a phone, take a picture, like, why didn't you treat this as a crime at the time?

0:10:33 Lydia: Yeah.

0:10:34 Matt: Like, why did you not think of this as assault on officer at the time? Because, you part of his testimony is that I can always arrest US citizens if I see them committing federal crimes. And nobody's thinking of this in the criminal framework at all. And I think that's important.

0:10:47 Lydia: Like processing the crime scene. That did not happen. Yeah.

0:10:51 Matt: A weapon. And no, I mean, otherwise, I think there's some good stuff here. I think it's pretty sharp. And especially the way she brought it home at the end with really taking him through the ridiculousness of the sandwich as a concept. Yeah, we all love a sandwich.

0:11:02 Thomas: Well, it's fine as a concept. That's nothing wrong.

0:11:05 Lydia: We all like sandwiches.

0:11:05 Thomas: Let's not go too far like I don't want to horseshoot theory this

0:11:07 Matt: I guess as the driving concept of the trial, the theory of the case that the sandwich is a forcible assault, that really does bring out the farce of it. But no, I think otherwise, it's a pretty solid cross. Think she hits the elements that she needs to hit. And she brought out the gag gifts too, which are going to come back with a vengeance.

0:11:27 Thomas: I surprised me so like how little that was because they went to all this work and I think that's maybe her at her best the fact that she I made the point last time it feels to me I think matt you kind of agreed oh feels a little bit like to get that in there. And and when was really effective. So I feel like that was a good bit of lowering, you know, like whatever else you want to say. Uh, I feel like, especially cause it became the end there of, uh, you know, I have nothing further after the lunchbox, but I guess I was a little surprised at how short it was. Cause it's like, it was all the work. Maybe that was good, but you mean, we go, we go back and forth about a bunch of like how many the officers, how many, all that stuff. But then the whole part, we get to one block away and then not, nobody took a picture. That's all great. But Then we get the, the whole part that we did all that fighting for is like less than if it's maybe a page total. It's just like,

0:12:20 Lydia: Maybe.

0:12:20 Thomas: Yeah, it's just like after all this, you receive from your colleagues. Yeah. Gifts that, you know, mocking the so-called sandwich. Maybe she meant so - called weapon. I don't know. That'S Correct. Fair. Yes, ma 'am. Right. Then the gag gifts included plush sandwich. You know, it'S like, and And it's really quick lines back and forth. And then, bam, done. I just, did that seem like short to you or that get what she needed out of it?

0:12:20 Matt: That was a little short. And I was wondering, because I think there might have been a couple of others, and why not just painfully go through each one of them?

0:12:46 Lydia: List all of them. Yeah.

0:12:47 Matt: Describe them and when you got them and who gave them to you.

0:12:50 Thomas: There any other opportunity to do that? Or is it pretty much this is it? There's not like another witness.

0:12:54 Matt: This is your time.

0:12:55 Thomas: Well, are there any others? Are there any witnesses from like the office or anything?

0:12:59 Matt: Dana Henry is going to to testify try from the transit police, but she's not with him, obviously. So she wouldn't probably been giving him a gag gift. But But I think it also would have been legit to ask, who gave them to you? Was this your supervisor or your partner or buddy or whatever?

0:13:11 Lydia: That's fair. I think it must have just been that I put it on my lunchbox that she was like, I have to let that be the last sentence. I think she would have kept going otherwise.

0:13:16 Thomas: I, I, that's sort of maybe what I'm getting at. Like that's such a killer line to end on. Well

0:13:22 Lydia: Yeah. Yeah. Because it was what did you do with the patch if he was like, oh, I put it in my drawer. I think she would have gone on to another one to just be it's like, that's not very punchy, you know. But leaving it with the visual of that for the jury, I think is so smart.

0:13:36 Thomas: Right so after this we're going to get the um and then you get what are the rules on that is it is it always the same as always like direct cross redirect recross or how does that work

0:13:47 Matt: Recross, yeah. There's going to be a very short recross as well. And is going to have the unenviable job of trying to salvage this testimony, trying to make it seem more serious somehow. And he'll do fine. There's nothing much to do here. And

0:13:58 Thomas: See parin's been been pretty not not the not the sharpest yeah I haven't gotten the indication that perrin is amazing yeah

0:14:01 Lydia: Hilarious. He's a rookie I think that's part of it right yeah

0:14:09 Thomas: First

0:14:08 Matt: -ish. It's basically, you're going to stay within the scope and just try to, yeah.

0:14:12 Thomas: Sandwich trial huh all right

0:14:16 Matt: Very quick redirect recross, and then we're going to get into some discussion about the body cam footage and trying to figure out how it can come in and what can't, and then we'll hear from Detective Henry once we resolve that. So another angle on the whole situation. We've just had thunderclap of an ending to our cross -examination. He's put it on his lunchbox, and now it is up to Mr. Perrin to snapping shut.

0:14:38 Thomas: Sound of his ninja turtles lunchbox closing made a thunderclap yeah yeah

0:14:42 Matt: Big wink

0:14:43 Lydia: Mean, honestly, like if I were Shroff, I could just picture her like, you the no further questions and turning around and looking at her table and just Just like, oh, like, just like so happy.

0:14:54 Matt: To the the defendant.

0:14:54 Lydia: Exactly like we got them.

0:14:56 Matt: Yeah, so Perrin's got to clean this mustardy, oniony mess up.

0:15:01 Thomas: It comes in with a napkin for redirect oh

0:15:05 Matt: Just dab it up a little bit. You know, he's going to hit the points that he can hit. It's going to be a very short redirect. It is about as short as they get, but there is a wonderful Simpsons moment. I am sure you are caught. I want to make sure we play the clip.

0:15:15 Clip: You, counsel. After you collect your stuff, I will let the government begin its redirect. You may proceed. Thank you, Your Honor. Agent Larimore, how long have you been stationed in D .C.? Just over nine years. Defense Counsel asked you a little bit about the executive order that you referenced earlier. Is that the only basis that you were out there? That's the only reason we were out on patrol that night, is supporting local law enforcement for the executive orders. Who told you to go? My superiors. Defense

0:15:43 Matt: Course, he's going to point by point just address the stuff that Shroth already brought out in her cross. And this is a pretty effective way to just open and shut the executive order issue to talk about the scope of his duties to make sure he's not ultra viras, that he's actually supposed to be there. And just making him state very clearly. The only reason he was there is to support local law enforcement and that he was told to go by his higher -ups. So that's it. He's there in his official capacity. I think that's closed on that part of the element.

0:16:10 Lydia: Think there's also like addressing like sort of the language that I talked about previously where we're, kind of making the jury think about it's almost like an invasion of CBP and immigration. Right. Where now Perrin is saying, how long have you been stationed here? And he's like nine years. And it's like, OK, well, that kind of tempers the feelings.

0:16:24 Matt: That's right. Yeah. He still never been to the gay nightlife district, but he's been here for nine years.

0:16:30 Thomas: He's apparently a super straight ice agent or whatever so I believe it I

0:16:32 Matt: There are a few of of them.

0:16:34 Thomas: Love the idea that like when she asked about the gay club he was like I didn't know about that he's having like this panic because it's homophobic response of like what we were are you telling me mean we're in a we're in a gay district that whole time hmm

0:16:41 Lydia: There. Are you blushing, Agent Larimore? Yeah,

0:16:41 Matt: Yeah, stay cool. Stay cool. I also want to point out the interesting detail from last time that I looked up because I was just interested when he's talking about being deputized as a U .S. Marshal because the next witness, Detective Henry, is also going to be talking about being depütized as U. S. Marsha. And so he's not out there officially. That's something I don't think I really explained clearly enough last time. He's not there officially especially as a CBP officer, he's there as a U .S. marshal being deputized. And technically, a U。S. Marshal could deputize any of us to go enforce U. S. law, technically. I know why that would happen, but no, yeah, I mean, don't

0:17:18 Lydia: I don't think you want me doing that, U .S. Marshals. I don'T think I'd be very good.

0:17:22 Matt: Give me a gun. Bad news.

0:17:24 Lydia: Yeah can you come over here? Can we we talk.

0:17:24 Thomas: Can you everyone we're everyone's over here not doing crimes if you want you want to join us

0:17:32 Lydia: Though I could be really effective on a plane, though, because I would just talk to the person. I'd probably get them to just confess to me at some point. So so maybe that would be good on a plain when the U.S. Marshals are on flights.

0:17:40 Thomas: I don't know what did you say on a plane

0:17:39 Matt: That's right. The air marshals.

0:17:44 Thomas: An air marshal oh is that the same thing that's

0:17:47 Lydia: Those are still U.S. marshals, right?

0:17:48 Matt: That's a really funny idea to deputise an air marshal, just like random passenger on a plane I gotta take a nap just look around for me I'm really tired

0:17:58 Lydia: He'd take over.

0:18:00 Thomas: Yeah. Here's my gun.

0:18:05 Lydia: Okay, wait, no. air So are marshals not U .S. marshals?

0:18:08 Matt: Man we talked about this like two years ago and I got it a tiny bit wrong and I heard from a pilot um technically u .s marshals it's been around this has been around a lot longer than I thought I thought it was a 9 -11 program it's actually something they expanded after 9 -12 yeah yeah so I guess that's true on that uh I appreciate I always do, because there's such a broad range of knowledge amongst our listener base. Yeah, I believe there are U .S. Marshals in the special program. Yeah, just an interesting point of law that apparently there were like 380 people deputized as U. S. MarshALs during this. When I went and looked, previously things like inaugurations or civil unrest, it's happened before, but it's pretty unusual. Obviously, this whole operation is unusual, but that's the cost of making D .C. safe and beautiful, I guess.

0:18:14 Lydia: Phew.

0:18:18 Thomas: That's right. I remember now. Yeah, yep.

0:18:44 Lydia: Mean, what exactly does that accomplish, I guess, between like being a federal agent and from, you know, Larimore's testimony, his organic authority to be wherever ever and to observe if crime is happening, to do something about it. Is there then to be deputized a U .S. Marshal?

0:19:00 Matt: Yeah. Best I could tell it's because this task force is organized under the U.S. Marshal's authority. So I think it's just easier to have everybody kind of under one wing. Yeah.

0:19:07 Lydia: Paperwork kind of thing. Okay.

0:19:09 Matt: Just kind of doing the same thing. And there's no question about jurisdiction. He doesn't have to report to CBP in this situation. He's reporting, you know, I guess to Marshal. I don't really know, but it's the task force.

0:19:17 Lydia: It is probably cleaner in terms of direction delegating orders and your command structure, I guess.

0:19:21 Matt: So you might say safe and beautiful. Yes.

0:19:25 Clip: Defense Counsel also asked you a little about your awareness of being recorded. How did your awareness of being recorded affect your interaction with the defendant that night? Zero Defense counsel asked you a little bit about the different ways you can say, have a good night Just repeat for us, with the same tone and cadence, the way you would have told the defendant that night to have a Good Night Let's just, can you state how you did say it that night Yes, sir That night I said, have good night Agent Larimore, is body -worn camera a part of your uniform?

0:19:41 Thomas: This is so good.

0:19:43 Matt: Love this. Beautiful, beautiful.

0:19:56 Clip: For the field agents, it has been for a part We

0:19:59 Thomas: To ask, when I saw that, I was so regretting. I should have done a completely different character for this lawyer. I didn't know at the time. I feel like he should be like like a high school kid like just to totally can you do it do it do that do that thing you do do that have a good night in kinds of thoughts came to my mind you can't have like a tone and cadence be evidence right like how would you I mean kind of I guess yeah that's my question like you can'T capture that in the transcript you know like so

0:20:24 Matt: You can't replicate it. And you can replicate it on the stand either. You can't possibly get the exact timber and intonation on every syllable.

0:20:30 Thomas: I've never heard of it. Do it the same way that, that they did it. Like you should do that with everything. So like the victim, when she screamed, can you do exactly do it how she did it or something?

0:20:43 Lydia: Can you do the impression of, yeah, what what that was?

0:20:47 Thomas: Oh man. And then Frank Caliendo is like one of the, for some reason, the witness is like, okay, do how Morgan Freeman would do every impression. Now do it. How Trump would do it.

0:20:59 Lydia: Goldblum. Yeah.

0:21:02 Thomas: Have a good night.

0:21:00 Matt: Joke Can you do Trump? Yeah. There's that running joke, of course, in the movies when they're doing the lineup of like, give me the fucking money, right? They go down the line and read the, it's like that. Give me the freaking money. Right. Yeah.

0:21:21 Thomas: The usual suspects. So it says Ms. Shroff inaudible. I assume she might've been like, what?

0:21:27 Lydia: Are we doing?

0:21:27 Thomas: Yeah. Yeah. Stupid lawyer says what? Or, you know, so but then again, the court does say, can let's you state how you did say it? And I think I think the judge probably meant like, well, I said it nicely, you knows, but than the witnesses

0:21:41 Lydia: I said it sarcastically. I said it nicely. I say,

0:21:43 Matt: And then he just says it.

0:21:43 Thomas: Like just says it. And then I feel like the judge is probably like, this is that fucking worth. OK, fine, whatever. Who cares?

0:21:46 Lydia: Have a good night. I give

0:21:53 Matt: Whole trial is going to turn on this reversible error, so.

0:21:54 Thomas: This Is nothing.

0:21:56 Lydia: Up.

0:21:56 Thomas: Oh so good okay the next is going to be this body worn camera stuff matt did you want to set that up because there's some interesting stuff going on here

0:22:03 Matt: Yeah, so he is going to be just mentioning and passing. There's going to do a lot about body worn cameras coming up in terms of what the D .C. police are doing. But this is, of course, a federal agent. And I wanted to know, just, of course, in the course of my work, something I'm aware of, ICE ice and cbp have been engaged in a pilot program to roll out body worn cameras and of course as we all know by now we're recording this in march of 2026 uh this is an agency that badly needs them uh we absolutely more than any other cops really in america right now we need these people with body worn cameras uh claiming it's too expensive and they don't have the funding to get it to everybody of course they've just been handed a giant 75 billion billion -dollar slush fund, so maybe they can find the money somewhere.

0:22:38 Lydia: Insane.

0:22:40 Thomas: The cameras cost 50 billion a piece so oh

0:22:42 Matt: Yeah, BH,

0:22:43 Lydia: Spent $220 million on Kristi Noem riding a horse. So I think, I think we can afford body cams, you guys.

0:22:50 Matt: Well, it was in front of Mount Rushmore. That was pretty impressive.

0:22:53 Thomas: They had to pay mount rushmore Yeah, that's not free. Yeah.

0:22:55 Matt: For the rights. But though, after January in Minneapolis, of course, when they shot to U .S. citizens is Kristi Noem did sign a perfunctory order. And this is, of course. After the time of this trial, I just want to note that technically speaking, speaking, IS and CBP are under orders right now as to have them all wear body worn cameras, but of course they're not doing it because they're saying they don't have the funding, right?

0:23:14 Lydia: Yeah as feasible that's such a cop -out yeah

0:23:16 Matt: Of course, as they can, as funding allows or something, that's the way she put it. Yeah, and they have the money. They just, they're just not very motivated to do it. But she just felt the political pressure, obviously, after January to sign this thing.

0:23:26 Thomas: I think what's going on here, too, is that I in the questioning, she kind of was successful. And this is a typical thing where I feel like this happens all the time where then on redirect, you kind of clarify it. But she, she kind of got it to sound like he should have been wearing one and wasn't. And I think it seems to me that he's just trying to say like, where yeah, you're supposed to be wearing one essentially. And, they and, sort of mess it up a little bit. It seems like, oh yeah, we got to play it. Yeah.

0:23:48 Matt: Yeah, it's a little confusing the way it's explained. Yeah.

0:23:51 Thomas: Should

0:23:51 Clip: We don't have it as full deployment because they're very very expensive so it's not complete It has now become part of the standard procedure for the operation, but that was the first time we didn't have the logistics I guess I should ask to be more clear is it part of your uniform not on a daily basis No, sir now when defense counsel asked you about whether or not there was mustard coming out of the sandwich I think I saw you smile a little bit Can you explain why because I had mustard and condiments on my uniform and I had an onion hang on my radio antenna that night the courts brief indulgence

0:24:06 Matt: There we go. One of my favorite details of this entire trial.

0:24:21 Clip: Further questions, Your Honor.

0:24:23 Lydia: If like if the onion like it just you know it's perfectly circular and it's like sitting on the radio antenna like like yeah exactly somehow

0:24:28 Thomas: What are the odds? Magic onion theory. Forget magic bullet theory. Now we got an onion that's gonna go that's going to land wait hold on think about what are the sub the subway onions aren't circles are they we're blowing the lid off this whole thing they're very thin slices usually oh is it a regional thing is the subway different here I don't know they're just little pieces here okay look it up look at no I'm just remembering I used to eat subway all all the time they're very little people

0:24:35 Lydia: Just like ring toss hmm or are they slices slices.

0:24:42 Matt: Well, they can be. They can be, Sanju, I feel like. I feel like they're slight circles.

0:24:53 Lydia: Looking it up. Are you looking it up, too? No, it says they are prepared by slicing whole red onions using a rotary slicer. So we can have circles.

0:25:03 Thomas: But but if they slice them you know it depends on how you slice them okay

0:25:05 Matt: Checks out.

0:25:06 Lydia: I'm look at a picture, and I'm seeing it's a mix of semicircle and full circle.

0:25:12 Thomas: You're telling me no I'm just kidding I gotta go I gotta make a JFK style film about it the odds that they happen to be a circle one and it happened to land right on his antenna yeah

0:25:26 Matt: Once again, so close to blowing this whole thing open. You're just right on the edge of it.

0:25:30 Lydia: I wonder if they ask those same questions like as part of defense prep you know they were like okay let's go to a subway and examine how these things have been sliced yeah

0:25:42 Matt: And that he's asking, I'm like, I saw you smile. It's good to just kind of address that, that we all know it's kind of funny. I'm not really sure why that's the last question he asks him, but it's weird. Of course, all I could think of was the Grandpa Simpson. It was the style at the time, having the onion hanging from your belt.

0:25:56 Matt: I sent you the clip. It said, it's so short.

0:25:59 Thomas: I love that it's classic uh

0:26:01 Clip: I tied an onion to my belt which was the style at the time now to take the ferry cost a nickel and in those days nickels had pictures of bumblebees on them give me five piece for a quarter you'd say now where were we oh yeah the important thing was that I had an onion on my belt which was a style at the time they didn't have white onions because of the war the only thing you could get was those big yellow ones

0:26:06 Matt: That's all I can think of. That was the time. That's what I could think of.

0:26:32 Lydia: So weird

0:26:33 Thomas: Is because of the war god I love the simpsons

0:26:36 Matt: An onion hanging in my radio antenna, as was the style at the time.

0:26:41 Thomas: Uh yeah I didn't actually think that even though that is one of like my favorite simpsions uh which was the style of the time okay

0:26:45 Matt: It's so good. Oh, reason he ends on this is because there is this conflict that we've identified, of course, that he said it exploded. And defense points out it doesn't seem to have opened from its wrapper. So I think he's trying to explain some of the discrepancy by saying he did actually have a mess on his uniform, at least something. And at least one onion escaped.

0:27:02 Thomas: This is this is huge it's absolutely huge

0:27:06 Matt: Very important. But that's his last redirect question, which is, I don't know, I think it's a little weak, but it's fine. Whatever. Whatever.

0:27:06 Thomas: I need a sketch yeah yeah

0:27:11 Matt: He's doing what he can.

0:27:12 Thomas: I redirect you just yeah you're clarifying

0:27:13 Matt: Yeah, just get in, get out. Now we're on to recross.

0:27:16 Clip: Thank you, Agent. Your Honor, I had some recross. May I? I mean, let's see. Okay. Sir, you said you had mustard on your uniform, correct?

0:27:22 Thomas: Was a weird response I didn't know how to read like why why does he say that? It's kind of weird. I that the thing where like you, you only have redirect, recross if there's like very specific, like, why would that be? I mean, unless he's just like being like, yeah, yeah.

0:27:37 Lydia: Let's see what you can do.

0:27:38 Matt: Yeah. Yeah. Let's see how long this takes is really what he means. Which is, you know, that's not unusual in these kinds of trials to be like, you know, I feel like the points have been made, but if you got something you got to bring out, let's do it.

0:27:48 Thomas: Yeah. Just kind of like move along. Okay.

0:27:51 Clip: Yes, ma 'am. Did you take a photo? I did not. You had condiments on your radio, correct ? Yes, Ma 'am . Did you have the mustard and the condiments after Mr. Dunn was under arrest, correct . . . Yes, MA 'am And you knew that Mr .Dunn was going to be charged, correct Yes ,Ma 'am And as a seasoned officer, you know you are going to have to testify in front of a jury, correct?

0:28:10 Matt: I'm so sorry. Okay. I

0:28:11 Clip: At times, yes, ma 'am.

0:28:11 Matt: Have to stop on this part.

0:28:12 Thomas: Seasoned officer for sure.

0:28:13 Matt: Seasoned officer. That really, this should be the name of the episode.

0:28:15 Thomas: It's so good.

0:28:15 Matt: I mean, this is so good. She uses it twice and in a very short recross, but

0:28:19 Thomas: Salt, pepper, oil, oil and vinegar. Once I started adding the salt, pepper, oil, and vinegar to the Subway order, it made a tremendous difference.

0:28:24 Lydia: Changed your life. Yeah. Yeah,

0:28:25 Thomas: Yeah. It's, it's good.

0:28:26 Matt: It makes the officer a lot tastier too. Well -seasoned. So funny.

0:28:27 Thomas: Well, I was certainly seasoned after that, but yeah, well she used it. No, she used before.

0:28:33 Matt: There's no way that she's not intentionally using that phrase. I just think it's very funny that she hadn't used it the entire trial. She did

0:28:39 Thomas: Yeah she's, she's already used it, but maybe it's all part of it yeah yeah it's

0:28:42 Lydia: Might still be intentional. Yeah yeah.

0:28:39 Matt: It? Oh, okay. All right. It's just very funny to call him a seasoned officer.

0:28:47 Thomas: So good

0:28:50 Clip: Right. And you didn't preserve that evidence, correct ? I did not consider that evidence ma' am. There was plenty of federal agents as witness to the sandwich striking me in the chest. Is it your testimony, sir, that as a season officer, a photograph of the actual stain is not the best evidence ? The arrest was turned over to the Metropolitan Police Department.

0:29:09 Clip: Okay. It was their case to pursue at that point. I see. And the Metropolitan Police Department didn't take a photo either. It would appear not. Thank you. Agent, thank you for your testimony this morning. You are released, and thank you for your service. Your

0:29:08 Lydia: He like doesn't know what to say there. Yeah Yeah. Right. Before we get into this piece, though. How do you think recross went there?

0:29:27 Matt: Oh, I thought, again, in and out, I think it was pretty solid. And I think this is a really good point that she is making, that if he had been hit with a brick, they would have taken every possible picture of his injuries, right?

0:29:36 Lydia: Right.

0:29:36 Matt: They would have gotten every angle, and that's fine. I mean, that's what you'd expect when somebody gets injured in any case. And, you know, of course, they're not actually claiming injury or they would have tried to go for the felony version of this. But it's also really brings out just, I think, again, how absurd this is that we're here, that nobody bothered to take pictures because they didn't consider it to be any kind of real crime. He's saying there's plenty of people that witnessed it, but like, I don't know. It just seems like if they really thought they're going to charge this, they would at have least at taken a picture of the uniform to show that it struck his chest.

0:30:03 Thomas: Yeah it'd be weird to be like if it was like any other crime where like well we didn't grab the gun because like they saw it was close enough I mean I guess they're not matching the sandwich to anything with

0:30:14 Lydia: And I think this pairs pretty well with her earlier questioning on like that that nobody went to retrieve, you know, the supposed weapon of this crime.

0:30:18 Thomas: Three cookies they give you uh for the meal deal yeah

0:30:25 Lydia: You know on the other block and she's like okay it's one block away but not not just that like you guys didn't go retrieve the weapon you also didn't bother to even take pictures of you know like you were on that block and everybody had a phone we established everybody had a phone um no one even bothered to take a picture of the you know onion that ring toss style made it like exactly around your radio antenna crazy yeah

0:30:48 Thomas: Why didn't she take bigger just like whoa sweet

0:30:50 Lydia: Dude crazy crazy.

0:30:52 Matt: Good catch. Well, it was the style at the time. But I like I said before, it's just so unusual in a case like this involving any kind of assault, even like the lightest bruises. I've seen so many cases where you have to stare at the picture to see there's like a tiny bit of a red mark on somebody's neck or something, right?

0:31:08 Matt: It's just like I've worked with plenty of these cases. The police never fail to take pictures of anything that looks like an injury. And I mean, there have been famous cases where people are are charged with assault for bleeding on an officer when they're being beaten and they destroy the uniform or make it have to be dry cleaned, right? I mean, they're not going that far with this case, obviously, but you can at least say it's inconvenience.

0:31:07 Lydia: You know,

0:31:27 Thomas: God damn it well

0:31:28 Lydia: He also doesn't actually answer her question when I'm looking at the top of 116 and she's like, you know, are you saying that a photograph of the actual stain is not the best evidence? And he just he doesn't say yes or no. Yeah.

0:31:37 Matt: Dodge. Yep.

0:31:39 Lydia: He just dodges the question completely. And I kind of almost wish like that she's not like, oh, that's not what I asked you, you know? Like, that question.

0:31:45 Thomas: Is that like a legal opinion is she allowed is he you know

0:31:49 Matt: That's a practice. I mean in terms of like best practices for cops. And like I said, if she were to ask him, and again, I'm sure that this isn't that important, but if you were to ask him if this were an assault, if he'd laid his hands on you and caused a bruise, you would take take a picture of that, right? Know, if he'd hit you with a bat, you'd have a picture of the injury, right. And so I just think it's relevant, at least. But it's fine. It's not that important not to chase it down.

0:32:00 Lydia: Yeah, mm -hmm. Yeah I know. Yeah nitpicking.

0:32:08 Matt: But It's interesting. You're right. It totally dodged though.

0:32:18 Thomas: So gonna get a interesting discussion that was set up before with the witness that's unavailable uh

0:32:24 Matt: Yeah, let's unpack this. Again, this trial is extremely short. One of the reasons I love it for so many different reasons, but it does raise a couple of interesting legal issues in this very short trial. This one consumes a lot of the transcript. These the kinds of things you never see on Law & Order. This will never come up in a law movie. Think it would be a pretty boring law movie if you made just this part. But it's also interesting to talk about because this is the kind of practical day -to -day stuff and how the law works. It's the kind of stuff that I really want to get into in Gavel Gavel on what practical actual lawyers have to do when a witness doesn't show up, is unexpectedly not available. Not a star witness, just a very minor witness that was going to authenticate a couple of minutes of a video. And so what we have here is that we flagged up top that Officer McDonald is not going to be present. They're going to mention she has an eye issue, and so we're going to be introducing Officer Thandie's body cam, and Officer Thandy was the arresting officer who took come into the station, took Dunn in, and so was there with him. So there's a very interesting question about, obviously, Officer Henry was present on U Street and saw the assault from a distance at least, and she can testify about that. So that part of the body cam, no question. She can authenticate that she was there, and that's what it looked like. She was there for a part of The Interrogation, or at least getting him into the Station, I think. But she wasn't there for the part where he makes statements, andthat's what they want to introduce. Because, of course, famously, Sean Dunn is going to say on camera, I did it. I

0:33:47 Matt: Threw the sandwich.

0:33:47 Lydia: Did it. I

0:33:47 Thomas: It was my sandwich I

0:33:47 Lydia: Threw the sandwich. Yeah. Yeah, I

0:33:49 Matt: That's right. So that is, you know, yeah, that's right, still smell the mustard.

0:33:50 Lydia: Was really hungry. Yeah

0:33:52 Thomas: Sandwiched him dear god I can still hear the screams so sorry yeah right

0:33:58 Matt: So that is again, it's just an interesting question of how much do you want to fight this as the defense? How much do want to push it as the prosecution? How important is it really to your case? Now, as he's going to mention, the defense did kind of mention it, but it in the context of that particular video. So this is like the statement that was made. Went back and looked at the opening. We'll talk about that when we get to that part. And I'm not sure that they're really correctly characterizing that. But there's a question as to admissibility, as to whether the body cam itself, like the footage, is actually what it's purporting to be, right? So can we assume that because Detective Henry was there for two minutes out of a 38 -minute video that the other 36 minutes are authentic, right, that they didn't mess with the video somehow? Somehow. Traditionally, you would want to make sure you have the officer who took that video present to say, that is my camera. I was recording the whole time. That was me. I didn't hand it off to somebody else. I hadn't handed off to forensics to mess with it and add some extra frames or something. Then there's the question, because I haven't really ever encountered this issue. I haven't seen it in a transcript before, but there's a question of, can you have this sort of chain relay authentication of this idea that you're just passing the baton onto the next person who's not actually there, but you're just setting it up just enough that you can allow this in. So I think this is interesting.

0:35:09 Thomas: Yeah well it's it's interesting like non one we talked about before but it always bears repeating I think like one number of the number one non -lawyer misunderstandings I think of trials is it think I most normal people think well there's evidence you can just be like all right we got this here's this evidence but it's there like you has to be a process of someone bringing in you have to have like a witness that it comes in with to kind of authenticate it right

0:35:34 Matt: And this could be a lot more critical in a different kind of case because this is an admission of guilt, right? This is a guy saying that he threw the sandwich. If there weren't already a video and if that was in any way in doubt, then this would be a little bit more of a heated argument. But I will point out, I think the defense and prosecution both do a very good job of framing the issue. I think the defense is very appropriate in the way that they're representing their client's interests interests and making sure that they stick to it. But like you said, I was thinking about what you just said. My evidence professor used to talk about the arena of trial and how it's like, if you imagine like a gladiator arena, that it's each side's job to...

0:36:05 Thomas: He sounds insufferable no I'm just kidding yes

0:36:09 Matt: Shout out to Professor Reizinger, of course. ReisingER had a very sort of old -fashioned way of teaching law. He talked about the arena and I've always found this to be a helpful metaphor to think about this, that the defense's job especially is to make sure that the prosecution doesn't just grab a trash can and start dumping stuff into the arena, right? You can't. You have to make Sure that everything that steps in there is like been screened and we know exactly what we're going to be using and what the tools are and what the terms of battle are, right, essentially, if you want to get dramatic about it.

0:36:33 Thomas: Lot of mixed metaphors yeah there's a where they dump stuff on arenas yeah trash cans I

0:36:37 Lydia: Ancient roman garbage cans

0:36:37 Matt: But yeah, yes, man. And this may sound nitpicky to non -lawyers and maybe it sounds nitpicking to some lawyers, but it is really important that we define exactly what the jury is going to see, what we know about that evidence, how it came to exist. We can't just let any old person say, yeah, that seems right to me, right?

0:36:55 Thomas: Reckon the body cam footage

0:36:58 Matt: Right. Seems like body cam. Yeah. Yeah. Let's hear about all the arguments here.

0:37:03 Thomas: Very interesting this

0:37:04 Clip: Your Honor, we are prepared to call our next witness, but we had flagged an issue earlier today which would impact the way we proceed. Our goal is to streamline things, as the court has indicated. Would you like to get on the phone to discuss that issue, or can we... Yeah, that might be best. Okay. Excuse us, everyone. You probably have already gathered this.

0:37:22 Thomas: Was the judge by stock in the phone company or what

0:37:26 Clip: It's not rocket science, But from time to time I need to speak with the lawyers the parties about an issue that we're trying to resolve some issue before Perhaps something comes to you inappropriately. We do that with the hush or on the phone Just the way I talked to you when we did the jury selection. So with that, let's go to the husser Proceed.

0:37:42 Matt: This exact explanation already? I feel like he has, but it's fine.

0:37:47 Thomas: It was uh what was that no he talked about the evidence oh really are

0:37:49 Lydia: Explain the husher no he did talk about the huscher

0:37:49 Matt: Somewhere back there. Yeah. I feel he used this language too, about how it's some time to time, whatever, but it's probably just a shtick. He probably just says it a lot.

0:37:54 Thomas: You serious I I don't, huh.

0:37:58 Matt: So I'm just curious.

0:37:59 Thomas: I remember the evidence thing, like, like because we don't want to put up evidence before he approves it. But I don't totally remember this exact thing, but

0:38:07 Lydia: Remember him saying husher. Like that word specifically jumps out at me because that's normally not something you would see, I

0:38:12 Clip: Thank you. Your Honor. Our attention is to call detective Henry next She would be more of an abbreviated version about what occurred on August 10th And then up to the point the defendant was taken into custody We were then planning on stopping with her, and then our last witness, who is McDonald, who has actually indicated, kind of gave us an update on her medical condition, which is not good, but we would like to speak with her that she would testify to just a brief video clip. Basically, it was a statement the defendant made while he was in the station. The defense indicated earlier they wouldn't object to the authenticity of that, and they did reference it in their opening. So

0:38:49 Matt: Okay. Real quick.

0:38:50 Thomas: I don't remember that.

0:38:51 Matt: I went back and looked because, the defense says two things in the, in the very first line, Sabrina Shroff says he did it. He threw the sandwich, which is what he said. So she's repeating, but she doesn't doesn't Say you're going to see a video where he says this thing. She just uses the now iconic line, right?

0:39:03 Lydia: And Mr. Dunn, quote. Yeah

0:39:06 Matt: Yeah, exactly. Uh, and then she says, you're gonna see some videos and that's, that's as much as I could see in the opening about. So I think that's a little disingenuous to say that they referenced it. I mean, I guess referenced in the sense that they quoted it, but they didn't tell the jury what they were quoting. And that that could just be an organic statement from all they know.

0:39:17 Thomas: Interesting.

0:39:21 Matt: Not sure if the defense said they wouldn't object to the authenticity of that, or maybe I missed that. Maybe it wasn't in this transcript.

0:39:24 Thomas: Don't, yeah, I, I was surprised too. It didn't seem right to me.

0:39:27 Lydia: Yeah I mean, I mean the only thing I could think of is if there was a conversation beforehand that they're also kind of misrepresenting here, you know um

0:39:32 Thomas: Think he's just saying it. Yeah I think he's just saying it because I it feels like the defense never intended to do I I would be very surprised they have so little they can do in this trial I feel like that was one of the things they were gonna try to you know one of things they're gonna try to like slow down I guess I

0:39:39 Lydia: Push back on what

0:39:50 Matt: Mean, you get an opportunity that morning, you find out that a witness isn't going to be available. Maybe you decide whether or not you're going to exploit that, but didn't really seem like they're going too. Is, again, going to step up and do her job and make the right arguments about it.

0:39:59 Clip: The way we planned on proceeding was having McDonald testify to that piece. In the event we can't, what we would do is introduce it through Henry. The way we would that is Henry viewed, she didn't personally witness the statement, but she was present with another officer and she has viewed part of his body worn camera footage. Basically she is in the garage of the station with Officer Thandie. She is seen on it. And then what we do is she would authenticate that portion of the video. She can explain how body -worn camera footage is basically continually playing, then the video shows it is continually playing. Then what we would do is then admit the statement, the admission, which occurred about a minute later. So we would have to build on it. It's a little more time -consuming. What we would to do is we've shown Detective Henry at least parts of Thandie's... Thandies not available, but part of Thandy's body -warmed camera footage, but what we'd want to do was narrow it. It. She can authenticate the one part, and it would have a continuing part. There's a couple of options. One, we would ask the court if we could just sit momentarily with Henry to make sure she can authentitate it. We're confident that she can, and then we can proceed with our direct. The other is we'll also reach out to McDonald to see if she is available. She has some condition with her eye. We noticed it yesterday. Her eye, I believe,

0:41:18 Clip: May be

0:41:19 Thomas: Love that yeah it's because the the language of the law I love that like it makes it sound like she's a pet that they know we noticed it she's got as As we were dropping her off for school, there's something weird going on with her eye.

0:41:28 Lydia: I yeah I totally forgot about the matt

0:41:31 Matt: We're having it checked out.

0:41:32 Thomas: Yeah. But now the legal language is like notice as in provided notice to the court about it, right?

0:41:37 Matt: Right.

0:41:38 Lydia: Like you read that it is is it like lawyer brain like you know exactly exactly oh okay yeah because

0:41:42 Matt: Notice is used a few times in here. Yeah, it is so funny that I don't speak English anymore sometimes.

0:41:49 Clip: Swollen shut. We don't want to force her to come in, but we can check on her availability. The The third is, I don't know that this, you know, the authenticity does not appear to be in dispute. I would suggest, but obviously the defense is up to them whether or not they would accept it, a stipulation that, you Know, this statement was made while the defendant, you Now, it's clear was in the situation.

0:42:09 Thomas: Nice try.

0:42:10 Matt: Okay, yeah, hold on. Let's break this down. Because this is messy. This is a kludge. And there's no way around it.

0:42:18 Thomas: This is a what?

0:42:19 Matt: A kludge.

0:42:20 Thomas: Kludge.

0:42:20 Matt: That's the old

0:42:21 Lydia: What

0:42:21 Thomas: I don't know if I'm familiar with that.

0:42:22 Matt: School. I think that's a coding term for like jamming things together that don't quite fit. He's basically just asking the defense fence to be cool. That's what he's doing here.

0:42:31 Thomas: I know. It's kind of sneaking it in. I love it

0:42:33 Matt: Like we could drag this poor woman in with her extremely swollen eye.

0:42:36 Thomas: Yeah very infectious it's it's highly contagious yeah

0:42:41 Lydia: Or other option is it's gonna be really tedious we're gonna have to sit here for a long time I'm gonna have to ask a lot of questions or you know we could just you know you good with this

0:42:48 Matt: But this is weird. This is weird I mean I'm not sure this would fly I gotta ask and we might come back to this because I'm gonna ask Casey about this and we'll be talking about detective Henry later. I'm curious how this would go in a Massachusetts courtroom. She's had more experience with authenticating government witnesses evidence than I have. I just really think, I mean, think about what you're doing. You're You're going to be showing this person who was not there, a video of something that happened like 20 minutes later, where she was there for the beginning of the body cam footage, and she knows the body camera was on. And she's going to testify, well, it's the typical practice that we leave the bodycam on. So I assume that this is what happened after I left.

0:43:19 Matt: But like, I mean you could show that to any officer. I don't know. That just seems, isn't that weird? It just seems weird to me.

0:43:24 Thomas: I also but I mean to a normal person again it is the whole thing is weird because I feel like you'd just be like there is body cam footage like the wouldn't you get like the custodian of the footage to just be Like this is it I don't know it's kind of weird to me but having said that I feel like this is kind of trying to pull a fast one where it's like well we're gonna have so she wasn't there, but like, she, she's familiar with the concept of body cams. Um, yeah.

0:43:50 Matt: The station, and she was there when he was brought to the station, so she can say, this seems to be what happened afterward. I understand what prosecution is saying, but I just for perspective, we have some very strict rules about when you're brought into a station and accusing you of drinking and driving, and you're you're being held basically, and they want to take a breathalyzer in Massachusetts. If you don't have station footage that is pristine from like the time they put you in that room to every single time you blow that thing, even if they make you wait 20 minutes in between, if there's even a blip in between they can throw that whole thing out and they don't get to see it. And you can have real issues with the breathalyser even coming in because they don'T have you on video personally doing it. They don'T know that some officer didn'T walk in and do it. Right.

0:44:30 Matt: I mean, who knows some some drinking drunk officer um you know this stuff really matters in terms of the the defendant's rights and you know minute for minute knowing exactly but like you said you actually just made me think of this you probably could just have a forensic tech guy who works for the police just say this is exactly the footage that as it was submitted to me and this is consistent with how body cam footage looks and it hasn't been messed with basically I feel like that might have been a cleaner way to do it but of course they didn't know they were gonna have to do that because mcdonald is kind of checking out last minute here that maybe would have been the perfect way to do it.

0:45:01 Lydia: Also Thandie's body cam isn't it and and saying well he's not available to testify it's like you just you can just do that I guess like he's just like sorry I'm not coming in like

0:45:11 Matt: Yeah, he's on vacation or something. Yeah, they never say where he is. But it's interesting, too, because the defense is going to mention that Thandie was on our list that we actually wanted to call him because I guess maybe they, yeah, sorry. But I thought that was interesting. And maybe strategy was they just wanted to ask a little bit more about the circumstances under which he made that admission. Maybe they're just reserving the right to talk to him and they noticed that the government wasn't going to call them. I don't know. Yeah. Yeah, no, in a sense, but it's also so typical of trials that nothing ever goes completely correct. Nothing ever goes right. And you can imagine it's something like the Young Thug trial, which is the longest criminal trial in Georgia history, right? There must've been things like this every day. I'm sure there were, given all the other realities we know about.

0:45:19 Thomas: Spoilers. No, yeah,

0:45:46 Lydia: Can you imagine the transcript bill for that if we

0:45:50 Thomas: Geez.

0:45:51 Matt: Let's do it.

0:45:52 Thomas: Yeah, well, fortunately, they have it all on video, so we wouldn't have to, right?

0:45:54 Lydia: Well except for any sidebars we wouldn't have those you

0:45:57 Thomas: Yeah? I'm creating this in my mind but I like the idea that they asked that officer uh I have a we have a vacation plan we've been playing it for a while we need you here to testify about the sandwich he's like nah I just don't nah I'm I'm good good good luck with that whole sandwich thing you're good no that's probably not what it is but it would be funny if If it were like, this is not, if it was like a serial killer, like, yeah, okay. We gotta, we gotta put this guy behind bars, but it's like, you want me to cancel my plans for the sandwich guy? Nah.

0:46:08 Lydia: Sir this is a subpoena yeah yeah

0:46:31 Matt: He actually volunteered for a super dangerous assignment just not to do this. I didn't want any part of it.

0:46:44 Clip: Can I just ask a couple questions before I turn it over to the defense? Yes. Whose body worn camera footage is it? It's Officer Thandie. He is on the scene. He actually does the transport. I take it he is unavailable to testify? He is. We'll start with that. Yes. So, with Thandie not available, the plan was to have Officer McDonald testify and lay the foundation, and then admit the body -worn camera footage that's Thandies' BWC, but through Officer McDonald, right? Correct, because it occurred in her presence. Right, so then because Officer McDonald has this medical issue, and in the event cannot testify, the plan would be to attempt to get the BWCs in through Detective Henry. If it weren't for Officer McDonald's health issue, Detective Henry would still testify, I just not as to this question, yes? That's correct. If it turns out that, again, let's assume Officer McDonald is, in fact, completely unavailable, and let's also assume that I say Detective Henry is going to be permitted to testify not only about what the detective was intending to testify about, but this additional video. Are those the only topics? Is that the extent of Officer Henry's expected testimony? You said something about a truncated version earlier. I did. Henry would start. We would talk about the incident itself, so you know she was actually on the corner. We don't plan to show her the CCTV, but just very brief clips of the video. We have some photographs. She will identify herself and some of the other individuals that were on the corner. We expect her to testify briefly about the incident and then the chase. And then you know where the defendant is taken into custody. Okay. Alright. What are the defense views on this question? Well, Your Honor, we don't plan on stipulating to its admissibility. If they want to introduce it we would ask that they introduce it through a witness who can lay the proper foundation it was a little confusing to me the explanation of how they thought that they could do that through detective henry I suppose we could go through that exercise during her testimony from the way I heard it they would not lay a proper foundation they were you should know we had noticed detective sandy as our own witness we were told he was out of town and then they were calling mcdonald which for this clip I understand how they would lay that foundation because she appears to be physically in the location when the statement is made but detective Henry is not I think I heard although I couldn't be sure that they planned on showing the video to her now that would not be an appropriate way to lay a foundation so your honor all I can say is again we appreciate that the witness is sick we don't wish her to be but if they want to get this piece of evidence in as the rules of evidence require they will have to find a witness who they can get it in through if there is no witness then that will be the evidentiary gap for them yeah so here's how I want to proceed I think we should start with detective henry okay let's take detective henri through the testimony that she would or detective henry would do regardless of whether mcdonald's available or not we will get to a point then where the government will attempt to lay a foundation through the testimonial of detective henry about the admissibility of this bwc and depending on the specifics I think I have a a general sense, but depending on the specifics and assuming there is still an objection, I will resolve it at that point. Okay? Your Honor, what the government would ask is if we just have a brief moment to show her the video. I mean, we are confident that she can, but she would be seeing it for the first time. Right. All you're really asking is for me to let you have 10 or 15 minutes recess before she starts testifying. Correct. You can do what you want in that recess, and obviously the defense can cross -examine the detective on this meeting and the like if it wants to voir dire her about the admissibility of this so we will take a recess we'll take 15 minutes we'll go back on at noon okay members of the jury we're going to take 10 13 really we are just going to take a brief recess we

0:50:28 Clip: Will come back on and noon we will resume I get that we're butting up against the lunch hour my plan is to be on the record half an hour or less something like that I think this is a more efficient use of our time than than going into a break right now for lunch. I'd like to get a little bit more work done, okay? Let's go into recess until noon.

0:50:28 Lydia: Look at the clocks

0:50:49 Matt: Let's talk about very quickly Federal Rule of Evidence 901, worth refreshing very quickly because, yes.

0:50:55 Thomas: Of my favorites.

0:50:58 Matt: So she is talking here about how we're not going to stipulate to admissibility. We're not gonna say that we believe this is automatically admissible just because you have this kind of convoluted plan to have one officer say they're in the room when this started, but not when you got to the part you want to play. And the judge is obviously just inclined to let this in, but I'll just read 901 so you can decide how this works. In general, to satisfy the requirement of authenticating or identifying an of item evidence, the proponent, the government in this case, must produce evidence sufficient to support a finding that the item is what the proponents claim it is. So they're claiming it is something that was a body cam that was worn in the presence of someone else, and that's what they're going to say it is, and so she's saying as long as you can lay this this foundation, you know, we're not going to stipulate to admissibility until we see how the foundation comes out, until we See that she was actually in the room at some point with the two of them, that she knows that Dandy was in the Room, that this is what it is.

0:51:47 Matt: Yeah, we are just going to make sure that you can do that. And that's sort of a, it's a little confusing about when she's talking about laying the foundation and the admissability itself. We'll And see how that plays out in Henry's testimony, the parts that will play. I will note too, I was looking into this, and there was at least one, when I was Looking into this issue, it looks like there's at at least one published case from Virginia, and I'm sure this is going to become more and more of an issue, but a very similar situation where they tried to get one officer's body cam in through the testimony of another. And it was actually specifically to show that the cocaine was on somebody in this drug possession case to establish the chain of custody for the drugs. So you're not talking about statements, you're just talking about a thing that was seen. And in that case, at least in Virginia, they found it wasn't testimonial hearsay, that it was basically just sort of an illustration. They called it, what do they call it? A independent silent witness that you have this

0:51:47 Lydia: Freebies interesting

0:52:34 Matt: Reliable camera that's just on. You know, it is different in kind from like a fixed surveillance camera that's going to be sitting in these things. And I guess we're going to find out exactly where they were. They mentioned the garage, but I was a little surprised that they weren't in a place where there would be a fixed -surveillance camera. They could just use that. I've seen plenty of that footage in police stations. That would have been a lot cleaner, but that's where we're at. Yeah.

0:52:54 Thomas: The key is that it's, somebody who was there. Like I have a hard time even understanding it. Somebody who is there for part of the video is going to say, yep, that's, I bet that's what the rest of it said. Like, I don't actually think that makes any sense. Yeah. Like I, I mean, I guess I don'T I DON'T know what the standard though is like, cause I mean for any evidence you could could, assert it's like doctored or something. It's not like any, any witness is going be like foolproof in that regard. Right. There feel like there's got to be something a little bit more solid than, than that. That doesn't quite seem right.

0:53:08 Matt: Last I knew his camera was running. So right.

0:53:31 Matt: Yeah. Especially because she's going to be watching a clip she's never seen before. So that's

0:53:33 Thomas: Yeah. I love that. They're going to... We just need a second. I need to finish my homework before, before court. I swear I did most of it. I just got to do a little, I just need to do it. I just needed a minute.

0:53:44 Matt: I mean, it's like showing our YouTube video. Like, yeah, that's a YouTube video, I guess.

0:53:47 Thomas: And then I also like that the judge is like, and then obviously, you know, Lydia can grill the shit out of you over why the hell is this the way you're doing it?

0:53:55 Lydia: Exactly.

0:53:56 Matt: Right?

0:53:56 Thomas: In terms of boardeering. I hope we get that. I haven't looked ahead.

0:53:59 Matt: Yeah, there's a bit.

0:54:00 Lydia: That'll be fun.

0:54:00 Matt: There's a good.

0:54:01 Thomas: Spoilers. Trying to set up suspense.

0:54:03 Lydia: Find out when we get there.

0:54:04 Thomas: Yeah.

0:54:06 Matt: But it is it's this is a very interesting issue just to follow in this little portion of the trial and I mean they've already provided everything they need to convict Sean Dunn right they don't need to him to actually say I did it I threw the sandwich but it's extra nail on you know in the coffin here or it should have been I guess from their perspective um they couldn't live without this this this is how you do it she's on the the list body cam foot is important you do have you know what would otherwise be a pretty bombshell moment where the defendant is just admitting to it so uh without that counsel. It's worth the fight, I guess. It's also just worth seeing how it plays out once things don't quite go the way you expect it to go in court, which is all the time. All the time, I can't emphasize how much.

0:54:43 Thomas: They don't let anyone like Skype into court. You can't be like I we had the witness make a uh iPhone video saying yes this is the they don't do that huh they

0:54:56 Lydia: We did that in Georgia, right? So does it just depend on like jurisdiction? Yeah, I remember it was that Fonny Willis's friend zoomed in.

0:55:00 Thomas: Did that in georgia hmm

0:55:06 Lydia: Yeah.

0:55:07 Matt: Yep. The housemate or whatever.

0:55:08 Lydia: Yeah, the one that testified to Wade, you know, like visiting and all that stuff.

0:55:14 Matt: I think for federal court, I'm not sure. I

0:55:16 Thomas: And was also so that the judge could decide something right I don't know if it matters but it think the judge was making a determination a little bit different I don't know if that is that different than when a jury is like in turn

0:55:25 Matt: It was still an evidentiary motion hearing. So it was still sworn testimony. It it was still potentially evidentiary admissibility issues of, I mean, usually I've done things like this with video witnesses where they hold a passport up to the screen or something. And, you know, that's the person that says it is. I don't know how it works in federal court about if you can have video testimony. Maybe Officer McDonald just wasn't up for it. Maybe it's an uncomfortable day.

0:55:48 Thomas: Her dad was killed by a sandwich which that's too hard to, too emotional.

0:55:51 Matt: It's very, very sticky. Yeah. Tough situation.

0:55:53 Lydia: Her eyes actually swollen shut from crying. Over the loss of her dad with a sandwich

0:55:57 Thomas: They're saying it was a salt, pepper, oil, vinegar infection. It's weird. They're telling us there's some sort of a mustard infection. All Well, that was a lot of fun. We got a lot more to come, but much interesting stuff going on. We're like halfway through this transcript for this day one anyway. Anyway, so lots more to go.

0:56:16 Matt: Yeah yeah there's and yeah

0:56:17 Thomas: I can't wait to see this guy get grilled on this weird chain of custody type evidency thing.

0:56:23 Lydia: A woman but yes dana

0:56:24 Thomas: Oh, wait, who's good? No, I meant the bad lawyer. You're right, though. Yeah, I guess not technically grilling the lawyer, but I just meant in terms of like the bad law. Lawyer is me and the good lawyer is you is what was in my mind wait

0:56:26 Lydia: Henry oh oh but yeah yeah yeah wow

0:56:37 Matt: And uh then of course from there we'll have uh some interesting conversations about finishing up the jury instructions and I'll get into all that a little bit and then we'll get to closings uh the dramatic conclusion of our sandwich trial

0:56:49 Thomas: Right well thanks so much for listening everybody uh thanks matt thanks lydia and we'll see you next time It's fine as a concept. That's nothing wrong.

0:56:54 Matt: See you

0:56:55 Lydia: There's out

0:57:20 Matt: All love a sandwich.

0:57:21 Thomas: Let's not go too far like I don't want to horseshoot theory this yeah that chair is squeaking more than normal you gotta uh can you I don't know if maybe rock bash something or

0:57:21 Lydia: We all like sandwiches.

0:57:23 Matt: I guess I am going to situate myself that I am not moving. Yeah I know. Okay, I'm not moving,

0:57:32 Thomas: Or just like get maybe needs to get some squeaks out you know just like like sometimes you just you know like loosen it a little bit yeah