Steve Palmer here with Lawyer Talk, introducing another series.

Those who have followed us regularly know that I've recently introduced the Q and a

series that goes along with our normal podcast.

We also do The Blitz.

I'm going to introduce you to another series.

It's going to be called The Legal Breakdown lawyer Talk Legal Breakdown.

Now what are we going to do in the Lawyer Talk legal Breakdown?

We're going to break down legal issues

of the day, or maybe even some legal issues of the past.

Now, what do I mean by breakdown?

I mean, make it simple, make it understandable.

I think that all too often lawyers use big, fancy words.

They talk in mumbo. Jumbo.

Lawyers speak legal speak whatever you want to call it.

And I've made a career at least try to by avoiding that stuff and translating

what is really going on into plain language that everybody can understand.

I have this philosophy that I like to make everything

simple and almost everything can be made simple, even the most complex of problems.

Once you understand them, you can break them down and make them simple.

So that's what we're going to do here.

We're going to take legal issues.

We are going to take legal commentary that I'm seeing on legacy mainstream media

or anywhere for that matter and explain it in real terms.

I'm going to explain it with my backdrop

of 26 years of criminal trial experience and just being in the legal profession.

And I'm going to do my best to make sure

that I'm giving you the fair, honest assessment.

But I'm also going to give you my opinion.

I'm not going to hide that.

So without further Ado, let's jump right into our first Legal Breakdown topic.

Kyle Rittenhouse Trial anybody who has

followed this knows what's going on up there in Wisconsin.

Kyle Written house is accused of murder.

He was a 17 year old kid

involved in the rioting and looting or whatever you want to call it.

Last summer and took his AR 15 out.

And as he was meandering around through the crowd after

defending or going to defend one of his friends or cohorts businesses

ended up in some scenario where several people were shot.

He shot several people.

He claimed self defense, the prosecutors claiming murder.

And now we have

a trial and this I anticipate to be a big media debacle trial.

I use the word debacle only a bit facetiously because

I think it's going to be covered with a political bent on all sides.

And it's going to be interesting to watch

now, from my perspective, I'm a criminal defense attorney.

I love a good criminal trial.

I love breaking down good criminal trials

and explaining them to folks, and that's what we're going to do.

As this thing goes on.

The bit of news that gave me the idea or the impetus for this

happened yesterday, I believe, and the judge was making some pretrial rulings

and this is pretty common in criminal cases or any cases, for that matter,

the parties, the defense, the prosecutor, will go to the judge in advance of the

trial and ask for some guidance on rules of play.

We call those motions in lemony, which is fancy Latin.

Talk for an early decision on what we can do and what we can't do.

So we might have a motion limiting that says the prosecutor shouldn't be allowed

to introduce this evidence, this bullet into the trial, or they shouldn't be

allowed to introduce this character assassination of my client.

Or the prosecutor may say we anticipate the defense is going to call

a certain witness, and we don't think that that witness ought to be able to testify.

You're asking the judge to tell us in advance how that should go, what the rules

will be, whether that witness can testify, whether the evidence can be admitted.

And the reason we're doing this is because when we stand up in front of the jury,

say in voidir, when we're picking the jury or an opening statement, when we first

talk to the jury, we want to tell them what the evidence is going to show.

And if we don't know for certain that a certain bit of evidence will come

in to the trial, then we don't want to talk about it.

And we want to make sure that if the other side is about to talk about something

that we're going to object to, then we want to get that set out right now.

We want the rules set now

that they can't talk about it, not even an opening statement.

That's what's going on in the Kyle Rittenhouse case.

There was a request by the prosecutor for an order out of the judge preventing

the defense from using words like rioters looters and arsonists

to describe those who were either at the protest or those who were shot,

and they were suggesting or arguing to the court that these are pejorative terms.

These have a negative connotation,

and they shouldn't be used to describe the people who were shot.

Now, if anybody has

caught on, I'm not using the word victim, and this is part and parcel with the

headline news that we're seeing on this because at the same time,

the judge has a long standing order in his courtroom that prevents

the prosecutor in criminal cases from using the term victim.

Now this has a history.

So I guess I should note that it's my understanding here that

this is not a new decision out of the judge only in the written house case.

In other words, the judge didn't say for

the first time in Kyle Rittenhouse's case that the prosecutor cannot

use the term victim to describe those who were shot by Kyle Rittenhouse.

The judge has an order standing in his courtroom.

Apparently, that just says you can't do it.

Now, there's some history here.

I've defended criminal cases for years, and often

we almost take for granted that the prosecutors get up and say, Well, the

victim here was 20 years old or 15 years old or was an old man or an old lady.

And they use the word victim, victim, victim.

And there is some psychology about that that has some negative connotations

and can arguably contaminate the jury's viewpoint of the case.

In other words, if you start out calling somebody a victim before you prove it,

it's got a very negative connotation to it, and it can contaminate the trial.

So the prosecutor is saying, Well, I mean,

sauce for the goose is sauce for the Gander here.

If I can't use the word victim, they can't

call these people writers looters or arsonists.

Those terms are just as loaded as the word victim.

And the judge says, no, I don't agree. I don't agree with that.

Now you can imagine.

And let's stop there for a second.

You can imagine the headlines on the political side of it.

I see this one guy's writing,

forgive me if I sound contemptuous to this, because this isn't fair.

The defense can use these words writers,

looters, arsonists, but we can't call them victims.

How fair is that?

And they're making it sound like it's something that is grossly unjust.

I get it. It does look like that.

But I want to comment on a few things and

shed some light on the bigger picture here.

My understanding of the court order is that if there is evidence that establishes

that these folks were rioters, looters or arsonists,

then on closing argument, the defense can argue, use those terms and argue it if

they've established it or the evidence shows it.

And that's a little bit different than what the news is portraying.

Now, the long standing victim rule.

Actually, I'm in favor of that, because

that's a rule that applies across the board.

And in this case, the judge is saying it's no different.

I'm not treating this case any differently.

But if the evidence shows that these other

people or the deceased were writers looters, et

cetera, then let them argue it on close to at their peril, because if they don't show

that, well, then maybe it's not going to be so beneficial for them.

So I think the judge is trying to take somewhat of a neutral approach to this.

Like if the evidence shows it, then argue it.

That's something you can argue.

Now, there's also some more detail that

should be discussed here is that in order to act in self defense, which is

the defense, you have to respond to what is happening to you.

I can't shoot somebody

and cry self defense if I don't feel like I am in danger.

If I don't feel like I have a reason to do it, and if I don't do it, I

will be killed myself, or I will suffer serious bodily harm and what

the defendant perceives there reasonably and objectively as well

as subjectively in his own head, as well as how everybody else

around it might perceive it also is very important in that context.

It is sort of a substantive or a critical component of the case,

what the people around him are doing, and specifically, what the victims are doing.

And I'll use the word victim there just for fun.

So if the people who were shot are

acting irrationally, are rioting, are committing serious crimes.

Well, that may be relevant for the claim of self defense itself.

And all the time, we have to be mindful of something.

It is not always sauce for the goose is sauce for the Gander.

When it comes to criminal defense, here's the thing.

Criminal defendants have constitutional rights.

And I've heard it both ways.

While all these defendants, they get so

many rights these days, they might as well just go commit crimes with impunity.

I'm here to tell you,

if you've been charged with a crime and you didn't commit it or say it's like

this, it's self defense and that's your claim.

It's your SEC doesn't feel like it at the

time that you have any real constitutional rights, they are very limited.

You have a right to remain silent.

Anything you say can and will be used against you.

Everybody knows that standard verbiage at the initial stages.

That's about it. Do you have a right to a lawyer?

Once formal adversarial proceedings have

started, that's again, lawyer, fancy talk to say once charges are filed and

you're going to be accused of a crime, you have a right to a lawyer and they can

appoint one for you if you can't afford it.

And then you get to a trial.

There are certain trial rights that criminal defendants have.

And I'm sorry to say this.

Actually, I'm not so sorry to say this.

The government doesn't have the same

rights, and there's a reason for that that we'll get to.

We on the defense side have a right to remain silent at trial.

They can't force us to take the witness stand.

They can't force us to climb on up there and tell the jury

what we did and subject ourselves to questioning.

We have a right to have an attorney represent us at that trial.

We have a right at that trial to be presumed innocent.

And that presumption can only be overcome by evidence presented by the prosecutor

beyond a reasonable doubt to the satisfaction of each and every juror.

That's again, I'll break this down.

It's all fancy talk for saying we are presumed innocent.

We start not guilty.

And until they offer evidence

that convinces everyone, the jury, all of them all twelve here in Ohio,

beyond a reasonable doubt that the prosecutor has proven their case,

then that presumption stays intact and the defendant cannot be found guilty.

We enjoy that right.

All of us as citizens, when we go into a

courtroom, we have the right of confrontation.

The 6th Amendment. Most of these are Six Amendment rights, by

the way, but we have this right of confrontation.

What's that mean?

Matt Lock, Perry Mason, whatever the legal show of the day is or the criminal

defense show of the day, your lawyer gets to stand up and question

and cross examine the government witnesses.

And I call it a Matlock,

because if you get one of the witnesses to confess

to the crime instead of your client, then you've matlocked them.

But the idea is we get to confront our accusers.

We get to say, I want to challenge what they're saying.

This is an adversarial clashing of ideas and the notion that truth can only be had

if this is permitted still rings true in our system,

and most other systems are letting that go at an alarming rate.

So I get to get up and question the government witnesses.

Now, the corollary to that is the right to compulsory process.

Now, that's again, fancy talk for saying I get to subpoena witnesses to come in.

In my own case, I can slap subpoenas on witnesses and have them show up to court.

And in theory, if they don't show up, I can use the

strong arm of the court system or the government to go drag them into court if

they've been validly, served with a lawful subpoena.

And I tell clients all the time.

Look, we can subpoena folks to come in.

I can't make them say what we want, but we can at least get them to court.

Now, beyond that, we get to subpoena Duchess, take them fancy talk.

We'll break it down. It means please bring with you, bring

documents with you, bring your diary, bring these records,

bring whatever we want with you into court.

And that means that I can subpoena, say, a government witness, a police officer, and

bring with you the recording of this conversation.

Bring with you your police report on this particular incident.

In certain cases, it becomes quite powerful to subpoena folks

to come into court and use that power of the right of compulsory process.

Now, these are individually

important rights, but we sort of look at them together as a right to present

a defense, a right to go into court and defend ourselves.

And this all started this discussion here today started with this notion that

we the defense have constitutional rights that the government doesn't have.

They don't have the same rights.

We get to do things

by constitutional right that the government

doesn't always get to do and fair or not, that's just how it is.

Now, how do we justify that? Well, because they have all the power.

And anybody who thinks that it's the same,

all you have to do is just go experience the criminal justice system on the defense

side, just for a short period of time, you're going to realize that

when you need an expert, you have to pay for it or beg the court for funds to pay

for it when you need somebody to investigate something, you have to pay for

it or beg the court for funds to pay for it.

And I'm here to tell you, it's not always easy to get the money.

Now on the government side say it's a federal case.

They have the FBI, they have the ATF Homeland Security Drug Enforcement Agency.

They have really endless resources to go

track down what the United States attorney needs to make their case.

And it is not fair.

It is very lopsided, even with the constitutional rights.

What does all this have to do with the written House case?

Well, here's the thing.

Written House has a right to present a defense.

He has a right to present self defense,

even if we don't agree with that, even if you're on the other side and

say this is all crap, no way he acted in self defense.

Well, he has the constitutional right to

go into court and present it and offer evidence in support of it.

And if he goes into court and proves that he was afraid of these people

because they were rioters, because they were looters, because they

were arsonists, and because they were attacking him, on top of all of that,

that is part and parcel to his fundamental constitutional right to present a defense.

And we may not like the seemingly

inconsistent ruling out of the judge, but it's really not an inconsistent ruling

because at the end of the day, at the end of the day, the defense still

has to prove these things before they can make that argument.

And it is also true that so many times

defense attorneys overreach they will go into court and start slinging around these

pejorative terms without the evidence to prove it.

And that can backfire, in fact, does backfire more often than it's helpful.

So don't discount

the ability of the jury to get to the bottom of this on their own.

Now, as far as the term victim goes,

there's lots and lots and lots of commentary on this.

Just Google it.

But the idea is you don't want to contaminate early on

a jury's notion that this is a victim, and it's sort of like subliminal messaging.

If the government, the court, and all those involved start

using the term victim at the outset, it sort of presents a presumption that

there is a victim there, and that is the same as saying somebody is guilty.

So if somebody is a victim, that means they have been a victim of a crime.

Now, if somebody is an alleged victim, as the judge in Written House said,

that's just a kissing cousin here to the word victim.

So look, I sort of got to respect the

judge for that decision and his ongoing policy in his courtroom, because

here in Ohio and death penalty cases in other cases, I've often

asked the court for an order requesting the prosecutor to refrain from

using the term victim and we don't get a whole lot of play out of that here in

Ohio, but we try our way of dealing with it.

If I don't get the order is to stand up and call them on it.

I'll stand in front of the jury and say,

look, you're going to hear in this case the word victim, and it sort of bugs me.

It bugs me because it presumes something almost like a sneaky little presumption

that my guy is already guilty, that they're already saying that this person is

a victim and giving them that moniker is a dangerous moniker.

And then on Voidir, I'll ask the jurors to

give me their thoughts on it, and sometimes I can unravel it that way.

I think the best defense to

things like that is to call it out in the open exactly what's going on.

And I've said for particularly in the last several years

with the politically charged climate here, this is a criminal courtroom

is sort of like the last bastion of open adversarial clashing.

And to the extent that folks want to limit rights that they want to limit the

process, do so at your own peril, because I've written a couple of blogs

that are thinly veiled commentaries on political stuff.

But one of the ones I'm kicking around is you

do not want your criminal defense lawyer to be woke.

You don't want a woke criminal defense lawyer because you want your criminal

defense lawyer to be able to defend you, however they need to and don't hold back

just because you're worried about some perception.

I think jurors have an innate ability to cut through the nonsense.

And if you're using terms that are pejorative, it's going to backfire.

If you can't back it up.

If you're trying to avoid a certain defense tactic, that would

otherwise work because you're worried about offending the woke crowd,

you're compromising the adversarial nature of the process.

And again, the clashing of these ideas.

The adversarial fight in a courtroom is

how we get to the bottom of things is how we get to the truth.

And anybody who thinks that government

witnesses don't lie and they always tell the truth.

Well, they're mistaken.

Anybody who thinks that the defense is always an overreach against the defense.

Well, you're mistaken, too. It's somewhere in the middle.

And the only way to find the middle is through the natural clashing of ideas

in the courtroom, on a playing field built on the fundamental constitutional

protections that are so important to the system.

So the legal breakdown for the day, what's the take away?

All right, this ruling, there's an easy way to make it sound

unfair or biased or otherwise foolish or inconsistent.

That's not what's going on here.

The judge has a longstanding ruling that

doesn't permit the term victim, and that's for good reason based on lots and lots and

lots of criminal cases and experience in that courtroom.

In this particular case, there are terms like arsonists or rioters, et cetera.

That may or may not come up, and the judge is saying, all right, well,

I'm not going to create a blanket rule that you can't use those terms, but

you got to have evidence and you got to establish it first and then you can.

And if you try to go out front and use those terms and then don't

establish it, well, that's going to hurt your case.

I don't think anything is inconsistent about this.

I think what this judge is trying to do is to make sure that he gives written house

a fair trial and that at the bottom of everything is the goal.

I don't care where you stand politically.

I don't care how unpopular the cause.

I don't care how unpopular the defendant.

He has to have a fair trial

because next time it is you or the ones you love and what was taken away in the

written house case will not be given back in the case that you care about.

So as we watch the written House case unfold

as we listen to these awful pejorative arsonist writers, looters terms.

Stay tuned for more lawyer talk legal

breakdown on this and plenty of other topics.

And remember, this does not need to be a one sided Steve Palmer alone discussion if

you have questions, if you have comments, check us out.

Lawyertogodcast.

Com you want a legal concept

to be broken down or part of the Legal Breakdown series?

Just send me a note.

You got a legal question you want me to answer on the Q and a series?

Send me a note, lawyertalkpodcast.

Com and as always, you can look us up at the law firm ohiolegaledefense.

Com. That's Javajam Palmer.

If you need legal representation

for any criminal matter or anything else for that matter, give us a shout.

614-224-6142 in fact, just put the number in your phone right now, and that way you

have it on speed dial when you're needed or when it's needed.

So for now, we're going to wrap up the

first legal breakdown lawyer talk legal breakdown.

And as always, we are off the record, but on the air, at least until now.