Another episode with Troy, my, uh, my law clerk from upstairs

>> Steve Palmer: All right. Lawyer Talk. They didn't teach you that in Law School. Another episode here with Troy, uh, my, uh, my law clerk from upstairs. You say the law clerk. It just doesn't mean anything. But what you're really doing up there is you're helping us do, um, everything from, um, you know, sometimes you got to get lunch. Sometimes you got to, uh, answer, uh, calls. Uh, sometimes you got to do some research projects. Sometimes you help us put factual defenses together for case. So you're doing just about everything in a small firm, I think, at the big firms. Don't go to big firms. You don't want any of that nonsense, because all you're going to be doing is sitting in a room with a bunch of other, um, people on their laptops researching stuff. And that's no fun.

>> Troy Henriksen: No.

>> Steve Palmer: Um, anyway, this series sort of is born from that, though. It's like you have all these questions that are coming up, uh, amongst your buddies, both in and out of Law School. And, uh, I have found over the years that they don't teach you everything in Law School, and not because law school's not doing what it's supposed to do, although I probably have some thoughts on that. Um, but because it's sort of beyond the scope, this is the actual real world application of some of the stuff you're learning. And Law School isn't. Like, here's what you do when this happens. Here's how you handle this scenario. Law school is more like, they teach you how to process, learn, and deal with massive amounts of information. The sooner you understand in Law School that there is no answer, the better you will do, because there is no answer. There is no right answer in law. There's only the best one. And, uh, you might not even agree with my best one, but as long as you agree that there are different options, then you'll do well in Law School, I think, argue it.

>> Troy Henriksen: The best answer we've gotten so far is just always saying, it depends. That's like the go to.

>> Steve Palmer: And they've told us, yeah, that's my, uh. And anybody who's listened to me in Lawyer Talk, Q and A, or anywhere else, even in, uh, you hear me, hear me talk to clients all the Time as I walk around my little headset on, it's like, I'm gonna give you the classic lawyer answer. It all depends. And because it does all depend.

The defense had filed a motion for a change of venue

Now, last week or a couple of weeks ago, we talked about this, uh, coworker case, um, and a change of venue. You have now produced paperwork.

>> Troy Henriksen: Yes.

>> Steve Palmer: Which is the decision. So, basically lay out that. Where were we on this? Uh, the defense had filed a motion for a change of venue.

>> Troy Henriksen: Yep. So the defense, uh, made a motion for change of venue in January, and it was a 320 page motion. Uh, I did not read through all of it, but I was skimming it. And then based on that motion, the judge, I believe, last week came back with their decision here, which you have, and it's 20 pages, a lot lighter read. Uh, but it summarizes what this defense made in their motion, which they brought four experts in, that, uh, they determined that Lauda County, I believe, is the name of it, is where this was. Was. It's going to be prejudicial, and they want to move it to Ada county. And. Which is Boise.

>> Steve Palmer: Which is Boise.

>> Troy Henriksen: Yeah. And so he's transferred 300 miles, and now Brian Koberger is in Boise, and they're going to try the case in Ada county now. And the experts lay out, like, a lot of good reasons as to why it need to move. Yeah. And, um.

An Ohio appeals court is considering whether a fair trial can be had

>> Steve Palmer: Okay, so, look, let's talk about this, because I use this as sort of my kickoff to talk about one of my favorite cases here in Ohio, the Sam Sheppard slaying up in, uh, Lakewood, uh, Ohio, because that was like, that's a huge pretrial publicity type case. But this is a little bit different. We're talking about a change of venue and whether a fair trial can be had with the jurors on the ground in the small county where the crime occurred. And what I really like about this, and this is the part they don't teach you in Law School, is the really good lawyering that occurred here. Um, it would be easy for a defense lawyer to simply say, come on, judge, we all know what's going on here. There's no way this guy's getting a fair trial here. There's no way that, uh, these jurors haven't been contaminated in some way, shape or form. This is a tragedy, the highest order. And it's been overblown, and not even overblown, but I, um. Even underblown, it's still almost impossible. You would be arguing that, and, you know, that wouldn't be a horrible way to argue it. Um, but what they did here that I like is that they went and found experts. And do you really need an expert to tell you that it's going to be unfair in this small county?

>> Troy Henriksen: I don't think you need an expert, but it really helps, that's for sure.

>> Steve Palmer: It gives what. What we're doing in the real world of lawyering is what we want to give the court. The judge, uh, what he or she needs to make the decision in our favor. And sometimes you got to get a little creative, you know? And this is. I'm not saying this is creative, because obviously, that this isn't the first. They're not the first lawyers have done this, but they did do it. And they not only got experts, they got, like, they did some sociology type studies. Like, how many people are in this county? How many people have heard of this? What's the, uh. They did that kind of stuff.

>> Troy Henriksen: Yeah.

>> Steve Palmer: So they gave concrete terms. The law loves. Look, uh, the law is this really abstract thing. And when you start talking about prejudice, this is a term we throw around in our line of work all the Time. Well, judges would be very prejudicial to the defense, but you can't really define that. These lawyers gave the judge a way to define this. It's like, all right, there's only x number of people in this county. Of those people, we have this many that'll be called in to be jurors. And we know if you just statistically look at this, these jurors are going to be contaminated by all the hype and. And publicity, uh, of this mess. Um, on the other hand, if we go to a different county in Idaho, uh-huh. That's got more jurors, you're going to be less likely to find jurors who have heard about it, or if they've heard about it, they won't be personally impacted by it. And again, I don't think anybody needed an expert to really say that or to make that argument, because it's sort of understood. But they did that. And now what they have done, um, is they created a record. Now, they didn't need the record necessarily because they won the motion, uh, but they created a record. So if the judge would have denied this motion and made them try the case there in that small county, when the court of appeals looks at it, and you've done this with me now, you've seen when there's an appellate record and when there's not, when the lawyers, when you hear objection and there's no description about what the heck is going on, it's really hard on appeal to do anything about it. But here, if the judge would have said, no, I'm not changing venue, we're doing it right here. I don't give a crap. This is where it happens. Um, these victims are here, the families are here. I'm doing it here. And the only argument was, well, that would be really prejudicial to us, judge, and nothing else. Well, then on appeal, you're looking at, it's like, yeah, we don't really have any basis to overturn this. Instead, what they did is they gave the court all sorts of evidence, all sorts of information supplied, statistical analysis, whatever it is. They got four experts to champion their cause. And now that's all on the record, huh? Had the judge said no, and this guy loses his trial later, there would be a good appellate issue, because there's facts to support it. And I think it's also telling the prosecutor had nothing in return. Um, so, look, not only did they win it, had they have lost it, they did what they needed to do to preserve this guy's rights on appeal. Because everything. And I think you've probably learned this, and maybe they don't teach you this in Law School. Everything I do, I'm playing three dimensional chess, thinking ten moves down the road. If I lose this, uh, motion, I'm going here, and if I lose that, I'm going here, here and here and here and here. And if I lose the case, I don't want somebody to say I didn't do something here, even though it seems mildly, uh, significant at the Time. I'm making my record. I'm making it clear what I'm doing, why I'm doing it. You haven't sat through a trial with me. Um, but you've now seen a hearing, you know, and everything I do is calculated to an end. So if you hear me make an objection at trial, I will go up to the point where judges, prosecutors, they all get sick of me because I'm like, all right, judge impacts my clients right to due process. Due process of law under the 14th amendment to the United States Constitution and comparable provisions of the United. Of the Ohio constitution. Because. And then I make my argument because I now have made it a federal issue. These guys made their record. They made it a good issue. They made it really difficult for the judge to deny it. And you've heard me say that, make it hard for the judge to say no, meaning they have to give you reasoning now. And this judge agreed. So not only did they win, if they lost, they had a record. So, uh, uh, uh, uh. This guy at least had a fighting chance on this issue on appeal. So.

>> Troy Henriksen: And I do, like, like, the experts, I think, were, like, amazing. You mentioned that the jury pool being plewed. I think one of the experts comes in there, he says, 98% of Lada county, where this is at, they know of the case and then Ada, where they're moving. I think they determined, like, 70% know about the case. You're. I mean, you're given opportunity. 30% of your jury might not have ever heard of this, which in this case, where it was national news. That's. That's huge. You know, we have a jury that's actually like blind. Uh, um. But one thing I. I'm pretty sure. I don't know for sure. Um, um, he has a public defender. So you bringing this experts, how does that work? Because the State didn't bring any.

If you're indigent, you should have experts paid for at state expense

They don't just get blank checks. These experts aren't free. They're not government.

>> Steve Palmer: No, no, no. They charge a lot of money. So look, there's. I think the case is a ke versus Oklahoma, where the US supreme court addresses this. Um. Um. If you're going to the defense, if you're indigent, is entitled to have experts paid for at State expense. Um, and it's a due process problem if they don't, you know, because it's unfair to convict somebody just because they can't afford a defense. Um, and this is, ah, you know, this is. This is the basis, I think, you know, the old, uh, Gideon. There's a Book called Gideon's trumpet. They made a movie out of it, I think, with Henry Fonda. But, uh, Gideon versus Wainwright, that says you have a right to trial or, uh, right to counsel, even in misdemeanors. Um, or was that trial? But I might. I might be screwing it all up. But anyway, uh, the idea is indigence. Can't be. It would be. It would violate due process to deprive indigents of the expert assistance they need. So clearly here, the court supplied funding for experts, or somebody did it pro bono or they did it for free.

>> Troy Henriksen: I didn't really think about that. I mean, it's a big publicity case. I mean, if you're an expert that focuses on this, you say you won the Kohberger motion for change of venue. That's pretty good marketing material, I guess.

>> Steve Palmer: But, yeah, I doubt they did it for free. I guess they didn't.

>> Troy Henriksen: No, I imagine they didn't.

>> Steve Palmer: But, like, think ten grandd.

>> Troy Henriksen: Ten grand?

>> Steve Palmer: Think ten grand per expert. Five to 10,000 per expert now, depending, uh, on where you are. And so, like, uh, we're working on a case right now where I'm going to have the judge. I'm asking the judge for experts on a case I'm working on. I want an investigator. I need an arson expert. I need a cell phone forensics expert. I know in my private practice, each one of those folks would charge me probably 10,000, actually come in and testify. Um, maybe something less than that to just generate a report and something even less than that just to look at it for me. But at a minimum, no, hardly ever. You're going to find an expert that's going to lift a finger for less than 2500 if they generated a port a report, now you're closer to 5000. They come in to testify, think ten grand and maybe even travel expenses. Um, and that's times three here, right?

>> Troy Henriksen: Yeah.

>> Steve Palmer: So there's four experts or times four? Yeah, yeah, times four. So now the problem we run into is often judges and prosecutors have no conceptual understanding of what the cost is to defend the case. They don't get it. They don't get it. Um, they don't get that if I, you know, if we say, look, the defense is going to be $100,000, and they think, well, that's absurd, you know, I don't even make that in a year or whatever it is. All right, well, great. 40,000 is going to experts before we even start. I got another ten going to an investigator before we even start. Not to mention I got to keep my lights on in my office. You know, it's like people don't understand what goes into this. And so for this judge to grant that kind of funding, hats off. Is it a he or she? I don't know.

>> Troy Henriksen: It's uh, a he.

>> Steve Palmer: Hats off to him because, uh, that's a, that's a rare bird. That's a rare bird that will understand that this is just what it takes. Because look, the idea is to give somebody a fair trial. You don't get to handcuff one side of it because they don't have any money or because it's just a defense or because the guy's a no good rotten sob. Like those are the people we have to protect, right. Because, uh, if you start eliminating those protections for the people you hate, they won't be there for the people that you love.

>> Troy Henriksen: Mhm.

>> Steve Palmer: Right. Sooner or later the devil will turn back on you. And when those protections are gone, you will regret it and you will regret it dearly. It's from a man of all seasons, by the way. Go check it out. Oh, well, uh, all right. Anyway, uh, uh, they don't teach you that in Law School. They certainly don't teach you that last thing in Law School, but they might have teach you that in college? I don't know, uh, Lawyer Talk Off The Record, on the air. You can check us out at Lawyer Talk podcast. Hope you're enjoying the series. I am. This is the kind of stuff I love to do, and, uh, you know, it's sort of understood. But I'll say it again. Uh, we do have a legal practice right upstairs here in Columbus, Ohio. We practice all over. And, uh, happy to help you out if you have legal questions, however, or just legal, uh, issues you want me to discuss here on Lawyer Talk, check out the q and a series, because, uh, there's lots of questions pouring in. And how do you do that? Lawyertalkpodcast.com or wherever you catch your social Media, wherever you consume your content, whether it be the tick tock. I like calling it the TikTok.

>> Troy Henriksen: That's it.

>> Steve Palmer: For some reason, it sort of feels better, the tick tock. Uh, if it's Facebook, if it's YouTube, we are there, too. Uh, or you can get all the back episodes right there@lawyertalkpodcast.com. coming at you week in, week out, at least until now.