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Listen to the 48 hours podcast

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Listen to 48 hours, wherever

0:27

you get your podcasts. Hi

0:34

and welcome to this week's sidebar. We're here

0:36

to discuss episode five, Cat and Mouse Game,

0:38

of season two of Proof. And

0:54

we're here this week with Jacinda and also

0:56

a special guest, Bob Motta from the

0:58

Defense Diaries. Hey, Bob. Hey,

1:00

what's up, ladies? Thanks for having me. Great to have you

1:03

today. Now, Bob is a defense

1:05

attorney as well, so we really wanted to have

1:07

him on to talk about Jake's trial, everything that

1:09

happened there, which we'll get into shortly. Bob,

1:12

for people who don't know your podcast, you want

1:14

to give us a pitch reel on the Defense

1:16

Diaries? Sure. I'd

1:19

say two and a half years ago, I decided to,

1:22

unlike Susan, I abandoned the law game and

1:24

left my wife with all of our clients

1:26

and all the enormous amount of work. So

1:28

she's the hero of the story because she

1:30

allowed me to come and

1:33

really follow my dream. And

1:35

I wanted to do a podcast because I

1:38

had these Gacy tapes. My father was

1:41

John Wayne Gacy's attorney back in 1979, 70, 80. He

1:45

was his trial attorney. Many

1:47

years ago, he gave me all of his taped

1:49

interviews with Gacy, which I

1:52

held on to. And it was him prepping his

1:54

client for trial. And Gacy had waived privilege all

1:56

the way back then because that's how he was

1:59

anticipating that. Sam and my father were

2:01

going to get paid on the case and I didn't

2:03

know what to do with them. And as

2:05

I grew older and podcasts

2:07

became a thing, I started

2:09

thinking with the concept of

2:12

doing a podcast. And ultimately

2:14

that's what I did. I had first season,

2:16

which was a serialized season on John Wayne

2:19

Gacy, but it wasn't really about Gacy. I

2:21

really wanted to focus on the victims. I

2:24

wanted to focus on the investigation, the arrest

2:26

and the trial and what I

2:28

uncovered in terms of how the police actually

2:30

got Gacy under arrest is mind blowing. Frankly,

2:32

it was, I'm not going to give a

2:34

spoiler, but when I say it's mind blowing,

2:36

it's insane. And it's epic. It's 36 episodes.

2:38

So if you're into deep

2:40

dives, it is a very, very

2:42

deep dive. And I play the tapes, but I can

2:45

weave them into a narrative. It's not

2:47

like just me playing tapes. I just

2:50

try to fit pieces of interviews between

2:52

my father and Gacy where he's preparing

2:54

them for an insanity defense case like

2:56

throughout the series. And we think it's

2:58

pretty good. And then

3:00

our second season is a case

3:03

that my wife and I handled and my

3:05

father, actually in Omaha, Nebraska, Dr. Anthony Garcia.

3:07

He was accused and

3:09

ultimately convicted of murdering four

3:12

individuals over a five year period

3:14

and two double homicides on a

3:16

revenge theme by the

3:18

state in that they felt that he

3:20

was seeking revenge for being fired seven

3:22

years earlier from his residency

3:25

in the pathology department at

3:27

Creighton Medical School. So

3:29

it was a crazy, crazy case. Procedurally,

3:32

it's unbelievable. There are a lot of

3:34

similarities to what's going on in Delphi

3:36

right now in terms of the

3:38

procedural side of it, not even getting

3:40

to the trial portion of it. It

3:43

was a hard fought case. Let me put it that way. It was

3:46

a death penalty case and we

3:48

believed in our case. So we

3:51

took it to the mat. And then the other

3:54

thing that we do is the docket. And there

3:56

I was smart enough to bring my brilliant wife

3:58

on and she co-hosted with me. and

4:01

that's where we cover all the current and

4:03

kind of breaking news and we've covered a

4:05

lot of cases there and it's more of

4:08

a banter show whereas my serialized is just

4:10

me scripted you know kind of going through

4:12

the story so that's basically the one on the

4:15

short. We think it's a pretty good pod and

4:17

we'd love to check that out. Yeah

4:20

please do if anyone hasn't listened check

4:22

it out available everywhere you listen to

4:24

podcasts. And as you've mentioned

4:26

a little your background for this was as a defense

4:28

attorney. Yes. And I'm

4:31

curious to hear your thoughts from a attorney's

4:34

perspective on what happened

4:36

to Jake's trial. It's

4:38

like I'm sure Susan that

4:40

when you kind of started digging into

4:42

it you were you

4:44

were frustrated the evidence or

4:46

lack thereof in the conviction

4:48

of both Ty and Jake

4:51

it's stunning to me and

4:53

it's frankly it's terrifying and

4:55

when you have a case like this

4:57

as I listen to the first five

4:59

episodes it's so frustrating and

5:01

it's so so scary

5:03

because they have no evidence whatsoever

5:05

linking either of them. Well

5:08

I feel like Jake's conviction I've seen before like

5:10

this case reminds me of a lot of

5:12

cases I've worked on I'm not shocked by the

5:14

fact there was a guilty verdict. It makes sense

5:17

to me like it tracks with similar cases where

5:19

things went haywire but I'm familiar with

5:22

that kind of progression. Ty's

5:24

trial still shocks me that was

5:26

still a gut punch even after

5:28

working with cases for years now

5:30

because Ty's trial had nothing. Nothing.

5:33

It's a reminder that I can't really can't

5:35

have nothing and a jury can still convict. Took

5:37

them four days so you know they were hemming

5:39

and hawing over it but it is still yeah

5:41

it's almost kind of an indictment of the jury

5:43

system. I mean it is. In no universe should

5:46

reasonable doubt have been exceeded at

5:48

Ty's trial. Yeah and it's with

5:50

Ty especially they didn't have that motive

5:52

which we all know that you don't

5:55

have to prove a trial but people

5:57

love it. State loves it. They

5:59

love being able to tell the jury why. This

6:01

is why it happened. The jury

6:03

sitting there wondering why, which is

6:05

what they should have been wondering with

6:08

respect to Ty. You know, like where's the

6:10

motive here? Sounds like he was a thief,

6:12

you know, kind of a schmuck, but

6:14

not like a violent dude. His

6:17

daughter said it best, I think, when she pointed out

6:19

like, so you're telling me my dad is

6:23

at a party raping and murdering

6:25

everyone's friend and they're just standing

6:27

around watching? Like that doesn't

6:29

make sense. It's

6:31

implausible. It's like the accused, you know, with

6:33

Jodie Foster. It's like, except it's high school

6:36

kids instead of a bunch of drunk dudes

6:38

in a bar, you know, like

6:40

that's what you're subbing out that just

6:42

happened or they're alleging happened in

6:45

this Home Depot construction site. And

6:47

it's like, there's no way if

6:49

we're talking 25 to 30 people, I'm

6:53

fairly certain just about anybody could have

6:55

been stopped. And I just can't

6:57

see a world in which a bunch

6:59

of girls would be

7:01

standing there just watching this happen.

7:04

And there's just no way Susan said it. I don't know

7:06

if it was in three or four, we were talking about

7:08

there is no world in which 25 kids

7:12

have been able to keep this secret

7:14

for all these years. There's no

7:16

way that is an impossibility

7:19

to me. That to me is the

7:21

biggest driving factor in not

7:23

only Ty, but Jake's innocence. Like I

7:25

just, I cannot see a

7:27

world in which that exists where somebody's

7:30

not sitting there for all these years,

7:33

knowing that either this happened or it didn't happen.

7:35

But especially if it didn't happen, just

7:37

not feeling guilty. Like oh my

7:39

God, these two guys have been in prison for 25 years, or going

7:42

on 25 years. And

7:46

like I have the ability to get them out. You

7:48

know, it's like, it just seems, it

7:51

seems impossible to me. It really does. Well,

7:55

in this episode, We do cover a

7:57

lot of the evidence they had against Jake,

7:59

mostly other teenagers. Who knew

8:01

him or new Renee and say about

8:03

their least said but we actually did

8:05

not cover some of the. More.

8:08

Significant evidence the state's case. There. Were

8:10

two witnesses call a trial who were

8:12

second probably only to Jasper? It was.

8:14

Now we didn't include them in episode

8:17

reasons look into it a bit. But

8:19

here is what those two witnesses and

8:21

I encourage way to and testified to

8:23

attract. After

8:28

in a murder just a thought, in some

8:31

legal trouble with a couple of auto theft

8:33

charges. During the months that investigators were interrogating

8:35

him, he was in and out a juvenile

8:37

hall. To the teams

8:40

that Josh was unduly with were try to

8:42

and and Ryan curve. They were all part

8:44

of the same state crew. A group called

8:46

them Crew a Jigsaw the had been into.

8:48

That have made them all As Troy

8:51

once described it: Grim Brothers. And

8:54

Jake had confessed to two have his crime brothers

8:56

that he had killed her name. In

9:02

February two thousand one sixteen year

9:04

old Switzerland was in juvenile hall.

9:06

The does have to Susan Well

9:09

schemes. To

9:11

a told them she did hosting a party at

9:14

his house when nights when the sun ring. It

9:17

was checked silver. And

9:19

take some it of said she sounded like he

9:21

needed to talk to some. Jake

9:24

tell stray over the sun he didn't

9:27

matter in a for cheating on him

9:29

so another friend of his has suggested

9:31

hey let's see says brought a. Lesson.

9:34

Let's get are high and raper.

9:36

So Jake and sushi and five

9:38

others. Six

9:40

a grenades and later up road race

9:42

and then after to. Jake.

9:49

And the call by telling trade the

9:51

he now needs to flee town and

9:53

that he'll probably go to Nevada or

9:55

something. Seventeen.

9:58

Year old Ryan Kerr to. Caesar

10:00

and Wells. A similar story. He

10:03

said he'd been x rays house partying

10:05

when Jake called. Ryan

10:08

and grabbed the phone. From try. And.

10:10

Jake told him about how. On

10:12

Memorial Day, she and Tie.

10:14

And Sooty, Andrei had all been

10:16

riding around in their white trunks.

10:19

When. They picked up Renee and took her out

10:21

to the orchard. There.

10:24

They quote beat the hell out of her. And

10:26

then they took her to Home Depot. Were Jake kills

10:28

her? And they all racer. In

10:31

that order, I.

10:37

In the I you those. Stories

10:40

line up with serve. With. The

10:42

pathologist or he added other cause

10:44

of death was strangulation. They're absolutely

10:46

not. That's part of why. So

10:50

frustrating for these two stories don't match

10:52

at all moreover and sat in the

10:54

story so masses other because i wonder

10:56

boys try to and says that Ryan

10:58

the other was not as party ryan

11:00

like and certain seven to the party

11:02

after the fact that the corn detroit

11:05

version of it right but even there.

11:08

But and closing arguments Prosecutor Charles Schulz

11:10

mentions of them my name of city

11:12

Times and talks about how like they're

11:14

so amazing a cropper at each other

11:17

and state's case and ask. The jury

11:19

how to the a made the sabbath and went

11:21

through a while to make it up. But like

11:23

Jasper hosts, both of them recanted. A trial began.

11:25

The stance or they may the holding up never

11:27

happened. One of them testified. I just

11:30

told the detectives with a one here I didn't

11:32

think I believe me with an eternal. A lot

11:34

worse than I thought. Wow.

11:36

So. The recanted trial and so what

11:39

happens to they have to try

11:41

to teach their own witness a

11:43

trial. Atla, Texas, Gotham say here

11:45

so they told me and as the troopers

11:47

underlying understand to they're all pretty grim crew.

11:50

And Grand Cru kill them as a. As

11:52

I publicly some other line now. Oh

11:54

my god are they are

11:57

marauding bands of like skateboarder.

12:00

murdering like skateboarding for ooze like

12:02

a real thing. That

12:04

leisure world are you certainly not. My

12:06

son was a skater. you know, like

12:08

a hardcore skater and these guys were

12:11

like. The. Furthest thing. From.

12:13

Like murderers you know these are my bikers.

12:15

Izzard blade skate punks with like to sit

12:17

up this go every state everywhere. all the

12:20

care about a skating and learning how to

12:22

ali and do tricks like that's with their

12:24

life revolves around. Certainly not. Murdering.

12:27

And you know, word slinging drugs on

12:29

the side and the whole thing to

12:31

seems insane to me. But luckily eatery

12:34

Bernier he was problematic. And they are granted

12:36

and curve older place and. Perfect damage with a

12:38

big issue. As real

12:40

yeah I did see that them the

12:42

are grinding on rails like people did

12:44

try to walk down like flight of

12:46

stairs and subdued Li grinding down the

12:48

rails they had the other the streets

12:51

of those the kids. I can tell

12:53

that I was probably real big motive

12:55

for them behind the law enforcement cited

12:57

in this case of Peculiar. I hope

12:59

y'all get some calls. I I hope

13:01

I hope I hope that somebody really

13:03

comes forward and urges are asking. You

13:06

to of every episode you know anything about

13:08

the case and I hope you get one

13:10

of those calls. I really do is a

13:13

fresher in case in so many ways because

13:15

it's just it's shines a light and you

13:17

know kind of the words of our system.

13:19

you know in. The.

13:22

Desert. I mean, it's the bus that there is,

13:24

I guess. You. Know, but it's still

13:26

got a lot of flaws. Barbie

13:28

weapons interesting I ever encountered before. But.

13:31

In this case, when they had their soon

13:33

prospective jurors come in and give them a

13:35

questionnaire where they say like do you know

13:37

any leave the witnesses one of those possible

13:39

jurors ticked off that she knew when the

13:41

two boys and she wrote. And

13:44

his and. He. Told me that he

13:46

did tell the police. The take us to him.

13:48

but if he'd made the whole story up, trying

13:50

our duty. And. Was the

13:52

charges like scrambling to like excuse for

13:54

usury? Allow And that was

13:56

it. Just. Only.

13:58

shit No, I

14:01

have never run across that and we get

14:03

those jury questionnaires as well. Ask

14:05

if you know any of the cops or the

14:07

witnesses or judges or lawyers. I've never run into

14:09

that, ever. Wow,

14:12

that's crazy. That's

14:15

the frustrating thing is that and I forget

14:17

who it was. I don't know. It

14:19

was somebody that you guys were able to interview and

14:21

he was talking about how it is

14:24

to be a 16-year-old when

14:27

the cops are coming at you like that. You're

14:29

just trying to get out of the room and

14:31

they have you in there for hours and they're

14:34

saying they know this and they say they

14:36

know that and then ultimately you're just saying

14:38

whatever the hell you think that they want

14:40

to hear so that you can get

14:42

out of the room because kids aren't

14:47

thinking about it in terms of

14:50

long-term ramifications of what they're saying

14:53

in the moment. They're not

14:56

doing that because their minds aren't completely

14:58

formed. Where the hell were

15:00

their parents when they're interviewing all these kids? Were

15:03

their parents in the room? No. Oh

15:05

my God, that's insane. I

15:08

mean, it's insane. The

15:10

whole case is insane really. They mostly would just go

15:12

to the skate park, pick up the kids there and

15:15

talk to them so the parents aren't even aware it's

15:17

happening. Then drop them back off. Yeah,

15:19

crazy. You're right. The kids, they

15:22

don't think ahead. They don't know what they're saying

15:24

could have long-term effects also because it's so ridiculous

15:26

to them. They know they're lying and they assume

15:28

the cops will realize they're lying. In

15:31

the case of Troy Toolin and Ryan Kerr and the reason

15:33

we don't talk about it in the show is because we

15:35

know they're lying. We know they made the whole thing up.

15:38

We know none of that Jake

15:40

calling on the phone to confess to the party

15:42

that happened because guess what? There was

15:44

never a time before Jake's arrest where they're both out of juvie at

15:46

the same time. Juvie

15:49

records show that they're always one or both of them were in juvie

15:51

and there was never a time to come in and party together. So

15:53

the prosecutor tries to suggest he's like, oh,

15:55

Jake must have called them from jail because

15:58

there was a brief moment in October,

16:01

like a month after Jake's arrest when

16:03

they were both out of J.B. at the same time, when both

16:05

Troy and Ryan routed J.B. at the same time. And

16:07

so it kind of implies that Jake called them from the jail

16:10

to confess to the murder

16:12

then. Wow, that's super incentivized by

16:14

Jake to really like go through

16:16

the bubble of trying to track

16:18

down where they're at. Yeah,

16:20

call and confess. Yeah,

16:23

getting cleared on the list to make calls,

16:25

you know, and then wow, it's something that's,

16:28

yeah, and like what phone was Jake using?

16:30

Exactly. Wouldn't it be pretty easy to

16:32

pull phone records and listen to the

16:34

conversation? Yeah, that seems

16:36

like it isn't, I'm assuming everything's recorded

16:39

on those lines as well, right? Well,

16:41

they asked Detective Wells in court, they're like, could you

16:43

check those records? And he says yes. And

16:45

they ask him, did you check them? He says no, and

16:47

that's it. Wow. Oh

16:50

my God. That's, it

16:52

just gets even worse. Like they

16:54

literally had three of the worst witnesses,

16:56

including who is it?

16:58

Jesse, the guy who talks about how

17:01

Ty and Jake somehow go

17:03

and kidnap some 13 year old girl from

17:05

the neighborhood, bring her back, proceed

17:08

to, you know, either attempt to

17:10

or actually sexually abuse her and

17:12

then bring her back to her

17:14

place. I mean, like that story

17:17

is so insane to

17:19

me. It was bad. And they're

17:21

putting witnesses like that, like Josh

17:23

and Troy on this stand is

17:25

their star witnesses and I'm

17:27

using air quotes since we're on

17:30

a podcast. If that

17:32

just doesn't highlight for

17:34

a jury the weakness in the

17:36

state's case, it's like, that's what's

17:38

so scary. How does that

17:40

not resonate? That

17:43

everything that they're saying is like completely

17:45

inconsistent with one another, that the

17:48

cops are basically testifying on their

17:50

behalf, you know, and saying, oh, well,

17:52

this is what they told us. And

17:54

we realize that- That's why I think memory can't be

17:57

makes it harder actually in the end because if, say

17:59

like Burroughs and Brian and Troy had gotten

18:01

up there and all maintain these stories. They'd

18:04

be so easy to disprove. You'd quickly show their

18:06

line. You could quickly show everything I think is

18:08

nonsense and like they would not stand up. Like

18:11

if Josh had gone to the stand and said, oh, I did see rape and murder, you

18:13

could quickly prove he's lying. But when he's already

18:15

starting out the gate, like first words on the stand

18:17

are like, I made that up. I

18:19

think it actually makes it harder for a case like

18:21

this to defend against when they do recant. Well,

18:24

yeah. And plus, and that's true because then

18:26

it allows the cops to testify as to

18:28

what they were told in

18:31

order to impeach them, you know, like where

18:33

otherwise they wouldn't be able to get that

18:35

in in terms of, you know,

18:37

what was told to the cops in

18:39

another conversation outside the court that they're

18:42

offering for the, you know, matter of

18:44

the truth that it asserts. It's

18:47

like, yeah, that's crazy. But you're right. I

18:49

had the defense attorney simply done what you

18:51

guys did and found out that it

18:53

was an impossibility for these two to have her alone. Oh,

18:55

no, no, no, no, she did. She did. She

18:58

got the record. Oh, yeah. She pulled

19:00

those records. She actually did a great job there. Didn't

19:02

matter. Wow. She's actually on it

19:04

for that. That is

19:06

so disappointing. That makes me sad

19:08

about the three things. They

19:11

had it in black and white before then the

19:13

story could not have happened and they still decided

19:15

it did. Wow. You

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shopify.com/Proof True Crime.

21:00

All right, so just send a you and I work on cases

21:02

all over the US. And while

21:04

working on them, we often subscribe to

21:06

local papers, local resources in

21:08

order to learn about the case and find out new

21:11

info. It's true, but the problem is once we're done

21:13

with researching that particular case, we

21:15

don't need the subscription anymore, but

21:17

I always forget to end my

21:20

subscription. Me too,

21:22

it's embarrassing. I'll like forget it's done it. And then a

21:24

year later, I get an alert from like the Kalamazoo paper.

21:26

I'm like, what the heck did I just, but

21:29

I have newspaper subscriptions across the country. I

21:31

wish there was a company that could help

21:34

me manage all of my subscriptions. And get

21:36

rid of them when you're done. Well, luckily

21:38

they're in. Rocket Money

21:40

is what you need. Rocket Money is

21:42

a personal finance app that finds and

21:45

cancels your unwanted subscriptions, monitors your

21:47

spending and helps lower your bills.

21:49

With Rocket Money, I can see all my subscriptions and

21:51

they're in one place where if I see something I

21:54

don't want, I can cancel it right then and there.

21:56

Bye bye Kalamazoo paper. They'll

21:58

even try to give you a refund. the last

22:00

couple of months of waste money and negotiate

22:02

to lower your bills for you by up to 20%. All

22:06

you have to do is take a picture of your bill and Rocket

22:08

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22:10

Money has over 5 million users and has helped save

22:13

its members an average of $720 a year. Over

22:16

$500 million in cancelled subscriptions. That's

22:19

a lot of money over a year. Yeah, I don't

22:21

even want to know how much I've... Yeah,

22:23

that's why I'm talking about that part. Let's

22:25

get Rocket Money going forward and have enough

22:27

of your problem. I mean, imagine the number

22:29

of manhandis I could buy for $740. Depends

22:31

which town you're in. True. So, beyond the

22:33

two guys, Jake

22:58

and Ty, do they ever look at

23:01

anybody else? They look at

23:03

possible accomplices for them, yeah, but

23:05

not anyone separate from them. Like,

23:08

the whole thing with Labor Ready, you

23:11

know, like that seems like that wouldn't

23:13

place the start. You know, because I'm assuming

23:15

that's like a day labor place, right? You go there, you

23:18

get picked up. We actually get more into this next

23:20

episode and you'll find out why Labor

23:22

Ready was never really looked

23:24

at because the detectives started off thinking

23:27

it didn't matter. So, it took them a while

23:29

to even get back that way and look at

23:31

it. That would have been the first place

23:33

they looked, you know. If you thought that's where she was lasting

23:35

her life. If you have reason

23:38

to believe that she was alive four or

23:40

five days later, why would you even look at that? You

23:43

know, to me, if you're

23:45

going to a spot that's hiring day laborers all

23:47

the time, which that's what it is, right? You

23:49

go there, you try to pick up work for

23:51

a day. I mean, that seems

23:53

like that would be like a... You get paid on

23:56

the same day, like you get a job placement, you go to

23:58

your job and then you come back to... labor ready

24:00

at the end of the day and pick up your check.

24:03

Wow. I mean, to me, that

24:05

seems like that would have been a very interesting

24:08

line of investigation that they really should

24:10

have looked into. I imagine

24:12

a lot of them probably have records.

24:15

You know, I imagine some of them may have

24:17

had some violent type crimes in their backgrounds, probably

24:21

some felonies. I would say your

24:23

speculation is not too far off. Yeah. Yeah.

24:26

So, you know, I mean, that's a shame. You

24:29

know, and it's one of those things now the case

24:31

is so damn cold unless you guys can crack

24:33

it. Another reason too, this case

24:36

got so hard to defend is because of the messed

24:38

up investigation to the point where the prosecution couldn't even

24:40

say what day the party happened on. So,

24:42

as a defense attorney, like how do you just prove

24:44

a negative like that? You could prove it didn't happen

24:46

Tuesday, they're supposed to happen Wednesday. You could prove it didn't happen

24:49

Wednesday, it's supposed to happen Thursday. And they never

24:51

do give a date, so there's effectively

24:53

no way to really push back against

24:55

it. Plus even to time

24:57

of death because when you know, when

24:59

they're coming in and doing the autopsy

25:01

and concluding that she died three days

25:04

from the date that she was. So, she goes

25:06

missing on Monday, May 29th. She's found

25:08

on Monday, June 5th. The

25:11

initial time of death is listed as like

25:13

probably Friday, maybe the Saturday. So

25:16

right, that leaves her like out and

25:18

about in the world for five days.

25:21

Theoretically, yes. So, theoretically, yes, which

25:23

is and they can't find one

25:25

person that can really verify that they

25:27

saw her. Like they were always hanging

25:30

out at the same spots. It was Kentucky Fried Chicken.

25:32

You know, it's like, man, I

25:34

mean, they can't prove when the party happened,

25:37

but they really can't prove that it actually

25:39

happened. You know, other than

25:41

Josh saying that some guy gave him a bag of

25:43

weed to pick up all the garbage. Oh,

25:45

and you scraped up all the candle wax off

25:47

the ground too, dude. Like really with all the

25:49

candles that were melting and all the candle wax,

25:51

it was all over the place. You scraped that

25:53

as well, not just the beer. Like

25:56

kids aren't cleaning up parties like that. Like, and

25:58

there's no way that he wouldn't. left a couple

26:00

of bottles or tea. You know I mean it's

26:03

implausible the whole thing. I mean do you guys

26:05

even think the party happened? No. There's no way.

26:07

My favorite part of the whole

26:11

candle story though is that when the since

26:13

team interviews Josh and he starts talking about

26:15

this, they don't really know what he's trying

26:17

to say. So he literally draws pictures of

26:19

kids with candles in their hands spinning around

26:22

to show how they were raising. Oh

26:24

my god. Oh my god.

26:27

They do end up suggesting at trial that the

26:29

most likely time would have been Wednesday May 31st

26:31

and not that

26:34

it matters now but going through all the records,

26:37

not witness statements. I realize it turns

26:39

out that Jake actually does have an alibi for that

26:41

night and it's because

26:43

of the hair salon and we know that

26:45

on Wednesday Jake went there and got his

26:47

hair cut to a mohawk. On

26:49

Thursday he went back and got

26:51

the mohawk like bleach so they had like the you

26:53

know the fire effect going on or whatever and

26:58

there's one kid they talked to who says it was one

27:00

night it was late at night. Jake and

27:02

I went over with my friend

27:05

Jamie Nichols and we went over to

27:07

Tonya's house like after midnight

27:09

and slept there for a bit and then

27:11

left and this kid Vince Olsen

27:13

says oh yeah and Jake had

27:15

a pure black mohawk at the time which

27:19

means it had to have been Wednesday night. It's the only

27:21

night that Jake had a mohawk that was still black. If

27:23

you piece all things together like the night they even choose

27:26

for the party Jake had an alibi all along. It was

27:28

just really hard to figure out. Like

27:31

in a world where the party happened

27:33

you know like no one's saying anything

27:35

is completely

27:38

implausible. There is no

27:40

world that exists that kids

27:43

aren't talking about it. Like

27:45

what do they make like some kind of weird blood oath.

27:48

They all witnessed this horrific

27:50

crime, this poor girl being

27:53

raped and murdered. Then they decide to

27:55

cut all their palms and give blood

27:57

oath to each other. Okay we're we're

27:59

going to keep this horrific crime.

28:02

I mean, are you kidding me? Like where would that

28:05

ever happen? Like how could that happen?

28:08

They don't go that far. They don't go full

28:10

panic panic. But like they do use Grim Crew

28:12

as sort of like this cold influence. They

28:15

don't cross the line like it was a

28:17

sacrifice but they definitely lean into the Grim

28:19

Crews like... Oh my god, why? Because they

28:21

have the word Grim in their name. Like

28:23

what proof do they have that this crew

28:25

does anything illegal aside from like shoplifting. Well okay,

28:27

so there actually was a witness that allowed them

28:30

who talks about how she heard they did

28:32

blood sacrifices. Oh my god.

28:34

You can imagine

28:38

when we're like laying this all out about

28:40

like what do we include what we don't

28:42

include. Like it's so ridiculous. You don't even

28:44

want to talk about it because it doesn't

28:46

add up. But does

28:48

it like it seems like editorially

28:50

speaking keeping it out is

28:53

tough because it makes it

28:55

sound so incredulous. They

28:57

use also the kids recanting

28:59

as evidence. You know, saying

29:01

like everyone's recanting now because

29:03

they're scared of Grim Crew. They're

29:05

scared of you know of retaliation

29:08

for testifying. But

29:11

like they're just allowed to say that with

29:14

no foundation as to why they're saying it other

29:16

than the fact that they have the word Grim

29:18

in the name of the skating crew. You know

29:21

what I mean? Where's the receipts that these

29:23

guys are like actually somebody that

29:25

you need to worry about? Well keep

29:27

in mind too, like remember Josh's birth is original story

29:29

in episode 3. He doesn't say Grim Crew

29:32

did this. He says that the EOK skater gang is the one

29:34

who did it. And then suddenly by trial

29:36

they just totally forget the EOK one, a gang

29:38

is the one who did it. And start calling

29:40

it Grim Crew Murder. But like Josh's story is

29:42

actually that it was EOK who had

29:44

the unidentified embers that were helping with the murder and

29:47

that was mostly involved. I

29:49

guess Grim Crew sounds scarier. But going

29:51

back to something you said earlier about how leaving

29:54

certain things out of the show sort of has

29:56

the effect of almost giving

29:58

unwarranted credibility to the world. the state's case, that's

30:00

something Jacinda and I have talked about a lot

30:02

and it definitely is the reality because there's so much

30:05

stuff that we just

30:07

cannot include but by leaving it out, we

30:10

make the state seem more reasonable than it was. Yeah

30:13

and it's, you know, because as I

30:15

listen to it and you know, but I love

30:17

the way that you guys do that.

30:19

I like I love the way that you kind

30:21

of did it in season one to where you

30:24

kind of like you lay out the state's case,

30:26

you know, and you say this is what it

30:28

is and you're not necessarily poo-pooing it as you're

30:31

going along when you're laying it out, you know

30:33

what I mean? It's like you

30:35

kind of methodically do that in the

30:37

subsequent episodes, you know what I mean? I

30:40

like the way that you guys set that up. Well and

30:42

one thing that we did not talk about on

30:44

the show, the prosecutor in this case, his closing

30:46

argument had what I think is probably the most

30:49

factually inaccurate closing I've ever seen in a case.

30:52

It was very notable but how do you get into the fact that

30:54

there's a hundred things they said wrong? One of the things that drives

30:56

me crazy about it is how when they

30:58

had Jake Silva testify. Well

31:01

let me ask you, like how did he

31:03

do? Did he do okay? I know that

31:05

you had like when Renee's friends that were

31:08

there for the trial, they didn't really remember

31:10

anything about it which kind of speaks volumes

31:12

that it didn't really have an impact one

31:14

way or another in terms of kind of like, oh

31:17

my god, yeah I remember when Jake testified and he

31:19

really screwed himself. You know what I mean? It

31:21

didn't have that impact but like what was

31:23

your take on his testimony? Was it helpful

31:25

or not really? Like he actually did fine

31:27

like but there's definitely facts in the case

31:29

that you know, I mean look, he hit

31:31

her. So having the prosecutor

31:34

get a chance to like grill your client

31:36

how he hit his girlfriend

31:38

and like discuss in detail the

31:40

time that he smacked her, like

31:42

that's not gonna be great. Like

31:44

Jake probably did as great as you could do in that situation but

31:46

it's not a situation you put a client in. And

31:49

here's why I really kind of... So

31:52

again, I'm sure the prosecutor thought he was gonna like score

31:54

huge points, run circles around this kid. In

31:56

the end, here's his big gotcha moment.

31:58

On direct examination, the... attorney for

32:00

Jake asked him what Renee was wearing at Labor

32:02

Ready and he said she had on

32:05

jeans, her red shirt and had

32:07

a sweatshirt in her bag. The next

32:09

day in cross-examination, the prosecutor gets up

32:11

there and insists that Jake

32:13

testified she was wearing a sweater and just

32:16

goes in circles with him saying, why did you do why

32:18

about that before? Why did you do this? And

32:20

then tells the jury that Jake was lying about how

32:22

Renee had a sweater on and it's all in his

32:24

head. Jake never once said she had a sweater on

32:26

like the prosecutor literally imagined an answer from

32:28

him and then use that as proof that

32:31

Jake was lying. Oh my God,

32:33

was there an objection? Is the facts not an

32:35

evidence? I know you're not supposed

32:38

to object during closings but if the

32:40

state's like up there flat out lying

32:42

and making shit up, you object. Couldn't

32:45

they have read back testimony? Yeah. They should have.

32:50

So again, like it's a huge kerfuffle, it's a huge like what

32:52

the hell but also at the end of the day, we're

32:54

arguing over whether she had a sweatshirt on or not.

32:56

They got there at 6am, it was cold. Right. You

32:58

could have had a sweatshirt on, who cares? There's all

33:00

this energy over this that take lie in the stand

33:02

about her sweatshirt and you're like, why are

33:04

we even doing this? Why is this even? This

33:07

is your big gotcha moment. You have your teenage

33:09

murder defendant and you cross-examined him

33:11

for a whole day and this is your gotcha

33:14

moment? Yeah, not much of

33:16

a gotcha moment. Yeah. Wow.

33:18

Yeah, that's I

33:20

mean, it sounds like from

33:23

an outsider's perspective, it sure looks

33:26

like a couple of wrongful convictions to

33:28

me. I tried to be

33:31

pretty pragmatic about it because

33:34

it's like cases are tough. It's like

33:36

you have a lot of people saying

33:38

that they didn't do it and

33:40

it's hard for us as attorneys to

33:42

kind of discern what's what

33:45

but when you look at

33:47

this case and you just look at

33:50

the absolute absence of any

33:53

kind of forensic evidence attaching either

33:55

one of these guys to the

33:57

scene and like any

34:00

Anybody find that DNA

34:02

of Jake's in the

34:04

underwear to be damning?

34:06

No. I actually, I

34:08

don't think anyone does actually, surprisingly.

34:10

I think everyone realizes like that's a

34:13

sexual relationship. Yeah. But

34:16

here's what here, okay, goes back to

34:18

Schultz again. Here's Schultz's closing arguments. He

34:21

claims, and again, this is not an evidence, Josh never

34:23

says this, but this is what Schultz tells the jury. You

34:26

know Josh is telling the truth because Jake's DNA

34:28

is found in the underwear. And Josh described to

34:30

you how Jake raped her, then she pulled her

34:32

underwear up, and then Ray and Ty

34:34

pulled it down again and raped

34:36

her. And no one pulled it

34:38

up again. So that's why Jake's DNA was found

34:40

in the underwear and no one else's was. That's

34:42

perfectly consistent with what Josh said. One, Josh didn't

34:45

say that. Two, her underwear was still on when

34:47

she was found. Right. How

34:49

did they even overcome the fact that they

34:52

didn't find any semen in the rape kit?

34:54

Oh, the prosecutor says that the maggot ate

34:56

it. Oh my God.

34:59

She did it too much. I can't handle it.

35:02

I can't handle anymore. Wait, wait, wait. You didn't

35:04

know that's a thing? You didn't know? Oh,

35:06

the old maggot eating the semen trick? Yeah, it's

35:08

the oldest trick in the book. Holy

35:11

smokes. Wow. That's

35:13

unbelievable. I mean, was there

35:16

any actual evidence of

35:18

her being sexually assaulted? She

35:21

was partially disrobed. Other than that,

35:23

no. Wow. It

35:27

does look like her jeans were

35:29

pulled down her thighs a little bit. I

35:31

mean, her shirt's pulled up. It's

35:34

not a reasonable hypothesis, but there's

35:36

nothing to confirm there was sexual

35:38

assault. And they said that

35:40

the underwear in the back were pulled down, right?

35:43

Just in the back. But the front's still in

35:45

place. Yeah. And then, you

35:47

know, but the thing that you

35:49

guys were talking about, the roofies

35:52

and they found the levels of

35:54

GHB were not enough to necessarily mean

35:56

that she was drugged and not enough to mean...

35:58

Because I did not know. and they learned something

36:00

when I was listening to the pod, I

36:03

did not know that we naturally produced that in our

36:05

bodies. What is it an enzyme or

36:07

like what is it? Like I didn't know that we

36:09

naturally produced that in our bodies when

36:11

we die. Yeah. And

36:13

you know, normally in most cases I hear like

36:16

a theory of someone being received and I'm probably

36:18

going to tend to, not discount

36:20

it, but like that's not where my

36:22

biases are towards expecting that in crimes. But

36:24

in this case, I do at least consider

36:27

it because there are some other odd facts.

36:30

There are. Like if it's a

36:33

group scenario, then yeah. You know

36:35

what I mean? If it turns out that

36:37

it's an individual, it's unlikely. It makes

36:39

more sense in a group scenario than

36:41

it does to me in an individual

36:43

scenario. So what did they say? Because

36:45

I know that he had talked about that he

36:47

had given her the two necklaces. Was she... I

36:50

mean, is that what was used to choke her or did they

36:52

ever determine was it the bra strap? It

36:54

is definitely...the bra strap has no signs of being

36:57

used. Okay. The testimony from the

36:59

medical examiner was like, I can't say

37:01

it wasn't used. There's no evidence it was, but I...

37:04

But also her arms were still in the bra

37:06

straps. Oh yeah. Arms are still in the

37:08

bra straps. I don't know how that would have... Yeah, that makes no

37:10

sense, son. It doesn't make bra straps. And we

37:12

don't know for sure, but she had three ligature

37:14

marks and she had three hip necklaces and it

37:16

certainly looks like a very possible, if not probable

37:19

murder weapon in this case. Yeah. Was

37:22

it necklaces? Yeah. It

37:24

counts a pretty... Sturdy. Yeah,

37:27

pretty sturdy type rope they make,

37:29

you know. Oh

37:31

man. That yeah, that's...this

37:33

is a befuddling case. You

37:36

guys are knee deep in one that's a

37:38

real...to me, a whodunit. Because

37:41

you're, as always, doing great work. And

37:43

I hope that you're able to dig up some

37:46

dirt. We're certainly going

37:48

to try. I know that. If

37:51

you want to hear about more fascinating cases, follow

37:53

Bob over at Defense Diaries. And

37:56

here are some of his reports on Delsai. Yeah,

37:58

that thing, if you all... aren't

38:01

paying attention to that one. It's

38:04

a case. I have never seen a

38:06

case like this procedurally. I have

38:08

resisted so hard trying

38:11

not go down. It's literally gonna be

38:13

like procedural law of the Hypos for

38:15

law exams for years to come. It

38:17

really is. It's that case and it's

38:19

like it's crazy and there's so many

38:21

like voices out there with it that

38:23

it's like I'm kind of

38:25

like the lone defense guy out

38:27

here like screaming at the

38:29

top of my lungs. It's just like everything

38:32

that the judge has been doing in that

38:34

case has been next

38:36

level. Here's what bothered me is seeing online

38:38

all these people out there who

38:40

were suddenly okay with the idea of a judge

38:42

unilaterally deciding without a record to

38:44

kick off someone's defense attorney and they're like that's normal.

38:47

That's okay. That should happen. I'm like oh wow we're

38:49

screwed. This is how people think the law should work.

38:52

Yeah if they just don't believe in the

38:54

Sixth Amendment. If only they believed in the

38:56

Sixth Amendment like they do the Second Amendment

38:58

we'd be in good stead. It's like it's

39:01

like man yeah. Sadly they do not. No

39:04

they don't. They don't but I'm out

39:06

there I'm yelling. I'm trying to make noise you

39:08

know. It's like I've made headway you know. It's

39:10

like I spend a lot of time trying to

39:12

explain to people what we really do is defense

39:14

attorneys and it's you know we're

39:16

the ones who are actually protecting the

39:18

Constitution from the government you know.

39:20

I mean that like that's why the document

39:23

exists and people just don't get that about

39:25

defense attorneys that we police the

39:27

police. That's simple. There's

39:30

no other way to put it. You know we protect

39:32

the principles of the Constitution. Sure the hell isn't

39:34

the government. It's not the state and the cops.

39:36

I'll tell you that. We're the only ones out

39:39

there doing it. So I'll

39:41

die on that hill. That's

39:49

it for this week's sidebar. Thanks for

39:51

listening. We'll be back on

39:53

Monday with episode six of Murder at the

39:55

Warehouse where we'll look at what

39:57

happened after Jake's and Ty's convictions. You've

40:07

been listening to Proof, Sidebar, a

40:10

podcast by Red Marble Media in

40:12

association with Glassbox Media. Send

40:14

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40:16

comments at [email protected]. Follow

40:20

us everywhere with the handle at

40:22

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40:26

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40:28

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40:30

Thanks so much for listening.