← MK True Crime
MK True Crime
Gruesome D4vd Prelim Hearing, Nolan Wells Private Autopsy Results, and Florida Murder-For-Hire Case
00:47:10
In The Well hosts Mark Geragos and Matt Murphy join the show to discuss the D4vd preliminary hearing that happened this week, why the prosecutors are sharing gruesome evidence, the apparent “bad blood” between the lead attorneys in this case, why the cross-examination of the medical examiner will be key, the outstanding question of whether a crime other than desecration of a corpse has been committed in this case, Mark and Matt then discuss developments in the Nolan Wells death investigation, why the results of a private autopsy came back as inconclusive, why the body arrived at the private autopsy with missing organs and what that may mean, why Al Sharpton and Ben Crump are interjecting themselves in this case, Matt brings up the murder-for-hire case of Shanna Gardner happening in Florida, why Gardner is accused of hiring a hit man to kill her Microsoft executive ex-husband, Gardner’s high profile lawyer Jose Baez attempting to access the victim’s widow’s texts in this case, and m...
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- [00:00]
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- [00:30]
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- [00:35]
Matt Murphy
I thought it was safe.
- [00:36]
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- [01:05]
Mark Gergas
Welcome to in the well, I'm Mark Gergas, trial attorney, primarily criminal defense, but I do my share of plaintiff's work. And I'm joined today, as always, by my co host, co host, friend, and former powerhouse homicide prosecutor, Matt Murphy. Matt, how are you this week?
- [01:24]
Matt Murphy
I'm not as good as you, Mark. Because you're sitting on a. On a private plane. I'm. I'm. I'm in a little beach cottage. Got to go surfing this morning out here in Amagansett. But one day, one day I hope to fly private. Not there yet or even close. That's the. That's the plaintiff's lawyer side that you're just talking about, no doubt.
- [01:44]
Mark Gergas
Yes. It's not the criminal defense side. What is the what. What's your takeaway so far on the David prelim this week? Because I saw something today which just irked me, which was an article talking about how it was so difficult for the victim's family to listen to the testimony about Celeste being, you know, severed with a chainsaw. And you know that. I guess that makes a good clickbait, but as far as I know. And maybe I missed something you could tell me. I thought that when they recovered the chainsaw, there was no DNA on it. So while that makes a great headline, I don't think it comports with the facts in a preliminary hearing.
- [02:27]
Matt Murphy
Yeah, this is interesting. And I want to remind everybody, you and I predicted this. Mark, remember when, when we were talking about the announcement that there was child pornography on David's cell phone and you and I were both saying the. The public interest people are going to run for the exits and his support is quickly going to desert him. So I just want to. I want to put a pin in that. We were absolutely right because this thing, as soon as that announcement came out, this thing, this case dropped from the headlines. I mean, it really did. So it's kind of back in now because they've started with the preliminary hearing. You know, we were talking about this last week. A preliminary hearing really doesn't require much in California for the viewer. We have what's known as Prop 115 Prelims that allows for hearsay evidence to be introduced. So essentially when. When Mark. When Mark would defend these or I would, or I would present these, they take about two hours. Typically, you. You call your lead detective, they testify to the hearsay, you get the ball over the net because all you have to establish is probable cause. And this is one that, you know, they're. I think maybe because of the media interest. Mark, what do you think they're going into a little bit more detail also.
- [03:35]
Mark Gergas
There appears to be some rather bad blood with. Between the lead lawyers on each side. I think Beth Silverman started it by saying, there's only one of me. There's three of them. Then I think even Judge Almeida jumped in at one point and said something to the effect that. I understand you guys didn't end your last case on the greatest of terms. And. Yeah, yeah. So it's been quite a back and forth. And to your point, I always say in most prelims. In fact, Matt, I don't know if you've ever had this experience, but I've had buddies who are DAs who would try to literally. And I know this is. You're. You're talking about somebody's life and the gallows humor that is criminal. They would try to see what the. Over and under on how many questions they could ask in order to get somebody held to answer. I see by that small smile that thought may have crossed your mind.
- [04:32]
Matt Murphy
No, it's.
- [04:33]
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- [04:33]
Matt Murphy
It's a thing especially in. In the preliminary hearing calendars, especially when somebody has to do a rotation through. And usually not on the big cases like this, but it becomes like. It becomes. Can be very monotonous for the deputies in there. And that is something you hear about like I can. They call it naming that tune. I can name that tune and three questions. Watch me. And literally there's their preliminary hearings on. Not on complicated murder cases, but on. On lesser felonies where they will put the cop on the 150 unit and they'll ask three or four questions just to quote, unquote, get the ball over the net. And I mean, and then the problem with that, of course, is it's, it's, it's dumb to do it that way. It's, it's, it's unprofessional. And you're setting yourself up for, for the viewer, what's known as a 995 challenge for insufficient evidence introduced to establish probable cause. So they, they kind of, they high five each other in the hallway when it's done, like I did in four questions. And then they, they put it on some poor Ritz attorney's desk that's going to have to fight the 995. That's going to take, you know, an entire morning to argue.
- [05:35]
Mark Gergas
So yeah, I remember my father back when he was just the kind of still filled with piss and vinegar back in the day, excoriating new deputies with. I could teach my 7 year old how to say what happened next. What happened next. And, and that it's a first cousin of how many questions does it take to hold somebody.
- [05:58]
Matt Murphy
Yeah, but this one, what are your thoughts on it, Mark? I mean, this is it, Bas. There was a brand new video that just came out that I saw for the first time this morning where they're, they're hanging out together talking as the, as the, as the, the legal process moves forward, more and more evidence is coming out publicly and this guy's in, in my view, he's just cooked. I mean, the, the pum in your hearing is a, is about as close to a slam dunk as you can get in the, in, in my view in the legal world. And the trial does not look much better for this guy.
- [06:30]
Mark Gergas
The interesting thing, as we were taping this on a Thursday, it drops on a Friday. They may have already, you know, saved the tape. As I like to say. I think that this whole case rests and falls on the medical examiner. I mean, so far we got abundant evidence of a gruesome scene when they opened up the car to the point where they're talking about maggot activity, they're talking about insect activity, and they're talking about the, the way that it was virtually impossible to do any kind of recognition. It was just an awful, I mean, to the point where I think there was even testimony. 11 air fresheners that have been stuffed in the car. But I keep saying, until we hear from the medical examiner, I remember vividly you and I Talking about this that LAPD was saying after a month of this case, well, just hold on, hold on. We're not sure that a crime was even committed other than basically a desecration of the courts. We're in the first phase of this prelim. And to your point, you could have done this first phase of the prelim in 45 minutes if you had wanted to. There is a certain aspect, I think, of this kabuki theater where the prosecution wants to make sure that they have completely poisoned the jury pool. That's my humble opinion.
- [07:52]
Matt Murphy
I mean, that's the cynicism of experience, folks.
- [07:55]
Mark Gergas
Yeah. For those who are watching, you got Nate Hockman running out and doing press conferences on the courthouse steps, talking about how there's mountains of evidence and we haven't even revealed all the evidence we have. And, you know, it's really pushing the envelope, in my opinion. Poor Habib Balian looks like. You see Habib standing right next to him, it looks like he's been taken hostage. It's like, blink twice, Habib, if you, if you're okay, and they'll let you out of your newly, newly appointed position. But having said that, I, I don't think that this case becomes a slam dunk until after we've seen a cross examination of the medical examiner. Because a lot of this stuff, and you could explain it about the grotesque nature of what they found, still doesn't get over the hump of who, what, when.
- [08:52]
Matt Murphy
Yeah, I would always kind of on the gruesome ones like this, I would always encourage the family not to attend the, the preliminary hearing because you, you, you, you know, and a lot of them want to be there, but you want them to be able to, to go through the entire process and not lose their minds before it gets to trial. Because it can be, you know, it can be, it can be tough on the victim's family from the, you know, the victim, the victim, witness side of things, like a mom in there. Plus, it's like, you know, it's already bad enough and, and there's. There's no real question that this is going to get bound over at this point. I think, you know, at least it's going to get up. Is this same judge, is it assigned for all purposes, same judge going to do the trial?
- [09:38]
Mark Gergas
I. I'm not sure, but I will tell you, it's Judge Ome. She's on the ninth floor, which is the long cause floor. They have been making a. Or the criminal courts building in Department 100, which is kind of the Traffic cop. But along with Department 30, where they assign things, they've been doing that more and more where on serious murder cases, they assign it to a judge for all purposes. So if Judge Almeida is going to hear this for all purposes, maybe that's one of the reasons she's got the patience of Joe so far.
- [10:09]
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Matt Murphy
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- [10:13]
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- [10:39]
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- [11:11]
Matt Murphy
Let me ask you, let's pivot here into this Nolan Wells case. I was on Megan's show with Dave Aronberg and Art Idalla yesterday, and this thing they, they released, the private autopsy. This is Nolan Wells is the young, young kid that got left behind on that island on the Fourth of July in Mississippi. Bunch of, bunch of kids went out on boats. There's like a thousand people on the island. Big party place, middle of summer. He went for a swim, apparently left his cell phone on the boat. The boat started to sink and they had to leave. And as they told investigators, apparently Nolan wanted to stay and talk to a girl that was on the island. And these guys left. They called vessel Assist. A little bit of drama with the boat. Apparently their group went in three boats because there were so many of them out there to party. And he never made it back to the mainland. And the next day he was found, you know, he was dead. And it looks like his, his body had washed up. So the, the Mississippi investigators went in. There was a thing called the Cajun Navy, which helped in the, in the recovery efforts when they were looking for him. And they did an autopsy that has. I, I don't think unless they released it this morning. It has still not been released by the authorities in Mississippi, but the family got the body and had a pathologist at Howard University. They had the body transported, did a private autopsy, and they released it yesterday. And what's interesting, Mark, is they, Al Sharpton got involved in this and Ben Crump, who is the attorney who represented the family on the George Floyd case and also the Michael Brown case. And they, these guys have gone to town. Colin Kaepernick apparently came in to pay for this. And there have been apparently hundreds of death threats leveled against the friends of Nolan Wells. Nolan Wells is a black kid. His friends were, based on the photos, they're all white kids. And, and we are off to the races again in modern America with accusations of wrongdoing and foul play. And what was interesting to me, Mark, is that they didn't really get much out of the, the, out of that private autopsy. They, they found some redness on the back of his head, which sounds like lividity to me. And for the, for the viewer, whenever a, a person dies, there's blood in the tissues and gravity will pull it into places. So like for somebody that has lighter skin at a, that's been laying on a floor for a while, if they're face down, if they're on their back, you'll see these red patches, which is just the blood that's accumulated in their tissues. And it's called lividity. Based on, on what Ben Crump said yesterday, that's all they found on the back of his head, which I, I, I'll bet you anything it's libidity. But they had removed his throat. They did what's called a Mark knows this, but for the viewer, an en bloc dissection, which indicates to me that they found no obvious signs of strangulation. So they're doing a microscopic test and they actually removed the, the larynx and the throat. And apparently that wasn't provided with, with the body because they're still testing it in Mississippi. And, and so the, you know, I think to their credit, this private pathologist said I, it's undetermined until I get the rest, until I can see the throat. But right now it is basically inconclusive. So no gunshot wounds, no significant bruises, no skull fracture. And based on their own private autopsy at this point, no evidence of foul play, they said they couldn't rule it out. So it's just one of these interesting moments in modern America, Mark, where we've got a lot of emotion and very little evidence.
- [15:00]
Mark Gergas
So I, you know, I'm familiar with the initiative that Colin has done and it's done great work because Colin, as you know, ex client of mine and I think the world love him and one of the initiatives that he's done is in cases where people can't afford it, so to speak, or families can't afford it, it'll provide very skilled pathologist to do a second autopsy. And it's not harkening back to the David case. One of the things I think that people need to understand if you're not doing this is that the medical examiner theoretically is supposed to be separate from the investigative agency. And even though legally they're viewed as. In fact, Matt, I think the. The case in Ray Brown and Kyle's v. Not Kyle's, but the progeny of Kyle's came out of Orange county where the coroner there was ruled to be part of the prosecution team. That is for a le. For a legal basis, but from a basis of science. Imes take it very personally when I cross examine them, as you probably have seen. I can't tell you how many times Matt and I suggest that their findings are influenced by either the detective or the investigative team or what information they were fed. They do not like that in the least. One of the interesting things here is that in this case, as I understand it, the contr. The state contracted where the. The authorities have not released their autopsy report yet. And one of the reasons for that, and it's legitimate, it's a. It can be a legitimate reason, is that they have not received back all of the secondary or downstream tests that they rely on often. Matt, how many times have you heard. Pending toxicology or pending. Sending it out. Right.
- [17:05]
Matt Murphy
No. And it's giving that. That term is giving me flashbacks, Mark, because sometimes. Oh my gosh, you feel like the weight of the world. And look, I. We talked about this one before. I had a case once where talks came back and it was a guy I had charged with murder and he choked his girlfriend, fiance. And he was a choker and he was super abusive and he had all these other relationships and all this great evidence. And she had marks on her throat and she had bruising, the strap muscles, particular hemorrhaging in the eyes, all. All that other stuff that you see in strangulation cases. And she died of asphyxia. We get the talks back and turns out they got the huge fight. He really did choke her out. She went upstairs and took about a million sleeping pills. And you die of asphyxia. So pending tox results Is something that, that everybody that's lived it, every prosecutor, it kind of gives you like. It's like Vietnam flashbacks to those cases. Because sometimes it really does go wrong. I really sort of wish that they would light a fire under whoever's desk this is sitting on because when Al Sharpton is giving speeches and Ben Crump is, is leading chance for justice, you know, and having kind of a. Almost a mob mentality, man, I wish that they would release these things already because I guarantee this kid drowned. And, and apparently he, you know, he loved his friends. His friends loved him back. It was. They were. They. Is one of those things. There's his mom. And look, I think I saw an interview with her. She's a really, really. She sounds like a really nice lady to me and she's a brave mother. But the guy on her left, Al Sharpton from the Tijuana Brawley thing, he still owes millions to that prosecutor. That was a hoax. He never paid. You got Ben Crump in there. He gave his hands up. Don't shoot. Don't shoot. That Eric Holder himself debunked in that. In that, you know, in the Michael Brown case. And I, I feel, and I hope I'm wrong here, but I just, I feel like those guys are taking advantage of a bereaved mother to advance themselves. That's just me. It's my opinion, I hate to say it.
- [19:06]
Mark Gergas
Counterpoint to that, I always find is that it's, you know, I. How many times you've heard me say this? I just. The idea of mothers, fathers who have lost their kids, it's the toughest cases that we handle. Both you as when you were a prosecutor and now when you're out me handling civilly. And there, there is always. One of the reasons that I love the initiative by Colin is there's always questions. The parents always have questions. And if they don't get answers and if they don't get to some degree definitive answers and sometimes you can't get them. But if they don't get answers and if they don't have some degree of. I don't know if I would call it finality or closure because you're never going to. I've never seen anybody who says, oh, now I'm relieved, you know, or I've moved past it. That just never happens or apparent in my experience. And my experience is that it breaks you and it breaks you in a way that you just never recover from. But the initiative of having yet another autopsy that looks over or at least kind of gets a Second opinion. I mean, obviously if you get a diagnosis for cancer or some other illness, you always want a doctor with a second opinion. I always invite clients. You want a second opinion on what I'm telling you because to some degree what I do for a living is telling somebody who's got a terminal illness. This is what, what I think a prescription is. But the, the second autopsy by a good pathologist is important, but I think, Matt, that if it were you and you were the prosecutor in this case, you would have brought that mother in. And I don't know if the prosecutor did, but I think the, either you or the ME or somebody would have brought her in, shared the results and you know, going looping back to the David case, that was one of the frustrations as articulated by the LA county me. He says I'm being muzzled. I can't. You know, the family deserves to know more. And in that case you can say whatever you want, but the ME took a stand and said, I don't want to be muzzled. It's not right. Both to the public, but more importantly to the people who were in golf.
- [21:32]
Matt Murphy
No, absolutely. And another thing about this, Mark, and I just, I pictured you actually when, when I first heard this Al Sharpton and, and, and when I pictured you, I pictured what you would do on cross examination. So I think this poor kid drowned. I think that that's what all indications are gonna, are gonna finally come out with. I think that when we see the, the Mississippi pathologist report, it's going to be very similar to the one from Howard University. And hopefully this will die down a little bit. Won't for some people. But al Sharpton offered $50,000 for a conviction. Okay. There's a thousand kids on that island. And imagine if they're really, if they do turn up evidence of foul play and some poor prosecutor is, is trying to, to put this case out there and establish, you know, if somebody really did hurt this kid. The idea that every witness has now been incentivized to lie by this. And, and, and it wasn't just him. I think Tyler Perry and others put money into a fund. I think it's over $100,000. Now. An experienced criminal defense lawyer would have a field day cross examining a witness that comes forward after a reward goes up on a case like this. And it's just, I mean, you know, right is right, wrong is wrong, and justice is justice. And we just, we can't, we can't right the wrongs of the past in Mississippi or anywhere else. Injustices in the past with injustices in the present. There's no like payback. Justice is injustice, you know. And I just, I don't understand this, this mentality.
- [23:09]
Mark Gergas
It's an interesting point because if you were going to put up money rather than, as you say, give fodder to somebody and basically challenge the ability to get a conviction at some point, if there is, you know, it's a big hit, we don't know. But why not fund basically similar what Colin did with the pathologist, Fund a parallel investigation? I mean, you could, if you've got the opinion and I've done this, I can't tell you how many times where I remember one case in Utah, we ended up getting the department, the department's unit disbanded because we did a parallel investigation where we wanted information leading to, you know, clues, so to speak. And it turned out, it worked out. But it's different than if you, if. And I, I haven't dug deep, but if they condition it on a conviction that's fraught with peril.
- [24:10]
Matt Murphy
Yeah, I mean it's, it's, I don't know, it's the world we live in now. I got, I got some strong thoughts and opinions on that, but. So next we're going to talk about a murder for hire out of Florida that is just starting to heat up with some really, really interesting modern day legal issues that a court is going to decide next Friday. Stay tuned.
- [24:28]
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- [24:31]
Matt Murphy
Oh, no.
- [24:32]
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- [24:58]
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- [25:43]
Matt Murphy
Welcome back to in the well, we are going to talk about a really interesting case out of Florida this is the Shawna Gardner case. And I got invited, Mark, to go do a presentation to the fourth District Court of Appeal. And I got to meet a bunch of the players here. I did a presentation on cross examination on capital case litigation, and they were super nice to me. And I met, I got to meet the judge that's involved in this case. I met the ta. I got to meet a bunch of these players. So I've been sort of paying attention to this thing. This is a really, really interesting one. So we got your classic, like, bitter divorce. There's a woman named Shauna Gardner who was born to a very, very wealthy Mormon family. She's LDS all the way, gets married. And I forgive me, I got to read my notes here. Jared Brit again, he's a Microsoft executive and they have two kids. And it's one of those classic sort of pre divorce stories. There's some infidelity. She winds up cheating on him. They wind up getting, getting divorced. And it's one of those contentious custody battles that goes on forever and ever. And it turns out that the guy she was cheating on, his name is Mario Fernandez Saldana. And he was a cheating with. Yes, I'm sorry, cheating with the guy she was cheating with. Cheating on her husband with this guy who was, he was a, he was a maintenance guy in her gym. Which is if for anybody who's seen the plot to Body Heat, nothing good
- [27:17]
Mark Gergas
ever happens around the pool or around the gym. I don't know.
- [27:20]
Matt Murphy
And it's like this guy gets, he gets, he, she, she starts dating him, they get caught, the divorce happens. And it's one of these cases apparently with a ton of parental alienation. And you know, she is, she's saying bad things about, about the, her ex husband Jared. And it, it, but it's one of these things that just goes on and on for years. She winds up marrying the maintenance guy and, and he also gets remarried. And his, his new wife is named Christian Kristen Britt again and they have a couple of kids. And so this goes on for years. And he is, he drops the kids off. He's on a, on a regular schedule of visitation with the, with the two twins that he has with his ex wife. He drops the kids off. He has his new toddler, he's got a baby in the back seat. And he's driving and drives up to a, this is in February, 2022, sees a tire in the middle of the road, stops to move the tire and it's a setup. And the tire, he gets out, he is immediately shot Up. And this thing winds up being hugely important, evidence wise. So he gets. He gets ambushed, he shot multiple times.
- [28:35]
Mark Gergas
Wait a second. You mean to tell me that the prosecution theory is that the tire was there and they fully expected him to stop for the tire?
- [28:44]
Matt Murphy
Yeah, they. They. They did. And as the investigation develops, so he stops, somebody rolls the tire out, hitman jumps out, shoots him multiple times. He's dead. And that's all they have for about a year. And they are ultimately able to trace the tire back to this guy. And I want to make sure I get it right. Henry Tenon, who. Who used to rent a place from Saldana. And there's. So there's this very critical connection. And when the police go to interview him, they find a matching tire leaning up against his house. Okay. Like, same serial numbers and everything else, same set of tires.
- [29:20]
Mark Gergas
Who's right here? Who's right here in the.
- [29:22]
Matt Murphy
That's Mr. That's Mr. Tennant. Okay. So. So they start putting this thing together, and Tenon rolls on everybody and basically says that he was hired by Shawna Gardner and Mr. Saldana to kill Jared, her ex husband. And he. And apparently it's very dramatic. He starts walking it back. He's. He's tried to do that recently, but he's already on record kind of laying them all out. That allows for search warrants, and they also do wiretaps. And in the Wiretaps and in the. In the search of Shawna Gardner's previous records. This is one of those things, Mark, where she's. It's. It's one of those. One of those murder plots where he's. About the millionth hitman that she hits up, that these guys reach out to. She goes to the. The owner of a tattoo shop and sees if. If. If he's willing to do it. So there's this trail of all these witnesses that say, she came and tried to get me to do this hit. So they put all that together. There's some really super incriminating text messages that they recovered from her phone with her friends. Like, I. I dream about being able to slit his throat, referring to Jared. And it's just endless contentious. One of those divorce things and one of the. So the. They. They wind up putting it together, and they. And interestingly, they're seeking death against Saldana. The. And. And her.
- [30:47]
Mark Gergas
Yeah.
- [30:48]
Matt Murphy
And. And by the way, right after the murder bails on Saldana, takes the two kids and moves to Washington State.
- [30:54]
Mark Gergas
And.
- [30:55]
Matt Murphy
And her.
- [30:55]
Dr. Horton Sales Announcer
Her.
- [30:56]
Matt Murphy
Her family has a lot of money, so they wind up hiring Jose Baez, I. Everybody knows him. He's the guy that defended Aaron Hernandez successfully. Also. What. What's her name? The woman who killed her kid that got away with it. I'm sorry, Anthony.
- [31:14]
Mark Gergas
Thank you. Go that far. Jose would. Jose would push back on that.
- [31:18]
Matt Murphy
I'm sure he would. I'm sure he would. And Jose, buddy, if you're ever watching, I wish I'd tried that case in Orange county. And. And had we done Casey Anthony in Orange county would have had a very different result with some of my colleagues, but neither here nor there. She, of course, is presumed innocent. Yeah. Just my opinion there. But famous, very effective defense lawyer, and he's been pushing very hard on accessing the widow Kirsten's cell phone. And so we have this really interesting thing, Mark, where Florida is what's known as a Marcy's Law state, which. Which for the viewer, essentially grants constitutional rights to the victims of violent crime and their families. Their families, especially immediate surviving family, are considered victims of the crime, and they have the rights. A whole laundry list of rights. California has the same thing where thing.
- [32:12]
Mark Gergas
And it's honored in the breach. My. You know, you know how cynical I get about Marcy's Law.
- [32:17]
Matt Murphy
Marcy's Law isn't. It's an interesting thing. Right. And a lot of judges don't like it. And. And really, at the end of the day, most of the time, it boils down to a right without a remedy. Right. Because you can, you know, the. The victims, for example, have a right to be present for any significant hearing during the process. And they have a right to. To be free of harassment. They have a right to be. To be heard at any hearing. They want to be heard. So there. Most judges will honor it. But what's interesting here is Baez has been very, very aggressive about getting into her cell phone. And Mark, I got to tell you, we. We all have. You know, in the modern era, we've all got those text threads. I've got to. I think about my fantasy football league, Mark. Like, these are buddies of mine from high school. We've been in Fantasy Football for 25 years. If. If the wives in that group got a hold of those divorces would happen. Based on. It's a bunch of American guys that have been friends for 40 years.
- [33:11]
Mark Gergas
Yeah. Go from 50% divorce rate to 100%
- [33:15]
Matt Murphy
to 100% in my fantasy football league. Like, I wouldn't want anybody seeing the stuff that's in there. But we all have threads like that on our phone. And you were talking about Privacy interests. And Baez has advanced this really, I think, attenuated argument on why he should be able to get into this victim's phone. And, and because it's a death penalty case, you know, and we were just talking about this the other day on Tyler Robinson. Death is different, right? You, you want to bend over backwards to accommodate the defense so nothing comes back. But now he wants to get into this poor woman's cell phone. And the judge has put things over till next week. And just like the conversation we were having on, on the, on the case Tyler Robinson last week, you've got, you've got a former prosecutor. Her name is Judge London. Let me make sure I get it right. And I got to meet her. She was wonderful when I met her. Oh, gosh. Judge London Kite, former prosecutor and Mark, you know this for the viewer. A lot of times, former prosecutors, I, with some of my old colleagues, when they would go to the bench, I hated dealing with them because they were so. Nobody wants to be accused of being prosecution oriented, especially on an important case. And a lot of the best judges to try cases in front of as a prosecutor are former public defenders because they got nothing to prove to anybody, by the way.
- [34:41]
Mark Gergas
So I used to laugh. We had in California when you were in prime time in the DA's office was the George Duke Machin era. And George Duke Mahen, who was the governor, used to appoint nothing but former prosecutors. I mean, if you were a public defender, don't apply. And people used to think, oh man, that's law and order. That's law and order. It was the exact opposite. Former DAs, first of all, you, you gave them the more charitable interpretation. They didn't want to be accused. Mine was, they would sit there, look at the DA in front of them, say, I could do it better than them. I could. I, you know, I was better when I was in the office than they are. What the hell are they doing? They be so hard at the DAs. And I'd sit back there and the worst people in the world were the former defense lawyers or public defenders because first of all, they didn't want to hear from the defense. They earned it all in their mind. It was all nonsense. And they didn't have another minute to suffer any of, any of these people anymore. So I could not agree more. And I love the Law and Order era because it was, yeah, I used to sit there and just watch as these former prosecutors would pick the wings off of the DA flies in front of them.
- [35:58]
Matt Murphy
Oh, and I've. And I've had that treatment so many times now eventually what happens, I, I think is a lot of the judges, when they eventually over time, they get a lot more confident and they get a lot, you know, they get a lot better and they, and they will, they'll call BS on either side. Former prosecutors are not. But there's that, there's that period of time. Mark, how long would you say it? About five years, maybe 10 years.
- [36:21]
Mark Gergas
That's what I was going to say. It's five years. And you know, I don't think it's as much confidence. It's, I think there's a Sisyphean aspect to it. They just get so tired of seeing the saint getting beat over the head so many times. And I always say, I would rather have a judge that is an equal opportunity curmudgeon. I want somebody who's going to slam the prosecutor, slam defense. You and I have talked about that countless times. As long as they're, they're, they're there beating on each side, who cares? That's what it's, we're in there, we're in the arena.
- [36:55]
Matt Murphy
Yep. Give me, give me a mean judge who gets it right any day of the week. You know, drag me through the broken glass. Just make the right ruling at the end and, but you get, you get nice judges that want to be everybody's friend, that will, that you don't know where that ruling is going to go. And the worst are the mean judges who are also going to make the bad willing. Those are the, like the, the, the mean and dumb ones are the, are the very worst. But give me, give me the nice and smart ones or even the mean and smart ones as long as you get to the right ruling because everybody, it's so much less stressful. Right. Because you, you know, especially if you're going up against somebody that's experienced, you know, the judge is going to come in, they're going to, they're going to call the balls and strikes, they're going to make the right call at the end. And it takes a lot of the pressure off the lawyers because nobody's going to argue for anything outrageous. Right. You know, you're going to lose, you don't want to learn, lose credibility in front of a judge you respect. But this judge was a hardcore prosecutor. Excellent reputation within the community. Really, really good, like prosecutor's prosecutor. And like a lot of people, she went to the bench and now she's got this really big murder case that's getting more and more media and it's I think the media attention is going to grow on it. But, but it's a death case. And in Florida, like Utah, like we were talking about you, you actually face execution there. And it's interesting, Mark, this was one of those, like, I think, like, we're seeing DA's offices around the country right now, Oakland being one of them, for example, where the ship has sailed. It is, it is like the, the prosecutorial office is so such an amateur. It's, it's, it's. They've, they're. There's no justice in Oakland right now because the DA sucks, okay? She just does. She sucks. But, but Jacksonville, which is where this, this murder happened, this, this DA's office, I was really impressed. They got career prosecutors in there, lifelong, lifelong investigators that have been cops forever. It reminds me a lot of Orange county back in the day. You get a really experienced bench, but this judge has this, you know, this former prosecutor, and she is smart and she's made some good rulings. But now we're at this thing where you got a very effective defense lawyer on a death penalty case. And she wants to be super careful.
- [39:10]
Mark Gergas
And I will tell you, Jose, I know people know him because of Casey Anthony, and they know him because of Aaron Hernandez. I've known Jose since he was a, a brand new lawyer basically. Maybe, maybe not that long. But I end up being in courtrooms with him and, and consider him a close friend. I think he's one of the superstars in the criminal defense arena for whatever you say about Jose and trying, you know, anybody who wants to say, well, he got this client or he had that client, he's effective and he's sharp. And, you know, there's. There sometimes I hear a knock on him that he's, that he's lustery or this he thinks, and he knows the law and he lives the law. And in this case, I think his argument about why you should get at that phone is a winning argument, I think. And I think it would be a disaster for the prosecution, I'll tell you. Let me give you a parade of horribles if she were to deny getting that phone and that at some point they get it another way. And I could think of one or two other ways they could get at it, and they get at it. There's something there that leads to Giglio impeachment style information. That's an automatic reversal at that case.
- [40:33]
Matt Murphy
It's a really interesting issue. And there's no doubt what you said is correct. Like, he's incredibly effective. I think in A Marcy's state. This is a very, very interesting issue. I actually come down the, the mostly probably out of my, out of fear of my fantasy football league. Like I said, private text messages. It is, it is such an intense invasion of privacy, especially for a defense lawyer and somebody like you or Jose Baez. The idea that you can get into somebody's phone and for the viewer what's going to happen is if she is convicted and the evidence is very strong that this conspiracy existed and the prosecution and the investigators have done a very good job like putting this thing together. And they took their time, they took over a year to put this thing together. There's a jailhouse informant that I don't think they should use, but that's a secondary issue.
- [41:24]
Mark Gergas
But I, Orange County's had their share. You guys lag behind LA County. We had Leslie White back in the day. You had your share of snitches and
- [41:37]
Matt Murphy
I don't like them. I don't like jailhouse informants at all. I don't like calling them and I never use one. Mark, no, probably no surprise to you. I never called, I called, I called percipient witnesses to crimes in the jail, like new crimes that we added on. Never once did I do the. Hey, he told me he did it in the chow line because that almost always bites the prosecution in the butt somewhere down in the Apollo thing. But, but this is one that I really think this, this judge needs to be, she needs to be very careful because it's a high profile case, everybody's watching it and they, they need to be. If she does permit it and she's already allowed some of the phone to come in, I think that needs to go to a special master. I think it really needs to be very, very narrowly tailored because in the penalty phase of course she's going to talk about her bereavement and how brutal it was. And the idea that a defense lawyer as effective as Jose Baez could, could have her private text messages to friends, Man, I just, I, in my gut it really tells me that crosses that constitutional line for privacy rights for the victims. But it is a really interesting issue. I, I hope she, I hope she gives them this. If she, if she does a lot, I hope it goes to a special master. And it is the strictest interpretation on very narrow issues because man, how'd you like to be cross examined on something like that when and, and you know, they plotted to kill her husband and they got, they had two kids. So I, I feel, I feel bad for her and I hope the judge who I believe I, and I did, I got to meet her. She struck me as the type of person, Mark, five minutes into the conversation, I would love to try a case in front of her. So I just hope, but it's, it's an interesting thing.
- [43:15]
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- [43:15]
Matt Murphy
She wants to accommodate the defense in every way, but she has to balance that, that very important victim's rights issue, which in the state of California is a constitutional right. So very interesting to see where it goes. I hope, I hope that, I hope she, I hope bias loses that argue argument. But we'll, we'll see. We'll see. We'll talk about it next time. So, so Mark's got important places to be. He's a very important guy in that, in that plane he's sitting in. So I promise to let him go. So next I will do a final thought on the Nolan Wells death investigation. We'll let Mark go. Thank you so much, Mark, for joining me again today. And by the way, our show is doing great. So for the viewer, thank you, thank you, thank you for hanging in there with Mark and I, listening to us spitball a lot of these very interesting issues and hope you'll, you'll stick around for, for next week and join us again.
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- [45:20]
Matt Murphy
Welcome back to in the well. I've got some more thoughts I wanted to share on this tragic Nolan Wells case. We live in interesting times. Like the old Vietnamese curse, we Live in interesting times. This is. This is a case case where you've got this young man who was apparently loved by his friends. And he was black, his friends were white. They went to this island on the fourth of July. And I feel terrible for his. For his mom and. And the dad, too, and his family. And this is a tragic thing. And like we talked about, the family always wants answers. But it is very easy in an emotional state to go down a rabbit hole of, you know, why did my son not have any photos on his phone? Why, you know, why was his phone. Why did it return to the mainland without him? You know, what. What young kid ever goes anywhere without his phone? And something bad must have happened. And that is, I think, a dangerous place for the mental health of surviving family members, because sometimes people die in tragic accidents, and it's an awful thing. And. And that private autopsy that they chartered that was conducted apparently revealed nothing from which any sort of criminal case could be built. And I listened to the comments from Ben Crump, who's the family attorney, and also Al Sharpton. And the idea that we want to fight past injustices, especially in places like Mississippi, you know, that's a noble thing. But Friedrich Nietzsche, the great German philosopher, had a saying. He said, when we endeavor to fight monsters, we must be very careful lest we become a monster. And this is a perfect example of that, where when we want to fight injustices or we want to fix the criminal justice system and we want to right the wrongs of the past, it is very important that we not become monsters. And I think that when rewards start getting put on convictions, and you've got a thousand kids or so that are on that island, all celebrating the fourth of July, and you've just incentivized a group of people to exaggerate or say, hey, maybe for $180,000, maybe I really did see something. And you wind up starting out in this noble pursuit of trying to fix injustice, and you wind up advocating for injustice. These kids, I don't think their lives will ever be the same. The ones that were on the boat. And you can look at some of those photos and look, I follow the evidence as a. As a. As a prosecutor. I'm guided by the evidence and the rules of evidence and nothing else. And so far, this looks like nothing other than a tragic drowning of this young man. They haven't released the autopsy results yet, at least not the official ones, but that is what it looks like. And to the answer the question, who goes anywhere without their cell phone? A kid who's swimming? That's the answer. We can't swim with our cell phones. And that's why his phone would have stayed on the boat. And if he remained behind on the island to talk to a young woman that he had a crush on or that I crush on him. Unless you've never been to a party and you've lived under a rock, that is a scenario where the boat started to sink. These guys needed to leave. There were three boats that came with that group of friends. You could see that some confusion there. Plus, everybody is drinking, including. Including poor Nolan Wells. And it's one of those things. But the idea that somebody's taking advantage of this poor family, you know, saying that somebody hurt your son, somebody murdered your son, based on what I've seen right now being absolutely nothing. There's a level of hypocrisy there. Injustice is injustice. Injustice in, in the 1950s or the 1930s in Mississippi is horrific. But you can't cure those injustices by creating new ones, and you can't cure past racial injustice by creating new racial injustice. And I think that as a, as a country, we all got to get together and agree that you can't do that. But you got people like Al Sharpton and Ben Crump, and I don't know how we walk ourselves back from this. And you have a ton of people who are rallying behind them. And look, I've prosecuted people for, you know, I did 53 murder cases, and my investigators, black, white, Hispanic, Asian, whatever they were. A victim is a victim, a defendant is a defendant. Right is right, wrong is wrong, and the race just shouldn't play any role in it. And I see it happening here. I hope I'm wrong, but. And I, And I really, I implore the Mississippi authorities to release those autopsy results as soon as possible and try to, like, try to get the truth out there. Because as Mark Twain once said, a lie can make its way around the world before the truth can get up and get its trousers on. And I think we're seeing that in this case. It's a tragic thing. And if somebody did murder this kid, I'd be the first one to raise my hand to volunteer to prosecute the case. But if this is an accident, we do not cure past injustices by calling for the prosecution of innocent people. So that's my little rant. You know, there's a lot more to come on this case, but just my. My thoughts on a summer day. So I want to thank my co host Mark Ergos, and thanks to you for tuning in to in the well, we can't tell you how much we love your support. The show's doing great and thank you, thank you, thank you for listening to us and we hope to see you next time. Thank you.
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