A Conversation with Prosecutor Nicholas McLeland and Chief Public Defender Tim Sledd: Part One

Summary

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Murder Sheet: A Conversation with Prosecutor Nicholas McLeland and Chief Public Defender Tim Sledd – Part One

Date: August 26, 2025
Hosts: Áine Cain and Kevin Greenlee
Guests: Nicholas McLeland (Carroll County Prosecutor), Tim Sledd (Chief Public Defender, Lawrence County)

Episode Overview

In this detailed, candid episode, Áine Cain and Kevin Greenlee welcome two seasoned Indiana criminal law professionals—Prosecutor Nicholas McLeland and Chief Public Defender Tim Sledd. They explore the realities of criminal prosecution and defense in Indiana, discussing their career trajectories, how criminal cases are built and defended, common legal strategies, jury selection, plea bargaining, professional dynamics, and more. Practical insights and honest anecdotes bring listeners into the heart of the legal trenches, countering common myths about the courtroom.

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Key Discussion Points and Insights

Personal & Professional Backgrounds

[05:41]

• Both McLeland and Sledd grew up in Delphi, IN, went to law school, and have practiced both defense and prosecution.
  • Tim Sledd describes the close-knit nature of their high school (“My graduating class was only 100 people...so the whole high school was probably 4, 150 people maybe.” — Sledd, 06:06)
  • Both discuss transitions: Sledd from defense to prosecution and back; McLeland from public defense to elected prosecutor.

Notable Quote:

"We both grew up in Delphi, Indiana...It was impossible not to have had at least some interactions with each other from definitely in high school." – Tim Sledd, 05:52

Switching Sides: Prosecution & Defense

[07:32–14:33]

• Both guests explain it’s common in Indiana, especially in rural counties, to start as public defenders due to the political nature of prosecutor jobs.
• Transitioning from one side to the other requires adapting to new skills and burdens of proof.
  • The prosecutor’s burden of proof is heavier; defense roles are often more reactive and focused on cross-examination.

Notable Quotes:

"The burden shifts. That’s the big thing...as a public defender, it was easier for me to prepare for trial because I didn’t have the burden." – Nicholas McLeland, 13:38
"Being a prosecutor after having been a defense lawyer is a really good position to be in because he can anticipate what he would do if he’s on the other side." – Tim Sledd, 15:34

Building & Challenging Cases

[17:36–19:08]

• McLeland and Sledd describe the appeal of criminal law: fast pace, direct impact in court, and the challenge of outmaneuvering the opposition.

Notable Quote:

“I like being in the courtroom. I like being in front of people. And so it just always appealed to me to do criminal law.” – Nicholas McLeland, 18:40

Motions in Limine: Purpose & Strategy

[19:08–28:02]

• Motions in limine are used strategically to preclude prejudicial or inadmissible evidence before trial—preventing the need to "unring the bell" during trial.
  • McLeland and Sledd emphasize pretrial arguments prevent unnecessary jury delays and mistrials.
  • Both recount anecdotes where failure or misuse of motions in limine led to trial complications, emphasizing their importance and the nuances in their application.

Quote:

“You don’t want a situation to come up where we have to try to unring a bell in trial.” – Tim Sledd, 20:40
“Can you imagine if we would had to send the jury out for three days in the back of the jury room?” – Nicholas McLeland, discussing the Richard Allen trial, 26:56

"Trial by Ambush"? – Transparency in Evidence

[28:02–28:52]

• Both sides agree that, contrary to TV dramas, trials are not meant to be about surprise, and both parties should generally know the evidence in advance.

Quote:

“We always say you don’t—there’s no trial by surprise is what we always say.” – Nicholas McLeland, 28:15

Third-Party Suspect Defense

[28:52–33:05]

• Sledd explains differences between "some other dude did it" (SODDI), empty-chair defenses, and specific third-party accusations.
• Specific third-party accusations require a rational basis and supporting evidence due to potential for significant harm.

Quote:

“An empty chair defense is a fantastic defense...But when you have a mystery other than the defendant and the defendant starts bringing in people that aren’t tied through the police reports...that’s dangerous to do.” – Tim Sledd, 29:27

Avoiding Charging The Wrong Person & Prosecutorial Discretion

[33:05–41:45]

• Both guests discuss the risks of over-reliance on law enforcement, the danger of “filing drunk” for prosecutors, and “trial drunk” for defense attorneys.
• Tim and Nick talk about ethical obligations to avoid charges when evidence is weak and describe their own experiences with case dismissals upon suppressed evidence or procedural errors.

Quote:

“We have an ethical obligation as prosecutors that if we don’t believe we can meet the elements or...law enforcement has the right guy...we cannot, we’re not supposed to file charges.” – Nicholas McLeland, 34:09

Professional Collegiality vs. TV Drama

[42:46–49:35]

• In smaller counties, defense and prosecution are often collegial due to regular cooperation. Out-of-town or big city attorneys may bring more aggressive, confrontational styles.
• Both stress the need for short memories and thick skin—emotions may run high in court, but working relationships must endure.

Quotes:

“It’s not advantageous to be at odds because it just makes negotiation difficult.” – Nicholas McLeland, 42:55
“We are both the same actors or we’re both in the same play, we’re just different actors…we don’t have to be adversarial in everything.” – Tim Sledd, 45:08

Plea Bargaining—Realities and Public Misunderstandings

[49:35–63:22]

• Over 90% of cases resolve via plea deals; a necessity given limited judicial resources.
• Prosecutorial offers are shaped by criminal history, case specifics, victim input (when appropriate), and statutory sentencing guidelines.
• Sledd gives a detailed example of evaluating plea risks with a murder client (difference between 42 and 45 years imprisonment).
• They clarify Indiana’s mixed indeterminate-determinate sentencing model and the role of aggravating/mitigating factors.

Notable Quotes:

“If you were to have a trial on every case, you would just bog the system to the point where it would break.” – Nicholas McLeland, 51:08
“Beyond a reasonable doubt should and is a very heavy burden. It is a strict and heavy burden. And it should be a strict and heavy burden.” – Tim Sledd, 53:19

Reasonable Doubt & Jury Instructions

[63:22–70:07]

• “Beyond a reasonable doubt” is the cornerstone of criminal cases—a “firmly convinced” standard, higher than other legal burdens (preponderance, clear and convincing).
• Both emphasize fidelity to jury instructions and address the challenge of laying and correcting juror misconceptions about the presumption of innocence.

Quotes:

“You must be firmly convinced. And it’s not, what’s more reasonable. Firmly convinced. Using your common sense that you bring into the courtroom.” – Nicholas McLeland, 66:18
“Throughout every stage of the trial...you have to start, because of these instructions, with the presumption that my client is not guilty, that he’s innocent.” – Tim Sledd, 68:13

Testifying, Jury Selection, and First Impressions

[70:07–84:13]

• Defense attorneys spend significant energy educating juries on the defendant’s right to remain silent and presumption of innocence.
• Real-life dynamics of jury selection and potential biases discussed, including challenges, preemptory strikes, and cause strikes.
• Both guests have never served as jurors themselves but are fascinated by the deliberation process.

Quotes:

“Not very often do defendants testify, but as a prosecutor, you always want them to testify...I want to...throw this in your face and tell the jury, look at this admission…” – Nicholas McLeland, 74:04
“All of you are good jurors, but this—you may not be the right juror for this case.” – Tim Sledd, 81:18

Opening Statements Philosophy

[86:21–88:11]

• Both favor brief, measured opening statements. Defense often reserves for its case in chief.
• Focus is on not overpromising and emphasizing jurors’ duty to withhold judgment until all evidence is in.

Quotes:

“My opening statements are usually very brief, and they’re very, very, very general because I don’t like to outkick my coverage.” – Nicholas McLeland, 86:21
“Rarely will I get up and do a whole lot of kicking and screaming. On opening. It’s a solemn reminder of, hang on. What are we doing here?” – Tim Sledd, 87:05

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Timestamps for Key Segments

• 05:41 – Personal introductions, shared Delphi upbringing
• 07:32 – Switching sides: defense/prosecution career paths
• 13:38 – Learning to adapt skills for prosecution vs. defense
• 19:08 – Motions in limine: strategy and mistakes to avoid
• 28:02 – Trials are not “trial by ambush”; transparency in evidence
• 29:27 – Third-party suspect (SODDI, empty chair) defenses
• 33:05 – The risks of charging/pursuing weak cases
• 42:46 – Professional relationships: adversarial or collegial?
• 49:35 – The realities and necessity of plea bargaining
• 63:22 – Reasonable doubt, jury instructions, and burdens of proof
• 70:07 – Educating juries: presumption of innocence and right to silence
• 76:58 – Jury selection: identifying “good” and “bad” jurors
• 86:21 – Approaches to opening statements

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Notable Quotes & Memorable Moments

• “An empty chair defense is a fantastic defense and I’m always looking for that in cases.” — Tim Sledd, 29:27
• “Not every case is going to be wrapped in a box with a bow with DNA and video of the crime. Sometimes you just have to go with what you got.” — Nicholas McLeland, 34:09
• “Prosecutors can get filing drunk and defense lawyers can get trial drunk.” — Tim Sledd, 35:46
• “If you were to have a trial on every case, you would just bog the system to the point where it would break.” — Nicholas McLeland, 51:08
• “You must be firmly convinced...Using your common sense that you bring into the courtroom.” — Nicholas McLeland, 66:18

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Tone and Atmosphere

McLeland and Sledd are forthright, personable, and grounded in practicalities. Their professional rapport is evident—there’s mutual respect, a willingness to acknowledge each other's points, and a shared commitment to fair proceedings. The conversation is candid, peppered with real-life examples and some dry humor about the quirks of small-town legal practice.

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For Listeners

This episode provides a rare, accessible window into the criminal justice process as seen by two experienced practitioners—dispelling myths, revealing the real mechanics of courtroom drama, and offering practical wisdom for anyone interested in how justice is truly negotiated and pursued.

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End of Part One. Stay tuned for Part Two for more real-world insights from Prosecutor McLeland and Chief Public Defender Sledd.

Transcript

[Anya Cain]

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[Kevin Greenlee]

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[Anya Cain]

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[Kevin Greenlee]

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[Anya Cain]

I wanted to pop in here super quickly and tell you all that we're doing a number of events and book signings around our new book, Shadow of the Bridge. We'd love to meet you, sign the book, say hi to, talk about fish sandwiches, whatever you want to do. I will be including a link in all of our future episodes that goes to our website, which is murdersheetpodcast.com events and that way you can follow along with this and get any links you need to get in order to purchase tickets. Our launch event is going to be on Tuesday, August 26th from 7pm to 9pm we're so excited to be doing an event with Turn the page books and it's going to be taking place at the Christ United Methodist Church in Westfield. This is a ticketed event, so please purchase your tickets. And in addition, we're going to be doing a August 30, 2025 signing from 11:00am to 1:00pm in Delphi, Indiana at the wonderful Buttermilk Biscuit Company. You can also go on our website and check out what events are coming up in the future. We're going to Greenwood, Columbus, Noblesville, Kendallville, Franklin and Carmel and we'll also be going to Louisville, Kentucky. We're probably going to be doing even more events than what I just listed. Please keep an eye on that events page and you can follow along and we'd love to meet some of you and it would be just delightful and we' and get to thank you in person for supporting us.

[Nicholas McLeland]

Catch my in depth interview with Anya and Kevin about their new book Putting Them on the Hot Seat and opposite side of the mic on my podcast, Crossing the Line with M. William Phelps. Wherever you get your favorite shows Content.

[Anya Cain]

Warning these episodes contain discussion of murder, drug addiction, mental illness, rape, suicide, the sexual exploitation of children, and the murder of children. They also include some profanity on the murder sheet.

[Kevin Greenlee]

We primarily cover crime, namely criminal investigations and criminal cases to go to trial. In the trial phase, prosecutors represent the state and defense attorneys represent the defendant. We find on our show it's often helpful to hear from people with that sort of direct experience, people who can give us insight into how our criminal justice system works so we can better understand the cases that dominate the headlines.

[Anya Cain]

We recently got a chance to sit down with two seasoned attorneys who each worked on the prosecution and the defense in the state of Indiana. We interviewed Nicholas McCleland, the elected prosecutor of Carroll county, and Tim Sled, the chief public defender of Lawrence County.

[Kevin Greenlee]

Tim has been on our show plenty of times and always has great insights. And of course our audience will remember that Nick led the prosecution of Richard Allen in the Delphi murders.

[Anya Cain]

They're going to talk about the ins and outs of their profession, go into what it's really like going to trial, and answer some questions from our listeners. This is the first of two parts of our conversation with them. My name is Anya Cain. I'm a journalist and I'm Kevin Grainle. I'm an attorney and this is the Murder Sheet.

[Kevin Greenlee]

We're a true crime podcast focused on original reporting, interviews and deep dives into murder cases. We're the Murder Sheet and this is.

[Anya Cain]

A conversation with prosecutor Nicholas McLeland and chief public defender Tim Sled. Part 1 First of all, Tim and Nick, thank you guys so much for coming on the show. We really appreciate it.

[Nicholas McLeland]

No problem. Glad to be here.

[Tim Sled]

Thanks for having us.

[Anya Cain]

Yeah, no, this is really cool. And I guess to start off with, can you just tell us and if I didn't, our listeners, how you two know each other.

[Tim Sled]

Sure.

We both grew up in Delphi, Indiana.

We're mighty oracles. I think I was two grades ahead of Nick. Yeah. So small school. So it was impossible not to have had at least some interactions with each other from definitely in high school. So I knew him from there.

[Nicholas McLeland]

Yeah. I graduated in 98 and I think Timmy graduated in 96. And so. Yeah, but I don't know what Tim's graduating class. My graduating class was only 100 people and so the whole high school was probably 4, 150 people maybe. And so it was just tiny enough where you just kind of knew everybody throughout the grades.

[Tim Sled]

And so, yeah, the way the high school was set up, I had 98 in my class. The way the high school was set up, there was this raised mezzanine in the lunch area and it was called the senior mezzanine. And underclass had to be down on like the ground level. But the senior meson was only maybe 4ft elevated, another 2 foot rail.

And any class underclass people that would try to cross it would get thrown off.

So when I was an underclass person, I took a ride off. And I don't remember Nick doing that.

But that's how small our school was. As guarantee you.

I oversaw him eating lunch.

[Nicholas McLeland]

Yeah, there were. The seniors were too big for me to try. Few people in my class, Chris Brummett, tried and got thrown off. I remember inevit. Somebody tried it at least once every year. So.

[Anya Cain]

So at least Tim didn't throw you off. So we're not, we're not rehashing that. So you guys were friends and not enemies. That's awesome. And then you both went to law school and became attorneys, which is super cool. One thing we noted before we started recording is that you both have experience in both prosecution and defense, I guess. Can you both sort of speak to that and sort of, you know, kind of transitioning to the opposite side?

[Tim Sled]

Sure.

So in law school I did my internship and a paid internship with the Indiana Federal Community Defenders and it's federal criminal defense work in Indianapolis. After law school, I then went to graduate school. Kept doing some federal criminal defense work and my second daughter was coming along. I needed to get a real job with my professional degree. And so I was looking for work and I found a public defender job open in Bedford, Indiana, where I am now the chief public defender. Back then it was on a contract basis per courtroom.

I didn't know anybody here.

I just came Started practicing. I did that for a couple years and then was a juvenile law judge for a year. And during that time, I got courted by the elected prosecutor at that time to be the chief deputy prosecutor. And that's when I moved into prosecution, which I did for six years. And I think that's where some overlap, even with the community comes with Nick, because he reached out to me after law school.

[Nicholas McLeland]

Yeah, yeah. So when I was in law school, they had a. I went to Toledo and they had a night program. And so I did that and I worked during the day and I was a clerk for a judge. I had that experience and I clerked for her all three and a half years of law school. And then when I came back in 2009, I passed the bar and I reached out to Tim and I came down here and I met with him because I think the chief public defender at that time was retiring and he was wanting to basically hand over his practice. And at that point I didn't have job. And so my thought was I was going to move down here. I was always fond of Bloomington in this area of the state. And so I reached out to Tim and he set me up with this guy, and I had an interview with him and we talked about working down here. Well, at the same time, Carroll county was at a shortage of attorneys and namely public defenders. There was only about one guy, main guy, that was doing it, and there was only one guy certified to do high level felonies. And so I decided to stay home, closer to family in Carroll county, and took a public defender gig there. And we just did kind of like what ten started out doing just hourly, and it's by the hour and just get cases. And so I practiced in Carroll County, White County, Tippecanoe, Cass and Clinton, and kind of ran that circuit. And then in 2018, well, at the end of 2017, Rob Ives was longtime prosecutor for Carroll County. Rob Ives and Jim Hufford kind of went back and forth as prosecutors throughout the years. And there was Trish Thompson sprinkled in. There was a prosecutor for a term or two. But Rob Ives retired at the end of 2017, and the prosecutor job came available. And I think I told you this before, about that time in 2016, I had my first daughter. In 2017, I had my second daughter. And it kind of started to get to me representing some of these horrific crimes like child molest and rape and all those kind of things. And the opportunity came up for prosecutor and ran for it. We had a caucus, ran against another guy. And I was able to get precinct men and women to elect me and then just been prosecutor since then.

[Kevin Greenlee]

Is it typical to go from one side to the other, as you both have done? Is that unusual?

[Nicholas McLeland]

I think it's. I don't know. Tim may have different experience, but I think it's typical to start off on the public defender side. Sometimes it's difficult. At least in a smaller counties, it's difficult to get in the prosecutor's office because a lot of times there's only prosecutor and a chief deputy, and it's really difficult. Most prosecutors like to hire chief deputies that have a lot of experience so they can just give them their caseload. You know, a lot of prosecutors don't want to have somebody brand new come in and then mentor them and teach them because they're busy with their own caseload. Sometimes in the bigger offices, like Tippecanoe County, Marion county, you can get into the prosecutor's office. So I think in those areas, and maybe more common to start on the prosecution side. I've noticed in the bigger cities like Marion, Tippania county, they do start on prosecution, but once they get a year or two of experience, they move right to the defense side. And I don't really know why. Probably because more money, you can make more money on the defense side. But that's been my experience.

[Tim Sled]

Yeah, I think it kind of depends.

Upon the geographic type and the population. So just echo what he says. In a small community, the prosecutor's job is elected. It's a political position. So you've been in college, you've been in law school. You probably haven't been spending a lot of time courting the political party in your community to get the bona fides to run. So very few elected prosecutors are straight out of law school. Now, Lawrence county had one for some time named Scott Callahan, but rarely does that happen. Typically, it's somebody who's been brought up in the community, private practice lawyer that decides to run, or a public defender that decides to run. In the bigger communities, he's right. A prosecutor's office may have, let's say Indianapolis may have, you know, 100 deputy prosecutors and only one elected prosecutor. So a lot of the deputy prosecutors then go out into private practice. But you'll notice that most of the elected prosecutors in a big city like Indianapolis or Marion county, they were life prosecutors.

So I think in the bigger communities.

If you want to be the boss of a prosecutor's office, you're probably going to start off as a baby prosecutor and look your Way up. But in a rural community, the prosecutor's job is something that's going to take more politics. It's going to take more time and some savvy to get into, if that's what you want to do. Plus, you have to have the guts to be a politician, which has its own level of administration and dynamics that public defenders don't have to deal with.

I think it's very common for people.

Who do criminal defense work to have had some time as prosecutors by prosecution, administration change. Sometimes there's a dumping of the. Of the. The underlings, and they have to go someplace to work. And it's the other side of the coin to do public defense or criminal defense work. So prosecutors are very apt at analyzing evidence, reading police reports and preparing.

[Anya Cain]

Is this something that's easy to switch, or do you have to sort of take some time to sort of relearn some things?

[Nicholas McLeland]

It wasn't easy for me to switch. The burden shifts. That's the big thing. And so as a public defender, it was easier for me to prepare for trial because I didn't have the burden. And so you're more reactive. I'm also just way better at cross examination than I am direct examination. So that's something I had to learn because typically as a public defender, you're just doing cross examination. Your client will testify at times, but a lot of times you don't have them testify. And a lot of times, at least in the cases I was handling, the defense didn't have a lot of witnesses. And so I was not very skilled in direct examination. So that was a big change for me. And then just filing charges, we use a different system to file charges on the computer, and I had to learn all of that. And you never really know how the sausage is made, right? You just. When you're a public defender, you get the charges and they're all there. And so I had. It was a. It was a big transition for me and kind of a big learning curve for me when I switched.

[Tim Sled]

So I went from defense prosecution back.

To defense, and it is a. It is a transition. Both sides have their points of difficulty and their points of ease. One of the things that public defenders will often say, or defense counsel will often say, is we get our cases handed to us, and that's our case. I mean, adding and doing investigation is something we always do, but we're probably not going to get very much additional information. We're not going to get too much information. It's going to be additional. The state doesn't Always have or no. So we're kind of given a package and we have to deal with it. On the prosecutor side, they have the time, sometimes have the time to say, I don't like the package we've been given by law enforcement and go out and do more work so they can put the bow on everything. And while they do have the burden of proof, they have the opportunity of, in some cases, some cases they have to have to pull the trigger when they pull the trigger, but in other cases they can sort of say, I'd really like to hear from this person. And law enforcement can go out and.

Tie a, tie a bow on.

I think being a prosecutor after having been a defense lawyer is a really good position to be in because he can anticipate what would he do if he's on the other side of this coin, how would he attack this case? And he can fortify his case through more investigation or anticipating motions and things like that. So I think that builds his strength as a prosecutor is having having the ability to see from the other side. My mentor elected prosecutor that I was under when I was chief deputy, she had been a defense lawy. And so we both had this defense mindset. We both viewed it as it was an opportunity to educate law enforcement on how to be better. And we tried to help them understand that, that when we were challenging them, we were just like, this is what we would do if we were on the other side. And I still to this day, having been a prosecutor, one of the things I gained was I can talk cop. I know how to talk to police officers and speak their language, and I know how to get information from them. But I also know how to, you know, examine them in such a way that they're like, oh, he's making me better, I messed up. Or oh, I missed that. That's interesting. I wouldn't have thought about that. Because the defenses are, in any criminal case are basically, there's a basket of defenses and you're selecting which. Which defense fits this fact pattern.

[Nicholas McLeland]

Tim's exactly right. I do that often with law enforcement. I will say, hey, I think this is a hole we have in the case if we have the time. Some cases you just can't. But we'll send law enforcement back out and say, okay, re interview this person because the defense has going to attack us in this way. And it's helpful. When I prep witnesses, I always, I go over the questions and the topics I'm going to cover with them. But then I also say, okay, these are the questions I think defense are going to ask you, and these are the topics and these are the places they're going to attack. Only law enforcement witnesses, but victims, because defend public defenders or defense attorneys are always going to attack a victim's credit. Not always. Most of the time we're going to attack a victim's credibility because that's just one of the defenses that they always use. And so it's been helpful for me with victims as well.

[Kevin Greenlee]

Another thing I'm curious about is you're talking about prosecution and defense, but also both of them are in the larger framework of criminal law. What drove both of you to enter criminal law?

[Tim Sled]

So I wanted to be a medical doctor when I was in high school until I saw Silence of the Lambs. And then I wanted to be an FBI criminal profiler. So I went to undergrad with the hopes of getting into the FBI and doing criminal profiling and met with some recruiter at the Indiana Memorial Union one time. And they said a law degree, a foreign language accounting, those are kind of the entry points. And I thought law degree sounds good. My political science classes bored me to sleep. Criminal justice classes were fun and I liked studying that, so I studied criminal justice. It was also a pretty easy path for me to engage in the debauchery that I engaged in as an undergrad and still make good grades. And so then I applied to law school. And in law school I just continued down the track of the things in law school that interest me were criminal.

[Nicholas McLeland]

I'm a competitor. I like the action. I like the fast pace. I like. I always wanted to be a litigator. I never wanted to sit behind a desk in an office all day. And no offense to civil attorneys, but civil cases are more paper intensive and so. And so are med malpractice cases and all those kind of cases that are in the civil realm. I like criminal law just because I like being in the courtroom. I like being in front of people. And so it just always appealed to me to do criminal law.

[Anya Cain]

I want to ask you both about a number of things our listeners were interested in, and they all kind of have to do with both sides of a case, a criminal law case kind of going towards trial and then during trial. And I guess one thing that for some reason Kevin and I talk a lot about and that we wanted to ask you about was just motions in lemonade. Like, how do you use those strategically as you're going into a criminal case on. On both sides?

[Nicholas McLeland]

For me, I. I typically always file the boilerplate motion and limine that have the boilerplate stuff that, you know, you can't. I can't even think of it right now. I'm drawing a blank. But I have a boilerplate motion in limine that I file in almost every case. And it's just got some standard stuff that ask the defense not to talk about the way I use motion and limes for specific pieces of evidence, whether or not they're going to come in. And it gives you an opportunity before the trial to argue those things. And if they come in or they stay out, that gives you an opportunity to change your strategy if need be. And so that's how I like to file the motion of limines as far advanced as I can and say, okay, Judge, this is going to be an issue. We don't know if this piece of evidence is going to come in. I think the defense is going to try to bring it in. I want to talk about it. And so will have a hearing before the trial. Otherwise, if you do it in the middle of the trial, you got to send the jury out, and they're sitting in the jury room. They don't know what's going on. And sometimes the hearings or the arguments can last several hours. I mean, if it's a complicated issue. So I kind of use it as a pretrial tool to say, okay, what pieces of evidence are going to come in so that I know what strategy I'm going to use during the trial.

[Tim Sled]

Yeah. So there are garbage motion and limines out there that basically cite the rules of evidence, which you don't need to have in a motion in limine. They're the rules of evidence. But he's exactly right in that a real good motion in limine says, I don't want a situation to come up where we have to try to unring a bell in trial. You'll hear judges say, strike that from the record. Or juries, jurors. You're admonished not to, you know, not to take any weight from what you just heard. Too late. Too late. He's exactly right that if there's a controversial piece of evidence and you can anticipate it, get a lemony instruction early. Get the judge to admonish the lawyers on this is how this trial is going to go. There shouldn't be any surprises at trial. Not with the litigants, I don't think. I mean, the public is often surprised by what comes out at trial, but the litigants should know this is the evidence, these are the witnesses. Yes, there's going to Be like there's margins of error in what they're going to say. But for the most part we know what they're going to say and we know what the exhibits are going to be. A limine just ensures that we would often file a specific motion for exclusion of prior bad acts or prior criminal charges. Which you say, well, there's a rule of evidence for that. However, if you have an order in limine on that, then with the witnesses beforehand, the state can go to their witness and say, you're not going to be able to talk about when this happened before because that's not here. They have that order that says that. So with the defense's witnesses, you can say we can't talk about the fact that the, the alleged victim in this case has this other criminal background that's not relevant to this issue. And it gives you a way of sort of preventing those surprise things from coming up. A case that I prosecuted was a child molest case and my witness was 13 years old and was a fantastic witness and did everything well. And I prepped with her on the questions I was going to ask her and we had our motions in limine hearing. There was no, we weren't. 404B was understood, we weren't going to go into any prior bad acts. And I asked her the question, I said, and why did you call 911? Because I wanted her to say what had just happened. And she said, because every time he did this to me before, he never stopped. It was a mistrial. I didn't intentionally. That was not a question that I could have thought would elicit a 404 response. But if I could have anticipated that she was going to talk about that sort of thing, it would have been a great limine situation, I think. And I've noticed, at least in my limited practice that a lot of lawyers don't understand the purpose of limine. Like Nick just talked about the purpose of it, or like I believe it to be, they think it's an opportunity for everybody to have a refresher course on the rules of evidence and relevancy. And that just wastes the judge's time. And I just had a final pre trial conference yesterday where we went through motions in limine and of the 34 numbered motions requested, limine's four got granted because the rest are covered by the rules of evidence.

[Nicholas McLeland]

Yeah, Tim's right. I mean you don't want to put. Unless there's. He talks about 404B and that's his prior bad acts you're not allowed to talk about those. And as lawyers, we know you can't do that. But if you know there's a specific act that either the state or the defense is going to try to elicit, you want to get that in front of the judge and say, look, judge, I think this is coming. You know, I want to have a ruling on it. A motion in limine. I had a child molest case that I was a prosecutor on, and the defendant wanted to take a polygraph. And for some reason, the law enforcement didn't offer it. We wouldn't be able to use it anyways even if they did. But the defense attorney wanted to bring up. Wanted to ask him. You offered to take a polygraph, didn't you? Well, I'll ask the defendant. And so I filed a motion limiting. Hey, judge, this is coming. I know this is coming. The defense has told me he's going to ask this. I want to prevent him, because you can't talk anything about polygraphs. And then, of course, the defense attorney asked the question after the motion limiting was granted and like Tim said, is a mistrial. Because once you. You can't put the toothpaste back in the tube once it's out, and he's right, the judge can say, I would demolish the jury to. You strike that. But you can't unhear something. And you know a jury's gonna consider it. At least it's my belief they're gonna consider it. Even if the judge says, I'll admonish you not to consider or not to take consideration. That last statement.

[Tim Sled]

So in a situation where a limine got used by the state against me as a defense lawyer, that was effective and important for the state's case and against the theory of defense in a case I recently had a decedent. This. I felt the state of mind of the decedent was in question. And this. The decedent, during the autopsy, was found to be wearing an interesting article of clothing. And it was in the police reports, in the autopsy report. And I felt like. I mean, my client, who was charged with murder, was responding to something and had his reasonable beliefs, in my opinion. And this was just a. A piece of evidence that would go to that. And in depositions, I was asking the family of the decedent questions about this. Was this common? Was this normal? Was this his kink? Was this no shame if I just got to know these things? And nobody seemed to understand why this article of clothing was being worn, which I felt went very much strongly to the state of mind of the decedent. The prosecutor did a wise job, did a limine. And I got precluded from talking about that unless the state opened the door in some way because the, the judge was able to make a relevance analysis, not in the heat of the moment, but in a hearing on just that specific issue and determined that it, he, the judge determined that it wasn't going, it was, wasn't going to be. It may be relevant, but it's prejudicial. The impact outweighed its probative worth because I was drawing a lot of speculation based upon this garment. But that was better covered for everybody's economy, better covered two weeks before the jury trial than having a three hour hearing in chambers or with the jury sitting in the back room, you know, twiddling their thumbs. It was already a five day, six day jury trial and that would have added a whole nother day probably. So it's, it's to speed things along, it's to level the playing field, it's to show where the chess pieces are before we punch the clock.

[Nicholas McLeland]

So the three day hearing we had in the Richard Allen trial, that was in part motion and limine that we filed for them to not be able to talk about Odinism, not talk about third party suspects and those things, those three days was at least in part a motion in limine. Can you imagine if we would had to send the jury out for three days in the back of the jury room and again, the jury doesn't know what's going on. There's nobody back there to tell them, hey, they're arguing a motion. They're just sitting back there wondering what's going on. And the longer they sit back there, I think if I were a jury and I was sitting in a room for two or three hours doing nothing, I think I would get a little annoyed. And so we try to make, and we understand, I think the judges, defense attorneys and prosecutors, we understand that the juror's time is important and we want to make the trial go as smoothly as possible. And so I think if you're being an effective attorney, you're going to file the motion limit so you can argue these things ahead of time. There are some attorneys that don't, and there are some attorneys, I'll just make the motion in the middle of the trial. And it just, it kind of just muddies the trial. We try to make it as fluid as possible. And so they can be used effectively, but they can be used ineffectively too. I mean, if you do Them during the trial, it just, it bogs everything down.

[Anya Cain]

Right. And it's like one thing we talk a lot about on the show is trials are not supposed to be like trial by ambush. Not supposed to be like that's how it is on TV a lot of times. But, you know, it's, you're supposed to work things out and sort of try to proceed forward.

[Nicholas McLeland]

Yeah, we always say you don't, you know, there's no trial by surprise is what we always say. And Tim's right. You really, you should really know each other's evidence if you're prepared. And you should really expect what's going to, you know, what the other side is going to do. Now there, like he said, there is some leeway in how the people answer because you never, no matter how much you practice with somebody or prep somebody, they're wild cards when they get up on a stand. And so they, you know, you never really know what they're going to say. You just hope that they remember the topics you covered. And again, we always say it's easy to tell the truth, but when people get on the stand, they're nervous and you just really never know what they're going to say 100%.

[Anya Cain]

So, Nick, you opened the door for third party defense. So I'm going to ask about that, so to speak, that a lot of our listeners really wanted to know about this. I think it's something that we hear about in a lot of high profile cases, like is third party defense going to be allowed in? Is it not going to be allowed in? Like, what's, what's the, what's the level that it has to get to, to be okay? Is it okay if I just get up there and say Kevin Greenlee did it, if I'm being, you know, accused of something? So I guess if you could both maybe speak to maybe Tim, you can take it first and then Nick, about just like third party defense and you know what that can look like and what considerations go in for both sides.

[Tim Sled]

First and foremost, I think you have to start with the defendant has the right to present a defense. Then we start there. But then you trim that down a little bit. What are the defenses and what's the impact of the defense? So the, a defendant has a right to a fair, public and speedy trial and the state has the burden of proof. But in that, you know, a, a defendant has a right to confront the state's evidence With a defense. There's the some other guy did it Saudi defense. I know your, your listeners are Aware of what that is. That's more general. That's the state can't meet its burden of proof because anybody, somebody other than me could have done it and they need to have constrained the evidence to me. Then there's the third party defense, which is specific, that's putting a name and an image on who did it. An empty chair defense is a fantastic defense. I love the empty chair defense and I'm always looking for that in cases. Did they get the right guy? And if not, is there a chair that I can put in the courtroom and say if they had just done their work, it would have been that the person sitting in that chair. But we don't have that person. That's the empty chair defense. That doesn't. Yeah, that mean. But that, that does not inculpate anybody and ruin anybody's life. So courts, case law has said that the Saudi defense, the empty chair defense, when you say not only is it an empty chair, we know the body that should be sitting there and it's this guy has to be supported by some rational basis, reasonable suspicion evidence. Because those are heavy, heavy accusations to make. Even in a dope dealing case. I mean, you're doing a lot to say somebody is the, is the other guy. I mean, now sometimes the empty chair Saudi defense happens when there's four or five people in a car and only one person's being tried. You can say somebody else did it and you got three other names that have gotten tossed around. And I think that's still a valid defense and I don't think it's wrong. But when you have a mystery other than the defendant and the defendant starts bringing in people that aren't tied through the police reports, they're not knit together, they haven't been vetted and you're, and you're. Or they've been vetted and excluded. I don't think at trial that's the opportunity to start bringing out names. I think it's dangerous to do so. I mean, I don't practice civil law either, but I know that in defamation and slander, you have to be careful on accusing or raising somebody's name and attaching to it certain accusations, specifically a child molestation, I think that's an easy one to get sued over. So you gotta be cautious. And I know as a defense lawyer, I'd much rather have, unless I have nearly uncontroverted evidence that there was either a co actor or an other actor who is culpable, I'm not gonna say their name, I'm gonna Use empty chair and let the jury draw the. Draw the people into the seat they want to sit. But I don't want to belie the fact that the defendant should get the opportunity to make a defense if they want to make a defense. And there should be a lot of leeway on that. However, the constraints are there. You have to understand you got to play within bounds.

[Nicholas McLeland]

Yeah, Tim's exactly right. I don't have much to add. You don't have to file notice at all if you're going to say, hey, it was. We don't know who it was, but it wasn't my guy, it was somebody else. The only other time you don't have to is if you have co defendants and you're saying it was the co defendant, not me. But Tim's right. They have those rules in place. So people can't get up there and just say, you know, Jim Bob did it. And with no nexus between Jim Bob and the crime. And so case law is pretty clear on it. The rules are pretty clear on it. But if you just do what Tim calls the empty chair defense, you can just say, look, we don't know who did it, but it wasn't my guy or girl.

[Anya Cain]

And then, you know, we talked about. Because that's a defense strategy, obviously. But one thing, we actually interviewed a longtime prosecutor the other day. I don't know if this episode will go out first or that one. So this might get confusing, but he told a story about how when he was a really, really new prosecutor, he brought charges against some people for murder. And, you know, there was definitely enough there to bring charges. But like, it was one of those things where law enforcement sort of, I think, were kind of making promises that they did not fulfill. And then those charges were dropped and dismissed and they did not go to trial. And ultimately it turned out someone else had done it. That was confirmed years later. So, you know, it was one of those things where he was talking about how if he had been like a five year prosecutor, a ten year prosecutor, that would never have happened. He wouldn't have done that. But being so new and sort of putting his trust in the wrong detective, it kind of led to a problem. So I guess, you know, what are some of those things on both the defense and the prosecution side where how do you avoid that as a prosecutor? But also if you are experiencing that as a defense attorney and you're saying this is really weak, we need to get this dismissed, what does that strategy look like? How do you approach a prosecutor to try to push for that.

[Nicholas McLeland]

That prosecutor's right. Unfortunately, in my career, I learned by making mistakes. And so when you have a case and if you charge it too soon or, you know, you don't sure up the loose ends before you charge it, you can fall in that pit where, you know, the defense has a good defense and you can lose that case. In a small county, if you have, if you're going to file something like murder or a high level felony, you want to be dang sure you have all the evidence. Because in a small county, politically, the last thing you want to do is file a murder charge and then have to dismiss it because you have to admit law enforcement did something wrong, or I as a prosecutor did something wrong. That can be pretty fatal in a small community politically. And so you really want to make sure. But a lot of those things you learn, just at least I learned by making the mistake. And you learn, okay, next time I'm not going to do that. Unfortunately, that's the way I've lived my life. I usually have to make the mistake and then I learned the lesson. And, and you know, but there are cases where sometimes you just have to go for it. Not every case is going to be wrapped in a box with a bow with DNA and, you know, video of the crime and all those things. Sometimes the evidence you have is the evidence you have and you've got to be willing to have the guts to say, okay, I'm going to prosecute this on what I got. Now we have an ethical obligation as prosecutors that if we don't believe we can meet the elements or we don't believe law enforcement has the right guy or girl, we cannot, we're not supposed to file charges. That's our ethical obligation. But if we believe as prosecutors we can meet the elements and believe the person that we're prosecuting is the person who did the crime, you can go forward. Now, you may not have all the pieces of evidence, but sometimes you just have to go with what you got.

[Tim Sled]

When I was chief deputy prosecutor in charge of screening and filing a lot of the cases. It was pre Internet portals. Now there's a lot of different systems. Law enforcement can transmit case reports and evidence to prosecutors offices, which is digital. We, we had the police chief or sheriff come over every morning with a folder and discs and paper reports. And one of our investigators, who was a former chief of police, he would read through them and he would see, he would kind of pick out the charges from the little code book that he thought would be there. Then they would come to me. So I had. There was a little bit of a filtration there, but. But I was looking at. On that day, with that information, would I be willing to walk into a courtroom and try the case with that? Understanding that there's going to be things that fall apart, understanding there's going to be things that come in. But based on this, would I be willing to walk in and look at a jury? I think that's one way to prevent that bad decision is to analyze the evidence before you type the charge. Because sometimes I think there is a reliance on law enforcement officers, specifically in a small community where you work with the same 6, 10, 12 officers per domestic dominantly over and over and over again. You learn their speak, you learn their rhythms, you learn their patterns, you learn to trust them, you learn who not to trust. But at the same time, you can become sort of asleep on that. And I think prosecutors can get filing drunk and defense lawyers can get trial drunk. And what I want to talk about there is prosecutors who get filing drunk start to rely upon the officers and believe there must be more than what they put in their report because they're good officers and I'm going to file it anyway. And then they get stuck in the law of sunken costs when now they've charged something and now they don't have the evidence, and it's not ever going to come there. But, dang it, I don't want to look weak if I dismiss this case, whatever the case may be. So there's filing drunk that you can get punished with, whereas defense lawyers, I think, can often get trial drunk. There's no way in the world this state can meet its burden of proof here, because I've got this hole or that hole or this hole. And they forget that. There's this whole dynamic of you're analyzing this through lay people's eyes in a trial setting, in a courtroom with all of these variables. And so, you know, I've won cases on both sides that I thought I shouldn't have won. I've lost cases on both sides that I thought I shouldn't have lost. And on the defense side, it's tri. I think it's called trial drunkenness because later you sit back and you go, yeah, I kind of see why the guy got convicted. And that hurts. But. But that's the reality. So I think that when we're kind of thinking about both sides of the coin, I think there's an opportunity for both sides to get kind of caught up in routine. You know, I often say about Law enforcement is, you know, you know, law enforcement officers make mistakes not because they want to make mistakes. Law enforcement officers make mistakes because they become complacent, they become routine. They get away with it enough times that they're not thinking it's wrong to do certain things. For example, in Indiana we have a thing called pearl. It's like Miranda for car searches. Let's just keep it simple for your non Indiana listeners. In Indiana there, if, if a policeman asks you to for consent to search your car, he's supposed to ask you whether or not you would like to talk to a lawyer about whether or not to give consent. That's a very broad that it's malpractice and the amount of evidence or information I just gave you there. But that's the broad portal. Well, so many times at a, at a stop, a policeman might have your license in his hand. You might be stood standing outside of your vehicle and, and hey, can I search your car? And the person says yes or the person says no, and they get a puppy dog and puppy dog comes and sits down and then they search the car because it's a probable cause and they find the dope. Person gets convicted and it's never questioned. But pertle's what's supposed to happen. So then they get the big stop where they find the pound of methamphetamine and this guy has a lot of time to do in prison or to lose. And there's no pearl. And he was pulled from his car and the policeman had his license, so he wasn't free to leave. So he's technically in custody and there's no pearl. That's a suppression issue issue. It's a suppression issue that the prosecutor should have paid attention to at the outset and maybe pulled this back. You still got the dope off the street. Now you got a target, you know, go forth. But you can end up with an F2, a Level 2 felony in Indiana. Methamphetamine dealing charge that has to get punted on a suppression issue for just lacking pertle. It's not because the cop didn't know pertle, not because the cop didn't want to do pertle. Routine human behavior. We get complacent. It works for us enough times. And then when it doesn't work, you end up in a situation where you have to dismiss a case or your client gets convicted and is surprised by the conviction, et cetera.

[Nicholas McLeland]

Yeah, Tim's right. The main suppression issue we have is consent to search. I mean, that's one of the. At least in Carroll county, we have it a lot. And ironically, probably six months ago, had to dismiss a level two dealing because of that very issue. Everything that we found in the vehicle got suppressed because purple wasn't red. And so. So it's a hard pill for me to swallow when you find a bunch of meth in a guy's car with a ledger and everybody he's dealing to and you pull his phone and you can see all the text messages and he's sending pictures of the meth to his people and it's all laid out right there. And level two is a big felony. I mean, it carries a lot of time. And you have an opportunity to take a drug dealer off the streets. And for us in Carroll county, methamphetamine is a problem. I. I venture to say it is all over Indiana, but it's specifically a big problem for us. And so when stuff like that gets suppressed, that, you know, everything else is what we call fruit of the poisonous tree. And it all gets suppressed. And so, you know, you gotta. I just had to dismiss. I think it was six months ago, I had a very issue and judge said, look, Turtle should have been red. You had his license, he wasn't free to leave, you were parked behind him. And so, you know, it got all suppressed and had to. Had to dump the case. And it just. It kind of sucks from my standpoint. But he's right. I don't think law enforcement mean to do it. I think they just get in a routine and they kind of get ahead themselves and they forget the fundamentals. So.

[Tim Sled]

And from the defense side, we get to chuckle because there's different trainings that come around that teach officers certain things and then they learn certain verbiage that they put into their police reports and it starts to become standardized. And there was this one called Desert Snow, which is a drug interdiction training for law enforcement officers and probably has some really good information in there. But one of the things they're from out of state, so one of the things that they put in there though is that one of the indicia of drug usage or drug possession is if some somebody is more nervous than the general motoring public, they're more nervous than the general motoring public. And so I enjoy when I'm deposing officers that have put more nervous than the general motoring public in their report. I love deposing them about that and asking them, how do we know? Because I get nervous when I get pulled over and I don't have anything on Me, so, I mean, still do.

[Nicholas McLeland]

But I get nervous when I get pulled over in my county.

[Kevin Greenlee]

One thing I noticed is you guys keep saying, oh, Tim is right. Ridiculous, right? Is this.

[Anya Cain]

We wanted you to fight.

[Kevin Greenlee]

Is this unusual? Are defense lawyers and prosecutors, are they typically this collegial or they're more like we see on television?

[Nicholas McLeland]

It depends. In a small county, we have a limited number of public defenders and defense attorneys in general. I just, I won't group them in public defenders. We have a limited number of defense attorneys. I think right now in Carroll county, we have four or five people that have offices in the county that practice defense. And so you have to work with those, those guys and gals on a daily basis, at least Monday through Friday. And you have to negotiate with them on multiple cases. And so it's not advantageous to be at odds with each other because it just makes a negotiation difficult. It also, when you build that relationship with defense attorneys and with prosecutors, at least I found that you can have a cordial conversation with the defense attorney and say, okay, this is the evidence I'm going to present. This is, is kind of my strategy. And the defense attorney will share strategy. So there's no surprises and it makes the trial go a lot smoother. So. But there are, when out of town, attorneys come in to Carroll county from Indianapolis specifically, they do want to be very confrontational and they want to come in. A lot of times, I don't know if Tim dealt with this as a prosecutor. A lot of times they come in and say, well, you're not going to win the case. You have this problem, this problem, this problem, this problem. That's not the way to negotiate with me because I then I dig my heels in and I say, okay, that's fine, let's just, let's go see what happens. But when you're working with, and Tim probably has the same experience when you're working with prosecutors or defense attorneys day in and day out, it's just not advantageous to be confrontational with them all the time. Now you will get chippy in court, but you have to have thick enough skin to. Once that trial is over or that hearing, you've got to go out and work on the next case together. And so sometimes the sting takes a little bit longer than other times to wear off, especially when it's a hard fought trial and I'm not a good loser. And so especially when I lose. And I think there's some controversial evidence that came in that the judge let the defense attorney get in, takes a little bit longer for me to get over it. But at the end of the day, you have to work with these people day in and day out. And so it just is not beneficial to. To be that way. And so there are attorneys that you just don't get along with. There just are. There are several attorneys that I don't get along with. There's several I do get along with, but there's always going to be one or two attorneys that you just don't get along with. You guys just don't, you know, the two of you don't see eye to eye. And so it's an issue, but for the most part, it's pretty cordial profession. I mean, really.

[Tim Sled]

Yeah, I think this is. I think the conversation that he and I are having with you is a good example of how we are both the same actors or we're both in the same play. We're just different actors, you know, so to speak. I mean, we don't have to. We don't have to be adversarial in everything that we're going to talk about just because he's. He's a prosecutor and I'm a defense lawyer. I mean, we agree on most of the things, the questions that have been asked here, because most of them have. Have sort of a what's the right way to do things? Sort of tone to them. And he's a good prosecutor that wants to do things the right way. I'm a good defense lawyer that wants to do things the right way. But to say, is it common for us for prosecutors and defense lawyers to be sitting side by side and, and have it be collegial everywhere but in the courtroom is how it should be. But there are, There are times where you rub each other the wrong way. You just fundamentally and for. I get invested in my clients. That's. That is a. And I. That's a problem that I have, but it's also an advantage that I have is, you know, I sit with these guys and gals for hours and hours and hours, and their lives are in my hands. And I have a worldview and a perspective of the evidence and a conception of beyond reasonable doubt, which I want to talk to you about at some point because of something you said on a podcast that made me angry.

[Anya Cain]

You're collegial with each other.

[Tim Sled]

No, Anya. And you can cut all that out. But. And then when I, When I can't bring a prosecutor to what I feel is reasonable, I can get very frustrated at that. I was a family law mediator for a number of years and got to sit and negotiate and be involved in negotiations and felt like I was really good at that. And I pride myself on being able to bring reason to question. Now many of my cases, there's just nothing the state really can do. I mean, what do you want to do? You want to make a. A murder, a misdemeanor battery? They're not going to do that, right? I mean, they've invested their selves in the charge, but in a lot of cases, I'm just like, why are we expending our time and energy on being this angry at this person when we can craft this sentence that gets what you need done? And if I can't bring reason around that, it frustrates me. And there, there are different prosecutors that I've dealt with in life, and when I was on the. On the state side, there were different defense lawyers. I'm just like, why are we doing depositions in this case case? The report tells you what they're going to say. So. But I think what he said is accurate. And as I've aged, it's become easier for me to just have a shorter memory of slights that happen. I still hold the state to a very high standard of ethics. Like, he has to wear the white that he, the state of Indiana, Nick, in this case has to wear the white hat. They have the special professional rules of responsibility that no other lawyers have, except the judges that have the judicial canon that require them to be safeguarding even the defendant from being charged wrongfully or tried wrongfully. And so I hold them to opening their files and showing the evidence because that's the right thing to do. Not holding anything back and not, you know, not shaping and mischaracterizing evidence where it shouldn't be. And rarely does that happen. I'm not, and I've never gone against Nick, but I know him and what I know of him. I think it would be an open file system. That's where if I ever get really frustrated with prosecutors, it's not because they're hiding something from me. It's because I can't bring them into my world of reasonableness.

[Nicholas McLeland]

Tim's right. You do. You get invested in these cases, whether you're on the defense or the state side. He gets invested with his clients as a public defender, as a defense attorney. I get invested with the victims and the families. We, as a small county, we don't have a victim advocate. I am the victim advocate. And like, he preps his clients for trial. We have to do the same thing with victims. And as you spend hours and hours, especially when it's a young victim. And so you do get chippy in the courtroom if a defense attorney cross examines, you know, this victim, a child who you've grown close to because you spent hours, and you think that they're being too harsh on them. You know, that's their job. But it just does kind of rub you the wrong way in the moment. But again, like Tim said, you just. You have to have a short memory, thick skin, so when you walk out of the courtroom, you can just work on the next case. Because, like I said, we only have, I think, five defense attorneys in Carroll County. We don't have that many. So you see them all the time.

[Anya Cain]

And I think the word negotiation kind of came up a few times here. So I wanted to ask you about plea deals and the plea bargaining process because I think, like, those are controversial within true crime. And I never, like, people don't seem to understand that they're extremely common and that, like, you know, the system sort of requires, like, relies upon them or, you know, the just be too many trials. So I'm just curious, like, what goes into that on both sides when you're looking into a plea cart bargain? I imagine for a prosecutor, it can be pretty controversial to go for one because they're so misunderstood. And for a defense attorney, though, you also want to make sure you're getting the best deal for your client so they don't feel like, what did you get me? Basically? So how does that work?

[Tim Sled]

Yeah, Nick may know this number too, and I'll let him jump in after I say it. But 92% of cases resolve by way of plea agreement, and the other 8% are either trials or dismissals. In our county, if those 92% that didn't resolve by plea agreement were forced to trial one way or the other, you would have a bankrupt county for jury expenses alone. You would run out of a jury pool because jurors are supposed to get reprieve after they've sat on a jury. You would expend just an immense amount of resources that are unnecessary to expend on the wrong things. You could be expending all of those resources on something that's better. So as far as I think it probably would be best to jump over to him on when and how and why does a prosecutor make the offer? Because in my county, we are responsive to plea offers, not proactive from the defense bar.

[Nicholas McLeland]

With plea offers, I don't know what the number is, but the Vast majority of cases resolve by plea offers and negotiation. Tim's right. If you were to have a trial on every case, you would just bog the system to the point where it would break. You just couldn't do it. Like you said, juries have reprieve after they serve. They got two years. You would run out of jurors in a county. We only have 20,000 people in our county. And so you would just run out of jurors if you tried. And you'd be in trial every week of every year and you wouldn't get anything else done. And so majority of them do resolve by negotiation and plea offers. That was the most. That was one of the difficult things. Not the most difficult, one of the difficult things. When I switched from defense to prosecution, when I started to make offers, I was very defense minded and I had a great mentor who was my chief deputy at the time and said, nick, that's too lenient of an offer. You've look at this guy's criminal history, look at the facts of the case. And so those are things you've got to look, look at and consider. And I've gotten better at it over the years. And at least in our county, oftentimes you know the defendant because it's a repeat offender, especially if it's, it's. If it's a drug case. Methamphetamine. That is a very hard habit to break. And so people oftentimes have multiple methamphetamine charges and you get to know them. But we. Tim's right, we. Not many defense attorneys come to me for offers. Typically I just send them out. I'll send discovery, I'll give the defense attorney a couple weeks of review, the discovery. Discovery. We usually have a pre trial and then a trial date. Sometimes you have a omnibus hearing, a pre trial and a trial date, and I'll get them a plea offer before that omnibus hearing or pre trial, whichever it may be. And what I do is I look at the criminal history, I look at the facts of the case. If there's a victim, I'll talk to the victim and their family. If it's appropriate, I'll kind of get their feel. I'll see if there's a history with that victim, with this defendant. Oftentimes when a victim reports like domestic background battery, it's not the first time it happened. There's a history of it and they just don't report it. And so I'll talk to the victim and then consider all those things. When making an offer, the main thing I look at is their criminal history. That's the big thing I look at.

[Tim Sled]

I think one of the things that's important is that he's not going to be making up his plea offer numbers out of, out of thin air. So Indiana operates with a mixed determinant indeterminate sentencing model.

[Nicholas McLeland]

Great point. I'm glad you brought that up.

[Tim Sled]

Yeah, point. So in a determinant sentencing model, if you commit an act, you get smacked with that sentence, whatever it may be. In a strictly indeterminate sentencing model, you commit an act and a judge just has whatever the judge wants to do with you. It's indetermined, and a lot of information can be brought in and then the person gets a sentence. A mixed indeterminate determinant sentencing model says there are ranges for certain offenses and your sentence can fall within that range. So now you have sort of the bumper in a bowling alley. You have the bumpers, okay. And it's a matter of where. Where do we slide the ball as it's going down the alley. Is this person have a low criminal history? So we're going to move to the left. Do they have a bad criminal history? Do they have no criminal history? But their offense was really gnarly? Within this set of facts, he's. The prosecutor is going to be making a value judgment when he offers that plea offer based upon the range that he, the charge he thinks he can make or wants to make and is willing to take to trial to make the facts of the case, the criminal history. Those are the three factors that he's probably going to be measuring into. And then as the defense, we're always trying to, you know, to sand the board to make it a little more smooth so that we can get where we want to be, to take off the rough edges to show rehabilitation that's happened between now and that effect defense to bring in, you know, to turn on extra lights, to say, well, it really wasn't that bad. All of the different things we're trying to do is to say, if we're in the, in the area of being able to negotiate, then we're going to say, I understand that we are within this window of mixed determinancy. It should be here or it should be there, or there's different. There's different tools within. I mean, you don't. It doesn't always have to be prison or freedom. It can be electronic monitoring. It can be community corrections. It can be. Go to prison for a little bit and do the prison rehabilitation, rehabilitation, come back, walk with community corrections. Let's see how sincere you were. So he has a lot of tools, and we have a lot of responsive tools. So when. When people in the true crime world are just like, I cannot believe a prosecutor would ever offer a plea negotiation, they have to understand that beyond a reasonable doubt should and is a very heavy burden. It is a strict and heavy burden. And it should be a strict and heavy burden. The government is accusing a person of a crime. And so he has to understand that a good defense lawyer that can come in there and put the jurors in the mindset of saying, this is not really a trial of my client. This is a trial of the state's case. He has to understand if there's a hiccup in his case, if there's a juror that's weird and takes control of the jury, he could get a not guilty verdict on a case he feels very strongly about. Same thing for me. If I get a really cool and sweet plea offer from the state and my client's like, I just want a trial. I want my day in court. Let's see how that could feel. Let's talk about that. You may think you have a really compelling argument. We can get one person on that jury who's strange, who then is controlling and takes control of the jury, and you can get a guilty just as easy. You can get a not guilty, and the risks could be far worse. Just got done with a negotiation. In a murder case, I believed my client was not guilty of murder, but guilty of voluntary manslaughter. Heat of passion case, and I came to know my client, respect my client. Our best day in court, because of the different charges, he would have been convicted of voluntary manslaughter and some other charges. And 42 years is what we would have been looking at. Okay? And he understood this from the get go. This was me going in there, doing my. Getting my best day in front of the jury. I felt 42 years was a pretty, pretty good number that he would get from the judge at sentencing. State had bad case. There was a lot of problems with their case. I mean, just a lot of drama, a lot of things that shouldn't have happened. But there was a confession. My guy confessed to what he did and how he did it. The state was never gonna come off the M word, but they gave me 50 suspend five as an offer. 50 suspend five. It's 45. That's three years more than what I felt like my best day at trial was going to be. And his worst day at trial was over 90 and was definitely a death sentence. And 45 and 42 were. Maybe you get out to see grandbabies age right. Horribly hard conversations to have. The state felt right where it needed to be, was willing to risk. They wanted the M word and they were willing to risk it all on the N word. And so their plea was get murder is the N word. Anya gave me a look like I know they were willing to risk everything within that was my guy willing to risk everything for 3 years difference. Hard conversations to have. Hard, hard case to resolve. It did resolve it did plea and he got the 50 suspend 5, which is 45. But I think the going back to like the. In the true crime work, they got to understand that if. If they didn't.

Plea that case, it.

Would have been a we. We would be in trial next week and for the next three weeks probably, and my guy would have gotten three years less. There would have been significant amount of resources spent. Surviving witnesses would have had to come through the trauma of not only reliving what was a very traumatic incident, but also getting undressed by me on cross examination in ways that they would have to be. I mean, it was just. It's so intertwined. It would have had to have occurred. The actual decedent in the case who did not deserve to be maligned but could not be excused from how the decedent ended up in the situation was going. It was going to be. It was going to be nasty. And as Nick said, you know, he gets tied in and attached to the victims. And this was a tough pill for the victim's family to swallow. But they got to have their sentencing hearing. They got to be heard. They got to be heard without being subject to cross examination and anything coming from my client's mouth or my mouth regarding it. And so they got their day. So I think they probably feel like justice happened. I know that they were accepting and approving of the plea agreement after it was done. Of course, my client will never be pleased with the outcome, but it was a hard decision to make. And. And we resolved it for how we resolved it. Measuring risks, measuring potential outcomes. And ultimately, all day, every day I would tell him, as I told him this, all day, every day I would tell you to do the same thing that you did, because for three years, you saved the risk of 50 more.

[Nicholas McLeland]

Just to build on what Tim said. I want to start with the sentencing first. He's right. There are bumpers, the. The low and the high on sentences. But the state of Indiana goes one step further and gives you an advisory sentence. And what that says is, all things being equal, the sentence should be X. So a level five felony, it's one to six years. The advisory is three years. We then from the defense and from the state standpoint, we use aggravators and mitigators to try to move that needle one way or the other. Other mitigators are good things, aggravators are bad things. Criminal history would be an aggravation. Aggravator pled guilty, took responsibility for his actions, be a mitigator, and there are several. And there's a list in Indiana that the code gives you a list of what's an aggravator and what's a statutory mitigator. Then we go move that needle from that advisory. One way or the other, the defense is always trying to move that needle to the lower end. The state oftentimes is trying to move that needle to the higher end. And so when we come up with, when I come up with a plea, it's based on the minimum maximum of a sentence. And then also the advisory. And then I look at the aggravators and mitigators and then I, I move from that there. In some cases the minimum sentence is non suspendable. Certain felonies. Murder has a minimum, non suspendable 45 years, level 2, level 1, 2 and 3 felonies. The minimum is not suspendable if you have a prior felony conviction. This is Indiana. I don't know how the other states work. And then we get into habitual criminals and habitual vehicle or substance offenders. Those are enhancements that also have minimums. And the habitual is minimum, non suspendable and has to be served. In general, jail cannot be served on community corrections or probation. The hvso, you can suspend that. And so we're working with all those things and considering all those things, when I give a plea, what's non suspendable? Is it non suspendable? What's the minimum? And he's right, there are alternatives. There's probation, there's community corrections, house arrest, work release, daily reporting. There's all these different alternatives. And he's right. Not every case is either jail or freedom. There's a lot of gray in there that you can talk about. And then we're going to probably talk about this later. But beyond reasonable, he's right, it is our highest burden that we have. And it's that way because we're talking about someone's liberty. We're talking about the possibility that their liberty is taken away from them. In a civil case, it's preponderance of the evidence because you're only talking about money. You're talking about money damages or in some cases, an injunction to stop doing something. When you talk about Department of Child Services and then taking away your children, it's clear and convincing. Convincing beyond a reasonable doubt is higher than that. You know, preponderance. The evidence is 51% more likely than not. But again, beyond a reasonable doubt is so high. And it is a strict and heavy burden, and it should be. And we, the state, should be held to that because you're talking about taking away someone's liberty and possibly putting them in jail for lengthy periods of time in some cases. And so I just want to comment on that, too. It is a high burden, and I embrace that because I believe in that. And I probably. Probably from my time as a defense attorney, but I think it's important to hold the state to that verdict. So it's not something that I run away from. I think that should be the standard that we have.

[Tim Sled]

Yeah.

[Anya Cain]

Yeah. And, Nick, thank you so much for bringing that up, because I've been dying over here. No, no, no. Beforehand, I just want to point out that I'm supposed to have an attorney preventing me from saying crazy stuff on the show that's alienating our audience. But. But I want to know. What did I say? Also. I'm sorry. Also, I always forget. Forget like people are constantly. Oh, Anya, remember when you said that funny thing about chickens? What did I say? I'm. It's just so. I. What. What happened here? I need to know.

[Tim Sled]

I can't remember what episode it was. It was relatively recently, and I. I tried because of my. You're one of my regular. You can cut all this out, too. You're. You're one of my regular podcasts on my drive to and from.

[Anya Cain]

I cut that out. That's an endorsement.

[Nicholas McLeland]

It's a free plug. I mean.

[Tim Sled]

But you were going.

[Nicholas McLeland]

You said.

[Tim Sled]

And I just don't think people understand reasonable doubt, and I don't think it's as high or hard as it needs to be. I'll need to go back and listen for it. But you took reasonable doubt down a notch. Now, it is not beyond all possible doubt, and we spend a lot of time in voir dire educating juries on what reasonable doubt is. Is, but what it is. A reasonable doubt is not just that the state's argument is more reasonable than my argument. And I've had prosecutors in trial say that before. Which is more reasonable, mine or his? That is not the that is not the test at all. And Indiana has pattern jury instructions that are the best definition for what reasonable doubt is. Because as Nick said, said with, with civil system, you can put 5149 on the table. And that's right. But we are prevented by the Supreme Court's rules from saying a percentage. And it's. It's big trouble if either one of the lawyers does.

[Nicholas McLeland]

I mean, it's. Yeah, I did, actually. It was, you know, we had a case, a common attorney that we know, Pat Manahan. It was the defense attorney and the judge at the time, time, Pat was asking, and I'm going to get in a little bit of jury questioning here. But Pat was asking him, you know, what is beyond a reasonable doubt. And one of the jurors said, well, you got to be 85% convinced. The judge said, yes, bingo. That's absolutely right. Absolutely right. I mean, the whole jury was there. We had the first 12 in the box. So the whole pool is there. And so, yeah, defense attorneys, you know, we. I use, when I. And you guys know this, you see me in jury selection, I use the language in the rule because I have found that if they are the best instructions, if you stick to those, you're not going to go as strong. So one of the rules says, you know, it's the burden of the highest important, and you must be firmly convinced. So that's the language I use. You must be firmly convinced. And it's not. What's more, he's right. It's not. What's more, reasonable. Firmly convinced. Using your common sense that you bring into the courtroom. We don't ask you to come in. And again, I'm getting my jury spiel.

[Anya Cain]

Here, but are you going to talk about the snowman?

[Nicholas McLeland]

Yeah. No, no. But, you know, I always say this. You probably heard me say this a million times. You don't check your common sense at the door. You use your life experiences and your common sense to. To, you know, interpret the evidence and interpret the witnesses and then make a decision based on that to where you're firmly convinced that the state has met each element of each crime. Because every crime has certain elements. Defendant knowingly intentionally touched someone in a rude insulin or angry manner and it caused injury.

[Tim Sled]

That's.

[Nicholas McLeland]

Battery is a. I think it's a misdemeanor. And so, you know, domestic battery is another element. Must be a family or household member or in a relationship with that person. And so each crime has certain elements. We have to prove each one of those elements beyond a Reasonable doubt and to where the jury is firmly convinced. But I stick to the jury instructions, and I have found that that is the best way to not go astray.

[Tim Sled]

And what lawyers love about the jury instructions is he's got his sentences, clauses and phrases that he pulls from it. Yes, and I've got my sentences, clauses, and phrases that I pull from it. Before you may convict this defendant, the state must have proved beyond a reasonable doubt that they committed each and every essential element of the offense. There's another one that says if there are two reasonable interpretations of the evidence, you must adopt the interpretation that points to the defendant's innocence.

[Nicholas McLeland]

You like baseball analogies. Tie goes to the runner, right? That is the analogy I use. If there's a tie, it goes to the defense, and I hate that line, but it's in there, and you got to live with it, and it is what it is. But he's right. We. There's a method to our madness. We pull out what is beneficial to us and what sounds good to us. And so, yeah, he's right. We do pull out. And I would venture to say you do that with every instruction, you pull out what you can use. And so I use firmly convinced. And so.

[Tim Sled]

And I use the benefit of the. They must give the benefit of the doubt to the defendant. Throughout every stage of the trial, I'm often telling jurors, and hang on. Just hang on. You have to start, because of these instructions, with the presumption that my client is not guilty, that he's innocent. Hang on. Because the state's going to present evidence, and you may want to rush to judgment. Don't do what they did. Don't do what the police did. You know, there you go. And then you got to hang on. You got to hang on. And then I'm going to present evidence. Maybe I'm going to present evidence, but then we're going to argue. And then up in closing argument. You know, one of the things I always say is the way the system works is, is they have the burden of proof. He gets to go first, and he gets to go after me. This is the last time you will have heard from me. But what I want you to do is I want you to remember all the questions that you think I would ask. Listen for my voice. After he's done talking, you're going to go back in that jury room, and I won't have had a chance to respond to his last points. But you've heard me. You know what I would ask? Go back there.

[Nicholas McLeland]

Listen to my Questions that is common with defense attorney.

[Tim Sled]

Dang it. I thought I made it up.

[Nicholas McLeland]

Defense attorneys. No, they do that a lot. This is the only chance I get to talk to you. And, you know, the way the system works, you know, they. They often say that. But I. I'm curious. The defense attorneys and me. When I was a defense attorney, I would spend an enormous amount of time on the presumption of innocence. Because every time, it seems like every time you ask a juror, you know, what responsibilities my client have, well, he's got to prove he's innocent. That's usually the first line that comes out of their mouth. And so as a defense attorney, I would spend a huge amount of time on presumption of innocence and then roll right into burden of proof after I can educate the jury that my client has no burden. The burden is on the state. And so I would spend a lot of time. Do you find that here as well, that you spend a lot of time on presumption of innocence?

[Tim Sled]

Of course, yeah. And. And right to remain silent because. Because the prosecutors are precluded, they are prohibited from talking about whether or not my client will testify and what the jury should think of that. And you think, oh, man, well, that's.

[Nicholas McLeland]

That's good mistrial off the bat.

[Tim Sled]

I mean, and you would think that that would be good for the defendant. Well, at least the state's not going to do this. But every person in that room wants to know, are we going to get to hear from you? And so, just like he said, if, as a defense lawyer, say, what does my client have to do? Well, they probably need to get up and defend. You know, I. Another question I often ask right out of the gate, juror number one, as my client sits there today. Innocent, guilty, or you don't know? And a lot of times I. I don't know. Smart ones say, I don't know. Nope. Innocent.

[Nicholas McLeland]

Now, you gotta be careful, because I've objected and I've won a lot when you've gotta be careful that we've seen. Attorney will stand behind a client and ask a juror, is my client innocent? And I think that question should be precluded because you're asking the jury to prejudge the person before they've heard one piece of evidence. So I think you gotta be careful when you question people. And again, I think if you couch it, in what responsibility does my client have right now? Right now? Or is my client presumed innocent? I think if you count it in the right way, but I think you can overstep when you do that too.

[Tim Sled]

Yeah, yeah. And, and he's exactly right. There's a difference between standing over them and saying, is he innocent? Versus acknowledging or saying of these possibilities, if you had to vote right now, what would it be?

[Nicholas McLeland]

Right. And that's a fair question because usually you followed up with, you've heard no evidence the state has presented anything, they haven't met their burden, so he has to be innocent. And so that's usually the follow up. And yeah, yeah.

[Tim Sled]

So that's a little bit of a sort of a nuanced approach to that. Listeners who are going to be in trial practice should know is that you, you can't just go in there and say, do you think my guy's innocent? I mean, well, that's, you gotta be more along the lines of what I. Because what I'm trying to flesh out is the normal layperson prejudice that if they're here, they must have done something wrong and everybody who's ever accused of a crime is going to want to say their piece. One of the best trial lawyers that I get to work with, she asked the jury, jury, why wouldn't you want to testify if you were accused? And you get the jurors to start saying, well, I might be nervous and stammer and people might think because of my tick, this, that or the other, you get all of these reasons. And that really dulls down the aggression that jurors have when they don't hear from defendants. Defendants shouldn't speak, I mean, almost rarely, because they're going to be then going up against a trained lawyer who just like we're trained when we cross examine state's witnesses to trip them up to gaining, to find inconsistencies, to point to weaknesses. A person whose liberty is on the line is then going to be subject to a very sharp, trained litigator, a master smith of words, who's going to be able to draw out things. My first trial that I ever had, criminal defense lawyer, baby lawyer, and I represented a woman who was charged with battery on a law enforcement officer. And all she really did was touch the officer's shoulder to pull the officer back because they were walloping on her husband and she got charged, she was not going to plea to anything very aggro. And so we go to trial, and this is my first trial in the very seasoned prosecutor, 22 years as a prosecutor that I'm going against and we get to the point where the state's presented its case and I take her back into the little room I was like now's the time where you have to make the decision, do you want to testify or not? I say don't testify because I think you're going to lose control. This, that and the other. She says, I'm testifying. Within two seconds of cross examination, she's slamming her fist down and yelling at the prosecutor. And fortunately the judge wasn't too angry at her when he sentenced her. But it was, it was a very harsh trouncing and a lesson for me to learn.

[Nicholas McLeland]

We at least the counties I've practiced in, when we're in a trial, they'll always call the defendant in. We'll take a recess after I rest or after the state run. Rest. And the defense attorney will talk to the defendant and I would do the same thing as the defense attorney. And you go back in a room, you say, okay, now is your choice. And then we would put it on the record, have the defendant sworn in. You understand you have the right to testify. You understand that if you do testify, you're going to be cross examined by a seasoned attorney, you're going to be subject to all the rules of the court and you're going to be like any other witness. Do you understand that? Yes. Do you wish to testify? Yes. Are you doing this knowingly, intentionally? Am I forcing you to do it? You know, you go through all those things, things, protect the record as a prosecutor. Now he's right. Not very often do defendants testify, but as a prosecutor, you always want them to testify. Right. The defense has had your whole case in chief to attack your clients and attack your evidence and attack your witnesses if they don't testify, I don't get that chance. And so you're always me, I find myself like chomping at the dick, like, yes, testify. Come on. I, I want to, you know, I want to. You, you've admitted this. I want to throw this in your face and tell the jury, look at this admission or whatever the case may be. So I'm always chomping at this the bit for them to testify, but they rarely do.

[Anya Cain]

Right, that makes sense. First of all, sorry to all the defense attorneys for that. I think that was a cheat sheet. And I remember that. I remember getting really heated and then being afterwards like, calm the hell down.

[Nicholas McLeland]

What are you talking about?

[Anya Cain]

So, apologies, but I'm going to let Kevin ask a question. I want to say I would never testify on my own behalf of the trial. It would be, I would be that woman, your client, or I would be like really like trying to keep it together and Kind of. You say, I'm kind of scary. So I think that would come across really badly. I don't think a jury would side with me. So I just.

[Tim Sled]

Well, we.

[Nicholas McLeland]

During jury selection, he's right to kind of educate the jury about, you know, when he asked the question or when the other attorney asked the question. Why wouldn't you testify as defendant? I talk to the jury a lot about, too, when we're talking about credibility witnesses, what kind of things they're going to look for. Inevitably, a juror will say, well, if they're nervous or not, and then I get a chance to educate them. Well, if you were a victim talking about your last sexual experience, would you be nervous in front of a group of 12 strangers and a judge and a defense attorney? If you were being questioned hard about a horrible experience in your life, would you be nervous? Would you be fidgety? And so it's a chance to educate the jury. And that's what our job is during jury questioning. We have to talk in generalities. We can't say, can't talk about the facts of the case. We can't condition the jury, but we can educate them into the different things that we see during a trial to, you know, to determine whether or not they're going to be a good juror.

[Anya Cain]

Kevin, I think you could testify in. Of front of the. On your own behalf.

[Nicholas McLeland]

I think.

[Anya Cain]

I think they'd like you.

[Kevin Greenlee]

Another line you use often in jury selection is you're all good jurors, maybe not for this case. And so I'm curious, are there jurors that, like prosecutor McLeland, would think this is a good juror, but defense attorney McLeland would think absolutely not, or vice versa?

[Nicholas McLeland]

Yeah, we get in our routines when we do things, and it's comfortable for us to use. For me to use the same lines and the same kind of examples as you've heard. And so, especially when jury questioning, it's just you get comfortable. So I do use the same lines, I use the same sayings, I use a lot of the same examples. But it has to do a lot with the facts of your case. On what who's going to be a good juror, who you think is going to be a good juror, and you want to listen to their answers. Obviously, we have a defense attorney who, you know, does a very good job of beyond a reasonable doubt. He'll talk about. About preponderance of the evidence, and that is 51%. Then he'll talk about, you know, how and who has Kids here, how important are your children to you? What kind of burden would the state have to prove to take away your children? And almost every parent will say, it better be 150% or it better be, you know, it better be beyond all doubts are going to take away my children. Then he'll say, once he gets that answer from him, he'll then say beyond a reasonable doubt is higher than that. And he makes it to the point where, where he never says 100% or beyond all doubt, but he's sure damn close to that. And if you get a juror that says, you know, clear and convincing should be, you know, beyond all doubt, that's a juror that you've got to question and you've got to educate. And if you can't get them off of that, then that's a bad juror for the state because you don't want them to hold you to a higher burden than is appropriate. Now as a defense attorney, you want that juror because nothing the state can do is to be beyond all doubt unless we have it on video. And in that case there probably wouldn't be a trial if you have the crime on video. So you just got to kind of look and see how they answer things. But a lot of it's based on the facts of the case. If you have a child molest and one of the jurors is a victim of child moles or has somebody in their family. I had an OWI death case as a defense attorney and I questioned the juror, has anybody had a family member that has died as a result of ow? The lady said, yes, my son. And she started crying and all the jurors were crying. I basically tainted the whole jury pool because I asked her that question. And you've got to re rehabilitate them. But she's a juror that I wanted to get rid of because she was too emotional. And sometimes you can do that for cause if they go to a certain point. But judges seem to be getting more strict with cause strikes.

[Tim Sled]

So one of the things I do, and I don't know if Nick does this, I would imagine he does. We get the jury lists before a trial and then we go through them and we try to say, you know, who's going to be the first 12 and who in there? What are my feelings based upon their reporting in this jury questionnaire. And I'm using, you know, anecdotal self perceived measurement tools to try to figure out who do I want to try my case. And then we are limited by trial rules to the number of peremptory challenge versus challenges for cause, which he just mentioned. So we're, you're, you have unlimited for cause, but you're limited to the number of peremptories that you get to use peremptories or I get to strike somebody just because, because I don't have to. As long as it's not a Batson's challenge or I'm challenging somebody, get trying to get all the women or all the blacks or all the Mexicans off of anything for race, class, religion or something like that, that's a Batson challenge. But so long as I'm, you know, my strike appears to be a reasonable strike, then I'm allowed to use peremptories, but I'm limited in those. When you've got a group, a jury veneer and you need some people off the jury so that you can get deeper into the veneer for your better picks, you may ask that question. Now, all of you are good jurors, but this, you may not be the right juror for this case. I hear this all the time. Sometimes that's to flesh out four causes. Because when we're talking to the jurors, we might be trying to keep them if we're trying to get rid of them, sometimes it's better if they tell the judge why they wouldn't be a good juror. Well, I'm not going to be a good juror because I got a bladder disease and I have to pee every two minutes and I can't pay attention. Judge caused this person's, not that person's cause. I didn't burn a peremptory because the judge will tell them what kind of, what the charges are. The defendant in this case is charged with murder, child molestation, rape. And so you get, you get some of these people that blanch when they hear, oh my goodness, some of them hear the judge say, we are scheduled for a two week trial. And you got somebody's like, I'm an hourly worker and my work does not care that I'm here. They'll keep my job, but they're not going to pay me. And you know, you need a business.

[Nicholas McLeland]

Owner, someone that owns their own business. And it's just that, and maybe a.

[Tim Sled]

One man show that a lot for college cause. And somebody who may just say, you know, I've got a lot going on or I've got a medical ailment or some reason I can't pay attention or I, you know, you get a lot of the, you, you, you Clear out the. You clear the deck initially of those four causes. So now we can get into peremptories on who's left if we need to. So that's one reason that I've seen that question. I don't typically use that question because the state does. And so they, the state kind of, you know, gets.

[Nicholas McLeland]

I learned it somewhere I didn't come up with myself. I, I've heard it as probably as a defense attorney several times. But our questionnaires are just a two sided piece of paper and they don't have much information. But they'll have your profession, if you're married, what your spouse does, if you have kids. And if it's a case like I have a shaken baby case coming up next week or a week from Monday in some of those medical cases, if the juror's an RN or their spouse is in the medical field, they might know the lingo better. So they might be a good juror for that case. In a child molest case, I always look to see if the juror has kids. Kids, you know, there's little things you can look at. But the questionnaires don't tell you. Ours don't tell us much.

[Tim Sled]

Yeah, ours are three pages and a little bit deeper because they say, has anybody in your family been convicted of a crime, Been a victim of a crime? Have you been convicted of a crime? Been a victim of a crime? And then they, that helps us kind of figure out. There are in the jury rules. There are questions that make somebody disqualified if they're presently a law enforcement officer, et cetera. And so the judge goes through all of those, those. But I think it's important to find out if somebody thinks they can or cannot be a good juror. I'm always suspect of who's left, who. We get picked because most people don't want to be on a jury. So then you figure out who wants to be on a jury and why.

[Nicholas McLeland]

Have you ever been on a jury?

[Tim Sled]

No.

[Nicholas McLeland]

Do you want to be?

[Tim Sled]

No, I. Do you know what I want to be in, I want to be in the jury room when deliberations are going on.

[Nicholas McLeland]

I agree with that. I want to be a fly on the wall just to see the process.

[Tim Sled]

Yeah, I don't think I would be a good juror. Even, even from. If I, if I just put my prosecutor hat back on and go into the jury room, I don't think I would be a good juror.

[Nicholas McLeland]

Would you be beyond all doubt?

[Tim Sled]

It'd be pretty darn close. It'd be it would be pretty. It'd be pretty darn close. I mean, and. Well, I mean, 99.9. But I think you put the right fact pattern up in front of me, and I think I would convict. But, you know, I. I think it would be. I just don't think I would be a good juror.

[Nicholas McLeland]

I think I want to be a juror, but I think I'd spend the majority of the time picking apart the performances of the attorneys. I wouldn't have done that. I would. Why didn't they do this? I think I would find myself kind of Monday morning quarterbacking it from the jury box and kind of lose. Lose sight of the ball, you know, so that.

[Anya Cain]

But have you ever been on a jury before?

[Nicholas McLeland]

No.

[Tim Sled]

No.

[Anya Cain]

Okay, so you haven't either.

[Tim Sled]

No.

[Anya Cain]

And nor have I. Although I will say this. I was called for jury duty right before the Delphi trial, so I had to send them a very panicked email being like, please don't do this to me right now. And I'm back in the field.

[Kevin Greenlee]

I never served on a jury before. I went to law school. I was called in for jury selection. And I remember the defense attorney asked a question which got a guy thrown off. He said, okay. Right. Now, let's imagine the judge says, okay, go back in the jury room and vote.

[Tim Sled]

Vote.

[Kevin Greenlee]

What verdict will you reach? Of course, no evidences.

[Tim Sled]

Right.

[Kevin Greenlee]

And the guy says, well, I don't know. And I'd have to really think about it. Give it a lot of thought. Guy got assessed.

[Tim Sled]

Yeah.

[Anya Cain]

Why did you get thrown off?

[Kevin Greenlee]

I. They selected a jury.

[Anya Cain]

Oh, okay. You didn't do anything bad.

[Nicholas McLeland]

Yeah. If you want to get thrown off a jury, there are key. We. I know you see this too, Tim. There are key phrases you can say as a juror to get you kicked off, and there's jurors that use those key phrases, you know, I think he's guilty right now. I don't care what they present. I think, I mean, they know what to say to get thrown off, and the judge will boot them pretty quick, and it's usually not a big deal. The real struggle becomes when I say I want to instruct for cause and you don't, you want them on. The judge will typically ask a question. Can you follow the court's instructions? Yes. Okay. They're rehabilitated. To me, that's not enough. As a defense attorney, you're gonna say, yep, judge, rehabilitated. They can follow. We wanna keep him. That's.

[Tim Sled]

That goes both ways.

[Nicholas McLeland]

Yes, it does. Absolutely. If he wants it for cause. And I, I don't, you know.

[Tim Sled]

Yeah.

[Nicholas McLeland]

So, yeah, it absolutely cuts both ways.

[Tim Sled]

But plus, when you've argued that somebody should be stricken for cause, the other thing. Yes. That person knows you don't like them.

[Nicholas McLeland]

Yeah.

[Tim Sled]

And so you're like, oh, goodness, are they going to be Monday morning quarterbacking me this whole trial, they usually end up on your peremptory list.

[Nicholas McLeland]

If you lose it for cause, you better believe they're going to be on my print, my very next preemptor strike, because they can. They hear you. And our bench is so close to the jury box. I think they hear the sidebars, too. I mean, I mean, it's just so close. I, I, Yeah, sorry, I got a little bit off topic.

[Kevin Greenlee]

No, no, no. I, I guess after jury's life, the next thing is opening statements. What are your different philosophy?

[Nicholas McLeland]

My opening statements are usually very brief, and they're very, very, very general because I don't like to outkick my coverage. I don't like to overstate because you may think you know what's going to come in, but an objection could be made, something could be kept in, out. And so I try to keep mine very short and, and very brief. In Carroll County, a lot of the defense attorneys don't even do openings, or they, they. You can wait. As a defense, you can. I have to give one. I'm required to. I don't know why that rule is there, but I am required as a state to give an opening statement. The defense can waive it until they present their case in chief. They can give it after mine. They can waive it until I've closed my case. Then they can give their opening and roll into their evidence. But a lot of the defense attorneys that I work with, they just don't do it out.

[Tim Sled]

Kicking your coverage works for on our side, too. And so rarely, rarely will I get up and do a whole lot of kicking and screaming. On opening. It's a solemn reminder of, hang on. Who. What are we doing here? You just heard this impassioned argument about what they believe the evidence is going to be. Hang on. Weigh it, test it, stress test it. Hold tight to those instructions that that judge gave you. They're going to be there for you to read this whole time, remember them. And then I say, and at the end of this case, I'm going to ask you to hold up to the promise that you gave me that if the state didn't prove its case beyond a reasonable doubt, you could return a verdict of not guilty. And then I sit down. I just want that to resonate. First witness comes up and then they're back to believe in the state.

[Nicholas McLeland]

If I didn't waive it, I would just get up and say, you know, you made a promise to not make a decision until you considered all the evidence. And just remember, you can't consider all the evidence until the defense rests. And so, you know, and I would say that's a little short spiel. I wouldn't even get into the facts of the case much. It would just be kind of the rules and the jury instructions. Really.

[Tim Sled]

Yep.

[Anya Cain]

Thanks so much to Tim and Nick. Stay tuned for the second part of our conversation with them.

[Kevin Greenlee]

Thanks so much for listening to the Murder Sheet. If you have a tip concerning one of the cases we call cover, please email [e-mail] if you have actionable information about an unsolved crime, please report it to the appropriate authorities.

[Anya Cain]

If you're interested in joining our Patreon, that's available at www.patreon.com murdersheet. If you want to tip us a bit of money for records or copy requests, you can do so at www. Buymeacoffee.com murdersheet. We very much appreciate any support.

[Kevin Greenlee]

Special thanks to Kevin Tyler Greenlee, who composed the music for the Murder Sheet and who you can find on the [e-mail] if you're looking to talk with.

[Anya Cain]

Other listeners about a case we've covered, you can join the Murder Sheet discussion group on Facebook. We mostly focus our time on research and reporting, so we're not on social media much. We do try to check our email account, but we ask for patience as we often receive a lot of messages. Thanks again for listening. We're obsessed with our Quint's pieces. Is that fair to say?

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That's fair to say.

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Yes.

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