Jessie: Anthony’s the best. He finds the best stories. You can go to LawandCrime.com to learn a little bit more about them and other top stories of the day. But I wanna talk about, have you heard of Stormy Daniels? I’m sure you’ve heard of her before. Let’s talk a little bit more about this with my very special guest, trial attorney Brad Micklen. Brad, good to have you back here on the program.
Brad Micklen: Good to be back, Jessie.
Jessie: So, Stormy Daniels. A name we hear in and out of the news. She’s in trouble.
Brad Micklen: Again.
Jessie: What’s going on?
Brad Micklen: Well supposedly, she was dancing as a stripper in a club. I believe it was in Ohio, and there were under cover police officers. Female under cover police officers and she supposedly groped and prodded them and I think took her breasts and smothered their faces in them, and then she and two other people were arrested.
Jessie: She is a porn star. I can’t say I’m surprised that I hear about this in the news, but if you’re Michael Avenatti who, by the way there’s a Tweet for him right there we keep showing, would you be sweating right now? Would you not be happy?
Brad Micklen: Well there’s a lot to this story. It’s just developing now, but there’s obviously credibility issues. Not only on her side for being a prostitute and a stripper but also on the police for, how did they happen to be there and is it just a coincidence that they took a high profile stripper as opposed to the dozen others that may have been there.
Jessie: So, he claims that this is politically motivated. It’s a way to derail the legal challenges that she’s putting forward. Will it, if this becomes something serious?
Brad Micklen: Well, it’s certainly a good approach. I mean, if I were representing her I’d be blaming everybody from the police officers to the President Trump. Anything to suggest that she was a target and really didn’t commit an offense.
Jessie: And that’s something they could bring up?
Brad Micklen: It’s hard to say now, because it’s just in the beginning stages and they’ll be a lot of pretrial discussions and motions to see whether or no. But at least in the media and in the jury pool, it’s gonna be a very big issue.
Jessie: Were you surprised she was arrested for this?
Brad Micklen: Well, yes. I think I was surprised to hear the story, and they did arrest two other people. But I can’t help but believe this was more of a setup, and the police-
Jessie: You do? Interesting.
Brad Micklen: Yeah. The police released a statement that this was part of a longstanding investigation, that they were investigating human trafficking and prostitution. But I find it hard to believe that a human trafficking investigation would lead them to a strip club with such a famous prostitute stripper at the same time.
Jessie: Well, interestingly enough people always ask why is she doing this. Why going after Trump in the first place? And people said, “Look, it’s a publicity tour for her. She’s gonna make different stops. She’s probably raking in a lot of money doing this.” So, how will that effect it overall?
Brad Micklen: Well it certainly goes to her credibility and motive for doing it in the first place. One of the issues that’s gonna come up is whether or not she was performing regularly at this spot, or was it a special appearance? I find it hard to believe she was doing it for the dollar tips.
Jessie: I’m gonna ask you the million dollar, or was it the hundred thirty thousand dollar question? Are you surprised President Trump hasn’t Tweeted about this yet?
Brad Micklen: Well, I mean there’s a lot of reasons that could be and I’m not gonna eventually guess what his motives are, but I think he’s gonna remain quiet as much as he can for a little bit until he knows what direction the whole case is gonna go.
Jessie: And what’s Michael Avenatti gonna do?
Brad Micklen: Pray that she doesn’t do it again.
Jessie: Okay, that’s fair. And he said that he’s going to do anything in his power basically to fight against this, so first move. What would he have to do from a legal standpoint?
Brad Micklen: I think the first thing he needs to do is find out why the police officers were there. What did they do? Did they sort or entrap her? Did they bring this out and try and have her do it? Were they witnessing other people that we’re arrested? So, there’s a lot of issues as to what was going on when it first happened.
Jessie: So in other words Brad, this is just the start of the next chapter of the Stormy Daniels saga. Okay. Stand by. Here’s what we’re gonna do. We are going to take a quick break. We have to go back into the James Colley, which is on a lunch break. I will be signing off. But don’t worry, Stacey Delikat will be signing in and she will guide through the next chapter of this really incredible case out of Florida. It’s one to watch. It’s day one and the drama in the courtroom is palpable. So, stay tuned. We’ll be right back. There’s a lot more to cover …
Stacey Delikat: Welcome back. Okay, that was prosecutor Jennifer Dunton. One of the lead prosecutors in this death penalty murder case against James Colley. Again, Colley facing 10 counts including two counts of first degree murder, two counts of attempted first degree murder. This all goes back to August 2015 when prosecutors allege he was angry, he felt rejected, he had been separated from his wife. She had a restraining order against him. She had a new boyfriend. He got a gun, he showed up at her house to look for the boyfriend but ended up shooting his wife, Amanda Colley and her friend Lindy Dobbins. Her boyfriend Lamar Douberly was at the home at the time along with another friend Rachel Hendricks. Now that was just the very beginning of prosecutors opening statement. We are gonna hear more in just a second, but in that bit of the opening statement we heard a little preview of what’s to come of the state’s case. The prosecutor said, “You’ll hear the 9-1-1 calls made from the scene of this crime and you’ll also hear from the surviving witnesses. Rachel Hendricks and Lamar Douberly.” So we know that is gonna play a big part in this trial and we started to hear some of that testimony before the lunch break.
I’m joined live on set today by Brad Micklen, trial attorney. Brad, thank you so much for being with us. So from the little bit we heard of the opening statement, we know there are 9-1-1 calls and there are gonna be 9-1-1 calls where we hear these victims at the scene calling for help. Hearing in the background screaming, “No. Don’t go in there. No one’s in there.” When you have 9-1-1 calls, sort of an actual record of the crime scene, how effective is that for prosecutors?
Brad Micklen: Well it’s often very effective for prosecutors, because it puts the defendant at the scene. It puts that it was committed by this person and it gives usually a very credible witness. I don’t know how important it’s gonna be in this case because there’s some question as to whether or not the defendant’ position, the defendant’s attorney is actually going to acknowledge that he was in fact there. While he admits to committing the act, he’s gonna try to negate his actual intent for doing so.
Stacey Delikat: Right. And we’re gonna get to that in a moment when we talk about the defense theory here, which is involuntary intoxication. The defense attorneys claim he had taken Ambien, Cymbalta, a whole list of drugs. And because of that, that caused him to snap and get his gun and commit these shootings, as we’ll hear the defense say in their opening statement. This is not a whodunit. He was there, it was him. It’s all about why and how. But we’re gonna hear from Amanda whose dead, right? On the 9-1-1 tape where she’s saying, “He’s not in there.” Pleading with the defendant, “Please stop. Please stop.” How does that play to jurors when they’re actually hearing the voice of one of the murder victims calling 9-1-1, pleading for help, pleading for the defendant to stop, to put down the gun?
Brad Micklen: I think it’s very chilling for a juror to hear something like that coming from the grave almost, as to say. And such a heinous crime in the first place. I’m actually surprised that they didn’t exclude the testimony or the tape, especially because I don’t think there’s a question that he was actually present and at the scene.
Stacey Delikat: But it could certainly put together details of how things played out. You have Amanda’s call and then you have the other victim’s call, Lindy. She calls 14 seconds after Amanda. She’s screaming, “Oh my God, I’ve just been shot.” It was a shot that came through the closet and it grazed the arm of one of the other victims. It injured her. So this also, I suppose prosecutors could argue this is evidence. It helps piece together the scene of what happened and the sequence of events, right?
Brad Micklen: I think absolutely, regardless of the defense plan and whether it’s gonna be this Ambien defense or if there’s gonna be something else. I think it’s very important that they were able to introduce this tape so that you could hear what was actually happening, because it’s a heinous crime. And that’s part of what’s going to make a death penalty case.
Stacey Delikat: Alright. Brad, thanks for that analysis. Let’s go back now and listen to a little bit more of the prosecutors opening statement. Just a reminder as we said before, the case right on a bit of a lunch break but as soon as it resumes we will bring you back live into the courtroom. For now, let’s go back to the prosecutors opening statement …
Welcome back to Law and Crime Trial Network. I’m Stacey Delikat. Thanks so much for being with us this afternoon. All day long we will take you live into a Florida courtroom where the trial against James Colley, a death penalty trial got underway this morning. Colley facing two counts of first degree murder, two counts of attempted murder. Prosecutors say he was angry, he had been estranged from his wife. He showed up at her house with a gun looking for her new boyfriend but ended up shooting and killing his wife Amanda Colley and her friend Lindy Dobbins. While Lamar Douberly and Jennifer Hendricks were also in the house, the boyfriend and another friend. Lots of interesting stuff to talk about in this case.
Already this morning we started to hear some testimony from one of the surviving witnesses. We’ll be hearing 9-1-1 calls. Court right now on a lunch break so we are reviewing prosecutions opening arguments. I am joined onset today, great to have you hear. I had Brad, a trial attorney with me. And Brad, we just heard a bit of the prosecutors opening arguments. I’m sorry, Brad Micklen. In which she eluded to this restraining order that Amanda Colley had against her husband. So this is not like they were amicably separated, everything was going fine and one day he just snapped. In fact, about five weeks before the murders, Amanda got a temporary injunction against James because he had broken into her house, taken all of her clothing and burnt them in the yard. So, clearly there is a history of some conflict here. So violent or at least very angry behavior, on the part of James.
Brad Micklen: Yeah and as you said, there’s a lot of interesting aspects to this case. And this is one of the one’s I find most interesting because normally an actually like this wouldn’t be admitted in a trial, because it shows he’s clearly violent. He burned her clothes on the lawn, is what I understand led to it. So, normally you would exclude that so that it doesn’t sway the jury. But I think it’s being admitted instead to show that he was committing a crime, he was violating the order. And that allows a lot of the offenses that might otherwise be a misdemeanor, can be raised up to the felony level.
Stacey Delikat: That’s a good point. Some of the other charges that he does face, burglary with an assault or battery, burglary of a dwelling while armed with a firearm, aggravating stalking after injunction. So that’s exactly to your point and these all add up to 10 counts. Prosecutors have a lot to say in their opening so I wanna go back now and play a little bit more, and then we’ll come back on and discuss further …
Welcome back. More from opening arguments from prosecutors in the murder case against James Colley, and in that little clip we just played you, you heard that James Colley had sort of recruited a neighbor if you will. A neighbor of his wife Amanda, from whom he was estranged, to sort of keep an eye on her. Because after they separated, he was concerned that Amanda was dating a new guy, Lamar Douberly. We just heard prosecutors recount how the night before the murder, James Colley drove to Amanda’s house in the middle of the night after his new girlfriend had gone to sleep. He went into the house because Amanda wasn’t there, and he found sex toys. Sex toys that he didn’t recognize that were not his. Obviously this insighted him a lot. In the middle of the night he calls his neighbor down the street Mike Dickens, tells him he’s angry. And from what prosecutors just told us, we’re gonna hear from Mike Dickens during this trial.
So Brad Micklen, trial attorney still here with me. Here’s another witness that the prosecution is sort of foreshadowing that we’re gonna hear from. A guy who’s gonna say, “Yeah, he called me in the middle of the night. I told him to go home. He was angry.” Does this bolster the case that there was another person at least who can testify they knew he was at the home at that time?
Brad Micklen: It sounds like it will bolster the case because I think what the prosecution’s trying to do is instead of making this the defense claim that he just snapped on a moments notice, that there was a course of conduct that started the night before, the days before. The restraining order that may have been a month before, and that is what led up to the shooting on this very day. It wasn’t that he just lost control at a moments notice.
Stacey Delikat: Right. I mean it clearly seems there is a pattern from when the time the restraining order is issued, about a month before the murders leading up to the night before where he’s angry. He’s finding stuff he’s not happy about. He’s telling other people he’s angry about it. So it’ll be interesting when we listen to the defense opening arguments in a few minutes, how they sort of balance that with this notion that he was taking Ambien, he was taking all kinds of drugs because he was depressed, he was upset, he didn’t feel right. They’re gonna argue that that’s what made him do it, but when you have all this history leading up to the crime I don’t know if that theory’s gonna work.
Brad Micklen: It’s really complicated because this involuntary intoxication defense is very complicated in Florida, because he has to prove or the defense council has to prove that it was prescribed, that he took the prescribed amount and at the time of the offense he was under its influence. If you have this course of conduct of violence from the restraining order and the burning of the clothes to the night before, it’s gonna be hard to tie, even he was using Ambien and it was the prescribed amount, I don’t know
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Brad Micklen: Even if he was using Ambien and it was the prescribed amount, I don’t know how they’re going to establish that during the moment when he took these lives he was under its influence with this kind of history.
Stacey Delikat: Right. And can these drugs really cause a person to kill another person. That’s a whole other thing. We’re going to get to that in just a minute. Let’s go back now and listen to a little bit more of the prosecutor’s opening statement.
Okay, welcome back. So we heard more details about the 24 hours or so leading up to these killings. Just a few moments before in the last clip we played you, we heard the prosecutor detail how the night before, James Colley went to his estranged wife’s home looking for her. She wasn’t home because she was at her boyfriend’s. He found sex toys, he got angry, he ransacked the home. Well, Amanda Colley gets home the next morning, realizes he’s been there and is obviously pretty worried, FaceTimes her boyfriend Lamar Douberly together. They hatch out a plan and Lamar Douberly even calls the non-emergency 911 number, non-emergency police number, to report what has happened to his girlfriend, Amanda.
So Brad Micklin, trial attorney, still with me here. More and more evidence being laid out of everything that led up to this, things that are documented. Because it sounds like police responded to the house and Amanda said “I’m going through a divorce, but hold on, I don’t want to press charges yet for this. I want to talk to my family.” So this is not like he said, she said. You have probably a police report or at least record that police showed up at the house that morning.
Brad Micklen: Well, there’s a lot of information that’s coming to us right now, but remember, it’s only coming form the prosecution and we haven’t heard anything from the defendants now. As far as I know, there are things that the defendant may have done that might sort of negate what looks like this evil course of conduct. There were voice messages that he left the night before that were not very pleasant but not of the gravity or heinous nature of these crimes. So I think we need to wait until we hear the rest of this statement, as well as what the defendant’s attorney is going to be bringing forward.
Stacey Delikat: Alright, so we do have another expert with us via Skype right now to join in the conversation. Brian Claypool, criminal defense attorney, joining us via Skype from Los Angeles. Brian, thanks for being here to lend your opinion. So we are, just to remind our viewers, in a lunch break we heard opening arguments in the death penalty murder case against James Colley this morning and we’ve been replaying the prosecutor’s opening arguments. Brian, we heard prosecutors tell us about basically this 24 hour period leading up the night before the murders, James Colley shows up at the house, she’s not there because she’s at her boyfriend’s. He finds sex toys, he ransacks the house. What do you make of this. He already … There was already a restraining order against him because about a month earlier he had showed up at her house and burnt all of her clothes in the backyard.
Brian Claypool: Yeah, hi, Stacey. Great to be back with you. I think what the prosecution is doing is trying to lay groundwork for the jury that this was premeditated, that Colley had it in his mind that he was going to do something really bad and that the chain of events the prosecution is laying out proves that, that he was already losing a screw in his mind the day before, he was in this panic mode and that he was plotting to do something really bad. But like Brad said, we haven’t heard yet from the defense and if I’m the defense lawyer in opening statement first thing I’m going to say is “Wait a minute. He didn’t do anything to harm her the night before when he found the sex toys and that-“
Stacey Delikat: She wasn’t home. She wasn’t home, right?
Brian Claypool: Right, but here’s what I think the better argument is for the defense, and I think they’re making a really big mistake. There is a defense in Florida called Heat of Passion, and there is actually … I did some research on this. There’s actually a specific jury instruction that was crafted a few years ago in Florida. In fact, it’s 7.2. Colley’s lawyer should be arguing this, that he goes into court the day of the murder and I know for a fact that after the court hearing, he had a phone conversation.
Stacey Delikat: Right. He was angry and called his father.
Brian Claypool: Right. That should be the cornerstone of their defense, that something happened in that phone call because within 30 minutes he’s over at her house.
Stacey Delikat: Brian, hold that thought. I want to hear much more about this crime of passion, so to speak, that you described but we’re going to take a quick break. When we come back, much more analysis on this trial out of Florida. Stay with us.
Welcome back. Okay, that was more from prosecutor Jennifer Dunton, giving her opening arguments in the murder case against James Colley. We just heard her talk about these 911 calls from the victims, from Amanda herself, James Colley’s wife who prosecutors say he murdered. We will hear the 911 calls during the trial. We will also hear from the two surviving victims here. Still joined by Brad Micklin, trial attorney here in studio and Brian Claypool, criminal defense attorney has joined us via Skype from Los Angeles.
So Brian, let me ask you, Brad and I discussed this a few minutes ago. Before we get back to the defense’s theory, because I do want to talk more about that and in just a moment we’re going to get to defense opening arguments. Before we get to that though, Brian, the fact that we have two surviving witnesses here. We’ve got the 911 calls and the jury is also going to hear from two surviving witnesses about the moments being in that house as James Colley burst in the house, shot through a glass door, shot and killed his wife, shot and killed her friend, shot through a closet door and grazed the arm of another one. When we have these surviving witnesses, how powerful is this in the courtroom?
Brian Claypool: Stacey, it’s very helpful for the prosecution because make no mistake about it, that jurors respond to chilling situations. For example, I was watching that prosecution account of what happened, I was getting goosebumps. I felt like I was actually in the house when the shooting occurred and that’s going to have a powerful emotional effect on jurors. Emotion is really important in cases like this and when you have two people that survived this horrific shooting, that’s going to be potentially devastating for the defense because you now have a live version. You’re going to have 911 calls while it’s going on. That’s going to have a powerful effect on the jury.
Stacey Delikat: Brad, do you agree that this is potentially devastating for the defense to hear from the two surviving witnesses?
Brad Micklen: Well, absolutely. Aside from the fact that it puts the defendant right on the scene and acknowledges that he commits the crime, but let’s not forget, they’re victims also. There are other charges in this. There’s burglary, there’s violating the injunction, there’s probably an aggravated assault. These witnesses are also the victims. So while it may not lead to a death penalty conviction on these charges, it’s certainly going to lead to severe jail time, as well as prejudicing the jury.
Stacey Delikat: Yeah. One more clip to show you guys now of the prosecution’s opening statement and then we will get to the defense’s arguments. Let’s go to that now. Again, we’ve got a half an hour until court resumes, so let’s hear the rest of the prosecutor’s opening statement.
Welcome back. Well, that is one of James Colley’s defense attorneys, and in the beginning of his opening argument there, you hear him start to talk about some of these medications that James Colley has taken. He talks about Cymbalta, Wellbutrin, Ambien. He says James Colley has not been feeling like himself. He’s having sleeping problems, getting panic attacks, suffering from depression, he’s feeling like he can’t hold onto his family as this divorce is underway between him and his wife, Amanda. This obviously all building up to their theory that they will try to sell jurors that this was involuntary intoxication, that James Colley committed these murders because of these medications he was on. I’m with Brad Micklin, trial attorney in the study, Brian Claypool, criminal defense attorney with us via Skype.
So Brian let me start with you because you already said you don’t agree with this theory at all, but as you hear them start to talk about this and lay out the different medications, what is your thought? How hard is it going to be to prove that these medications caused him, caused James Colley to shoot his wife and her friend?
Brian Claypool: Stacey, there’s a big difference between what a lawyer says in opening statement and actually putting on actual evidence. And in this case, medical evidence that would reduce … What they’re trying to do is use medical evidence to say that Colley didn’t premeditate this crime. And I’ve got to tell you, this is going to be a daunting task. I mean, you can’t just say “Oh, Ambien combined with three other drugs caused him to be depressed, which caused him to kill his estranged wife.” If that was the case, there’d be hundreds of thousands of people getting off-
Stacey Delikat: Right. Dead bodies all over the place. My thought exactly. Let me stop you there because we have to take a quick break, Brian, but we’re going to continue this discussion just as soon as we come back.
Welcome back to Law and Crime Trail Network. I’m Stacey Delikat. A little bit of breaking news to bring you at the top of the hour and that is that adult film star Stormy Daniels has had all criminal charges dropped against her. Earlier this morning we told you Daniels was performing at a strip club in Ohio when cops arrested her for a rarely enforced law that claimed that she was having illegal physical contact with patrons at a local strip club. The allegation here is that she rubbed some patrons faces in her breast, she touched the breast of a female officer who were there perhaps undercover.
Well, we have just learned that prosecutors have decided to drop those criminal charges against her. Earlier this morning, our own Ronn Blitzer wrote an article on Law and Crime which he talked about a little known loophole in this little known law and that loophole basically is that this law claimed that employees who regularly appear nude or semi-nude in the premise of a sexually oriented business were not allowed to touch any non-immediate family members in any way. Well, Stormy Daniels not an employee who regularly appeared nude in this Ohio venue. She was just there as part of a tour that she’s on around the country. So we don’t know for sure yet if that’s exactly why prosecutors decided not to pursue these charges or not, but we know it is something that Daniel’s attorney Michael Avenatti said he had been asking them about as of first thing this morning. So again, criminal charges against adult film star Stormy Daniels have been dropped in Ohio. We’re going to be talking about this a lot more throughout the day.
But for now we want to get back to our big trial out of Florida. That is the murder trial, the death penalty case against James Colley. Just before we went to break we played you some of the defense’s opening statements, when they started to layout the drugs they claim James Colley had been taking. Ambien Wellbutrin, Cymbalta. They said it was a bad combination. He was depressed, he wasn’t sleeping well. And defense attorneys are going to argue during this trial that it was because of the medications he was on, he shot and killed his wife and one of her best friends. Brian Claypool, criminal defense attorney from Los Angeles, we heard from you just before the break, Brian, and you said that you think it’s going to be a hard, hard argument to make. Brad Micklin, trial attorney here with me in studio. Do you agree that this is going to be really difficult for defense attorneys to prove that the drugs made him do it?
Brad Micklen: Yeah, I think it’s going to be a very difficult burden for them and it’s actually fascinating that they even elected to present this. Not only do they have all these elements that they need to establish the prescription, the amount take and the effect at the actual moment, along with the timeframe from when he was discovered, but they’re going to need some kind of expert medical testimony, I think Brian alluded to that, which is something that cuts both ways. Sometimes it helps tie points together. Sometimes it confuses the jury, where the heat of the passion like Brian was talking about is much more common of a defense and can also be established a lot easier because heat of the passion doesn’t have to be necessarily in the moment, but it can be over time and I think it would have been a much better choice to go in that direction.
Stacey Delikat: I do want to talk about this heat of passion defense, but going back to the medical experts, like you said, it’s going to be confusing, Brad. I would assume, Brian, that there will be multiple medical experts testifying about the different drugs and doctors and medical experts who have different opinions about each drug.
Brian Claypool: Exactly. And here’s another point. What medical expert is going to risk his or her livelihood? I’ve had this happen in criminal cases. Sometimes experts won’t take the stand because they’re going to have to testify under oath “Oh, this amount of Ambien combined with an antidepressant can cause somebody to go kill somebody.” I mean, imagine that. Their careers could be on the line. But Brad’s right. You’ve got to prove the exact amount of the drug, each drug, in the system at the time this went down and then say all of these coalescing caused somebody to kill a woman? I mean, Roseanne Barr used the Ambien defense. What did Ambien come right out and say the next day?
Stacey Delikat: I don’t know.
Brian Claypool: Ambien has nothing to do with racial tweets.
Stacey Delikat: Yeah, leading up to this trial and discussing the theory, I’ve talked about that, how Roseanne said it was the Ambien that made her tweet. And then Ambien said “No, I don’t think-“
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Stacey Delikat: That how Roseanne said, right, it was the Ambien that made her tweet. And Ambien said, “You know, no I don’t think so.” Obviously two very different degrees of activities. One is a murder, one is a rude and racist tweet. Let’s go back and play a little bit more of defense’s opening argument and when we come back I want to discuss this ‘heat of passion’ defense theory that both of my guests here think would have worked out better for James Colley’s defense team.
Welcome back. That’s one of James Colley’s defense attorney as he delivered his opening statement this morning and in that clip we heard him say that James Colley took some Ambien about five o’clock in the morning, tried to sleep a bit, woke up late before heading to court where he had a hearing to fight an injunction, a restraining order, that his wife Amanda Colley had filed against him.
I have two guests with me today. Brad Micklin’s in the studio, trial attorney. Brian Craypool, Criminal defense attorney with us via Skype from Los Angeles. Both of you think this ‘involuntary intoxication’ defense is not the wisest one. And Brian, let me start with you because earlier you brought up the ‘heat of passion’ defense. You think that James Colley’s defense attorney would have been better served using that defense. Describe to our viewers just quickly again what that is.
Brian Claypool: Yeah, sure thing. ‘Heat of passion’ does not excuse somebody from committing a murder. What it does is it defeats pre-meditation so you’re then arguing to the jury that he could not have formed the intent to plan this crime and therefore it reduces the charge, Stacey, to manslaughter which is more viable for this jury to embrace. And that’s what they should have done here. What the defense lawyer did there was all great, he’s all dressed up for the prom establishing “Oh my God! Colly, he loved his wife, he loved his kids. He was going to lose all this” That’s great. He’s all dressed up, he doesn’t have a date to the prom because he’s arguing the wrong theory.
Stacey Delikat: Brad, you agree you said. Why do you think they should have gone with ‘heat of passion’?
Brad Micklen: Well not necessarily saying that I agree. I’m saying it’s a very common defense and with all the matrimonial issues to this case, the ‘heat of passion’ would have made a lot of sense to people. But what I think the defense is trying to do, let’s not forget when you put aside how heinous this crime was and how many victims we had and all the matrimonial issues, it’s still a criminal trial, whether it’s manslaughter or murder. So when you’re looking at a reasonable doubt issue, if you’re going to introduce something like an Ambien defense, then it might be easier, given how convoluted it’s going to be, to create reasonable doubt. So that might have been why they elected to not use the ‘heat of passion’.
Stacey Delikat: That’s a good point. I want to ask both of you, this is a death penalty case and defense attorneys are like “Look, this isn’t a whodunit. We’re not gonna dispute that James Colley didn’t shoot his wife and her best friend.” Is this really about just saving him from the death penalty at this point, because attorneys are saying “Yeah, he did it.”?
Brian Claypool: Yeah absolutely. There’s no question about it, in fact the defense lawyer came right out and said “We know who did it. The question is why did he do it.” But here quickly, here’s why I think ‘heat of passion’ would have worked, Stacey. All the of these facts that the defense lawyer’s laying out, leading up to that court hearing and that phone call, remember then a half hour later he’s at the house. One of the elements that you have to prove for ‘heat of passion,’ Stacey, is that there was not a lot of time for the defendant to really regroup and regain his mental capacity. That would have worked here, possibly, because there was only a 30 minute gap between this bit phone call he had with his estranged wife and then going over to the house. So I think it would have fit better. And then also those 911 tapes you’re gonna hear about, and the survivor’s-
Stacey Delikat: Hold that thought Brian. We’re going to take a quick break. When we come back, much more on the defense’s theory. Stay with us.
Welcome back to Law & Crime Trial Network, I’m Stacey Delikat. We are still on a break in the Florida court room where the murder trial against James Colley has gotten underway. In just a few minutes, we expect court to resume and just as soon as it does, we will bring you live into the courtroom. In the meantime, I’m with Brad Micklin, trial attorney, in the studio, Brian Claypool, criminal defense attorney via Skype. We have been talking about the defense’s theory here. They are seeking to prove that James Colley was on a mix of drugs, Ambien, Cymbalta, Wellbutrin. He was depressed at the time, having trouble sleeping, took these drugs, and that is was caused him to shoot his wife and her best friend.
Brian, I want to go back to you because you were finishing a thought when I cut you off before. We’ve been talking about this ‘heat of passion’ defense and why you think defense may have been better served using that. You were also talking about the 911 calls.
Brian Claypool: Yes Stacey. If the defense had used the ‘heat of passion’ argument, then these 911 calls and the live testimony of the survivors that you heard in the opening statement by the prosecutor could have been a double edged sword and actually helped the defense because in ‘heat of passion’ you gotta prove that the defendant was in what’s called a blind fury, a rage. And those 911 calls, if you could hear Colley screaming or yelling, that could have actually fueled the argument that Colley just completely lost it. He was in a rage, a fury, committed this crime and it was ‘heat of passion’.
Stacey Delikat: Yeah, Brad. Anything you want to add to that? About the fact that these witnesses could have actually bolstered the defense’s case if they had used that theory.
Brad Micklen: Well it’s hard to say. If you’re a defendant in a profile criminal case like this, you want to assume at least that your lawyers know what they are doing. And the defense attorney was very clear in his opening statement where he said “We’re not trying to justify what happened. We’re trying to explain it.” And obviously because you can’t possibly justify it. I think It might have almost been a little trite to take the “Oh I was upset because of my divorce” defense. I think people aren’t going to be willing to accept that, where this intoxication convolutes the issue. You do have the text with Roseanne Barr so I think it brings home a lot of issues that would actually be better for a jury than to say “Oh I’m just upset because I’m getting divorced.” Everybody’s upset when they get divorced.
Stacey Delikat: Right, right. Although obviously he was very upset because she had the restringing order against him. He had gone into her house, burned her clothes, gone into the house the night before the murder, ransacked it. I want to just, for one more minute, talk about the Ambien defense because I was curious about it. There’s a lot that’s been written online, particularly after Roseanne Barr’s tweet. Time Magazine had a long article just this past May in which they say it’s “The Ambien defense and yielded mixed results. Plenty of juries have ruled to convict some suspects but some people have seen charges ranging from assault to driving under the influence dropped or reduced after arguing the Ambien defense.”
That’s not that surprising to me that you might see a DUI charge reduced or even assault, maybe if you push someone or hit someone, because I mean a lot of people have taken this drug or other sleeping pills, and the label even says it might cause you to act a little differently or feel a little differently. But, you know driving your car on Ambien versus taking a gun and going and shooting someone, to me there’s a big difference there. Brian, your thoughts?
Brian Claypool: That’s a great point Stacey. And another point you can make too is how long was Colley taking Ambien? For how many days? In other words, if he takes this regularly and you’re going to use this defense, then argument can be made that why didn’t he kill anybody a week prior if he was on Ambien. So I think that’s going to be a real hurdle as well.
Stacey Delikat: Yeah, I mean you can say it effects how you think, but it’s one thing to say he’s on Ambien and he makes a call and he goes on and on on a voice mail, but still, to take the guns and go to the house… Do you agree Brad, that it’s sort of a big leap from something like, “Oh I drove my car and crashed it from the Ambien or assaulted someone.”
Brad Micklen: Well it’s hard to say because we don’t know how long he was on the Ambien, what prescription he was, when he last took it. But also, remember, this is a death penalty case and they might just be trying to negate that one issue. They might just say because he was clearly there, clearly killed these two people and the other two victims without a doubt, probably a reasonable doubt, then at least let’s try to put all berries in one basket and not get the death penalty.
Stacey Delikat: Yeah, yeah. And I do think, and you both sort of agree, that this is what it’s about ultimately, because they’re not disputing that he fired the shots. We are now going to play some of the other compelling testimonies. The first compelling testimony we heard this morning in court, and that is from Rachel Hendricks. She is one of the surviving victims here. One of Amanda Colley’s friends who was in the home on August 27, 2015. They day James Colley went into the house, shot through a glass door and began opening fire, ultimately killing Amanda, her friend Lindy, and injuring another of the victims. Let’s go now and listen to some of Rachel Hendrick’s testimony about what happened on that fateful day.
Okay, we just heard from Lamar Douberly, he was Amanda Colley’s boyfriend. He was, perhaps, James Colley’s intended victim on that shooting, during that shooting, in August of 2017.
Brad Micklin, trial attorney, still with me in studio. Brian Claypool, criminal defense attorney, still with us via Skype. Brad, the testimony we just heard, Lamar kind of laid out what happened, when it happened. Right? That’s how testimony goes. But I didn’t find it particularly emotional or gripping. Even more so with the witness before, she sort of played at her fear at hearing the shots, seeing the other girl being shot in the face. This to me was a little bit more cut and dry. What was your impression?
Brad Micklen: Well I agree. It seemed that way. And we always get wrapped up in a case like this, because things like the Ambien defense because it’s so riveting. The prosecutor has a certain job to do and certain elements that have to be established. So, one, obviously they have to put the defendant at the scene and that he committed the crime. But also, again we’re looking at a death penalty case so Florida has a number of different reasons why the jury could find him for the death penalty and one of them is a very heinous act, another is the number of victims that were effected by this. So I think they’re just trying to lay out these elements in sort of an unemotional and dry way because those are so necessary.
Stacey Delikat: Yeah, Brian, did anything strike you from Lamar Douberly’s testimony?
Brian Claypool: Well I actually felt it was pretty compelling. I mean you’re a person who was a victim of a horrible crime, was there. I was actually at the Las Vegas shooting, so I dodged a bullet there, I saw people shot. And I will tell it’s very courageous what he did to get up on the stand and testify. And he’s giving the jurors a first hand look. It’s like almost being like an eye pixy or, I don’t know if you’ve ever been these Stacey, but you’re like it’s a really intimate experience. You’re right up close to what’s happening with the movie. So the jurors have a different lens [inaudible 00:36:43] to this shooting.
Stacey Delikat: Yeah, I mean that’s a good point. And we did see some photos inside the house taking us inside the crime scene, seeing broken glass and so on and so forth. One point I want to touch on that we haven’t really touched on yet, really quickly but, Brad and I were discussing also during the testimony, that James and Amanda had kids. There’s two kids involved in all of this as well. You saw in some of the pictures, the children’s’ items. So Brad, defense attorney’s say in the beginning of the opening arguments, “Why would he do this if he loved his kids?” What do you make of that?
Brad Micklen: That’s hard to say. Again, it goes to possibly he wasn’t in control of what he was doing or had no intention. Obviously the children are horrible victims in this no matter what the intention. We don’t know how this is going to play out. Even if he should for some reason be exonerated, he’s still gonna probably face some kind of abuse or neglect charges with his children. So, the children are going to be impacted in this way, seriously almost as much as the other victims I think.
Stacey Delikat: Yeah. Brad thank you so much for your insight and thanks for being with us today. Brian is staying with us. When we come back from this break, more live inside the courtroom from Florida where James Colley’s murder trial continues. That’s right after-
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