Video Transcript
Vincent Hill: In the studio with me is Brad Micklin. Brad, this is a little strange. You’ve got 40 potential witnesses. You’re looking at a manslaughter case. You’re trying to say it was self-defense and you only call two witnesses. What do you make of that?
Brad Micklin: It was shocking to learn that. I actually didn’t believe it at first when they told me that. Again, there was 40 witnesses. If you listen to the defendant’s opening statement, the counsel goes through a ton of people that he’s planning to call. All these people that were involved in the fight. There was a toxicology report that says that there was PCP in the victim’s bloodstream. Apparently none of that came out. I’m assuming that maybe the prosecutor just missed the significant element and the defense decided just to go on that and not to push opening the door.
Vincent Hill: Yeah. I was thrown on the fact that they only called these two witnesses. We are actually going to go to a quick break here. Again …
Okay. We’re still watching live the defense’s closing arguments in the Demetrius Elder case. A lot of moving parts. Still here in the studio with me is Brad Micklin. Brad, a lot going on here. You’ve got this fight. You’ve got bleed. You’ve got alcohol. You’ve got PCP. I want to touch on something the defense … Actually, one of the key witnesses in this case was a friend of the victim, Corey McMath. You heard him just say something about Corey being a convicted felon. What does that have to do with anything other than trying to discredit him as a witness?
Brad Micklin: I don’t think it has anything to do with it. I’m actually surprised that it was found to be relevant whatsoever. We have to assume this issue was raised pretrial. Normally you would exclude evidence that’s not relevant. There had to be some showing that it would tie into it. I know from the defense’s opening argument, at least, that they were trying to allege that Corey was instrumental in creating this. He brought Mohammad in for the purpose of this fight. Maybe they were trying to tie together the kind of person that Corey is, having this violent past, and is more likely to have done something like this.
Vincent Hill: Yeah. That very well could be. You and I were talking while we were listening to this closing argument here. There is a chance, in my opinion, that maybe Demetrius does walk on this because there was just so much going on. It would different if there was just a road rage incident, the horn blew, he got out, the fight occurred, and there was a stabbing. But you had this party. You had this fight. You had alcohol. You had drugs. What do you think?
Brad Micklin: I agree. I mean, I don’t think there was much testimony from the opening statements through the closing statements that really tied Demetrius to a weapon and to the fight.
Vincent Hill: Right.
Brad Micklin: I think what might be really interesting now is Armando, I believe, gets tried next. He’s probably going to be able to say it was Demetrius. It wasn’t me.
Vincent Hill: Right. Maybe that’s why they didn’t call him as a witness. You made a very good point there. There’s just so much going on, but we’ve heard several testimonies that said Demetrius was not even there when this whole thing started.
Brad Micklin: Right.
Vincent Hill: It goes back to this whole manslaughter charge. He wasn’t there.
Brad Micklin: I think he was in the car. Both the prosecutor’s opening statement and the defendant’s opening statement put him in the car. Neither of them seemed to tie him to, like I said a moment ago, the weapon or to the fight. Really [crosstalk 00:03:23].
Vincent Hill: To the fight. That’s what I meant. He was there during the fight. Again, we heard Corey say Mohammad wasn’t a violent guy. I wouldn’t allow that at my house. Just so many moving parts to this case. Okay, still hearing closing arguments from the defense in the Demetrius Elder case. He’s been up for about 20 minutes now. Still in the studio with me is Brad Micklin. Brad, you and I were talking. The prosecution actually finished her closing statements in about five defense. The defense has been up quite a while now. Why do you think she was so quick in her closing argument?
Brad Micklin: My thought is that she’s just not that good of a prosecutor. If you look at her opening argument, it was about seven minutes long. I’ve argued motions that are ten times that. The defense’s opening argument was nearly twice that. Also, I think she might be trying to keep it close because she has a death on her hands. She has some eye witnesses. Maybe she’s just trying to keep it more compact so that there’s not reasons to argue reasonable doubt. I can’t really tell yet.
Vincent Hill: Yeah, but she also can do a rebuttal once the defense finishes their closing arguments. Correct?
Brad Micklin: Could be. I think some judges do and some don’t. We’d have to see what this one is going to do.
Vincent Hill: Yeah. With that rebuttal, I think she should have gotten everything she wanted to say out ahead of time versus waiting on this rebuttal. I mean, to a juror that’s going to, “Why didn’t you say that the first time? Why are you just now coming back? Were you not prepared?” To your point, is she not that great of a prosecutor?
Brad Micklin: If she knows that she’s going to have this rebuttal, that may be different. I would certainly want to be the last thing that they hear before deliberating. Whatever points she has to make, whatever smoking gun she has, not pun intended. She might be just keeping that in her back pocket. If she knows that she’s going to close or rebuttal, then she’s going to save that for that.
Vincent Hill: Yeah. I think the defense is going a really great job bringing out a lot of points and a lot of questions to make people have that reasonable doubt that they need to have in this case. Again, this is a manslaughter case in the State of Florida. Demetrius Elder is on trial right now.
Aaron Keller: This is an interesting case. The jury really has a lot of factual calls to make here. That’s what juries are for. This case has got a lot of he said/she said. A lot of conflicting facts that jurors are going to have to resolve. Brad Micklin is an attorney. He’s here with us. Brad, good to see you. I appreciate you being on. What do you make of this? This is a lot of factual back-and-forth for the jury to really dive into here.
Brad Micklin: I think part of what’s going on on both sides … Obviously we have a prosecutor who is trying to prove manslaughter, which isn’t the highest of burden. We have, obviously, a defendant who is looking to prove reasonable doubt. I think that’s what we heard more about because the prosecutor’s rebuttal sounded more like she was on the defensive as opposed to trying to establish the act that lead to the manslaughter. When you look at the defendant’s case where we have Mohammad on a combination of drugs, one I believe being PCP, and all these other people, Corey and Demetrius and this alleged history of the fights and the revenge as they so-called it. I think you’re really really creating a lot of potential reasonable doubt. I think that’s what the prosecutor was trying to work against in the rebuttal as opposed to just establishing the manslaughter.
Aaron Keller: Yeah. It’s interesting. A lot of people are like, “Well, this isn’t a long drawn out closing argument.” We often see them. Manslaughter doesn’t have a lot of elements in Florida. They don’t have to prove premeditation the way they would in a first degree murder case in Florida. They wouldn’t have to prove in Florida on a first degree murder that it was a murder that happened which was attached to some other underlying crime. The burden for the state here is a lot lower than it would be in a lot of the other types of crimes that we follow. Could that account for the comparative brevity, I guess you could say, of the closing arguments here?
Brad Micklin: I think so. I was on a moment ago with Vincent before you signed on. He and I were talking about that. I’m not a big fan of the prosecutor, at least how she handled a lot of parts of this case. I don’t know if it was her decision or the office itself, but I think the not charging murder and charging manslaughter was actually a brilliant choice. This is a revenge fight that the defense was bringing up. They could have flipped it and used the same type of argument that this was a revenge killing and gone for murder. I think that would have been a hard charge to sell to a jury given this convoluted fact pattern. I think the manslaughter made a lot of sense.
Aaron Keller: Yeah. Exactly who did what, when, and why? What was going on at this party? Was the victim, who went by the nickname Muhammad, was he there to settle a dispute? Was there something going on? In whose mind are we looking? Are we looking into the defendant’s mind? Are we looking at the stereotypical reasonable person standard, what a reasonable person had felt threatened by this action. This is late. This is a stop sign. Why somebody who was at a party, who allegedly was there to settle a dispute, suddenly coming for me. The defendant might have been wigged out in that situation. Is it reasonable? A lot for the jury to really dig into here.
Welcome back, everybody. We are taking about the case wrapping up today in the Demetrius Elder manslaughter case out of Florida. Jurors got the case about ten minutes ago. We’re waiting to see how quickly they may, or may not, come back with a verdict. Brad Micklin is an attorney. He’s here with us on the Law & Crime Network. Breaking this down a little bit, we’ve got a lot of different factions of people testifying. What we listened to right before the break was a friend of the victim. He’s saying no animosity. There wasn’t anything bad going on. I would expect, when there was cross examination of him, that he would have been impeached because he was a friend of the victim. He’s probably not going to get up there and say the victim is an aggressor.
Brad Micklin: That’s one of the pieces that didn’t make a lot of sense to me. I know I commented before about the prosecutor. I’ve never been a prosecutor. I understand it’s a challenge deciding who to charge, what to charge, when not to charge.
Aaron Keller: You don’t get to pick your witnesses. That’s the other struggle.
Brad Micklin: Here we had a witness that apparently was brought in by the prosecutor. I had two issues with the testimony. First was, if you listened to her examination, most of it was closed questions, like leading questions, yes or no. It’s supposed to be open. Who, what, where, why, when, and how. She’s leading the witness as opposed to examining and walking through the testimony. The defense didn’t say a thing. They let it go. Then the testimony itself almost seemed like she was trying to negate what the defense was going to be bring out, that this was a revenge killing. Her job is just to establish that there was a death. I didn’t even understand why she would call this witness as her own.
Aaron Keller: You get into a lot of sort of funky procedural things in Florida. I did read some of the pretrial documents in this one. This case happened before the current incarnation of Florida’s Stand Your Ground Law. There’s a lot of litigation in Florida about it. Just exactly how far back that new law can be used as a shield by a defendant in court sort of retroactively because there’s an incident, then the law changed, and then trials happen. It’s like, is it a procedural rule or is it a substantive rule? There was a lot of back-and-forth about that. Some of the jockeying I think we were seeing was a result of that. Once the defendant says Florida Stand Your Ground, it puts the prosecutor on, if not an additional legal burden, then certainly an additional edge to try to override that claim by the defendant. We watched that play out in closing arguments. I think that some of that was what we may have been watching.
Brad Micklin: That might have been. Most of the reviews that I’ve heard about this case did characterize it as a Stand Your Ground case. I know it’s very controversial in Florida. I thought that’s what the defense was going to be bringing out. Then again, all we keep hearing from the defense is that it was a revenge killing. I was confused at what the actual theory was when you listened to the opening arguments where they’re supposed to be sort of mapping out not only the lend of the testimony but what their theory of the case is going to be. I didn’t really hear this Stand Your Ground claim come up at all.
Aaron Keller: It was interesting. That’s cross examination. We heard more open-ended questions on the cross than we did on the direct. It seems like the defense wants to just let him tell a story. He’s talking about drugs that they were taking. He was sort of digging his own grave from the witness stand.
Brad Micklin: Yeah. That’s how I heard it too. He first appeared when he was testifying for the prosecutor. He was very credible even though he was being led to his answers. It was a fleeting answer, but he admitted to smoking marijuana. To some extent, while that might not be the best thing to admit, at least he’s credible. He’s not hiding behind a different type of story.
Aaron Keller: He’s not lying about it, but does that affect his perception of the events that he’s testifying to?
Brad Micklin: It might.
Aaron Keller: He’s saying the victim was peaceful, this, that, and the other thing. If he’s high on marijuana, does he really know that’s going on?
Brad Micklin: I still have trouble seeing the relevance of this in the first place. He wasn’t there. He testified he didn’t even see it. The altercation happened down the street, if not further. Other than this revenge killing that the defense is trying to bring out, which I don’t even know if they need to establish at this point, I didn’t see the point of even calling this witness from a prosecutor’s standpoint.
Aaron Keller: Testimony from the victim’s girlfriend about how this fight broke out in her version of the events here. We’ve got a couple different versions of events here that jurors are going to have to try to weave through. Brad Micklin is still here with me. Brad, what do you make of this? Is she credible? Is she covering for the victim? How should the jurors take this?
Brad Micklin: There’s a lot of layers to a witness like this. We have to acknowledge that she’s a victim herself. I don’t know how longstanding her relationship was, but she’s certainly a victim. That also gives her some incentive to see things differently. I’m not suggesting that she’s going to lie or change the facts, but her perception is certainly going to have a different perspective because she wants to vindicate her boyfriend’s life. I can see that as causing her to be consistent with what maybe other eye witnesses might have seen.
Aaron Keller: One think that strikes me in listening to her version of the event is she’s saying it’s not so much the defendant as it was the other person who could be described as a an alleged accomplish here. The defendant and another person were in one vehicle. Then it was the girlfriend and the victim in another vehicle. It sounds like the first punch, if we’re to listen to and believe her version of things, wasn’t this defendant.
Brad Micklin: Right. That’s the problem I’ve had with this case since the opening statements. I haven’t heard either side, the prosecutor or the defense, actually tie Elder to the stabbing or even to the weapon. This whole road rage issue, or revenge killing, whichever one it was, doesn’t necessarily involve Elder, at least at this point that we’re hearing.
Aaron Keller: Is this a situation where Elder is going to be able to say, “Hey, look. These two start going at it. It spills over into me as that girlfriend just testified. At that point everybody is throwing punches. At that point I have to defend myself.”
Brad Micklin: That could be. Obviously, I don’t believe he testified, which I think was a good choice. You don’t want to take the stand as defendant in a manslaughter case unless you absolutely need to. As a defense attorney, it’s rare that you’re going to do that. While he could have, it’s smart that he didn’t.
Aaron Keller: Brad Micklin is still here with us on the Law & Crime Network. Brad, here we’ve got some testimony from a police officer saying that the aggressor here, according to the victim’s girlfriend, really didn’t have any kind of wounds on himself. Does this lend credibility to that girlfriend whose testimony we listened to a little while ago where she says this basically was her boyfriend who was bearing the brunt of the injuries here. It wasn’t the person she says was the aggressor.
Brad Micklin: Yeah. I think it scores several points that the prosecution wants to make. I think, first, the officer identifying the Solo cup does sort of set the tone that he got out and maybe he was going to shake his hand. He didn’t have a weapon in his hand. Also, there was testimony that they had [inaudible 00:15:38] in the car and that there wasn’t any marks on this. I think that’s going to open up a claim that they fled the scene because they knew they did something wrong.
Aaron Keller: Yeah. This is an interesting piece of testimony to plug into what we heard earlier. How long ago was this fight from the point that they served the warrant and then tried to examine this guy? I’m sure that it’s been discussed. I just must be missing it in here somewhere.
Brad Micklin: I think that’s going to be either something that comes later, or something that we hear with cross examination. I think the defense counsel is going to be charged with also showing what the police officer didn’t see or isn’t qualified to determine. He’s not a medical officer or medically educated in any way to know whether there would be a bruising and how long it takes for that to surface. Things like that I think are going to be subject under cross examination.
Aaron Keller: Jurors have a lot of facts to try to reconcile. What they asked for was a transcript of testimony from Wendy Gembolis who we were just listening to, the girlfriend of the victim. And they wanted a transcript of the defendant’s own testimony from a Stand Your Ground hearing. They are trying to reconcile whose version of this attack at the stop sign makes the most factual sense. The judge said, “Look. You can get playback of the video, but there is no transcript in evidence. You can get a read back of Wendy Gembolis’s testimony.” He said it might take a while, so this might push into next week from a timeline standpoint. Two different versions of what went down there. The defendant’s and the victim’s girlfriend. Who should the jury believe? Of course, we don’t know the answer. It’s a rhetorical question. They’re trying to reconcile that testimony.
Brad Micklin: That’s a jury’s job. When they ask to see something, you would hope that they would be able to get it, especially in a typed form so there wouldn’t be any question of interpretation or recollection. I believe this is more of a technicality where the judge said you can watch it. You can’t read the transcript because we didn’t move it into evidence. Having to watch it means you have to watch all of it, or at least large portions of it.
Aaron Keller: Yeah. I think the jury is doing what the jury is supposed to do. Ironically, of course, they’re asking for pretty much the same exact stuff that we were playing back earlier today. Trying to reconcile the facts from the two people who were there at the scene. That’s exactly what they’re trying to do. They want to hear from the defendant. They want to hear from the other person who was there. Jurors in the Demetrius Elder manslaughter case basically asked for some of that exact testimony to be played back. That’s part of his version of what led up to this stabbing at a stop sign after a group of people, the victim and the defendants, were at a party. Jurors are trying to reconcile that with testimony from the victim’s girlfriend that does not line up with that testimony. Brad Micklin, this is the whole reason we have juries. They have to reconcile who’s telling the truth and who’s not.
Brad Micklin: Right. Both sides of this case had some strange aspects to their story that left me with questions. When you’re looking to the defendant taking a Stand Your Ground defense, they were the car in the front, they were at a stop sign. The question is, why didn’t they just go? Their refusal to move seems to be what brought this about. That is what drives weird about their whole position. Yet, the defendant’s position is, “I got out holding a Solo cup. I went to shake his hand.” That doesn’t make sense either. I can understand why the jury is going to have trouble reconciling both of these stories.
Aaron Keller: Yeah. Exactly. If I’m remembering my facts correctly, didn’t the car behind sort of pull up and then beep and then … Did the person in the front car believe the defendant? Did he think that somebody back there was trying to get his attention for some reason? If this theory that there was some animosity brewing at this party, if that was correct, maybe he was on edge. Instantly, because of the beep, he knew what was going on.
We’re going to wrap up the broadcast in just a minute. Brad Micklin, we appreciate you being here [crosstalk 00:19:31].
