State v. Keith Davis, Jr. - Update Episode
Uh-huh in your attic fully covered meaningfully insulated if you can see your rafters. You're losing heat and money with the home depot. It's easy to add blow insulation yourself yourself in just a few hours and you'll save up to fifteen percent on heating and cooling costs for years to come. Today is the day for doing so cover up before winter gets here here right now. Get a free blowing machine rental when you purchase ten bags or more of select blow insulation only at the home depot more saving more doing <music> <music> <music> welcome to undisclosed. My name is amelia mcdonnell perry and hopefully remember me as the host of the state versus keith davis junior here and this special episode. I'll be updating you about the status of keeps case and what's coming up in the months ahead <music>. It's it's been exactly one month since the baltimore jury convicted keith davis junior of second degree murder and use of a firearm in the commission of a crime of violence. This was kice fourth worth trial for the murder of twenty two year old kevin jones and fifth trial total since june seventh two thousand fifteen the day he survived being shot by baltimore police. The the trial span two weeks with eight days of testimony deliberations began on a thursday afternoon twenty four hours later the sun still high in the sky. The courtroom was empty empty. Keith was on his way back to central booking and the jury had been thanked for their service and released from duty under maryland rule four dash three three one quote on motion of the defendant filed within ten days after a verdict the court in the interest of justice may order a new trial and quote this is a common first step in the appeals process and can be the quickest route to overturning guilty verdict and starting the trial process all over again motions for a new trial or rarely rarely granted as the defense is asking the trial court to determine that justice was not served in their courtroom due to issues like juror misconduct or bias newly discovered evidence a need to complete the record and most commonly improper conduct or significant legal errors by the prosecutor or judge mm-hmm on august fifth keith's defense filed a motion for a new trial requesting that judge sylvester cox vacate the jury's conviction shen on seven grounds six of which argued the prosecutor committed egregious error during their closing arguments the state's response was i do within fifteen days of the defense's motion but they requested an extension but i can only assume was granted in baltimore. Hearings on neutral motions are usually really held on the same day as sentencing that means unless judge cox orders a hearing on an earlier date he will hear arguments and rule on the motion on november fourteenth the they keep scheduled to be sentenced. Judge cox should expect a packed house. A reasonable doubt is a doubt founded upon reason proof beyond a reasonable doubt requires are such proof that would convince you of the truth of fact to the extent that you would be willing to act upon such belief without reservation in an important matter in your own <unk> business or personal affairs if you are not satisfied of the defendant's guilt to that extent for each and every element of the crime charged then reasonable doubt exists and and the defendant must be found not guilty of that crime belief. It's a profound feeling but it can be terrifying when the stakes are high and completely out of your control. I wasn't raised religious so i don't have any sort of spiritual basis for this concept and things like the the law of attraction and miracles can be manifested. Frankly i wouldn't trust me not to screw those things up. I had the same sense of paranoia during the trial trial. When it came to the verdict i knew at some point those twelve people would disappear into the black box but i didn't dare to believe a thing about what would happen when they came out on one hand my belief that keep this innocent is clear and certain i know the details of this case so well l. from the indisputable facts to the lies and misrepresentations and contradictions that have muddied the waters and from my perspective the state's cases nothing but reasonable doubt but my belief in the justice system and its many assurances like the defendant has a right to to a fair trial that the state has the burden of proof that forensic evidence and expert testimony has some basic scientific validity that juries must acquit not convict when there's a reasonable doubt <hes> in baltimore. I'm more likely to believe that sergeant. Glen johnson is a three inch tall man who lives mark venus ooh pocket and uses his handkerchief is a blanket so i avoided thinking about the verdict people talk about it and i'd find myself strolling off didn't matter whether they were saying positive things or negative things. I just couldn't go there. Testimony was fine. The case was fine but what the jury it was thinking i couldn't i couldn't go there and yet there were days where i couldn't help it. Things are going good and i really believed we were going to win. That keith was going to be acquitted then he will be coming home to his wife kelly and their family and a refrigerator full sonya and i'm kind of shove that feeling away because i didn't want to accidently jinx it but at the same time i never for a second really thought that keith would be convicted. I thought more likely a hung jury that had happened twice before seems to sickly likely likely but guilty. It's incomprehensible to me. The state's case was the week it's ever been will. The defense has never been more prepared appeared to use it against them. They did that very capably with each and every witness including the rare few whose credibility and character capabilities weren't totally question fair and just outcomes are possible but they are so far from guaranteed when it seemingly every stage of the process the people with the most power are expected to do the lease and seemed to care even less when all over everybody had the same feeling it wasn't the state's case that one it was lead prosecutor patrick sidell and his closing argument and rebuttal at the very very end of the trial defendant keith davis junior by and through his attorneys hereby moves this honorable court pursuant went to maryland rule four dash three three one to grant this motion for new trial because the prosecutor committed egregious error in closing arguments by one misleading the jury regarding dna evidence to denigrating mr davis three arguing an unindicted crime crime for which there was no evidentiary support for altering exhibits presented to the jury through powerpoint five incorrectly stating the presumption of innocence and shifting the burden of proof and six admitting irrelevant and inflammatory evidence in addition this honorable court having denied the defendant the right to a hearing on new evidence i raise during trial that may amount to a brady violation which is hereby supported by affidavit entitles mr davis to a new trial each air in and of itself violates. Mr davis is right to a fair trial effective assistance of counsel and and his right to due process insured to mr davis through the fifth sixth and fourteenth amendments to the united states constitution and articles twenty one and twenty four of the maryland declaration of rights the violations substantially prejudice mr davis and interfered with his right to due process and effective assistance of counsel thereby entitling him to a new and fair trial further the cumulative nature of the errors objected to and overruled could would not be cured by any one instruction to get a better grasp on some of the issues raised in the defense's motion for new trial. I'm talking into two different people. Erica shooter is a maryland appellate attorney and friend of undisclosed who you may recognize from being on the show before and i'll be talking to saks weigl who is a member of team keith who attended every single day of this past trial and spent quite a bit of time in advance of the motion researching case law that would support overturning returning the verdict based on some of the issues that were glaringly clear in the states closing arguments. Here's erica so in a motion for new trial. He's he's still going to be the defendant but he's been party. Yeah i mean he's not going to be the appellant until he's in the court of special appeals okay so he remains the defendant in the motion for new trial but he's moving party so the burden of production and the burden of persuasion is on the defendant so right it shifts and <hes> this is where we were applying abuse of discretion standard so basically he has to demonstrate that the courts particular ruling on on whatever issue so for example if the defense objected to an argument <hes> the state's argument in closing <hes> in court tonight it then and they're making that argument again and the motion for new trial that adecco ruling was sort of so oh beyond the pale so out of the ordinary that the air was such that it could have changed the outcome of the trial but like step one the a court ruling was completely erroneous and then step to that that error praise a possibility that the result would have been different so it granted a motion for new trial he would hear it. If the case went up to the court especial appeal and was reversed it will get remanded back to the same judge to hear it again. You heard right then it could potentially go back in the hopper and goes to someone else but generally speaking <music> would go back to the same judge typically <music>. Did you know that according to studies only about ten percent of break ins are planned beforehand the rest just for the moment crimes of opportunity in other words there random but not completely because the criminals are looking for places that are vulnerable and by the way july and august are win. Dan the most burglaries occur and what's crazy is that only one in five homes have home security. Maybe because that's because most companies don't make it a too easy. You get stuck in long contracts. It's expensive. It takes a lot of times quite a hassle. That's why i love simply safe. It is my top choice for the home. 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That's spelled s. i. m._p. L. is safe undisclosed dot com you'll get free shipping and a sixty day risk-free trial you've got nothing to lose and everything to gain when it comes pumps the safety of your home and your family so going out and be sure you go to simplisafe undisclosed dot com so they know that our show sent you and so you can continue to support our show. Oh that's simplisafe undisclosed dot com issue number one. The prosecution acution misled the jury regarding dna and fingerprint evidence as chief. Judge barbera explained d._n._a. Is a powerful evidentiary tool. Who'll and its importance in the courtroom cannot be overstated not surprisingly jurors place a great deal of trust in the accuracy and reliability of dna evidence evidence wack versus state two thousand thirteen thus when prosecutor misleads the jury particularly regarding d._n._a. Reversal is required a while. I would love for you to be able to hear patrick sidell deliver his closing using arguments herself. We can no longer obtain audio of criminal court proceedings after we broke the maryland rule against broadcasting such audio on this very podcast. I don't expect it will last but for the time being i have to read the transcript allowed to you just a couple of notes throughout this this portion of his closing argument sidell holds up photos of the crime scene points out kevin jones's body and the various objects surrounding him. He also holds up keith's jeans and his sneakers. Here's the relevant portion of the testimony related to the d._n._a. Evidence or lack thereof in this particular trial <music> the dna whereas dna whereas the d._n._a. Where's the blood. You got these in digital format. You can literally zoom in to a._b._c._d. The n._f. Can get down. You can zoom in sixty times on these photographs. Not one of those objects has blood on it there within a couple of feet of the body the box dozen inhabit his grill dozen habit. The phones don't have it. The bliss dex doesn't have it. The bag doesn't have any blood on it. So why would you think that the shooter got new blood on him. That makes zero sense sense and what we learn is that the blood is literally contained to the body. He had over liter of blood in his chest cavity a leader of blood. It's all internal. It's all internal. There's going to be blood splatter everywhere. This isn't an episode of dexter okay. This is real life. There's no d._n._a. Tests because there is no d._n._a. Right out of the scene and the problem you wanna go and touch the defendant stuff. He blood all over a stuff. The defendant bled all over stuff so even if we try to go look at this. How are we going to distinguish between his blood and the victim's blood which one of these spots we say oh. This spot is kevin. Jones's spot that we can say it's not his spot. That's the problem is the defendant's bleeding on his own stuff. That's why we can't do d._n._a. Same thing with the pants their cupboard first of all they're covered in grease if we're looking at them but they're covered in blood. Which one of the spots should we pick when we know it's the defendant's blood from being shot. That's why d._n._a. Doesn't affect this case and you remember what mistake said when it comes to d._n._a. Then in case like this fingerprints reprints are even better than d._n._a. Fingerprints are the only piece of evidence that is one hundred percent unique even in d._n._a. You can't distinguish between a twin fingerprints can so that's twi ms banks and i focused on the fingerprints 'cause that was the more reliable piece of evidence prosecutor patrick sidell would perhaps prefer to pretend that the idea of there being d._n._a. Evidence in this case is so absurd that the state never even bothered to test for it but my living room wall begs to differ there were enough. Deanna requests and reports entered into evidence at the previous trials to cover all all the holes. I made in the drywall in my living room trying to be handy the d._n._a. Testing span from january two thousand sixteen until late last year on january fourteenth two thousand sixteen detective mark vini requested for kevin jones's blood to be compared to several d._n._a. Samples taken from keith davis juniors seniors jeans and sneakers. There was no match ultimately in march two thousand seventeen all of the d._n._a. Samples from keith's clothes those were matched to his own d._n._a. Sample in august two thousand seventeen even more samples were cut from keith shoes and jeans and tested for dna by the state's request and once again the d._n._a. That was identified match keith davis junior and not kevin jones the reality is this they have. There's a lot of d._n._a. Testing in this case they just tell us the time and in fact we kinda you exactly what sidell is acting like they would never bother to do. They've been trying to make this link between them or the entire case. They were doing it cautiously because they also did not want to stumble upon especially when it came to kevin jones's belonging this person they didn't want to accidentally stumble stumble upon somebody else's the any profile for really just comes down to it comes down to something that he's specifically cannot or not speak do because he is not a d._n._a. Scientist right down to we don't know where the suspects d._n._a. Deposited and we don't know where kevin jones d._n._a. Specifically the positive because you can't see it with your eyes. Yes it is possible that you can have two contributors but there's there's vast to be a research that has gone into how to deal with when you have more than one trigger. Now it's not always perfect but you have to do the tests to begin with the defense's motion sites wack versus state where the court found that it is quote highly improper to misrepresent d._n._a. Any evidence to the jury quote given the immense weight jour's after accord dna evidence and was grounds for a new trial an affidavit from a dna analyst and molecular biologists refute several of sidell statements as patently false and misleading stating that quote such ignorance of current forensic science should not be permitted in the courtroom. I was surprised i was surprised to hear them here. The state say that to suggest that something that anybody who has any kind of experience with c._n._n. At all would know to be you know inaccurate like the fact that one person's person's blood is on top of another person's blood doesn't mean that you can't find the profile of either for it doesn't obscure the other person's profile like that's just not how it works. The both were department department. Kremlin has a contract with truly. Ill which it only does is analyzed complex mixtures that is an example of what appears to be some sort of weakness or deficiency or flaw in the state's case and that argument is an attempt to shore that up one of the biggest deficiencies in the state's case has always been the lack of a motive for the murder there was no evidence or testimony to that effect at trial therefore either until closing arguments that is which brings me to our next egregious error. The prosecution acution improperly referred to unindicted crimes to deprive mr davis of the right to a fair trial and u._s. Versus wilson nine hundred ninety eight eight the fourth circuit reversed the defendant's murder conviction for improper comments enclosing the deprive the defendant of his right to a fair trial in particular the prosecutor and wilson waited until closing arguments to argue that the facts in evidence supported an unindicted crime the court court found that this misled the jury and prejudiced the defendant and more specifically the prosecutor in that case waited until closing to assert that the defendant had murdered someone while there was evidentiary support to argue that the defendant had fired a weapon at somebody there was no support for the argument that he had killed anyone notwithstanding the lack of evidence. The prosecutor waited until closing argument to assert that there was in fact a murder and that the defendant committed the fourth fourth circuit found this to be prosecutorial misconduct that deprived the defendant of a fair trial. The same thing happened here. The prosecutor waited aid until closing argument to suggest that mr davis robbed the deceased because no wallet was found on mr jones. The prosecutor based this argument on facts not at all in evidence then asserted his own. Ill advised statement that he quote sure hoped that the seven dollars found in mr davis pocket hit. We're not what this murder was. All about as was the case wilson this unsupported and inflammatory argument prejudice mr davis because is he was entirely unable to develop defense to this unindicted crime which the prosecutor argued for the first time and closing argument again. I think it's like we're always looking for these two things right. We're looking for this error this mistake and then we're looking for prejudice so if for example he's arguing some facts not what evidence such as that there was a robbery that took place or that there was a wallet that was stolen when there's no testimony as to whether or not he was carrying a wallet <hes> <music> than the harm is that maybe allows him to shore up a critical weakness in the case which is motive <hes> and up until that point. We don't hear or anything because there's no connection between the defendant and the victim <music> most of my life. I've needed all the help that i can get fall asleep. 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They want you to love your purchase so they offer no risk thirty day trial and free shipping but i doubt you're going to want us in then back in fact i can almost guarantee people in your family. We'll be fighting over them. So you might wanna get some extra sets once leaving their sheets. You will never wanna sleep on anything else again again to get you started right now. Our listeners get fifty dollars off your first set of sheets at bollandbranch dot com. If you use the promo code undisclosed go to boll and branch dot com today for fifty dollars off your first set of sheets. That's bold b. o. L. l. andbranch dot com promo code undisclosed bollandbranch dot com promo code undisclosed. This is going to be state exhibit eighty five. You heard the judge say it's admitted into evidence all the printed photos that we have for you. You're going to get it on a disk. She can actually look at them zoom newman on them. The reason that's important is when you look at these photos. You can zoom in on this pocket. What do you see the pocket for. Some reason has been unbuckled. You'll get his rear pocket zoom in on it. His rear pocket has been unbuckled but then when you look at the bag. The bag is still at shut. You should ask yourself if the bag is latched shut and the pockets are all unbuttoned an open house that happened because we have video of him walking looking down the street and you can see that the victim has nothing in his hands. There's his right hand right there and there's nothing in his hands. There's no cell phone in his hands bliss tax. There's no grill. There's no box. It's just him in the bag. So where do these items come from. We know the girl wasn't in his mouth because a blue is to frontier off. There's no damage to the grill so if they're not in the bag and they're not his hands. Were they there in his pockets. You've got a mass man balling somebody to an isolated area where makes physical contact as a face to face confrontation belongings are scattered across the parking lot and his pockets are taken out and and what's the thing that's missing from this crime scene no wallet no cash no credit cards. Kevin jones is going to go an entire shift five to one without eating lunch this day apparently every single one of you have just connected the dots about what this case is and what this case is really about <music> about what the defendant was doing in that parking lot. It's permissible for him to comment on with absent absent like if it is it is in fact the case that there is no money recovered from him like that's something you can talk about and then we're talking about sort of permissible inference. Could he argue that it is not that it's not believable that he wouldn't have had money on him because he would have had to have gotten lunch that day or every man who goes to work at a little money in his pocket or something like i mean so yeah. I don't necessarily think so either either what about the fact that kevin jones in terms of distance between his job and where he lived. It's three blocks right so then that is something that the defense could argue in closing and in contrast to what the state's saying but the state but that i think is the permissible argument to say. The absence of money is suggestive of robbery because he wouldn't have gone all day without money like i think that's argument. I think that might be it's very close to the edges of what is sort of his argument for sure. He wasn't indicted robbery if they thought he committed a robbery. Why didn't they indict him on a robbery right. I mean i think i think that it's on the line. I think that it's an interesting issue. I think at a minimum he attempted to state tends to sort of stay within the parameters formidable argument by laying it out the way that he did. It's like there was no money recovered from his person. You know one thing that's interesting. Though wasn't that rebuttal so it's both both the bulk of the robbery motive sidled delivers during his regular closing arguments. That's the stuff you heard earlier but he saves some pretty inflammatory tori remarks for the very very end his rebuttal. Here's that part and remember. The defense does not get respond. After this. The jury leaves the courtroom courtroom and they begin deliberations the idea that this twenty two year old man get himself ready for work walk to work and after worry about being followed by some guy who's not even from the city who just comes in at night the idea that he's gonna follow him to an isolated area to run through his pockets. I sure hope i sure hope that this case is not about the seven dollars that is crumpled up in the defendants pockets even though he has a wallet with no cash in it. That's that's how much his life is worth a crumpled up five dollar bill and two crumpled up one dollar bills. That's all it took to end twenty two year old man's life. That's not okay. I and i'm not asking you to fix it because you can't fixing it would be bringing this young man back and let him continue his life and go to work and do what he does day in and day out and grow up and grow old. You can't fix it none of us. Can i'm asking you to hold a man who made the decision responsible. There's one man in this courtroom who made a choice that only he could make you took a life with a gun and it's up to you to hold them responsible. That's what i'm asking you to do. If in fact he argued about something that was not an inference but was a fact evidence that there's definitely in my opinion prejudice it is because lack of motives and lack of connection between people was a glaring problem problem with the state's case <hes> so that it was a fact not in evidence then yeah. I think it's it's certainly it's certainly a problem. Here's another claim from the defense motion for a new trial. Dishonourable court's failure earlier to sustain objection to inflammatory and irrelevant evidence introduced during closing warrant a new trial during closing thing and over objection. The state argued that the defendant quote beat a hack and was cheating on his girlfriend. Mr davis repeatedly objected to the introduction of this evidence and those objections were all overruled allowing the state to rely on irrelevant highly prejudicial evidence during closing violated mister davis's right to a fair trial while it served the equivalent of admitting four oh four be evidence into trial without the proper analysis this highly inflammatory and irrelevant of information severely prejudice mr davis and a case that was entirely circumstantial thereby violating mister davis's right to a fair trial and unfairly early influencing the verdict as a result. A new trial is warranted citing lawson v state two thousand and five <music>. This is the first time you really goes in depth talking about the texts between these kelly and this other woman right right keith was twenty three it was a fresh relationship and he happened to be doing some twenty three year old man stuff <music> multiple women at the same time not a good look <hes> you know and it's one of those things that i think in some sense has kept him off. Yeah the witness stand right. <hes> you know 'cause they could paint him a certain way but obviously those are conversations that he and kelly have long since had long long since resolved the texts only come up in my recollection as just a means of saying he's up an active at the time of the murder right all right so his phone is operating at four in the morning and it's five in the morning and there's no pause so they claim between around the time of the murder by texting specifically <hes> and so it it only comes up breath in a temporal sense right in the closing he uses the text in a different sense and he uses it to paint keys as an unfaithful for partner <hes> which crosses in my estimation several boundaries you can only make reasonable inferences on on the evidence that has been presented already so like if the evidence so if your inference goes beyond the color of what has has been talked about already that may be deemed not reasonable and that becomes a violation in terms of the story that you're trying to tell as a lawyer majorie majorie. You can't go too far now. The issue is the content as far as the sheeting aspects that doesn't come up in the course of the trial title at all right. Let's come up past trials but it didn't come up in this one and all that matters right now for this motion is this one it was not talked about at all so in the course of the closing argument he goes on a tirade about she's talking to this woman talking to that woman and how essentially implying how could he dismiss the love being presented to him by kelly who is smiling in this context. How could he disrespect her. Love and of course at the same time jury is looking and seeing her in the courtroom most of the days and i'm sure there's an emotional reaction the action there and right he spends a paragraph or two and transcript talking about this so on the one hand it's nowhere near the material to the commission of a crime has nothing to do with it really just it constitutes impeachment of character so all you're doing is tarnishing orange shing the defendant in a way that has nothing to do with the murder. This is the first time the juries hearing this and this is one thing that i was really thinking about. <hes> you know like what talk about my mother for five minutes <laughter> the worst thing you can do in the world is cheat it on your partner murder might as bad to her cheating on your partner. I promise you until agree. It's the worst thing you can do. She has no tolerance for that and i promise you it she was on that jury and obviously it wasn't my mother. She was a random person on this jury and she she heard at the very end of the trial that oh wait his wife's been here the whole time and he was cheating on her in the beginning of this dog <music> so fuck him they would be an entire change of of judgment in some capacity within her enough to a potentially if she was on the fence <hes> that might be enough just the fact that he did those things even though even has nothing to do with the with the crime. It'd be enough enough emotionally to push toward a conviction. I don't know for a fact that there's anybody on that jury that that the same way but i would be zero percent surprised if at least and all it takes is one person needed unanimous so one person hurt that and flip guilty. That's the problem <hes> because that stat statement and micro housing argument has nothing to do with the murder of jones. It's is completely separate from it and the case law. I was looking into said essentially you can't have just flagrant statements against against the character of the defendant or defense counsels but it has to be material to the story of the crime. You're trying to tell and has to be based on hard evidence. It appears to me like it is a violation because it doesn't have anything to do with the crime. It doesn't add anything or subtract subtract anything to whether or not keith was at pimlico and put those bullets kevin jones it doesn't it doesn't add anything subtract anything into. It's purely there to paint a certain way. You know i'm not saying this is a a thing that sex more than men but there were several women on that jury he's he's was with women and i'm sure on some level like i said i would represent surprised one of them so if one of them if triggered trauma for one of them right. There's no way that a seasoned prosecutor patrick sidell doesn't know that that's what he's feeling on that tirade not hoping to sway one one woman on that jury in fact it was an all male jury i he he would unit bought it up <music>. The important time is now the importance of feeling professional polish and prepare when accounts right now for small business sooners or people who produce their own podcasts being plugged in and prepare when an opportunity comes up is crucial those moments happen all the time they're happening now and having a business card that shows have professionally in your pocket ready to hand out is the first step to making something happened your next opportunities coming right now in all it takes to feel like ready to own. The now is ten dollars. 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Your satisfaction is one hundred percent guaranteed or they'll make it right either by reprinting her order or offering a refund vistaprint wants you to be able to own win the now in any situation which is why our listeners will get five hundred high quality custom business cards starting at nine. Just go to vistaprint dot com slash clash undisclosed. That's vistaprint dot com slash undisclosed vistaprint dot com slash undisclosed <music> so here's the thing and it's again. It's kind of like a squishy thing that's difficult. He's got to get a handle on but you can argue in closing what wasn't evidence or reasonable inferences therefrom right but you can't argue facts not in evidence so when you're raising this issue that's sort of what the heart of the matter is. Is this a reasonable inference or or is this something that was sort of you. Know pulled out of coal class right <hes> so for example there was a case conviction actually that lynne stewart ruled on that went up to the quarter special appeals twice where in closing argument there was like a reference to statement reference in baltimore city to like you understand why people don't come forward in cases like this <hes> something about the stop snitching culture and even though there was no specific evidence of witness intimidation in this case the jury never heard anything the court of special appeals ruled that that was common knowledge in baltimore <hes> that there are reasons why witnesses might not want to come forward and therefore that was a permissible argument over defense objection that's insane but then there was another case about facts not in evidence case jones v states needs which came out in two thousand fourteen where it was a murder and it came down to whether or not he he like held up a white charger and there was some something oddly turned on whether or not the guy like charts cell phone in the victim's games card inclosing. He holds it up. We all know this is an iphone charger. Mr jones objected any argued that argument relied on facts not in evidence the fact that the charger in the photo was it charter compatible only iphones because there was no testimony as to what kind of phone charger it was state concedes. There was no testimony to the type of charger charger but counters that you're applying common knowledge could reasonably conclude the white cord was an iphone charger. We hold under these circumstances. There was no testimony one way or the other about the charger and the case turn so heavily on credibility prosecutors are going on facts not in evidence with improper ear was not harmless. The issue in jones versus state date reminded me of prosecutor side dell's use of visual aids during closing arguments especially keats clothing but i remember the store surveillance wants video around the corner from pinnacle race track which detective mark vini always said had no evidentiary value the video the defense didn't see until the very end of the third the trial which shows kevin jones walking to work followed by a man who pulls a mask over his face as expected the video was central to the state's case this time around because of course now they're arguing. The man in the video following jones is keith davis junior mm-hmm. The jury was shown the video during trial and even her testimony from f._b._i. Height expert about the supposed height of the masked man five nine give or take an inch and a half but during closing arguments sidell showed the jury something new a powerpoint presentation which according to the defense's motion for new trial l. quote manipulated and altered that footage the prosecution edited photographs in evidence denying the defendant the right to a fair fair trial in state v walker two thousand fifteen the supreme court of washington reversed a defendant's conviction where the prosecution edited photographs that had submitted as evidence then presented those photographs to the jury for the first time in a powerpoint presentation during closing in this case the same is is true. The prosecutor edited several photos and at least one video during its closing argument and presented those edited photographs to the jury through a powerpoint and the state did not show the photographs to anyone in advance and to this day has refused to admit the powerpoint into the record for pellet review stating rather absurdly that the powerpoint presented to the jury was work product. The photos in the states powerpoint were highly edited some photos appear with graphics some have circles highlights and portions taken out and superimposed on other photos. Some have green and red graphics placed on top of them. Some are cut out from one picture and superimposed on others argument that the photos were already in evidence which this court accepted has been flatly rejected and other other jurisdictions in walker. The state argued that the edited photos were already in evidence. The court said that the quote problem is that the state altered the photo so the underlying photo may have been evidence but the fact that the prosecutor altered the photo to emphasize the prosecutors opinion was improper quote to be sure altering evidence on powerpoint slides constitute misconduct and further in state b walker. The court explained just as defense counsel argued in this case quote quote. The use of the altered photograph was the equivalent of introducing uneducated evidence here. The prosecutor altered numerous photos and then in an act back to shield appellate review refused to enter those photos into evidence. This conduct is agreed in and of itself and violates mister davis's right to a fair trial trial and to effective assistance council it further interferes with the special duties a prosecutors under rule three point eight and the duty of candor. The use of visual usual age should be closely monitored because the human mind is particularly persuaded by rapid visual images <music>. This particular issue seems like it could go a couple of different ways depending on whether judge cox forces the state to put the powerpoint on the record while the jury didn't have access to the powerpoint during deliberations it was projected on a massive video screen in the courtroom for much of the state's closing and referred to over over and over again. The significance of this demonstration cannot be understated especially when combined with the state's other props keith's jeans and nike sneakers inside els commentary struck and sack and i as particularly egregious and misleading. You're zach reading some sidell argument. What's important about these. Is there designer designer jeans if they were just regular jeans. I'm not sure they'd have any significance. Everybody has jeans right but these are designer jeans and they have some intentional damage <hes> to them like right about here here here probably here. Maybe even this one but they have some unintentional damage to so i had that i was like first. Thing i said to myself was was. How do you know these things right. You're not an expert in garments. You're not a taylor fabric guy not a clothing buyer. What are you talking about number one number two again. These things didn't come up in trial like there was no expert who testified to the nature nature of the gene so i'd say just look similar right yeah they've got to sort of faded wash <hes> and they have some like some distressing like some homework and so when i'm reading what he's saying and you know again. I don't know if this is gonna be something. That's going to a judge. Hopefully it is because what you're doing doing is you're essentially using the james to put keys at the same so when you're saying they're designer. You provided zero testimonial evidence anything anything to suggest that you don't even know what brand they are. Gonna tell you something they are aeropostal. They are rand soul like tween <music> in malls like and they are faded jeans like they're not they all like euler geez in nineteen forty four so clearly if they're not designer jeans number one number two. How do you know what constitutes intentional with an unintentional my conversation with erica. I like insiders commentary about the unique characteristics of the jeans and shoes to the prosecutor in jones v state who essentially told the jury that only iphones us white phone chargers so that is actually really interesting because he offering testimony and suggesting that these particular that's interesting <hes> all but he he he honestly i think that <hes> one of he's obsessed with two we spent a lot of time talking about it because the way that he does it he almost because he's saying things things that are not true and i don't have to be true like so many things that are not true about the reality of of what those genes are how why they are totally regular allergic teams in the context of two thousand fifteen park heights how those shoes makes them so unique and he said but these were gray new balance <hes> he knew that seem like oh. That would be that yeah. Those shoes actually did my best version of the equivalent pre talking about fairly certain we know what species were okay there <hes> nike agree to phone posits or do they penny hardaway's and they're a the most possibly the most popular nike sort of sneaker style so much so that i i had an i have an entire folder of pictures of people within kevin junkers circle of friends and acquaintances who have those exact exact same food in a variety of different colors these shoes those are basically the two thousand fifteen version in part of the grain new balance genes or not designer first of all the there was new testimony to whether whether or not those were designer versus quote unquote regular. I don't know where he buys. She's trump so offended by it on so many levels but with interesting interesting is an argument that these particular this particular characteristic is intentional distress press <hes> is to me. It sounds like expert testimony arguing even that that these are designer genes it seems like something sort of beyond the evidence that the jury heard and the idea that some characteristic of the genes is intentional versus. Is you know accidental or comes through normal wear and tear. I think would bear on how unique they are right so it i mean in some ways it would seem like unintentional distressing on genes that mashes would be more suggestive of uniqueness right then benintendi. Maybe we can go to the same store and buy right here jeans and they're going to have you know <hes> cares phrase in the same spots but unintentional national would seem more unique but either way it seems like the argument he's making certain march attention on certain marks are unintentional and he's actually holding it up and pointing to the different one. This one is intentional versus this general. He's he's bad for taking yeah thin air. That's that's troubling when this is relevant to identification and this video is the only evidence. It's that sort of directly with link the defendant to the victim in real time. It seems like a critical piece. The attorneys on both sides have a lot more freedom with how they used their words during closing arguments and in general objections are not customary. Some jurors even think it's rude at the same time. Attorneys must object if opposing counsel says something that needs to be preserved for pellet review as you might expect there were a lot of objections from both sides during closing arguments at keith's trial and none of them were sustained by judge cox deborah levy keith keith's defense attorney objected over a dozen times by my count more than twice as many times as prosecutor sidell but then again her closing argument wasn't a parade of lies is and misrepresentations at several points cox refused levi's request to approach the bench to state her specific objection into the record he overruled usually stating stating this is argument not evidence which allowed sidell to continue introducing many more facts not in evidence unreasonable inferences and misrepresentations -tations than have been discussed in this episode especially frustrating to me was the distinct difference in his response to side els objections during levi's these defense closing he overruled those well he also warned her though to stay within the evidence on three occasions and in each instance she was well within the bounds of what was already on the record. Judge cox never gave patrick sidell the same warning on appeal. You could certainly sort of put the court action or inaction in context and say given the courts response to the states objections versus its response to defense objections that that very well could have left the jurors with the impression that you know. There was nothing wrong with what the state was doing. I mean particularly 'cause he overruled objections. If the state is getting the message like they keep saying shit that's not in evidence and he's ruling objection. The never scolding them was he overruling state suggestions but still making remarks remarks. Is that what okay i mean i think that's i think that is something that would be relevant to the courts consideration to point that out that even though he's overruling in each event had that his responses are different yeah i think you could argue with that is creating particular impression with the jury despite the actual ruling that the way in which he rules calls giving the jury particular a particular impression about the objections yeah searched the entire closing for the word stay within pierce. Three times always talks to levy. <hes> you know sidell. Jack's cockpits objections noted stay within the evidence but this is merely argument not evident next time it happens. Your objection is no. It's overruled staples in the evidence misleading third time. Stay within the evidence miss levy. He doesn't even overly objection time and that was the one that was about cold hard goddamn fat yeah. That's interesting okay so the times where he does say that to her <hes> actually every time he does that. It's about things that are in evidence. I my cursory look at it. Nothing is jumping out at me like why she pulled out ah but because i know that there's like anything she wants treaded into territory and it was only sort of hit back at something that site doing exact same thing it was one time otherwise she stayed within the evidence and i mean i'm gonna write him a letter tom. I think about you want to write a letter cox mixed. It's not fair like everything about it crazy to me. I can't be used to this like this teacher going to for based on an entire closing argument that is fabricated. The chances are so slim. I am baffled because i don't know what to say like i can't like hey would i can't look at this stuff and like i can do so much of it as being like okay i can see how bad eh like you separate it from that but we're talking about the last day of trial the time there was no pain the most attention and and they're being walloped in the face with stuff that i noticed he's better than anybody. I don't need to go back and check things like i can read it and tell you exactly what the while it's true and like i can't find any truth and like knowing that cumulatively the thing that is literally one presentation presentation. It's not over the course of days. It is the last thing they hear that to me and the chance of even all of that might not work cumulatively humidity killer of me with l. I mean like i get the system sometimes work but it can did not work when this is okay like it just can't this is not this is not reality and i don't understand how anybody who i don't understand how a judge impede even the tiniest shred attention during that trial could read those closing arguments and not i don't see how long it is so long that he would set up a grown ass man who has spent his career. We're in law and professors to you know or seemingly believes deeply in the system that he is part boorda's could read that closing argument and sleep at night thinking that's okay and that is that is that is fine for keys to spend the rest basically the rest of his life in prison for that on a closing. She has the opportunity. You can remedies now. Just do it over real evidence there. Let's go back to trial now. You know i wanna understand. I guess like if he's going to do that if he's gonna hope that he writes a long little. I know i've heard already from like it's you know these lawyers and judges talk started despite it apparently he's not gonna touch it does is the court of appeal or special appeals deal with it. That's the point the quite you in this position. Walk into that courtroom wearing a robe and everybody's scans up for you like. I just think that so disrespectful. I can't wrap my bringing around. I want to be able to understand. I don't think that you can keep their people out there. That could kick. He even explain it to me because i think he feels like he has a particular job and the jury heard the evidence. He's not the one who decided his guilt or innocence right. It was a jury and his his job was to call balls and strikes. I gave them room to present their cases. I let them do their thing. I wasn't overly restrictive. He feels like he did his job. Well enough. It's the jury and and the attorneys um. I think it just generally speaking any motion for new trial. The odds are low that a trial court looking over its own really is going to grant inch emotion for new trial. It's not impossible but it's just it is rare so i think the better opportunities probably on direct appeal <hes> <hes> in terms of improper closing argument <hes> one of the factors that that court of special appeals are uh reviewing court is going to consider is the severity of the remarks cumulatively so going back to what we were talking about before when they look at improper closing argument assuming the remark mark was improper and determining whether or not that error warrants reversal. They're gonna look at the weight of the evidence against the accused which in this case. I don't think that the evidence was overwhelming. <hes> second they're gonna look at the severity of the remarks cumulatively so they are going to look at all of these remarks and the more remarks there are the frequency and the severity of those remarks <hes> assuming that there's many of them is going to cut in in favor of reversal and then they're gonna look at any measures taken to <hes> tyranny potential prejudice so for example it was interesting when there was an objection to the state burden shifting and the court overruled the objection but said don't shift thinks thanks which was sort of in formal instruction <hes> i mean he was he was i think putting the state on notice that he was aware and sort advising him to tread lightly in the state like directly responded. I'm very careful with my words your honor. That's so that was interesting because i i don't think in that instance there was no cautionary instruction to the jury i mean there's the general jury instruction that the state has the burden but in response to to that remark there was no instruction to the jury so whatever step the court takes too if there is an error <hes> to correct that error when there's this escape taking like the jury's giving some cautionary instruction that is that because in favor of of not reversing but if there was no sort of corrective action taken dot com favor reversing for what it's worth by overruling all of the defense objections judge cox offered no corrective of actions for the agreed errors raised in the defense's motion for new trial that at the very least would further bolster keith's chances of a reversal at the appellate stage if judge cox decides to punt the ball as i mentioned earlier the hearing on the motion for new trial will likely occur on november fourteenth gene at nine thirty a. M. judge sylvester cox's courtroom at the clarence mitchell courthouse in baltimore. It'll be open to the public so if you're in the area help us pack that room another way to offer your support is to make a monetary donation to the keith davis junior online fundraiser which goes towards his legal fees commissary commissary and helps to support his family they continue to endure the financial and emotional strain of having a loved one ram fleeing are serrated. You can find that fundraiser at at f. u. N. d. r. a. z. Are dot com backslash free keith davis junior all one work. Thank you so much for your support. <music> uh-huh uh-huh <music> and heads up a new season of undisclosed starts on september ninth and we'll be focused on a case down in tennessee make sure to tune in thanks so much to arabia susan and colin for continuing to uplift keith davis juniors name much appreciation to missile towel hand for being literally the best executive producer ever thank you so much to audio producer the la-z-boy and hana mccarthy for all your work this season special thank you to zach's waigel and erica suitor for their amazing contributions chance to this episode and to kelly davis and teen keith for being the best shout out to all of undisclosed bouncers continuing to support the show and thank you as always to all the listeners keep coming back week after week last but not least free keith davis junior free odds and free mall <music> <music> <music> <music> <music> <music> <music> <music> were resting podcast. There is a sharp stover with great interviews at dallas snoozing in me back coup on total engagement good podcast by formed listened.