What Your Lawyer Won't Tell You — 30 Years of Courtroom Secrets

Moore To Consider: Welcome to another edition of More to Consider. I have on what I now consider an old friend, James Profito. He is an attorney. Like I'm an attorney, only he actually did it. Like I passed the bar, played around, coached and taught and things like that. This gentleman is a former prosecutor. He's certified by the Supreme Court of New Jersey. He was first certified ⁓ as a criminal trial attorney back in 1995. So he's been doing this 30 plus years. He wrote a book a few years back here called Unequal Justice. He's done commentary on CNN, Court TV, other media outlets. ⁓ he's a good guy. He's just a very interesting guy. And when we did our first show about a year ago, we just kind of told war stories. I spent some time in the courtroom and I worked as a prosecutor as well. And people that watch a lot of court TV, they watch different things that they find interesting, interest in for whatever reason when it comes to criminal justice. They have a view of watching law and order and they kind of think that's what really happens. Then if you go to court, you see an entirely different world. And you do see things in the news. It's kind of like, well, that seems like an injustice. How did that happen? Or why does it seem like the poor get some type of verdict and the rich get a different verdict and that type of thing? Sir, how are you today?

James M. Porfido, Esq.: I'm doing great. Thank you again for having me on. I look forward to it.

Moore To Consider: Yes, sir. So we had a great time last time. And again, I don't know that everybody's totally in the dark. They watch whatever news sources they watch. There certainly is, and you know this ⁓ as being an attorney, we've watched movies through the years and there's things that happen and you go, you can't say that, or you can't ask that question, or you can't say that to the jury. Although I think you'd agree with me. I think a lot of laws law schools actually use my cousin Vinny. That was actually pretty well done.

James M. Porfido, Esq.: That's exactly right. I actually just read an article about the use of that in law schools as a teaching tool as to you know, how to try a case, how to litigate a case in in uncharted waters, let's say.

Moore To Consider: Yeah. Yeah. Well, and there's certain techniques too. Now, of course, ⁓ you know, Joe Pesci, actor, funny guy. Marissa Tomei will always see the love of my life. I just think she's fun fantastic. And she won an Academy Award for that for that motion picture. But there are techniques that where he has the one ⁓ witness for the prosecution and he does the moving away, moving away across the jury. So now the jury hears his voice from just to their right, and they're they're they're honed in on the guy. The guy gives the response that is best for the defense. And he does, I'm sorry, I'm sorry, I was all the way over here. Could you say that again? So he puts emphasis on it. And of course, those are the kind of things that a judge might yell at you, but you know, you'll give you a little bit of grief over. But it's a technique. You kind of move across the jury, you have the jury looking across the, you know, at this ⁓ person testifying and hearing your voice. And then you do the I'm sorry, could you say that again? So it's pretty dramatic, but those are good techniques that are actually used in court.

James M. Porfido, Esq.: There's a lot of theatrics, I think, and good trial technique and trial work. ⁓ I think it involves connecting with the jury on a different level. And I I think it's just an innate ability and and some attorneys have it and some don't. And I I do think that's that's like a an extra power to connect with a jury on that level, to be able to communicate with them and And kind of, you know, relate to them in that way so they can say, Hey, we get we get this, we understand this. ⁓ this attorney's one of us and we can we can follow this.

Moore To Consider: You know, I get it. And I I think that we all have some want to be an actor to want to go into a field like that. That we all have an image of us playing, you know, we're Perry Mason or something growing up, whatever those things are. But what does scare me is I remember a prosecutor when I was working at a prosecutor's office, pretty dynamic figure. And one of my friends in the victim witness team's like, I don't care what she brought on a trial, I'd always think she was right. I'm like, Well, so back to my cousin Vinny.

James M. Porfido, Esq.: Yeah.

Moore To Consider: They in fact did not do the murder. They did not do the arm robbery murder. They they didn't do it. So in the end, justices served. They find that the other guys in the other vehicle did it. But if, you know, Pesci, you know, or or my cousin Vinny in that situation gets two murderers off because he's, you know, he connects to the jury. That's something we kind of hope that is not just the personalities of the attorneys or any other players in the courtroom trial that. That sways people enough that they missed the evidence. You know what I mean? So it's it's a

James M. Porfido, Esq.: Yeah, there was there's so much to unpackage in that in that movie. ⁓ you know, his being an out of towner and didn't speak the way that they spoke and ⁓ you know, didn't dress the way they dressed, and certainly the prosecutor was the local guy and the local hero. And the judge certainly, you know, recognized that. It was like there was a lot baked into that movie. It was really well done, I have to say. And it it really you could take a lot from that movie.

Moore To Consider: Yeah. Right. It was Yeah, and that dynamic. Now, I grew up in a rural area between Richmond, Virginia and Fredericksburg, Virginia, about 70 miles from DC. And my sister worked for years in the court system. And she said, I know for a fact that Richmond's 40 miles away. There were Richmond attorneys that would can the Rolex and they would put the khakis on and the blue blazer with the gold buttons. They could be wearing a twenty five hundred dollar suit, but when they came to that court, she knew for a fact they would dress down. Because she said she saw that when some of the guys dressed up, or guys and gals, if attorneys kind of dressed up, there was this, ⁓ you think you're better than us? You gotta come in here with that watch. And you know, and so the ones that were more seasoned understood that. So when they went to certain courthouses, they went to Green Acres or something, they, you know, they handled it different. And it you now, it would be a disservice to your client. If you're in a rural area and the farmers there don't particularly like to see you out dress them or up, you know, show them up and you're like, I don't care. I'm gonna wear my twenty five hundred dollar suit and wear the Rolex. If you do that, that might be to the deser disservice of your client. So you have to you have to take that you have to take that into equation as well. So since

James M. Porfido, Esq.: Absolutely. I I can relate to that a hundred percent. I mean, I I prosecuted a case many, many years ago and ⁓ it involved ⁓ a nanny who had stolen a lot of property from this wealthy family. And ⁓ basically the police weren't able to track her down, so they they hired a private investigator. They were able to locate her ⁓ in an apartment in Manhattan and ⁓ she came back, she was

Moore To Consider: Mm-hmm. Well.

James M. Porfido, Esq.: It's a really ⁓ the case could could be a book in and of itself. ⁓ she was incarcerated for about seven months, waiting to go to trial. And ultimately we went to trial and her defense was that these gifts, quote unquote gifts, they were not stolen. They were gifts given to me for sexual favors. And getting to your point though, the the ⁓ victims in this case, and I was prosecuting, I said, you gotta tone down the dress.

Moore To Consider: ⁓ my.

James M. Porfido, Esq.: You gotta not wear the Rolex watches, you know, and unfortunately they did not listen and it didn't go very well. The jury could not relate to somebody wearing a ⁓ you know, a canali suit or a pausoleri suit or ⁓ wearing a Rolex watch or the wife wearing a Scada. You know, that that just was like foreign to them. And they were like, Why are these people here? They're they're they're greedy. They they just want this poor woman to get prosecuted and it was

Moore To Consider: Right. Yeah. No question.

James M. Porfido, Esq.: And she was clearly guilty, there was no question, but the jury just disregarded everything. The law, it was kind of like a jury nullification case.

Moore To Consider: Well in you know, in your experience I'm gonna ask you the question percentage, but I think we I think I told this exact same story. I'm sure I did the first time, but for the listeners of the second show I don't want to be disparaging the juries, and I know you certainly don't want to, but there are some times that you're kind of like, wow, you know, I can't believe that people said or think what they do. So there was a young lady in an office where I was a prosecutor, and I wouldn't say she was exactly a dynamic figure in court. Sweetheart, nice lady. You know, she was thorough, but she she wasn't somebody that's gonna be jumping up and down in the court in the courtroom. She wasn't the theatrics weren't her. So We're all sitting around the break room one day and she goes, Yeah, I just came back from a case in another jurisdiction. They they were conflicted out, so I went over as a special prosecutor. And that a case really bothers me. And we were like, What happened? She's like, Well, it must have been a rape case. It was some type of felony sexual assault because it involved male, female in a question of consent. And she said, I thought the facts were a little bit thin, but I didn't have an ethical problem with bringing it. I'm prosecuting the guy. The guy gets convicted max time by the jury. Whatever was available, they maxed him out. So she said, you know, in that type of I can go out and meet the jury members as they're leaving. Long as I don't harass them, I can ask questions. So I'm like, I'm in the hallway and some of them are coming out. And I said, What can I do better? Critique me. Please tell me what you saw. And he goes, She said, the first woman said, ⁓ that defense attorney wore that shade of ⁓ fingernail polish. And she wore that belt with those shoes. Uh-uh. We ain't having that in my, you know, it was like, whoa. So they tear into his female defense attorney. They don't once mention any of the facts of the case. And they convicted him with max time. And she's like, I'm pretty shook up by this because I thought that I had there was probable cause. I thought there was enough to go forward, but I didn't think. She goes, I thought acquittal might very well be likely because it's kind of he said, she said, it's that nature of case. And they come back and max time him. And then all I hear is I don't like the defense attorney. Brother, that's that's pretty scary, right? And but I'm I'm I wasn't totally shocked by that. I wasn't totally shocked that but the people can play with people's lives and potentially can, you know, give them max time and all this.

James M. Porfido, Esq.: Crazy, right? It is scary.

Moore To Consider: Because they don't like the attorney. So that whole thing about the attorney and swaying juries is a real thing. Either way, and it could go sideways as well. So what it

James M. Porfido, Esq.: Most definitely. Most definitely. And and you think about it, they're sitting listening to a case and they're examining the attorneys, their their mannerisms, their gestures, their speech, the way they walk, the way they look, the way they talk, the way they dress, you know, what are they wearing? You know, and they're evaluating all of that, and you just don't even know it.

Moore To Consider: No. And but like I said, I I think that we're trained legally. We've gone through three years of law school, bar reviews and the rest, and then we go in and take the bar, whatever all that means, and then we get immersed in this whole culture. And we all s you know, we're all we're going to have a certain amount of interest in that long before we go to law school. But that average person on the street who ends up in a jury, they have all types and and I'll tell you another one that I worked as a Attorney in a law firm when I first got started doing personal injury. And I go in with this young lady, and we were in a, we were in a city. We were in a city, and it was a potential jury trial, you know, in a car accident. ⁓ and it was pretty clear they they made an offer. The insurance company makes an offer, and generally I was told the only ones that are going to go to court are the high dollar cases or where liability is really in question. Because when liability is not in question, there's a whole formula. You know, if you've ever practiced in that. The insurance company always comes in based upon the medicals. They're going to come in with a certain type of offer, and it's pretty much gonna nail it. You what the, you know what the formula is. But in this case, the lady was very beautiful woman, very well dressed. I knew her husband well. He comes in all dressed up. Now, this might have been a problem with my colleague who was handling the case to not have addressed this before. But we're in this urban environment. And she said, if you go out dressed like you're dressed, and that jury from this city sees that little girl on the other side, they don't know in Virginia you have to hide the insurance factor. They don't know that the insurance could pay for these damages. They just think she's out there sitting alone and they're gonna say, Uh-huh, you got yours. You don't need to be taken from that poor little girl that's poor. So you better take the ⁓ offer that the insurance company made. She goes, Well, I don't think it's fair. I don't think it's enough. And the husband, he got it. He looks and he says, I think the attorney's right. I get what I get what she's saying. The jury's not gonna like you. Now, again, that might have been poor prep because we show up for court and she's dressed in the Sunday best. I mean, she is putting it on. And she's a good looking woman, you know, she's a middle aged woman and the husband was dressed well. Then she breaks down. You better go ahead and take the offer they've given it. Let's not go to trial, because that jury's not gonna be. They're not going to be very happy to see you get a judgment based upon she has nothing. So I think those are real things. Now, again, how eth how ethical is it to tell them, like, you know, put on overalls and this kind of thing, you know, ⁓ or, you know, have a straw hat, you know, and make it look like you're something you're not. But clearly she had dressed probably beyond getting a ⁓ a jury to really side with her.

James M. Porfido, Esq.: ⁓ for sure.

Moore To Consider: I hate that all these dynamics come in because you 'cause we know we're kinda like, let's let's prove the facts, let's prove the evidence. And sometimes none of that

James M. Porfido, Esq.: It's not that simple. There's a lot of factors. There's a lot of variables. And and you're so right, because, you know, doing defense work, as long as I've been doing it, you know, you can evaluate a client and you could see whether or not they're going to make a good impression on a jury or not, the way they talk or the way they answer a question. And you can you can kind of gauge, hey, that's just they're not gonna like this person. You know, they're they they wanna tell a story and they don't want to answer the question, you know. So, you know.

Moore To Consider: Right.

James M. Porfido, Esq.: Someone like that you don't wanna put on the stand and and and as much as they might want to go to trial and tell their story, you're you're trying to as your role as an attorney is to say, I don't think that's a good idea. I think this is a situation where, you know, the evidence is pretty compelling and we need to make a deal, you know, and ⁓ you're not gonna help yourself if you you wanna tell that story.

Moore To Consider: Yeah, and I think that you know, growing up my dad was in law enforcement, military law enforcement, my grandfather was law enforcement. I always thought, yeah, I want to be a prosecutor. And then and I again I wasn't doing high profile cases for defense, but I never had a problem with it because I think the way like I used to have friends that were friends outside of law, like, do you ever think that your clients guilty? And I'm like, Yeah, every time. Like I'm there there's never a client that walks through the door. I don't think, you know, they brought had probable cause, they arrested them, you know. Most likely they did this or something. So your mind goes to can they prove it or what is there for mitigation? And

James M. Porfido, Esq.: Well, that's a good point. It's really a good point because people would ask me, How do you how do you represent someone that is guilty of something so horrible? And I'd say, Well, that's just the point. They're not guilty until and unless they're proven to be guilty. And and I never asked a client. I would never say, Hey, did you do it? It wasn't my job to know and and and and maybe I put blinders on to some extent, but my focus was on representing them.

Moore To Consider: Right. Exactly. Right. Exactly.

James M. Porfido, Esq.: under the law and that is the protections that are afforded to them under the constitution and making sure they have good legal counsel, adequate legal counsel to fight their case and to attack the evidence on some level or to critique the evidence, whether it was properly obtained or not, whether it should be suppressed. whether it comes in as evidence or not. And and that was my job and I looked at it that way. And it I think it helped me to do my job better, quite frankly, because it didn't take away the passion that I had. Like if I knew somebody did something, I might not say have that same feeling about going to court and fighting for them.

Moore To Consider: Well, like I said, again, I'm not doing the level of cases, but I I had this case one time in a city and that had a very arrogant group of cops. They did they just were. And I I kind of knew that. And I have this guy who's about six, six. He's this big tall guy. He's got a prior DUI X number of years ago. And with a point two ⁓ Virginia being ⁓ eight legal limit, he rear ends the vehicle. So it's an accident case. He gets out keys in the pocket when the cop shows up. So it's a sergeant with this city police department. So I told him, I said, you know, it it doesn't look good. You rear ended a car, you're on the scene, blah, blah, blah. So it doesn't look good. So it's probably gonna be a, let me feel it out. Maybe we'll just plead no contest and throw you at the mercy kind of thing. But I get there and I see the sergeant. And I said, May I speak to your witnesses? He goes, I ain't got no witnesses. I got this cover. I I don't need anyone. I'm like, All right, okay, fine. I went back and said, We're gonna plead not guilty. He goes, Okay. And he's just kind of eyes, like, I don't know. So then the guy goes, dispatch called him. I said, objection to whatever dispatch told him. And the the the judge was like, Sergeant, ⁓ you have to tell us what so he gets there. He's got a guy walking around the car by his own observation, not in operation, with the keys in his pocket. And the woman that could have been there, the driver in front that could have gotten the rear end, who could have been there to testify about the rear end collision, he didn't subpoena. He didn't subpoena anybody. So at every turn, well, I you know, I ⁓ ascertain this objection to what you ascertained based upon the statements of others. Over, over, over. Finally the judge looks at me and goes, Sergeant, there's not much more you can do. So I say that story to say he dismisses it. The guy has no idea what's going on. We're walking out. He goes, What you just tapped? I said, just keep walking. So we get out in the hallway. I said, not guilty, you can walk. They're not going to appeal. I said, they can't appeal it. I said, double jeopardy, you're out. And and I just say that story. I went in there thinking there's no possible way they lose, but the arrogant sergeant was like, I don't need witnesses, I don't need other evidence, I'm gonna wing this. And in some of the courtrooms in that city, he probably would have gotten away with it. Now, I I say that story to say too, do I think the world's a better place because I got a guy that blew a 2-0 that rear-ented a vehicle off on a DUI? No, but the state had a job to do and he didn't do it. He didn't come prepared to do it. So I can't sit back and go, well, justice would be served if I just kind of sit there and hide the ball or I hide the information from my client and let him get prosecuted or convicted. So I called the guy on all of his stuff, and plus he was arrogant in the hallway with, I don't need any extra evidence. I was like, okay, fine. If you don't think you need anything else, let's go. Let's roll it. So it didn't make me, I didn't have warm and fuzzies when the day was over, but the guy was a nice enough guy. He's got a drinking problem. I think he was drunk that day he showed up. I mean, I think he just had a drinking problem. But I I just separated myself from all that stuff. I just said I got one job to do and do the best I can to defend this guy. And if I can take apart the evidence, you know, or whatever those particular situations are. I know you feel the same way. So let me ask you this. In the last year since ⁓ we last met, what have you what else have you been doing? Where's ⁓ where's your book on equal justice and other things taking you in the last year?

James M. Porfido, Esq.: Well it's it's kind of really taken off in terms of ⁓ advancing me, I'd say. The book has really become a a calling card or or something that brings attention to me about being a an expert. And and I was hired by a TV station in North Dakota. We're covering a case. We're doing a mini series right now called Injustice. It's Beck TV in North Dakota. And it's involving a homicide case involving two law enforcement officers.

Moore To Consider: Mm-hmm.

James M. Porfido, Esq.: One who shot the other and tried to kill his fiancee. And there's a lot of mystery surrounding this case because they worked at a nuclear facility, ⁓ that was a federal nuclear facility in ⁓ Dunseath is the name of the facility. It's in Minot, North Carolina ⁓ North Dakota. And it's a really a fascinating case on many levels because we've been talking about really the role of the prosecution and the defense, and I'm able to to articulate that and critique the performance. And there have been so many things that have been done wrong by the prosecutor in that case. And the case is ⁓ North Dakota versus Brejo, which is I I think it's scheduled to go to trial, but I think there's going to be a lot of delays. They're just inherent procedural delays because of rulings and things like that. But I've been doing commentary on that case. We're on our third episode. And I've been speaking ⁓ at

Moore To Consider: Mm-hmm.

James M. Porfido, Esq.: Seton Hall at my old university and I certainly am teaching at the law school. So I'm keeping pretty busy. And ⁓ the book has like turned a a different chapter, I'll say. ⁓ it's it's opened up some other doors along the way. So I'm I'm I'm pleased about that. And ⁓ it is selling, you know, I'm getting sales on the book, but like my wife would say, you're never gonna sell a million copies. Who knows?

Moore To Consider: No, you don't you don't. Well, ⁓ something else though I wanted to ask you about you also having that role as a prosecutor. I was in an office when I was interning and just stuff hits me sometimes and I'll never forget. I remember exactly where I was standing, the angle of the light, it was thirty years ago. And this young lady was talking to another prosecutor. She was a new prosecutor, and she said, I think the evidence is kind of thin in my case, but I don't have a problem prosecuting. 'Cause if he didn't do this, he probably did something else anyway. Wow. Like, you know.

James M. Porfido, Esq.: Yeah. Well that's justification for doing your job. You know, it certainly ⁓ you know, you don't have to do a lot of thinking if you have that kind of mentality.

Moore To Consider: Well, also the other part that hits me is it becomes, and I saw it with a lot of cops. I I hate to say it, but I saw with a lot of police officers. There's us, the thin blue line, then there's those others, you know. So what she was saying was she was othering that person, like, ⁓ he's a bad guy. If he didn't do this, he probably probably did something else. I'm like, wow. And I found a lot of the best defense attorneys I met, and I know you probably feel the same way, were former prosecutors with a certain different kind of mindset.

James M. Porfido, Esq.: Mm.

Moore To Consider: It's not to say I'm virtuous or whatever, but I was kinda like, whatever. If if if people were found not guilty when I was prosecutor, I mean sometimes I screwed up, but you know, but I was kinda like, okay, maybe justice was served. I I didn't carry a personal, ⁓ my gosh, the world's gonna end because this guy didn't get prosecuted or convicted. Because sometimes the evidence was thin, you know, it just it is what it is. More often the Yeah. More often was the problem of victim.

James M. Porfido, Esq.: ⁓ I agree. I agree. And and honestly, I I think that, you know, police officers are are difficult ⁓ in a lot of circumstances. I mean, being a prosecutor, they're they're on your side and they're testifying on behalf of the state and presenting evidence or, you know, admitting evidence that they they seized at the scene or perhaps a confession that was taken and and to you know if the individual is properly mirandized. But I can tell you through the years I've represented a lot of police officers who were charged criminally or were under investigation criminally. And they're they don't like to be charged criminally. They're you know when when they have to be put in a different situation, it's very different. And I I often had to remind ⁓

Moore To Consider: Mm-hmm. Yeah.

James M. Porfido, Esq.: Officers, when I got involved in a case in the investigation stage and someone came to to hire you to represent them and ⁓ you would call the police and they'd say, Well, why why are you calling me? If they're innocent, why do they have an attorney? W why do they why do you need to be involved? If if they didn't do anything, why don't they just come in and talk to us? And I'd say, well, because you and I know how that's gonna go. And you would be the first person to be calling an attorney if this were you or your loved one.

Moore To Consider: God, yeah. Yes. Yeah.

James M. Porfido, Esq.: You would not be allowing police to investigate by just going in there to give a statement because no matter what you say, it's not going to work in your favor. And, you know, it it took a lot of doing over the years and to communicate that on some level to them to say, hey, I get it. I understand. I know. And I'm not going to put my client in that situation. And and maybe I made some enemies along the way, but I felt like I I had a job to do and it wasn't to to be

Moore To Consider: Well yeah

James M. Porfido, Esq.: ⁓ friends with all the police officers, as much as I am friends with many police officers.

Moore To Consider: No, no, and that that was a pro Yeah, and so was I, but that that was a big problem I saw in offices. I even saw prosecutors jump in cars at night and go around and play like, you know, roll around with the cops because they wanted to see themselves playing like they were on TV. And sometimes they would compromise themselves by doing that. But ⁓ yeah, that that whole thing of you know how the police well, you you may be familiar with this. ⁓ Dr. James Duane was one of my professors in law school. He's a Harvard graduate, he's a brilliant guy. He did a video that went viral. I think everybody in the country at some point has probably seen this. It was on why you never speak to the police, why you should never talk to the police. And he had a Virginia Beach, it was in Virginia Beach, Virginia, he had a Virginia Beach police officer on to do 30 minutes of rebuttal after he did his. It's all on YouTube. You can watch it. And he asked a guy. He said, Have you ever taken someone in in for an interview and they talked themselves out of the problem they were in and he laughed because no. All they do is ever ever do is ⁓ is dig a deeper ditch. And I've had friends call me and they said, hey, the cops said they just want to hit, don't talk to him. Well they're cop I said, don't talk to ⁓ There there's if they're asking to talk with you, they're gonna, you know, and I used to say, ask Martha Stewart. You know, Martha Stewart was being investigated. Now of course this was federal for supposed insider trading. And then they couldn't get her on that, but she said something just qu a little bit less than truthful, maybe in inadvertently, and they got her on being less than truthful to a federal agent. So that used to be the example I'd use in my criminal justice class. Had she never talked to an agent, they don't have a case. And they're trained in trying to get you to trip up and say the wrong thing so they have something else to get you on. So that that seems weird to people, especially as a former prosecutor and a dad in law. And my dad used to say that. I would never talk to a cop and he was a cop because you d you know, th there's always a little bit of something thereafter, and you're always gonna say just the wrong thing to open up a door or trapdoor to a real problem for yourself. So but you're but

James M. Porfido, Esq.: Absolutely. And yeah, and I was asked on a podcast not that long ago, like some parting thoughts or comments, and and it was, well, what what advice would you give to our listeners? And I said, one piece of advice I think that could apply to anyone, most of us, quite frankly, because that's our encounter with the police, is a roadside stop and You know, arguing with the police on the side of the road, you're not gonna win that argument. You're not gonna win your case on the side of the road. The officer has the control and the authority and the ability to just keep on writing these summonses and then you're gonna have to go to court and the deck's gonna be stacked against you, or it's gonna get terribly worse. It's gonna be a worse situation for you. don't argue with the police on the side of the road. That's not where your case is. Take your summons and move on. Get yourself a good lawyer. You know, arguing with the police on the side of the road, you're not gonna win that argument. You're not gonna win your case on the side of the road. The officer has the control and the authority and the ability to just keep on writing these summonses and then you're gonna have to go to court and the deck's gonna be stacked against you, or it's gonna get terribly worse. It's gonna be a worse situation for you. So don't don't argue with the police on the side of the road. That's not that's not where your case is. Take your summons and move on. Get yourself a good lawyer.

Moore To Consider: No. No. Mm-hmm. Mm-hmm.

James M. Porfido, Esq.: And then you hash it out in court. But you're never I've never heard of anybody winning an argument with a police officer on the side of the road and convincing them not to charge them with something they were going to be charged with. And then you hash it out in court. But you're never I've never heard of anybody winning an argument with a police officer on the side of the road and convincing them not to charge them with something they were going to be charged with. So, you know, it's just it's it's craziness. And ⁓ you know, you there's a lot to be learned from that. And I mean, I could take it one step further. I was reading ⁓ Blink by Malcolm Gadwell and and in that book

Moore To Consider: No. No. No.

James M. Porfido, Esq.: ⁓ there's really a training video I think every police officer should look at. And it's the Sara ⁓ Sandra Bland video. If you haven't seen it, you should take a look at it. It's on YouTube. And it's the encounter with this ⁓ Texas trooper, I believe it was Texas, and he pulled over this woman who had come from, I believe, maybe Baltimore. She was trying to reinvent herself and start her life over because she had a drug history and problems in Baltimore and

Moore To Consider: I will.

James M. Porfido, Esq.: was trying to really help herself and she had gotten a job at a local university in Texas and was pulled over and really was targeted by this police officer because she had out of state plates and it went terribly wrong. And it really is an instruction on what not to do. And this officer lied. The woman ended up being incarcerated and killed herself and ⁓ just in a holding cell ⁓ overnight.

Moore To Consider: ⁓ no.

James M. Porfido, Esq.: And ⁓ it was for something really crazy because there was a confrontation with the officer arguing about her picking up a cigarette and she was trying to calm her nerves and he was arguing with her about putting the cigarette out. It was disrespectful and he was talking to her, she had no right to do that. And one thing led to another, and before you know it, she was out of the car and and then she was arrested for resisting arrest and all kinds of things. And and it really is and then the trooper lied and said that every time he pulled over someone. He was able to find that they actually had committed these these big serious drug offenses and they were they were trafficking narcotics. Well, they looked at his his his records and they subpoenaed his his prior arrests and there was no such thing. And he ended up losing his job because he lied. And he was trying to justify his behavior and his conduct. And it really is instructional on human behavior, how to how to talk to people. You know, the that situation did not need to go the way it went. And if someone separated themselves from it and they just spoke like a human being rather than in in that position of authority, it would have been very, very different.

Moore To Consider: Well, that's a concern that I had. When I was doing the criminal justice class, I'm working at community college level, so we are definitely putting people into state police academies, we're putting people into local law enforcement training, that type of thing. And the gentleman that was the dean of my department called me one day and he said, ⁓ hey, I got something I heard that's a little bit disturbing. I had a father call who said his daughter was in the library. And she heard two young men say they were in the criminal justice program because they couldn't wait to be a cop with a badge and a gun one day and get back at the people that picked on him in high school. And I said, you know, I emphasize that a lot. I do talk a l a lot about what are your internal motivations. So when you bring up the story about a trooper pulling people.

James M. Porfido, Esq.: Hmm.

Moore To Consider: kind of manufacturing stories or he's playing himself in a movie. I remember there's a line from that in Departed, in the movie Departed, where ⁓ where Martin Sheen said that, you know, like we don't want to operate with cops and so in self-deception, but some guys think they are. They're playing themselves heroically in a movie in their mind. And maybe he's out there to catch every car. ⁓ out of state car, what what could this adventure be? Well that's not law enforcement. And and that's kind of a mentalist disorder. And then these things play out, and this woman's dead, and that's an horrific ⁓ situation. But that has always concerned me as I got to know young people that were considering law enforcement. Why do you want to be in law enforcement? That's a huge question. And it's a big and it's a big red flag sometimes because some of the ones I saw, you don't want to project too much into what you saw. But I used to see some kids, I'm like, they were clearly the ones that they made it pretty. that may be pretty obvious. They were picked on or things. Well, what better than to have a cape and a badge and, you know, you you can become your own superhero or something. If that's your motivation, you're gonna have trouble in the streets. You you you're gonna you're gonna struggle with some st

James M. Porfido, Esq.: Most definitely. Most definitely. And and you know, that's why many times and I think today it's almost ⁓ required that they go through psychological profiling and and and background to see what is the motivation to become a police officer. Why why is it that you want to do this job? Is it to protect and serve or is it b you have some personal interest in some bias or motivation to do this?

Moore To Consider: Yeah. Absolutely. Yes. Yeah, and that scares the hell out of me that somebody could be out there because of whatever baggage they're carrying from adolescence or whatever. And then it it hits the street. Now, again, I was heavily influenced and growing up by watching my dad, but my dad was drafted during Korea. And I remember when he was a state trooper and he was he was stationed in Hampton Roads, Norfolk, Virginia Beach area, ⁓ at one point. I said, How many guys will you work with? I'm talking nineteen fifty five.

James M. Porfido, Esq.: Yeah. ⁓

Moore To Consider: How many guys you work with were vets? He goes, ⁓ all of them. Like all of them. And he said, one of my favorite troopers was kind of the seasoned guy who was a World War II veteran. Like he's landing, you know, on some beach and he's that guy. And now he's a state trooper. So one of my favorite cops when I was a prosecutor, I had this guy.

James M. Porfido, Esq.: Hmm.

Moore To Consider: And he nailed everything. I was doing domestic violence cases and he took pictures. He got great statements. He was slow pulsed. He was even with everybody. Never had a problem with anybody. Just a really good cop. And did way beyond what the other cops would do. And one day I pulled him aside. I said, Officer so and so, dude, you're the man. Like I love the goes, I appreciate that, sir. I appreciate it. Said, How long you been a cop? He goes, Year and a half now. I was like, The guy's clearly forty. He's forty years old, clearly. And I'm like, year and a half? He goes, Yeah.

James M. Porfido, Esq.: Yeah, yeah.

Moore To Consider: He was in special forces. So the guy served 20 years in one of the branches of the service and was in special forces. Now I've said that to some and they're like, well, you don't want those guys because because they've done the the line of work they've done, they're kind of overboard. I said, no, I think also if you spend 20 years in in special forces and you got, you know, you you got dropped all over the world doing that kind of stuff, maybe coming back in a small town and working as a cop. You kind of see, you know, it's less grave and and and and act accordingly. I don't know, but I just remember he was my favorite. And I found that there was a real program for that. They're looking again. This was 10, 20 years ago, but they were looking again for guys, especially men, I'm sure, that had served in the military, nice natural fit into law enforcement. ⁓ I had a trooper one time, he told me he was 41 years old. He's former Navy SEAL after Navy SEAL 20 years. He was out on the state police route looking for people like that. He again was very pleasant to work with. ⁓ I'm not saying that that's a prerequisite for for militar or you know, have military service to be in law enforcement, because I've heard both sides of that. But I did see some people that I thought were really squared away and and neat in the appearance and all the rest. And you kind of find they all had that similar background. And I'm not trying to, yeah.

James M. Porfido, Esq.: Well, they definitely have a different perspective for sure. And they bring they bring different experiences from life into the job, which, you know, no one else may have. And and if they've been battle tested or they're they're in a combat zone, they see things very differently and they they have priorities that are very different than we may have. And they know how to evaluate a situation and, you know, quickly evaluate it and make sense of it, even when it doesn't make sense. And, you know, they're not gonna be ⁓ from my experience, they're not gonna be the individuals or the police officers that are overcharging someone or escalating a situation. They're they're in it to de escalate. You know, they they generally have the demeanor where, look, we we don't fight this battle because it's not necessary.

Moore To Consider: I don't disagree. I th I think there's some of that for sure. And there's no perfect model cop, and there's certainly no perfect model person on the street because some of the reactions that you see. There's a there's a guy that has a channel on YouTube and he just does stop after stop dashboard cams, body camps, and you just watch how people respond. And they just leave. And and most of these end up on YouTube with this guy's channel because of the stupid responses these people have.

James M. Porfido, Esq.: Right.

Moore To Consider: To simple being pulled over for something very simple and it escalates. Like you said, you're not gonna win that battle. And they'll go from a simple ticket for having a you know, a a a a light out to end up, you know, it's like assault of an officer and they're getting drug around on their face, you know, being cuffed ⁓ violently because they just won't listen. So, ⁓ yeah, it's

James M. Porfido, Esq.: Yeah, and I'm not I'm not saying that those officers with that military background are better officers than any other officer. I'm just saying they bring in different experience and they have a different perspective and a different read on things. And you know, some of them are some of them can be bad cops too. Let's face it. You know, some of them might have the wrong motivation or intention of becoming a police officer when they come back from service.

Moore To Consider: No doubt. No doubt. No no question. But but again, ⁓ when I brought up my dad, my dad was born in twenty eight. So he got drafted, like I said, during Korea. I just remember growing up, I'm 64 years old. I was born in nineteen sixty two. So growing up at the sheriff's office as a kid, there wasn't there wasn't a guy. Like the people in the VFW, the people veteran of foreign wars, they were all the same guys that were working law enforcement. So like you didn't find men of that sixties era going into maybe the seventies. They weren't a cop unless they'd serve, because everybody, you know, everybody served back then. It was it was pretty much almost across the board. Now, what they took from their experiences, maybe in combat or never being in combat or whatever, and onto the street. But there's, you know, look at all the parallels: uniforms, rank, firearms. It's kind of one kind of leads to the other. And I think that men back then who had been through basic training at 18.

James M. Porfido, Esq.: Right.

Moore To Consider: It shaped their world no matter what field they went into. They they kind of looked at each other, yeah, I went to Paris Island, yeah I went to you know, they all kind of had that same background where they had all gone through basic training. They'd all learned a certain discipline.

James M. Porfido, Esq.: Yeah, and I equate that to the delay in women getting involved in l law enforcement. That's been, you know, within the last twenty years, I'd say we've seen such an uptick in women becoming police officers and and investigating or detectives in crimes, you know, in in police departments. And, you know, and that I think is an advent of the what just what you said is that, you know, ⁓ The men were coming back from the military and this was a a job that they could wrap their head around because it involved Indian service and all the all the parallels to what they were doing.

Moore To Consider: Right. Right. Right. Yeah, I used to hear guys that I knew that served in the military. And it was kind of like, you know, 20 years and like I said, you've toted a weapon and you've, you know, gained rank. What do you come out and do? Like a lot of them were like it kind of feels like a fit that, you know, going into law enforcement or they got out earlier and they went into law enforcement seemed like that kind of fit. ⁓ so this thing that we talked about last time, really your book, Unequal Justice. There is, I think, a certain degree of shock that people have to it's not the Perry Mason show, it's not Law and Order and things like that. How much evil do you think there is in the system of people benefiting somebody, whoever that somebody is or whatever entity it is, who benefits from this unequal justice? That let's face it, people with monies tend to get better outcomes when it comes to a criminal trial. The poor with the public defender are often the argument is, well, they're overworked. They have too many cases. Some of that's probably true, but they want to punch out at five and go home. And sometimes it's easier just to take some kind of plea agreement, you know. So what do you what do you think? Who bet who benefits? Is there something, is there some evil in someone benefiting from a system of an equal justice?

James M. Porfido, Esq.: Well, there's a lot of layers to that and and to answer it. ⁓ from my own experience, I found that as a private attorney being retained by a client, ⁓ especially later in later years, I found that young and inexperienced prosecutors would try to wear you down and deplete the retainer agreement so that your client basically would be bankrupted before you ever got to a trial. ⁓ And you know, it often became a a matter of having to make an application to the court to be re to be released from the case and be relieved of counsel because you weren't being paid. And I think that that became ⁓ a theme, quite frankly, with many young prosecutors that I dealt with, where they just didn't want an adversary that was fighting aggressively for their client or or making applications or motions to the court where they had to work on a file and they didn't feel that.

Moore To Consider: Mm-hmm. Mm-hmm.

James M. Porfido, Esq.: that that they should have to work like that. ⁓ or you were putting them to the test of the rigors. So ⁓ it became commonplace really to deplete a retainer, have unnecessary court appearances, wasting time and energy. Not ready, Judge. We need more discovery. Not ready, Judge. We haven't interviewed this witness. Not ready, Judge. We haven't had the analysis done with the state police lab as far as the drugs were concerned. You know, there were and time and time again I heard the same things. We're not ready, Judge. We c we Can't find our witnesses. We can't locate witnesses. ⁓ you know, we need to interview additional witnesses in the case, and we'll turn the information over to Mr. Porfito when we obtain the statements. He's entitled to that in discovery. And who's going to say no to that? You know, the judge is like, okay, you're doing your job, you're being thorough. Okay, we'll delay the case another month. We'll delay the case. And how many of those times? I mean, I can tell you I I had gone to court 18 times in one case. Without ever seeing a jury and and saying, Judge, when are we ever going to be able to pick a jury? Because I knew the the end result would be my client didn't have the money to finance this type of litigation. You know, there was going to be a separate fee attached based on the retainer to go to trial. And they did not have the money, and I knew that. So, you know, and the prosecutor would know that as well. They would know that at some point they could wear you down and get you to a point where there was no money left. And it became very common. To be filing applications to be let out of cases. And and I didn't like to do it because I really believed in the fight for my client, but you know, I had to run a business. And if I've got, you know, 50 paying clients and I've got one client where I'm putting all this time and energy and I'm not being paid, what the logical thing is I've got to get out of that case because then it's going to compromise the other people who are actually paying me to represent them. So that's one situation, of course. And then of course you talk about like a vested interest. I read the book Framed by John Grisham, and I think he contributed with another author. And they picked out five cases each of real life injustices where the system really, really ⁓ hurt these individuals. And I say hurt by wrongfully charging them, arresting them, prosecuting them, and ultimately convicting and sentencing them, where some of these individuals spent more than 20 years in custody for a wrongful conviction where The prosecution knew the evidence was botched. They knew that there was a jail house in it that was lying, but they were so committed to doing the case and they did not want to look for other suspects. And it really went through the whole appeals processes and you think about the time and the energy and the money that is expended on just one of those cases. You know, when you think about a case running through the appellate courts and how many fights and legal arguments have to be made and what it's costing taxpayers.

Moore To Consider: Mm-hmm.

James M. Porfido, Esq.: Well, if somebody had looked at that case just objectively and said, you know what, the evidence is not there, and we're relying upon somebody that's really willing to sell their soul to the devil to get out of jail. Maybe, maybe that's not what you want to build your case around, but they never asked those questions. And it it was boggling my mind reading the the the the book because it really was a challenge and and ⁓ and you'd say, Well, this is just the tip of the iceberg. And there's somebody benefiting, and that is that monetarily, everybody benefits when somebody is convicted in a situation like that. ⁓ you know, the prosecution feels like, hey, they did their their job, they walked away. The next attorney picks it up and says, you know what, I gotta write an appellate brief. I'm getting paid to do that. They support the position of the of the prosecutor

Moore To Consider: Yeah, something too well, I guess the I would I don't know if you say it's the granddaddy of ⁓ all, but ⁓ that Duke lacrosse case, ⁓ you've probably seen some of the I I watched a documentary, I think in the last year. The facts Yeah, the the story was ⁓ I think he'd been ⁓ gosh, yes. He was criminally charged. Yeah. ⁓ but ⁓ this I think the story was he'd been eighteen months the district attorney and he had an upcoming election. And and when I watched this one documentary, one of the women that was at an event where he was trying to raise funds for his campaign, et cetera. He said something along the this Stuke Lacrosse thing's gonna put me over the top from the racial standpoint. You know, it was a certain percentage of black voters like, ⁓ they're gonna love me for this because it's supposed to be, you know, a woman of color and you got a bunch of white kids from the Northeast, and this is perfect and all this. And this woman said, right then, I was like, this guy's a little bit scary because of what the way he's talking about this. And I think the big thing was when they set this young lady down. I think they threw out like a page from a yearbook they had, and she just picked three faces. Like that guy, and as it turned out, one of the three had gone out to get cash at an ATM. So at the time she is telling the police this assault is occurring, he is at that ATM twenty seven minutes away or something like he's away by traffic at least twenty plus minutes, and he's at the ATM on camera. With everything being ⁓ you know, it's a timestamp to it, he's there. And they know that. And his defense attorney doesn't get it. So they later find out in an exculpatory evidence standpoint, you got the kid being X number of minutes away and couldn't possibly have been on the site, and they don't tell. So you're right. In the end, the guy ends up being disbarred. They bring charges against him, but it's scary for so many different reasons. But It was a guy's political ambition to maintain the gig as the district attorney. And and he and he thought it was worth it to take down these three kids. Well, and one of the three, they show, like you said, these three guys. I think one was from Connecticut, like you said, I think one was from New Jersey. And you know, lacrosse is a northeastern sport. And Duke was like top five in the country, I think. And the coach lost his job over it. Like he, you know, and and these guys all said he stuck by him all the way, but then the faculties coming after him, like, how dare he defend these rapists and all the rest? And I it just it would ruined his life as well. He goes on, I say at the time, I think he goes on to be very successful coaching at another school, but but he has to he gets drugged through that, you know, and it's it's all bad. But I'm pretty sure one of the three joined g diverts changes everything, goes to another like Ivy League school and goes to law school, and now he's with the Innocence Project. Because of what happened to him, he's out there working for the justice side, which he says. Not ironically, but in some sense, he's out there fighting for many minority people who are being screwed by the system. Because he said he said, I'm this pretty privileged white kid and I this happened to me and it changed my whole view on what my life's mission needs to be. So now I'm out there fighting for the for the for the rights of others. Well, he said, yeah, I I never would have thought this, you know, sophomore year in college, this would be a direction of my life. But, you know, once this happens, junior, senior year, whatever it was, then they had to yeah, to transfer to another school. And then upon completion of the other school, he's like, you know what? I'm gonna go to law school. And and then and I've got to do if this could happen to me, not only could it if this could happen to me, but it did happen to me. And once this happened to me, I started to realize, wow, the system can really be turned on its head. And people can be targeted and done what the w happened to me. ⁓ so yeah. So now he's working with the Innocence Project. Well, it says a lot about him. It says a lot but it but again, I'm I could just imagine how scary that was. You know, again, you're from the Northeast, you're in the deep So not deepest South, but you know, you're in North Carolina and this is starting to unravel. And there's definitely a well, hell, they're just a bunch of white kids from the Northeast anyway. What do we care kind of thing? They were definitely being and and lacrosse is being targeted as kind of that that sport because again, having grown up in Virginia and grown up just above North Carolina, I never I love lacrosse now that I know something about it, but and I know Jim Brown was the greatest lacrosse player of all time and he went to Syracuse, you know, and p yeah. ⁓ yeah, he's ⁓ everybody recognizes NCAA wise. Jim Brown, Syracuse running back Hall of Famer, was probably the greatest lacrosse lacrosse player of all time. But again, it's kind of a northeastern sport. also kind of ironically, it's a Native American sport. ⁓ That's it it actually started with Native American culture. So but yeah, then it got kind of spun into the privileged schools, you know, do that and all. All right. Thank you so much for coming on again. And I'm sure we'll do this again very, very soon. You're you're you're an awesome guest and I really do appreciate you. James Porfito, Esquire, ⁓ again, author of the book, Unequal Justice. This has been Moore to consider. Please like and subscribe and share. Please comment. I won't read the comments. My my staff sometimes other people in my orbit will read comments because I'm always turned off by comments. But anyway. Unless they're really positive and I might look into ⁓ James, thank you so much for being on, sir. Thank you, brother. Take care.