Judge’s Apology to WHCD Shooting Suspect, Pastor’s Damning 911 Call, Mistaken Identity Rape Case, with Miguel Macias

- Hello and welcome to Positively Legal.

I'm Jonathan Spilbore,

“a criminal defense attorney and founder of”

Jonathan Spilbore Law. - And I am Mark Eyeglar. I'm a former prosecutor, veteran criminal defense attorney, adjunct law professor, avid pickleball player.

I love my three spectacular children and my wife of 25 years. - We only have our mark. - Yeah, I know. And I am a fan of Jonathan Spilbore by the way.

She's fantastic, she's she cut me off. I was gonna do this a whole bit on how fabulous she is. - All right. - Anyway, yeah, we gotta get to the topics like murder. We're gonna talk about this alleged murder.

Caleb Flynn, he's a pastor, our former pastor, or maybe he's still pastoring from jail right now on a $3.5 million dollar bond. He's a former American idol contestant and he's a queues of murder, murdering his wife that is.

And we're gonna hear the 911 call and the body can't footage. And John and I are gonna analyze what we see. - Mm-hmm. - And so, yeah, let's go ahead.

What else are we gonna do? - Later, your former client, Miguel Miceus, joins us to revisit why he was unjustly locked in prison for 43 days and how deeply that affected his life and more importantly, how he got out

and who got him out, you're looking at him. - Well, hold on, let's not jump ahead. We'll see what happened with that case.

And I've never gone through the details with him.

I'm gonna ask him a lot that I wanna know about. Like, what was it like being locked up at that very moment for what he thought was a crime he did not commit, we'll tell you what actually happened. But now, I love this time on positively legal.

We call it happy hour. It really is an excuse for John and a drink. Really, I mean, come on. - God, I wish I wish I could. - You wish.

- Well, yeah, I mean, some days are very, very, you know, you know, that you are so busy and stressed. When you get a text from your Botox doctor, checking on your well-being, which I did, by the way, my Botox doctor's like, hey, everything okay?

Like, you literally did a well-fair check 'cause I haven't been there, why? Because we're so busy, I'm busy, you're busy, and I have mixed feelings about a Botox doctor.

Really, Botox doctor, I mean, not your heart doctor.

He wants to put that stuff in your face, okay? - Yes, yes. - Yes, and anywhere else that I'll let him put it. So I miss him. - So if you're listening, yeah.

- Dr. Rubens is okay. - I got you. - Yes, I'm alive, I'm alive. - Well, what else happened today, John? - How, you know, it's just another day in paradise.

“Mark, I think you have a little bit of a rough day,”

you had a busy day too. - I had a challenging day, it started great. I sent out a press release on Lawrence Taylor, former linebacker for the Giants. He's a client of mine, and it's another one,

since last week, since our last podcast, this time, I announced he's out of the new Jersey hospital that he's been in, because of the stomach issue. He had, he thanks everybody, the prayers, and the support helped him get through a challenging time.

He is back here in Florida, and he is recovering, and hopes to be on the golf course soon. So I dealt with media on that. - That, what's your past feeling? - That was a press release.

I also dealt with setting up the alleged victims' deposition. We get to take depositions here in Florida and State Court on the Antonio Brown case. So I mentioned last week, he's facing a 30-year prison term of the 20-year minimum mandatory,

and I can't wait to take the alleged victims' deposition. We filed a standard ground motion in that case that I strongly believe in, and let's just see what he says in that deposition. - Obama, what evidence are you entitled to?

Before you do the standing ground motion, I'm just curious. - Oh, everything. - You get everything. - It is, there's no trial by ambush.

You love my cousin Vinnie, where he's like, "They gave me the evidence." Yeah, because you're entitled to it. - Well, they can, yeah. - Yeah, I said to you up for that.

It just naturally flowed, I love how you do that. Yeah, we get reports, we get statements, we get video, we get body camp footage. The question is, "What don't we get?" So we get it all, and then we analyze it,

and then we use that in a standard ground hearing against the religion victim. Let me ask you, because it don't practice and floor it. If you get all the discovery before you do the standing ground, I mean, the prosecutor obviously has the discovery, too.

- Right.

“- Is it sometimes, do you not have to do the hearing?”

Sometimes there's a prosecutor say, "Yep, you know what?" - Yes, yes, reasonable prosecutors will do that. That was the frustrating part of my day. Right before I just started the hearing, I took depositions online, and we don't see eye to eye on it.

I have a video showing two people attacking my teenage client. It's clear that they got them around the neck, and because of that, and because it can't breathe,

Clearly, it self-defense.

Apparently, not so clear to the prosecutor.

“So no, that's why you have standing ground hearings,”

and that's why you have a neutral judge who's going to decide. - That is a, that's really interesting. - Yeah. - I dealt with, no, it is because you would think something

that clear-cut that the prosecution you'd be on the same page without having to have the hearing. But sometimes I find sometimes when you have victims in a case, which they're allowed to, they have some say, but they're not the reason why a particular deal

gets dictated, for example. Sometimes you can have victims or victims' families pounding their fists on the table, and they try to hamstring the prosecution from being able to negotiate and do a deal.

And that can get in the way. - Yeah. - And just, that happens. That happens, and this is, to their credit, the prosecutors will say, well, we took it down

from an aggravated battery down to a felony battery.

My kids, like 15, 16 years old, honor student, he's not taken a felony. Not when they had them around the neck and granted, just to put it in proper context, he did take something from the vehicle,

“parked in front of a house and did not belong to them.”

That is relevant. - Yes, I left that out. - Hold on. Hold on, and then he rode away from the scene, and when these people approached, he put the stuff down. That's it.

These people then came up and they were holding around the neck. I'll play the video, the next podcast. Remind me, I'll do it, because we have a standard ground hearing next week. At some point, I'm gonna play it for you.

And you tell me whether he was standing his ground or whether he was committing an aggravated battery. - I cannot wait for that, although maybe they had called the police and they were waiting for the police to arrive. They had called the police and they weren't waiting for them

to arrive. They were definitely taking matters into their own hands by their own admission in deposition. So we'll cover that in another time. - We'll see.

- You were bothered today by something that happened in court, not on your case, but something else. - No, not on one of my cases. So you know, every morning when I'm getting ready,

I have the news on. Most people, some people, like I don't want to look at the news and I know, you probably don't listen to the news in the morning. - Well, I don't know, I like happiness.

What's your reason for, why do you act? - I'm just because I want to, because I want to be informed. And I like to know that there are-- - I'll be outraged. - I like to know that there are people

more miserable than me. - Thank you. - Now we got to it. - Now we got to it. You win.

- You know, while I'm waiting for my coffee to drip from the machine, I hear a story which is really unbelievable. About the judge in the guy that attempted to kill the president of the United States last week

at the Correspondence Dinner in Washington, DC, Alan up all Allen, he's there, looking lovely kissing the carpet. - Yes. - So he's in custody, rightfully so.

Like nobody's going to be like, what's he doing there, right? - No dispute. - So he's in custody. - And as you know, when you have these types of cases,

you're going to make several appearances

before a judge before you finally get to trial, et cetera.

So he apparently had to appear before a judge yesterday and the judge, Mark. - Yes. - So he's apologized to Cole Allen, claiming that his detention is substandard.

The conditions that he's in are not, I don't know if you may. And he actually said, whatever you've been through, I apologize and chastise the attorneys in the case because he thinks that just because,

just because this guy came this close to offing the president of the free world, there's really no need for him to be behind bars, pending his trial or freaking kidding me. - Wait, that's what it holds on now.

Let's just report the facts accurately. I want to make sure I have the judge I understood was commenting on the conditions that the accused was facing in jail, which we could talk about.

You just raised a fact that I had not heard, which is either not accurate. - It's accurate. - It's accurate. - Something that's new.

The judge just didn't think he belongs behind bars. Did I just say that? - He said, he noted that pre-trial detention is not supposed to be punitive and commented that since this guy has no criminal history,

let go. What are we doing here? And then he compared his actions to January six. So now you know, this judge is suffering from thrump derangement syndrome

and therefore should not be presiding over this case or any other case if you ask me. How can you be fair and impartial? This is disgusting. Can you imagine if Cole Allen were out on the street,

“pending his trial when he tried to kill the president?”

- I think that you are distorting the facts or misinoperating them in crime. - I'm not. - What the judge said was bond or pretrial release,

What he saying is someone shouldn't be punished at that point when they like every defendant enjoys the presumption of innocence and let me go further. What was happening in this case?

And by the way, hold on one second.

Number one, let me make it clear so we can minimize the hate mail. Number one, the guy does not belong out. He should be in custody and he's facing decades in prison. Just so we're crystal clear.

The question is how he should be treated and the answer, if you're being intellectually honest, is like every other defendant in that bond is not supposed to be punitive. You punish someone after they're found guilty.

So if he's not suicidal, which is what the judge I read wrote, then why are they holding him 23 hours a day on lockdown and treating him in ways that you wouldn't normally treat someone? - Wait, we're gonna change our position because he tried to kill the leader of the free work of all.

- First of all, first of all.

“Why you'd wanna do that, but legally, you should not.”

- First of all, this guy is suicidal.

You know how we know because of the so-called

manifesto, which was really just a fairly lengthy email, this guy wanted to die by secret service, like suicide by cops, suicide by secret service. So he's suicidal, number number one, number two. - He may be, and wait, wait, let's handle it one by one.

If he's suicidal, then yes, that's exactly where he belongs. - Exactly. - They are locked in. - But this judge, but this judge said, the conditions were inappropriate

for a person with no criminal history. Come the fuck on, Mark, that's ridiculous. - Really, you got a curse? - When you were a judge and you apologized on the record to somebody who tried to kill the president,

you should not be presiding over the case. I'm sorry, not sorry. - Let me ask you something. Change the charge.

- Let's say it was for, I don't know,

trafficking in the whole substance. - No, because it'd be in federal court, trafficking in cocaine, many, many kilos of cocaine. Would you take exception with a judge who says that person shouldn't be punished at this stage of the proceedings?

No, you'd be like, yeah, he shouldn't be punished, 'cause that's not what bond is for. It's not supposed to be punitive. - Wait a minute though, if the person who was trafficking in the cocaine was clearly spotted on camera

and had to be seduced by secret service and had a letter saying that they were gonna kill everybody in the vicinity. Yeah, I would say that that person also deserves to be treated, however.

And what is so bad about suicide watch? You know, frankly, if I ever go to prison,

“put me in the hole, that's what they call,”

put me in the hole, I don't wanna be a gen pop. - If there's signs that you're suicidal, yes, that's where you belong. So we can have an intellectually balanced discussion. What I'm saying is, let's just say, this guy was treated.

In a manner, hold on, let me finish. In a manner that was punitive. Meaning he's being treated differently than everyone else for no apparent reason other than he tried to go to the president, which is a bad thing.

Trust me, it's not an easy position to take, but just listen to me. The question is, should he be punished at this stage and the judge is just saying he should be treated not punitively, but to ensure that he doesn't get out

and he shouldn't be going, you think he should be punished at this stage? - I don't think a judge should apologize to a man who was trying to kill the president. And if that's intellectually unbalanced, so be it.

- Okay, let's go, okay, let's go. - Okay, I'm gonna be going intellectually balanced for the rest of my life now, I like that, that's a fact. I like when people use these, you've, you've domestic ways to like call other people stupid,

but that's where our professional are, I like it. - You're doing the best that you can at your level of learners. (laughing) - There you go, that's another one.

- So, all right, what are we moving on to? Let's so, so let's talk about another person who's behind bars, yeah? - Well, we're gonna do that. Aren't we gonna talk, oh yeah, we kind of like,

yes, murder, yes. - Okay, murder, murder, we're talking about Flynn, Caleb Flynn, right? So this guy, he's 39 years old,

“maybe you remember him from American Idol,”

which I don't, but yeah, I don't know either, 'cause it was like season 12 and who was really watching then, I think the ratings went down. His wife, 37-year-old Ashley Flynn, who is a volleyball coach and educator,

so we like her, right? We like her in that regard. - We loved in that community. - Yes, apparently, there's no question she was killed and no question was homicide.

The question is, who done it? And he's claiming armed intruders came into their home and killed her while his two young children were there in the house. - Yeah.

he'll prove a guilty, John and I were not there, no matter how much he acts like she was. So let's listen, let's all objectively listen to the 911 tape. - All right.

- Okay, this is like, this is like,

date line 101, there's always a 911 call

from the person who turns out to it, but let's just see, let's see how he does, all right, let's roll the 911 tape and we'll get John who's an expert in the green of judgment. - I can't remember him at home.

- Oh my God, somebody, somebody broke into my home. Somebody broke into my home, somebody broke into my home. - Are they still in there? - I don't know, I don't know him.

- What's the address? - 932, come here, I'm quick, get to your house. Please, please, please, please, please, please. - What are you seeing? - My wife is, she got to be shot to her head,

just been spotted every day. - Okay, come on, come on. - That's where he's gone. - That's where he's gone. - That's why we know he's lying. - Hold on, no, you and I won't see it the same way. Hold on, wait, you go first, I'll let you go first.

Two shots to the head, wait, what? - Yeah, you would not possibly know that, coming into a scene where your wife is dead on the floor. Nobody is, you saw it, she's got hair, you're not gonna know that she's been shot,

and maybe not even where she's been shot, certainly not how many shots she has. - That's where you're gonna spot him. - Hold on, hold on, you're such a good lawyer,

“watch how good she is, Jenna, you must accept this challenge.”

Flip it, take the other side, go. - Defend the person who did it, who's calling 911, that one. The two shots, what you do it, but I don't want to do it, I want you to do it, I think it's more fun for you to do it.

- The only way that he would know that we're just who shot to her head, is it before he called 911, or perhaps while he is on the phone with you? - Yes. - He is simultaneously digging through her hair,

passing bullet holes. - You can't even do it this great face, you can't do it. - CPR, not trying to, whatever, just looking to count,

because that's the most important thing

when you're on the phone, I don't think so. - You couldn't do it, you couldn't catch it. - I didn't know you believed me, all right, let's keep going. That was great, keep going, keep going. - Sir, please, please, please.

- Hey, man, I need you to take a deep breath, okay? - Yeah, you still say anybody in the house. - No, the door to the grantes wide open, please, hurry, please. Oh my god, oh my god, oh my god, oh my god. My daughters are here, my daughter is here.

- Where's she at? - She's in the bed, she's in the bed. - Are you in there? - I am in the room, I'm looking at her, yes, please. - You guys have the door long.

- We have the door to the grantes locked, but keep to the house, yes, please. - We can't, we can't, we can't. - Wait, where is that, I room at in the house, I'm sorry. - I'm sorry, I'm sorry, I'm sorry. - Just, just really quick, Jonah.

- Okay. - Just on the effect alone, like the acting performance, I'm assuming it's acting, okay, we don't know. - Yeah. - They're quick, we don't know, there could have been

armed home invaders, although, Jonah and I, I think are both skeptical, right? But just on the effect, like, if you don't know anything else and you're listening to his voice, what are you rating his acting performance?

- Yeah, not very good, I'm, yeah. No, I'm rating it as like sort of a, do you list her in a help art movie, right? - Right, no, like no.

- This is the most important thing,

“he should have rehearsed this better, he sounds, right?”

- Let me ask you, let me ask you a question because let's suppose we're both sitting on a jury and we're listening, and you know that the jury is going to listen to this. - Yes.

- In addition to his effect, what do you make of the 911 dispatchers affect? - Oh my goodness, well first, I have an open mind, like if I don't know anything more, I'm gonna start keeping track Marvin,

they'll start keeping track of all the things. Okay, you have an open mind, what do you mean? What are you talking about? - That wasn't a deal. - That was a deal. - No, no, it's all that.

And I have a, all right, all right, that's all you know. - No, you asked, hold on. - Five minutes to go, okay, I'm sorry. - You can handle the truth. You asked me to comment on how I feel

and I think it could go either way, I'm skeptical, but just from what I'm hearing from his voice, I wouldn't say he is the murderer. That's all I'm saying at this point. - Wait, so, but you and I have both listened to

countless 911 calls, right? - Yes, yes. - I can detect a difference when the dispatch thinks this is a genuine emergency and is trying to do their thing and when they are very suspicious of the caller.

- Yeah, he's suspicious.

“But I also think, hold on, I think that we learn later on”

that he might not have caught that the woman was shot. It's really weird, let's keep going. You'll see that I think it's waiting, she was shot. I think it almost sounds like he picks it up at-- - I shot the clerk.

- Right, something like that. - Okay, but I'm gonna do the answer to my questions,

- What questions?

- Where are you guys at in the house?

- I'm in the bedroom with her right now, okay? - My daughter's in the bedroom. - Do you or not, you are not with the children? - I was with the children, what has happened? - Okay, but you're not with them now.

- Oh. - Oh, no, I'm not with them now. - I'm not with them now. - Oh my god, oh my god. - Oh my god.

“- Sir, please. - Sir, they are heading that way, okay?”

I need you to take a deep breath for me. - All right, yeah, I'm just trying to get you. - Oh, I'm just trying to get you. - No, I rubbed your legs and then said her name, she's not answering. - Okay, here's not her. - You're not answering me.

- You're not answering me. - You're not answering me. - Hold on, hold on, hold on. Hold on, hold on. I'm not sure. What do you say to her?

Yeah. Your daughter's not answering you. No, they're in the oven. They're in the oven. Open the oven.

Okay. Are you hearing any kind of noise inside the house? No. No. No, her faces.

Oh, sir. Her faces. Why is this going for you? Okay. Who's face?

Who's on first? What's on second? What? What? What do we got?

She was... she was what? I said. Okay. Where was she shot at? All right, stop.

Stop. Right?

I don't think that the guy heard what is going on here.

I don't think the 911 one guy heard. She was shot twice in the head. No. I do think he heard that. I think that he knows something weird.

Yeah. And he's just asking questions that he doesn't really even need the answer to it. Come on. This 911 dispatcher thought that there was an intruder in the house with two little girls sleeping in the next room.

This conversation that he's happening with the cry baby with crocodile tears would be different. How dare. Hold on. How dare a 911 operator.

What you're saying is true. And I don't believe it. 911 operator make a decision that quickly that they are definitely not intruders. And he's the guilty one. Soly based upon how the guy sounds.

Really? That's what you think. You know what? I hope in my next life I want to come back. And I want to operate dispatcher.

But it would be like bitch. You can lie it. Yeah. You would be that way. Come on.

Suck it up. Did you really love your wife? Come on. Yeah. Right.

Come on.

How many bullholes did you just count?

Give me a break. All right. Keep going. Get back with your hands up. You can go with another 911.

Come on. Wait. Okay. If she breathing. All right.

I don't know why don't be so. Absolutely. I want to cover that at the time. Baby. Please.

Oh, my god. There's no. She's not. Okay. She's not responding to you.

No. No. There you go. Oh, my goodness. I'm going to discuss the radio.

Like shouldn't that have been the number one thing? Like maybe CPR, right? No. I am. That was wrong with that.

Everything was wrong with that, Johnna. Listen.

“If that is the only thing that's the jury order here.”

In this case, you are guilty beyond reasonable that. Really? Is that bad for you? It's pretty. It's pretty.

It gets me to probably for sure for sure. Yeah. Probably. I don't think that's enough. Do you want to watch the body camp footage?

Do you want to see that? Maybe. Maybe real quick. Because we all. To see his.

You got to see. Maybe. Maybe physically. He looks more believable, right? Let's give them the benefit of the doubt.

Are you capable of doing that? Please. We're going to real quick because we got a couple of things. All right. Yeah.

I want to get to Miguel. All right. Go ahead. I want to see you. Just look at him.

Just look at him. Just look at him. Look at that. They sent all of a sudden to Dr. Phil. Look at him.

Just look at him. The girls are saying to his. I don't know what to do. I don't know what to do. I don't know what to do.

I don't know what to do. I don't know what to do. I don't know what to do. I don't know what to do. I don't know what to do.

I don't know what to do. I don't know what to do. I don't know what to do. I don't know what to do. I don't know what to do.

I don't know what to do. I don't know what to do. How do you feel? Tell us how you feel. Okay.

What do you make of that? Does that help you? Now you can see. He's bent on or the appropriate effect. No.

Now it's even worse.

“How many days did it take for them to arrest this guy?”

Oh, I don't know. I don't think it could be that long. But honestly. Yeah. I mean, a true dirt, really?

I mean. Yeah. It's got two bullet holes in the head. And it was where the 38 special. And oh, how do I know that?

I don't know. Oh, sorry. What about the motive? I mean, what's the motive here? Oh, okay.

Here's the plot. I'll tell you. Without even knowing anything about the motive. You'll tell us. Yeah.

Because if either money or it's they're having an affair and they need to get her. Oh. Oh. I just remembered. I just remembered.

Someone at his church.

She immediately withdrew her position.

She resigned. She resigned. So, so ding ding ding. Maybe, do a little math there? What do you think?

Yeah. Yeah. She's a little cheating math going on there. But we don't know. Everybody's innocent.

Bubble, bubble, and all that stuff. Okay. We don't know. All right. All right.

We a couple of there.

“What about are we going to do a, we're going to watch a legally blunt side?”

Or are we going to move on to Miguel?

Quickly, the legally blunt side.

We do that. Let's do that. Let's do that. This is something that we love to do. We see a lot of things on TV and movies.

And John and I are both going. Yeah, that's incredible. That's awesome. That's so true. Oh, my God.

That is completely unrealistic. Right. All right. So let's see how we both feel. I don't know how she feels about this.

Let's watch this famous scene from legally blunt. Go. And then wouldn't somebody who's had say 30 perms before in the life be well aware of this rule? And if, in fact, you weren't washing your hair. As I suspect you weren't because your curls are still intact.

Wouldn't you have heard the gunshot? And if, in fact, you had heard the gunshot. Brooke Windam wouldn't have had time to hide the gun before you got downstairs. Which would mean that you would have had to have found Mrs. Windam with a gun in her hand to make your story plausible. Isn't that right?

She's my age. Did she tell you that?

“How would you feel if your father married someone who was your age?”

You, however, had time to hide the gun. Didn't you chutney? After you shot your father. I didn't mean to shoot him. I thought it was you who wanted to do it.

Oh, oh, oh. Happens all the time in every courtroom. Oh, that right, John. That very Mason moment. Yeah.

Those rapid fire testimonial questions from the Depends on turning your prosecutor who ever technically. And here's, here's the problem, John. I don't know if I'm speaking for you. But jurors then expect when I cross examine someone that they're literally going to,

to just, okay, you got it. I ordered the code red or yeah, I did killer. It doesn't happen. And you look gorgeous and so high. I like my favorite is, no, the defense is wrong, right?

Do you know? I love that movie. And by the way, because I have not seen legally blonde in a long time. Was that Aubrey Plaza? Is that her name?

No, it's a different actress who's whose name. She was in green book. She was in so many other things. I don't know. I'll get her name at some point.

But anyway. I'm a gal, Miguel Miceus, my former client is generous with his time. And let's get to him, okay? Without further ado, when we come back, we're going to be talking with Mark's client, Miguel Miceus, who's going to join us to share his very compelling story.

Don't go away. [music] Welcome back to Positively Legal. I'm here with my co-host, Jonathan Spielbore. And we are joined by a client of mine, technically a former client of mine, Miguel Miceus.

I am so grateful that you've taken time off to be with us.

Miguel, welcome to our second podcast.

How you doing, brother? Pretty good, pretty good, thank you, playing. How you doing in there? Okay. Well, I'm going to let you complain in a minute because you won't complain right now.

You're going to a rough time.

“And I honestly, when I asked you, I didn't know if you were going to say yes or not,”

because having to relive what you went through has got to be rough. But thank you so much for the courage you're showing. And thank you for being here. I'm extremely grateful. Okay, so I want to start off, first of all, what do you do for a living now?

I'm still in the construction business, but I became a general contractor. So, okay, I'm going to go. All right, let me take you back and how old are you now? 31. All right.

Back on December 2014, when a horrible crime was committed down in Homestead, Florida, is it's about probably about 40 minutes south of Miami in Florida. How old were you then? We need to be around the time you're interested. Why do you want to be okay early? Okay. And had you ever been arrested or had any contact with a criminal justice system before you arrested? At minor when I was in an eighth grade. Okay, so something minor nothing major. Okay. So 2014. A, let me set this up. I understood a teenager. I believe she was still in high school at the time was at a party in homestead.

And then she was kidnapped by someone taking to a remote location, beaten and then raped. And then for some reason he let her go. And she wanted justice. So she reported this naturally to law enforcement. And she knew only a couple of things. Once she knew what the guy looked like, knew that the name of the guy for some reason was Miguel.

Yes. Tell us what happened. This was March 13th, 2015. So tell us what happened. There's a few months after this incident occurred, you're in the vehicle and what happened?

No, I was at home and my uncle was driving the vehicle was under my name. And I did go over by law enforcement. And they were telling him that the owner of the vehicle needs to come pick up the vehicle. Or he was going to go to jail. So when I show up he has from I.D. I get him my license and he went to his police car and made a couple calls and came back home and said I was had to go in for questioning. What was your thought at that point? I was scared. When the one I'm being taken in if I haven't done nothing.

“Did he tell you? Did you have any idea what this was about?”

No, no idea what's over. Okay, did you think of saying no, I'm not coming with you. I'm going to get a lawyer. I'm not going to talk to you. No, I'm going to fear. I'm not going to fear. I'm not going to fear anything. Okay, so you see you go with him. Did he put handcuffs on you? Yes, yes. I mean, I had to go in the car on my wrist at work and I was getting on back of his car.

All right, but he didn't say I need to take him for questioning on a kidnapping or rape. He didn't say anything like that. No, he just stopped the cops going and put you in the back of the squad car. Yeah, he's going for a question with the tech. That's it. Okay, so they take you to a Miami police department. Yes. Yes. And then tell us what happened then. They put me in the and one of the rooms and wait for a couple minutes and they come in and start questioning, you know, good cop, bad cop.

Okay, and they show me a picture of her and and say, "Do you know her?" I'm like, "No, you've never seen her day in my life."

And like, "No, yes, you do know her." I don't know. I don't know back and four years or no. And well, she said, "You can have the rape there." And I was like, "No, that's a knife." And we get to the Poos of DNA and I give it over. My DNA weren't one eternity.

“I think they gave you like a little swab test in your mouth. They put a cute tip on mouth.”

Yeah. You volunteer, right? Yeah, volunteer. And that's when they took me in to book and afterwards he said, "If you're innocent, you'll be out." Well, they were the couple days, so I don't want my own days at so much like I remember.

Okay, I have a bunch of questions. How long did they spend with you in that room before they arrested you and booked you for this kidnapping and rape? Honestly, three or four hours.

Okay. During the three to four hours, other than showing you a photo and asking you, you know, do you recognize this gal?

And you said, "No, what else were they doing during that time period?" I don't really want, I don't really remember, but they were in and out of that. There was switch, the two officers, the two detectives, there was switch back and forth and come back with questions. Did they come back as many other evidence? Did they reach your medical?

They did, the rather rest they did. They were too old, but yeah. All right. They confronted me about the vehicle, which I don't know if you remember, my mother had a similar vehicle at the same time. I'll make sure we black.

So that's why I guess, to the, to the, yes, him because the vehicle matches. Okay. All right. So you're placed under your placed under arrest, you're charged with kidnapping.

“In fact, there were like seven counts, I think it was like multiple counts, right?”

Yeah. What about your bond? I don't think there was a bond. I know. Because that was another question.

Yeah. No, there wasn't a bond. Yeah. Wasn't a bond. Nothing.

You were held with no bond. It was because kidnapping is a life felony here in Florida. You were facing life. And I want to know what you're thinking as you're sitting there in jail. No, yeah.

That was going crazy in there. Especially the one family would come to visit me and I want to see him behind the glass. And so initially you had the public defender, did you not? Yes. All right.

Because your family really didn't have much money. Did they hire a top notch criminal defense attorney, correct? I don't know.

Like, what are your folks, too?

“What did they do for a living at the time?”

A little more of a Christian family. And everybody does the same business. Hard working. Morning till night using your hands. Real labor.

Correct? Yes. Correct. All right. And so at some point, you're in there for a long period of time.

Like more than a month. And then your folks somehow come to me. Do you remember? Do you know how they found me? Yes.

I remember it at the back of my head. Tell me. I don't know the answer. My brother, Google, the best criminal defense lawyer in Miami.

And you were the first one over here.

And he was unavailable. So then you found me somehow? Well, he had to counter the A's, the B's, the C's and the D's. Then they got it. None of them would take your case.

Then you got to me. Okay. Then you look up on the jail. The wall of the jail. Yes.

The collie glies for a cheap lawyer. All right. So back to this. So you're parents somehow got to me from Google. Wow.

Yeah. Okay. Wow. All right. Now I'll tell you my part.

I don't know if we've ever spoken about this. They came to see me. And there was almost nothing that appealed to me initially. I had a daughter around the same age, right? Then I just couldn't imagine taking on a client who had brutalized and raped someone

like this. But your folks were very persistent. I'm telling you why I didn't say no. First, they showed me like photos or convinced me that you had tattoos. Can you show us like the tattoos that you have just to hold it up?

I mean, there were tattoos all over, right? And I figured maybe the victim didn't mention anything about tattoos. I didn't know yet because I, again, I knew nothing about the case. The other thing was they showed me some text messages, which if they were real seemed to suggest you weren't even at the party at the time that you were supposed to have kidnapped her from.

Do you remember about that? Yeah.

I was never at that party.

I understand. But these text messages that they showed me got me to believe you know what? This guy is either innocent or they're pulling my leg here. They're showing me some stuff. And I really believe that you likely were innocent and they didn't have the money to pay me.

But I'm telling you, I want to be a part of the journey. And visiting you in jail.

“Do you remember that first visit we had?”

Yes. Tell me. I remember some of the things you said, but just share that first visit when I came to see you. Um, okay. When you first kind of visit, like you mentioned earlier,

you couldn't imagine defending somebody with those charges. So you told me, I won't, I want to shake your hand. Mark said he wanted to shake your hand or he didn't. No, no, no, he said he will not shake my hand. So I came to my innocent.

Wait, say that again. Um, when you when you when you when you visited me that that you said that you wish my hand if I was innocent. Because you have a daughter and you couldn't imagine somebody doing that to your daughter. Okay.

It's interesting. And and and you don't remember that mark. You don't remember that mark. No, because I don't know that it happened exactly. I wouldn't say to someone, you know, I'll only shake your hand if you're innocent.

Because that that's not me, but I think that that's his recollection. So we'll we'll run with it, right? I know for sure I had reservations about taking this case. But my meeting at the jail changed everything. The the things that his family showed me coupled with looking at him in the eyes and talking with him.

The way he's talking now. I said, I said, I said, there's no lying in this guy. I think that there's a mistake. There has to be a mistake. Okay.

Okay. All right. So I agreed to take your case. Did that make you feel any better at all? Because you had been in a little more offshore.

Yeah. Yes, definitely. So a big release. Yeah. You had to have an actual attorney.

A good attorney defending me. Yeah. And you also, you also told me that you actually had been sitting back there so long.

That you believe that you may never get out of prison.

That you literally are going to spend the rest of your life. Those thoughts bring your head after you had been there for so long. I've got to give you another question. For you. For you.

So the meeting happens. The person meeting happens. You change your mind. He's grateful. You're going to take the case.

You walk out of there. What's the first thing you did? Did you pick up the phone and call the DA? Absolutely. That's where we are in the story.

Okay. I can. I probably 100%. I couldn't wait to call her. Okay.

And I've already mentioned her publicly. Her name's Christina Cabrera. And normally I wouldn't. But I'm going to tell you what she did. I started telling her go listen.

I'm brand new to the case. I don't know anything. I don't have evidence. I don't have anything. But I've got some text messages which seemed to suggest he wasn't even at the party.

“And could you tell me where the victim talked about tattoos?”

Because Mike I covered in tattoos. And and and and she cut me off. She was. Do you know what time it is? I said no.

No. Why? Why? She looked at me.

She told me on the phone. She was. It's almost five o'clock. I don't work after five o'clock.

“If you have anything you want to send to me over the next few weeks,”

you could send it to me and I'll look at it. Oh, my god, Jonathan. I thought I was spiritually fit. I mean, I've been meditating for years. I pride myself on being positively legal.

Okay. Oh, man. She pushed a buttons on me that launched some words that are reserved for the middle of the night when you stub your toe on a piece of furniture on the way to the bathroom. You understand those words? That was me to make a men's to her.

Only for the words that I used and not for the tone or for the disdain that I had for her dismissing what could be a potentially innocent client. So what I did was for two days or so. While my client is languishing in jail, possibly innocent. I'm trying to call her. I'm emailing her pleading with her to give me the attention that I needed.

And and I wasted. I wasted two days. I feel I actually still feel a little guilty that I wasted two days of my client's liberty trying to deal with her.

I would never do that today.

You take a deep breath. You say she's doing the best she can at her level of awareness. Who's your damn boss? Well, that's exactly what I did. Right over her head.

I went to her boss. And I sat down with her boss that she couldn't be more kind. And she looked at what I had. She goes, wow. Wow.

You might have something here. Well, we'll know definitively she said in months from now. I understood maybe six months when we get the DNA back. I went, wait, wait, wait, wait. There's DNA here.

The victim, they got DNA from that's right. It's a rape case. So they've got the perpetrators DNA from inside the victim. Okay, let's, let's do the DNA test now. That prosecutor, that supervisor.

She goes, no. He has to wait his turn. He has to wait his turn like everybody else. Wow. I said no.

She said yes. I said absolutely not. She said yes. I wouldn't leave that office until she agreed to pull his test from the bottom and put it on the damn top.

And we came to this agreement. We came to this agreement. It wasn't easy. She goes, I'll do it if you don't tell your colleagues that I'm doing it. Don't tell any other defense lawyer because they're going to want the same treatment.

And I said, I won't tell anybody. There enough. Of course, I told everybody. But I, I'm not telling anybody. Okay.

I'm going to tell them what happened. But I want to know, you know, your perspective will pick up the story with when you heard something.

“First of all, did you know that that, did I ever share with you that she agreed to then fast track your DNA?”

Did I tell you that? Did you know that? No. I remember what you told me clearly. It's on me.

If you're innocent, you will be outside that jailhouse in 48 hours. And on the 47 hour on the top, I was outside that jailhouse. Damn. So I didn't know it happened that good. Great idea.

You stayed 200 percent. Wow. Wow. Wow. Well, I didn't think it happened that quickly.

But I'll tell you this. We got you out. But it was on a presumptive test, meaning that they did some kind of quit test. And it showed it wasn't you. But the final test wasn't fully done yet.

But it was a good thing. It took 30 days. It took a month to do a presumptive. I'm surprised they can't do that. No.

No. They hadn't even started it until I came into the case and told this prosecutor, you need to pull him from the bottom to the top. Then they just like fast track it.

Like acted like his life mattered for the first time.

And then this was like a murder case. And we need to know, you know, okay. Let's go. And they did. They prioritized it.

Okay. I can't wait to hear all the apologies that you got. Miguel on your way on your way out. Well, let's go. Let's go for that.

But we did hold on. First of all. Did you know anything before you were released? Like did they just say, all right, come with us. You're leaving?

Like what, what did you hear? I don't know if I, again, just so people don't think I can't pick up the phone and call him, right? He has to call me or have to go visit. And I was busy working on his case.

So I was going to travel hours to the jail. Whatever. I was hoping his family would convey that to him.

“Did you know that we had gotten the DNA and the results back before they let you out?”

Yes. I know because every morning when I will wake up I would have come to my mom. Good. And I figured you were. Yes.

And then she's the one that told me you're coming out today. They were lawyer. That you. You've said everything. You come in to send basic.

Well, well, let me just say this.

The first part was getting you out.

That didn't mean the charges were going to be dropped. They agreed to let you out on bond based upon the results. And then we went to court like right away, probably the next day or whatever. In front of Judge Block. Let's roll a clip from Judge Block.

I love this judge. She's a wonderful human being. And what he said publicly was extraordinary.

The judge had these words from Mrs. I apologize to what happened for what happened to you sir. You know, right? And if I remember correctly, he agreed to expunge your record right away. Didn't he? Yes.

He sealed the record.

That has never happened ever.

“You have to go to the Florida Department of Law enforcement.”

You have to go to the state attorney's office. And I tell all my clients no matter how much they pay me. It will not happen unless you wait like a year. It literally takes a year. This judge fast-tracked it and just did it, suicide's bond day right from the bench.

Right from, you know, right in front of open court, that was a beautiful thing. John, I want to get your reaction. And I want to get your reaction too, Miguel. I don't know if you ever saw what the chief prosecutor, like this isn't the one that I dealt with. This is Kathleen Hogue, who I do admire.

She's still in the office now. Here's what she told the media about your case. Go ahead. The veteran prosecutor Kathleen Hogue told me testimony from one witness, plus evidence were strong enough to charge and hold messiest for 42 days.

But as soon as we found out, we did what we had to do. And we released him. This happens all the time. Okay, this is not the first time it's happened. It won't be the last.

Oh. Okay, then. Yeah. So heavy. Not to drive a little too fast in Miami, I guess.

No, you never know when you're going to get picked up and thrown into clink for 42 friggin days.

Miguel. Miguel. Have you ever seen her? Have you ever seen that go? Yeah.

All right. What do you make of that? Again, I'm hesitant because I do like her. I'm friendly with her. She's been great on cases.

That's all I'm telling. I just, I couldn't believe that she said that to the media like that. And I know what she meant, meaning you're not the only innocent guy. Yeah.

“But she said it, how does that make you feel when you hear that?”

It makes me pretty mad. Yeah. Because there's other ways you could have said it, you know? Okay. So yeah, we're going ahead.

I'm sorry. I had it up to you. Go ahead. No. There's other ways.

It could have been said in a different way. She said her I go. Yeah. I got very sorry that this happened. In our system of justice, innocent people shouldn't be sitting behind bars for 42 days.

Very sorry. We'll do better. There you go. Better. That would have been nice to weigh.

That would have been nice to do it. That's it. All right. So. So.

Let's talk about. Why it is that you were arrested. What people don't know is that the victim. She went to Facebook and found the guy who threw the party. Yes.

Facebook.

“This is, I think, before Instagram has been.”

She went and she looked through the guy all his friends, the guy who threw the party. She knew someone named Miguel and she found someone named Miguel. And there it is. That's the guy. That's the guy.

Now, let's show the folks who the DNA actually matched. Can we pull that up on the screen? Hang on. Take a look at that. Well, let's see us who we're in speaking to was the one in the dark shirt.

My dear client. My sweet innocent client. Damn. I know. Damn.

On the right is Miguel Bustos, who was arrested shortly thereafter in 2015. Plead in 2000. I think it was 22 in front of a judge who I adore. And he got 10 years in prison. And I think followed by lengthy probation.

He's a registered sex offender. He's still in prison now. But take a look at that folks.

I mean, I'll be the first one to say.

Miguel, I don't know what you're thinking. But I mean, clearly, that dude looks arguably like you. Would you like to see that? Yes. All right.

I didn't know. I don't want to offend you or anything. Okay. No, no. We do look at it.

Yeah. So I don't blame the victim. I think the starting point is they're going, Hey, I think it's this guy. I get it.

But then what other evidence is there? You know, and their position is, that's enough for us. And I say believability and accuracy are two different things. She can believe all she wants. It's Miguel.

But be completely inaccurate as she was. Now, Miguel, you lost a lot of money that you would have made during that time. This was so traumatic. In fact, I want you to sum up. Do you just put this behind you and move on?

Or do you still have lasting feelings from being locked up? And thinking that you may spend the rest of your life in prison? It's like a more coming going on. There's, it has me once in a while when I get to thinking about it. And they, wow, I could have really lost my whole life in prison.

And feelings do come back once in a while.

How was it in prison? Yeah, go ahead. Tears, what else? And wasn't, honestly, wasn't bad. Nobody really bothered me.

“But it wasn't a sell that was really long will come.”

Okay. Well, not bad. When you said not bad, not bad for jail. You're not saying you wasn't a bad experience. I just want to make that.

I wasn't that, yes. It wasn't a bad experience. And nobody bothered me, nobody messed with me. And so everybody stick to themselves. Okay.

And so naturally. Naturally, we sued him. We made millions and millions of dollars.

And you never have to work anymore, right?

I don't know what it is. We tried, didn't we? Yes. What were you told? What were you told?

I can't really recall. I didn't just, says there was ever something we can do. So, right? It's something I'll help you out. The standard is so high to win money on a false arrest claim that if it was easy to do so, police

Forces would be bankrupt. Okay. So, the burden is so high that you got nothing. It was nothing that can be done for you financially. And all we can say is we're so sorry that you went through this.

John, did you have any final questions? I mean, there's so many things Mark. I know this was 11 years ago. But the fact that they had DNA from the victim that they could have run through a database to see if it matched anybody.

They didn't do that. The fact that they took somebody with the name Miguel, which I'm sorry. Very popular name Miguel, right? In South Florida. Yeah.

Off air.

“We were talking that maybe you should change it to something really unique, like”

you're just going to change it to something like that. You're going to have to change it to something like that. You're going to change it to something like that. You're going to change it to something like that. You're going to change it to something like that.

You're going to change it to something like that. You're going to change it to something like that. You're going to change it to something like that. You're going to change it to something like that. You're going to change it to something like that.

You're going to change it to something like that. We're very appreciative and we're very appreciative that we got to hear your story, right? Because we don't get to do that very often. Miguel, I need to thank you. I mean, your story.

I tell all the time in my keynote addresses. More so about how to change my thoughts to change how I feel. Meaning from now on when I feel that same frustration with the prosecutor, I immediately let that prosecutor go and I go, "All right, who's your boss?" And don't even waste the energy on that person because it cost us valuable time.

But anyway, I want to thank you for taking time out of your busy schedule to be here and sharing your compelling story.

“You'll remain a dear friend and I thank you.”

Thank you for the opportunity to be of service to you. Thank you, brother. Miguel. Thank you guys very much. Be well.

I love to your family. Take care, bro. Okay. So, Janna. Wow.

You're making great story. Right? What a story. One other thing. One other thing, Mark.

That judge did the right thing and apologized to your client. Unlike the judge I was complaining about earlier in this show. Okay. Way to link it back. You're brilliant like that.

That's so good. All right. Coming up, we're going to go off the record. Yeah. You want to stick around for that.

Be right back. Welcome back to positively legal. It's time for Mark and I to go off the record. This is going to be our time to do just that and rant about whatever is on our minds. Mark, what say you?

All right, Janna.

This is always on my mind.

All right. We are constantly hearing about young people committing a disproportionate number of crimes. Many of them are extremely serious offenses. Now our instinct is often to judge and condemn without ever considering how we could be part of the solution. Now I understand that.

That reaction is something I still do from time to time. I certainly did it often as a young prosecutor 30 years ago. One particular case changed my perspective forever. I was prosecuting a 16 year old serial robber who had just killed a German terrorist vacationing down here in South Florida. He asked for an opportunity to meet with us the prosecutors face to face in hopes of persuading us to give him a more reasonable plea deal.

And we're like, okay, what do you want to tell us? I sat across from him and as he was speaking more articulately than I ever envisioned him doing. I immediately thought, what a tragic dysfunctional childhood this kid had. Given the severity of his crimes, though, there was no chance that we were going to let him out of prison any time soon. I couldn't help but imagine how different his life would be.

As I'm sitting there, I'm looking at him wondering if we can turn back the clock. How that would have changed the course of his life, the victims.

“What if a caring adult got into his life when he was younger and spent just a couple of hours with him as a child?”

I truly believed in that moment it would make a difference. Immediately after that meeting, I became a mentor to an at-risk 11-year-old through the Big Brothers Big Sisters of America program.

Shaman, who's my little brother, my first little brother, he's now in his 40s and he raised his own beautiful children, and he credits me to quote, "making him the man that he is today."

I can't believe that he really feels that way. I loved spending time with him and I still love being a mentor to him. For the past two years, I've had the privilege of mentoring Abel. My next little brother, he's 16 years old and he's preparing for college right now and then eventually law school. Those ambitions weren't even on his radar when I first met with him.

He was going to the Navy, he didn't think about college, he didn't think about law school, but he's come to so many of my law classes and he watches me teach and now he wants to go to law school. Mentoring definitely works.

“I understand it's not for everyone, but if you want to profoundly impact the life of a child and in the process, have that child profoundly impact your life.”

I encourage you to reach out and get involved today. Whether it's donating, totally fine, we need your money, or giving of your time, our children need you. It will change the direction of their future and it'll change yours. John, that's what I got. Well, Mark, we're going to switch gears here a little bit.

I love that.

I love that you are a mentor and I think that that is amazing and those are profound words.

Not to be minimized by what I'm about to complain about. Okay. So, if ever, I turn up murdered, someone needs to question my cats. I shouldn't even call them my cats.

“They are cats, yes, and they reside rent free in my house, but they are far from the cute cuttily.”

Let me sleep on your head and curl up in front of the fireplace type cats on the count of they entered this world, federal and untamed. They remain. It all started innocently enough.

First one straight cat showed up at my door, Christmas Eve of all days.

I fed it a few leftover meatballs or something, and that was that. Until a week or so later, when that one cat brought a friend. I thought nothing of it, really, but did invest in some genuine cat food at that point because, well, food is my love language. It must have been theirs too, because it wasn't long before I caught these two straight cats committing cat porn in my backyard. Maybe in flower, you do not have to come with me to dig as far.

We are already here. We can spend the rest of our lives making love. Let's do the math, shall we? First, they brought me three kittens, a few months later, five, and then six. Before I knew it, I was feeding enough cats to fill two baseball roasters.

Lisa, I want some more. There is only one human way to keep a fertile cat from hopping out kittens every 65 days. You got to catch him and fix him. How hard could that be? It's fucking hard.

My well-meaning cat friends all told me to take these dirt cats to a shelter and don't look back. And I tried that I did, only to be turned away, like I was selling something nobody wanted because the shelters were all full. Wonder why? Plan B, which incidentally, they don't have for cats, although they should, was to get them fixed at a cat clinic, clinic, bring them back to my house and set them free.

Come to find out, cat clinics near me, spare newter every third Thursday between two and two twelve pm,

in months that don't end in ER and only while Morris is retrograde in the year of the rat. So I ended up taking my dirt cats to the Taj Mahal of Veterinarians who could schedule the sterilizations during my free time. And also charge me nearly 1,000 bucks a pop because they needed this test and that vaccine, and why not set a little aside for the own little feline 401k.

“After all that, who could possibly let these little feral fuckers back out in the wild?”

I mean, I need proof of life to claim them on my taxes, don't I? Currently, these ungrateful fur balls live their best lives under a bed or behind a couch, emerging every so often to summon a snack. A couple of my older ones, like Prada and Jimmy Chu, from batch number three, showed themselves so infrequently that our only interaction is usually me looking at them and wondering,

"How'd you get so fat?" And then staring straight through my soul is only a cat with criminal propensity can, as if to say, from eating dead people. Which brings me back to my original point. It's ever I end up murdered question my cats,

because they knock over a lot of shit, scratch up a lot of my skin, and puke up a lot of fur.

But the one thing they don't try to do is escape. Those animals will eat you not really fast, especially a cat. Cat will remove your head in 24 hours. It even cats that were loved by their owners, or is it just cat? No.

If you think we're had something with the owner, and they're going to say this is my team. Yeah, no, they're absolutely feeding on you.

“You know, I don't care how much you love that cat and that cat loved you.”

He's going to eat you. Makes one wonder, doesn't it? Well, great job. Great job. I'm so allergic.

I'm so allergic to cats I am. You too? Me too. Yeah. But I do it anyway.

Mark that's my mentoring. But can we say a big thank you to your former client and our guest Miguel. I see. Thank you. Thank you to my co-host Mark.

Well, thank you. Thank you. But hold on.

“We do not leave positively legal without saying what we're grateful for.”

I will not let you out until you at least, right? Because gratitude is the antidote for stinking thinking. So all of our viewers at the same time take a moment to think what you're grateful for. It could just be the last breath you had. My mother, my mother passed away years ago.

She would, I would say kill for that last breath. Thank you. Everybody should be grateful for the fact that we're here and and all the wonderful things in our lives. John, you got something you're grateful for.

You're not going to go first.

I'll go first. You go first. I'll tell you this right off the bat. I just got back last night from University of Florida where my daughter Julia. So proud of first.

She graduated with honors. All my three kids were there. My wife of 25 years. We had beautiful dinners together. We spoke eloquently and just lovingly about Julia and all of our accomplishments.

She's headed to law school. I have no idea why. Once at the fin those guilty people don't know why. But we're so proud of her. And I'm so grateful for her.

My family, my wife. I'm grateful to you. I'm grateful to these producers here. And I love positively legal. Your turn.

I'm grateful that my Botox doctor texted me to do a welfare check. That's really special. Yes. I want to thank. And I miss you too.

And I will I will be texting him back. I am grateful for that. Okay. And I'm grateful to you, Jonathan. All right.

Take us. Take us home. Let's finish this. All right. So wait.

Wait a minute. Gotta use these. Thank you for joining us and remember. Episodes and positively legal drop every Wednesday. We can't wait to see you again next week.

Have a great week. We hope you choose happiness. Peace.