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Transcript for Trial Lawyer Talk, Episode 15, with Emily Detoto

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Scott Glovsky: Welcome to Trial Lawyer Talk. I am Scott Glovsky and I am your host for this podcast where we speak with some of the best trial lawyers in the United States. Today we are very lucky we have with us Emily Detoto, who is an amazing criminal defense lawyer in Houston, Texas. Before Emily started her private practice in criminal defense, she was a prosecutor. She is going to share with us an amazing story of her involvement in the prosecution of an innocent man and her meeting with him many years later after he got out of prison. Let’s get started.

I am very happy to be sitting with Emily Detoto, who is a phenomenal criminal defense lawyer from Houston. Emily has handled many high-profile cases and is a tremendous trial lawyer. Emily, thanks for being here.

Emily Detoto: Thank you, Scott. Thanks for inviting me.

SG: Emily, can you tell me a story of a case that had a profound impact on you?

ED: Sure. There was a case I handled when I was a young prosecutor with the Harris County District Attorney’s Office. I do not remember the date, but I remember that I was a young prosecutor and I was assigned to a felony court. It was kind of a big case because it was a case where there was an actual victim involved. Back then, when you were a felony prosecutor and you got assigned to a case where there was a victim, it meant that you were getting higher up in the office, so it was kind of a big deal.

The case was an aggravated assault, which means that someone is very badly injured and someone can stand to go to prison for up to 20 years. Why the case stuck out in my mind was because both the brutality of the case and the fact that the person who was accused was a young Hispanic male. I, being Hispanic and young at the time, I was disappointed in the fact that this kid, the accused, seemed to have his world in front of him and he chose to commit a horrific act that seemed senseless. He came from a good family; I believe he was in the ROTC; he had an intact family unit; he had siblings, and he had a good job. It just seemed that he committed a senseless crime. The story was that he was employed at a plumbing company and one morning the owners of the plumbing company went down to the basement and they found a woman that they did not recognize, badly beaten, and unrecognizable, and I believe that her stockings were lowered down by her ankles.

They took her to the hospital and when she came to, the first name she said was ‘Gilbert.’ After a couple days of recovery, they did more investigation and she was able to tell them the name of the person who she believed assaulted her. She said it was a man named Gilbert Amezquita. It turns out that that person, Gilbert, had just recently been fired from the plumbing company. They tracked him down and it turned out he had just been fired and she identified him in a photo array, which is a bunch of photographs they put together. They arrested him and he was brought to trial. She came to court and she pointed him out and swore under oath that he was, in fact, the man that beat her. The pictures were horrible; the injuries were horrible. She suffered a miscarriage and she was very, very certain that it was him. Gilbert, on the other hand, plead not guilty and he called at least four witnesses, that we call alibi witnesses, saying that he was not there at the time. I cross-examined them and I guess the jury did not believe them and they ended up finding Gilbert guilty.

SG: How did that make you feel at the time as a young prosecutor with a big case?

ED: At the time, I felt really proud of myself because, at the time– and I say ‘at the time,’ I do not have reason to believe that the policy has changed, but at the time, you got promoted by how many convictions you got and how much penitentiary time you were able to get on a defendant, so being able to get a conviction on a case and also being able to get justice for this woman, I felt really proud of myself. On the other hand, I was actually still very disappointed in this guy because, like I said, he had his whole world in front of him.

SG: And you identified with him.

ED: And I could identify with him. So, in Texas, you have a choice of whether to go to the judge or to the jury for punishment and, in this case, the defendant chose to go to the judge for punishment. Although he had no criminal history to speak of, he had never really been in trouble before, because he was charged with an aggravated offense, he was not eligible for probation and he was sentenced to 15 years in prison. I will never forget that, as they were hauling him off to prison, he looked back at his family and he kept saying, ‘I am innocent. I am innocent.’ That should have been the end of the story, to be quite honest. I ended up quitting the DA’s office, maybe a year afterward; I do not really remember when.

Fast forward about nine years later. Well, let me backtrack. I ended up quitting the DA’s office a little bit after that case was over with; having nothing to do with that case, I just moved on. I became a criminal defense attorney; I went to work for a criminal defense firm. I ended up attending the Gerry Spence Trial Lawyers College in Wyoming and started defending people accused of crimes. After graduating from the college, year after year, after year, I went back to the graduate course. If we fast forward nine years after the date of that trial, I found myself sitting in a restaurant in Jackson Hole, Wyoming. I looked at my phone and I got an email… I guess it was a press release of some sort, that said the governor had pardoned a man named Gilbert Amezquita on the basis of actual innocence. My heart absolutely stopped because that was the man who I had prosecuted and had been sentenced to 15 years.

Now, you have to understand, it had been years since I had prosecuted that case. I had handled probably hundreds of criminal cases as a prosecutor and hundreds as a criminal defense attorney; there is absolutely no reason why I should have remembered his name, but the fact that when I saw his name that I remembered it shows you how significant that case still was to me to that day. When I read that he was exonerated and released from prison because he was actually innocent, my heart broke. I have no idea why my first compulsion was to immediately get a hold of his appellate lawyer and ask him to get a hold of Gilbert and ask Gilbert if he would please meet with me because I wanted to apologize.

I immediately found his lawyer’s email address and I immediately shot off an email and before I could think twice, I hit send… before I could rethink that decision to unsend. Unfortunately, he immediately replied, ‘Oh, that would be a very nice thing. Let me ask him.’ I want to say that when I made the decision that I wanted to apologize to him, I did not want to apologize because I felt that I had done something wrong. I wanted to apologize because I felt that something wrong had happened to him and I wanted to apologize for my part in the failing of the system; I wanted to apologize for my part in what had happened to him because I wholeheartedly believed that the victim believed it was him. She knew the man and I had no reason to believe that she was lying, but I felt I did owe him an apology because he lost nine years of his life and I had something to do with it.

I do not remember if it was weeks or months after I got back from Wyoming, but nevertheless, at some point in time, we set up a meeting; Gilbert agreed to meet with me. I drove to the lawyer’s office and I remember I had to take a long elevator ride up to the lawyer’s office and I wanted to get out of the elevator several times on the way up and started trying to convince myself why he did not deserve an apology and it was not my fault, trying to talk myself out of it. Then, I remembered all the things I had learned at the Gerry Spence Trial Lawyers College about forgiveness and authenticity, being honest, and how a lot of the times when people ask for forgiveness or apologize, it is not… I mean, he could have rejected my apology, but I needed to get it off of my chest, to move on.

I got out of the elevator, I walked into the lawyer’s office and, unfortunately, there was no lobby, it was just an office, and there he was; the same young man who nine years ago was 19 years old when I prosecuted him. He was nine years older. He had that pasty white, institutionalized look that people who have been in prison get that, as a criminal defense attorney, I am very well aware of and have seen many, many times before. He had that sort of hunched over, hands behind your back, institutionalized posture that people who have been incarcerated get because that is how they are supposed to walk when they walk in prison; they have to always have their hands behind their back and not make eye contact. There he was. For some reason, we both looked at each other and our first instinct was that we both just began to cry. You have to understand, I had not seen this man… the last time I saw him was nine years ago being hauled off to prison saying, ‘I am innocent. I am innocent.’ At that time, I had absolutely zero emotion…well, that is not true. I was proud that I had gotten a conviction and justice. Fast forward, nine years later, I see that same man and now we are both sobbing.

SG: I can see a tear in your eye.

ED: I know.

SG: If your tear could talk, what would it say?

ED: It would say, ‘I am very sorry.’ It would say, ‘I am so, so sorry.’ The one thing that I learned at the Trial Lawyers College is how to apologize. So, I sat him down in a chair, kind of like that way you and I are sitting; we are face-to-face. I put a chair in front of him and I asked him if he would take my hands and he did. I took his hands and I looked him in the eye and I said, ‘I am so, so sorry. I am so, so sorry.’

I said, ‘Will you please forgive me?’ He said, ‘I do forgive you.’ I said, ‘Will you please ask your mother to forgive me?’ Because his mother… I was not a mother then; I am a mother now and I was a mother at the time I apologized to him. I was not a mother when I prosecuted him; I had become a mother at the time I apologized to him and it did not resonate with me, the way it did at the time I apologized, what it must feel like to see your child hauled away off to prison.

So, I asked him, ‘Will you please tell your mother I am sorry?’ He said that he would. We sat there and we chatted; the whole conversation probably did not last more than 30 minutes, but we talked about what his life was like over the last nine years. He told me that his wife miscarried her baby when she heard the verdict and he told me how she divorced him. Meanwhile, I told him how I had gotten married and had children.

He showed me a copy of the exoneration that the governor had signed; I had never seen one before and he gave me a copy. We left with a huge, huge, long, long bear hug and we have never spoken since, but I think that we both got what we needed that day. I was left with a newfound sense of the power of an apology and the power of what it feels like to truly be forgiven and the power of having the courage to take a step and although you might be hugely rejected… and I can say that was the one case that has stayed with me and will for the rest of my life.

SG: How has that case impacted you in the future?

ED: Well, I have since used that case in various talks I have given at legal seminars on eyewitness identification. I have become, in my eyes, an expert in eyewitness identification. It just goes to show that certainty does not equal accuracy; it literally has become the backbone to my career as far as defending people. If it can happen to me on my watch, it can happen to anyone. Through no cutting of corners, through no hiding of evidence, through no trickery, but through straight-up honesty; a witness, we thought she was telling the truth; an innocent man went to prison. It does happen, I have seen it happen, it can happen. It shook me.

SG: I can feel your guilt.

ED: Yes.

SG: How do you have the courage to tell this story?

ED: Well, I have the courage to tell the story because my hands are– this sounds defensive, but it is my truth– my hands are clean in what happened. I believed in the evidence; I believed in where the evidence took me. Unfortunately, it was wrong. I stand up and I tell my story so that it does not happen to someone else.

SG: Does that give you energy and power to do what you do?

ED: It most definitely gives me energy and power to do what I do because every person matters. To be quite honest with you, knowing what I know now, there were a series of mistakes that the defense attorney made in defending this young man that, had I been defending him, he probably would never have gone to prison. It has just opened my eyes to how everyone deserves zealous representation. I keep Gilbert in the back of my head at all times, I keep him in my heart.

SG: What has being a trial lawyer taken out of you?

ED: What has being a trial lawyer taken out of me? Well, I can say that if we were going to measure proportionately if it has taken more than I have gotten, I have definitely gotten more than it has taken. I can tell you that the only thing that being a trial lawyer has truly taken from me is just time. It has not taken my heart, it has not taken my soul, it has not taken my belief in justice, it has not taken my hope, it has not taken my will, it has not taken anything that is good. Now, yes, are hours of my life good, yes, but I would not trade any of those for the hours I have been able to help others. If we were going to measure proportionately what I have lost by being a trial lawyer, all I can say is time, but what I have gotten back, it is immeasurable.

SG: Tell me about that.

ED: I have gotten to give people’s lives back; I have gotten to give children their fathers back, their mothers back; I have gotten to keep families together; I have gotten to keep innocent people from being imprisoned in a four-by-six cell, deprived of sunlight and air and the liberty to walk where they want to walk, on grass, or swim, or eat what they want, or being treated like human beings. I have been able to give people their dignity back. I have been able to stand up and tells someone, ‘You matter.’ I have been able to even up the fight and that is really what matters to me. I like a fair fight and I have been able to show up, I have been able to be there, and I have been able to even the fight for someone.

SG: I can feel the fighter in you. Where does that come from?

ED: Where does the fighter in me come from? I was a middle child, so that could have something to do with it. I grew up watching boxing and I did tae kwon do my whole life, so that could have something to do with it. I disliked bullies greatly. I was one of the only Hispanic families in Highland, Michigan, and was bullied because the color of my skin growing up. I have always felt like I never fit in; was always the odd girl out, I think; kind of always the ugly duckling, if you will; grew out of it later than I should have; have always been very self-conscious, so when I see other people being mistreated, my first instinct is to fight for them. People that are not used to fighting for themselves can fight for others, so I think that that is where that comes from.

SG: What is the hardest thing about being a criminal defense lawyer?

ED: I think the hardest thing about being a criminal defense lawyer is the second-guessing after losing a case. The prosecution gets the last word. It is when you sit down after taking your closing argument and you think of all the brilliant things you could have said. It is the after you lost the case and your client gets hauled away in shackles and gives you that look of desperation, that look of ‘now, what do I do,’ that look of ‘what is going to happen to me now,’ that look of ‘what did you just do to me,’ and then having to turn around and face the family who had placed all of their hope in you and trust in you and having to look at them in the eye and tell them, ‘I failed.’

SG: I can feel your pain. Is your pain related to your power?

ED: My pain is related to that I greatly dislike disappointing people and I greatly dislike having to explain to people that I failed. I guess I do not like seeing mothers grieve for their children being taken away. I do not like seeing children cry when their parents are taken away in shackles. It is the pain of separation of the family and when something like that happens, it is really overwhelming to me.

SG: What is your proudest moment as a trial lawyer?

ED: What is my proudest moment? Well, let me see; there are just so many, Scott. There is a case that I recently tried that I was appointed to actually. It was a young African-American man and he was accused of assaulting a police officer at a nightclub. My client was on bond at the time of trial, which obviously meant that he was not in jail. He was accused of a felony, a very serious crime, but they were offering him a reduced misdemeanor; it was a pretty lenient deal. In my eyes, I thought it was actually a pretty good deal because it is kind of difficult to defend a case when the main witness is a police officer who says, ‘this man hit me,’ and there is a photograph of a welt underneath the officer’s eye.

I spoke with this gentleman and I said, ‘What do you think,’ and he said, ‘Nope, I am not taking it. All I have is my name and I did not do it.’ I said, ‘Well, if you want to go to trial, let’s go,’ but deep down inside, I was terrified because if we lost, he really could go to prison. They were offering him something that was not even prison; it was probation. We went to trial and the officer came to court, two officers came, and testified that, yes, in fact, this man hit him and they introduced the photograph and the other officer came and backed up the other officer’s story and a bouncer came and said, ‘Yep, it is just like these two officers said,’ and my client took the stand and he testified and he said who he was and what happened. They found my client not guilty. After I got over the shock, I was so proud. I was not proud of myself; I was proud of my client. I was proud of him because he knew the consequences of rejecting a reduced misdemeanor, no conviction probation; he knew that he was rolling the dice; he knew it was for all the marbles; he knew that it was his African-American word against the word of two white police officers and he went all in. It was one of my proudest moments as a criminal defense attorney, but not because of what I did, because of what he did.

SG: Why do so many trial lawyers who have such tremendous success and are such talented lawyers not see themselves as the great successes that they are?

ED: I think that if you are going to be a great trial lawyer, you have to stay humble, because if you start thinking too much of yourself, you are not going to be authentic with juries. I have found that the minute I get too into myself is when I stop being real. It is not Emily Detoto who is the hero in any criminal jury trial, it is the jurors who are the heroes; it is my client who is the hero. He got up there and told his story. All I did was ask the questions; that is really all I did. In any criminal case, all I can do is just tell the truth of what happened. I do not have any better skill than you do or than anybody else does, to be honest with you.

SG: Emily, you are certainly a hero in my eyes and I know that you are a hero now in all the listeners’ eyes, listeners’ ears, or listeners’ head. Thank you very much, on behalf of all the clients you have served, on behalf of the lawyers you have taught, and all the wonderful things that you are doing, and taking the time to be with me tonight.

ED: Thank you so much.

SG: Thank you.

Thank you for joining us today for Trial Lawyer Talk. If you like the show, I would really appreciate it if you could give us a good review on iTunes and I would love to get your feedback. You can reach me at scottglovsky.wpengine.com, that is S-C-O-T-T-G-L-O-V-S-K-Y dot com and I would love to hear your feedback. You can also check out the book that I published called Fighting Health Insurance Denials: A Primer for Lawyers – that is on Amazon. I put the book together based on 20 years of suing health insurance companies for denying medical care to people and it provides a general outline of how to fight health insurance denials. Have a great week and we will talk to you in the next episode.

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