Tupac: The Trial Wrap-up

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1:14Anoushka Mutanda-Dougherty:Hello and welcome back to the Tupac Murder Trial from Fame Under Fire from BBC Sounds with me, Anushka Matanda-Doughty. Today, we're closing the chapters of this trial. I didn't think we would be here so quickly, but it's only right that we are joined by our resident trial attorney, Sean Kent. Hi, Sean. Hey, Anushka. How are you doing? I'm good, thank you. So we have our conviction. Dwayne Kifidi Davis convicted of murder in the first degree with supplying a deadly weapon. Initial reactions from you? Well, luckily, you and I have talked throughout the course of the trial. And was I shocked that there was a conviction?

1:45Not really. If you would have told me this before the trial and looking at the evidence, I probably would have been more shocked. I think probably the most shock was the quickness of the verdict. Three hours on a two-week trial is a pretty quick verdict. So yes and no, I guess to answer your questions.

2:01Anoushka Mutanda-Dougherty:Yeah. I mean, we were texting and you were like, usually a quick verdict means not guilty. Usually. And of course, we say usually. There's always different types of rules. But usually when a jury is sitting there, just think of your common sense. If you're about to send a man away for life, you're going to spend a little longer than three hours thinking about it. So usually, if you're going to cut someone loose, three hours, you're like, all right, I can let them loose. But if you want someone to spend the rest of their life in prison, you would think that a jury would spend a lot more time unless they're really convinced he did it.

2:30And they were really convinced he did it. You will remember that like an hour of that was lunch as well.

2:35Anoushka Mutanda-Dougherty:Yeah. Yeah. They got to eat, got a little sandwich, got to hang out in the Vegas heat. Yeah. I mean, insanely quick. But I just want to go over some of the stuff that I was thinking about during it. So first of all, during opening statements, we went through first degree murder and also second degree murder. And then there was a consideration about premeditation because premeditation is removed when it's second degree murder, right? Correct. You're exactly right. It's murder without the premeditation. And so I was thinking premeditation, obviously, they're driving around. The prosecutorial theory is that Dwayne Kiviti Davis and the three others in the car are driving around Las Vegas, maybe going to Club 662 to look for them.

3:10Anoushka Mutanda-Dougherty:They're in a liquor store. Then they randomly, according to the prosecution, hear some girls shouting Tupac, Tupac. And that's what leads to it. Tupac, Tupac. And that's actually a very accurate, I think we will maybe, if you go back and listen to the episode, that is exactly how Dwayne Keefer D. Davis says it in the interview tapes from law enforcement from 2008, which was quite jarring. But the idea is he hears those girls, sees the car, and then the shots are fired. How long does it have to be to establish premeditation? Because it's obviously he didn't plan two days prior to pull up in a white Cadillac and shoot out of the car.

3:42Premeditation does not take long. In South Carolina, we actually tell the jury it can be a mere seconds, premeditation. You can think about something very quickly. So premeditation does not take long. And so that's one of the things that most judges do not require. Most states do not require a jury to prove that they thought about it for hours and hours and hours. Premeditation can happen at a moment's notice as long as you think about doing something that quickly.

4:04Anoushka Mutanda-Dougherty:And obviously Dwayne Keefee D. Davis or Keefee D. as was introduced by Sam, apparently we were all saying it wrong. Keefee. Keefee. Could be spending the rest of his life in jail, right? Could be. Sentencing. like, and you're the one who told me sentencing is not going to be happening until October. I appreciate a judge doing that because usually that means the judge wants to take their time. They want to reevaluate it. They don't want to make a ruling based upon emotions. And so they want to look back. But given Keefe's age, given the fact that he has been convicted of a murder charge, I would say any sentence he receives is a life sentence.

4:39Any. And so I think the best way to describe it is he's getting a life sentence in prison as a result.

4:44Anoushka Mutanda-Dougherty:So we had supplying a deadly weapon they found him guilty of. The prosecution voluntarily dropped the gang enhancement. I'm assuming that their thinking is just like, well, he's been convicted. We don't need to slap this on. They said logistically it was going to be too difficult to get the expert there that could have convinced the jury that the shooting took place in furtherance of gang activity. Although there was a lot of time spent going over that in the trial. Does that mean that they were, when they were deliberating, they were unsure of that? Because surely they should have just been deliberating on that from the moment they went in the other room.

5:11And this is one of the things that you just don't know, because every jury is different. They all go back. These are 12 strangers who goes in a room. And, you know, you and I joked about it. I mean, I don't want to joke. We're very serious about it. But they don't give the jury a lot of instructions on how you deliberate. They just send you in there and say, hey, fam, y 'all go figure out this murder. And so who knows what they did when they went to the back. They could have been confused about stuff, not confused. But the one thing they were not confused is he was guilty of first degree murder.

5:36Anoushka Mutanda-Dougherty:I mean, we did hear them asking quite a lot of questions about gang activity, particularly. the question came up, was Tupac a gang member? Yeah, I saw that. That was wild. But that's interesting, though, because the thinking there could be if he's not a gang member, then how is this in furtherance of gang activity because he's not a target of that particular gang? And that's the great thing. I mean, I do like it, hearing these jury questions. It's going to be weird going - I do not. I do not. Yeah, no, you don't. You're not a fencer to any. The most intelligent thing I heard from the entire trial came from Anushka and saying, man, how can you ever get reasonable doubt when the jury's out here playing 20 questions?

6:08I was like, right? It scares the hell out of me. You're not wrong on that point. So but it I can understand how that system can get a more fair result because the jury is making sure they have no questions in their mind whatsoever about the witnesses and so forth.

6:23Anoushka Mutanda-Dougherty:And now another big question that we keep being asked and was something that did once again come up in jury questions is what about other people? The jury instructions were very clear. You can find the defendant guilty even if you think other people were also guilty of this crime or involved in this crime. It was interesting to see that in jury instructions very clearly, even if you think other people were involved. Obviously, Orlando Anderson was involved, but he's dead. You can still find the defendant guilty. So we have sentencing on the 13th of October for Keefy D. And he made clear during the verdict or just after the verdict that he wants to appeal this decision.

6:59Anoushka Mutanda-Dougherty:Actually, he said, judge, can I have my iPads and my phones back? He wanted his iPad. He wanted to make sure he got a iPad and some candy. I think what he said. No, I'm just kidding. He wanted his iPad. I just found out that they get given tablets in jail. Yes, yes. They are all given tablets. Just give me my iPad and a couple of boxes of candy. That's all I need. Yeah, that was the priority list from Keefy was iPads and laptops. And then I want to appeal this decision. And the judge obviously said, well, that happens at sentencing. How do you begin that process? What does that look like? So first, he's got to be sentenced.

7:29And that's got to happen, like you said, in October. The judge has got to give him a number. And then he is given his sentence. And then after that, his appellate counsel, which is probably not going to be the same as his trial counsel, and he can get an appellate lawyer appointed to him. They will tell the court that they file what's called notice of intent to appeal, that we would like to appeal the decision of the jury or the judge or so forth. And then later, after they file that, that sort of stays the statute of limitations because you only have a certain amount of time to actually file this appeal.

7:57Then after it's filed, then some appellate lawyers will go read the transcript. Remember you asked me that question about the lady with the thing over her mouth, the court reporter who's taking down every word? Well, they'll read that transcript and they'll look for errors of law, things that the judge did wrong that they can appeal upon. Now, the only thing they can appeal upon are things that are objected from or things that were fundamentally done incorrect. They cannot just object for things that they don't like. They cannot just appeal because they don't like the number he got. It has to be a specific error of the law and someone had to object to that error of the law to make sure there is a protection.

8:35And that's the only way that we know to appeal things. If you don't object, it ain't protected for appeal.

8:40Anoushka Mutanda-Dougherty:Do you think there were moments where there could have been objections and there weren't? Oh, I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'll wait on your question. I'll wait. Not to quote Samft, but you're a little eager there, honey. I'll wait. I'll wait. I'll wait. Sean, do you think there were moments within this trial where the defense team could have objected and didn't? That is a great question, Nushka. Let me think about that for a moment and give it the credit in which it is due. Hmm. Hmm. Yes. Yes, I do. Okay, so anything that comes to mind or? So much. And again, it's hard for me because I'm not in the courtroom.

9:15And so I don't know the complete procedures. But there were things where I would watch and you would not hear a contemporaneous objection. So what do we mean by contemporaneous? When someone says something that is just messed up, you must object right then and there. You cannot wait moments. You cannot wait minutes. You can't wait to another witness. You must object right then and there so the judge can make a proper ruling. I'm going to give you an example of a contemporaneous objection that was done correctly. During closing argument, the state of Nevada made an argument or somewhat of an argument that we have not heard from KPD.

9:50He has not said a word and he has not told you anything. Well, there was an objection immediately because everybody knows you cannot comment on an individual's right to remain silent. That is a contemporaneous objection. So that is going to be protected for appeal. And the appellate court later will ask, did what the prosecutors say, did it cost Keefe D. not to get a proper trial? That's proper. There were other things made that I could have seen objections made at the same time. I talked to you about one of my big concerns about this case. And there were a lot of objections made pre-trial. But remember, I told you they've got to be made contemporaneous.

10:23There was a lot of situations when they brought up a lot of Keefe D.'s past. The fact that he is a drug dealer, the fact that he is a liar, the fact that he is a snitch, the fact that he is a bad person. And all of this came in, the fact that he was currently in or he had served time for another assault. All this came in and I didn't hear the word objection. One of the things you could be objecting to, and a court could read this later and say, they made KPD a bad person without him saying a word and it had nothing to do with whether or not he was responsible for the killing. I could see that being objection and I never heard the word objection.

10:56Anoushka Mutanda-Dougherty:There were a few times as well where it felt like he was being spoken for on the part of the prosecution. Like, Keefe was laughing about this because he found it funny. Keefe was saying this because he, whatever, whatever. And it was like, well, how do you know that? Because we're not hearing from him. So that I thought could have been objected to. And you, and I'm sorry to interrupt you. I apologize for cutting off, but you are able to catch those things. You don't have to have a legal mind to be watching something and be like, hey, man, that doesn't sound right. Hey, man, that make him look bad.

11:23How do you know what Keefe D is thinking? There were so many of those incidents and we didn't hear the word objection to protect it on the record. And even not necessarily protect it to the record to signify to a jury who is watching, hey, y 'all, this is messed up. We didn't hear a lot of that.

11:38Anoushka Mutanda-Dougherty:Yeah, even the idea of like he's written this book to profit off a murder, which was said multiple times. Calls to the ultimate conclusion. You don't know what he wrote the book for. You didn't ask him the question. A lot of that is what's called burden shifting. You probably heard throughout the case that the burden of proof is on the state. They must prove their case. A lot of times they were saying, well, why would someone do this if not that? Well, that shifts the burden to the defense to say, well, why did I do this? Why did I say this? Why did I do those things? That's not proper. And we didn't hear a lot of objections.

12:08So we didn't get a lot of rulings from the court on why does the court believe that's proper? And so I did see some mistakes there.

12:15Anoushka Mutanda-Dougherty:It was interesting you say about burden shifting because that was actually brought up in closing arguments. It was put on the screen by Sanft and it was part of what he presented to the jury as closing arguments. but yet there wasn't objections when it was happening contemporaneously in the court. So are you saying that now if they wanted to appeal based on that, they just can't because it wasn't objected to at the time? Exactly. If it's not contemporaneous object to, a court doesn't know. You know, they always say that the court of appeals are like well-behaved children. They are seen and not heard and they don't talk until they're spoken to.

12:47So the court of appeals doesn't just get involved and say, let's talk about what you did wrong. They wait for you to ask them questions and do things or they don't get involved.

12:54Anoushka Mutanda-Dougherty:But what about from Dwayne Davis's perspective? It's not like it was on him to object. Can't he say, my attorney messed up. That's not my fault. I shouldn't go to jail because they messed up. And there is something in the law called PCR, which is also known as post-conviction relief. And that is the avenue where Dwayne can come forward and say, my lawyer did a bad job. That's not appealing. That is saying, I did not get a fair case because my lawyer did such a poor job that it affected me. And he has the right to do that as well. He can file a PCR application and he can go to another court and they can be reading it and he could say things such as my lawyer did not object.

13:31My lawyer did not protect the record.

13:33Anoushka Mutanda-Dougherty:Potentially there's a route there, although, you know, in no way is this a critique of Samft because actually at the beginning, after he gave opening statements, a lot of the mood around the court, which was particularly with members of the public. I like to talk to them because it's members of the public who are on that jury. It was like this is an open and shut case. And then when he came out with his theory of the case, which is essentially this guy talks a lot of crap and self-aggrandizes 24-7 and is trying to profit off it because I don't think there's a pension scheme for gangbanging. It shifted a lot of people's thought process.

14:03Anoushka Mutanda-Dougherty:And then the continuous referral to there are no material facts. And after closing arguments, there was still not a witness, not a picture, not a ticket stub, nothing that placed that man in Las Vegas on the 7th of September 1996. That is all true. No, I specifically remember watching that. And I'm not just calling you out. I watched the opening statement on behalf of the defense, and I flat out said it was really good. I said the one thing I was concerned about, I think we talked about it, is made a lot of promises. And so I hope he can live up to all. I said it at the time. Made a lot of promises.

14:34Made bold assertions. I hope he can live up to assertions because if he can, this is a good case for him. I was really, really impressed with the opening statement on behalf of the defense. between the opening of the state, the opening of the defense, the closing of the state, the closing of the defense and the rebuttal closing by this state. The opening by the defense was the best given in the entire trial.

14:55Anoushka Mutanda-Dougherty:But like I said, the opening statements from the defense got people thinking differently about the case. But something else that was reflected on a lot and you could hear around the court is when the prosecution did their closing arguments and they kept saying, you know, as a point of law, you do not need to corroborate statements that the defendant has made if you believe the statement of the defendant to be true at the time and obviously we have heard a million and one statements from Dwayne Davis but particularly that 2008 proffer agreement interview that we had played and they said look if we thought he was lying we could have done something with that but because we believed he was telling the truth in that proffer agreement we had to stick by our word and he didn't serve a day of that life sentence he was facing for drug trafficking and that's proof that that 2008 interview was believed to be true by the police at the time and therefore you should believe it to be true right now when it's being played and you're listening to it and that shifted a lot of what people were saying but the thing that stuck with me is okay if he's given the statement and you believe it to be a true statement that's one half of it the jury also instructed that they had to believe he wasn't coerced into giving that particular interview or making that particular statement and part of that coercion they mentioned like intellect him being able to understand what was going on, him knowing his constitutional rights.

16:11Anoushka Mutanda-Dougherty:I thought that was really interesting because in the rebuttal, the prosecution, they didn't flat out call him thick or stupid, but they did say that you read his book, you're not going to get any smarter. And there were a lot of like jabs at perhaps his intellect. I thought that's kind of opening the door to being like, well, you think he's stupid. So, you know, when he did these interviews with you, how do we know he had a full grasp of understanding of what was going on? I'm not going to pat you on your back, but these are the things that defense lawyers should be picking up on. And what ends up happening is when you watch certain closing arguments, the defense lawyer is so focused on getting out the things that he wants to say that they're not focusing and listening to what the prosecution says.

16:53And they did open the door for some creative stuff that this dude is stupid, and if he's so dumb, how would he have understood? I agree with you. I think that's very clever that you picked up on that.

17:01Anoushka Mutanda-Dougherty:Thank you very much. There were some fairly glaring mistakes. And again, I don't want to talk poorly because he's got a hard job to do, but there's some pretty glaring mistakes. Mistake one, you tell your client when you're getting ready for trial, you and I have talked about this. You sit down with that client for hours, if not days on how do you act when you're in the courtroom. Don't smile at witnesses. Don't stare at witnesses. We'll give them a notepad and a piece of paper. And I'm like, you want to say something? Write it down. We prefer that our clients, when they're looking at a witness who is giving damning testimony, not refer them as rats.