Robert McCabe, a former aspirant of law enforcement, has transitioned into a formidable legal advocate for officers, a journey he shares on the Blue Grit stage. His narratives highlight the intricate dynamics of courtroom battles, underscored by the behind-the-scenes support of law enforcement. From his beginnings in the streets of Dallas to the intensity of high-stakes trials, McCabe's experiences offer insight into his dedication to championing those who wear the badge.
In his presentation, McCabe provides an insider's perspective on the Texas legal landscape, where achieving board certification in criminal law is a significant achievement. He sheds light on the meticulous process of safeguarding officers during critical incidents, stressing the importance of prompt and strategic legal intervention. Through dissecting real-world scenarios, McCabe demonstrates how even the smallest piece of evidence can sway a jury and how external pressures can turn courtrooms into battlegrounds.
One of McCabe's key points is the crucial distinction between policy infractions and criminal allegations, a differentiation that holds immense significance for law enforcement professionals. His legal acumen aids in navigating this fine line, ultimately serving to protect those who serve and protect our communities. Overall, McCabe's journey and insights offer a compelling narrative of dedication and advocacy within the legal realm of law enforcement.
email us at- bluegrit@tmpa.org
Robert McCabe, a former aspirant of law enforcement, has transitioned into a formidable legal advocate for officers, a journey he shares on the Blue Grit stage. His narratives highlight the intricate dynamics of courtroom battles, underscored by the behind-the-scenes support of law enforcement. From his beginnings in the streets of Dallas to the intensity of high-stakes trials, McCabe's experiences offer insight into his dedication to championing those who wear the badge.
In his presentation, McCabe provides an insider's perspective on the Texas legal landscape, where achieving board certification in criminal law is a significant achievement. He sheds light on the meticulous process of safeguarding officers during critical incidents, stressing the importance of prompt and strategic legal intervention. Through dissecting real-world scenarios, McCabe demonstrates how even the smallest piece of evidence can sway a jury and how external pressures can turn courtrooms into battlegrounds.
One of McCabe's key points is the crucial distinction between policy infractions and criminal allegations, a differentiation that holds immense significance for law enforcement professionals. His legal acumen aids in navigating this fine line, ultimately serving to protect those who serve and protect our communities. Overall, McCabe's journey and insights offer a compelling narrative of dedication and advocacy within the legal realm of law enforcement.
email us at- bluegrit@tmpa.org
And the woman's on the phone with dispatch and she's saying they've got a gun. They're coming to the door. They're coming to the door with a gun. The woman had told the call taker they put the gun down and she didn't relay that message to the deputy. The door swings open and it looks just like a shotgun swinging out and this woman steps out and he shoots and kills her.
Speaker 2:Welcome back. Viewers, watchers, listeners, I'm your host, tyler Owen, and our co-host today is JW John Wilkerson man. Welcome back to the blue grits.
Speaker 3:Yeah, appreciate you having me here, Tyler.
Speaker 2:Well, we have just got back from Galveston. We went down there and supported our members there at the Mardi Gras. For those that don't know, galveston has a humongous Mardi Gras. I think it's close to 500,000 people and I want to say that the crowd, the law enforcement that works down there, is close to four to 500. So if you can imagine the number of ratio to citizens versus officer ratio, that's pretty substantial and so there's not a huge, you know, there's not a lot of issues that happen there and it has everything to do with the dedication that Galveston PD has.
Speaker 2:Galveston Sheriff's Office has state local DPS, game Wardens, oig. I've seen everybody down there working and the cool thing about Galveston is they all seem to work together. It's a unique place and so shout out to those guys for another successful Mardi Gras. We enjoyed it, enjoyed hanging out with you guys and supporting you guys in that role. So, speaking of roles and guests, we've got a guest. On the day that John Wilkerson, now that he's in legislative affairs, was a field rep and worked with this person for a very long time, good friend of law enforcement, good friend and, and quite honestly, a damn good attorney. So intro our guest.
Speaker 3:Yeah, so with us today we have Robert McCabe. It's been a long time attorney for TMPA. Everybody that knows our legal plan. They know that. You get to the attorney of your choice and I will tell you. In central Texas there's back when I was taking legal calls on a routine basis. If it was a critical incident, administrative investigation, anything like that in the central Texas area, I could pretty much count on who they're going to be asking for. If they, if they made that request and it's going to be Robert McCabe and his law partner leads the Rojas. When did she come on?
Speaker 1:She came on about six or seven years ago.
Speaker 3:Yeah, so I remember there for a while it was just you that was operating there. But yeah, he's a. He's a rock star here in central Texas. I know I've called on him personally. Funny story and we may get into during the show. But, as over the Kempner flag gate incident, when, when when I had charges filed against me for allowing one of our members to change a tattered flag and I called Robert and told him a story and he laughed and said I got you so yeah, yeah.
Speaker 2:Well, you've done phenomenal work for us and let's just let's just call bullshit where bullshit needs to be called, that. How, how can I put this delicately? It takes a special person to not only be an attorney shameless, shout out but also be an attorney for public servants, because, for whatever reason I don't know why this is we put ourselves in predicaments that just are just the absolutely craziest situations you know sometimes, and so and that's not just with critical incidents is where we're the challenges that we face. But shout out to you and thank you for representing our members here in central Texas, and your reputation speaks volumes of who you are in that in that manner. So thank you.
Speaker 1:Well, thank you, it's a. It's a very interesting work. I'll keep keep, keep me entertained for sure.
Speaker 2:Yeah, for sure, for sure. We like to start the podcast out, or podcast out, by saying you know who? The hell's, robert, where'd you grow up? How'd you get in law school, or how? How did, how did this adventure begin?
Speaker 1:Sure. So I grew up in Dallas. I'm 48 now. I graduated from Lake Collins High School up there my there, my whole life.
Speaker 1:Went to college straight away. Went to same Eastern State University with the idea to do criminal justice. Like so many of us, thought about a career in law enforcement. Got there and realized that I think I really want to go to law school, so pivoted away from criminal justice and got a degree in English, which is good for absolutely nothing except graduate school. Went straight to St Mary's Law School I referred to as St Mary's School of Law and refrigeration repair. Went there in San Antonio. Miserable three years of law school. It's full of professors that don't know anything about the actual practice of law. It's full of students who just want to hear themselves speak but suffer through law school for three years to get a piece of paper. About halfway through school I was working in the mutual fund business. I was also working at a cigar store selling cigars, which was a great, great part time job in the graduate school, smoking all of my paycheck away and legally, legally, legally, legally, legally, the legal cigars, the legal cigars.
Speaker 1:Right. I had a friend of mine that was in law school that was working at the DA's office and said hey, you should come work as an intern here, so why not get a third job? So I applied, got a job there in a great division with some wonderful prosecutors and got the trial hook and decided I'm going to pivot and I'm going to do prosecution. So what county was that? Bear County, okay. So worked there as an intern for about a year and a half and passed the bar exam, got hired on the same day and was picking a jury the same afternoon that I was sworn as an attorney.
Speaker 2:Damn. I guess the differences now is that you were a successful trial lawyer then at the DA's office and that actually prosecuted criminals. Yeah, okay, sorry.
Speaker 3:It's just a strange concept to it.
Speaker 2:It's a strange concept, bear County, I mean.
Speaker 1:For sure. Yeah, definitely, it's definitely a different environment and trial by fire work down there as a trial prosecutor the entire time four years probably tried 60 jury trials maybe more in four years had some great mentors loved it. Decided after a while I didn't want to stay in San Antonio so my wife and I moved to Georgetown where we still live, and I worked as a prosecutor at the Williamson County DA's office for eight more years doing nothing but felony trial work. Got board certified in criminal law by the Texas Board of Legal Specialization. Decided after eight more years of trial work that I was ready to move on and went out and hung a shingle and open up my own shop. Here I am.
Speaker 3:Wow, so just real quick, can you tell our what do we were? Are they listeners, lawyers, viewers, whatever you want to call them?
Speaker 2:Okay, watchers, fans, fans, yeah, there you go.
Speaker 3:So explain to our fans what does it mean to be board certified? How do you go about getting that?
Speaker 1:So all lawyers in the state are licensed to practice law and that's just your general license to practice. The Texas Board of Legal Specialization has been around since the 70s and it's basically about 4% or less of all attorneys in the state are board certified in a specialty area like criminal law. It means that you have tried a certain amount of trials and appeals and cases and that you've been recommended by judges and peers and then you have to sit for an extensive exam in just a certain specialty area. So there's not too many of us that are board certified in criminal law, but it's just a special certificate of competency, is what they call it.
Speaker 2:Oh, wow, that's just a lot, then it does. Yeah, I didn't know that. I'm glad you touched on that. Yeah, yeah, I touched that, not Robert, yeah.
Speaker 1:Keep your hands on the desk. So now here I am, 11 years later, and we do a blend of criminal defense and, obviously, administrative work for TNPA, and that's my favorite kind of work.
Speaker 2:Yeah. And so for the fans out there that don't understand kind of Robert's role, you know, again I say this all the time for people that are listening our bread and butter with TNPA is our legal service. We have as far superior legal service than most out there. And so let's just say hypothetically that you know a member calls in and says, hey, I've been involved in a shooting, and we immediately go into protection mode. You know, and let me kind of paint the picture of you know we're immediately asking, hey, is your body cam on? Is your in-car on? Because we don't want to, we don't want to jeopardize your defense if there happens to be one. And then we get the basic necessity information of where you are, you know, verify that your membership with TNPA is active, and then we call and contact an attorney. So Robert's area would be, man, it'd be probably from Waco down to south of Austin, over to what as far west as Johnson City, lano, lano.
Speaker 1:Lano.
Speaker 2:Lano, and then even as far as east as call call the station. I mean call the station probably, I mean for the, because you have to think we have a two hour window that we guarantee that attorney will be by your side in the critical incident. So we generally know in field reps to take legal calls. You and I have done it, you know, have done it for years. We generally know who to call on in those areas for the quick response, and so once Robert's kind of getting the phone call, he'll make the judgment call, because this is something else that's kind of misperceived is that sometimes the majority of the times and you may want to touch on this years ago, what would you guess, robert?
Speaker 2:90% of the officer involved shootings in Texas are probably investigated by the Texas Rangers because it's an outside city. I think that's accurate. Okay, and so, with that being said, years ago DPS, the Ranger Division, wanted the officers involved to conduct the walkthrough and conduct a very preliminary interview that day, and so it would be imperative for the attorney to show up that at that time. It seems like that we is in a profession which I agree with, that we're trying to transition over to, you know, a 72 hour window because you haven't had through the, you know, you haven't had the thought process and so you may not. You may, you may be assisting a member in a critical incident of a shooting, but not necessarily show up to the scene because it's not necessarily the member has been removed from the scene, but you may go out after the fact and look at it while they're still there. So kind of talk about critical incident response real quick, and then we'll dive off another stuff that you've been involved in.
Speaker 1:Sure right. The very first, most important thing is I ask them hey, are you recording? Are you somewhere where you can step away? While I'm driving? I'm talking to them on the phone already to find out where you at, where you're going to be, sometimes about half the time they'll still be on scene. When I get there, about half the time they would have been removed back to the police station. It's typical. I'll meet them wherever they're at.
Speaker 1:I tell them look, the only thing a supervisor should be asking you are the public safety questions, the things that we know about the direction you fired, approximately how many times you fired, what weapons you used, where witnesses might be located, where evidence might be located. Are there bad guys that are on the loose? Is anyone injured? That's pretty much it. We shouldn't be talking about the most important question in Chapter 9 of the Penal Code, which is the why, why did you fire your weapon? We're not going to get into specifics. So those are the only things that responding supervisors or crime scene folks need to know. Other than that, I tell my members go lock yourself in a car, get your battle buddy, or go back to the PD and I'll find you. That's it.
Speaker 1:My experience is that Rangers always want to do a round count. Let's assume you fired your duty weapon right, which is normal. They want to photograph the weapon, they want to take the weapon and they want to photograph the member as they appeared. It's important because if you shoot at or shoot a bad guy and they live, they'll come up with the defense like why didn't I know it was the cops. So we want to make sure that police officer is photographed as they appeared at that time. There's no doubt of what their uniform looked like and that they were clearly presenting themselves as a peace officer.
Speaker 1:As far as a walkthrough, it really depends on the Ranger. I think that if there is a walkthrough, it is no more information than what we already discussed, which is just approximately where were you standing, what did you see and where and what direction did you fire your weapon. I won't allow questions beyond that and I think that's that's the limit. A lot of times these, these officers, sometimes these shootings happen at the end of a shift. Sometimes they've been on duty for 11 hours, 12 hours when a shooting happens by the time the Rangers get there and they want to do a quote, unquote walkthrough.
Speaker 1:We're at 15 hours in. So not only are the concepts behind something like force science that you mentioned and we've all been to the force science schools important to remember, but just fatigue overall. You're going to have somebody that's been up for 12 plus hours. We're not going to give a complicated statement, so that is correct. I think that the trend is 72 hours plus. I would say we typically meet with the Rangers and give a voluntary statement if we're going to three to five days after the incident.
Speaker 2:Yeah.
Speaker 3:Yeah, and Robert, you know he was talking about things that happened 10 years ago. And then one thing that I've noticed is you've got guys that are still in the business, that were in the business back in the day when they said you know what, you know, you see how the mindset has evolved All right, Well, if you did the right thing, you don't, you know, stinking lawyer. And then we're starting to see more of a trend of OK, you know what, maybe you really do need a lawyer. That's showing up, and we're seeing a lot of just that that final realization that you just don't know what's going to happen. And as long as you've been practicing law, have you noticed an increased trend on the amount of officers that are getting indicted for use of four?
Speaker 1:situations? Absolutely. I think you've got a DA's office in a lot of counties that is more concerned with appeasing the media as an elected official, or appeasing very specific public interest groups that might cause a ruckus, that threaten to riot, that threaten to burn, that threaten to pick it, that threaten to you know protest at the DA's office or call the media and they cater to those folks instead of looking at the facts and wanting to understand what the evidence is. And you know, of course we have great examples of that that we can talk about today from from Bell County last year in trial. So I am seeing that and of course I tell all these officers call If I show up. I went to a shooting last week in Claim. You call, we show up. We figured out that none of our members were involved in actually discharging their weapons, but I was there to help look at their statements, answer their questions and make them feel better about being witness officers to an officer that did fire. So I mean that's an important service that that TNPA does offer our members.
Speaker 2:Yeah, two questions to follow up with that. One to the listener watch your viewer out there fans when they are involved in a situation like this. And you've got that man. Look as a cop. You've been there. You've always got that one salty guy the older, you know generation, just like you said, where they may be encouraging, like man, this is, this is bullshit. We know you're good, like why do you need? Because sometimes I think the older generation and Bob, when we had Bob Gorski on, he really he really nailed it, because Back then the point of view was was that when you called an attorney, it was almost offensive, right, it was offensive like to the administration, like you don't trust you know the situation.
Speaker 2:Great example of that is that the men and women of Austin Police Department right now so I've been told is that they trust their chief, like they have full faith in Chief Henderson. They don't trust the DA, right, and so you don't know what's going to come down the pipe. So talk about that. And two, we've gotten questions about why we wouldn't assign an attorney.
Speaker 1:So I do think there's a distinction. I tell people look, I'm not doubting that you're Sergeant, you're Lieutenant, you're Commander, you're Assistant Chief, the Chief support you. You might love them, they might love you, but this is out of their hands. This is going to go to the Ranger and you might trust the Ranger. It's out of their hands. Eventually it's going to go to a grand jury or a prosecutor, and we all know that grand jury is oftentimes just an easy puppet show for a prosecutor and they're going to push through whatever they want. So we have to tell people this is serious.
Speaker 1:I can tell you, the two least favorite type of cop personalities that I represent are one the ones that don't listen to you. Right, that's the biggest problem. Why are you calling me and asking me for advice if you're not going to take my advice with my 24 plus years of experience? And also, the ones that are even worse are the ones that don't think this is a big deal. Like you mentioned, you show up whether it's a basic internal affairs case or whether it's a critical incident. They think, well, I didn't do anything wrong, this is no big deal and you've got to take them back to. This is a very big deal.
Speaker 1:And they look at you oftentimes, or they look at me and they look at my card and they said criminal lawyer? Well, I don't need a criminal lawyer. I said, well, did you shoot somebody? Well, yeah, well, then you committed aggravated assault with a deadly weapon, I don't know, or murder, right? Or maybe official oppression the DAs love that term, official oppression. So you, absolutely what do you want? A administrative lawyer? You want a family attorney? What do you want? You need a criminal law attorney if you shoot somebody. So you have to get that mindset right, which is I'm not saying you did anything wrong, but I'm here to protect you. Right, we're here to protect you and your rights from minute one, because if you go give a statement because you don't think you did anything wrong and you end up, you know, later getting charged, I can't take those words out of your mouth, I can't take that statement back. It's set in stone forever. So you've got to call early.
Speaker 3:Yeah, I agree. And now let's let's clarify that, because we've we've had legal calls. One of them is a good friend of mine calls in for a legal and he's breathing really hard and I'm like, hey man, are you okay? He's like, yeah, I'm just doing chest compressions. Well, you know what? Finish the scene first. Too early, a little too early there. Or we had one in Temple a couple years back. They're still exchanging shots and they're calling in on legal. So to all of our fans out there, if you're a member, survive the incident and then give us a call.
Speaker 1:Yeah, I learned to ask that question. I had one in Bear County years ago that was still had the bad guy, already shot him once and had him at gunpoint. So I said, hang up, you know, secure the scene. Call me in a few minutes. Yep, wow.
Speaker 2:That's crazy. Well, yeah, if you want to dive on into some situations that you wanted to bring up, some cliff notes, I you know I want to walk him through a couple of those that have just really been, you know.
Speaker 3:So I go out and I still do some recruiting, you know, here and there and, and, and. One of the one of the stories that I like to tell is a is a particular case out of Bastrop County. Young man from my recollection of this you know TMPA was out there we were trying to recruit at at that sheriff's office and the young man decides after he talks to his father, you know what, I don't need to be part of no dang union or association or nothing like that and did not sign up with any legal coverage whatsoever and I believe he was two months into his employment.
Speaker 1:Very short, on very months yeah.
Speaker 3:Yeah, just a couple of months into his into his new career, got dispatched out. I believe it was a disturbance call. It was Got dispatched the second time, ended up firing shots and came under a highly politicized prosecution. Of course his father calls TMPA in tears Wanting to know if we can. You know well, if he signs up real quick, can can y'all represent him? Well, it's kind of like not having insurance on your car on Friday recommended on Saturday, geico's not going to cover your car. So we unfortunately had to say no, that's not fair to our members that pay consistently every month. And well, do you have an attorney you can recommend? And we recommended Robert McCabe and they hired Robert McCabe.
Speaker 3:Now, mind you, I have not been able to get Robert drunk enough and I've been on the golf cart with him a couple of times to tell me the total amount that it cost them. So you know, if we can break into the alcohol bin here in a little bit, maybe we can get that out of Robert finally. But that's a very unique story and I really want to really want to talk about that story because some of the tactics that Robert used during that trial, especially the second trial, are just amazing, and it really illustrates why you need somebody that is skilled. I know a lot of times we get some not a lot, but from time to time we'll get some feedback from our members who are like well, hold on a minute.
Speaker 3:Here I saw Robert McCabe was defending this guy. You know this guy that shot this person outside this convenience store. You know that's. You know I dealt with that guy. He was a crook. Well, okay, he was a crook, but there's still the law and on top of that, you want an attorney that actually knows what they're doing, except they're practicing it every day, right?
Speaker 1:So, that being said, Robert, I'd really like to talk about that Bastrop story, if you have a little bit of time, sure so that deputy was dispatched to a call and it was a woman was calling 911 from a bathroom basically saying that her boyfriend and his father were fighting. The call escalated to their fighting with sledgehammers in the yard. That's a party. So we're talking about pitch black out in the country. He shows up, he's expecting you've got this priming instinct right. We learned from four science concepts he's primed to see these people fighting when he gets there. And he gets there and he sees nothing. It's quiet, no one's in the yard. He gets his rifle out, he posts up behind his car for cover. That's all there is. And he's pointing his gun at the house and he's with dispatch trying to figure out. Why am I not seeing what I'm expecting to see when I arrive and the woman's on the phone with dispatch and she's saying they've got a gun, they're coming to the door. They're coming to the door with a gun. So the door swings open. Well, the woman had told the call taker they put the gun down and she didn't relay that message to the deputy. Door swings open and it looks just like a shotgun swinging out because it's this metal bar across. The door swings open and this woman steps out and he shoots and kills her, so shoots an unarmed woman who was a witness, wasn't even a party to this assault, wasn't intoxicated anything else gets charged with murder. So we go to trial and we get a hung jury.
Speaker 1:The first time we decided we're gonna try the case again. We change our strategy. We end up developing a lot of the kind of force science type concepts of perception of what you're gonna see, what you expect to see. We were very much unwelcome in Bastrop County for the second trial. I'll tell you how silly it got. They wouldn't let us use their television or their projector. I bought a projector and I bought a screen to use.
Speaker 1:The security personnel at the courthouse were so disgusted with the prosecution they were giving us rides in their golf cart to lunch every day and just blowing off the prosecutor, who is not the elected prosecutor. He punted to some special prosecutor, local attorney to act as prosecutor. We went to trial the second time, got a not guilty verdict. It was fantastic, but it was. It was myself and another attorney named Kristen Jernigan, who's a magistrate judge now a fantastic attorney. We tried the case twice. We had experts in both trials, but completely different strategy and it was a very long process and I can tell it's just. It's backbreaking and extremely expensive and very stressful, but in the end we got a not guilty verdict and we got the case expunged and everything is better for him now.
Speaker 3:And in between the first trial and the second trial and I think this really goes to speak to the depths and levels of our attorneys at TNPA what they go through to make sure that they can provide the absolute best protection for our members. But during that, in between the first trial and the second trials that's when you attended the four science training, correct, I did it was pretty entertaining.
Speaker 1:So in between those I'd gone to the four science and it was in Austin at the DPS Academy and interestingly, if you've been to those, they're oftentimes full of Texas Rangers and the ranger from that area is named Brent Barino. So fine ranger was in that school with me and so it was really fun in the second trial because when he goes up to the witness stand he brought his four science binder and had it up there with him. So I pulled mine out too because I figured he might, and so the prosecutor qualified him as an expert, or tried to, and I kept referring to him as an expert and when I'd cross examine him on four science concepts and forced him to agree with me, he finally said quit calling me an expert. I just went to a school, which is a great line to use in front of the fact binder, that admitting that you're not an expert when the prosecutor tried to qualify is one. So that was always fun and it's always fun to get witnesses to agree with you, and it's funny that I actually made a note of that.
Speaker 1:That the bottom line in trial. Folks, if you're gonna ask a witness, questions until they either agree with you, until you discredit them or you make them feel or appear uneducated or unprepared, and that's one of the strategies, right? So they qualified him so heavily as an expert and then I just devalued him so much that he just said quit calling me an expert, I'm not an expert. So you're no longer on his Christmas card list. I don't. I drive around Bastrop County now.
Speaker 3:Yeah, yeah, and you know that's just one of the many what I like to call success stories. Tyler, you know there was another one and you know I'm still a deputy in Bel County and this most recent one I really got upset with it was a temple police officer that was charged. Did he get charged with murder as well?
Speaker 1:He was yeah, so he was charged with manslaughter.
Speaker 3:Okay, so charged with manslaughter. And you know the reason why. I was politically motivated too, though it was. It was, you know, it was really quickly that the DA's office out there and I don't know if Robert knows this, I don't know if I relate it to him or not, but our member, the officer involved in that case, when he learned that there were gonna be charges coming out on him, I had made contact with a friend of mine that was a Bell bondsman, and you know that Bell bondsman does a lot of good for law enforcement, really cuts down the costs a lot because he trusts that cops are out there doing the right thing.
Speaker 3:And so, had it worked out, all this guy had to do was drive himself over to Lampassas County and turn himself in and he would have been able to get out on bond. And the DA over there would not let that happen. The DA told the Rangers you need to go pick him up at his residence right now, even though we had it all worked out for him to be able to, you know, bell out of jail pretty quickly. You know, let the criminal justice system work, but the DA wouldn't let that happen. If that doesn't scream political motivation, I don't know what does.
Speaker 1:That's the minute I got the calls when the Rangers were knocking at his door to come out at a warrant and they weren't gonna wait, yeah, so, and you know that doesn't, but you had been involved during the critical incident through the whole process. No, a different attorney was involved and had already given a voluntary statement to the Ranger, had responded to the scene and I didn't get a call until they had indicted him and we're not gonna have his door, oh sure. So I came in late to the game on this one.
Speaker 3:Yep, and that's yeah, and it's really a sad deal, you know, and that one, how long, how long did it take that one to get wrapped up?
Speaker 1:It was a couple of years. Um that you know, covid was an issue, the, the, the docking was an issue. We had to ask for a, a preferential setting because we needed a lot of jurors in that case. Um, we did a jury questionnaire. We had almost two days of just jury selection in that case and then eight to nine days of trial additionally. Um, so it was a long process.
Speaker 1:Um, that case required expert witnesses as well. That that entire case was a traffic stop, a short pursuit. Traffic stop had the bad guy at gunpoint. Bad guy reaches over at the officer's gun, gun goes off, shoots him in the head and kills him on video. Um, so you're dealing with basically a homicide that's captured on video and having to explain that. Um, so you can imagine the what we had to go through to to try to analyze that case. But again, um, what? That entire case eight, nine days of testimony all came down to a total of 0.93 seconds of a video, right, um?
Speaker 1:And people always like to use phrases like dynamic, rapidly evolving dangerous situations or rapidly evolving. This is the prime example of what can happen in less than a second. And if you're not seeing it on a fully fast video that's playing. You're just seeing it going. Why can't I? What happened? You've got to break that down, and what I have to remind people is you're not able to do that as an attorney. You're not able to do that, um, with your member in your office looking at your laptop. You have to get professionals. Um, we had a wonderful forensic video analyst um named Robert McFarland out of Colorado. He is, uh, a former police officer from California. He is an amazing expert witness, um, and he broke that video down and just did a bang up job breaking that thing down frame by frame. That's cool, but you're talking about what's a body? You're talking about a hundred, a hundred frames a second.
Speaker 3:Yeah, most most of them because, let's face it, law enforcement agencies, they, they, they're cheap, yeah, they don't want to spend the money. And most of them are actually what? 30 frames per second, so a lot slower than a hundred.
Speaker 1:Uh, or 30 frames a second. Yeah yeah, I'm sorry, it's 30,. 30 frames a second. Our entire case came down to three frames. Yep Three frames, and in those three frames you can actually see the suspect grasping, grab the top of the officer's gun on the video, but only during those three seconds. Those three frames, not three seconds. Three frames, three, three thirtieths.
Speaker 2:Damn, that's crazy. 300, seven seconds. 30th.
Speaker 3:I would listen to, not try to do math. We're not good at math Three three, three frames.
Speaker 1:The entire case was three frames. So, um, but that was a, that was a political prosecution. They had given back part of the evidence, um, to the decedent's family. Uh, while the trial was pending, Um, the prosecutor flat out told me, to my face, um, several months before trial, she said I don't care what evidence you show me with the offers, 20 years in prison and it will never change. So for the first time in my entire career, a prosecutor was not interested in the truth. They were only interested in a conviction, no matter what. So when I had the evidence that he'd grabbed the officer's gun, we didn't share it.
Speaker 2:We, because it wasn't going to do any good. No.
Speaker 3:So we went to trial and you know you can't, can't blame a man for that. I mean when the prosecutor's telling you that you know they have their mind made up and it makes you wonder, you know what? What about that whole part in the CCP that talks about their job as a C? Justice done.
Speaker 1:You know that's it's, it's just out the window. It's out the window because they're scared of of public reaction.
Speaker 3:And and what was going if, if my memory serves me correctly, uh God, what's that set moron's name out of the DFW area that gets involved in all these police incidents? Um, the activists? Yeah, claims to be an attorney and I I don't know if he really is licensed in Texas or not.
Speaker 2:Oh, anyway.
Speaker 3:I can't, yeah, I can't think of his name to say my life, but I remember he got involved in that one. Uh was calling for you know justice and you know you. You started seeing the whole you know no justice, no peace slogans bouncing around and I think you know, I'm pretty sure that that was something that Henry guards out there are, you know DA in bell county.
Speaker 3:I'm sure that that's something that he was really concerned about was you know, uh, we don't want to see more George Floyd type riots occurring, you know, there in bell county, uh, which which is sad because he shouldn't be concerned about that. He should be concerned about justice, Right.
Speaker 1:But? But you know your closing argument writes itself on cases like that, because you tell people you know we love threes and right, we like ABCs. One, two, threes, red, white and blue people like threes. You got to come up with the theme. Well, the theme was easy in this case because you tell the jury you were entitled to a thorough and accurate and a transparent prosecution. Right, three things that are very reasonable to argue. It has to be thorough, has to be accurate, it has to be transparent. The prosecutor was none of those things In this case. When the rangers sent off the body camera to get analyzed by the lab, the DPS lab says well, here it is frame by frame, but we don't analyze it, we don't interpret. Okay, that's not what they needed someone to interpret what they were seeing. The Rangers didn't hire anybody. Then they said that's not our job. The DA's office didn't hire anybody, that's not our job. So who had to bring the evidence? How much evidence should I have to bring as the defense attorney? The answer is zero right Zero.
Speaker 1:I had to bring the evidence and bring it to the jury. Do you know how pissed off the jury was because of that? That they're sitting there with this man charged with manslaughter, looking at 20 years of honorably discharged career military police officer, right Charged with this, and you tell I told the jury you were entitled you shouldn't expect the word is entitled you were entitled to have the prosecutor represent the evidence fairly, honestly and completely. And when they don't do that, you, my client, is entitled to a night guilty verdict. And not only did they not prove their case, we disprove their case. And they still got up there and just told bald face lies both an opening statement and closing. It was amazing. It was amazing experience. That's sad, you know.
Speaker 2:They basically asked the jury to engage in guesswork and assumptions and misrepresentations, but it's going on in bell county you know it's Dan will go on another county's across the state which we know. The primary ones Travis, dallas, harris and Barry County.
Speaker 3:Those are the ones that tend to make the news all the time. Yeah, well, yeah I agree.
Speaker 2:But that's, that's not cool, man, that's, that's scary Really.
Speaker 3:Yeah, it is. You know, go to go to an academy and recruit. You know, one of the first things I do is is thank them for stepping into a profession that has changed so drastically over the over the past couple of decades.
Speaker 2:Well, and if we had politicians that weren't spineless and those in leadership roles within law enforcement that weren't spineless and and and egotistical, you know it would, it would much. It would make for a much better environment for this profession, right, but those are things we got to work with, to work through and and make. Make. Make this profession what it needs to be and go back to what it was. Yeah.
Speaker 1:Well, and I'll say one of the biggest things that attracted me to TNPA and their legal plan and it still does, and it's my biggest selling point to to officers when I talk to recruits and I talk to officers as I say, they will match you with the lawyer for your case. I am not ashamed to tell people I don't do civil rights cases, I don't do federal work, I don't do civil suits right, I do administrative work and I'll do anything criminal. That's what I specialize in. The worst lawyers are the ones that think they can do it all right Because they're not good at anything right. And I say match the right lawyer with the right case.
Speaker 1:And I can tell you this when prosecutors sit around a table every Friday and the DA says, what are we trying next week, the first question is what's the case? And the second question is what? Who's the lawyer? Because they know which lawyers go to trial and which lawyers don't. And you need the right lawyer for the right case. And that's absolutely. If you're charged in a critical incident, you've got to have a criminal attorney that goes to trial. Because you have to picture yourself in the worst case basis I'm going to be in trial fighting to stay out of prison and getting the right lawyer, and TNPA has never hesitated to assign the right lawyer, a second lawyer, retain expert witnesses on your behalf. The answer's never been no, it's always been. What can we do to support our membership?
Speaker 3:And I'm glad that you pointed that out, because I know that there's a misconception on our legal plan out there that we'll only give three hours for an admin case, and that is something that's written into our legal plan. It's not that we're only going to give three hours, it's just you're automatically approved for the three hours and if you need more time, let us know. And, robert, I'm sure you've made that request before. Have you ever been turned down for more time?
Speaker 1:No, and just it's fairness, because there have been plenty of times where I've looked at a statement and it's been 15 minutes of work, right, I'm not going to use up three, three and a half hours, but times when it turns into it starts with one allegation, then it's a second, then it's a fourth. I'll say, randy, you know I've got to have more time, no problem, no problem at all. You know, because things do do morph and develop, but with critical incidents they're always full coverage events, right, if you're involved in an on duty course and scope critical incident, incustody death pursuit that ends in a fatality, you know, inmate dies, excited delirium. You know, you shoot somebody, shoot at somebody. We can't say excited delirium anymore apparently.
Speaker 1:Yeah.
Speaker 2:Well, that's just California. Oh yep, you may not be aware of that either, but we can talk about that Well fortunately I'm my own HR department so I pretty much say what I want.
Speaker 1:So yes, but but those, you know, any of those? Any of those things have always been full coverage events, and just to clarify that the critical incident.
Speaker 3:you don't have to be on duty, you can be off duty and you know we've had it many, many times where an officer's off duty, walking in a gas station place to get robbed and they exchange gunfire, and you know that's something that they had to act on as a peace officer in the state of Texas and I'm also going to say this.
Speaker 2:We don't do a decent job about explaining this to you, but if you're a member with this organization and your spouse is involved in a similar situation where it would be a course of scope, so if your wife's at a grocery store and she's attacked and she has a use of force situation, you are covered under our legal plan. Several employees went to the director. The director went to the executive director because there was another snake hole out there at the time. That was not even a law enforcement association, that was offering legal services like all like heart, and it was just, honestly, it was trash.
Speaker 2:And so we had members that were not in jumping ship but they were getting, they were having to pay double. No, they were sold a bill of goods. We went to the board of directors and said, hey, this is what we need. And so they did it and they, they agreed to it, and so your spouses are covered under our legal plan. I'm not saying that your spouse can go out and get into a bar, fight and start shooting rounds off and we're going to cover that. It's not going to be covered. It's obvious. But our legal plan is. I would put it up next to any legal plan across the country.
Speaker 3:Now one caveat to that we will not cover the spouse if she, if she or he shoots our member. It's actually written in the document.
Speaker 2:So yeah, yeah good thinking on that part, Fair fair enough.
Speaker 1:That's fair, I will say. I will say one of the challenges for these, um, these critical incidents that are criminal, that that pop up regularly, that people need to be aware of, is you've got prosecutors that conflate and confuse policy violations or best practices with violations of criminal law. And I can't overstate this, because when you're talking about whether or not you were justified in doing something, your justification is covered in chapter nine of the penal code self-defense, deadly force, defense of others, right, those types of things. What prosecutors are coming and doing they did it in my trial in in bell county last year was they'll say, yeah, but he violated the pursuit policy. He violated, he didn't. He wasn't safe in the way he approached the car, he stood too close to the motorist with his gun out, right.
Speaker 1:And they have people come in and say, look at all these policy violations. So they just basically try to say, well, he's just a bad cop making bad decisions in a high stress environment, um, but because they don't, they want to take the distraction away from was he justified in using force, right, or is there another outside factor that that caused this man's death, like him grabbing the officer's gun and causing a sympathetic reflex, right, um. So I think that is something to be on the alert for is to say, well, look at all these things that went wrong, but we deal with that. We deal with imperfections all the time. Right, violations of policy, best practices, officer safety issues those haunt this profession, yeah, but that does not mean that you are not justified in discharging your weapon defending yourself, um, or, or shooting and killing a bad guy.
Speaker 2:And it never fails that they never point out the fact that the defendant or the suspect, I guess, in those types of cases and critical instances, if they would have compliance, compliance, compliance, compliance, if they would have complied, more than likely 99% of them would not have happened and they would not have had force used against them. And they're the ones that put the officers in the in those situations. But it always goes back to the officer and they're kind of trying to pick that picture. That's the anti law enforcement rhetoric.
Speaker 1:So that's, that's a great point. And one of the techniques I use in my trials for these is um, we had video syncs, so we have in car video and body worn. We had this forensically synced down to, you know, frame by frame. We put a counter on there and then we did um, we put the, the closed captioning on the screen and then we did a command counter. So command counter at the bottom would just say commands given. Every time he would say show me your hands, put your hands about count one, two, three, so you could see it go all the way up to nine times. He asked for compliance and gave compliant commands before the shot went off. So you can see that it's so much more powerful to have that for a jury to see visually than just hear that it was nine times, because they can count those nine different times. He told him put your hands up.
Speaker 2:It's good stuff, man.
Speaker 3:Yeah, and it's, and, and that just takes us right back to it's important to have an attorney that has experience, has experience, has that practice in court, has the experience knows what to expect during a trial, knows the, the gamesmanship that's played by some of these politically motivated DA's, uh, and and has, you know, done the preparation on the on the front and back end to make sure that you're successful as can be going to court.
Speaker 2:Yeah.
Speaker 1:And the attitude. Everyone has a different attitude and I'm not trying to say I'm a big believer in the toolbox, right, you've got to have soft spoken people that can talk to people. You've got to have hammers in your toolbox. I believe in all of those things. I am not the most patient kind person and I don't give a shit, right. My point is I'll go in there If you are charged. If you are a police officer doing your job and you are charged with a crime, you are in an adversarial process. They are coming for you, they are coming for your freedom, they are coming for your badge and they're going to try to publicly, permanently ruin you. You're in an adversarial process. You need an adversarial attorney at that point.
Speaker 3:Yeah, I mean, some prosecutors office has actually advertised job descriptions for hey. Who wants to come prosecute my police? Yep, yep, jose.
Speaker 2:Garza, travis County, yeah.
Speaker 1:First one in the mind, absolutely.
Speaker 2:It was that, trudy, or what's your name, them girl from New York. It's married to the DNA bomb squad.
Speaker 1:There was no background in criminal law. Yeah, zero.
Speaker 2:Anyway, yeah, squirrel moment.
Speaker 3:Yeah, yeah, it ran right across the desk. We had to capture it.
Speaker 2:Well, man, you have any. I mean, we've given a lot of advice, I guess, to the, to the, to our members that are listening. Uh, what do you want to leave today with and tell our members from your stance and your experience 11 years in this business of of representing law enforcement officers across the state? What, what best advice can Robert McCabe give our listeners out there?
Speaker 1:You know, other than than call early um, listen to your attorney's advice. The number one thing is be a part of your defense, and it sounds so simple, but I will not be more interested in your defense than you are If you are not going to put the time into, uh, crafting a statement, if you're not going to put the time into printing reports and meeting with me and going over things and helping to be a part of your own defense. I can't help you. Be vested and interested and proactive and defending yourself with your attorney. It is a team effort, Great advice, Solid advice.
Speaker 3:And I'll tell you this uh, you know, a lot of people know Robert and I are friends but uh, you know, there was a critical incident in clean uh earlier this week and uh, robert doesn't know this individual but uh, a friend of mine, out where I live at apparently that guy, uh your client. Uh, this person taught that guy uh his LTC class before we went law enforcement and after he gets involved in the critical incident, he calls up this mutual friend of ours. He's like man, I don't know, should I done this, should I done that, and so forth, so on. And uh, of course, you know, uh, the mutual friend of ours, he's very pro police and he says look, man, do you have legal protection? He says, yeah, yeah, I've got TMPA. And he says, okay, well, have you called him and have you asked for Robert McCabe? Robert McCabe, and the guy standing there and he's like, ah, talk to his attorney. He pulled his card out. He says, oh, yeah, yeah, that's the same right there, robert McCabe, and complete civilian, that's just pro law enforcement.
Speaker 3:Looks at him and says you're good, go buy ice cream, and I think that's just a testament to to you, robert, and I think it's a testament to the work that, excuse me, robert's done and a lot of our attorneys that represent our members have done, is the word is not only getting out there within our profession, but then also out there within you know the civilian community that you know these are the top notch attorneys that that you're going to want Should you find yourself in a sticky situation.
Speaker 2:Well, and I'll say this passion does not show discretion, correct. Well, if you're passionate about your job, I think everybody and anybody can see it. Yep, thank you for coming on and thank you for for your dedication to our members across the state. We always like to end the show with three rapid fire questions. The last one really doesn't kind of pertain to you because you've never served in that capacity, but I've got hopes to answer it in a in a favorable way. So you ready, I'm ready. Did you study? I'm familiar with podcasts, okay, cool. Well then, what is your favorite line from a cop movie, or favorite cop movie, favorite drink of choice and your favorite cop car? 2000s Ford.
Speaker 1:Crown Vic, my man, man, man, yes, yeah, hell yeah. Training day 2001, denzel Washington. That's awesome. Best quote from that movie this shits chess, it ain't checkers. And that's consistent with the theme today, when you're charged with a crime this shit is chess, it ain't checkers.
Speaker 2:It's a great way to end this. Yeah, great point and bourbon and bourbon.
Speaker 3:Is there a specific particular bourbon?
Speaker 1:I've drank equal rare for years until I got hard to get. But you know there's a lot of bourbons out there in the $40 range that I'll I'll put down. So $40 range Okay.
Speaker 3:Well, my particular brand of choice, angels envy, finished dry, if you have not tried this, a little bit more than $40, $40 a bottle, but if you have not given that a try you really should.
Speaker 1:I can go higher, but I'm a cheap date, Angels and these pretty stiff.
Speaker 2:All right it is, we'll find out.
Speaker 1:Yeah, I didn't know I could bring drinks on the show. We could have been doing that.
Speaker 3:We could have been doing that. We could have. Yeah, yeah, robert, I'm going to echo what Tyler said Now. We really appreciate you coming on the show. We cannot explain and express how much we appreciate your passion for our members and what you do for our members. We you've been involved in everything from some of our most crucial critical incident cases down to, uh you know, getting uh criminal trespass, I think out of Williamson County back during the Chote days. So that's been lifted.
Speaker 1:Has it under the new administration Good?
Speaker 2:deal, good deal. We are going to have you on, uh, with Brian Johns and some of those guys that went through that debacle, uh, when that round two kind of kick gets kicked off.
Speaker 1:So looking forward to that one. Well, at least an hour, oh yeah 100%, yeah, 100%.
Speaker 2:Well, this is about wraps it up, uh J.
Speaker 3:Dubgian thing else. No, no, just uh, appreciate you inviting me to be your co-host. Yeah, I hope I was able to live up to the, to the expectations. I know, I know I'm no Clint McNair, uh, you know men want to beam and we'll just leave out the rest of that. But uh, you know I'm. But uh, yeah, appreciate you having me.
Speaker 2:Yeah, brother, I appreciate you. Well, you guys take care of stay safe. Uh, this is about wraps this episode up. God bless you and, as always, may God bless Texas.