00:05:24.240Speaking of DNA, so actually the defendant's DNA
00:05:28.420was found not only on the ligature that was used in the strangulation death of the victim in the
00:05:37.140case. Of course, now the defense is saying it's a suicide, but the defendant's DNA was found on
00:05:42.700that strap, which is the strap on an army duffel bag. But in addition, his DNA was found on the
00:05:50.120underwear she was wearing at the time of her death. That's just one of the multitude of places
00:05:57.040that we could start with in this case. But I guess in terms of the testimony, this is turning
00:06:04.720out to be a DOJ prosecution, not only of the defendant Farwell, but also of like local law
00:06:11.920enforcement. This actually grew actually out of the Karen Reed case, okay? So the Department of
00:06:19.900Justice is looking into local law enforcement and whether or not that may have been a
00:06:26.740botched intentional or otherwise investigation. And so from the outward appearances, this might
00:06:32.640look like, you know, a murder trial, but it's not. As I said, this grew out of the investigation into
00:06:38.140Karen Reed. So law enforcement, you know, they're looking at potential federal crimes. And so this
00:06:43.480case, the state authorities elected not to prosecute it as a murder. They said it was a
00:06:52.040a suicide, which nobody at this point is really buying. But this is a federal prosecution.
00:06:57.220Prosecutors are going to have to prove that the defendant not only killed Birchmore,
00:07:00.740but they have to prove that he did it, actually, in order to prevent her from coming forward with
00:07:05.520evidence that he committed a federal crime. And one of the federal crimes that they are pursuing
00:07:11.060or they are alleging that he was trying to essentially cover up with her death is wire
00:07:16.560from. So they're saying that he was on the job collecting taxpayer money and a paycheck, and
00:07:23.760he was doing so for time that was actually spent with her in what was largely a criminal
00:07:31.180relationship that, of course, began sexually when she was 15 years old. In fact, actually,
00:07:36.680there's text messages that he sent to her where he's bragging about and boasting about and is
00:07:43.120very happy about having taken her virginity when she was 15 years old, but it goes back to when
00:07:49.200she was 13 years old and he was grooming her as she was a participant in the police explorer
00:07:55.880program. The local law enforcement, they put them essentially on trial. They're saying that
00:08:02.640the local police essentially covered this up, and it wouldn't surprise me at all if this doesn't
00:08:10.360turn out. The evidence seems to be overwhelming that he's guilty at this point, in my opinion.
00:08:14.380But it wouldn't surprise me, actually, if this doesn't result in some type of subsequent charges
00:08:20.240to come against police officials in Massachusetts. Oh, yeah. I mean, Phil, this is a can of worms
00:08:27.360that I think this case is just opening and maybe perhaps Karen Reed open to begin with.
00:08:32.320You know, when we're done with this and Lindsay Clancy and Karen Reed, I wonder if any juror in
00:08:37.020Massachusetts will ever believe the police again. But the things that have really struck me when I
00:08:41.580was catching up on this case, on the Sandra Birchmore case, there's a couple things that
00:08:45.300really make this impossible for the defense. I mean, beyond the fact that the evidence is,
00:08:49.780like you said, pretty much overwhelming, there's so many other aspects of the case that make this
00:08:54.580defendant just completely unlikable. And all of that evidence, it sounds like, is going to slowly
00:08:59.700creep in. One of the things you mentioned is perhaps he was engaged in some wire fraud. So
00:09:04.060we've got that, you know, we've got that other scheme going on. So, you know, people think he's
00:09:07.680a creep because of that. But then the other issue that we've been having going back and forth,
00:09:11.920and again, nobody can watch. So we're having to listen to reports of people who are, you know,
00:09:15.920in the courtroom, but it's a federal trial. So we can't actually play the footage, unfortunately.
00:09:20.820But what's happening inside the courtroom is there's been a lot of back and forth between
00:09:24.300the government and the defense. The defense has now filed a motion accusing the government
00:09:28.340of a bad faith, you know, and that's a buzzword everybody likes to throw out and they get really,
00:09:33.220really, really mad at the other side, you know, bad faith, that's the buzzword, but of bad faith
00:09:37.920conduct regarding their efforts to get his mistresses to testify. And I can tell you as a
00:09:42.900defense lawyer, anytime you've got a client accused of any crime and you hear mistresses testifying,
00:09:48.180you're like, oh, shoot, because nobody likes a cheater. Nobody likes a liar. Nobody likes a0.95
00:09:53.940cheater. And so it makes it harder to get a jury to believe your defense if you've got someone
00:09:59.860who's a cheater, but it gets even worse, Phil. So not only is there testimony that he has
00:10:04.320mistresses and he's a cheater, you got to remember this is Massachusetts. So now they're talking
00:10:09.320about him wearing a mask and whether or not back in the height of COVID, he liked to wear masks or
00:10:15.100not. And again, you got to think about your jury pool. So I can't help, but think that they want
00:10:19.100to get in some evidence that he was an anti-masker to this jury. Yeah, he totally was, but think
00:10:24.880about it. Think about the jury pool and think about how they're going to feel about that.
00:10:28.260That's going to signal something in the back of their heads. So we've got this argument now where the prosecutors are saying that the defense actually opened the door to evidence of his affairs with these other women because they said, and they probably did, they said an opening statement that his behavior was about hiding his infidelity rather than the criminal nature of his relationship.
00:10:51.100And so they're saying that that is opening the door, and it probably is because he never
00:11:29.800Prosecutors think it was to hide his face.
00:11:31.500That's why they want to call the other adult women with whom he was having extramarital
00:11:36.620affairs, because they would say, according to prosecutors, that he never went to such
00:11:41.440lengths to try to hide his relationship with them.
00:11:45.000And so that would implicate him in the murder because they're saying he did it in this particular instance, not to hide the affair, but to hide his identity as the killer.
00:11:56.040Because, by the way, while he was in her home, that was the very last activity on her phone.
00:18:34.220Well, actually, I've handled, I don't know about you, so you mentioned, you said that this was, he's claiming this is sort of the classic response or some word to that thing?
00:18:44.540Well, look, I've handled, I know you have too, but in my capacity as a law enforcement officer, as a prosecutor, and even doing defense work, I've handled many cases involving sexual assault or claims of sexual assault.
00:18:58.800And what I can tell you is there's no classic response.
00:19:01.900I mean, each one has been very, very different from the other.
00:19:05.980And so his statement to that effect is a little bit of a head-scratcher, but I don't know
00:47:04.800Like she got, they followed the protocol.
00:47:06.940So the, the state protocol was followed. She just didn't die. So what's next?
00:47:13.340Well, what, but let's, let's start here. Like the protocol they need to revisit and obviously
00:47:17.660they've stopped all executions and they're revisiting all that. There, there's a couple
00:47:22.340aspects of, of this, like everything that's happened to her at the execution to me falls
00:47:26.840in, in the, in the column of, oh, she may have a civil case for damages. Okay. For whatever that's
00:47:32.560when you're on death row right um i i go back to what phil mentioned which was the 1940s the case
00:47:39.100of willie francis he survived electrocution in in the electric chair his ordeal i my guess is was
00:47:48.100probably more traumatic more painful than hers because the reports were at one point she was
00:47:54.740snoring during hers so i'm not minimizing whatever pain she went through i'm just saying i think what
00:48:01.420willie francis went through back in the 40s was worse so for for what happened to her to be a
00:48:07.180basis for her not to be eligible uh for a second trip to the death chamber i think the the supreme
00:48:13.940court would have to um overturn what they decided back in the 40s in the willie francis case and
00:48:20.820they could do that but they would have to do that i don't think there's any lower court that could
00:48:24.840that could say no you can't go forward with an execution if the state wants to and and finally
00:48:30.400when it comes to the defendant and and this is where i'm gonna i'm gonna pick a little bit of
00:48:34.740a fight with the defense and the way they went about all this there are two means of execution0.87
00:48:39.480that she was eligible for um in this case right because of of the murder that she committed was
00:48:47.300before 1998 so in tennessee if it's before 1998 you have the choice the default is lethal injection
00:48:54.020but you have the choice for electrocution right and the big issue that was brought up by the0.58
00:49:00.160defense to fight this execution that they keep screaming about is she has this blood disorder
00:49:05.780so it's going to be hard to find her veins okay it's a common argument for lethal injection
00:49:10.540because a lot of these inmates and I'm not saying she did but a lot of these inmates will dehydrate
00:49:15.240themselves so their veins shrink and you can't get them I get blood drawn four times a year I
00:49:20.140know what it's like i'm diabetic so but if she was concerned about you know oh my veins she could
00:49:27.200have checked the box for electrocution but she said i think she said that's against her her
00:49:32.160religion or something so they they had a choice going in they chose lethal injection over
00:49:39.200electrocution i know it's it's not a great choice either one of them well no she she actually asked
00:49:44.460for hanging so they had a court she asked for hanging but they can't do that yes for hanging
00:49:48.060yeah it's not approved she asked for hanging knowing that she's not going to get it it's like
00:49:53.580a false choice it's clearly not that hard to approve it you know i mean i disagree actually
00:49:59.420i think it's pretty hard to get the legislature to add another method of execution because it's
00:50:04.360so complicated as it is most states are trying to make it less complicated and adding another
00:50:09.420method in there i think would certainly be a tall order to get a legislature to put through
00:50:14.320Well, the prison is the one that actually does that. So the prison has the protocol and they set up the protocol and it's an administrative rule. So they can do that within their own protocol. They could have actually changed this protocol. They could have changed the lethal injection protocol. They could have mandated a central line. One of the big issues why this was so botched was they actually removed about 60 pages of the protocol right before this, where the people who were doing the central line were supposed to practice on other people and they removed the practice requirement.
00:50:41.360So that's why that that gentleman who was the one that enacted the protocol quit because he's the one that removed that practice requirement.
00:50:48.920So, I mean, there's a lot of things that went wrong in this case.
00:50:51.680But, you know, Vinny, thank you so much for being here.
00:50:55.320And can you tell our audience where to find you, particularly so they can keep up with the bot trial?
00:51:02.700I'm very curious what happens in that case, Vinny.
00:51:05.380Absolutely. Now, Vinny Palatin investigates is the show.
00:51:08.080They call it VPI. It's on every night at eight o'clock on Court TV.
00:51:11.200wherever you get your court tv it's available all different ways but also on youtube on the
00:51:16.380court tv channel uh every night we post the show there as well so you can keep up with all the
00:51:21.460latest in the rush bot and everything else that's happening in our courtrooms awesome thank you so
00:51:27.080much vinnie it's great to see you so next up we've got uh we've got a legal mailbag question that
00:51:32.260we're going to answer. Welcome back to the MK True Crime Show. I'm Phil Holloway along with my
00:51:41.820co-host Ashley Merchant. It's now time for one of our favorites we haven't been able to do in a
00:51:47.420while. We have a legal mailbag segment. Listener Kelly writes as follows, long time listener here
00:51:55.060and the Cornell 7 case has left me with a legal question. If a woman is so intoxicated that the0.99
00:52:02.040law considers her incapable of consenting to sex, what happens when the man involved is also
00:52:09.400extremely intoxicated? If both people are profoundly intoxicated, what is the legal mechanism
00:52:16.200that distinguishes the person incapable of giving consent from the person who is still legally
00:52:22.760responsible for recognizing that the other person cannot give it? I think that's a great question,
00:52:29.140Ashley, and a lot of us have lots of legal questions that have sort of erupted in the
00:52:35.940wake of these allegations in the Cornell 7 case. And in fact, we have a site that we can get to in
00:52:42.200a minute where the lawyer for the accuser is referring to what's called a loophole in New
00:52:50.800York law as it pertains to voluntary intoxication. But before we get to that site, Ashley, can you
00:52:56.540take a crack at answering that question? Yes, I'm happy to. So there's a lot of ways to answer it.
00:53:01.760There's a lot of things that are implicated, and I think it really gets to the heart of this issue.
00:53:06.280But basically, to be voluntarily intoxicated, and that means you took it yourself. You weren't
00:53:12.180drugged. You actually made yourself intoxicated on your own free will. Most states, it is
00:53:17.860somewhat of a defense. It's not a complete defense. And what I mean by that is it would
00:53:22.460negate what's called specific intent. So when you hear like a murder case, that's probably the best
00:53:27.260and easiest example. When you hear someone did something with premeditation, being drunk could
00:53:32.940negate that premeditation. So it doesn't mean you're not guilty of killing someone. It just
00:53:37.260means that your mind was not able to actually form that specific intent to kill. So it doesn't
00:53:42.580excuse a crime. It just can actually be admissible to sort of give you a lower level of that crime.
00:53:48.120But the minority of states, and I'll tell you, there's some minority states, and Georgia happens to be one, so I know this minority, unfortunately, all too well, it is barred entirely. It cannot even negate, you know, your act at all. So you could be completely incapacitated from drinking alcohol.
00:54:04.340Let's say that you were in the Cornell case in Georgia.0.88
00:54:06.500If you were completely incapacitated and you as a man were still having sex with Jane
00:54:11.400Doe, but you were drunk and she was drunk.
00:54:13.220I mean, obviously the physics of that, you know, may be a little funky, but you could
00:54:17.100still be held accountable, even if you were to the point that you were passed out drunk.
00:54:26.720Mississippi, South Carolina, and Indiana.
00:54:28.740So, you know, I think this is obviously it's very complicated because I think most people, certainly people who have found themselves at some point in their life have been, say, over served with alcohol.
00:54:44.480And in fact, I know for a fact it's possible because I've seen it in real life more than a handful of times, actually, where, you know, someone is very intoxicated.
00:54:55.340and maybe the next day their memory is clouded or maybe they have no memory at all. Maybe they're
00:55:00.800blacked out. But in the moment, they're walking, they're talking, perhaps with slurred speech,
00:55:07.140but nevertheless, they give actual consent. And then later, maybe they don't remember
00:55:14.000giving actual consent. So that is a real problem. It's a real issue. And what the law hates more
00:55:22.460than almost anything is the concept of a wrongful conviction, or at least it's supposed to, right?
00:55:29.180And so a lot of these laws are written in a way to sort of minimize the chance of a wrongful
00:55:36.480conviction for sort of the circumstances that I just let out, where someone is, they actually
00:55:41.780maybe consent, but then later, you know, have a different memory of it or don't remember it at
00:55:46.300all. So that's where voluntary intoxication comes in. And, you know, this New York law,
00:55:52.600the way it's written, I mean, it's 20 states, I think, have it written that way. And people
00:55:56.160call it a loophole. Well, I call it a feature rather than a bug. But I mentioned we had the
00:56:02.740attorney for the accuser. We had him some of his video from media interviews up at the beginning
00:56:09.760of the program. Let's go ahead and run SOT6, which is Geoffrey speaking about what he calls
00:56:14.700the New York loophole. I'm aware of the loophole in New York state law, but hopefully something
00:56:20.680good will come out of this. And a law that's been pending to change this idea that if a woman is0.99
00:56:25.980drunk and you rape her and she was voluntarily drunk, you're not guilty of rape. That'll get
00:56:33.320finally get corrected. And New York will be in alignment with the majority of states that are
00:56:37.840out there that don't, you know, buy into that. That's not what the law says, right? Because,
00:56:44.080you know incapacitation is incapacitation and it's right this has to do with with you know
00:56:49.820presumptions people who are um who voluntarily are intoxicated um you know there's there's no
00:56:57.020presumption that they they were incapacitated right so but if you if you spike somebody's
00:57:02.720drink and you involuntarily intoxicate them then it's a different story so the new york law is
00:57:08.300designed to prevent wrongful convictions, then what I would say is it's not a loophole. It was
00:57:14.900designed that way on purpose, and it was designed that way to prevent wrongful convictions, Ashley.
00:57:20.840I think you're right, but I also think there's another part of this. Actually, it's ironic
00:57:26.320because a lot of people who are super feminists are calling this a loophole and calling it for1.00
00:57:30.300being changed. And to me, as a woman, I think that women should be allowed to take their own0.88
00:57:36.900responsibility for their actions. And if they choose to drink and then choose to consent,
00:57:41.660I don't think that they should later on be able to say, oh, I changed my mind because I was drunk.
00:57:47.340I need protection as a woman. I need to be protected because I don't have free will and
00:57:52.200can't make my own decisions to go out and have alcohol and lower my inhibitions. So, you know,
00:57:57.620I think this issue is a whole lot bigger, Phil. And, you know, we won't we won't solve it today,
00:58:02.320obviously. But I think our country is talking about it a whole lot right now.
00:58:05.940No, that's certainly not going to be the end of the discussion. And of course, we're going to be following this case and all the other ones from today's program as they work their way through the legal system. So go ahead and by way of reminder, if you're listening to the sound of my voice and you haven't subscribed anywhere, please subscribe anywhere you get your podcast, but also on YouTube, because I think it's important sometimes to get the video in addition to the audio that we cover here on the program.