Did the Defense Help or Hurt George Pino's Case?

[00:00:00] Tony DeWitt: The defense closing is now complete, and we're going to take a look at it. Like I did the last time, we'll look at what was done well and what was done poorly, and we'll leave it up to the jury to decide how things come. So stick around. This could be interesting. Hi, Tony DeWitt here. Formerly, I was a Missouri attorney in active practice. Then I retired. Then I unretired and started a YouTube channel, and I bring you all kinds of stuff about trials and the law. So no legal advice is given, but stay tuned. This is what we're talking about today. Today, we're following the trial of Miami-area developer George Pino, who is charged with manslaughter and vessel homicide arising from a tragic Labor Day weekend boat crash in Biscayne Bay back in 2022. Prosecutors allege that Pino was operating a 29-foot boat carrying his family and a group of teenage girls when he sped through a channel and slammed into a marked navigational aid, throwing passengers into the water. 17-year-old Lucy Fernandez later died, and another young woman suffered life-altering injuries. The defense maintains this was a terrible accident, not a crime, and disputes the state's allegations of recklessness. Let's get you caught up on what happened today. One of the things that I always say about defense attorneys is, whether they're civil or criminal, is that the goal of the defense attorney is to confuse every issue possible. If you can create enough confusion, basically so that folks can't see the truth, then you win. And sometimes you don't even have to worry about seeing the truth because you have the right side. But in this case, the defense was all about creating confusion. Take a listen to how he opened. [00:02:01] Speaker 2: I heard the prosecutor say to you that in the moments leading up to the crash, with about nine seconds to go, that George Pino was inattentive and might have been looking over to his wife while she was trying to text a beautiful video of the girls who had a beautiful day over at the sandbar. You might have been looking at his GPS. You might have been looking over to his right or to his left that he was inattentive. Those are her words. If that is true, if that's the state's theory, George Pino, your job is very simple. George Pino is not guilty. [00:02:51] Tony DeWitt: Now, honestly, you couldn't have sat through the prosecutor's closing argument, the first part, and come away with that being the sole theory in the case. You just couldn't. So, again, as they have done several times now, they erect a straw man to knock it down. You erect straw men when you can't knock down real men. And that seems to me to be one problem the defense is going to have. If there is somebody prescient on that jury, they are going to see what's happening here, what he's doing. And I don't think they're going to like it much. [00:03:33] Speaker 2: He may have committed human error. He may well have been inattentive. He may not have looked up in time to see the corporate in which it will follow the light. But that does not make him criminal. I always get a kick out of how they take the whole idea that a trial, where the state is trying to prove something, [00:04:19] Tony DeWitt: is somehow branding the defendant with some kind of label. It's not really branding him with a label unless he gets convicted. So, again, another straw man. To me, that's not a very good start. [00:04:32] Speaker 2: There are two crimes that are being charged. Vessel homicide and manslaughter. Each of them require that the state prove beyond a reasonable doubt certain facts. And there they are before you. That George Pino operated a vessel and being pregnant, likely to cause death or grave bodily harm to another person. His reckless operation caused or contributed to the death of Lucy. What does it mean to be reckless? Different than perhaps negligent. Reckless operation of a vessel requires the state to prove more than a failure to use ordinary care. And so, even if you were to find that the operator of a motor vessel failed to use ordinary care by not looking up and seeing the marker in the few seconds before it aligning, that would be even under the state's own theory. Negligence is that's what the state has proven. Because to prove it to be a crime, it has to be so willful or wanted. A willful or wanted disregard for the safety of persons or property. Intentional, knowing, and purposeful. Purposeful. A conscious and intentional indifference to consequences. With the knowledge, the damage is likely to be done. It's not enough that a human being has failed to do everything he could or she could at a moment in time. This crime requires a purposeful act of indifference. A purposeful and reckless indifference to his passengers. If we look to the manslaughter chart. It specifically tells you it has to be an act that's not merely negligent. It's right there in the law. An intent to commit an act that is not merely negligent. We turn to the next page. Culpable negligence. So you've got recklessness is one principle of law that the state is trying to apply against George Pino. They've also tried to apply this principle of culpable negligence. Sounds like negligence. But it's negligence plus a whole lot more. It's more than a failure to use ordinary care for its others. It must be gross and slavery. Think of those words in your daily life. Gross and slavery. Like in the NBA. Just came to me. People commit fouls and the National Basketball Association. There are fouls. And then there are flagrant fouls. You know a flagrant foul when you see it. It's flagrant. It's not that when the basketball player is going to the hoop. And his arm gets hit by another player. Even if by accident. That may be a foul. But it's only flagrant when it gets to the point that it's so intentional. So diabolic. And even then. Even then. Referees have to go back to the screen to see just how flagrant it was. [00:08:13] Tony DeWitt: I think it's a good idea to go through the jury instructions and the elements and talk about that. I'm not so sure that it was a good idea to use the NBA as some kind of model for talking about intentional conduct. And something that goes beyond intentional conduct. Flagrant. The word flagrant doesn't appear in the jury instruction. What it does talk about is willful and wanton. And I think, again, this is an effort to confuse the jury instructions just a little bit. And, you know, that's certainly a legitimate tactic by the defense. But it speaks to the fact that they are very worried about the state's closing, about how well she did in that closing. [00:09:05] Speaker 2: We asked a doctor to come testify because the state did not produce a medical witness on the issue of George's injury. [00:09:15] Tony DeWitt: And, of course, there's a good reason why the state didn't produce a witness. On the issue of George's injury. Because that goes to a defense. It doesn't go to his culpable state of mind at the time of the accident. And his injuries really are not germane to the entire discussion. Because the injuries happened in the accident. The proof has to be what happened to cause the accident. And it has to meet those standards. Willful, wanton, reckless, conscious indifference to human life. Or the rights of others. So, talking about the state didn't do this as if it had some responsibility to do it is a little disingenuous, in my opinion. [00:10:00] Speaker 2: We brought you the only medical testimony about that. Dr. Barrett. And before we get into the substance of her testimony, let's talk about the cross-examination of Dr. Barrett. To attack her because she charges for her time. This is someone who's been a professor at medical school. She's been a doctor for decades. Her credentials are unimpeachable. And yet, the prosecutor is focusing on how much money she charges for her time. And she charges for all her patients. The prosecutor was making something of her preference not to have to process insurance for her patients. Of course, that's not what the implication was. As if to suggest you shouldn't consider her testimony because she doesn't accept insurance and because she doesn't work for free. [00:11:11] Tony DeWitt: Of course, that's not what the implication was. The implication was that George got a $29,000 get-out-of-jail-free card by essentially having this woman who didn't examine him at the time of the accident, examined mostly medical records and went off of the medical records, and, as far as we know, has never really diagnosed a traumatic brain injury in anyone resulting from a boat crash. Plus, there's just a scant bit of medical evidence there. And think about this. He's talking about the state not calling a witness on his injuries. Well, he had every ability to call the doctors who saw him in the emergency room and ask them whether or not he had maybe sustained a traumatic brain injury. He didn't do that. And these guys, they do a lot of investigation. So, you have to consider that maybe, just maybe, they didn't say what he wanted them to say. So, they go to a hired gun. And I'm sorry. I've handled a lot of cases for a lot of different types of medical issues. And we do hire experts in those civil cases to give opinions. What we don't do is pay $29,000 for those opinions. We pay only for the time that they spent actually reviewing the record and giving us their opinion. And then they bill the defense contractor or the defense firm for any time that they spend in their deposition. Usually, at that point, the billing's all done because they settle. But it's interesting here that he is talking about that as if it's somehow outlandish to challenge their owner fee. It's not outlandish. Like I said, it's a $29,000 get-out-of-jail-free card. [00:13:08] Speaker 2: Or cumulatively, it's not sufficient by itself to constitute culpable negligence or recklessness. Even if an operator violates one rule, or even multiple rules, individually or cumulatively, that is not enough, in and of itself, to establish recklessness or negligence. It's back to whether you're driving a car or driving a boat. If you fail to see the stop sign, it could even be a stop sign that you've passed a hundred times. You're not paying attention to that thing. If you're going to work and you're thinking about something else, you fail to stop at the stop sign and something awful happens. And that's what we call an accident. [00:13:56] Tony DeWitt: I thought that was reasonably effective. And, indeed, the rules do say that. But, again, counterpointing here, they're not basing it just on one thing, right? And he's taking each thing individually and going one by one, saying, well, a violation of this alone is not enough. Then he goes to the next thing and says, a violation of this is not enough. Well, yeah, it's not enough. But, again, you're not looking at the totality of the circumstances, which is really where these things are judged. [00:14:27] Speaker 2: Knowing that Mrs. Pino has spent much of her motherhood with her daughter and her daughter's friends, including Lucy, she's confronted with a photograph of Lucy by the prosecutor, saying, that's not your daughter, is it? [00:14:52] Tony DeWitt: So, if the law is against you and the facts are against you, you attack the other attorney. And that's the next trick that he's trying here. The problem with this is that I think the jurors probably understood why she did that. Because she was going up there. Mrs. Pino was making a lot of excuses for her husband, and it just didn't sound authentic. She had her little bottle of San Pellegrino. I think she did that basically for shock value. And whether or not that was fair or not, that's what she did. And you can claim that that's a foul ball, but at the end of the day, it doesn't matter. Because it was an effective cross-examination strategy, especially for somebody who essentially lied on their interrogatories. [00:15:46] Speaker 2: He's the one who talked about keeping your head on the slope. The operator of the boat has to keep his head on the slope. And what that means is, as someone's operating a boat, since there's no traffic lights, no stop signs, no yield signs, no turn signals, no turn signals, which means that if a boat is coming behind you faster, right, that boat could come up behind you. And so, while you're operating a boat, you've got to take a look from time to time. You've got to swivel. Look at your instruments. Look at your passengers. And if it takes you more than six or seven seconds to do all of that, in one swivel, he might just hit the mark. [00:16:33] Tony DeWitt: Some of you who watch a lot of trials now realize what's going on. Because he didn't get any evidence in about how you operate a boat, and because George didn't testify, and because he didn't have a boating expert, and none of the state's experts would support this, the government of what he's doing, and he's teaching about a boating operation with no evidentiary basis whatsoever. So, again, this is one of those things where the judge will instruct them that what the counsel says is not evidence. If there's no evidence of any of this, and I don't believe there is, then, again, he's sort of performing here, getting stuff in that he could never get in at trial. And I'm surprised that the prosecution doesn't object to that, but maybe she's just playing nice. [00:17:30] Speaker 2: Let me make one other thing clear. Green marker 15 is visible. To use the word, as we understand it, it's visible. It's three by three. If you're looking straight at it, you're going to see it. If it's like a pothole down the street, you can see it, but it's just not registering, you could miss it, even though you could see it. When I say miss it, I mean you could not recognize or not register that it's there. And if you do that, it means you're human. It happens to us as human. It doesn't turn us into criminal. And Bevel Dahl, he testified that the exercise of having Lieutenant Thompson replicate, copy it, the path that the Rivalu took, showed a steady course. No weaving, no hot dog, no thrill seat. A slight turn at any of the last several seconds would have avoided the marker. [00:18:40] Tony DeWitt: I'm having a hard time understanding why he's making the case for the prosecution there, but the problem is he didn't avoid the marker, and he didn't see it because he wasn't keeping a careful lookout. This has been sort of an exercise in spotting the logical fallacies in a defense closing argument. And there are many in this defense closing argument. I don't have time to go through all of them, but you can see generally that the object of the game is to confuse the issues. One of the last things he talked about was how when the boat is going at speed, the bow tilts up. So if you're behind the bow and you're looking out in front of the boat, you don't see the same thing that somebody who was sitting at the point of the bow would see because of the height and the tides and, you know, all the different factors that go into that. But of course, the speed of the boat was under his control. He knew there were channel markers out there. He very clearly could have slowed down. This is part of the effort to sort of confuse things. Well, you know, you can't hold him responsible if he couldn't see it. You know, it just wasn't up high enough. But it could have been at 10 more feet high, and he likely would not have seen it because he wasn't looking. And I think what he told the people, what he told the Florida Water Conservation Commission people was essentially that he turned around to look at the girls. And that may have been what caused him to deviate. It's interesting that a lot of the things that he's talking about here are phrased in the form of could and should and might and would and maybe and possibly. And it could be that, and you understand that that's all speculation. So it'll be really interesting to see what goes on in the prosecution's rebuttal. That will be something I think that will be a bone of contention, all of the speculation that he's going through here. I'm going to stop this here because I feel like I've just been really kind of ragging on the guy. He's doing the best job that he can under the circumstances. He doesn't have very many good facts. I mean, his big item here is the traumatic brain injury, and that's testified to by a woman who makes $29,000 to see the guy like twice. So you have to take a lot of what she says with a grain of salt, maybe even with a block of salt. I don't know. Of course, it's salt water out there. Anyway, the long and short of it is this has been a closing that I think was an attempt to confuse the jury, throw a bunch of stuff out there in different directions and get them, you know, get them looking one way and then get them looking the other way. There's just so much going on, it's a really effective strategy sometimes if you don't have jurors who are willing to knuckle down and follow the ball. And it's like three-card Monty. When you do this, you have to be sure that you don't explain where the ball really is because that gives the whole thing away. So I would give him, I don't know, I guess a C on his closing argument. It was workmanlike. It was unemotional. The attacks on counsel were, I think, kind of below the belt. But, again, if you don't have anything else but mud to throw, you throw the mud. So that's what I have for you this afternoon. I will get to the closing rebuttal by the prosecution in just a bit. At Walmart or someplace else. There are all kinds of things we can do to make people's lives better. And a lot of times, people will always remember to go to the manager and complain. They very seldom remember to go to the manager and say, hey, you know, that guy over there in produce is top notch. And I think it's really important to do that because I want to make the world a better place. I know you're here, probably, because you want to make the world a better place. So let's do that. Now let's be respectful of one another. And thank God we live in the greatest country in the free world. I do think that the good folks at YouTube have a few things they want to show you up here that you might be interested in. And if you are, I'd appreciate you clicking. Thanks. Have a great day.