Caleb Flynn and Sandra Birchmore: Every Gap Both Cases Left Open

SPEAKER_1 (0:01)

This is Hidden Killers Live with Tony Brueski and RobinDreeke.

Tony Brueski (0:09)

Well, Caleb Flynn is appealing. I don't think anyone's really surprised by this. Just two days after Caleb Flynn was sentenced to life without parole, his defense team fired off a notice of appeal with the Ohio Second District. They're asking the court to appoint a public defender to take it from here. The filing zeroed in on two major points, Judge Pratt's jury instructions and her refusal to move the trial out of Miami County. But behind the legal jargon, his trial attorney admits the core argument is that the state simply failed to prove premeditation. Remember, an appeal isn't a brand new trial and there's no jury sitting in that room. The inbox has been getting flooded lately with a lot of your questions, a lot of your comments, and we're going to break a lot of them down in today's program. So if you got any thoughts on this, any questions about this, where this is going, and we're talking about in their first segment here, Caleb Flynn's appeal. We're going to talk about side piece in just a moment. So if you got some side piece thoughts, hold them for about 10 minutes, and then be sure to address them because we're definitely going to get there. RobinDreeke, retired FBI Special Agent, Chief of the Counterintelligence Behavioral Analysis Program and a master class instructor with us as always to help us get here. We knew there'd be an appeal. This is how this works. So of course, it's going to come about. One of the big questions that we've been seeing here, can Caleb Flynn claim ineffective assistance because the defense called zero witnesses? A lot of people are noting that they're shocked that the defense called zero witnesses to counter the prosecution's massive digital footprint. Does the strategic rest protect the council? Or did failing to mount an affirmative defense open the door to the viable ineffective assistance to council appeal?

Well, he was there.

He wasn't inapt. He wasn't not able to participate in his own defense. So part of choosing that, of not calling any witnesses, was his call to.

Robin Dreeke (2:25)

Who would you have called? So, okay, so let's go down that road. I love going down every road because thought experiments are fun.

Tony Brueski (2:31)

Yeah.

Robin Dreeke (2:31)

And so, all right, they didn't call any witnesses, but if you're gonna claim ineffective defense, his defense cross-examined people. As a matter of fact, I think most of us got our updated impressions of Alleigha's side piece because of the cross they gave her.

I thought they did a really good examination of her because had it not been for the cross-examination of Alleigha, we would have thought that Caleb was just this predator that groomed her. And that's what my impression was. He must have done this. She is this poor girl and then all of a sudden she gets up there on a cross and you're like, oh no, actually, I think the defense did a great job of exposing Alleigha because we would not have known this other side of Alleigha that she had twice the amount of text than Caleb did. So just because they didn't call a witness, again, ask yourself, so who would they have called?

Tony Brueski (3:27)

And that's a very key thing. I think a lot of people get confused sometimes in cases where they're not going to call anybody. Yeah, a lot of cases have been won that way, too. It's not like a guaranteed loss. It's not worth throwing in the towel when we're giving up. It's we believe the state did not present a strong enough case, basically, and we're just not going to add anything to it, whether even if we think we have something strong, if we don't think that whatever we're going to offer is going to further our case any stronger than it sits right now. In fact, maybe if we add something, it could maybe pull us back or add more doubt to a juror's mind. They're not going to do it. Sometimes less is more. And when you're Caleb Flynn in a case like this, less is definitely more because there's really not a whole lot you could say after all that comes out. I think what they were really looking at doing was, okay, where's the weapon? This guy is such a buffoon. This guy is such an oaf and he doesn't know what he's doing.

Why could no one find the weapon? He screwed up all these things, but somehow he made a gun disappear. That's something a lot of cases would love to have the magic trick take place in. But that wasn't there. They thought maybe, maybe get one holdout juror or something, maybe that will work. So no, I completely do not think there's any argument of ineffective assistance of counsel in this case. It is interesting though, Robin, what's your take on this?