The Crash: How a Defense Attorney Would Have Torn Apart the Mackenzie Shirilla Prosecution

**Tony Brueski** (0:01)
This is Hidden Killers Live with Tony Brueski and Robin Drake.

**Tony Brueski** (0:08)
The Mackenzie Shirilla case was charged as a murder, four counts, not manslaughter, not reckless homicide, not vehicular assault, murder, which requires proof that intent beyond a reasonable doubt exists. The prosecution built that on surveillance footage, black box data, 93,000 text messages, and a prior threat. No confession, no note, no witness to intent.
Let's go on that here for a moment. Just the counts themselves of murder. Was this an overcharged case without having... You can't get into her mind to know exactly what she was thinking, and there was no evidence, their letters or anything of like, I'm gonna go kill my friends today, or anything of that sort that was brought into this trial itself. Was it overcharged with the jurisdiction thinking that they knew what her thought process was?

**Bob Motta** (1:10)
I mean, in direct respect, you have to say no. She was found guilty.
They got their verdict.
So, I mean, but the reality is, in that case, if I, again, if it falls on my desk, if they retain me, I'm going in, and I'm certainly arguing what you're arguing. Like, you fucking serious? You're coming in on this bullshit with a murder one? No, dude. Like, I'm trying to have those discussions, which I'm sure the lawyer did as well. You know, you're trying to negotiate this thing down to a manslaughter. Yeah, you know, like, you're trying to get her some kind of deal where you're like, OK, you know, because leading up to the trial for all the warts that you pointed out as defense counsel, you're thinking there's no way they're getting murder one on that. They're never going to be able to prove her intent. You know, they're never going to be able to do it. And, you know, in that thinking, T is why they landed on a fucking bench trial.

**Tony Brueski** (2:14)
Yeah.

**Bob Motta** (2:15)
You know, which is a huge risk.

**Tony Brueski** (2:17)
Was that a big mistake? I mean, obviously, if you're looking at Mackenzie, she's going, probably, yeah, it was a mistake because she ended up getting what she got. Or could it have been far worse if it had been a jury trial? Could she have been penalized even worse than she was?
When she looks back on this, when you look back on this as a legal expert, was the bench trial, was that the route you would have taken, too, had you been representing her?

**Bob Motta** (2:41)
Well, I just want to be clear, in terms of sensing, that doesn't have jack shit to do with the jury.

**Tony Brueski** (2:45)
Okay.

**Bob Motta** (2:45)
You know, like, if she's convicted by a jury, then she can come back for sentencing. So theoretically, that could be the same. But, you know, there's this thing that we call trial tax that, you know, it's an unwritten rule that if you have a case that a judge, upon hearing that case, decides, you know what? This should never have made it to trial. Like, you had no actual defense here. Like, you've wasted the county's money, the taxpayers' money, my time to go through this charade of a trial. And you know what? I was never saying this, or she's never saying this. This is what's going on in their mind, right? They're like, I'm going to ding them a little bit. You're going to pay a little trial tax. You wanted to come to trial, so taking the state's deal, I'm going to kick an extra two years on there for you. You know what I'm saying? Like, so that exists in the mind of lawyers where there could be a trial tax if you take something to trial that maybe shouldn't go to trial. This thing wasn't that. If they're going to die on the first degree murder hill, you've got to take it to trial. If you cannot get them to move down to a more reasonable charge on this case, you're going to take it to trial. It's akin to, you go to trial on a death penalty case because they're trying to fucking kill you. You have nothing to lose, but to take that thing to trial and see if you could put enough in there as the defense attorney, not even in the guilt phase, but to save your client's life. You're trying to beat the death penalty. That's why it's usually a huge carrot in most cases in a death penalty case for them to say, all right, you want to avoid trial, we'll pull the death penalty off the table. That's what happened in Kohbeger. People like all the fucking lunatics out there that are still thinking that he didn't do this and that he was forced into put bullshit, bullshit.