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Wednesday, September 10. 2008
Photo from website of U.S. District Court (W.D. Mi.). Judges are generalists, at least where I practice law. They are expected to grasp and rule on a vast body of law. The law is too vast for even the most conscientious insomniac judge to be a walking encyclopeia on the law. As a mentor told me not long out of law school: In your written advocacy, write as if you are talking to the judge with your hand casually sticking in your pocket. He also said that you need to shove your point down the judge's throat, because s/he does not have the time to try to divine any hidden meanings in your writing. (Perhaps that is a bit of hyperbole to say to get straight to the point with the judge, and to give the judge the relevant condensed law so that the judge is not left on a hunting trip.) What to do when a judge denies a motion so as to have a ruling that flies in the face of established law. If you start arguing about the judge's ruling, the judge may say "I have ruled. It is time to move along. Raise the issue in the appellate court, if you wish." On the other hand, the judge might listen further if you help the judge save face and eliminate concern about interference with "moving it along", and say something along the lines of: "Judge,, thank you for considering our motion. I hope you might consider page 246 of the Aardvark decision, which mandates the opposite of what your honor has just ruled." Now, the judge has been offered an invitation to revisit the issue without losing face, or to say "Thank you, counsel, for your tenacity. I stand by my ruling. I look forward to seeing you on our next court date." A problem a judge faces when a lawyer hands up court opinion to read, on the spot in court, is that so many appellate opinions are lenghty, and take time to sift through the decision to figure out what the writers are really saying. If you are in a jurisdiction that does not require all legal authorities to be presentend to the court before the court date, you can help out the judge by handing him or her case opinions that have relevant pages highliged and tabbed. You might even wish to hand up two or three cases with a short written summary of the benefit of those cases to your cases. The key is to make it no less pleasant for the judge to leaf through the often turgid prose of appellate opinions and statutes, than to say "denied" without reading the provided authorities. One very talented criminal defense lawyer has a pencht -- at least at CLE presentations -- to project relevant portions of cases on the screen and to read aloud some of the most apt, and sometimes, humorous passages with a laser pointer to follow along, including this passage from the Ninth Circuit's 1985 ruling on Larry Flynt's contempt of court ruling, quoting Flynt's exchange with a federal trial judge (I think this may have been as part of a presentation of how to deal with out of control clients, or perhaps about how Flynt got his lengthy contempt sentence cut short by the appellate court): "FLYNT: I move that you call the U.S. marshal to the stand that was present when I took the drugs, when I was flung on the floor by an inmate, and when I was kicked when I was smacked. I want the U.S. marshal called, I also want the guard called that tipped me off that this asshole was sending me to Springfield.
THE MARSHALL: Open up the door. / THE COURT: No, that is all right. He's got the responsibility. That is going to cost you 30 days, Mr. Flynt.
THE DEFENDANT: Hey, you know what punishment -- is. Well, you don't give a f*ck. / THE COURT: Mr. Flynt, you just keep that up.
THE DEFENDANT: F*ck you. Give me life without parole you foul mother-f*cker. / THE COURT: That is another 30.
THE DEFENDANT: I want you -- give me more. You chicken- shit son-of-a-bitch. / THE COURT: That is another 30 days.
THE DEFENDANT: Give me more. [So much for an ordinary day in an august courthouse.]
United States v. Flynt, 756 F.2d 1352 (9th Cir. 1985). Back to my mentor who certainly had a point about talking to judges as if your hand is informally sticking in your pocket. Doing so puts one more in the mood of sitting around with friends, in a relaxed setting. That helps remove the bullsh*t quotient. Judges and most other people have no tolerance for bullsh*t. A case in point about convincing a judge to overrule an objection on the spot came at a recent administrative hearing to determine whether my client would lose his driving privileges for several weeks for having allegedly driven in contravention of the drinking and driving laws. If an adverse ruling is announced at such hearings, the alleged wrongdoing driver might face worse devastation from the driving suspension than the possibility of sitting in jail a short period for a drinking and driving conviction. Inside, I am incredulous that the administrative law judge refuses to dismiss the case when the matter cries out for dismissal. Outwardly, I try my best to use non-confrontational words and tone of voice to share my concerns about the adverse ruling rather than to push against the judge. All of the sudden, there is silence. The judge is more studiously reading my appellate case decision that is directly on point with the need for dismissal. Then more silence and reflection comes, and the ALJ finally says that although he does not agree with all of my characterization of the applicable case, in this instance he finds no valid grounds in the record to justify the cop's request for a breahtlyzer test from my client. Once we emerge from the hearing room, I congratulate my client, and say "Let's get the hell out of here. No need to give the ALJ a chance to change his mind." So we vamoose like bats out of hell. Jon Katz
Friday, September 5. 2008
Bill of Rights (From public domain.) Who wants police to be permitted to pin down a drunk driving suspect to draw blood? What medical professional in his or her right mind would agree to draw the pinned-down suspect's blood? Then again, will some police just take the lobotomized route of skipping the phlebotomist entirely, and draw the blood themselves? Not if such judges as Pima County Superior Court Judge Richard S. Fields are presiding. Judge Fields recently wrote that blood draws "carried out in roadside situations with poor lighting and in less than sanitary conditions" present "an unreasonable risk of infection and injury." Of course, the prosecution says it plans to appeal, which is another reason I am happy that I have never prosecuted. (Thanks, Lawrence Taylor, for posting on all topics contained in this blog entry). Then again, will law enforcement agencies get their cops certified as phlebotomists? That is what the Utah Highway Patrol did with its troopers, to save the time and $50 per blood draw of calling in a medical technician. As blogger Lawrence Taylor aptly points out: "Ignoring the pain, injury and infection aspects for the moment, bear in mind that the blood must be taken from a vein, not an artery (which has a higher blood-alcohol concentration); the skin must be swabbed with an approved antiseptic (not isopropyl alcohol, which can raise the blood-alcohol concentration); the correct amount must be taken, with no contamination from the officer; it must be placed in a sterile and sealed vial; an approved preservative in the correct amount must be added and mixed in (to prevent fermentation, which increases BAC); an anti-coagulant (to prevent clotting, which increases BAC) must also be added, again in the correct amounts." If a drunk driving suspect is going to be coerced or forced into submitting to a blood test, the least the powers that be can do is to provide the suspect at least some comfort, confidence and dignity by providing an experienced medical technician for the blood-drawing, rather than to have it done by a handgun-toting cop who claims to be certified in the procedure. All of this Orwellian forced blood drawing comes to you thanks to the 5-4 decision in Schmerber v. California, 384 U.S. 757 (1966) (finding no Constitutional violation from a non-consensual blood draw), which, sadly, was penned by my otherwise hero Justice Brennan. Jon Katz
Monday, August 18. 2008
Bill of Rights. (From the public domain.) One day I asked a prosecutor if she feels any discomfort going against unrepresented criminal defendants, most of whom are not poor enough to qualify for court-appointed counsel but for whom the financial struggle is too great or impossible to hire a lawyer, and some of whom are dilatory in obtaining a court-appointed or private lawyer. She said she feels no discomfort, because she offers all defendants the same guilty plea offers, whether or not represented by a lawyer. Assuming the truth of her assertion, for argument's sake, what happens after she conveys the initial guilty plea offer? A capable criminal defense lawyer will advise the client whether to reject the plea offer, accept it, or return with a counteroffer, and how to time and express any reply. How will the pro se defendant respond? If the case goes to trial, will the pro se defendant represent himself or herself anywhere near as capably as an experienced trial lawyer? Also, the pro se defendant effectively loses the right to remain silent throughout trial. How do prosecutors respond to a counteroffer from a skilled trial lawyer versus from a pro se defendant (and, for that matter, versus a lawyer who is green or about whom the prosecutor knows nothing)? Negotiations are about hedgebetting. Prosecutors have fewer bets to hedge with unrepresented defendants, whom, by definition, are on weaker ground than if they had a qualified lawyer. A case in point came recently when I walked into misdemeanor court, and the prosecutor cheerfully offered for my client to plead guilty to a lesser but still jailable and collateral-risk laden offense. I asked which witnesses were present, and none were. During the break, the prosecutor said the arresting officer in the case was on his way, and urged that his guilty plea offer was the way to go. Probably having had much more time to know my one case versus the prosecutor's two dozen cases, I told the prosecutor that even if the cop arrived, he still had a weak case because of A, B and C, and I said I would not recommend that my client plead guilty to any jailable offenses. The prosecutor ended up dismissing my case later in the day. How would a pro se defendant have handled the foregoing scenario, and how would the prosecutor have responded? Would the pro se defendant have known whether this was a courthouse and case where ordinarily the defendant can get away with waiting for prosecution witnesses to show up before deciding whether to accept a guilty plea offer? Would the prosecutor have told the pro se defendant that the plea offer would be off the table upon the cop's arrival? Would the prosecutor have emphasized the jail risks faced by the pro se defendant by going to trial when the plea offer involved no executed jail request from the prosecutor? Would the prosecutor have argued that the pro se defendant was entering dangerous, uncharted territory to take a case to trial without a lawyer? How do we ameliorate the plight of pro se defendants? One way is to assure that quality court-appointed/ public defender counsel is made available to indigent defendants, and that truly needy defendants are not barred by guidelines or unfair or uneven application thereof that misses them. What do about defendants who are not poor enough to obtain indigent defense counsel but will struggle mightily to pay for a lawyer -- after paying for rent, transportation, children's needs, groceries, and other essentials -- or will not be able to obtain the funds at all? As to the former category of criminal defendant, at least in the past, the Maryland criminal defense bar used to have members who agreed to be part of a "gray panel" that offered reduced rates to such people; such a practice needs to continue. Have indigent defense lawyer application guidelines kept up with today's economic realities of expensive rates for qualified criminal defense lawyers and high prices for gas, food, and other essentials? Should public funds be made available to provide partial subsidies to people who are borderline eligible to obtain indigent defense counsel but do not qualify? Awhile ago, I wrote this piece about the struggles that most ordinary-income people face in paying for quality legal representation. Of course, probably we always will also see a handful of pro se criminal defendants who would not obtain counsel even if they qualified for indigent defense counsel. All criminal defendants have the right to choose their own counsel, including to proceed with self-representation. Caveat emptor. Jon Katz.
Sunday, June 29. 2008
Image from Virginia Forestry Dept's website. In Virginia and Washington, D.C., the law says that drivers in those states impliedly consent to have their blood alcohol levels tested if the police have sufficient grounds for seeking such tests. In that regard, here are important relevant Virginia statutory provisions and appellate opinions: - In Virginia, "Any person, whether licensed by Virginia or not, who operates a motor vehicle upon a highway, as defined in § 46.2-100, in the Commonwealth shall be deemed thereby, as a condition of such operation, to have consented to have samples of his blood, breath, or both blood and breath taken for a chemical test to determine the alcohol, drug, or both alcohol and drug content of his blood, if he is arrested for violation of § 18.2-266, 18.2-266.1, or subsection B of § 18.2-272 or of a similar ordinance within three hours of the alleged offense." Va. Code § 18.2-268.2 (A). - The certificate of analysis for the blood alcohol test is inadmissible if the technician's certification was expired at the time of the analysis. However, that does not automatically prevent an erroneous certificate of analysis admission to rise to the level of harmless error. Brooks v. Newport News,. 224 Va. 311, 315, 295 S.E.2d 801(1982). - The burden is on the prosecution to prove a defendant was intoxicated while he was operating his truck, not for the defendant to show that Defendant became intoxicated after leaving his or her parked vehicle. Overbee v. Commonwealth, 227 Va. 238, 244, 315 S.E.2d 242 (1984), - In Virginia, the certificate for breath analysis is inadmissible at trial if the test was performed over three hours from the defendant's previous driving experience. Overbee v. Commonwealth, Va. Code § 18.2-268.2 (A), 227 Va. 238, 243. Jon Katz.
Thursday, May 8. 2008
Bill of Rights (From public domain.) Field sobriety tests are junk science administered by cops who have no expertise to administer them, because junk science precludes having expertise. See how poorly is the performance when asking even a fully sober and awake person to follow unfamiliar instructions for standing on one leg for a count of thirty and walking heel to toe ("don't miss heel to toe") nine times and pivoting correctly on the way back. If a person has even had a glass of wine two hours ago and is somewhat tired, s/he will be between a rock and a hard place to take or not take the field sobriety tests in the following states that Virginia's intermediate appellate court has joined for considering the results of field sobriety tests for determining probable cause to arrest for violating drunk driving laws. In Jones v. Com., _ Va. App. _ (May 7, 2008), Virginia's Court of Appeals upheld a thirty-day jail sentence for unreasonable refusal to take a breathalyzer test, where the defendant had previous drunk driving convictions, and allowed consideration of the defendant's refusal to take the field sobriety tests for the probable cause determination. Moreover, the court was silent about the cop's repeated requests for field sobriety tests, which sounds like such test requests were demands rather than the simple requests they should have been (just as cops are not permitted to demand that a person submit to a "consent" search; they may only request it). In reaching this conclusion, Jones detailed the situation in the following states that permit consideration of refusal to perform field sobriety tests, Jones at n.4: See, e.g., State v. Ferm, 7 P.3d 193, 197 (Haw. Ct. App. 2000) (affirming conviction when officer arrested appellant for DUI based on his “impaired demeanor, the smell of alcohol on his breath and his refusal to undergo a field sobriety test”); State v. Sanchez, 36 P.3d 446, 449-50 (N.M. Ct. App. 2001) (holding that, while refusal to perform field sobriety tests would not, standing alone, provide probable cause, it is a legitimate factor in the probable cause determination). Far more courts have decided the analogous issue of whether refusal to perform field sobriety tests may be used as substantive evidence to establish intoxication in criminal trials. See, e.g., Longley v. State, 776 P.2d 339, 345 (Alaska Ct. App. 1989) (holding evidence admissible because “[a] refusal to take the [breath] test is . . . probative of guilt . . .”); Johnson v. State, 987 S.W.2d 694, 698 (Ark. 1999) (“The refusal to be tested is admissible evidence on the issue of intoxication and may indicate the defendant’s fear of the results of the test and the consciousness of guilt.”); State v. Taylor, 648 So. 2d 701, 704 (Fla. 1995) (Appellant’s “refusal [to take field sobriety tests] is relevant to show consciousness of guilt.”); People v. Johnson, 819 N.E.2d 1233, 1237 (Ill. App. Ct. 2004) (Refusal evidence is admissible because “[t]he trier of fact can infer that a defendant refused to submit to the test because it would confirm that he was” driving under the influence.); cf. State v. Mellett, 642 N.W.2d 779, 786-89 (Minn. Ct. App. 2002) (refusal evidence admissible; no Fifth Amendment violation); State v. Hoenscheid, 374 N.W.2d 128, 129 (S.D. 1985) (refusal evidence admissible; no Fifth Amendment violation); Seattle v. Stalsbroten, 978 P.2d 1059, 1061 (Wash. 1999) (refusal evidence admissible; no Fifth Amendment violation); but see Commonwealth v. Grenier, 695 N.E.2d 1075, 1078-79 (Mass. App. Ct. 1998) (holding that refusal evidence is inadmissible on the issue of intoxication based on state constitutional grounds). Jones v. Com., _ Va. App. _ (May 7, 2008), I hope Jones files and wins a petition for appeal to Virginia's Supreme Court in this case. Jon Katz ADDENDUM: Thanks to a lawyers' listserv member for bringing this Jones case to my attention.
Friday, March 7. 2008
Image from National Institute of Standards & Technology. Zippy the Pinhead is my favorite comic strip. Zippy spews non sequiturs, repeatedly proclaims "Yow!", and asks "Are we having fun yet?" in this overcommercialized society that tells people they won't be glad til they use Dial. Every four years, he runs for president. Trials often are tribulations for criminal defendants. Earlier this week in criminal traffic court in Maryland, Zippy seemed to be with me and my client in spirit as we proceeded to beat a drunk driving trial. The prosecutor spent significant time preparing the arresting officer in the hallway outside the courtroom. Nevertheless, the prosecutor apparently had not prepared the arresting cop sufficiently to permit his field sobriety testing testimony, and it seems that the prosecutor did not know how to get around the repeated defense objections sustained by the judge. Essentially, the prosecutor asked the cop under whose auspices he was trained, but the cop was unable to recall which organization was involved in his training. He only knows that Bob, another police officer, trained him for investigating violations of the drinking and driving laws. The judge agreed that the prosecutor had not elicited sufficient testimony or evidence to permit the cop to testify about any field sobriety tests and about any arrest and the events that followed it. During the trial, as numerous key evidentiary rulings were decided in our favor, I leaned to my client and said: "I AM having fun." With so many criminal defendants having their rights violated by the powers that be, it is all the more a rush to obtain such victories. Jon Katz.
Tuesday, January 22. 2008
T'ai chi works not only for trial battle, but also for negotiating an alternative to having a trial. The great thing about being fully prepared for trial is that it makes one not only ready to do better at trial, but also to do a better job in negotiations. The maxim remains true that by preparing cases to negotiate they are more likely to go to trial, and by preparing cases for trial, they are more likely to be resolved by negotiation. For instance, it is a sunny Friday afternoon, and I drive up for trial to a rural Virginia county courthouse that I have never visited before (so I check in advance about the prosecutor and judge from a local lawyer). The prosecutor gives me a friendly greeting, and suggests that, this being Friday afternoon, I make a reasonable disposition proposal. My client is charged with drunk driving and reckless driving, and will have his commercial drivers license suspended if convicted of drunk driving, and any Virginia suspension period for reckless (the judge has the option to suspend up to six months for reckless) will carry over to his commercial drivers license. The prosecutor insists that DWI be part of any negotiation. I talk with the arresting police officer, and recognize that my client has a small chance at best of beating DWI at trial. I explain to the prosecutor why my client needs to go to trial unless we enter a guilty plea involving no DWI conviction and no suspended driving. The prosecutor agrees to a guilty plea to reckless driving only, the judge goes along with it, and everyone is out of the courthouse less than one hour after the afternoon session began. The result meets the prosecutor's goal of finishing court early on a sunny Friday afternoon, and the client's goal of keeping his commercial driver's license intact and serving no jail time (in fact, he is not even put on probation). Several weeks later, another client and I arrive at one of the more crowded Maryland courthouses for trial. He is accused of drunk driving. The arresting officer shows up, but not the breath technician, whose presence we timely demanded many weeks before. After talking to the police officer, it appears our client -- even without the breath technician's presence -- has a very good chance of losing on the driving while impaired charge (a lesser included offense of driving under the influence) at the very least. The police officer is more than happy to talk, and it turns out that he has no problem with any level of leniency offered by the prosecutor. I wait awhile to speak with the prosecutor, who is dealing with a long line of witnesses, lawyers, and unrepresented defendants. When the proceedings resume, the judge makes clear, in so many words, that he wants to move the large docket along. After that happens, I go up to the prosecutor nonchalantly, who offers for my client to plead guilty to a jailable offense. I point out that the breath technician is not available, and counter with a proposed disposition only involving an admission to two non-jailable moving violations. The prosecutor thinks about it, and ultimately agrees. We benefit from a combination of an absent breath technician whose presence we demanded, and the presence of a judge who wants to move the docket along. In both of the above instances, not only were we successful in obtaining such excellent negotiated results, but we truly were going to go to trial if the prosecutor did not remove the drunk driving counts from the plea negotiations. In both cases, I chewed the fat amiably with the prosecutors and cops (that I can do; breaking bread with them is another question). We got to yes by focusing on the overlapping goals of both sides, by doing it in a way that was non-confrontational and that made clear that nobody on the other side would lose face, and by our being in the t'ai chi moment. Nothing ventured, nothing gained. Jon Katz.
Friday, January 11. 2008
Image from National Institute of Standards & Technology. When administered properly, blood tests are more accurate than breath tests in determining a person's blood alcohol content (BAC). Nevertheless, in the state courts where I practice, police ordinarily choose the breath test over the blood test. The breath test may save time and money over the blood test (and remove the need for the testimony at trial of the people who drew and analyzed the blood, and remove challenges by the defense about the chain of custody and handling of the blood sample between the time periods that the blood is drawn and analyzed). However, hanging in the balance is the defendant's liberty, which deserves giving the defendant a choice between a blood and breath test (the defendant should have the option, for instance, if s/he reacts adversely to needles or learns that the alcohol analysis will be quicker by blowing into a machine at the police station rather than being transported to a hospital to have a medical technician draw blood). In any event, few battlegrounds are level and fair. Until legislators and courts fix the unfair state of affairs over laws prohibiting driving with a 0.08 BAC or higher together with permitting breath tests that are insufficiently accurate, criminal defense lawyers, as always, are left with the available playing cards and rules. In that regard, as I blogged on January 8, I recently went into a Virginia court where I overcame the risk of a five-day mandatory jail sentence for an alleged BAC over 0.16 by arguing reasonable doubt whether the BAC at the time of the breath test was higher than at the time of driving; on November 8, 2007, I blogged about how the BAC can rise as the alcohol absorbs into one's bloodstream. In another instance, the documentation about the Intoxylizer 5000 breathalyzer machine for another client (the key is to obtain such documentation by subpoena, written request or both, as needed) facing a mandatory minimum for a BAC over 0.15, showed that the Intoxylizer 5000 had been repaired prior to being used on my client, without having been recalibrated. Since my client was likely to be found guilty of drunk driving even without the breath test results and to get jail for having a DWI conviction on an arrest that took place only about two weeks later, we got a very good result in convincing the prosecutor to a DWI plea involving a suspended sentence only at a doubled length from what is ordinarily offered in that courthouse to people without other convictions and with lower BAC's. It also helped in that instance that we had a hired forensic toxicologist to show the prosecutor our firepower to convince the judge to keep out the breath testing results. As with all criminal defense, a key in defending drunk driving cases is to take every opportunity to use the governing rules and evidence to the defendant's advantage. Although Virginia law provides such escape routes for prosecutors as only requiring "substantial compliance" with the administrative rules governing BAC tests, no such escape hatch exists in Maryland. In any event, no matter where one defends a drunk driving case, two of the several technical defenses in such cases include determining whether the suspect's oral cavity was sufficiently monitored for at least twenty minutes to be free of foreign substances, and whether the breath or blood sample was taken within the statutorily or regulatorily mandated time period (in Maryland the time period is two hours for a breath test, and in Virginia the time period was extended a few years ago to three hours). In Maryland, it is essential to go to court with a current copy of the state toxicologist's manual for administering BAC tests. I will provide a free copy to anybody who asks (until I arrange to have it scanned onto this website). Even better is to have a certified copy, which can be obtained by sending a $40 check made payable to DHMH-OCME, and sent to Barry Levine, Ph.D., Toxicologist, Office of the Chief Medical Examiner, 111 Penn Street, Baltimore, Maryland 21201. By now in Maryland, I have obtained full or partial victories a few times on the toxicologist's direction to assure that the oral cavity is free of foreign substances for at least twenty minutes before the test. In one instance, with the help of a forensic toxicologist, we convinced the judge that the twenty minute observation must be performed by the breath technician and not the arresting officer (who, in that instance, was not certified as a breath technician; also, in Maryland the arresting officer may not administer a breath test). As a result, our client was convicted of the less serious charge of driving while impaired rather than the more serious charge of driving under the influence, and the judge gave him a probation before judgment (which avoided points off his license). In another instance, our client was stopped after allegedly driving over the dividing yellow line. The cop testified that he observed our client had not put anything in his mouth (how was the cop able to observe this while still keeping his eyes on the road while transporting our client to the station?) and the breath technician confirmed the same (a warm belch or regurgitation can also lead to an inaccurate Intoxylizer result), but the prosecutor's witnesses did not establish that my client was not at any time out of the site of both the cop and the breath technician before taking the test (e,g,, to go to the bathroom, or for the cop to do the same). The judge kept out the breath test results, and found my client not guilty. In a more recent incident, the testimony of the arresting officer and breath technician showed no testimony by the arresting officer about an empty oral cavity and the breath technician's testimony of observing my client for nineteen minutes. I successfully argued to keep out the results by arguing close but no cigar. I drew the judge's attention to Md. Cts. & Jud. Proc. Code sect. 10-304, which requires breath technicians to have received training in the use of the Intoxylizer 5000 in a training program approved by the toxicologist under the Postmortem Examiners Commission. I then argued that, as a consequence, Intoxylizer 5000 results are only admissible when the state toxicologist's training manual is followed. Because the training manual mandates a twenty-minute observation, twenty minutes means twenty minutes, and anything less is unreliable. The prosecutor and I went back and forth with the judge on this, but ultimately the judge agreed not to admit the BAC results. Once again, instead of being found guilty of DUI, the judge found my client guilty of the lesser offence of DWI, and gave him a probation before judgment on the DWI. Of course, none of these great results can happen without being fully prepared for trial and fully able to try a case. Particularly with bench trials, judges often want counsel to "move it along" so that the full docket can be handled. The more that the defense lawyer streamlines such trials -- without prejudice to the client -- the more the judge will listen to the lawyer, so that the lawyer has a chance to win. Jon Katz.
Tuesday, January 8. 2008
Photo from website of U.S. District Court (W.D. Mi.). When I joined the Maryland Public Defender's Office in 1991, all bright-eyed and bushy-tailed to fight the good fight, it turned out that my survival instincts -- developed all the more since early childhood by growing up among plenty of peers who were more inclined to be nasty than warm (and I spoke my share of verbal taunts, too) -- and sharpened tongue often would serve me better than only relying on my boundless optimism at leaving a corporate law firm to spend my fulltime doing good. Early on in my criminal defense/public defender career, one morning in the courthouse I bumped into an opposing prosecutor, greeted him, and told him I wanted to arrange in advance to see the drugs seized in one of my clients' cases. He went false-ballistic, ranting and raving: "You want a trial? I'll go to trial." So much for having opponents proceed in the spirit of Begin and Sadat in agreeing to disagree. Such silliness, to say the least, does not stop with criminal cases; some of the most petty and unpleasant lawyers I have dealt with have been opponents in civil cases. Sometimes it is because money is at stake; sometimes it is because government lawyers' bosses are breathing down their backs. Sometimes it is habit. In one instance several years back, I represented a car collision victim and objected several times to some fully-objectionable and prejudicial deposition questions. Several times that I did so, my opponent would change from her sweetish-side (off the battlefield, that is) saccharine self to getting all bent out of shape that I would dare to interrupt her with an objection, insisting that I justify my objection. I made clear to her that the purpose of the deposition was not for her to intimidate my client by seeing me and her get into a rumble, and invited her to have closed-door discussions away from my client any time she was inclined to rant rather than simply and diplomatically to ask me the basis for any of my objections. That, for the most part, took the edge off my opponent in front of my client. Then, the silliness sometimes originates not from the opposing lawyer, but from "office policy" Recently, I went to court with a client charged with driving in Virginia with a blood alcohol content (BAC) of 0.16, which carries a mandatory and non-suspendable five days in jail where the BAC when driving is at least 0.15. I suggested to the prosecutor a guilty plea in exchange for removing the allegation of a BAC at 0.15 or over (I would have been less inclined even to advise that type of plea to my client if the law did not have any mandatory minimum jail sentence provision) and to agree to a suspended sentence, seeing that my client was likely going to lose on DWI for his often uncoordinated actions after being stopped for a clear moving violation where I likely would not win a motion to suppress. The prosecutor told me about some "office policy" that made such a plea deal not possible. In this courthouse as in most where I go, trials get called last, and sometimes there seems insufficient rhyme nor reason about which trial gets started before the others scheduled for the same courtroom on the same day. Mine was the last. Not expecting any success in suppressing the stop and arrest of my client, I focused on trying to keep out the breath test results, in part by arguing, unsuccessfully, that the evidence was insufficient to show that the following Virginia Administrative Code provision had been followed: "The person to be tested shall be observed for at least 20 minutes prior to collection of the breath specimen, during which period the person must not have ingested fluids, regurgitated, vomited, eaten, or smoked. Should any of these actions occur, an additional 20-minute observation period must be performed." 6VAC20-190-110. Moving onto plan B, on cross examination I focused the police officer on the positive aspects of my client's behavior, including that he remained standing -- not falling -- at all times after the officer told him to get out of his car, was eventually able to hold his leg up for the one leg stand, and made no unusual actions along the lines of urinating on himself. I then locked in the officer from his criminal summons to admit that he stopped my client more than two hours before his breath test was taken. I also locked him in that he had taken my client's preliminary breath test on the roadside and that he did not record the result ;he was unable to confirm or deny that the PBT was lower than the BAC result at the jail. I argued to the judge in closing that there was reasonable doubt whether my client's BAC at the time of driving was lower than the 0.16 at the time he blew into the Intoxylizer 5000 at the police station, in that perhaps his bloodstream was absorbing the alcohol more during the two-hour gap between the stop of his car and the breath test at the jail. I argued that caselaw shows that the question in DWI cases is about the BAC at the time of driving, not at the time of taking the breathalyzer test. The judge agreed with my reasonable doubt argument about whether the BAC at the time of driving was 0.15 or higher at the time of driving. This argument was hardly a shoe-in. Particularly without an expert witness in the Intoxylizer 5000 (some of my clients invest in one, but most do not, and we had none at this trial), I do not think all judges will accept the concept that the BAC can rise over a two hour period, rather than dissipate. Consequently, instead of getting a five-day mandatory minimum in jail had my client entered a guilty plea, we left the courthouse with a thirty-day suspended sentence. Back to the title of this blog entry: "You want a trial? I'll go to trial." Sometimes prosecutors and cops huff and puff against criminal defense lawyers who advise their clients to go to trial rather than to plead guilty. Such huffing and puffing ignores that it is the prosecutor's exclusive burden to try to prove a defendant guilty beyond a reasonable doubt, and not a defendant's burden to fall on his or her own sword. Moreover, a lawyer has an obligation to assist the defendant in making an informed decision whether to go to trial or not, and then to honor the client's decision. Winning at trial continues to be a rush. Jon Katz.
Thursday, November 8. 2007
When it comes to drunk driving prosecutions, blood alcohol content test results are subject to attack from all sides, including attacks on the accuracy of the test results in the first place. Moreover, judges and juries need to be educated that it is not a truism that blood alcohol content at the time of testing is no higher than at the time of driving. As alcohol absorbs into the bloodstream, an accurately-taken breathalyzer test will show an increase in blood alcohol content. This point can be best driven home through the testimony of a qualified expert witness (I list some of them here). Perhaps as a relevant example of increased absorption of alcohol in the bloodstream as time passes, perhaps not, one summer evening in my late teens, I joined some friends for many beers downtown in the town I was visiting for a few weeks. My friends wanted to take a taxi back, but I refused to go in the taxicab being driven by the same person who was fishtailing all the way to our original destination. A long distance runner at the time, I ran up a steep and long hill that took me back to my residence over a mile away. As I ran, I moved from feeling buzzed originally to feeling downright drunk. Not only was the alcohol moving through my bloodstream more as time passed, but it went into my bloodstream all the faster from my vigorous run. (As a tangent, were I still a drinker, I would enjoy duplicating this experience, as well as my experience playing one-on-one basketball after drinking several beers). Consequently, state drinking and driving laws may not penalize drivers for their blood alcohol content at the time it is tested, but only for their blood alcohol content at the time of driving, particularly where police arrive after the driving has finished (for instance, in the case of a collision) and see open alcoholic beverage containers in the defendant's car (which can indicate that the defendant drank alcohol after finishing driving and before submitting to a blood alcohol test). Unfortunately, Virginia law talks of a permissible inference that the blood alcohol test result shows the blood alcohol content at the time of driving. Va. Code § 18.-269. Allowing such an inference is particularly problematic when considering that Virginia law imposes a mandatory minimum five-day sentence for driving with a 0.15 BAC or over, and a mandatory minimum of ten days in jail for a BAC over 0.20. In any event, the Virginia Court of Appeals has confirmed that only a permissible inference -- but not a rebuttable presumption -- exists that the blood alcohol test result shows the blood alcohol content at the time of driving. As I blogged on April 25, 2007: Virginia's drunk driving Va. Code § 18.2-266 provides the basis for a permissive inference "'that the blood alcohol concentration while driving was the same as indicated by the results of the subsequent test.' Davis, 8 Va. App. at 300, 381 S.E.2d at 16." Yap v. Com., 49 Va. App. 622, 631(April 24, 2007). Yap appears to clarify that the above-quoted language from Davis, 8 Va. App. at 300, refers to a permissive inference, and not a rebuttable presumption. |
