Q – Tom, you’ve talked about how you never know which detail a case is going to hinge on, so you have to dig up, and follow up on, a lot of details. Can you tell me about some recent cases like that?
A – I think so. I’ve had two trials recently, where it went like that.
Case one: Convicted of Drug Misdemeanor Instead of 12 Years in Prison
The first one, I went to the crime scene a few times, to make my own observations, and double-check the reports. It also involved a search for the car, and I finally found the car in an impound lot. A lot of the case turned on the officer’s observations. There were 2 witnesses that were the primary witnesses for the prosecution, and then there was the police officer.
Q – So you first read the reports, and then you go off and start looking at the evidence yourself?
A – I go through all the reports and prior statements in detail, and see if there are any inconsistencies with the statements. I go to the scene, and see how the statements jibe with what’s actually there, I examine any other evidence that’s gathered in the case, and continue to constantly see how everything fits together. I look for any inconsistencies, or maybe embellishments, or things that just don’t make sense. I spend a lot of time examining like that.
Q – How does an attorney get access to an impounded car?
A – First, I contacted the DA’s office and the investigator to find out where my client’s car was located. I told them I needed to examine it to prepare for a defense. They told me where it was; they contacted the impound lot and told them I would be coming. Once I was there, I pulled out my camera and I photographed the car from a number of different angles. I looked inside, tried to recreate what the officer was describing, and then in the trial I used some of that to suggest to the jury that it was you know, was he really able to see what he claimed he saw, and how difficult it probably was to see it. That wasn’t what turned the case, but it certainly helped.
Q – You couldn’t have made those arguments if you hadn’t gotten out of your chair, located the evidence, and chased down the details. Does the prosecution do this too, or do they not have the time and staff to do all that footwork?
A – That’s up to the prosecutor. Every prosecutor is different. It just depends how thoroughly they want to prepare for the case. As for me, I prepare the case assuming that the prosecution is going to do everything, so I have to be prepared to address everything that could come up. If they don’t prepare thoroughly, and don’t bring certain things up, then I am well-positioned to take advantage of their lack of preparation.
Q – I see.
A – In this same case, there was another witness who had cooperated with the prosecution, and I made a point of going to the courthouse and attending her guilty plea. I saw for myself what kind of witness she would be in my trial, and heard the details of her plea agreement. I read through her prior statements to the police, and used the inconsistencies in her statements, and the negotiation that she had made with the prosecution, and brought that all out to the jury to show that she had enormous motivation to save her own skin at the expense of my client. With that kind of motivation, her testimony could not be trusted. Then you combine that kind of motivation with certain inconsistencies: there were facts that she couldn’t recall back when the events occurred, but which she now remembers with greater clarity and detail.
That just doesn’t make sense, but when you understand that she’s been offered a pretty good deal to cooperate, it starts to explain why she may remember things better now. You have to communicate these things to a jury, to suggest that maybe the fact that she remembers things now better than she did back then isn’t because she actually remembers better, but simply that she’s motivated to testify in a certain way.
Q – There appears to be a lot that goes on, behind the scenes, which the average person wouldn’t think of. Even if the defendant mounts their own best defense, they might not think of any of the things you just mentioned.
A – A good defense is a combination of things. There’s the actual hard work and the focus on the case; there’s going through all the reports piece by piece, digesting them, and understanding them; then, there’s knowing the procedure for getting all that in front of a jury, and for communicating it effectively, and integrating it into a theme of the case for maximum impact.
For instance, in this case, I showed that this witness had made a deal with the police at the side of the road, she made a deal with the police again at the police station, she’d made a deal at the DA’s office, and now she’s effectively trying to make a deal with the jury to believe her. So, that was kind of the theme, and then bringing in evidence that supported that theme, and in light of that theme, pieces of information that might not have made sense on their own started to make sense in the context of the case.
Q – Now, you said there was a car. Had the police stopped the car to make an arrest?
A – Yes, it was a traffic stop, and there were drugs found at the car. The arresting officer stated that he saw my client hand the other person something, and then the other person tried to hide it. The officers found it at the car, and she said that my client had given it to her, and then they cuffed my client.
Part of our defense was questioning the ability of the officer to actually see if anybody was handing anything to another person in the car. And then, in the trial, the officer made statements about what my client had said – statements he had never included in earlier reports. These were some sensational statements he said my client made, but which he had never included in the reports he had made within hours of the incident. How can you remember 7 months later what you forgot to put into a report 7 hours later?
Q – So, in this case, your client was acquitted?
A – He was acquitted of the felony and found guilty of a misdemeanor, and the felony he was looking at would have been 12 years in prison. It was a serious felony drug charge and then a misdemeanor charge for paraphernalia. They found that he possessed the paraphernalia, but he didn’t possess the drugs.
Q – I’m guessing in this case, was there an attempt made to come to some kind of agreement and keep the case from coming to trial?
A – There were plea negotiations ahead of time, but there was nothing satisfactory, since everything involved prison time.
Case Two: Felony DWI. Aquitted.
The other case is a felony DWI case.
Q – OK. Was it a felony case because of high blood alcohol content?
A – It was because he had a prior DWI. In this case, he was acquitted of the DWI.
Q – What was the key to this case?
A – One, it was showing that the officer really did not administer any of the field sobriety test properly. Two, all the good things my client did, such as how he was driving. I also showed that there were other reasons that the officer did not take into account such as nervousness, pressure to perform perfectly under threat of arrest, the anxiety that goes along with having to perform these roadside gymnastics, and the unfairness of it all.
Q – So was a Breathalyzer test administered?
A – My client refused. So therefore, I had to explain to the jury why he refused, since a jury will likely hold that against somebody.
Q – So it’s up to you to persuade the jury that there are valid reasons for refusing. It’s not a forgone conclusion that it’s a guilty thing.
A – Correct, and in this case, I communicated to the jury that my client was not treated entirely fairly – his protestations of innocence and that he was not feeling well and why, were never really listened to, and that the officer just concluded that he was a typical DWI from the beginning, and so the officer did nothing except what would confirm that. So, after having to do all these tests that weren’t administered properly, and after my client had been treated unfairly, and how no one would listen to what he was saying, so why should he go and continue to participate in this completely unfair exercise? No matter what he did, it was a forgone conclusion that he was going to be arrested, so why continue?
Q – As the officer is pulling the person over, does the officer have access to the fact that there is a prior DWI?
A – He does have access to that, but in this case, my client was stopped for incorrect tags on the vehicle. That was one of the things I mentioned in the case: stopping the vehicle had nothing to do with driving behavior. So, how can you say that he was incapable of driving safely?
There was a video in this case as well, and we used the video tape to our advantage. Between the two cars in the video, the police car and my client’s car, it was the police officer who was driving well in excess of the speed limits, weaving over lanes to catch up, and immediately when he got behind my client, he turned his lights on. So, my client is driving along at night, driving the speed limit in his lane, and suddenly this car comes barreling down the road with no emergency lights, so he just thinks it’s another person. This car comes barreling down the road at a high rate of speed, right up on his tail, and suddenly the lights go on. When that happens, my client’s car moves a little bit in the lane but still inside the lane, and they say that that moving in the lane is caused by his intoxication. I suggested to the jury that the police officer caused that when he came barreling behind him and right up on his tail when he suddenly turned on his lights and startled him. That was the beginning of the end for my client.
Q – What kind of sentence was your client facing if found guilty?
A – He was looking at prison time.
Q – It’s very interesting to hear how that all goes down. Most people only know what they see on TV.
A – Sometimes people think a DWI arrest is a done deal, but preparing a defense is very similar to my approach on the other case. You take the time to go through all the police reports thoroughly, you go out to the scene, watch the video carefully, and it becomes clear that there are completely innocent explanations for what the police are charging as a crime. You know, as in blaming my client for taking too long to come to a stop in the parking lot of the restaurant he pulled into. Well, the restaurant had no parking spots, and it was the middle of the night.
Q – Yeah, you don’t want to stop in the middle of a dark road.
A – Right, and he was looking to go to the edge and park near the grass so it would be like a parking spot. You could see that on the video that that’s where he parked. Then, there’s this gravel where there are divots from other cars driving in and out, and yet the officer expected my client to perform almost perfectly in the field sobriety test on this very uneven surface of loose stones and rocks. He’s supposed to walk in a straight line despite the officer not giving him a straight line to walk on, and he’s supposed to stand on one leg, etc. The officer gives him a series of instructions of 9 or 10 different things to do, and explains it all in about 15 seconds. Doesn’t give him any chance to practice, and expects him to remember all of those different things after only hearing them one time.
In the walk-and-turn test, the officer tells him
you need to walk, start with your left foot, walk heel-to-toe, in a straight line, hands down at your side, counting out loud, when you get to end after taking 9 steps, turn pivoting on your right foot taking small steps with your left foot, turning all the way around, walking back the same direction in a straight line, walking heel-to-toe, hands at your side, counting out loud again.
This officer admitted that he spoke very quickly, and you could see that he did on the video. He tells my client the instructions one time, and my client performs well on the test, but the officer still counts it against him because he didn’t do every single thing that he was told. He was expected to do the test on this poor uneven gravel surface, and the officer never takes that or his nervousness into account. That’s a lot of pressure. Someone is taken out of their car on the side of the road, and expected to perform in this test, and the officer doesn’t take any of those factors into account and holds them against him? That’s just not fair.
Q – Thank you for taking the time to explain these things. A lot of people don’t have a glimpse into these kinds of situations at all, and it’s good to know.
A – I’m not saying that DWI should be legal – absolutely not – but when you arrest someone, it should be done properly. Everyone should be able to expect that the police will be properly trained, that they’ll follow their training, and that they will treat everyone fairly. They shouldn’t jump to conclusions, and they should objectively look at the facts and presume that everyone is innocent until proven guilty.