How to Lose a DUI Trial Before it Begins
Posted by Lawrence Taylor on December 22nd, 2004Simple: Have a prosecutor on the bench.
The public perception of judges is that they are largely fair and impartial. Unfortunately, this is becoming ever less true — at least, in the politically sensitive area of DUI litigation.
To begin with, the reality is that an increasingly high percentage of judges are former prosecutors; very few are public defenders or defense attorneys. In fact, a growing number of attorneys become prosecutors to obtain the "qualifications" for later election or political appointment to the bench. Not surprisingly, the rulings of these judges too often reflect their prosecutorial orientation.
Backgrounds aside, is the judiciary objective in DUI cases? Well, again there is the political reality: the failure to "get tough" on DUI defendants tends to result in negative comments from MADD, prosecutors and police agencies come re-election time — maybe even in an endorsement of the latest prosecutor who wants the judge's position.
Let's take a look at some of these online "resources" for training judges how to handle DUI cases and trials…..
For starters, there's an article from the American Prosecutors Research Institute, entitled Overcoming Impaired Driving Defenses. The article "identifies the most common defenses used in DUI cases and provides specific strategies for overcoming these claims." So why are judges being taught how to "overcome" an accused citizen's defense in a DUI trial?
Another online article is Handling Impaired Driving Cases. According to the prefatory comments, this material covers "common aspects of impaired driving cases", including "anticipating defense issues". The introduction to the article describes various blood-alcohol problems in DUI cases and then observes that "Prosecutors can easily skewer defenses like those…" The article then presents specific "claims" often raised by the defense — and the "reality" refuting those obviously false claims.
Why do judges need to "anticipate" legal issues which may be raised by a defendant? What about legal issues raised by the prosecution? And what is meant by "anticipating defense issues"? Clearly, judges are being taught (by prosecutors) what decisions to make — before ever hearing the evidence.
Another article on the judicial website, Admissibility of Horizontal Gaze Nystagmus, explains to judges "why it is the most reliable field sobriety test for detecting alcohol impairment" — again, before any testimony from the police or evidence from the defense. Yet another, Validation of the Standardized Field Sobriety Test Battery at BACs Below 0.10 Percent, teaches judges that "field testing found the SFST battery to be extremely accurate in discriminating between BACs above and below 0.10 percent", apparently making defense cross-examination irrelevant. Then there's the Annual Traffic Seminar: "In this two-day seminar, judges learn about the use of the Intoxilyzer 5000 and laying a foundation for police officer testimony…"
All of this, of course, makes due process and criminal justice much more….expedient. With judges already pre-instructed by the prosecution, there is no real need for things like testimony or evidence in a DUI trial. Or for a trial.
As usual, Larry Taylor is correct. In the 1000 plus trials I have had in 29 years, the quality of the judge on the bench makes all the difference in the world. Once a judge becomes co-advocate with the prosecutor assigned to the case, the battle is almost insurmountable. I have had some juries that were smart enough to see what was happening and thwart the judge by handling out a “not guilty” verdict. Most juries, however, try to please the judge, and will convict if the judge clearly communicates his or her leanings.
Lawyers who help citizens charged with crimes as well as CLIENTS of these attorneys need to start following judicial races and help find ways to push voters toward the best candidate for the post, and (where possible) help finance the campaigns of qualified candidates for judicial office who will honor the Constitution and who will act as an impartial referee, versus an advocate for conviction.
William C. Head, Attorney at Law
http://www.GeorgiaCriminalDefense.com
As usual you are completely correct with reference to so many judges. But you only describe half the problem. If we think the “Bloody highway carnage” exception to the constitution is rampant in the courts, it pales in comparison to that which occurs before the administative hearing officers where most do not even pretend to be fair and impartial. They come into the hearings with the firm belief that their mission is to take our clients’ driver’s licenses.
They than to proceed to act as prosecutor AND judge!
Ex parte communications are frequent, and they run in both directions. Prosecutors and DOL officials think nothing of contacting hearing officers in misguided attempts to EDUCATE them. Hearing officers think nothing of attending seminars put on exclusively for their benefit that are presented by police agencies with nary a defense lawyer in sight to present the other side.
Hearing officers examine files, discover there are missing documents and contact the arresting officer to fill in the gaps. Or, if they learn of weakness in the Department’s case during a hearin, they call the officer on the spot, or continue the heariong so the cop can be subpoenaed!
All this in the name of due process and making our highways safe.
Doug Cowan
http://WWW.cowanlawfirm.com
I have never been pulled over for a legitimate reason. I live in Reno Nv and am now looking at my 3rd DUI. All 3 times the cops made up why they pulled me over,all were the most obvious lies. The first two I had witness ready to testify,hired the best lawer. And let him talk me into”taking the deal”.Its HORSE SHIT.There all in bed together from the cop to counseler. Im just sick,no idea who will honestly work for me.Someone who still know that people have God given constitutional rights. Evan someone that remembers somthing about a constitution. I guess Im off to prison . Not for swerving or driving reckless but because it is cocktail hour and I drive a contractors pickup truck. I sure as hell will not go through the 3 year torment of this new program. Sombody HELP. Thanks.