Archive for February, 2005

“How Can You Defend Them?”

Wednesday, February 9th, 2005

It always surprises me how many people are outraged that I would defend someone accused by the police of a crime – particularly of drunk driving. Arrest increasingly means guilt, and there is a public perception of criminal defense attorneys as being obstructionist, nefarious and somehow unethical. Certainly, every defense attorney tires of the ubiquitous cocktail party question: “How can you defend guilty people?”

The answer to that question is complex, involving issues of possible innocence, inaccurate evidence, overcharging by the prosecutor, guarding constitutional rights, untrustworthy testimony, ensuring a fair trial, protection from unfair laws and harsh/illegal punishment — and just keeping the government honest. One of the better answers was provided some years ago by United States Supreme Court Justice Byron White in the landmark case of United States vs. Wade, 388 U.S. 218 (1967):

Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime. To this extent, our so-called adversary system is not adversary at all; nor should it be. But defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but, absent a voluntary plea of guilty, we also insist that he defend his client whether he is innocent or guilty. The State has the obligation to present the evidence. Defense counsel need present nothing, even if he knows what the truth is. He need not furnish any witnesses to the police, or reveal any confidences of his client, or furnish any other information to help the prosecution’s case. If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course. Our interest in not convicting the innocent permits counsel to put the State to its proof, to put the State’s case in the worst possible light, regardless of what he thinks or knows to be the truth. Undoubtedly there are some limits which defense counsel must observe but more often than not, defense counsel will cross-examine a prosecution witness, and impeach him if he can, even if he thinks the witness is telling the truth, just as he will attempt to destroy a witness who he thinks is lying. In this respect, as part of our modified adversary system and as part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which in many instances has little, if any, relation to the search for truth.

Some fine day, you or someone close to you will be arrested and charged with a criminal offense. That person may or may not be innocent, but you will pray that he or she is defended against the overwhelming forces of the government by a competent attorney.

If that doesn’t do it, read To Kill a Mockingbird by Harper Lee.

(Thanks to Les Hulnick and Troy Huser for reminding me of that quote.)


When the Shoe is on the Other Foot

Monday, February 7th, 2005

In the past ten days I’ve commented on three recent incidents — involving a police officer, a prosecutor and a judge — reflecting the double standard within the criminal justice system when it comes to enforcing DUI penalties against one of their own. During that same period of time, a Justice of the Ohio Supreme Court was also arrested for drunk driving. What is of particular note about that case, other than involving the highest judicial officer in the state, was the attitude of that individual caught on videotape. The following excerpts are from the Toledo Blade:

COLUMBUS – Ohio Supreme Court Justice Alice Robie Resnick refused to take a field sobriety test and drove away from police Monday afternoon when confronted with reports she had been driving erratically on I-75 near Bowling Green….

The highway patrol reported receiving six cell phone calls from motorists alerting them to a vehicle weaving across lanes on I-75. A taped copy of one 911 call received at the patrol’s Waldridge post said the vehicle nearly sideswiped her…. A Bowling Green officer and then a highway patrolman approached the vehicle after finding it stopped at a BP gas station at the Bowling Green exit of I-75.

According to the patrol’s report, they took her driver’s license and registration, and she identified herself as a Supreme Court justice…. She denied having had any alcohol or taken any medication…. She refused to take a vision test and drove off despite the officers’ protests, according to police….

"I informed her that she was not free to go," Bowling Green Police Officer Mark Hanson wrote in his report of the incident. "She thanked us, rolled up her window, and drove off." According to the Ohio Highway Patrol, a patrol car and local police caught up to her back on I-75, pulling her over near Cygnet….

"You don’t have a good reason to stop me," she protested when an officer approached her state-owned 2001 Jeep Grand Cherokee and spoke to her over the barking of her small dog. On an arrest video released yesterday by the patrol, she could be heard from inside her vehicle saying, "It’s not right. I was not weaving anywhere. ‘ I really cannot tolerate this."

"They later conducted a series of tests, an eye test and a portable breath test, which is not an evidentiary test," said Lt. Rick Zwayer, a patrol spokesman. None of that occurred on camera. She registered a .216 on the portable breath test administered in a patrol car along I-75, twice the legal limit for driving under the influence of alcohol.

Later, at the Findlay Post of the Ohio Highway Patrol, Justice Resnick refused to take an official evidentiary Breathalyzer test. A refusal automatically results in a one-year suspension of a driver’s operating license…. On the high court, Justice Resnick has ruled in a number of cases involving drunken-driving issues.

In a later news article, after her arrest Justice Resnick was reported to have asked an officer to let her go. "I decide all these cases in your favor and, my golly, look what you’re doing to me," she said. Side note…..The Toledo Blade somehow obtained copies of the video tapes and immediately released them to the public on their website. Why did the police release the tapes — and so quickly — to the media? And, as TalkLeft asks, what are the chances of this individual getting a fair trial now? Side note #2….For those with full faith in the testimony of officers in DUI cases, it is interesting to note that in one of the videos, an officer comments that he could smell no alcohol on Justice Resnick’s breath, while in another a different officer indicates he does smell alcohol.


DUI Double Standard Continues

Saturday, February 5th, 2005

I posted stories a few days ago about favorable treatment recently given to a prosecutor ("The Untouchables") and a DUI police officer ("The Untouchables – Sequel") arrested in separate incidents for drunk driving. To complete the law enforcement triangle, the Denver Post reports on the latest application of the double standard in DUI cases, this time for a judicial appointee who just got the same treatment (presumably not yet available to the general public):



A man appointed to be a judge in Arapahoe County pleaded guilty in Denver on Thursday to speeding, while prosecutors dropped charges of driving under the influence of alcohol and careless driving.

If Vincent R. White, 41, had been convicted of the DUI charge, it would have been his second drinking-and-driving-related conviction in four years. White pleaded guilty in 2001 to driving while ability impaired in Arapahoe County.

In August, Gov. Bill Owens appointed White to fill a judicial vacancy on the Arapahoe County District Court. Dan Hopkins, Owens' spokesman, said White spoke in his job interview about his remorse over the conviction and his efforts to prevent others from drinking and driving.

In January, a Denver police officer stopped White on Park Avenue West for speeding, smelled alcohol and asked if White had been drinking. White, who felt the stop was the result of racial profiling, told the officer he had about a glass of wine and wouldn't take a sobriety test, said White's attorney, Craig Truman.

White is expected to be sworn in as a judge later this month. Hopkins said Owens believes the recent case "raises some concerns," but he said at this point the appointment cannot be rescinded.


Getting to DUI Murder: A Roadmap

Thursday, February 3rd, 2005

Q. I wish I could get this drunk driver for murder, not just vehicular manslaughter.

A. You’re the prosecutor: You can charge him with anything you want.

Q. But how would I prove the mental state for murder, malice?

A. As you know, malice usually means there’s an intent to kill. But the law says you can imply malice.

Q. OK, but imply it from what?

A. "It is implied when…the circumstances attending the killing show an abandoned and malignant heart". [Calif. Penal Code sec. 188]

Q. Yeah, but what the heck is "an abandoned and malignant heart"?

A. Our Supreme Court says it’s when someone "does an act with a high probability that it will result in death and does it with a base antisocial motive and a wanton disregard for human life". [People v. Washington, 62 Cal.2d 777 (1965)]

Q. I don’t know if that’s any easier to prove. "High probability" a DUI will result in death? Anyway, the guy was just drunk: How can I prove "base antisocial motive" and "wanton disregard for human life" from that?

A. Simple: Don’t prove it, just imply that, too — from the defendant’s knowing that DUI is dangerous. [People v. Watson, 30 Cal.3d 290 (Cal.1981)]

Q. You mean all I’ve got to do is prove he knew drunk driving is dangerous, and I’ve got malice?

A. We call it a "Watson murder".

Q. That’s a long way from "high probability it will result in death".

A. That sort of got swept under the rug.

Q. But how do I prove he knew it was dangerous?

A. Like everything else, imply he knew it. Show he’s got a prior DUI conviction [People v. McCarnes, 224 Cal.Rptr. 846 (Cal.App. 1986)] or he’s been to Alcoholics Anonymous [People v. Brogna, 248 Cal.Rptr. 761 (Cal.App.1988)].

Q. But what if the guy isn’t an alcoholic and has never been convicted before?

A. .Just find someone who once told him drunk driving was dangerous.

Q. What if we can’t find someone….

A. Has he ever attended a driver education class? They usually tell them that DUI is dangerous. [People v. Murray, 275 Cal.Rptr. 498 (Cal.App. 1990)].

Q. But doesn’t everybody know DUI is dangerous?

A. Of course.

Q. Then doesn’t everybody have malice if they drive under the influence?

A. Now you’re getting it.

Q. Well, if proving murder in a DUI case is that easy, why not go for the death penalty?

A. They already tried it in a North Carolina case, but the jury went for life without parole. We’re working on it.

Note: Judges in California recently started making anyone convicted of DUI sign a statement saying they understand that DUI is dangerous. This is done so that he can be prosecuted for murder if he is later involved in a DUI-related fatality accident. In other words, despite what the laws say, the crime becomes murder rather than manslaughter if he signed a piece of paper saying DUI is dangerous. Another triumph of form over substance….


New Weapon Unveiled in War Against Drunk Driving

Wednesday, February 2nd, 2005

I've written a number of times about the inaccuracy and unreliability of breathalyzers (see, for example, "Breathalyzers — and Why They Don't Work", "Why Breathalyzers Don't Measure Alcohol", "Breathalyzers: Why Aren't They Warranted to Measure Alcohol?"). For those of you who still believe that these machines are accurate, consider the following news article:

MINNEAPOLIS (January 31, 2005) – Before he went to law school, Brian Eddy worked at a firm that often handled drunken-driving cases. He noticed that many of the clients snagged for driving under the influence made the same doleful observation: "I had no idea I was that drunk."It occurred to Eddy that there must be a way to quickly screen one's blood-alcohol level after a few drinks. He bounced the idea off a childhood friend, and the two ponied up $100 from their savings accounts to start a business. Before he knew it, Eddy was not only a budding lawyer but a budding entrepreneur.Fast-forward six years: Eddy is now the chief executive of Q3 Innovations, an Eagan, Minn., company that has successfully marketed the Alcohawk ABI digital breath alcohol screener to retailers Sharper Image and Target. He has even bigger retailers on his radar, including Best Buy, Circuit City and Radio Shack….

Eddy points out that….the U.S. Department of Transportation has cleared the device for use by law enforcement professionals, a market Q3 Innovations has yet to aggressively tap. [Emphasis added]"The reason people are skeptical is because there is a lot of junk on the market," Eddy said of the competition. "It's a perception that we have to overcome."

How accurate do you think this "budding" lawyer-entrepreneur's product is? Would you want to face arrest and prosecution for DUI because of its reading? And just how demanding could the Department of Transportation's standards be?

Note: Most states rely upon the U.S. Department of Transportation's list of approved breath testing instruments as the standard for admissibility as evidence in court. Young Brian Eddy's pocket-sized gizmo, available at any Target store, is legally good enough to sustain a criminal conviction for drunk driving.

As I commented in an earlier post, it's "close enough for government work".

(Thanks to Kathleen N. Carey of Phoenix, Arizona)