Archive for October, 2013

Judge Caught Texting Prosecutor During DUI Trial

Saturday, October 26th, 2013

If you still believe it's possible to get a fair trial in a drunk driving case, read the following blog excerpt:


Texas Judge Forced to Resign After Being Caught Texting Instructions to Assistant D.A. During Trial

Oh, the hilarity that is the phrase "criminal justice system." Talk to any defense attorney and they'll tell you how the deck is stacked against defendants and defense lawyers. The ideal of "innocent until proven guilty" has become little more than a disclaimer tacked onto cop-centered reality shows. Defendants are guilty until the jury is somehow tricked by the defense into handing down a "not guilty" verdict. A lot of effort goes towards dissuading defendants from even making it this far, as prosecutors will present worst-case scenarios comprised of every violation conceivable in order to get an agreement to plead guilty to a lesser charge.

The prevailing perception that the person charged is guilty, with the only answer yet to be determined is how guilty, makes defending arrestees an uphill battle. Judge (former judge) Elizabeth Coker took this uphill battle, increased the grade to 85 degrees, covered it with a sheet of ice and sprinkled it with a 50/50 blend of Teflon and motor oil.

Elizabeth E. Coker may forever be known as the "texting judge," but her notoriety will soon be all that is left of her days on the bench of the 258th District Court of Polk, Trinity, and San Jacinto Counties. Coker signed an "AGREEMENT TO RESIGN FROM JUDICIAL OFFICE IN LIEU OF DISCIPLINARY ACTION" with the State Commission on Judicial Conduct…

The agreement comes in the wake of a recent investigation revealing Coker texted instructions from the bench to a Polk County Assistant District Attorney who was assisting in the prosecution of a case in Coker's court.

The good news is that Coker is being stripped of all of her judicial power. Once the resignation goes through, she won't even be able to perform a wedding. The bad news is that this texting incident was only one of several alleged incidents in which Coker undermined the justice system. 

Judge Coker used Assistant District Attorney Jones to privately communicate information about the Reeves case to the assistant district attorney prosecuting the case; to suggest questions for the prosecutor to ask during the trial; to ensure that a witness was able to refresh his memory and rehabilitate his testimony by reviewing his videotaped interview with law enforcement before he took the stand for the second time the following day; and to discuss legal issues pertinent to the case. in an unsuccessful effort to assist the State obtain a guilty verdict in the case…

The Commission investigated claims that Judge Coker allegedly engaged in other improper ex parte communications and meetings with Jones, other members of the Polk County District Attorney's Office, the San Jacinto County District Attorney, and certain defense attorneys regarding various Cases pending in her court; Judge Coker allegedly exhibited a bias in favor of certain attorneys and a prejudice against others in both her judicial rulings and her court appointments: and Judge Coker allegedly met with jurors in an inappropriate manner, outside the presence of counsel, while the jurors were deliberating in one or more criminal trials…


Just as judges sometimes tell prosecutors in a DUI trial how to convict the defendant, so do prosecutors sometimes tell cops how to lie on the stand (see my earlier post, Prosecutors Tell Cops to Lie in Trial About Breathalyzers).  As if the deck isn't already stacked against the accused in a drunk driving trial!

(Thanks to "Joe".)
 

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“Friends Don’t Let Friends Drive Drunk”….Really?

Wednesday, October 16th, 2013

So just how extreme is MADD's "War on Drunk Driving" getting?  Well, we've all been inundated by the ongoing high-publicity campaign with the mantra, "Friends don't let friends drive drunk", right?  Good luck with that….


School Lawyer Lied About "Arrest" of Schoolgirl Suspended for Trying to Help

North Andover, MA.  Oct 16 — It was bad enough when a Massachusetts school threw the book at an honor student who tried to help a drunken friend get home from a party, but the district's lawyer made things even worse when he lied to a judge and claimed would-be designated driver Erin Cox was arrested, Cox's attorney charged.

The allegation leveled by lawyer Wendy Murphy is the latest development in a case that has already generated widespread outrage. Cox, 17, was suspended from the North Andover High School volleyball team for five games and demoted as captain, all for simply responding to a texted plea last month from a pal who was too drunk to drive home from a party. Minutes after Cox showed up, Boxford police arrived and shut it down. Some students were arrested, but most — including Cox — were given summonses for underage possession of alcohol. Police later backed Cox's version of events.

Murphy said the school district compounded its own injustice toward a kid when its attorney, Geoffrey Bok, said in court that Cox was arrested at the party. She was not.

“That a school would then lie to a judge in a court of law is an outrage and shows the length some school officials will go to to retaliate against a family that dares to challenge an irrational zero tolerance policy,” Murphy said in a statement.

“In fact, as the police officer at the scene reported in a statement that was provided to the principal and the judge, Erin was not arrested and did nothing wrong,” Murphy added. “He added that she had not been drinking, had no intention of drinking, was there to help a friend and did not have even the ‘slightest’ odor of alcohol on her person.”…

Bok had no comment on the case, or even on Murphy's charge that he lied in court. Scuzzarella referred inquiries to North Andover Public Schools Superintendent Kevin Hutchinson, who defended the punishment in a statement to FoxNews.com.

"While some may decry the Administration’s actions as unfair or inconsistent with the principles of due process, our Administration wholeheartedly disagrees," the statement read. "To be clear, the Massachusetts Supreme Judicial Court has ruled that participation in interscholastic athletics is a privilege. Rather than simply revoking the privilege, our Administration has consistently afforded its student-athletes a reasonable opportunity to be heard before a disciplinary decision is made."

Since the story made national headlines, Cox has been lauded in many quarters for coming to the aid of a friend, and for trying to keep a drunk driver off the road.

"The story of Erin Cox, the Boston high school student suspended for being called in as a designated driver is unconscionable," former Florida congressman Allen West wrote on his website. "Sadly, it is indicative of the statist drive permeating our culture to negate individual initiative, personal responsibility, accountability, and acts of honor."

Oddly, not everyone is taking Cox's side in the dispute. Mothers Against Drunk Driving President Jan Withers told FoxNews.com the school was right to come down on the teen.

“Underage drinking is so very dangerous, that’s why MADD appreciates this school’s effort,” said Withers, who praised Cox's intentions but said she should have called an adult. “I’m not there and I don’t know all of the details, but indeed, their efforts to prevent underage drinking through zero tolerance are admirable."


Note that MADD's President is quoted as supporting the girl's punishment.


(Thanks to Matthew Kensky, Esq., and Daniel Stanton.)
 

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Driving Under the Influence…Or Just Driving a New Car?

Sunday, October 13th, 2013

Remember that "new car smell"? The great scent inside of that new car you bought a few months ago? It could get you charged with DUI….

Consider an excerpt from the Reuters news agency:
 

"Australian scientists have warned that the reassuring smell of a new car actually contains high levels of toxic air emissions which can make drivers ill. A study by Australia’s main scientific body, the Commonwealth Scientific and Industrial Research Organization (CSIRO), found high levels of toxic emissions in cars for up to six months and longer after they leave the showroom… The toxic emissions include benzene, a cancer-causing toxin; acetone, a mucosal irritant; ethylbenzene, a systemic toxic agent; and xylene isomers, a foetal development toxic agent…."


So what has this got to do with breath tests? Well, one of the compounds you were actually smelling was acetone. As has been discussed in earlier posts ("Why Breathalyzers Don’t Measure Alcohol"), acetone is one of many chemical compounds which breathalyzers will mistakenly report as alcohol. See the research reported in such scientific articles as "The Likelihood of Acetone Interference in Breath Alcohol Measurements", 3 Alcohol, Drugs and Driving 1, and "Excretion of Low-Molecular Weight Volatile Substances in Human Breath: Focus on Endogenous Ethanol", 9 Journal of Analytical Toxicology 246.

And no, you don’t have to drink the stuff. Simply absorbing it through your skin or inhaling it can result in measurable levels of the compound in your body for hours or even days, which will be continually expelled in the breath….. and possibly into a judge-and-jury breathalyzer.

"Friends don't let friends drive…new cars."
 

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The Constitutional Protection Against Double Jeopardy — Except in DUI Cases

Monday, October 7th, 2013

When a person is arrested for DUI, his driver’s license is confiscated by the arresting officer and he is given a notice of "administrative suspension". He is also given a citation to appear in court to face criminal drunk driving charges.

These are usually two very different procedures: (1) the administrative suspension for driving with blood-alcohol concentration (BAC) of .08%, in most states administered by its department of motor vehicles, and (2) the criminal prosecution which takes place in the courts.  The criminal prosecution will be for driving under the influence of alcohol (DUI) and driving with .08% BAC.

In other words, even though he only drove once, the individual is being prosecuted for two different crimes: DUI and driving with a .08% BAC. He can even be convicted of both offenses. How is this possible?

It gets worse….

The driver has already been punished for driving over .08% by having his license suspended by the state’s motor vehicle agency. If he is later convicted in the state’s criminal court of driving over .08% (and/or driving under the influence), he will be punished again. The sentence may involve jail, fines, ignition interlock devices, DUI schools, probation — and another license suspension or revocation.

How many times can the state punish a person for a single crime? Our Constitution says only once. The Fifth Amendment specifically provides that no person shall "be subject for the same offense to be twice put in jeopardy of life and limb". So is this another example of "The DUI exception to the Constitution"?

Let’s first take the question of charging defendants with both DUI and .08%. The courts in the different states wrestled with this one for awhile, rendering conflicting decisions, but eventually came to the conclusion that the driver actually commited two different crimes. As an Indiana court reasoned, "the test to be applied to determine whether there are two different offenses or only one, is whether each provision requires proof of a fact which the other does not." Sering v. State, 488 N.E.2d 369 (1986).

The .08 statute required proof of blood-alcohol concentration; although blood-alcohol evidence was used to prove the DUI crime as well (a person is presumed to be under the influence if his BAC is .08% or higher), the offense could be proved without it. So it’s ok to prosecute and convict him for both crimes.

Hmm… Well, what about punishing the driver by immediately suspending his license when he’s arrested — and then punishing him again in court – in fact, punishing him in court with a sentence that may include another suspension?

This one caused the courts a bit more trouble. This wasn’t a case where the person was theoretically committing two different crimes: he was being punished by two different state agencies for the same crime: driving with .08% BAC. But there had to be some way to get around the Constitution….

The courts could not agree. Some said that there was no double jeopardy since the DMV license foreiture was not really a "punishment" but only a "civil sanction". Others took the position that this was, in fact, a violation of the Fifth Amendment, and they relied upon a U.S. Supreme Court decision (U.S. v. Halper, 490 U.S. 435; 1989) which involved civil forfeitures and criminal punishments for selling marijuana. In that case the Court held that a "civil sanction" was actually a punishment — and thus double jeopardy — if (1) the "clear focus of (the statute) is on the culpability of the individual", and (2) the legislature "understood these provisions as serving to deter and punish". The Court added that "the historical understanding of forfeiture as punishment" weighs heavily in favor of the conclusion that forfeiture continues to serve punitive purposes.

Well, relying upon the Supreme Court’s ruling, an alarming number of courts around the country were throwing out criminal DUI charges on double jeopardy grounds. This, of course, infuriated MADD, legislators, prosecutors, law enforcement and pretty much everyone else who did not take the Constitution too seriously. But rescue arrived from a more conservative U.S. Supreme Court.

In 1997, Chief Justice Rehnquist revisited the forfeiture-punishment problem and did something that is rarely ever done: he criticized and flatly rejected the earlier Supreme Court’s ruling:


"We believe that Halper’s deviation from longstanding double jeopardy principles was ill-considered….Halper’s test for determining whether a particular sanction is "punitive", and thus subject to the strictures of the Double Jeopardy Clause, has proved unworkable". Hudson v. U.S., 592 U.S. 93 (1997).


Since then, the courts have had little trouble finding that a police officer who confiscates and suspends the driver’s license of a drunk driving suspect is merely administering a "civil sanction", not punishment….and that when he is later convicted in court and is fined, jailed and has his license suspended again, well that’s not really double jeopardy. It just looks an awful lot like it.

As Humpty Dumpty said to Alice in Through the Looking Glass:


“When I use a word”, Humpty Dumpty said, in a rather scornful tone, “it means just what I choose it to mean — neither more nor less.”

“The question is”, said Alice,”whether you can make words mean so many different things.”

“The question is”, said Humpty Dumpty, “which is to be master — that’s all.”
 

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