Monthly Archives: April 2005

How to Get Rid of Jury Trials

Easy: Get rid of jurors. Did you ever wonder why it's getting so difficult to find citizens willing to serve as jurors? From WSN-TV in Miami (April 14):

FORT LAUDERDALE, Fla. (AP) — A teenager did his civic duty by showing up for jury duty in Fort Lauderdale. But 19-year-old Stacey Forbes is now serving a four-month jail sentence for contempt of court for not disclosing he and his father had arrest records….

Forbes says he had problems reading the jury questionnaire. Tests show he has a seventh-grade reading level. He has been arrested twice in the past year but has never been convicted of a crime. His judge has rejected a request to reconsider the high school dropout's sentence.

And a few days later, from AP/AOL News:

LOS ANGELES (April 20) – Call it a rude awakening. A juror was cited for contempt and fined $1,000 by a judge for yawning loudly while awaiting questioning in an attempted murder trial. The fine later was reduced to $100. The yawn came after the man, identified as Juror No. 2386 in an April 1 court transcript, had been sitting in a courtroom for two days as part of jury selection.

"You yawned rather audibly there. As a matter of fact, it was to the point that it was contemptuous," Superior Court Judge Craig Veals said. "I'm sorry, but I'm really bored," the juror said. "I'm sorry?" the judge responded. When the juror repeated his statement, he was admonished by the judge for having a "lousy" attitude. "Your boredom just cost you $1,000. I'm finding you in contempt," Veals said. "Are you quite so bored now?"

It may be getting difficult to find jurors, but it's apparently getting even more difficult to find decent judges. However, judges aren't the only ones making this civic duty less than a rewarding experience, as this story I posted last month indicates:

LOS ANGELES (March 24) AP – Jurors who acquitted actor Robert Blake of murder – and were later called "incredibly stupid'' by District Attorney Steve Cooley – want an apology. "I'm just disgusted,'' Blake jury foreman Thomas Nicholson said Thursday. "It appears to me he has no faith in the jury selection. After all, it was his people who helped choose us.'' On Thursday night, Cooley stood by his comments. "Bottom line it was the wrong verdict,'' he said. "Sometimes jurors should be held accountable for their mistakes.''

Kind of makes you want to run down to the courthouse and volunteer, doesn't it?

Do DUI Roadblocks Work?

For many years now, MADD has focused much of its considerable manpower (over 600 chapters), resources (revenues of $48 million a year) and political influence on the proliferation of DUI roadblocks (or, to use the politically correct phrase, "sobriety checkpoints"). To justify this invasion of our privacy, we have been repeatedly assured that "checkpoints" are extremely effective in reducing alcohol-related traffic fatalities — and these assurances have been accompanied by "statistics". Let's take a closer look at the statistics….

According to MADD's own website, 40 states have checkpoints and 10 do not. Well, it would be interesting to compare the states with the highest percentage of alcohol-related fatalities with the list of states not using checkpoints: If MADD is correct, the states with the highest fatality rates will be the no-roadblock states. Fortunately, another section of MADD's website provides such statistics for each of the states. The 5 states with the highest alcohol-related fatality rates:

North Dakota
Rhode Island
South Carolina

According to MADD, all 5 states should be non-checkpoint states. In fact, however, 4 of these states use checkpoints; only Rhode Island does not. Well, what about the 5 states with the lowest fatality percentages? They are:

New York

If MADD is correct about the effectiveness of checkpoints, these should all be checkpoint states. But as with the previous list, only 4 of the states permit the use of sobriety checkpoints; Iowa does not. As with the previous list, the percentage is what one would expect from pure random incidence: 20% of the states (10 of 50) do not have checkpoints — and 20% of the states on each list (1 of 5) do not use checkpoints. There appears to be no correlation between fatality rates and the use of checkpoints.

Let's take a look at another set of statistics: the effect of the proliferation of checkpoints on the national rate of alcohol-related fatalities. If checkpoints are effective, we would expect to find that alcohol-related fatalities will have declined since their widespread acceptance in recent years .

Again, the statistics do not support this. To use MADD's own numbers: Since 1982, the number of fatalities nationwide from alcohol-related crashes has declined every year — until about 1993, when it dropped to 17,908. Perhaps coincidentally, this was the year after the United States Supreme Court ruled that sobriety checkpoints were not unconstitutional. In the 10 years since then, sobriety checkpoints have gained widespead acceptance — but the number of fatalities have levelled off, vacilating between 17,908 and 17,013. Far from supporting MADD's position, one could even argue that this proves sobriety checkpoints have actually halted the steady decline in alcohol-related deaths. This would probably be incorrect — but indicative of how statistics can be used to serve a desired objective.

Incidentally, my favorite example of distorting statistics for self-serving purposes is MADD's own oft-repeated claim:

Since MADD's founding in 1980, alcohol-related fatalities have decreased 44 percent (from 30,429 to 17,013) and MADD has helped save almost 300,000 lives.

300,000? Do the math….

“Yes, We Have No Quotas”

A few days ago I wrote a post entitled "Do Police Have Quotas?". The very next day, the following story appeared in the Boulder (Colorado) Daily Camera:

People arrested by Boulder police on suspicion of drinking and driving are being told in county court that the police department may have a "quota" for such arrests. The disclosure by prosecutors ' required by law when the government has evidence that can help the defense ' evolved last week after a Boulder police officer testified about his quota during a drunken-driving trial….

Boulder police Chief Mark Beckner denied the department's use of quotas, but said it does have "performance standards" officers are expected to meet. Those may include striving for numbers of arrests in areas the community demands, he said….

At least one grant the department receives relies on generating a certain amount of DUI arrests. The Law Enforcement Assistance Fund ' a state grant funded by drunken driving conviction fees ' has doled out more than half a million dollars to Boulder police since 1984 to help in DUI enforcement….The fund's application lists increasing DUI arrest rates as a goal to be met by departments awarded money.

"An agency could have their contact terminated if it doesn't reach its goals, but we look at all the goals," said Mairi Nelson, spokeswoman for the Colorado Department of Transportation, which allocates the grant money. Those goals also include performing a number of DUI saturation patrols and checkpoints and participation in statewide campaigns that crack down on the crime, Nelson said.

Boulder police spokeswoman Julie Brooks said the department fell short of its grant goal of 1,000 arrests set for 2004 by fewer than 100 arrests. Boulder defense attorney Mark Langston said the mention of quotas makes any lawyer pause and question why their client was arrested…. Chief Beckner said defense attorneys will "try to use anything to their advantage", and he defended the department's use of officer standards.

Those tricky defense attorneys and their technicalities! (Thanks to Jeanne Pruettt, President of Responsibility in DUI Laws, Inc.)

Answer to Defense Use of Breathalyzer Memory: Turn it Off

A couple of days ago I wrote a post entitled "Using Computers to Prove a Driver Didn’t Refuse Testing". I mentioned the growing problem of officers who claim that an arrestee "refused" to take breath tests, thereby triggering increased penalties — and avoiding unwanted low breath test results. I then discussed how some bright DUI attorneys were getting information from the breathalyzers’ memory banks to show that the officer in question had a disproportionately high percentage of arrestees who "refused". I also mentioned that, embarrassing as this has proven to the prosecution, "we can expect to see fewer police agencies entering refusal data into breathalyzers, preferring to rely instead upon the officer’s written report".

However, I didn’t consider the much simpler solution of just turning the memory off. Three days later (April 11, 2005), the following article appeared in The Barre Montpelier Times Argus:

MONTPELIER ‘ The Vermont Supreme Court has ruled that a data printout from breathalyzer machines is sufficient to prosecute drunken driving charges. The decision overrules a state Board of Health decision that said police would need a more direct reading from the memory function of the 66 Datamaster machines used by the Vermont State Police and other law enforcement agencies across the state.

The board had overruled Vermont Health Commissioner Paul Jarris, who had ordered that the memory function be turned off on the machines. Defense attorneys have contended data stored on the machine’s memory provides the most dependable information as to whether a machine was working properly at the time the breath tests were taken. However, the health department claimed that the cost of processing the information was too high and sought permission from the state’s highest court to again turn the machines memory function off….

The health department in 1999 started to receive many requests from defense attorneys who discovered that information from the memory function could prove to be valuable in court….

Better to destroy evidence than turn it over to the accused.

Using Computers to Prove a Driver Didn’t Refuse Testing

In all states today there are sanctions for refusing to submit to chemical testing for blood alcohol concentration (BAC).  In some states, the sanction is an administrative one: the license will be suspended, usually for a longer period of time than for having a .08% blood alcohol level — even if the driver is later found to be not guilty of DUI.  In other states, the fact of refusing will increase the jail sentence if convicted of the underlying DUI.  In still others, refusing constitutes a separate crime in its own right.  In most states, the consequences will be a combination of these.

Because these consequences can be severe, some police officers are more than happy to find that a suspect has “refused” to cooperate in testing — particularly if the officer is not confident that the test results might show less than .08% BAC.  This is even more true today, since many officers have found that they can “have their cake and eat it, too”:  if the arrestee refuses to cooperate, officers will hold him down and forcefully withdraw blood — and, with the blood results, charge the individual with both .08% and refusing to submit to testing.

Predictably, police are increasingly motivated to find a “refusal” — followed, often, by a forced blood draw.  And in an increasing number of cases, there was no real “refusal”.  But, of course, it is the officer’s word against the defendant’s….Or is it?

The usual procedure in a refusal case is for the officer to set up the breath machine for a test; if the suspect refuses to blow into it, the officer enters the fact into the machine and the information is displayed — and stored in the machine’s memory. Exactly what kinds of information are stored within the memory is controlled by the machine’s software.  Depending upon the program for the particular machine, it may store data concerning past tests, error messages, diagnostic tests, calibration checks, etc. 

Being of necessity a resourceful lot, some defense attorneys have noticed that if they obtain records from a breathalyzer’s computer of past tests, certain officers seem to have a higher percentage of refusals than other officers – often much higher.  Over an extended period of time, for example, the printout may show that drivers arrested by Officer Jones refuse to take a breath test 15% of the time, that the average for all officers is 26% – while those arrested by Officer Smith “refuse” 80% of the time. 

Juries tend to be interested in little things like this.  Consequently, we can expect to see fewer police agencies entering refusal data into breathalyzers, preferring to rely instead upon the officer’s written report.  (Note: It is virtually impossible to obtain all of an officer’s DUI reports and compare them to the reports of all other officers.)