Nov 22, 2013 A journey to a partial DWI victory
My life and work are never dull. At my best, I start my day with taijiquan, to be ready for the expected and unexpected, the constant buzz of the day, and handling the bows and arrows coming from my own quiver and from others. At my best, I resolve the end of my day with taijiquan, to ease into the sleep phase, when my cells, spirit and self regroup and revitalize. Then I wake up, and new adventures come my way.
Courtroom battles never begin in the courtroom. They start with my client’s real-life story and real-life personal drama that leads to their arrest, and they also involve who I am, why I choose and love criminal defense battles, and what led me to it. With their arrest comes the need to go back in time to the incident date — and even to before then, for me and my client truly to relate to each other — and to recapture what happened. Sometimes we can obtain audio, video, or photographs of the incidence, sometimes from police cameras, sometimes from nearby security cameras, sometimes from my clients and their cohorts, and sometimes from eyewitnesses. Even a video provides only part of the picture, not telling us what happened before the video started and after it ended, not showing all the angles, and not getting into the minds of the actors. Trial defense truly is about storytelling, including finding my client’s story and telling that story to the jury as persuasively as possible. The very alleged criminal incident is a story in itself.
Judges and prosecutors juggling multiple cases want to get through their dockets, and I certainly have plenty of unorthodox approaches and methods, but then again, plenty of people probably felt the inventor of he wheel was unorthodox until he finally made his fourth wheel and showed what these wheels can do. Truly caring judges, though, will wince when they see criminal defense lawyers who sell their clients down the river, whether through violating the ethical rules mandating zealously defending their clients, falling asleep at the wheel, not knowing any better, not giving a damn, or a combination of one or more of them. Truly caring prosecutors will also be concerned about a chopped sides fight by the prosecutor against a criminal defendant when in not much or any better a position than if the defendant had proceeded pro se. Consequently, when a judge or prosecutor get irritated that I am actually insisting that my client and his trial get the time they deserve, one reply I can give is that my demanding any less amounts to shirking my duty to provide the effective assistance of counsel required by the Sixth Amendment.
An important ingredient of excellent criminal defense and trial battle is savoring every moment. In college, I often thought that I was preparing in college for a much better and happier life, but fortunately caught myself enough times to realize that I needed to enjoy the path to whatever goals I had in life. Ultimately, I learned that if I do not savor the present moment, how can I savor any future moment rather than constantly thinking about a future that may or may not happen, and that certainly has events in store that I can never anticipate.
This week, the events leading up to a partial DWI trial victory were filled with moment-savoring events. I started out with an 8:30 a.m. hearing in a Northern Virginia courtroom, rescheduling my client’s trial date to just the right date for him after much back and forth among me, the prosecutor, the cop and finally the court. From an observer’s point of view, this scheduling achievement might seem minor. For my client’s sense of well being, this scheduling achievement was a major accomplishment. My work is about serving clients, and my client got what he wanted that morning.
I next drove to the Loudoun County, Virginia, General District Court for a felony arraignment to set my client’s preliminary hearing date. Sadly, not only does this courthouse stand in the shadow of a rifle-holding Confederate soldier statue, but the statue recently was renovated, so it is not leaving its base anytime soon. The only thing coming close to offsetting this reminder of Virginia’s and the South’s past of slavery, lynchings and Jim Crow — where the North also has its own shameful history of racism, although often not as in your face as the South’s — is a Martin Luther King, Jr., tribute tile over fifty yards from the statue, on the sidewalk in front of the courthouse.
My final courthouse for the day was in Frederick County, Maryland, for a driving under the influence bench trial. Having moved my office last July to Fairfax, Virginia — after seeing that the majority of my clients’ cases were in Virginia when I still was headquartered in Maryland — my percentage of Virginia cases now dwarfs the number of cases that I handle in Maryland. Nevertheless, Maryland criminal defense practice brings a breath of fresh air with any drug possession charge in Maryland being but a misdemeanor whereas Virginia law makes it a felony to possess any schedule I or II drug other than marijuana; in Maryland, probations before judgment are often available for misdemeanors for those with no prior criminal convictions; and in Maryland, unlike Virginia, I am entitled to receive opposing witnesses’ statements before I cross examine them. Also, now that Maryland has eliminated the death penalty, prosecutors cannot push murder guilty pleas so quickly or easily, because avoiding execution is not a consideration for Maryland murder defendants engaged in guilty plea negotiations.
My drive from the Loudoun County, Virginia, courthouse brought me through one of the most beautiful stretches of road within an hour of my office. I drove north on Route 15 through Lovettsville, and over a particularly beautiful section of the Potomac River. As I took the bridge, I wondered what was done to defend the bridges that connected North to South during the Civil War, between Maryland and Virginia and Washington, D.C., and Virginia.
By the time I arrived at the Frederick County, Maryland, courthouse, I was still feeling the serenity of the ride over there, particularly the part that took me over the Potomac River. I rarely advise first-time Maryland driving under the influence clients to plead guilty, unless doing so will eliminate accompanying onerous charges, for instance a high-point speeding ticket or an accompanying drug possession charge. I get a kick out of this and other prosecutors who are very skilled in presenting a DUI guilty plea offer as if they had offered me the best gift of the month. This prosecutor, older than I, said he was offering a DUI and a probation before judgment. So what. I expected my client either to win or to obtain a probation before judgment on any drinking and driving count, and, at worse, also to get a point against his license on his negligent driving count. Therefore, I just as magnanimously told the prosecutor that my client would be delighted to plead guilty to a non-jailable moving violation in exchange for dropping the drinking and driving counts.
Once I told the prosecutor “let’s have a trial,” he just as kindly asked if I would be so kind as to stipulate to my client’s breath test results without needing to bring the breath technician to court. DON’T DO THAT. I repeat DON’T STIPULATE TO BREATH TEST RESULTS. Successfully attacking the breath testing, and having a trial where the breath technician never steps foot in the courtroom, sometimes brings acquittal or some lesser victory for my clients. On that note, always assure that you know and meticulously follow your state’s procedure and deadlines for demanding the presence at trial of breath technicians for drinking and driving cases, and for the presence of drug chemists in drug cases. Make sure you have documentary proof that you have met the deadline.
Back to this DUI trial, we waited for around two hours for our trial to start, which actually is shorter a wait than in plenty of other courthouses. During part of this wait, I asked the prosecutor, who was talking with the arresting cop, whether we had any outstanding discovery or evidentiary issues to resolve, He said no. Perhaps sensing my good mood, the prosecutor exclaimed that he and the cop were trying to figure out whether I had something up my sleeve, but that they could not figure out what it was. I replied that I am an amateur magician, which has been the case for over four decades. I already have written about whether there are any secrets to winning criminal trials beyond keeping our confidences and strategy secret from the opponent, unless revealing the strategy might assist the defense with settlement negotiations.
Whether it was a secret or not, our biggest boon at this DUI trial was that the breath technician never stepped foot into the courtroom. That does not mean that we automatically were home free, but does mean that we were in a much stronger position to at least slay the most serious count of driving under the influence of alcohol, which carries up to a year in jail and is a twelve-point driving offense, whereas the lesser count of driving while impaired carries up to sixty days in jail and is an eight point offense.
Without going into many further specifics about the allegations against my client, I will share that we did not have a shoe-in to win this trial, but without the breath technician, we had a good shot at winning the DUI count. Happily, the judge dismissed the DUI count at the judgment of acquittal stage, which they often have done in my trials when no breath test result is presented into evidence. The judge ended up convicting my client of DWI and his moving violation charge, and gave him a probation before judgment.
This partial victory is not as breathtaking as winning a murder trial, but for my client I am sure it means the world.
In the end, that is what criminal defense is all about, working hand in hand with my clients, sharing many moments with them, on the road to doing my best to harmonize their imbalanced situations. I feel very privileged that in hiring me, they give me the opportunity to continue on this path.