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A win is a win

Oct 06, 2011 A win is a win

A great number of my clients probably have committed the crimes they are charged with committing. A large percentage of my trial acquittals has likely been for people who committed the alleged crimes. Whether my clients have or have not committed the alleged crimes, and regardless of whether I can really even know that, I am driven to win as best I can for each of them, and am exhilarated by each victory, whether it be a victory over an unjust law (including marijuana laws and per se drunk driving laws), a victory over unconstitutional treatment of my client, a victory through a suppression motion or other motion, a victory at sentencing, or any other kind of victory.

I feel exhilarated over the fight for each client and over each victory because I truly believe that I am fighting on the side of the angels. Whether or not my client has committed a crime, the vast majority of them are very likable. Even if I have a client who seems despicable and who seems to have committed a despicable crime, I am still defending the Constitution, and I have no business representing him or her if I am not going to fight for him or her with all my might, passion, and ability.

Other than Matlock and Perry Mason, most criminal defense lawyers do not rack up dozens of annual jury trial acquittals. Fortunately, I win numerous trials each year; those often come before a guilt-innocence verdict is reached, but instead at the motion to suppress evidence and motion for judgment of acquittal stage. Winning on a suppression motion or acquittal motion might look less sexy to the observer than an outright jury acquittal, but for the defendant, that certainly can reduce the angst of the trial, and still delivers the desired result: A vindication and return of liberty by acquittal.

Al Capone apparently was convicted and imprisoned on tax evasion rather than for gangster activity, which would have been a more earth-shaking way to see him locked up, but still reached the prosecutors’ goal to take him off the street. For me, a win is a win, and if I can obtain it by a case dismissal or victory on a motion, I will gladly accept that.

One of my recent wins came through winning a motion to suppress my client’s arrest in a drunk driving case. My client risked a five-day mandatory minimum in jail if convicted for the original charge of driving at a 0.15 blood alcohol level. We came to trial with a forensic toxicologist to attack the breath score, or at least to show a margin of error bringing it below the 0.15 mandatory jail range.

Here, the officer testified that he stopped my client for speeding and not signaling a lane change. The officer testified to observations about my client’s performance on field sobriety tests, which amounted to performance neither too great nor terrible. I figured that would be great fodder for victory absent the breath score’s coming into evidence, but it was not as strong for winning a motion to suppress.

During the suppression motion, I pointed out to the judge such items as the following:

– The officer said my client had an odor of alcohol on his breath, but did not testify how weak or strong the odor was. (I finessed that the officer said my client admitted to three drinks within three hours before the stop.)

– The officer said my client put his leg down at count 8 and 20 during the one leg stand, but that means he had his leg up during counts 1-7 and 9-19, during a time that most people are tired and sleeping, at that.

– For the walk and turn test, the officer said my client missed the line only once, out of eighteen steps, missed heel-to-toe on the way back, and swayed on the way back, but did not say how much he swayed.

I argued that the totality of the circumstances did not show probable cause to arrest. After the prosecutor argued to the contrary, the judge seemed to go into deep thought, which often is a good sign for me, because when judges are about to deny my suppression motion, usually they start denying right then and there, sometimes with an explanation, but often not.

The judge mentioned that there was no evidence about my client’s taking the on-the-scene preliminary breath test or not, which seemed a red herring, since my client did not take it, and using his refusal against him would have flown in the face of the statutory advice that defendants have to be read in Virginia about their refusal of the PBT not available for adverse use at trial. The judge ultimately said that probable cause had not been proven.

My client walked, acquitted. We did not even end up needing to put our toxicology expert on the witness stand.

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