Kerry Kennedy’s driving under the influence of Ambien case would not have received nearly as much attention if she were not such a high profile person. I am cautious about joining the bandwagon of focusing on cases for being high profile. Here, though, I wish to address an alternative defense to driving under the influence of prescription medicine, want to thank Kennedy’s lawyer Gerald Lefcourt for his past kindness to me, and point out an interesting juxtaposition among Lefcourt’s client the late Abbie Hoffman and Kennedy’s father RFK.

Last week, a jury acquitted Kerry Kennedy of driving under the influence of Ambien, Her theory of defense was that she mistakenly took Ambien that morning when thinking she was taking a harmless medication. Pursuing that defense theory required her testimony.

Putting a criminal defendant on the witness stand, waiving the Fifth Amendment right to remain silent, can be dicey. When I went to trial for driving under the influence of Ambien three years ago, I was able to get an acquittal without needing my client’s testimony, under special circumstances that may not have existed in Kennedy’s case, which I did not closely follow.

Here is the most compelling story for acquittal that I could find, which I presented at all stages of the trial: My client took Ambien the night before, but we do not know how small the tablets were, because nobody testified to that. At first blush, one might conclude that the Ambien caused my client’s sleepy state. However, because one takes Ambien to obtain a restful sleep and to awake refreshed, here my client’s sleepiness may well have had nothing to do with the Ambien but instead from Ambien’s not having provided a restful sleep. Furthermore, how sleepy could my client have been to have driven five miles to his destination rather than ending in a debilitating crash miles before? Although there was testimony about my client’s hitting the concrete and metal barriers, our photos of the property damage showed that the result was minor denting to my client’s car’s driver side.

Added to the above, we provided a Rashomon alternative to explain my client’s driving behavior and overall behavior. He suffers from migraines, which, when severe, can go beyond headaches to cause my client to be incoherent and otherwise out of it. While our client asserted his Fifth Amendment right to remain silent, his adult child testified to my client’s migraines and that the child gets them, too. For all I know, the judge may have been familiar with the 2011 revelation that CBS Los Angeles reporter Serene Branson’s incoherence during the Grammy awards came from a complex migraine. (See the video here.)

Showing what was absent in the story, I pointed out that there was reasonable doubt about what caused my client’s driving behavior, whether it was Ambien, a migraine episode, or something else that does not spell driving under the influence of drugs. Further missing from the story was whether my client had been offered a blood or urine test to check for drugs that might have caused his erratic driving. The prosecutor provided no expert testimony to connect Ambien with driving behavior.

Knowing that my client’s driving behavior would give any listener cause for pause, I underlined that none of us would have wanted to be anywhere near my client that morning, but that the question here was only whether he was driving under the influence of drugs.

As I told the story, I visually and otherwise transported myself to my client’s path of travel, that I myself have driven countless times for years, actually looking at times towards the direction of where my client was first seen driving, and then where he hit the concrete barrier, hit the steel barrier, and finally parked. This visualizing helped me tell the story more as an eyewitness, and perhaps helped bring the judge all the more front and center into the circle of our story with all his senses.

The trial always being focused on the decision makers, I did not keep my eyes off the judge for long. By the same token, by transporting myself to the scene of the story, I was better able to report the events as they happened — being here now — without an inflexible script, and with the ability to refine the story more persuasively as I told it.

In explaining his acquittal of my client, the judge agreed that the outcome hinged on what caused my client’s driving behavior. Once he acquitted my client, he pointed out the need to beware driving after taking medications that could affect it. Better that he expressed such a concern through an admonition than through a conviction.

GERALD LEFCOURT, ABBIE HOFFMAN AND RFK

Kerry Kennedy’s defense team included Gerald Lefcourt, who was a public defender lawyer in New York before defending Abbie Hoffman during part of the Chicago 7 trial, which arose from rioting during the 1968 Chicago Democratic presidential convention, which Kennedy’s father, Robert F. Kennedy, would have attended had he not been assassinated two months earlier, when Kerry Kennedy was eight years old.

I met Gerry early in my criminal defense career, and I found him likable and low key. When I met Gerry in 1991 at my first meeting of the National Association of Criminal Defense Lawyers at the start of my criminal defense career, Gerry’s fame already was established. I thank him and the many other great NACDL members who welcomed me to the group and took the time to acknowledge me, when I had little by way of experience to offer back at the time. Gerry’s clientele eventually became much more diverse than Hoffman and Kerry Kennedy.

No matter who was the defendant in Kerry Kennedy’s case, the unknown of the trial disposition was likely excruciating for her, including its implications for limiting her ability to secure overseas travel visas for her work, with such a conviction. It is critical that people taking prescription medications know the risks of getting charged and convicted for driving under the influence of drugs; beware drinking alcohol within 24 hours if taking medication;  and do whatever it takes to not mix up their drugs nor to exceed the prescribed dosages.