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“Why is this case going to trial?” the cop asked – “Not guilty,” the judge answered

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Recently, several criminal defense colleagues vented about some judges. Their venting was passionate but controlled, when considering the substantial gap between the job said judges currently are doing and the destination they must reach to no longer wreak havoc on the Constitution.

At first I wanted to join in on the venting process. However, once I let some time pass, I recognized that some of the venters had made some excellent points already, that I did not have much to add other than an obvious “here, here”, and that my energies are best spent working to rectify this problem, using the multi-pronged approach of continuing to stand up to every judge who urinates on the Constitution (whether they do so consciously or not, and intentionally or not), being ready to bring such judges to the attention of those empowered to disrobe them or otherwise penalize them, supporting colleagues who get unfairly treated by such judges, and sharing information with colleagues about such judges.

My former law partner Jay Marks and I are strong believers in not unnecessarily badmouthing other people, as opposed to criticizing their actions. When we engage in such badmouthing others as a**holes and the like, we may later learn that our words were ill-advised, listeners may question our motives and what we say about them when they are not present, using such language weakens our ability to deal with the person as a whole human being, and our words may in general lose their strength. I pondered with Jay whether a badmouthing exception could be carved out for deserving prosecutors and cops. He said no; I ultimately agreed.

As my t’ai chi martial art confirms, being a strong fighter requires having no anger. To badmouth others is to have angry feelings. This helps me keep badmouthing to a bare minimum at worst.

One thing that has often angered me is the unpleasant attitude presented by more than a few police I have dealt with when they learn my client is going to trial rather than pleading guilty. Sometimes it is mere posturing in the hopes of intimidating a defendant within earshot to plead guilty, particularly when the officer knows there are substantial holes in the prosecutor’s case or that some key witnesses and evidence are unavailable. Sometimes it arises from a disrespect for the judicial system’s burden on the prosecution to prove the defendant’s guilt beyond a reasonable doubt. I decry efforts by police to talk with and at my clients when they already have counsel; prosecutors are prohibited from lawyers’ ethics rules from doing so, and police are often but an extension of the prosecution.

Recently, a police officer focused several times with me on whether my client was going to go to trial, and why he was going to go to trial. Instead of my past common response that my client has a right to require the prosecution to try to meet its burden of proof —- and sometimes lashing out that nasty comments about going to trial dishonored their badge — I merely winked at the officer.

This was a drunk driving trial. My client took the breath test. We came to court armed to the teeth with timely-filed motions and other court filings, caselaw, trial preparation and trial strategy.

The officer had left his speedometer certification document in his cruiser. Judges usually like to move their trials along, and usually will give me more leeway in trying my case and making my arguments when they see I am moving the case along and have fully prepared so that I do not need to ask for time to retrieve evidence, court filings caselaw, and statutes from offsite. The judge okayed a recess for the cop to retrieve his speedometer certification, after I objected to the stopping of my client’s car and claim of speeding where the officer had paced my client with his speedometer.

While we waited for the officer’s return, I learned that the breath technician likely would not be present. Lesson re-learned: When you go to trial, you often learn about all sorts of weaknesses in the prosecution’s case that you otherwise would not have known about.

A risk I faced was that the prosecutor might successfully ask the judge to resume proceedings another day to allow the breath technician to arrive. The prosecution may have been expecting my common lengthy DWI cross-examination of the officer, but instead I heavily curtailed my cross-examination in order that the trial would finish well ahead of the courthouse’s closing time and so that the judge would be more reluctant to wait around for the breath technician. My decision to heavily curtail my cross examination was made all the easier by my having obtained key defense points during voir dire challenges to the officer’s stop of my client’s car and allowing evidence on field sobriety tests, and during the officer’s own direct examination.

The prosecutor did not bother asking the judge for an opportunity to wait for the absent breath technician. We were left to argue reasonable doubt over the sole witness, the police officer. Bless my client’s heart that he did not admit to any drinking, and thanks to the officer for confirming that my client exhibited far from all of the junk “clues” that they are taught to look for in administering the junk science so-called “field sobriety tests.” Of course, had the officer claimed otherwise, I would have hammered home that his police report said otherwise.

Even without the breath technician, our case was not a shoe-in. Fortunately, the testimony gave me a good story to offer various reasonable doubt-creating alternatives to my client’s behavior on the scene other than alcohol impairment, including this being late at night when most people are asleep, and it being common for people to accelerate on trafficless roads to be able to do the same.

Praise be my client for having agreed to go to trial rather than to plead guilty.

The judge went out of his way to explain his verdict: Not guilty for anything other than the moving violation tickets.