Winning by boiling the arguments to their simplest parts
A jury acquittal is spectacular for drama and a lawyer’s battle exercise and ego. However, for a defendant, the earlier he or s/he wins the better on the defendant’s psyche. In that regard, yesterday I won a trial through the latter approach.
A police officer stopped my client’s car for flashing his highbeams as the officer approached from the opposite side. This led to an arrest for driving under the influence of alcohol. (Lesson 1: Beware liberal highbeaming.)
The highbeams were the sole reason for stopping my client’s car. As with all stops, the criminal defense lawyer must dissect the stop with a fine-tooth comb. Here, the law in this state prohibits high-beaming within five hundred feet. (Lesson 2: Know the state’s highbeaming laws before highbeaming.) The prosecutor put the officer on the stand. The cop first testified about seeing my client more than five hundred feet from him, but then affirmed that the distance between the two cars was “within five hundred feet” when the high-beaming took place. The officer said that the high-beaming was brief, maybe one to two seconds, and hit his face.
Before I cross-examined the officer, the judge made absolutely certain with the prosecutor that the prosecutor had finished all his questions about the basis for the stop. I limited myself to two questions: (1) Q: “Did you use any measuring device to assure that the highbeaming took place within five hundred feet?” A: No (2) Q: “Did you use a watch or other measuring device to determine how long the high-beams were on?” A: No. (Lesson 3: Do not ask more cross-examination questions than needed.)
All that is needed to justify a traffic stop is reasonable articulable suspicion. Were I the prosecutor — bite my tongue — I would have focused the police officer in detail the reason for his having estimated that this all happened in under 500 feet, including landmarks and referencing to the length of a football field (300 feet). However, without the advance preparation of the officer’s returning to the scene to measure it at some time before trial, I would hope that such a prosecutorial approach still would not work with any judge, unless an admissible distance map were entered into evidence with the officer’s pointing to the landmarks there. Then again, all the time judges allow traffic stops through an officer’s mere estimate of exceeding the speed limit.
I argued that the prosecutor had not met his burden of showing that the highbeaming took place when the cop’s and defendant’s cars were within five hundred feet. I added that the highbeaming statute, reasonably read does not prohibit such a brief highbeaming. For good measure, I added that the statute prohibits getting glare into another driver’s eyes, and said we heard no testimony about glare. (Lesson 4: Do not place all your chips on just one argument when additional arguments might succeed.)
On at least a personal level — with the robe having to offset the personal — plenty of judges might have a figurative embolism at the thought of not indulging the prosecutor and cop more opportunities to try to prove a lawful stop. Praised be our trial judge for prohibiting the prosecutor from reopening his direct examination of the officer on the stop. My own two cross examination questions on the stop gave nothing for the prosecutor to expand on, because re-direct questions are limited to the scope of cross examination. (Lesson 5: Beware the scope of your cross examination, lest it enable the prosecutor to correct his or her critical omission on direct.)
The judge gave the prosecutor plenty of arguing time to try to convince the judge that the stop was lawful. The best I could do at that time was to relax and sink my whole being into my tan-tien, as in taijiquan, so as not to be a distraction to the judge on the road to his making the right ruling.
The prosecutor ultimately told the judge he was finished arguing. Without even taking the time to say he was suppressing the stop, the judge went further to state “Motion for acquittal granted.”
The Fourth Amendment still has life to it!