Read My Lips - the blog

Dog & Pony Show: Day 2

Day two of the Dog & Pony Show started with me getting to court at 8:45 am, with the trial to start at about 9:00 am. All parties were ready at such time. The case was a two count indictment for Felony DWI, one count for an arrest made in May of this year and the second count was for an arrest from March of last year. To be charged with a Felony DWI, the defendant must have been convicted of two prior DWIs within the last ten years. The State had convicted my client of two in 1987 on the same day where I client had plead guilty to both. He was put on two years probation for one of them, and given 28 days, with 28 days back time on the other one. Not that great of a deal, but I was not his attorney at the time, and it probably got him out of jail. He has been sitting in jail since the arrest in May of this year.

The DA read the indictment to the jury. My client plead not guilty to both the charges, and true to the enhancement convictions necessary to be charged with Felony DWI. The first witness was a probation officer just to prove up the two prior convictions. The state had very few questions to ask, and neither did I. I could have made them jump through a lot of hoops to get prove up those convictions, but would have just wasted the court's and jury's time, as there was really no way to challenge such. As we had already plead true to such, it actually made no sense to do such, so I just let the exhibits come in without objection. The time was about 10:30 am and the judge recessed the court for 15 minutes, which I was glad to see, as I was about to wet my pants. One of the downsides of drinking 32 ounces of Dr. Pepper while driving to the next town for court.

After the break, the DA called the police officer on the May 2003 and questioned him and showing the videos from the arrest site and in the jail where the defendant was given the field sobriety tests. At about 11:35 or so, they passed him off to me. He was a young officer, but my client did not look that great on the videos. I hit him hard on his knowledge about the testing and about how quickly he came to the decision to arrest my client. I also questioned him about some things that my client did well. He was actually very more naive that most police officers and gave away a bit of ground. I was pleased, but still the videos were not that great. Lunch time, and we were recessed until 1:15 pm. After lunch, the state re-questioned the officer to try to mop up a few of the mistakes he had made while I had questioned him. I figured there were no other questions worth asking and did not want to give the DA another chance to come back and ask him more questions as I thought I had him pretty well on the ropes. The second police officer was called. The more experienced DA in the two person team questioned him, he was an older officer, an assistant supervisor for the department, and the experienced DA and he proved up the second charge pretty easily, although both seemed to agree it was a close case, but that there was enough evidence to believe the defendant was guilty. I asked the officer very few questions, as the tape was pretty good and almost all the stuff I could have asked this officer, I had asked the other officer, and I did not want the jury to hear how a more experienced officer would answer those questions. The State rested. I asked for a recess to discuss with my client whether we would put him on the stand. The judge granted it. I had originally thought I was going to have to put my client on the stand, but at that point felt like he would have more to lose by being subjected to vigorous cross-examination than he would gain by explaining his side of the case to the jury. We returned from recess and I rested, both side closed and the judge again recessed the jury for an additional 15 minutes so the charge could be prepared. The charge is an instrument that explains the applicable law to the jury and provides to them the questions that they are to answer. In this case, they were to find the defendant either guilty or not guilty on both charges.

The returns and arguments begin. The older DA begins and argues for 10 minutes. He says something that I thought was unbelievable, but says the second charge is not something they are worried about and that they had only brought that charge so the jury would have an opportunity to see the defendant in a very close case as opposed to how he appeared in count one, where he did not look so great.

I began my argument by showing amazement that a DA would have admitted that one of the charges in the indictment was a throwaway. I said, yes, I agree there is a marked difference between defendant's appearance in the later case, but I also pointed out that the arrest had been made at 2:00 am on a Saturday morning when the evidence showed the defendant had arisen at 6:45 am the previous morning and after he had worked all day. I said the difference was fatigue, not intoxication. I slammed the field sobriety tests as circus acts and the wobbly eye test. I explained how everyone in the court had a job and how it was the DA's job to prosecute the case and to argue for my client's guilt, but how their job was to look hard at the evidence and see it for what it was. I pointed out the several normal things that my client had done well. I said from the point alcohol was smelled on his breath, he had been placed under a microscope and that everything was tainted by the perception of the police officer in looking for things to prove the defendant was intoxicated. I talked about how the line between when one had drank but was not affected and when one became affect was a grey line and that we agreed that the defendant was very close to that line, but we believed he was on the good side of that line. I explained that on one side of that line he would go home and on the other side, he would be branded a felon. I put the ball in the jury's hands to decide which side of that line he fell.

The younger, less experienced DA closed out argument by asking the jury to look at the details and she listed all these various items the police officers noted as clues of intoxication. She ended by asking them to find the defendant guilty on both counts.

Now really count two was not that great, and the DA had been offering from day one to dismiss it if we would plead to the other count. I had not put much effort into countering it after the first DA's admission that even they were not worried about a finding of guilt on that case. It appeared they thought they could win the first count, and I put all my effort into defense against the first count.

At 3:30 pm, the jury was sent into deliberations. About 4:30 pm, they sent out a note asking to be able to review the tapes with regard to count one. I and both DAs were of the opinion that they had decided to acquit on count two and were only deliberating a decision on count one. At one point during the viewing of the second video of count one, the presiding juror said something to several of the other jurors and asked to have the video stopped. The retired for further deliberations. I thought they had seen what I had pointed out and the DA thought they had seen what she had pointed out. Thirty minutes later, the second note comes out. The jury has voted to acquit on count one, but the vote is 8 guilty, 4 not guilty on count two. Everyone is in disbelief. The judge sends in a note telling them to continue deliberating.

About 6:00 pm another note. Jury is still deadlocked on count two, now it is 7 guilty, 5 not guilty. The judge sends a note telling them to please continue deliberating, but if they are hopelessly deadlocked to please send a note.

7:15 pm, another note. We are still deadlocked, vote is 6/6. Judge sends in dynamite note which says basically that mistrial means another jury will have to go through the same process, hear the same evidence and will have just as difficult decision to make, so please deliberate and make a decision, but do so only with a clear conscience.

8:10 pm, note: Why were both counts tried at the same time, and what is the standard for field sobriety tests. Just responds that he cannot answer these questions, that the charge contains all the information that he can give.

9:15 pm, we get the word the jury has finally arrived at a verdict. There had been raised voices heard from the jury room for over an hour at the end, but the final vote was acquittal on both counts. There were 12 very hazard and grim faces in that jury box as the judge thanked them for their service and discharged them to get back to the their lives. That is probably the hardest $12 most of them had ever earned for two days work. I was court appointed, so I don't make a killing but it ain't that bad. My client was happy. He gets to go home and is not a felon. I advised him to stop drinking and driving. Do one or the other, but if you drink, pay someone to drive you around, it is cheaper in the long run. The younger DA had been forced to await the end, as the other one had seniority and went home. She congratulated me. She wanted to talk to the jury, I guess to find out what they liked or didn't like about her work. I wanted to tell the ones who had finally relented to acquit that my client had sat in jail for 5 months awaiting this trial, so as to let them know he had not gotten off quite scott free. The jury didn't want to hang around and talk to anyone, and I knew that. I just let them get home.

I got home about 10:00 pm, and dropped by my secretary's house to let her know the trial was over, and to see what I had missed the last two days. I have a lot to do tomorrow.

Posted by Tiger at August 26, 2003 11:25 PM