Witness Chicken (The Police Version)

Maybe your client is guilty. Maybe it will be easy for the State to prove that your client is guilty. That is, if they can get their witnesses to show up.

There are all sorts of reasons that defense lawyers set cases for hearings and trials, not the least of which is that they expect(well… hope?) that a judge will suppress some or all of the evidence, or that a jury will find their client not guilty.

Occasionally a client will even volunteer this as the solution to their problems, “What are the chances that so-and-so won’t show up, and my case will be dismissed?”

For now, I’ll ignore the ethical issues that answering that question raises, and focus on one small aspect of it. The answer depends greatly on whether or not the witness against your client is a police officer or a civilian. The chances of winning witness chicken when the only folks the State needs wear a badge and a gun are substantially less than if they don’t. Part of every cop’s job description includes “professional witness,” and they even take classes to learn how to do it.

So what are the chances that an officer won’t show up to testify in a pretrial suppression hearing? Usually pretty slight. But a cynic might say there are other factors to consider, such as… what your client does for a living. Is the answer different if your client is also part of the thin blue line?

From “Texas Officer Catches Break in DWI Case; Arresting officer is no-show for court”:

An Hidalgo County judge killed a McAllen policeman's criminal case after one of the defendant's fellow officers failed to appear in court and testify against him, court records state.

Judge Jay Palacios of Hidalgo County Court-at-law No. 2 dealt a "fatal" blow to the prosecution's case, Hidalgo County District Attorney Rene Guerra said, when he granted a motion to suppress evidence in Officer Alex Alvarez's pending case on a charge of driving while intoxicated.

No witness, evidence suppressed, case closed. Until the newspaper called, and the D.A. had to come up with an explanation.

District Attorney Guerra said he learned Wednesday that the case was set for dismissal when a Monitor reporter contacted him about the matter. Guerra said he would ask Palacios to reconsider his decision to suppress the evidence in the case.

"Legally, I don't know if he can reconsider it," the district attorney said. "I don't know until I try."

But why the arresting officer missed the court date remains unclear.

Did the state even ask for a continuance? According to the article, “McAllen's Police Chief Rodriguez said he believed the officer was hospitalized.” In Austin, prosecutors will ask for a continuance at a first setting, even if they have no idea why their witness isn’t there, and it will usually be granted. One time any way.

Did that happen in this case? And if it regularly happens in that court, but didn’t this time, what made this case different from any other?
 

SCRAM Violation? Maybe, Maybe Not...

From an out of state commenter:

I received a summons today to appear in court next week. The papers did not even include what the appearance would be for. I have been on the SCRAM bracelet for two months now. This is the second time that I have been notified of violation of the bracelet.

The first was just a failure to download. I just received a prerecorded phone call for that violation, "no biggy." Today when I called the court house to find out why I had to appear, I was informed it was a violation from SCRAM.

I then called SCRAM. I asked what the violation was and when it occurred. She informed me that the violation was tampering, then implied that I had stuck something between the bracelet and my skin.

I have a witness that knows that I was not drinking. I know this does not matter because our judicial system fails all the time and has already convicted me of this DUI that I was
innocent of. I have come to terms with the fact I was found guilty of the DUI. How am I supposed to come to terms with being violated for something that I did not do?

My bracelet is often too tight or way too loose. I also suffer from the scratches and cuts caused by the bracelet. I am female and I know that water weight and bloating are causing the scratches and cuts. I think it has also caused the tampering violation.

The only way something was placed in between is if it happened while I was sleeping.

I understand your cynicism about the system, but it is too early to despair. SCRAM devices are a subset of devices, aka machines, and are far from infallible. For example, check out D.A. Confidential’s full post entitled “A Fine Piece of Lawyering”. It tells the story of a supposed SCRAM violation and the defense attorney that wouldn’t quit until his client’s pleas of innocence were finally vindicated.

First, the accusers:

…the people responsible for the SCRAM came into court.

They showed [the judge] their proof, a print out of a black-and-white graph.

On that graph were two lines, one showing whether the SCRAM had been tampered with, one showing whether Mr. Smith had been drinking. Both lines spiked. Thank you SCRAM people, Mr. Smith stays in jail.

Ah, but was that what really happened? Did the defendant really violate his terms of release, or was it possible that – despite the SCRAM company line – he was innocent of wrongdoing?

So [the defense lawyer] went back to the SCRAM office and obtained another copy of the graph. But he made to sure to get a print out in color, not just a photocopy. Lo and behold, the color graph contained three lines (as opposed to two), each a different color:

• one showing whether Mr. Smith used alcohol

• one showing whether Mr. Smith tampered with the SCRAM

• one showing Mr. Smith's body temperature

The spikes were in the bottom two lines, the ones showing body temp and tampering. The line showing his alcohol use was a flat-line at the bottom of the graph, and had been mistaken by everyone as the baseline, the line you'd draw at the bottom of every graph.

Ooops. Mr. Smith had not, it was now clear, used alcohol.

How does this apply to the commenter’s situation?

But that still left the tampering spike. Well, the ever-diligent [defense lawyer] obtained the second page of the SCRAM report, which showed examples of spikes when the SCRAM had aluminum shoved under it, a wet cloth stuck under it, and when a sock got stuck under it.

Guess which it was? Right, the sock.

DAC’s post goes on to say that the SCRAM folk showed back up in court and “accepted responsibility” for their mistake. Really? What might that entail? Giving this poor fellow whatever he spent on attorney’s fees? Maybe turning back the clock and not jailing him in the first place?

If “accepting responsibility” means showing up in court and telling the judge what he already knows, that is, that you presented yourself as an expert but don’t know what you’re talking about, don’t know how to read your own company’s “graph charts”, and unfairly incarcerated someone, then perhaps they did. I don’t know, I wasn’t there.

So, to the commenter, get a lawyer who will bring your witnesses to court, and who knows how to track down the rest of the story, who doesn’t accept whatever the company line is at face value, and you just might be alright.

Good luck.
 

DWI Defendants Are Coming! Away! Which Way?

Just in from a marketer via email, with the title line “Thousands of DUI Defendents are Coming!”:

Because we are the #1 Google ranked DUI/DWI website, thousands of DUI/DWI defendents[sic – I couldn’t bring myself to misspell it in the title of my post though] will come to our site next week looking for an attorney. Will you get your share?

Just one case will pay for your Membership many times over. Please respond to this email now or call (123) 456-7890.
 

I haven’t linked to the “nationwide network of DUI defenders” that sent me the email, not wanting to hand out any undeserved Google love. But from a quick click through to the site – I had to look - the amusing thing, at least from my perspective, is that it tries to sell both potential clients on member lawyers, and potential lawyer clients of the network on paying the site to list them.

It’s super obvious that there is absolutely no screening of the lawyers whatever. If you pay the fee, you are listed, and then become (simply by virtue of sending them money):

…expertly familiar with all the intricacies and nuances involved with DUI offenses. This index of lawyers will take you through them step by step, explaining testing, sentencing, jury trends…

Do the recently arrested who comb the internet realize: a bar card and some money makes any and every lawyer an expert?

The Will Of The People

Here’s the text of the resolution, along with my running commentary , on last week’s City Council agenda regarding the possibility of Austin police officers - instead of registered nurses or otherwise medically qualified and trained personnel - collecting blood specimens from DWI suspects:

WHEREAS, the State of Texas allows peace officers to collect breath and blood specimens as evidence for prosecuting people suspected of operating a motor vehicle while intoxicated through Texas Transportation Code §724.012, and Texas Code of Criminal Procedure Article 18.01; and

Since there’s already an implied consent statute, and a law governing search warrants…

 WHEREAS, Austin’s police force consists of highly trained law enforcement professionals whose compensation is commensurate with the specialized public safety service they provide; and

This is harder for me to translate. Maybe something on the order of: the police are already well paid for the job they have been taught to do…

WHEREAS, the safe collection of blood specimens requires separate specialized public health training and ongoing yearly medical education in order to ensure healthy and accurate phlebotomy; and

Cops are cops not phlebotomists. And a few hours of “training” them to stab people with needles won’t change that.

WHEREAS, such training is geared for clinical health technicians consistently practicing phlebotomy on a daily basis in a controlled public health setting with emergency health services close at hand;

Four or eight or twenty four hours worth of “classes” isn’t enough to properly teach police officers how to draw blood safely…

NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF AUSTIN: In order to protect the health and safety of officers and suspects, the City Manager is hereby directed to bar Austin Police Department officers from conducting phlebotomies.

Don’t Do It! Make sure Austin Police officers are not allowed to stab suspects, make the nurses do it. Period.

It was a great resolution, but instead of passing, there was some big fake brouhaha instigated by the City Attorney about how the resolution would conflict with state law because officers are required to “use all lawful means” to enforce the law. From the Statesman:

Austin city council members, in a unanimous vote, approved a resolution today that said it is their “clear will” and the community’s desire that police officers not personally collect blood from drunken driving suspects — an idea Police Chief Art Acevedo had floated for months.

The resolution stopped short of directing City Manager Marc Ott to ban such draws, which had been the original proposal by council members Bill Spelman and Laura Morrison and Mayor Lee Leffingwell.

First and foremost, it is indeed clearly “the will of the people of Austin” that police not forcibly take blood samples from suspects. I have no doubt of that. But not passing the resolution as originally written shows the Council to be out of touch, or perhaps just easily bullied by the Police Department.

Besides, if they “can’t” pass a resolution banning the police from sticking the needles in themselves, because that would “conflict with state law”, why is it kosher to express an opinion that would conflict with that same non-existent law?
 

A Not So Anonymous Tip

The 911 call:

Caller: Somebody's really drunk driving down Granton Road."

Dispatch: Okay are you behind them, or...

Caller: No, I am them.

Dispatch: You am them?

Caller: Yes, I am them.

Dispatch: Okay so you want to call and report that you’re driving durnk?

Caller: Yes.

…and the police report speak for themselves, I guess:

On Saturday October 24, 2009 at about 11:23 p.m. I was dispatched to Granton Rd. Near Miller Ave. to a possible intoxicated driver. Dispatch said the caller Mary [Name Redacted] called stating she wanted to report a drunk driver which she said was herself. Dispatch informed me Mary said she pulled over along the road and turned her emergency flashers on.

…Mary said then began driving home alone in her vehicle until she called the Sheriff’s Department to report that she was driving drunk…

Let’s hope she gets some credit from the prosecutors for “doing the right thing”.

Sprung From Cages Out On Highway Nine

From the “Tramps Like Us” version of passed-out-while-intoxicated comes this “DWI” arrest out of New Jersey:

A Holmdel man was charged with driving while intoxicated after police found him lying on the grass near his parked car, police said today…

Officer Paul Papamarkos was on patrol around 4:15 a.m. Friday when he found [Defendant]'s car parked on Loantaka Way, near a walking path. As he was checking out the vehicle, a 9-1-1 caller reported a man lying in the grass a short distance away.

After a brief search, Papamarkos found [Defendant] lying on his face in the grass. He was found to be highly intoxicated and arrested, Dachisen said.

I’m going to try to get the PC affidavit, or whatever the New Jersey equivalent is on this one. I’m betting it says he told the police he was driving home, then stopped his car, turned it off, got out, laid on the grass and went to sleep.

They’re going to try to use the admission of driving against him to prove “operating a motor vehicle” – or whatever that part of the statute says in the Garden State. More when I track down the PC.