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2.26.2008
Little Slow Today
The County Attorney's office is trying to pull off a trifecta this week: Three jury trials in one week. Whenever that happens, I'm involved. Heavily.
Yesterday they got a guilty verdict in a DWI trial with a defense lawyer I had never hear of. Today, I've got a case scheduled to go to trial (also a DWI) and on Thursday I'm up again.
Today's case would be a great defense case but the video in the trooper's car didn't work. You would think that would help the defense, but it normally doesn't. The jury is much more inclined to take the word of the trooper when they don't have the actual video evidence to compare it against.
I'll try to keep you updated during breaks and down time.
Edit: 11:12 am. Jury selected. Four men. Two women. Not perfect but I think I have a fighting chance.
Edit: Break for lunch. Trooper has testified. Cross-examination coming up. All this waiting makes me crazy as Ted Kennedy in Laredo.
Edit: Well, it's over. Case dismissed by the prosecutor. And I'll give credit to both him and the trooper. Here's what the law is: An officer is allowed to use his police report to "refresh his memory" about what transpired during the DWI investigation. He may not simply rely upon the report if he has no memory of the incident. I noticed during the trooper's direct examination that he would rely heavily on the report - almost using it for all his answers.
So, before the jury was brought in after lunch, I was allowed to ask him questions about what he actually remembered and what he was testifying about simply because his report said it was so. I'll give the trooper the utmost respect for honesty: he could not recall the details of how the defendant performed on the field sobriety tests. And it's not all his fault - the prosecutor had lost the DVD of the stop somewhere along the way so he couldn't use it to refresh his memory. (In their defense, I think this is the first time I can remember the CA's office ever misplacing a DVD.)
And, in the end, the right result probably occurred. The officer followed my guy from Frilly's all the way to 380 (and other than "following too closely" to another vehicle briefly, committed no other traffic violations and didn't even swerve within his lane. (I even recreated his course of travel here but never got to use it.) And according to the police report, he was able to keep one foot in the air for thirty seconds during the One Leg Stand.
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26 comments:
It doesn't seem reasonable that an officer would charge someone with DWI just to give some slob a bad day. The testimony has weight and did long before videos. Sometimes I wonder why people prefer a trial when FST and breathalizer tests are acceptable probable cause, unless they are repeat offenders and have lots more to lose. Does it come out in court if they are multiple offenders? We know you will give your clients a good test of the evidence for their "day".
It doesn't come out in misdemeanor DWIs if they had a DWI before (1st of 2nd), but it comes out in District Court when they have a felony DWI case (3rd or more), because it has to be "explained" why the District Court has what otherwise would be a misdemeanor case. Makes it tougher when you prosecute a misdemeanor DWI.
I was on jury for a case where the video didn't work either. What's up with Wise County's tapes NEVER working???
Since the burden of proof is on the State and the State has the ability and means to provide a video to substantiate the Officer's allegation, the State should be held accountable for NOT providing the jury the necessary documentation to allow the jury to actually draw their own conclusion rather than forcing the jury to depend on the assessment of a BIASED Trooper.
No offence intended to the Trooper.
One more thing, thank Heavens law enforcement only go on duty with a faulty dash-cam and NEVER roll with a malfunctioning Intoxilyzer 5000 aka a "breathalyzer."
Barron, are you aware that a person's BA will register higher than it actually is if they have a fever at the time their BA is tested with an Intoxilyzer 5000?
The Intoxilyzer 5000 is a CRANKY piece of equipment, VASTLY more so than a dash-came.
I am just saying...
Whatcha mean, the video equipment didn't work? That's like saying he was speeding but his radar didn't work. Recent studies have shown that "eye witness" testimony is wrong much of the time. Is the officer just saying, "trust me, he was intoxicated?"
So does the prosecution have blood evidence in lieu of the video? If I were on the jury, they'd have a tough sell with this one.
This is a sore topic for me. My only time to be on a jury was a DWI. The guy was going the wrong way on Hwy 121 after pulling out of a bar parking lot at 2:00am in what was then BFE past Frisco. He was so smashed he didn't know he was going the WRONG WAY on the highway until a Trooper (I think it was a Trooper) pulled him over. Oncoming headlights were not a clue because he was so out of it.
Failed every sobriety test and made a trip to jail. In the room, they told him to walk the line on video. He refused. The officer stated he was slurring his speech so badly that he was difficult to understand. However, the audio on the tape did not work.
One moron on the jury decided he had no proof the guy was drunk because he didn't see him walk the line and couldn't hear him speak. We spent 3 1/2 DAYS in deliberation just looking at each other because of that idiot.
Trial started Monday and we got it about 3:00pm. The judge didn't declare mistrial until 10:00am Friday. I almost ended up on trial after being in a room with that juror all week.
so what would the perfect jury be?
good luck barry hope the truth is found and if the guy is innocet than not guilty and if he is gulity than hang him pon the court house lawn ill provide the rope free of charge even
I can't think of any good reason for a patrollman to create a DWI case and lie about it in court. All such convictions I know about truly bagged guilty drunks, no exceptions.
It takes REASONABLE doubt of innocence to convict, not 100% COMPLETE DOUBT. Rather than law enforcement being the liars, the most common case is that defendants almost always lie about their guilt. That follows them to prison where WE KNOW they are all innocent!
It would drive me nuts to serve on a jury with an air-head who has no power of reasoning about anything! But I know they are out there....and in here too. LOL
Hey, I've seen dash-cam video of some of the drunkest slobs around, yet "someone" never shows the grand jury those tapes so it gets no billed. What's that about?
12:03 - Good question. In my opinion, it depends on which side you are on. If you are defense, you want someone who can't find their way out of a broom closet and believes that all TV commercials are scientific facts.
If you are prosecution, you would like to have successful people whose occupations or life experiences engaged them in the process of gathering essential information and making intelligent decisions most of the time.
Everyone should have respect for and an understanding of our legal system. NO criminal record or outstanding warrants. No drug/alcohol dependencies or strict religious biases. It might be easy to convict a "sinner" in one's mind when the person is not guilty of breaking the law.
Seriously the juror selection process takes a long time and unfortunately I probably will never be picked to stay.(interested to see the outcome)
Ted Kennedy is crazy no matter where he is. He needs to be on meds like his son. Mary Jo Kupechne could not be reached for comment. They know that Sirhan Sirhan killed Robert Kennedy and now they know who killed his son. Syringe Syringe.
mzchief, the burden of proof is on the State...but do you think that since it is, that the State never makes mistakes or that there is no room for human error in the prosecutor's office? Wise County processes several hundred cases every single month, and I venture to say that if you would ask, this is probably the FIRST time that a video has been lost...I'm just sayin'.
From a Police Officers Standpoint,you do not want to go looking for a DWI.
The paperwork is horrendous,it takes you off the street for 2-3 hours and all too often Juries sympathize with the offender because they've all been in his shoes sometime in their life whether they were caught or not.
It's just not worth the hassle and wasted time to attempt to falsely charge someone with DWI.
mzhief....the state is not "bound" to provide videotaped evidence. Video systems are there to help...but they're not required. Unfortunately folks like you have drank the Kool-aid long enough that you feel it's the violators who are the victims. Trials come down to who's the most believable...not who's the most biased. Most often that comes down to an officer's testimony versus a drunk. Plain and simple. And unlike your post...mine fully intended to offend your ignorance.
To answer some questions. The vast majority of DWI cases that have gone to a jury trial, there has been a video, and it was shown to the jury. Usually the lack of a video is due to a malfunction in the car's recording device. The officer usually doesn't know if the video has malfunctioned until after his shift is over (the actual recording device is locked in a metal box inside the trunk of the car in order to safeguard it--and you know what extremes of temperature do to electronic devices! In this matter, the County Attorney's office seems to have lost a video that existed (but not to criticize them, because this is the first time this has happened in hundreds and hundreds of cases--and something is bound to go wrong occasionally when you deal with the large number of cases they deal with). To answer a question brought up by 8:03 AM, in misdemeanor DWI trials, the jury is usually not allowed to be told whether or not the defendant has had prior DWIs (they get to hear this in a felony DWI trial, since it has to be "explained" why the district court is trying as a felony, an offense that usually is a misdemeanor).That makes it much harder to get a conviction in a misdemeanor DWI trial than a felony DWI trial.
I served on a jury in Wise Co. once, in Melton Cude's courtroom and with greg lowery prosecuting. The guy drove away from that bar near the golf course in bridgeport and got stopped. We saw the film from the dash cam, and he gave every xcuse in the book for not being able to stand straight and pass a field sobriety test. The funniest was that he had an "injured leg" from some previous mishap. But on the film, he stood on the leg and adjusted his stance time and again, and everyone on the jury knew the trooper had him dead to rights.
well, except for ONE juror, whose ONLY defense of the guy was that "I don't like cops. They always lie about stuff."
we spent an entire day trying to get this guy to see the obvious guilt, but because of a grudge he had against law enforcement (and then lied about it in, um, voir dire (?), apparently), the judge eventually granted a mistrial.
"DWP" Drunk While Posting.
12:17:
That's the first time I've ever seen anybody slur something they have written.
Ya take one down, pass it around...
Mzcrap - what's with your spelling today? "offence" "dash-came."
Good job Barry! When the prosecution bungles it, the defendant walks!
3:00 - Thanks for taking the time to provide the real stuff.
8:03 AM
12:21 It does NOT "take reasonable doubt of innocence to convict."
It takes "no reasonable doubt of guilt" to convict.
I'd say there's a HUGE difference between the two.
This gives me tired head....I bought new grips for my clubs and I'm playing Golf tomorrow...Good Times and Good to laugh a little buddy...(double fake Norm)Wheres Greggo?? Heard he's the new Greens Keeper at the Club...
4:28...Be carefull when you leave the club. Would'nt want a big mean cop to throw you in the pokey for no good reason.
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