The Campaign For DA

3.25.2015

How Can Listening To A Legal Seminar Presentation While Jogging Make Me Stop Down?

(She's not related to this post. I've heard her seminar presentations. I'll never do it again.)

I was listening to a legal seminar the other day and heard a fascinating one given by a prosecutor from  Tarrant County. (Actually, he referenced "Ted Talks" which I mentioned earlier.) I've know the guy for years and he is smart, very good at what he does, and I've never heard anything other than positive comments about him. His presentation was about jury selection from the "State's Perspective" in DWI cases and it was fantastic. I know that because he was making me cringe as he reminded me how tough my job was.

But one thing got my attention. He spent some time on how defense lawyers, when there is not blood test or breath test in a case, will ask the jury not to convict based upon the opinion of an officer about whether someone is intoxicated. He pointed out how he will ask the jury panel if they have ever relied  upon a doctor's opinion or, when buying a new house, a real estate inspector's opinion.  If someone has expertise in area, he said, we rely upon those people all the time. He presented it very skillfully. But his point was that he tries to have the jury understand that a police officer is an expert on intoxication and the officer's opinion should be relied upon as well. (I rolled my eyes when I heard that but I digress.)

He was speaking primarily in front of criminal defense lawyers and I'm guessing he sensed their cynicism. But, and this is the point of this post, he actually said this: "So who am I talking about? I'm talking about your police officers. Um . . . hopefully. Now again, some of our police officers . . . got to keep your credibility[*], you know. And some, some of my officers -- I'm not going to buy that house. Even after they look at it, I'm not going to do it. And I'm just going to get them on and off the stand as quickly as possible and hope that the cross [examination] is going to be limited."

That really bothered me. Is he saying a prosecutor at trial should ask an officer an opinion on intoxication when the prosecutor wouldn't rely even personally rely upon it? And pray that the defense lawyer is so bad that he won't expose that the officer is no expert at all? Should a prosecutor later argue to that jury that the officer's opinion should be relied upon?

It's been about two weeks since I heard it and it still sticks with me.
_____
*Incidental point: I'm not exactly sure what he meant by this phrase, and I've listened to the mp3 ten times. It may mean you have to keep your credibility "as a lawyer in front of a jury panel" but I'm not certain.


20 comments:

Anonymous said...

Could it be that the prosecutor may feel very strongly that the arrest was a good arrest but the officer is not a good witness or may not write reports well or may not come across as very confident on the stand. Or worse - maybe the officer has a reputation for being a jerk - still thinking it was a good arrest the prosecutor may not want them on the stand long because the officer being a jerk is not pertinent to the incident on trial.

mzchief said...

The hole in his argument about trusting police officers, (who've FAILED TO PERFORM APPROPRIATE TESTING to provide an expert opinion,) much like one would accept the opinion of a doctor or house inspector is that doctors and house inspectors have PERFORMED THE APPROPRIATE TESTING to provide an "INFORMED EXPERT OPINION."

Why would any rational person accept the opinion of a "expert," who fails to perform tests, at their disposal, to ascertain whether or not a motorist had a Blood Alcohol Content exceeding the legal limit?

Anonymous said...

Could it be that most prosecutors will prosecute anything in convervative counties knowing that facts are not always needed for a conviction given the makeup of the jury pool.

Mr. Mike Honcho said...

Hmmm...

Jogging is already work enough for Mike Honcho. No way I could add some work tunes to it.

Anonymous said...

If you have to try really hard to understand something as stated, the person stating or the person trying to understand is usually full of sheep dip. Could it be over thought or micro managed?

Anonymous said...

"10,076 people who died in drunk driving crashes, accounting for 31% of all traffic deaths that year" (2013)
Keep up the good work Barry.

Anonymous said...

A prosecutor HAS to maintain credibility with the jurors or his argument is compromised. All GOOD jurors will evaluate the sufficiency of an Expert witness. However, If his "Expert" witness sucks SO BADLY that this causes the jurors to question the credibility of the Prosecutor.... then GAME OVER for the State.

Anonymous said...

2:01

I would suggest that there are more elements to consider in those deaths other than alcohol.

Anonymous said...

What would Barney Fife do?

Anonymous said...

I'm sure there are other factors to consider, 2:34. That doesn't change the fact that, in 2013, 10,076 people died in accidents involving a driver with a BAC of .08 or higher. That's the point I think 2:01 was making. (Well, that and a snarky comment about Barry.)

Anonymous said...

Barney Fife was an expert on intoxication based off of his dealings with Otis...I'm just sayin!!!

Anonymous said...

Let's just bang real hard and be critical of every part of the criminal justice system...except of course the criminals who cause its existence.

Anonymous said...

If a plane crashed once a week because of drunk pilots....how many decades would it take before everyone realized that doing all we could to stop pilots from being drunk was worthwhile?

Anonymous said...

That lady looks like she needs a good donkey punch.

Anonymous said...

A lawyer with credibility, baahahahahahahahahahahah that was a good one. Got any more?

Anonymous said...

7:00pm, I'm a police officer, and you're danged right there are lawyers with credibility. I have been direct and cross-examined by some.

But then there are those who are not credible. I've had defense attorneys try VERY hard to mislead the juries into believing that an officer is breaking the law if he doesn't call the local jurisdiction LE to come take the arrest of a DWI suspect who was eventually stopped in another jurisdiction (Not true: Chapter 49 is explicitly enforceable by all LEOs throughout the state.). I've had defense attorneys attempt to attack my character, when all I did was make a good stop on their client, and then put together a good case against their client. I've had prosecutors sigh and say, "Yeah, he was drunk, and yeah, you put together a great case, but the Reasonable Suspicion for the stop was a little thin, so we're dismissing the case."

There are good attorneys. There are bad ones. There have actually been, and will be again, some bad cops out there. I don't see them often, but they're out there.

Don't laugh at credibility. It's never a joke.

Anonymous said...

You get a cop up there who has been certified in SFSTs and has been busting drunks for 20 years, you're going to have little trouble convincing the jury that he knows what a drunk looks like.

Anonymous said...

I made an arrest for marijuana on a guy that also happened to have a meth pipe. I asked him repeatedly on video about the meth. He repeatedly said there was no meth, no meth in his car, no meth on his person. When we got to the jail I gave him one more chance. I said if you have meth on you when we search you in the jail it is a higher charge - but if you tell me you have meth on you right now it is a lower charge - so where is the meth? He said - no meth. All of this was on video so the evidence was clearly there. Sure enough we found a baggie of meth tucked under his nasty balls. The prosecutor actually declined the higher charge saying "he didn't mean to bring the meth into the jail." Grow a pair Mr. Prosecutor, GROW a FRIGGIN PAIR.

Anonymous said...

8:54 Would the pair he grows have to be "nasty"?

Anonymous said...

The only things a cop is expert in are intimidation and doughnuts.