Watch an Opening Statement for a .105 DUI Case

http://www.youtube.com/watch?v=xTlxk7Ulu74


The above link is to an Opening Statement I made in a DUI case in Hardin County (permission from the client was given to post online).  This was a "relation back" DUI.  So if you're a lawyer getting ready to try a relation back case, it might help.  Or, if you find courtroom stuff entertaining, it might be something you find enjoyable to hear.  

If you're going to try one of these cases at a jury trial, here's my advice on an opening statement:

1) Be Confident.  If you aren't confident in a situation where your client blew over the .08 mark, the jury will sense that, and they are going to assume your lack of confidence means she's guilty.

2) Don't Exaggerate.  If the officer didn't intentionally falsify evidence, don't call the officer a "liar."  He isn't.  He just made some mistakes.  In this particular case, the officer wasn't a bad guy, he was just incompetent.  The prosecutor in this case, who did a pretty fantastic job overall, made the mistake of exaggerating by saying that "all" of the field sobriety tests would show a sign of impairment and that the evidence would show that the intoxilyzer was "accurate."  Be careful about exaggeration - if you exaggerate, you lose credibility.  Also, as a side note, I broke this rule when I referred to my client's performance on the One Leg Stand as "gymnast" like.  I shouldn't have said that - it just popped out.

3) Own the Bad Facts.  My client drank and drove.  I needed to admit that, but remind them that it is not illegal to drink and drive (if you've done a good job in voir dire explaining the difference between "drinking and driving" and "driving under the influence" the jury will understand this.  You need to own the BAC.  My client had a .105 - and I needed to be up front about that but explain that a BAC of .105 as measured 45 minutes later does not equal a .08 while driving.

4) Own the Good Facts.  We had a few good ones in this case - my client was in charge of physical faculties.  She had a very good performance on One Leg Stand test.  Also, the officer in this case gave me a lot of ammunition - he has no idea how to administer field sobriety tests correctly.

5) Better be less than 15 minutes.  Seriously, don't put people to sleep.

6) Frame the Issue.  Seriously, give them a question to think of during trial.  Some jurors will even write it down.  "Ask yourself as we go through this, has the prosecution proven to me what her BAC was while she was driving."  That issue means I win, because I know the prosecution can't prove this.

On this particular case, this formula seemed to work.  The jury found my client Not Guilty.

I hope you enjoy it, and/or it can be good research for other DUI lawyers.

A Letter to Officer Sunil Dutta: My Thoughts on Ferguson

The following is an open response to Sunil Dutta.

According to the Washington Post, Sunil Dutta is a professor of homeland security at Colorado Tech University and a police officer with 17 years on the force at Los Angeles Police Department.  A few days ago the Washington Post printed an Op-Ed piece written by Dutta entitled “I’m a cop. If you don’t want to get hurt, don’t challenge me.”

This blog post is an open response to Mr. Dutta with regard to his article.

Right off the bat, Dutta lays down some pretty reckless blanket statements.  After giving a brief introduction to let the reader know he is referencing the situation Ferguson, Mo., Dutta states “cops are not murderers. No officer goes out in the field wishing to shoot anyone, armed or unarmed.” 

I think the vast majority of people would agree that generally speaking, police officers are not murderers – and that MOST police officers don’t ever want to shoot anyone.  But to say that “No” police officer goes out wishing to shoot someone is a baseless, biased statement.  I’ve heard officers with my own ears say things like “the pay sucks but at least I get to carry a gun.”  It’s unfortunate.  Some police officers believe that the feeling of power they get by wielding a badge and a weapon is a job perk.  A feeling that can offset negative factors associated with the job.

To say that no person in your field feels a certain way is ludicrous.  That would be like me saying “lawyers are not thieves.  No lawyer goes into a court room wishing to take money that doesn’t rightfully belong to them.”  Or as a Catholic, me saying “priests are not bad people.  No priest goes into a parish wishing to hurt a child.”

C’mon, Dutta – you’re better than that.  There are bad apples in every field.  Failure to acknowledge that problem makes you a part of that problem.  But the bad apples in the Catholic church generally aren’t packing guns.  Most lawyers I know don’t keep deadly weapons on or about their person.  Cops do.  So the bad apples in your field are a lot more dangerous.  You should take a stronger position to cut them out.

Dutta acknowledges at some point that police officers can make mistakes, but he puts the responsibility on citizens to ensure safety.  Dutta’s self described “bottom line” is this: “if you don’t want to get shot, tased, pepper-sprayed, struck with a baton or thrown to the ground, just do what I tell you.”  His point is that the police may, in fact, be violating your rights.  But you shouldn’t stick up for yourself in any way.  Because if you do and the police officer shoots you, that is the path which you have chosen.

As a society we cannot accept Dutta’s proposal.  The only answer we as a society should live with is that police officers, who are supposed to enforce the law, should KNOW the law.  They should be knowledgeable and they should be vigilant to guard the Constitutional rights of the general public.  Those officers in Ferguson, Mo. who threw gas bombs at news vans and arrested reporters for filming – they either genuinely thought they had the authority to do what they did, or they knew better but didn’t care.

Those police officers were at best, ignorant of the law they are charged with the duty of enforcing.  And ignorance and guns (tear gas, tanks, etc.) don’t mix very well.  Dutta’s answer is that the reporters should have been quiet, stopped filming, and refrained from any objection to their rights being violated.

I refuse to accept that, Mr. Dutta.  I don’t trust a government that says you shouldn’t question it. 

Sometimes the problem is a belligerent citizen.  Sometimes the problem is a hothead cop.  But we cannot accept the proposition that people should not question authority.  The right to speak out, nonviolently, is essential liberty.  Those who would give up essential Liberty, to purchase a little temporary safety, deserve neither Liberty nor safety*

Although mortally flawed, Dutta’s article is not completely without merit.

As we skip ahead in Mr. Dutta’s piece, he comes to a couple of ideas that make a whole lot of sense. “[I] believe every cop should use a body camera to record interactions with the community at all times. Every police car should have a video recorder.”  Dutta submits that employing video recording devices on the police officer’s person and in cruisers will reduce the rate of police misconduct and the rate of false complaints.  I couldn’t agree more.

Unfortunately, the KSP disagrees.  And the vast majority of city police stations in Kentucky.  And most County Sheriff departments.

Do you want to save millions in tax dollars?  Do you want to reduce the number of criminals who “get off on technicalities” and make sure that dangerous people are convicted for their crimes?  If so, you should support the mandatory use of lapel and cruiser video cameras.  This situation is win-win.  On the other side of the coin, this will drastically reduce the instances of police misconduct.

The only people who don’t want cameras are dirty cops and criminals (not that I have anything against criminals, per se).

I also agree with Dutta’s proposition that someone being arrested (or having their rights violated) should refrain from showing “anger and resentment.”  If your rights are being violated you should voice your objection in a peaceful, respectful way.  Violence and aggression against a police officer will not end well for the citizen. 

Dutta’s misstep is that he goes too far.  Dutta crosses the line when he faults a citizen for challenging a police officer in a respectful, peaceful way.  “do what the officer tells you.”  “Don’t tell me that I can’t stop you.”

Unfortunately for Mr. Dutta, freedom of speech and nonviolent protest are central to our rights as American citizens.  So don’t tell us not to challenge you, Mr. Dutta. 

That makes you part of the problem.

*Benjamin Franklin

Free in Kentucky: Police Officers and Lapel Cameras

Free in Kentucky: Police Officers and Lapel Cameras: Last year the Washington Post reported that police officers in Rialto, Calif., now carry cameras to record their every action while on duty...

Police Officers and Lapel Cameras

Last year the Washington Post reported that police officers in Rialto, Calif., now carry cameras to record their every action while on duty. The city of Rialto says the program has reduced complaints against police officers by 88 percent during the first year.  88 PERCENT!  That's huge.

That kind of reduction is phenomenal news for both citizens and police officers.  Citizens have less instances of false arrests and police brutality and police officers have less concerns about fighting bunk complaints from scumbags with a grudge.

Today the New York Daily News reported that, a memo has been released, subsequent to the videotaped chokehold death of Eric Garner.  This summer a guy named Ramsey Orta caught police on camera using a chokehold (prohibited by the NYPD policy) on Garner.  The chokehold killed Garner.  The memo, which was released by the Chief to all departments, states, “Members of the public are legally allowed to record police interactions,” the memo states. “Intentional interference such as blocking or obstructing cameras or ordering the person to cease constitutes censorship and also violates the First Amendment.”

In light of the Garner killing (murder?) and in light of the phenomenal success of the Rialto lapel camera program, isn’t it time we all got on board for lapel cameras?  

Surely the cost of implementing the technology would be more than offset by the savings in administrative costs, court costs, lawyer fees, etc...

Anything that helps ensure the constitutional rights of the general public is certainly worth some discussion.

What Does the Hobby Lobby Case Mean?

Hobby Lobby doesn’t have to cover birth control in their health insurance plans.*  At first, that might sound very reasonable to some people – until you find out why.

To be completely honest, the both social liberal and the financial conservative in me are substantially at odds over this issue.  Speaking of issues…

Let’s talk about “framing the issue.”

This is something I talk to kids about when I do the occasional Career Day at a high school or middle school.  For the purposes of this conversation we’ll ignore how weird it is for me to be invited to a Career Day to talk to a bunch of 8 year olds as a criminal defense lawyer.  Inevitably, one of the kids asks me what you have to learn to be a lawyer, or they have a pre-prepared question like “what are the important skills of being a lawyer?”  My answer to that type of question always includes the phrase “framing the issue.”

I invite a kid in class (and I always ask for the one who gets in trouble most for talking) to come to the front and have a debate.  Then I tell the kid that his or her job is to convince the class to eat only one type of pizza and they can pick whatever type of pizza they like.  The kid then blathers on about how great pepperoni is, and that it goes great on pizza – it’s salty and it’s delicious – and it’s a meat so it goes good with cheese and tomatoes and sauce.  Blah blah blah.  At that point I tell the kid to sit down.  Then I tell the class: Little Bobby here wants you to only eat pepperoni pizza.  Little Bobby doesn’t want you to have choice.  But I think you should be able to get whatever you want.  If you want just cheese, you should have it.  If you want peppers and sausage, you should have it.  And if you want to have pepperoni, you should be able to eat that too – but it should be your choice.  Who thinks you should have a choice?  And then all the kids raise their hands.

I turn to little Bobby and I say:  “You lost, kid.  Do you know why you lost?”  Then he cries, hilariously.  It’s because I cheated.  I changed the question.  Little Bobby got “convince the class to eat only one pizza topping for the rest of their life” and I got “Isn’t choice great?”  The truth is that it’s much easier to get people to agree to the second question.  So I tell the class: “The moral of the story is this: if the answer to your question sucks, get a NEW QUESTION.”**

That, kids, is lawyering.  (and they definitely don’t teach it in law school)

Back to Hobby Lobby.  There are a million and one different ways to frame the Hobby Lobby question (and lucky for us, framing is half off this week).  Just a few include:  If you wanted to appeal (on behalf of Hobby Lobby employees) to people who were corporation friendly but were straddling the fence, you might say, “Can a non-public corporation qualify as a person?” or “Can a corporation actually practice a religion?” If you were a pinko commie liberal who wanted a really negative reaction to the question, “Is it reasonable for a group of elderly men to decide important issues about women’s vaginas?”

Lawyers usually differ pretty drastically on how they frame an issue to the court.  However, people on both sides of this particular case tend to agree that the first 2 questions presented in the above paragraph are at least part of what we are arguing over.

And it’s strange that we’re arguing over it because if you asked people on the street, probably 90% of them would say “No” to at least one of the questions – either “Can a corporation qualify as a person?” or “Can a corporation actually practice a religion?”  Yet, we still seem to be asking the question.

And we may be putting the cart before the horse a bit, so let’s talk about why the case came to be.

Hobby Lobby is a closely held corporation, for profit, and is owned by religious people.  They have the collective belief that life begins at conception and it is against those people’s religious beliefs to terminate life or use contraception.

The Patient Protection and Affordable Care Act was hatched from a man named Obama in 2010.  It is affectionately and not affectionately referred to as “Obamacare.”  For the purposes of today’s conversation, we’ll call it the ACA.

The Department for Health and Human Services (HHS) is involved in this lawsuit because it is the job of the HHS to make regulations to enforce the ACA – and specifically in this case we’re talking about employers’ duty to provide “preventative care” for women without “any cost sharing requirement.”  So the law says that companies like Hobby Lobby providing group health care coverage to provide preventative care.  Most specifically, we’re talking about whether Hobby Lobby has to provide coverage for birth control.  (It’s generally accepted that birth control does more than just prevent conception, and is a preventative for some…other…unwanted…lady part complications or disorders and I don’t know how to end this sentence and I’m uncomfortable so I’ll just stop).

Hobby Lobby’s argument is that the Religious Freedom Restoration Act of 1993 allows them to exercise their religious beliefs and that the HHS is infringing on their religious freedom.

You may be asking, “why do we have a Religious Freedom Restoration Act of 1993 if we already have the Free Exercise Clause of the First Amendment?” and I assume you’re asking that question to Sam Marcosson because I am not a Constitutional Law professor.  He’s not here, so you’ll have to ask him through Facebook.  He loves that.

Speaking of Sam Marcosson – he said this about SCOTUS’ Hobby Lobby Opinion:  “The Court holds that because the Government found a way to provide coverage for employees of religious nonprofits, this is an alternative that could have been used for employees of companies like Hobby Lobby -- and the RFRA requires the government to look for alternatives before burdening religious beliefs.  In other words, the decision doesn't necessarily mean that employees of these companies won't get coverage for contraception.   It does mean, though, that the Court has interpreted the RFRA in a way that is spectacularly wrong and dangerous . . . and (in my humble opinion), which violates the Establishment Clause.”  Also, Marcosson might be the only person who believes his opinion is humble.

Justice Ginsburg wrote a pretty spectacular dissent in the Hobby Lobby case (Sotomayor joined and Breyer and Kagan joined in part).  It starts with this quick jab to set the tone:  “In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.”

Which, in my opinion, really sums up my problem with the Hobby Lobby case.  The opinion was reckless and leaves a wide open door for corporations to violate the law because of the “corporate religion.”  What kind of message is this supposed to send about fair hiring practices, for example?

Ginsburg follows that up with an on-point quote from the Supreme Court itself, “The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.” Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 856 (1992). 

So Ginsburg’s point is that allowing corporations to violate the law for “religious beliefs” goes too far, and that birth control is important for women to stand on equal professional and social ground.  Not to mention the fact that the Supreme Court has already held that the exercise of your own religion doesn’t mean you get to steal home base with no repercussions.  Another way to say that would be, “An individual’s religious beliefs do not excuse him from compliance with an otherwise valid law that the State is free to regulate.”  That’s a quote from the Smith case where 2 Native American fellas exercised their religious beliefs by eating some peyote, and were refused unemployment benefits.  The Supreme Court of the United States refused to say that religious beliefs could be used like a shield in such a manner.  But for some reason Hobby Lobby gets the exact opposite treatment.  They literally used religious beliefs to excuse them from compliance with an otherwise valid law.  And SCOTUS let them.

Also, corporations aren’t people.  And the day I see a Wal-Mart fold its hands and say the Lord’s Prayer, I’ll believe that corporations can exercise religion.

There are several more nuggets of goodness from Ginsburg's dissent but I'm going to let you mine those yourself.  I have blathered on too long.

Next we’ll be arguing over whether companies can refuse to hire gay people based on the reasoning of the Hobby Lobby case in 3…2…

*Maybe.  We don’t really know yet.  It depends on “less restrictive alternatives.”

**Just about 100% stolen from a scene in the movie "Thank You for Smoking."

Free in Kentucky: Supreme Court Limits Cell Phone Searches After Arr...

Free in Kentucky: Supreme Court Limits Cell Phone Searches After Arr...: The United States Supreme Court recently published an opinion regarding police officers’ authority to search cell phones after an arrest.  ...

Supreme Court Limits Cell Phone Searches After Arrest

The United States Supreme Court recently published an opinion regarding police officers’ authority to search cell phones after an arrest.  Law nerds like myself think it’s cool to say “SCOTUS” (pronounced SKO-tus) instead of the Supreme Court of the United States.  It makes us sound pretty cool.  Trust me.  Anyway, SCOTUS held that an arrest alone does not justify the warrantless search of a cell phone on someone’s person.  All Justices concurred.

Wait, what?  No – not the cell phone thing.  The last thing.  Did you just say “all Justices?”  Like…all of them agreed!?

Yes, avid blog reader.  I did.  Roberts wrote the opinion, and Scalia, Kennedy, Thomas, Ginsburg, Breyer,  Sotomayor, and Kagan joined in the opinion.  Alito wrote a separate opinion concurring.  They all came together in a glorious pile of truth and togetherness.  You could barely tell where each of them ended and the next began.

So here’s the very simplified version – SCOTUS took on 2 cases where each individual (Riley and Wurie) was arrested.  The police in both cases took the arrestee’s cell phone, learned more about the arrestees, and based on the newly learned information, charged each fella with some new charges.

It’s long been decided that the police can generally search you/your clothes after you are arrested.  This concept is rooted in the need for police safety – because you never know what some yay-hoo is going to have in their pocket or in a purse.  But it’s also been long decided that this type of search only goes so far.  If police officers find keys in your pocket, that doesn’t mean they can go to your house, use the key and walk on in, just because they found a key. 

But where is the line drawn?  What if they find a cigarette pack – can they look inside?  Generally, they can look into small containers because, again, it could be a safety issue. 

However, the police officers in the new Riley and Wurie cases weren’t looking for something that could possibly be dangerous.  They were looking for data.  And modern cell phones contain a lot of it.  SCOTUS reasoned at length about the modern advances in cell phone technology – how they can operate as address books, televisions, libraries, photo albums, video recorders, etc.

One of the fun quotes from the opinion is this:

“Robinson is the only decision from this Court applying Chimel to a search of the contents of an item found on an arrestee’s person (we’re talking about wallets, purses, address books, etc.)…The United States asserts that a search of all data stored on a cell phone is “materially indistinguishable” from searches of these sorts of physical items.  That is like saying a ride on horseback is materially indistinguishable from a flight to the moon.  Both are ways of getting from point A to point B, but little else justifies lumping them together.

Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple— get a warrant.”  Emphasis added.

And truthfully, this should have been an easy opinion for SCOTUS to come to.  When you’re talking about a “search incident to arrest” you know a couple of things. 1) The police are alleging that the person in question committed some sort of crime, and 2) That person is already in custody.  With those 2 things in mind, it isn’t difficult for police to get a warrant.

Also – it’s not just EASY to get a warrant in that situation, the process is FAST.  Police officers can even get warrants by email these days.

Cell phones are too vast to allow easy access for government intrusion.  Some people keep their whole lives on those things.  Pictures, video, documents, the list goes on.  20 years ago nobody carried around their birth certificate, social security card, and every piece of mail they’ve ever gotten.  Now with a few decent apps, you can carry all of your lifelong documentation at the click of a button.

SCOTUS got it right this time.  If you want to read the entire text of the decisions, click here:

http://www.supremecourt.gov/opinions/13pdf/13-132_8l9c.pdf

If you’ve been arrested, you should get a lawyer.  I am such a lawyer.  Call me at 502.618.4949 and as for me, Greg Simms.