Free in Kentucky: "Keepin' em On the Streets": A Year in Jury Trials...

Free in Kentucky: "Keepin' em On the Streets": A Year in Jury Trials...: This last week isn’t the first time I’ve gotten looks or words of disapproval.  In my line of work, it happens.  Job hazards, or whatever....

"Keepin' em On the Streets": A Year in Jury Trials for Greg Simms

This last week isn’t the first time I’ve gotten looks or words of disapproval.  In my line of work, it happens.  Job hazards, or whatever.  Sometimes the nasty smirks come after I win a trial.  Frequently the scowls or looks of disgust come when I first meet someone and tell them that I’m a criminal defense lawyer.  Like I just told them I’m a nazi or something.

Some of it I get.  Some of it I don’t understand.

I’m not trying to convince you that I’m a good person.  But I would like to clear up some misunderstandings about what criminal defense lawyers do and/or don’t do.  My goal is not to “Keep ‘em on the streets!” in the sense of making sure bad people are free.  My goal is to make sure my clients don’t get steamrolled by police who abuse their power, and to make sure their constitutional rights are upheld.  Because everyone in this country deserves that much. 

Let’s start with a couple of principles.

1) Criminal litigation is a great job.  It’s fun.  It doesn’t get boring.  Criminal law is fast paced, in a way that other areas of law can’t even come close to comparing.  And in order to be good at criminal law, you have to be able to think quickly, on your feet.  In that way it is also very challenging.  That’s why I love practicing criminal law.

2) Criminal Defense suits me more than Criminal Prosecution.  I understand that some people think I help BAD people to get less punishment - and that such conduct on my part is BAD.  But I can’t see myself as a prosecutor.  First and foremost, I would feel like an absolute hypocrite trying to punish others for doing “wrong.”  I’m not trying to convince you that I’m a good person because I am NOT a good person.  Or, at least, I’ve done my fair share of sinning.  Maybe your fair share, too.  So I couldn’t condemn others for things they’ve done or make a judgment call regarding whether their sins are “worse” than my sins, etc.  So I’d rather be on the side that gives second chances.  Forgiveness.  70 x 7.  I find this side of the V. to be far more morally justifiable.  Second, I want to be a voice for the less powerful.  The police come in numbers, organized, and trained.  They are powerful.  When that power is abused, it makes me sick.  So I find it very satisfying to make the effort to “keep ‘em honest.”

3) Most Criminal Defense lawyers don’t do what a lot of people think they do.  We don’t go in with a 100% guilty client and lie – we don’t just run in and start denying any wrongdoing.  Often, the best defense is to explain the wrongdoing as is, because the client is usually over – charged.  By getting the truth on the table, we can get the charges reduced to the appropriate level, and move on.  That way the client’s happy because they might be doing 1 year instead of 5-10 years in prison.  The client may even be an appropriate candidate for probation.  My point is, we don’t go sprinting into court with guns blazing, lying about how our client didn’t do anything illegal if they did, in fact, break the law.

With the preceding principles enumerated, let me tell you a little about my year.  Jury Trials are tough.  They are stressful, require a LOT of preparation (generally 30-80 hours depending on the nature of the trial), and if the case actually goes through trial in front of a jury, it requires lawyers to put forth very intense focus.  You have to mind the witness, constantly weigh the possibility of objecting to opposing counsel, check the jury to see if they are responding favorably and take notes for your cross examination, future motions, and closing argument.  All of these things are simultaneous.  Meanwhile, the very real consideration that someone’s freedom depends on your performance weighs heavily on your mind.  It’s a stressful situation.

There are several ways to win a jury trial.  The first way is to “beat the offer.”  If the offer is 10 years in prison, and the jury convicts your client and gives him only 5 years on a lesser charge, that is a Defense “win.”  Because you beat the offer that was on the table.  The second way to win a jury trial is to start winning some motions, or get some really good evidence out, and then the other side offers to settle the case on favorable terms for your client.  Lastly, and more obviously, you can get a Not Guilty verdict.

My first jury trial of the year was Commonwealth v. Matthew Kustes.  This was a relatively minor charge of Trespassing in Fayette County, but the case was more important than the face value of the potential punishment because Kustes was arrested without Probable Cause.  That means, if the criminal case was successful, we would have a civil case against the police under 42 U.S.C. 1893.  So I was prepared to charge into jury trial on a case that I normally would consider to be… “unworthy” is not the right word, but it’s the first word that comes to mind*… of the time and effort that goes into jury trial.  So we put the jury in the box.  After I was able to show that Kustes actually had permission to be on the premises and that the police did not have the authority to order him to disburse, we got a directed verdict in the case.  That mean the Judge awarded us a Not Guilty verdict without even allowing the jury to deliberate. 

The second case that went to jury trial this year was a felony case in central Kentucky.  It was of a sensitive nature.  I’m not going to go into all of the details of the case, but in general, the allegations were pretty harsh, but the punishment for such allegations was EXTREMELY harsh.  If you want to know about it – ask me.  I’ll fill you in on what is not confidential information.  Regardless, we went to jury trial in Mercer County.  While the jury pool waited in the courtroom, the attorneys went back into Judge’s chambers to argue some motions in limine.  I started to win some motions, and the Commonwealth asked if we could settle the case.  The prosecutor, Richie Bottoms, is an absolute class act and a very professional individual, by the way.  Good lawyer.  Long story short, my defendant took one year in jail.  He was originally facing 10 years in prison and a lifetime on the sex offender registry.  This was a “settled on favorable terms” win.

My next trial for the year was Commonwealth v. Latoya Smith.  She had a “drug DUI” case in Jefferson District Court.  After a hard fought battle, we ended up getting a Not Guilty verdict on the DUI.  Again, the prosecutor on the case was very talented and a really classy individual.  His name is Ben Wyman.  The jury didn’t let us go 100% scot-free.  They gave Latoya a $100 fine on a Disorderly Conduct charge.  It wasn’t a massive win, but a win nonetheless.  We got a Not Guilty verdict and we more than beat the offer. 

The next trial was Commonwealth v. Greg Maddox.  Maddox was wrongfully accused of assault.  This is another case where I won’t go into all of the details because of the sensitive nature of the case.  But I can tell you that after about 40 hours of diligent jury trial preparation, we finally got to the day of jury trial.  Our case was very strong.  After giving the case a last minute review, the prosecutor made the very reasonable agreement to completely dismiss the case against Mr. Maddox.  The best way to win a trial is to get a complete dismissal without even having to gamble on the jury’s verdict.  It was a big win.

My last trial of 2012 was an absolute brawl.  Commonwealth v. Steven Balazs was another “drug DUI” charge in Hardin County.  The County Attorney’s office in Hardin County is extremely unreasonable and prefers to waste taxpayer money instead of making decent offers on cases.  The prosecutor in this case was no different.  Balazs was charged with DUI and Reckless Driving.  The commonwealth contended that Balazs was under the influence of the 3 prescription drugs found in his bloodstream.  We had substantial evidence on our side that there was some sort of medical event, beyond his control, that caused the bad driving.  The jury agreed and only took approximately 7 minutes to deliberate.  Not Guilty on DUI.  Not Guilty on Reckless Driving.

And there you have it.  That concludes my 2012 year in Jury Trials review.

Next year I hope to go completely undefeated as well.  But I’ll probably try slightly less cases.  Maybe I’ll settle for 3-0 next year.

If you are interested in seeing some of the snippets from trial – like a cross examination of a police officer or a closing argument, they will be up on the internet soon.  I will put out a link to them in due time.

*Blatantly stolen literary device, taken from Chuck Palahniuk

Free in Kentucky: DUI Tips from a Louisville DUI Lawyer: You Know......

Free in Kentucky: DUI Tips from a Louisville DUI Lawyer: You Know......: People ask me regularly what they should do if they get pulled over by the police.   The answer to that question, like the answer to most ...

DUI Tips from a Louisville DUI Lawyer: You Know...Just in Case

People ask me regularly what they should do if they get pulled over by the police.  The answer to that question, like the answer to most legal questions is, “It depends.”  Let’s start with a few basic facts and assumptions, then we’ll move to the “what to do” portion of the post.

Basic Principle #1: It is not illegal to drink and drive in Kentucky unless you are “under the influence.”  Everyone has heard that it is illegal to drink and drive.  But that’s not really true.  “Don’t Drink and Drive” is a billboard slogan.  It is not the law.  The truth is that it is perfectly legal to have a beer or two with dinner, or a glass of wine out with your friends, and drive home, as long as you are not “under the influence” of alcohol.

Basic Principle #2: Notwithstanding Basic Principle #1, it is a bad idea to drink and drive in Kentucky.  Seriously, it can save you a lot of headache and money if you just take a cab.  Or, if you are lucky enough to live in Louisville inside the Watterson, take City Scoot.  You may not wake up and be glad that you did.  But if you wake up in jail, you’ll be sorry that you didn’t.

Basic Principle #3: Police are not your friends, and they are not trying to help you.  Police officers have a job to do and they have to justify their job.  Their job is to arrest people.  If you give them any reason to arrest you, even if it is a close call, they will arrest you.

Basic Principle #4: Some police officers know the law and follow it.  Some police officers do not know the law.  Some police officers know the law and choose not to follow the law.

Now let’s meander into the realm of “What to do.”  For the purposes of this conversation, assume that you’ve had a few drinks at dinner, and that you are being pulled over on the drive home.  Assume that you’re feeling some effects of the alcohol, but you wouldn’t consider yourself to be “drunk.”  You aren’t sure whether you would be considered “under the influence” of alcohol.  You’re driving just fine, but you got caught speeding a few miles per hour over the limit.

That brings me to my first point, “How NOT to get pulled over.”  In the above scenario, the easiest way to avoid going to jail is to avoid minor traffic violations.  Before you put the car in gear, make sure you have your seatbelt on, and both of your headlights are illuminated.  Make sure your break lights are functioning.  Make sure you have insurance and up-to-date registration, and that you have proof of both in the car or in your wallet.  Don’t speed.  Make sure to use your blinkers, and obey all traffic signals.  If it says “STOP,” then stop.  Don’t just slow down.

How to Interact with Police:

Keep your proof of insurance behind your license in your wallet.  That way you can pull it out immediately and give it to the officer when you get stopped.  This will avoid a situation wherein the officer writes “Subject had difficulty producing proof of insurance/Subject fumbled around with his documentation” on the citation.

Don’t speak to the police officer.  You have the right to remain silent.  Exercise that right.  This will avoid a situation where the officer writes “Subject had the smell of alcohol on or about his breath/Subject had slurred speech” on the citation.  Instead of speaking, you will remain respectfully silent, hand the officer your documentation and my business card.  On the back, it has a little love letter to the police, informing them that you will not be performing field sobriety tests and that you do not waive your rights.  Which reminds me…

Don’t take Field Sobriety Tests.  Seriously – just stand there and remain respectfully silent.  There is no negative ramification for refusing to take FSTs.  This will avoid a situation where the officer writes “Subject failed FSTs/Subject showed presence of Nystagmus prior to and at 45 degrees, and at maximum deviation/lack of smooth pursuit/Subject could not maintain balance, etc.” on the citation.

Don’t take a Portable Breath Tester.  The PBT is the breathalyzer that police officers carry with them.  There is no negative ramification for refusing to take a PBT.  If you stand silent and refuse to blow, this will avoid a situation where the officer writes “PBT showed presence of alcohol/PBT .08” on the citation.

Doing all of the preceding is the best way to avoid getting arrested.  If you don’t give the police officer enough evidence to constitute probable cause for your arrest, you cannot be arrested.*  If you are actually arrested without probable cause, you need to talk to a good Louisville DUI lawyer immediately.  I can make a motion to dismiss your case for a violation of Constitutional rights (specifically, 4^th Amendment). 

I’ve droned on enough about how to interact with police in order to avoid arrest.  At least for today.  If you have any questions about whether you should take the Intoxilyzer Breath Test (not a PBT – this would be the breath test AFTER arrest), the enhanceability of DUI, aggravating circumstances, or other motions to dismiss or suppress in a DUI case, please do not hesitate to call me.

Simms & Reed, PLLC.  Individual Attention.  Extraordinary Results.

If you are charged with a DUI in Louisville, Lexington, Frankfort, Elizabethtown, or the surrounding areas, call 502.618.4949 for a free consultation with an experienced Louisville DUI lawyer.  Greg Simms was named in Louisville Magazine's "Top Lawyers" of 2012 for DUI law.  Your case is serious.  Don't trust your DUI case to someone who only practices DUI law "every once in a while."  Call Simms & Reed, PLLC, today.

*Subject to Basic Principle #4.

Questions answered in this post:  What does "under the influence" mean; is it illegal to drink and drive in Kentucky; what am I supposed to do if I get pulled over by the police and I've been drinking; should I take field sobriety tests; should I take a portable breath test; how can I find a good Elizabethtown DUI lawyer; how can I find a good Louisville DUI lawyer; Louisville top DUI lawyers 2012; how do I avoid a DUI in Kentucky?

Free in Kentucky: Illegal Possession of Alligator: Exotic Animal Law...

Free in Kentucky: Illegal Possession of Alligator: Exotic Animal Law...: Pursuant to NBC News, a New York couple was arrested for possession of guns, drugs and an alligator.  The gator was 3.5 feet long, and a p...

Free in Kentucky: All You Need to Know About Kidnapping in Kentucky

Free in Kentucky: All You Need to Know About Kidnapping in Kentucky: Pursuant to WLKY: A Louisville man named David Mitchell is accused of trying to kidnap a child after police said he grabbed a child at the...

All You Need to Know About Kidnapping in Kentucky

Pursuant to WLKY: A Louisville man named David Mitchell is accused of trying to kidnap a child after police said he grabbed a child at the L&N Building on Broadway.  Mitchell faces an attempted kidnapping charge.

According to the police, a 1-year-old child was playing on the floor near Mitchell. When Mitchell’s friend came out of an office area, Mitchell reached down, grabbed the child’s arm and tried to leave the building, police said.

The child’s mother yelled and chased Mitchell and her child, according to the report. Police said Mitchell dropped the child in the foyer area and took off.  According to a warrant, Mitchell could be seen on video surveillance grabbing the child and leaving.

Kidnapping is a serious charge in Kentucky.  In this particular instance, Mr. Mitchell is actually accused of trying to take a child.  In most cases, however, Kidnapping is used as a supplementary charge in cases like burglary, robbery, and rape.  I hope I don’t actually have to tell anyone this, but victims in kidnapping cases do NOT have to be “kids.” 

A lot of people believe that the victim has to be taken somewhere else in order to be kidnapped.  That’s not true.  Let’s dive into the statute, shall we?

Pursuant to KRS 509.040, Kidnapping is defined as follows:

(1) A person is guilty of kidnapping when he unlawfully restrains another person and when his intent is:

(a) To hold him for ransom or reward; or

(b) To accomplish or to advance the commission of a felony; or

(c) To inflict bodily injury or to terrorize the victim or another; or

(d) To interfere with the performance of a governmental or political function; or

(e) To use him as a shield or hostage; or

(f) To deprive the parents or guardian of the custody of a minor, when the person taking the minor is not a person exercising custodial control or supervision of the minor as the term "person exercising custodial control or supervision" is defined in KRS 600.020.

(2) Kidnapping is a Class B felony when the victim is released alive and in a safe place prior to trial, except as provided in this section. Kidnapping is a Class A felony when the victim is released alive but the victim has suffered serious physical injury during the kidnapping, or as a result of not being released in a safe place, or as a result of being released in any circumstances which are intended, known or should have been known to cause or lead to serious physical injury. Kidnapping is a capital offense when the victim is not released alive or when the victim is released alive but subsequently dies as a result of:

(a) Serious physical injuries suffered during the kidnapping; or

(b) Not being released in a safe place; or

(c) Being released in any circumstances which are intended, known or should have been known to cause or lead to the victim's death.

Subsection (1)(b) is the subsection that is typically used in Burglary, Robbery or Rape cases, as mentioned, supra.  If a suspect breaks into a home and ties up a couple in order to steal from them, the suspect can be guilty of both Burglary AND Kidnapping.

Subject to subsection (2), the condition of the victim – whether “harmed” or “unharmed” – can determine whether the offender will face a Class B or Class A felony.  Obviously this is a pretty big deal because it can mean the difference between life in prison or getting out and having some sort of life outside prison walls.  Class B felonies carry a penalty of 10-20 years.  Class A felonies are the most serious felonies in Kentucky – offenders face a penalty of 20 years – life in prison.

I’m sure most of the individuals reading this material will never have to know this information.  But I hope you found it informative.

Simms & Reed, PLLC.  Idividual Attention.  Extraordinary Results.