The bread and butter of district court trials is the Driving While Impaired charge. It is the first degree murder case of district court. Experts are tendered, SBI Blood Lab Results are introduced, and Constitutional case names are thrown around like beads at a Mardi Gras parade.
For me, I have a love/hate relationship with DWIs. I love the Constitutional parameters that have each and everyone. I love that we take them seriously, as I can really work myself to give a convincing closing argument. What I hate about them are all the foundational hoops that I have to walk through. It's not that I don't want to lay these foundations. It is that these foundations are time consuming, and, in the end, I'll be able to lay them. I hate that it seems that the facts rarely differ, and I seem to be having the same trial just with different faces. On the other hand, however, I like the challenge of creating different arguments that say the same thing: He was drunk, and he was driving.
Today, I had a Driving While Impaired case that presented a different challenge. The State's evidence showed that the defendant was not impaired solely by alcohol. The defendant's blood work indicated he had a mixture of both alcohol (although not a sufficient amount by itself for a conviction) and prescription drug medicine in his system. I did not recognize the prescription drug, and I did not think the judge would recognize it immediately. So, I had a problem. How was I going to get into evidence what this drug was, and, more importantly, what it's possible side effects were?
Luckily for me, most of our trials cannot take place until after we reconvene after lunch. So, I had approximately 30 minutes to figure out how I was going to do overcome this challenge. Now, don't get me wrong. We were given an hour and half for lunch, but I gotta eat. I'm going to take my time and have my food digest, if I am given an hour and half for lunch. So, after finishing my chicken soup, I go see my colleagues. I immediately go to someone who, although now in Super Court, was recently in district court. I tell her about my case and ask her how I could get this information in. She hands me the Physicians Desk Reference Manual, Nurse's Drug Handbook edition. She actually has the prescription drug in the defendant's system tabbed. I read what the reference book states, specifically how it might cause drowsiness and warns to avoid alcohol when taking the medication.
Great! I have information that is evidence, and good evidence at that. My next dilemma is how to get it in. My colleague suggests trying to offer it as a learned treatise. We look up the evidence rule, and I see the Learned Treatise doctrine only falls under the Hearsay Exceptions. So, that means I have to a witness to testify, and, at this moment, I don't. My colleague has a meeting with family members of a homicide victim, and she leaves. I go down the hall to my next colleague. I explain the situation and ask him if my understanding of the Learned Treatise is his understanding. He concurs, and we both start speaking of the Judicial Notice doctrine. I could have made a good faith effort that this reference manual, which is widely known to be used by medical professionals, could be offered under the Judicial Notice doctrine. Both my colleague and I, however, had our doubts as to the success of that endeavor. While we are discussing this, my supervisor walks in. We update him on my dilemma, when my colleague states, "If only we had a pharmacist nearby." I replied, "Yeah, but where are we going to get one in fifteen minutes." That's when my boss said, "You know our other district court assistant district attorney is a nurse. I bet she could testify."
Sure enough, after the end of my officer's testimony, I stand up and say, "Your honor, at this point, I have a copy of the Physician Desk Reference, Nurse's Drug Handbook here that I am going to ask the Court to take judicial notice of. Of course, I do have a certified nurse present and ready to testify if Your Honor really wanted to hear that it is reliable source that is used by the medical profession in understanding prescription drugs." At this point, the defense attorney asks where the nurse is. I point to my colleague and state that she is also a certified nurse. The court then asked, "How long?" She stated, "Seventeen years. In the Critical Care Department, and we used this book to help diagnose and manage patient's medication." At this point, the defense attorney said that he would not object and the Court agreed that it could take judicial notice of the reference.
Later on, the defense attorney told me that he was pretty confident walking in to court that day, because for two to three times prior, the State didn't have a blood result, and today was our final date to produce the blood results. Suddenly, seemingly to him, not only did I pull the blood results out of my pocket, but, more importantly, I pulled a certified nurse out of my pocket.
Wednesday, October 31, 2007
Some Snippets of Statements During a Bond Motion
Bond motions are generally not a complicated affair, especially in district court. It is my unfounded belief that the underlying motivation of a bond motion in district court is to let the defendant know and see, first hand, that his or her attorney is, indeed, involved in the case. In a lot of instances, it seems that the bond is reasonable and generally cannot be lowered any further, or, the bond was recently established, in which case, the bond motion is heard, again in my humble opinion, too early. I do not fault criminal defense attorneys for this underlying motive. Having had clients who (1) do not listen to the advice of counsel, meaning my advice, and (2) get mad at you when they do not follow your advice and wind up in more trouble, I understand filing bond motions to keep your clients happy. I do. Another reason why I do not mind bond motions too much is because they give another opportunity for random and bizarre statements. The following statements were made during a bond motion yesterday.
Charge: 2 Counts of Trafficking a Schedule II Controlled Substance (Cocaine)
Bond: $105,000
The defendant appears on four televisions screens placed throughout the courtroom. He is wearing the standard orange jumpsuit, and he has a stoic, unfeeling look about him. Although the defendant is currently housed in the jail which is in the building next door to the courtroom, he is able to see the judge, the prosecutor, representatives from Pretrial Services (a wonderful service which interviews inmates in order to present relevant information to the court regarding a defendant's conditions of release from jail), and the defense attorney.
The defense attorney, who is wearing a stylish, conservative suit, sits down. Behind him are about seven or eight of the defendant's friends and family, including two of the defendant's ex-girlfriends. Unlike the defense attorney, they are all in different classifications of attire, although I would not characterize any of the attire as stylish and conservative. They have all come on the defendant's behalf in an attempt to have the judge lower the bond. The defense attorney speaks first, as it is his bond motion.
The defense attorney speaks of the defendant's long-standing ties to the community. He mentions and points out to the court the friends and family of the defendant. Apparently, the defendant has small children, and the defendant believes, if released, he will be able to maintain the job that he currently has. The defense attorney continues to speak. While he is speaking, I am flipping through the Prosecution Summary, which law enforcement provides whenever the defendant is charged with a felony.
After the defense attorney finishes, the judge looks to me. I inform the court that the defendant is charged with Trafficking, and, in fact, twice the amount necessary for a Trafficking charge was located on the defendant's person. It was at this juncture that the following exchanges occurred:
Judge: How many grams is two and a quarter ounces?
Me: I don't know Judge. I'm an American and refuse to convert to the metric system.
Officer: A gram is about one packet of Sweet-N-Low.
Different Officer: I think an ounce is something like eighteen or nineteen grams.
Me: It seems the defendant was found with approximately fifty-six Sweet-N-Low packets of crack. Your Honor, I should mention that the crack was found in his crotch area.
Judge: How many grams is a crack rock?
Me: I don't know.
Judge: How much is the street value for 26 grams of cocaine?
Me: I don't know, Your Honor.
Officer: I don't know right of the top of my head. I wasn't on vice.
Audience Member: About $2,500.
Judge: It's probably best for the audience members not to answer these questions.
Charge: 2 Counts of Trafficking a Schedule II Controlled Substance (Cocaine)
Bond: $105,000
The defendant appears on four televisions screens placed throughout the courtroom. He is wearing the standard orange jumpsuit, and he has a stoic, unfeeling look about him. Although the defendant is currently housed in the jail which is in the building next door to the courtroom, he is able to see the judge, the prosecutor, representatives from Pretrial Services (a wonderful service which interviews inmates in order to present relevant information to the court regarding a defendant's conditions of release from jail), and the defense attorney.
The defense attorney, who is wearing a stylish, conservative suit, sits down. Behind him are about seven or eight of the defendant's friends and family, including two of the defendant's ex-girlfriends. Unlike the defense attorney, they are all in different classifications of attire, although I would not characterize any of the attire as stylish and conservative. They have all come on the defendant's behalf in an attempt to have the judge lower the bond. The defense attorney speaks first, as it is his bond motion.
The defense attorney speaks of the defendant's long-standing ties to the community. He mentions and points out to the court the friends and family of the defendant. Apparently, the defendant has small children, and the defendant believes, if released, he will be able to maintain the job that he currently has. The defense attorney continues to speak. While he is speaking, I am flipping through the Prosecution Summary, which law enforcement provides whenever the defendant is charged with a felony.
After the defense attorney finishes, the judge looks to me. I inform the court that the defendant is charged with Trafficking, and, in fact, twice the amount necessary for a Trafficking charge was located on the defendant's person. It was at this juncture that the following exchanges occurred:
Judge: How many grams is two and a quarter ounces?
Me: I don't know Judge. I'm an American and refuse to convert to the metric system.
Officer: A gram is about one packet of Sweet-N-Low.
Different Officer: I think an ounce is something like eighteen or nineteen grams.
Me: It seems the defendant was found with approximately fifty-six Sweet-N-Low packets of crack. Your Honor, I should mention that the crack was found in his crotch area.
Judge: How many grams is a crack rock?
Me: I don't know.
Judge: How much is the street value for 26 grams of cocaine?
Me: I don't know, Your Honor.
Officer: I don't know right of the top of my head. I wasn't on vice.
Audience Member: About $2,500.
Judge: It's probably best for the audience members not to answer these questions.
Monday, October 29, 2007
Address the Court, Please
After waiver court, I went to general district court, the focus of which is mainly traffic offenses and misdemeanor crimes. Another assistant district attorney was handling the docket, but it was a rather large docket, and I wanted to help. I did not conduct any trials today, but I stayed and watched a few. The following has a bizarre set of facts.
Charge: Assault on a Child Under Twelve.
The defendant was charged with assaulting a ten year old boy. From what I gathered, and granted I did not pay very close attention and left the courtroom in order to retrieve some driving records on unrelated matters, the defendant belonged to an after-school program that monitored children. This after-school program had the brilliant idea (by brilliant I mean absolutely ludicrous) of having a pie throwing event which involved children throwing pies at other humans.
Well, apparently, the defendant, although she did not agree that this pie throwing event was such a good idea, participated in it. The victim, a ten year old boy, threw a pie at the defendant who became angered that she got pie on her clothing. She chased (the defendant stated "followed") the boy across the room and retaliated by throwing a pie at the ten year old boy. At this point, the State's version of events and the Defendant's version of events differ. The State's version of events have the Defendant pushing the ten year old boy into a cubby area which left scratches and marks on the boy's body. The State did introduce pictures of the boy into evidence. I was not present for all of the Defendant's testimony, but I believe she indicated that the boy did not fall and certainly was not pushed into any cubby area. I was also under the impression that the Defendant was claiming that the pictures of the cubby area were taken after certain objects were placed there to make it look as if the boy could have been scratched by metal objects.
Once the Defendant presented all of her evidence, which only included her testimony, the Defendant made a closing argument. During the closing argument, the Defendant turned and started addressing her argument to my fellow Assistant District Attorney. It should be said that previously, while testifying, the Defendant asked the judge why the Assistant District Attorney was shaking her head and "smirking." When the judge saw that the Defendant was addressing her closing argument to the Assistant District Attorney, the judge stated, "Don't speak to the Assistant District Attorney. Please address your remarks to the Court." The Defendant immediately turned her back to the judge and continued stating her closing argument to the audience members. The judge then had to inform the Defendant that, by "the court," the judge meant herself.
Charge: Assault on a Child Under Twelve.
The defendant was charged with assaulting a ten year old boy. From what I gathered, and granted I did not pay very close attention and left the courtroom in order to retrieve some driving records on unrelated matters, the defendant belonged to an after-school program that monitored children. This after-school program had the brilliant idea (by brilliant I mean absolutely ludicrous) of having a pie throwing event which involved children throwing pies at other humans.
Well, apparently, the defendant, although she did not agree that this pie throwing event was such a good idea, participated in it. The victim, a ten year old boy, threw a pie at the defendant who became angered that she got pie on her clothing. She chased (the defendant stated "followed") the boy across the room and retaliated by throwing a pie at the ten year old boy. At this point, the State's version of events and the Defendant's version of events differ. The State's version of events have the Defendant pushing the ten year old boy into a cubby area which left scratches and marks on the boy's body. The State did introduce pictures of the boy into evidence. I was not present for all of the Defendant's testimony, but I believe she indicated that the boy did not fall and certainly was not pushed into any cubby area. I was also under the impression that the Defendant was claiming that the pictures of the cubby area were taken after certain objects were placed there to make it look as if the boy could have been scratched by metal objects.
Once the Defendant presented all of her evidence, which only included her testimony, the Defendant made a closing argument. During the closing argument, the Defendant turned and started addressing her argument to my fellow Assistant District Attorney. It should be said that previously, while testifying, the Defendant asked the judge why the Assistant District Attorney was shaking her head and "smirking." When the judge saw that the Defendant was addressing her closing argument to the Assistant District Attorney, the judge stated, "Don't speak to the Assistant District Attorney. Please address your remarks to the Court." The Defendant immediately turned her back to the judge and continued stating her closing argument to the audience members. The judge then had to inform the Defendant that, by "the court," the judge meant herself.
What is the Greatest Phrase in the World, Alex?
Today, I was assigned to waiver court. Waiver court, although mundane and monotonous, is very enjoyable. Why? I enjoy waiver court because I am able to say one of the most awesome phrases known to man. I always open court with the following announcement:
Ladies and Gentlemen, my name is Leah [insert last name], and I am the Assistant District Attorney assigned to this courtroom today. I work on behalf of your elected District Attorney [insert name of the elected District Attorney]. Today, in this courtroom, there will be no trials. We are here today, because each of you have been charged with an offense that places your liberty in jeopardy. [Side note-your liberty in jeopardy is the most awesome phrase.] By "liberty in jeopardy," I mean that, if you are found guilty or plead guilty to the charge, it is possible that you could go to jail. I am not saying that it is likely that you will go to jail, but it is in the realm of possibilities. Because your liberty is in jeopardy, you have certain rights regarding an attorney. You have the right to hire your own attorney; you have the right to represent yourself; and you have the right to ask for the court to appoint an attorney in your case, which could be from the Public Defender's Office or it could be a private attorney appointed by the court in your case. By a court appointed attorney, I do not mean a free attorney. If you are found guilty or plead guilty to the charge, or any lesser included charge, you will be assessed a fifty dollar appointment fee and charged sixty-five dollars an hour for your attorney's time. So, when I call your name, I just need to know how you plan to handle your right to an attorney.
I also like waiver court because the courtroom itself only seats about 65 people. Inevitably, there are several individuals who come in late. I can always tell who comes in late, because when I say the individual's name, he or she answers, "not guilty," when the only appropriate answer relates to which avenue the individual is going to proceed with regard to hiring an attorney. Because there are several "late calls," I have the opportunity to state, in a very loud voice, the greatest phrase in the world. For me, it is the best way to start the week.
POST SCRIPT & ACKNOWLEDGEMENTS
In full candor to my reading audience, I cannot take credit (nor did I make such an attempt) for the creation of the greatest phrase in the world. I borrowed the phrase from the Honorable Judge Scott Ethridge who uttered the phrase when he conducted his first appearances. I enjoyed working with Judge Ethridge. He would always give a little preview as to what his sentence was going to be. I always knew that a defendant would be going to jail (his liberty was definitely in jeopardy), when Judge Ethridge stated, "Mr. Defendant, you have a fine attorney in Mr. Attorney. He did an excellent job defending your case today. You should shake his hand for the job that he did today. Mr. Defendant, my friend, this part is the worst party of my job...." Judge Ethridge would then sentence the defendant to jail. I could always tell when someone was going to be sporting the orange jumpsuit when Judge Ethridge called the defendant, "my friend," told him that his attorney did an excellent job, and noted what the worst part of his judge was.
Ladies and Gentlemen, my name is Leah [insert last name], and I am the Assistant District Attorney assigned to this courtroom today. I work on behalf of your elected District Attorney [insert name of the elected District Attorney]. Today, in this courtroom, there will be no trials. We are here today, because each of you have been charged with an offense that places your liberty in jeopardy. [Side note-your liberty in jeopardy is the most awesome phrase.] By "liberty in jeopardy," I mean that, if you are found guilty or plead guilty to the charge, it is possible that you could go to jail. I am not saying that it is likely that you will go to jail, but it is in the realm of possibilities. Because your liberty is in jeopardy, you have certain rights regarding an attorney. You have the right to hire your own attorney; you have the right to represent yourself; and you have the right to ask for the court to appoint an attorney in your case, which could be from the Public Defender's Office or it could be a private attorney appointed by the court in your case. By a court appointed attorney, I do not mean a free attorney. If you are found guilty or plead guilty to the charge, or any lesser included charge, you will be assessed a fifty dollar appointment fee and charged sixty-five dollars an hour for your attorney's time. So, when I call your name, I just need to know how you plan to handle your right to an attorney.
I also like waiver court because the courtroom itself only seats about 65 people. Inevitably, there are several individuals who come in late. I can always tell who comes in late, because when I say the individual's name, he or she answers, "not guilty," when the only appropriate answer relates to which avenue the individual is going to proceed with regard to hiring an attorney. Because there are several "late calls," I have the opportunity to state, in a very loud voice, the greatest phrase in the world. For me, it is the best way to start the week.
POST SCRIPT & ACKNOWLEDGEMENTS
In full candor to my reading audience, I cannot take credit (nor did I make such an attempt) for the creation of the greatest phrase in the world. I borrowed the phrase from the Honorable Judge Scott Ethridge who uttered the phrase when he conducted his first appearances. I enjoyed working with Judge Ethridge. He would always give a little preview as to what his sentence was going to be. I always knew that a defendant would be going to jail (his liberty was definitely in jeopardy), when Judge Ethridge stated, "Mr. Defendant, you have a fine attorney in Mr. Attorney. He did an excellent job defending your case today. You should shake his hand for the job that he did today. Mr. Defendant, my friend, this part is the worst party of my job...." Judge Ethridge would then sentence the defendant to jail. I could always tell when someone was going to be sporting the orange jumpsuit when Judge Ethridge called the defendant, "my friend," told him that his attorney did an excellent job, and noted what the worst part of his judge was.
Thursday, October 25, 2007
One Hundred Pound Titties
I was a juvenile prosecutor for twenty months. Every Friday, I would have trials which ranged in severity. I could have a Robbery With a Dangerous Weapon case on the same day as a misdemeanor larceny case. Most of the times, the juveniles would testify on their own behalf and present witnesses. The following summary is of one of my favorite cases.
Charge: Resist, Delay, Obstruct an Officer of the Law.
The juvenile, who was maybe thirteen, was the sibling of a student at a school. I called the school resource office who stated that the sibling and another student had previously had a heated discussion regarding something insignificant. After school let out, the two confronted each other, and they were about to fight. The school resource officer intervened. The school resource officer testified that the sibling then started to fight with him. The sibling took the school resource officer and pushed him. As this altercation continued, a car drove up and stopped. The sibling then pushed the school resource officer onto the top of this car. The struggle continue onto the schoolyard. During this scuffle, the officer testified that two individuals got out of the car. One of these individuals was the mother of the student, and the other was the juvenile-defendant, who was the student's younger sister. The juvenile-defendant tried to drag the officer off of her brother, which was why she was charged. The mother also intervened, and I believe received charges of her own.
After I rested my case, which was just the officer's testimony, the juvenile called her mother to testify on the juvenile's behalf. The mother testified that her son was being beaten up by the officer, so she got out of her car to help. The following is my cross-examination.
Me: So you got out the car?
Mom: Yes.
Me: Because you were upset that your son was being attacked?
Mom: Yes.
Me: Isn't it fair to say that your son was struggling with the officer when you got out of the car?
Mom: No. That's not what happened.
Me: So, are you saying that officer was incorrect when he said your son kept trying to confront the other student?
Mom: I was on top of [my son], and I had both my titties on him, and they weigh a hundred pounds each, so he wasn't goin' nowhere.
At this point, she kept on talking, but I had turned to the officer, who was sitting next to me, and whispered, "Did she just say 'titties'?" The officer nodded. Later on, a member of the audience came and said that while I was whispering the same question to the officer, the judge presiding had turned to the bailiff and whispered, "Did she just say 'titties'?"
She did. She said titties. For the record, I did not ask if, indeed, each of her breasts weighed one hundred pounds each, although they clearly did not. My estimation was that each teet weighed, at most, ten pounds.
Charge: Resist, Delay, Obstruct an Officer of the Law.
The juvenile, who was maybe thirteen, was the sibling of a student at a school. I called the school resource office who stated that the sibling and another student had previously had a heated discussion regarding something insignificant. After school let out, the two confronted each other, and they were about to fight. The school resource officer intervened. The school resource officer testified that the sibling then started to fight with him. The sibling took the school resource officer and pushed him. As this altercation continued, a car drove up and stopped. The sibling then pushed the school resource officer onto the top of this car. The struggle continue onto the schoolyard. During this scuffle, the officer testified that two individuals got out of the car. One of these individuals was the mother of the student, and the other was the juvenile-defendant, who was the student's younger sister. The juvenile-defendant tried to drag the officer off of her brother, which was why she was charged. The mother also intervened, and I believe received charges of her own.
After I rested my case, which was just the officer's testimony, the juvenile called her mother to testify on the juvenile's behalf. The mother testified that her son was being beaten up by the officer, so she got out of her car to help. The following is my cross-examination.
Me: So you got out the car?
Mom: Yes.
Me: Because you were upset that your son was being attacked?
Mom: Yes.
Me: Isn't it fair to say that your son was struggling with the officer when you got out of the car?
Mom: No. That's not what happened.
Me: So, are you saying that officer was incorrect when he said your son kept trying to confront the other student?
Mom: I was on top of [my son], and I had both my titties on him, and they weigh a hundred pounds each, so he wasn't goin' nowhere.
At this point, she kept on talking, but I had turned to the officer, who was sitting next to me, and whispered, "Did she just say 'titties'?" The officer nodded. Later on, a member of the audience came and said that while I was whispering the same question to the officer, the judge presiding had turned to the bailiff and whispered, "Did she just say 'titties'?"
She did. She said titties. For the record, I did not ask if, indeed, each of her breasts weighed one hundred pounds each, although they clearly did not. My estimation was that each teet weighed, at most, ten pounds.
Introduction
I am one of the few people that I know who knew exactly what they wanted to be. Ever since I was in the fifth grade, I wanted to be an attorney. Not only did I want to be an attorney, I wanted to be a prosecutor. I thought that I would start out being a prosecutor and then evolve into being the first female Chief Justice of the United States Supreme Court.
Well, I am not bound for judgeship. I am pretty satisfied with being a prosecutor. I know for certain that my profession and my personality are in perfect harmony together, for I left the District Attorney's Office for a brief, although seemingly infinite to me, period of time. During that detour, I realized fully how much of an effect my profession had on my happiness. While in private practice, I felt differently. It felt as if I woke up one day as a different person with flashes of memories from my previous life. I struggled to become comfortable in my new place, but I failed miserably. I sat down and wrote to my previous employer, asking for my old job back. I am extremely grateful that I was granted this request but two months later.
I am at peace with my new self, feeling natural. I must admit that I was a bit nervous, wondering if I would be successful again. Although there is always room for improvement, I am relieved to know that my trial skills returned. I hope, in this medium, to convey some of the trials in which I participated.
In the posts to follow, whether they be short or lengthy, I hope to convey some of the best (and worst) of the trials that I have either participated in or have observed. I hope that my readers, if there are any, enjoy.
Subscribe to:
Posts (Atom)
