During the glorious month of December, court is closed for two weeks. For us district court assistant district attorneys, that means our work load is dramatically decreased to almost zero. Thus, I had a lot of vacation time, which I thoroughly enjoyed. Of course, there is a catch. First appearances still must occur, even if the courthouse is closed. When that happens, we conduct them at the jail.
My colleagues took the first week of first appearances, so, in all fairness, I took the second week, which included first appearances for Christmas Eve and the day after Christmas. These first appearances occur in the jail, as the bailiffs have these days off. The total ambiance for the hearings is a bit more informal, as the clerk and the judge are wearing jeans and a casual shirt. It also doesn't help that telephone calls are coming in, and, during Christmas Eve, a fight (over a chess game) broke out. The day after Christmas, however, was a bit more informal than most.
I got to the jail at the same time as the clerk, and we go inside together. As we walk through the second locked door, I immediately hear screaming and yelling. There is a holding cell not but ten feet from where we will conduct the hearings. Apparently, an inmate was acting a fool prior to our arrival, and he was placed in this holding cell. The usual string of f-bombs were dropped, but at one point, he became really amusing.
Inmate: [yelling] I STAND NAKED BEFORE GOD, AND I AM NOT ASHAMED.
Inmate: [yelling] I AM NAKED AND NOT ASHAMED.
At this point I glance up from my files, and I see the inmate (from the waist up you dirty minded reader) and he has taken his (not-surprisingly) red jumpsuit off (red equals crazy). There are about three jail officers there trying to subdue him. I don't pay much more visual attention to the inmate, although I couldn't ignore his shouting. He continued with this mantra, stating over and over again that he was not ashamed. Then, his shouts changed.
Inmate: [yelling] WHY DIDN'T YOU LOOK AT MY DICK?
I didn't think he was talking to me at this point, so I just barely smiled and continued putting court dates on the files.
Inmate: [yelling] WHY DIDN'T YOU LOOK AT MY DICK? I AM NOT ASHAMED. WHY DIDN'T YOU LOOK AT MY DICK.
After he asked this question, one of the officers told me that he was speaking to me. I just smiled, and, much to my surprise, did not respond to the inmate's query. The inmate continued repeating his question, and then an officer told him that he was speaking to a D.A.
Inmate: [yelling] I DON'T GIVE A FUCK IF THAT IS THE PRESIDENT OF THE UNITED STATES. I WANNA KNOW WHY YOU DIDN'T LOOK AT MY DICK. I AM NOT ASHAMED. I KNOW IT IS ONLY 6 INCHES NOW; BUT IT GROWS TO 8 INCHES WHEN ITS HARD. I KNOW ITS SMALL, BUT I AM NOT ASHAMED.
He kept going until the judge showed up and told him he'd be held in contempt if he continued with his behavior. The inmate did quiet down considerably, although at some point he mimicked the Woody-Woodpecker call, which we all found amusing.
As an aside, the inmate was charged with two counts of Taking Indecent Liberties with a Child. He was accused of kidnapping two children from the local Y and then doing inappropriate things with them. Not just a pederass, but a crazy pederass.
Thursday, December 27, 2007
Thursday, December 13, 2007
Random Quotes from Me
Sometimes, I say things in court that do not merit an entire entry. So, the following represent various snippets of things I said in court.
1. During a first appearance, over a video monitor, where the defendant was sleeping:
Me: "McFly....[tapping the microphone]...McFly......McFly."
The defendant did finally wake up, and, not surprisingly, she was charged with one count of prostitution and one count of drug paraphanalia.
2. During a trial for carrying a concealed weapon, where the defense attorney claimed the defendant's weapon was not concealed because he was wearing a shorter sports jacket which clearly showed the defendant's handgun.
Me: "What kind of man would go to a sports bar on a Friday night with a short tailored jacket [at this time, I have hiked my own jacket up to my upper-chest, and walking around to show the judge how ridiculous such an explanation was]?"
3. During a trial for an unsafe movement.
Me: "One of the greatest things about North Carolina is that we have some of the longest yellow lights. You go up to Massachuesetts and their yellow lights are like blips on a radar screen. I have holes in my car where my mother has grabbed the console and the car door as I tore through one of our long yellow lights."
4. At a motion to dismiss at the end of the State's evidence for a trial on an Assault on a Female.
Me: "Of course, Your Honor, the standard for review for a motion to dismiss at the end of the State's evidence is that, in the light most favorable to the State, has the State put forth enough evidence of each of the elements of the crime charged. Your Honor, may I approach. [My motion was granted, and I retrieved about 20 photographs of the victim's injuries.] The defendant states, through his motion, that the State has not provided enough evidence. The State just points to these pictures, Your Honor. What evidence has the State provided?
[Going trough the pictures] Bruise, bruise, bruise, bruise, cut, scrape, bruise, bruise, bruise, I don't know what this picture shows, bruise, bruise, bruise.
In the light most favorable to the State, Your Honor, we have put forth enough evidence, and we would ask that you deny the defendant's motion.
The Court: With all due respect, the Court will deny the defendant's motion.
1. During a first appearance, over a video monitor, where the defendant was sleeping:
Me: "McFly....[tapping the microphone]...McFly......McFly."
The defendant did finally wake up, and, not surprisingly, she was charged with one count of prostitution and one count of drug paraphanalia.
2. During a trial for carrying a concealed weapon, where the defense attorney claimed the defendant's weapon was not concealed because he was wearing a shorter sports jacket which clearly showed the defendant's handgun.
Me: "What kind of man would go to a sports bar on a Friday night with a short tailored jacket [at this time, I have hiked my own jacket up to my upper-chest, and walking around to show the judge how ridiculous such an explanation was]?"
3. During a trial for an unsafe movement.
Me: "One of the greatest things about North Carolina is that we have some of the longest yellow lights. You go up to Massachuesetts and their yellow lights are like blips on a radar screen. I have holes in my car where my mother has grabbed the console and the car door as I tore through one of our long yellow lights."
4. At a motion to dismiss at the end of the State's evidence for a trial on an Assault on a Female.
Me: "Of course, Your Honor, the standard for review for a motion to dismiss at the end of the State's evidence is that, in the light most favorable to the State, has the State put forth enough evidence of each of the elements of the crime charged. Your Honor, may I approach. [My motion was granted, and I retrieved about 20 photographs of the victim's injuries.] The defendant states, through his motion, that the State has not provided enough evidence. The State just points to these pictures, Your Honor. What evidence has the State provided?
[Going trough the pictures] Bruise, bruise, bruise, bruise, cut, scrape, bruise, bruise, bruise, I don't know what this picture shows, bruise, bruise, bruise.
In the light most favorable to the State, Your Honor, we have put forth enough evidence, and we would ask that you deny the defendant's motion.
The Court: With all due respect, the Court will deny the defendant's motion.
God's Gift To Women
Charge: Assault of a Female
Caveat: I'm really torn about Assault on a Female charges. I understand and believe that there is a cycle of violence. I believe that victims of domestic violence usually return to her abuser and tend to rationalize/execuse/forgive the physical and verbal abuse laid upon them by her partner. Knowing about this cycle, I hate it when an alleged victim of an Assault on a Female approaches me and states, "I want to drop the charges." I'm torn because, generally, I believe that, indeed, an act of violence has occurred. At the same time, I do believe that once we attain adulthood, we all have the right to make decisions for ourselves, even if those decisions are bad ones. I also have a legal problem that, when my prosecting witness tells me, "It didn't happen that way," or, "The magistrate misunderstood me; that didnt' happen," then what am I to do, as a prosecutor, who takes her oath regarding serving justice and not prosecuting crimes for which probable cause does not exist, seriously? For now, I decide my cases on a case by case basis. I'm not afraid to dismiss a case, if the prosecuting witness does present as believable. I'm also not afraid to call the case and make the prosecuting witness state in open court that she does not wish to prosecute. Luckily for me, this next case, the prosecuting witness did want to prosecute.
The victim looked homely. When she looked at me, I couldn't decide which eye to look into, for one gazed off to my right and the other gazed to my left. She explained the situation, and I told her that we would have a trial and explained what would be involved.
When she testifies, the one thing that sticks out in my mind is when she stated, "I came to accept that part of our relationship." When I asked her to explain, she stated,"I just accepted that he would always have pornography. I guess it never bothered me too greatly because those women were unattainable. This was different, because it seemed to me that she was attainable. She was real, and it made me mad."
The incident started with the victim discovered several pictures of a naked woman on her fiance's cell phone. She had asked him to delete them, but the very next day, they were still there. That's when the prosecuting witness slapped the defendant across the face. From there, the two individual's stories differ. She stated that she slapped him once then left the room to get the child they have in common. She stated that he followed her into another room and began to beat her about the arms and neck. She then stated that she went to the local fire department and called the police.
He stated that she slapped him but not just one time. When he testified, he stated that he did, indeed, receive photos of a nude woman. He didn't know who this woman was, and his wife found them on his cell phone. He said that he did delete them, but he had a friend who was more technical savy than himself reload the pictures onto the cell phone so that he could prove to his wife that he did erase the pictures. [Yes, you read that sentence correctly. He actually stated that on direct examination.] Then it was my turn to cross examine the defendant. The following is a snippet of that cross-examination.
Me: So you had pictures of a naked woman on your cell phone.
Defendant: Yes.
Me: You didn't know who this woman was?
Defendant: No. I had no clue.
Me: Yet, this woman, who you have no idea who she is, sent you, of all the people in the worl, pictures of herself nude?
Defendant: Yes.
Me: Your fiance discovered these pictures of a naked woman, who you don't know, on your cell phone?
Defendant: Yes.
Me: She asked you to delete them?
Defendant: Yes, and I did delete them.
Me: But you wanted to prove to your fiance that you did delete them, so you had a friend reload them on your cell phone?
Defendant: Yeah.
Me: And your fiance found these photographs?
Defendant: Yeah, she took my cell phone when I was asleep and saw the photos. I tried to explain that I had the deleted and I want to show her that I did delete them, but she just got mad at me.
In my closing argument, I stated that the defendant's testimony should not be believed because, right off the bat, the defendant wanted to believe that some woman, whom the defendant does not know, sent him pictures of herself naked. [I should interject here that the defendant was not an attractive man, in any true sense of the word.] Of all the men in the world, this woman sent the defendant pictures of her naked body. Your Honor, that testimony is not credible.
Caveat: I'm really torn about Assault on a Female charges. I understand and believe that there is a cycle of violence. I believe that victims of domestic violence usually return to her abuser and tend to rationalize/execuse/forgive the physical and verbal abuse laid upon them by her partner. Knowing about this cycle, I hate it when an alleged victim of an Assault on a Female approaches me and states, "I want to drop the charges." I'm torn because, generally, I believe that, indeed, an act of violence has occurred. At the same time, I do believe that once we attain adulthood, we all have the right to make decisions for ourselves, even if those decisions are bad ones. I also have a legal problem that, when my prosecting witness tells me, "It didn't happen that way," or, "The magistrate misunderstood me; that didnt' happen," then what am I to do, as a prosecutor, who takes her oath regarding serving justice and not prosecuting crimes for which probable cause does not exist, seriously? For now, I decide my cases on a case by case basis. I'm not afraid to dismiss a case, if the prosecuting witness does present as believable. I'm also not afraid to call the case and make the prosecuting witness state in open court that she does not wish to prosecute. Luckily for me, this next case, the prosecuting witness did want to prosecute.
The victim looked homely. When she looked at me, I couldn't decide which eye to look into, for one gazed off to my right and the other gazed to my left. She explained the situation, and I told her that we would have a trial and explained what would be involved.
When she testifies, the one thing that sticks out in my mind is when she stated, "I came to accept that part of our relationship." When I asked her to explain, she stated,"I just accepted that he would always have pornography. I guess it never bothered me too greatly because those women were unattainable. This was different, because it seemed to me that she was attainable. She was real, and it made me mad."
The incident started with the victim discovered several pictures of a naked woman on her fiance's cell phone. She had asked him to delete them, but the very next day, they were still there. That's when the prosecuting witness slapped the defendant across the face. From there, the two individual's stories differ. She stated that she slapped him once then left the room to get the child they have in common. She stated that he followed her into another room and began to beat her about the arms and neck. She then stated that she went to the local fire department and called the police.
He stated that she slapped him but not just one time. When he testified, he stated that he did, indeed, receive photos of a nude woman. He didn't know who this woman was, and his wife found them on his cell phone. He said that he did delete them, but he had a friend who was more technical savy than himself reload the pictures onto the cell phone so that he could prove to his wife that he did erase the pictures. [Yes, you read that sentence correctly. He actually stated that on direct examination.] Then it was my turn to cross examine the defendant. The following is a snippet of that cross-examination.
Me: So you had pictures of a naked woman on your cell phone.
Defendant: Yes.
Me: You didn't know who this woman was?
Defendant: No. I had no clue.
Me: Yet, this woman, who you have no idea who she is, sent you, of all the people in the worl, pictures of herself nude?
Defendant: Yes.
Me: Your fiance discovered these pictures of a naked woman, who you don't know, on your cell phone?
Defendant: Yes.
Me: She asked you to delete them?
Defendant: Yes, and I did delete them.
Me: But you wanted to prove to your fiance that you did delete them, so you had a friend reload them on your cell phone?
Defendant: Yeah.
Me: And your fiance found these photographs?
Defendant: Yeah, she took my cell phone when I was asleep and saw the photos. I tried to explain that I had the deleted and I want to show her that I did delete them, but she just got mad at me.
In my closing argument, I stated that the defendant's testimony should not be believed because, right off the bat, the defendant wanted to believe that some woman, whom the defendant does not know, sent him pictures of herself naked. [I should interject here that the defendant was not an attractive man, in any true sense of the word.] Of all the men in the world, this woman sent the defendant pictures of her naked body. Your Honor, that testimony is not credible.
Wednesday, November 14, 2007
Guilty with an Explanation
In general district court, which differs from waiver court (about which I have written previously), every day starts with the call of the calendar. In general district court, there is one of four acceptable responses, when answering calendar call, as I explain in my opening announcement every day. If a defendant has an attorney, he or she should respond, "attorney." If a defendant wishes to have his or her case continued, then he or she should respond, "continuance." Following suit, if a defendant wishes to have his or her case heard that day and wishes to plead guilty to the charges, then the defendant should respond, "guilty." Inevitably, there is always one defendant who responds, "Guilty, with an explanation." It is so common, that it is almost its own separate response to the question, "How do you plead.?" Normally, I just thank the defendant, for his or her response (it should be noted that I also thank the defendants who plead not guilty), and I move right along. Normally, such a response does not cause any further delay.
Yesterday, however, was a different matter.
The incident occurred during first appearances. First appearances, like the bond motions (about which I have previously written) also take place over various monitors. The judge instructs the defendant of his charges and what the maximum sentence the defendant could receive if convicted of those charges. Sometimes, defendants wish to go ahead a plead guilty, especially if they have been in jail because they couldn't make bond.
Judge: What is your name?
Defendant: Ja-ja-ja-ja-John Da-da-da-da-da-Doe.
Judge: You have been charged with misdeamonor larceny, which carries a maximum sentence of 120 days. What would you like to do about an attorney--hire your own, ask for court appointed counsel, or represent yourself?
Defendant: Ya-ya-ya-ya-Your Huh-huh-huh-huh-Honor? I-i-i-i-i-I ha-ha-ha-have a-a-a-a spa-spa-spa-speech imped-ped-ped-impediment?
Judge: Okay. What would you like to do with an attorney?
At this point, a representative from pretrial services whispered to me that the defendant wanted to go ahead and plead guilty. So, I decided to try to speed this matter along, and I interrupted.
Me: Your Honor, it is my understanding that the defendant would like to plead guilty today, and, if that is true, the State would agree to take his guilty plea.
Judge: Thank you. Mr. Doe, do you want to represent yourself, then?
Defendant: Ya-ya-ya-Yes.
Judge: Then sign the form that the bailiff is handing you, and box two should be checked indicating that you wish to represent yourself. [Defendant signs the form.] Madame, DA?
Me: Mr. Doe, how do you plead to one count of stealing one can of beer from Coverleaf Grocery store?
Defendant: Ga-ga-ga-Guilty wa-wa-wa-with an-an-an-an explana-na-na-tion.
At this point, I turn to another attorney sitting next to me and say, "Of course it would have to be guilty with an explanation." For the next ten minutes, the defendant attempted to explain what happened and tried to speak of his bond. At this point, it is about 1:15, and lunch was supposed to be 45 minutes prior. Being that I was very hungry and my patience had come low, I interrupted the defendant and stated, "Your Honor, the State does not object to time served."
At this point the defendant stopped speaking and smiled, and the judge said, "So ordered."
Yesterday, however, was a different matter.
The incident occurred during first appearances. First appearances, like the bond motions (about which I have previously written) also take place over various monitors. The judge instructs the defendant of his charges and what the maximum sentence the defendant could receive if convicted of those charges. Sometimes, defendants wish to go ahead a plead guilty, especially if they have been in jail because they couldn't make bond.
Judge: What is your name?
Defendant: Ja-ja-ja-ja-John Da-da-da-da-da-Doe.
Judge: You have been charged with misdeamonor larceny, which carries a maximum sentence of 120 days. What would you like to do about an attorney--hire your own, ask for court appointed counsel, or represent yourself?
Defendant: Ya-ya-ya-ya-Your Huh-huh-huh-huh-Honor? I-i-i-i-i-I ha-ha-ha-have a-a-a-a spa-spa-spa-speech imped-ped-ped-impediment?
Judge: Okay. What would you like to do with an attorney?
At this point, a representative from pretrial services whispered to me that the defendant wanted to go ahead and plead guilty. So, I decided to try to speed this matter along, and I interrupted.
Me: Your Honor, it is my understanding that the defendant would like to plead guilty today, and, if that is true, the State would agree to take his guilty plea.
Judge: Thank you. Mr. Doe, do you want to represent yourself, then?
Defendant: Ya-ya-ya-Yes.
Judge: Then sign the form that the bailiff is handing you, and box two should be checked indicating that you wish to represent yourself. [Defendant signs the form.] Madame, DA?
Me: Mr. Doe, how do you plead to one count of stealing one can of beer from Coverleaf Grocery store?
Defendant: Ga-ga-ga-Guilty wa-wa-wa-with an-an-an-an explana-na-na-tion.
At this point, I turn to another attorney sitting next to me and say, "Of course it would have to be guilty with an explanation." For the next ten minutes, the defendant attempted to explain what happened and tried to speak of his bond. At this point, it is about 1:15, and lunch was supposed to be 45 minutes prior. Being that I was very hungry and my patience had come low, I interrupted the defendant and stated, "Your Honor, the State does not object to time served."
At this point the defendant stopped speaking and smiled, and the judge said, "So ordered."
Monday, November 5, 2007
I Never Forget a Face
It is rare that I have to converse with a defendant regarding his or her case outside of the four walls of 3C. On occasion, it does happen. Sometimes, I encounter defendants in the most awkward situations. One time, when I was still wet behind the ears in my prosecutorial career, I went to a watering hole. This watering hole was within the confines of a hotel, as the the place in which I was living did not have any freestanding bars with windows. As a rule, I do not frequent bars without windows. Well, I don't make four steps, when out of no where comes this voice, "Madame, D.A." Those two words, spoken out of court, made me stop in my tracks. I looked around frantically, when the host at the bar smiled at me. He then proceeded to tell me all about how he had previously gotten into trouble, of which the direct result was that he shot himself in the face. He pointed out a thin, pink scar that traveled crookedly up his right cheek. He informed he that he was better now and asked that I show mercy to him next week when his other cases scheduled. It was one of the more awkward moments of my non-teenage years that I remember.
Today, I had another encounter with a defendant outside of court, although less awkward. Today's calendar was a small one, and all the cases were moved before we broke for lunch. While I was in my office catching up on some paperwork, I was told that someone was there to see me. I go to the receptionist area of the office, and I see a young man with dreads and a multi-colored New York Yankees ball cap. The first thing I noticed about him was his "grill." For those of you not in the know, a "grill" is gold teeth that the youth today sometimes feel the need to insert into their mouths. Prior to prosecuting juvenile delinquents, I was under the impression that all "grills" were the same. I learned, in a middle of a trial no less, that "grills" must be fitted. The young man before me had an impressive "grill," both top and bottom teeth shimmered in gold.
The following is just a snippet of our conversation:
Him: You remember me. I have the weirdest name you have ever heard.
Me: I see a lot of people, sir. I don't recognize the name.
Him: I was in court last week. I got a failure to appear and an order for arrest was issued, but I was in court. You gave me my next court date. Don't you remember?
Him: I remember seeing you, although I cannot remember the date. I see a lot of people, but I recognize you. I remember seeing your tattoos.
Him: That's right. I saw you looking at them in court that day.
Me: Well, they're on your face...so...I was going to look at them.
The defendant had four Chinese figures at various points on his face. I do recall speaking to this young man in court that day. I also recall that while I was speaking to him I kept thinking, "You have four tattoos on your face." I might not have remembered his name, but I didn't forget his face.
Today, I had another encounter with a defendant outside of court, although less awkward. Today's calendar was a small one, and all the cases were moved before we broke for lunch. While I was in my office catching up on some paperwork, I was told that someone was there to see me. I go to the receptionist area of the office, and I see a young man with dreads and a multi-colored New York Yankees ball cap. The first thing I noticed about him was his "grill." For those of you not in the know, a "grill" is gold teeth that the youth today sometimes feel the need to insert into their mouths. Prior to prosecuting juvenile delinquents, I was under the impression that all "grills" were the same. I learned, in a middle of a trial no less, that "grills" must be fitted. The young man before me had an impressive "grill," both top and bottom teeth shimmered in gold.
The following is just a snippet of our conversation:
Him: You remember me. I have the weirdest name you have ever heard.
Me: I see a lot of people, sir. I don't recognize the name.
Him: I was in court last week. I got a failure to appear and an order for arrest was issued, but I was in court. You gave me my next court date. Don't you remember?
Him: I remember seeing you, although I cannot remember the date. I see a lot of people, but I recognize you. I remember seeing your tattoos.
Him: That's right. I saw you looking at them in court that day.
Me: Well, they're on your face...so...I was going to look at them.
The defendant had four Chinese figures at various points on his face. I do recall speaking to this young man in court that day. I also recall that while I was speaking to him I kept thinking, "You have four tattoos on your face." I might not have remembered his name, but I didn't forget his face.
Wednesday, October 31, 2007
Pulling a Certified Nurse Out of My Pocket
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.
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.
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.
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