Dangerous Witnesses You Can’t Cross Examine: The Unreliability of Alcohol Breath Tests and OVI/DUI Defense

Alcohol breath-test machines are no stranger to criminal defense attorneys who defend OVI/DUI cases. Whether the arresting agency is a municipal police department or the Ohio State Highway Patrol, defendants arrested for OVI are always presented with a choice: to blow or not to blow.

Those who submit to the alcohol breath test and register a blood alcohol concentration of .08 or greater are presumed intoxicated (and therefore guilty) by virtue of the machine’s conclusion. Prior to the Ohio Supreme Court’s decision in Cincinnati v. Ilg, 141 Ohio St.3d 22 (2014), OVI/DUI defendants in Ohio were not even permitted to challenge the accuracy or credibility of breath test results in court. This is a startling reality, as these machines are notoriously unreliable for a myriad of potential reasons.

On November 3, 2019, the New York Times published an article summarizing a nationwide Times investigation into the reliability of alcohol breath test machines.

The Times interviewed over 100 individuals – lawyers, scientists, and police officers, among others – about their knowledge and/or experience with breath test machines. John Fusco, an executive who ran a company that manufactures the machines, told them they “were never meant to be used” as the “de facto arbiters of guilt” they’ve become in courts all over the country. Multiple judges in various states expressed their distrust of the tests, and a group of prosecutors in Pennsylvania reported they no longer use them in light of the unreliability of results.

According to the report, many of the machine’s issues are products of human error – improper calibration, expired or tainted chemical solution, and software-programming mistakes are common examples of defects that may render invalid results. The article detailed several cases where alcohol breath tests were excluded from evidence as invalid or unreliable. A series of suppressions which occurred in Massachusetts (to the tune of over 36,000 breath tests) was classified as “one of the largest exclusions of forensic evidence in American history.” Between Massachusetts and New Jersey, there are at least 42,000 convictions premised upon invalidated breath test results, the Times reported.

The article also summarized the origin of alcohol breath test machines – a unique perspective absolutely worthy of review. According to the Times, the first of these machines was invented near the end of the Prohibition. Two decades later, a police photographer and amateur chemist invented a similar device – “the Breathalyzer.” The nickname that stuck.

The Times’ article can be found here. Whether you are already experienced in challenging the validity and reliability of alcohol breath test results, or are just beginning to learn the complexities of OVI/DUI defense, it is truly worth the read.

Criminal Rule 16 and Discovery of LEADS Reports Under R.C. § 5503.101

Many criminal defense attorneys, especially those of us who regularly defend in traffic cases, have long recognized the value of the reports generated by LEADS (Law Enforcement Automated Data System). Our clients benefit from the disclosure of LEADS information in criminal and traffic cases because LEADS provides specific data regarding a subject’s criminal and traffic history that is neither a matter of public record nor accessible via other, independent means.

The data provided by LEADS is managed by the Ohio Highway Patrol, and the system draws from information gathered by the NCIC (National Crime Information Center), BCI (the Ohio Bureau of Criminal Identification & Investigation), and NLETS (National Law Enforcement Telecommunications System). The reports include the subject’s full traffic history (both intrastate and interstate, and in greater detail than that provided by the BMV); a record of the subject’s prior arrests, irrespective of final case disposition; a record of any past/present temporary or civil protection orders issued against the subject pursuant to R.C. §§ 2903.213, 2903.214, 2919.26, or 3113.31; and the subjects CCW history and current status, among other things.

LEADS reports give us helpful and necessary information about our clients’ pasts, but they can be useful for other purposes as well – for example, to impeach certain witnesses. Prosecutors have historically resisted the production of LEADS reports in the course of discovery under Criminal Rule 16, often citing the inadvertent disclosure of sensitive, personally-identifying information of the subject(s) as the reason.

This practice by prosecutors was permissible until March of 2018 when S.B. 33, codified in Ohio Revised Code § 5503.101, took effect. In light of its provisions, prosecutors are no longer permitted to withhold LEADS reports from discovery in traffic or criminal cases when requested in accordance with the statute and provisions of Criminal Rule 16, nor may law enforcement deny access to LEADS information when it is sought pursuant to a lawful discovery request.

Per R.C. § 5503.101, Disclosure of LEADS information to defendant, information obtained via LEADS “may be disclosed to the defendant and the defendant’s counsel when formally requested pursuant to the rules of discovery in a traffic or criminal case.”

While subsection (C) of § 5503.101 allows the prosecutor to request court-ordered redaction of personally-identifying or sensitive information of any witness, law enforcement officer, or prosecutor, “[t]he fact that information sought in discovery is contained in [LEADS] shall not be cited or accepted as a reason for denying discovery to the defendant of the defendant’s own traffic or criminal record,” per R.C. § 5503.101(G).

The statute further shields prosecutors (and their agents) against civil or criminal liability for the disclosure of LEADS reports “in a manner authorized by [R.C. § 5033.101].”

The language of recently-enacted R.C. § 5503.101 is clear and unequivocal – LEADS reports are now among the material discoverable to defendants and their attorneys under Criminal Rule 16, and the statute offers prosecutors and law enforcement adequate protections against prospective liability for their lawful disclosure.

For more information about S.B. 33 and R.C. § 5503.101, you can review the Ohio Legislative Service Commission’s bill analysis here.

Learn about Recent Changes to Ohio’s OVI Laws

On July 4, 2013, Anna Louise Rooney was riding a bicycle to her Chillicothe, Ohio home when she was struck and killed by a drunk driver. The woman who killed her had a blood alcohol content of over two times the legal limit when she struck Annie. She also had at least three prior OVI charges on her record.

After her death, Annie’s parents – with the assistance of several state legislators – began a fight to toughen Ohio’s OVI laws. The result: “Annie’s Law,” signed into law by the governor on January 5, 2017 and effective as of April 6, 2017.

Annie’s Law changed the way Ohio handles OVI convictions in multiple ways. Prior to Annie’s Law, an individual with an OVI conviction (or equivalent offense) within the previous six years faced harsher consequences if convicted of a “second OVI in six.” Annie’s Law changed this “look-back period” to ten years – now, if you are charged with OVI and have a prior equivalent conviction within the previous ten years, you face a mandatory jail sentence and your options to obtain limited driving privileges are severely hindered.

This increase in the look-back period means more individuals convicted of OVI offenses will face more severe consequences, and more individuals will face felony OVI charges – as the severity increases, so does the penalty. Having an attorney who understands the law is crucial.

The Milano law firm is considered among the best in Cleveland, Ohio and surrounding counties. We understand the importance of your personal and professional reputation, and we know how an OVI can affect it. Contact us – we will fight for you, defend you, and work through the problem together.

The Difference Between a Misdemeanor v. Felony OVI in Ohio

Under Ohio law, OVIs range from first-degree misdemeanors (the most serious misdemeanor) to third-degree felony offenses. The most serious misdemeanor-level OVI is followed by a mandatory sixty days in jail, and the most serious felony OVI is followed by up to five years of prison.

These penalties are not as straight forward as they may sound, however – in certain circumstances, the penalty can increase by an additional four months in prison for certain felony OVIs. And the mandatory sixty days of jail time for an unclassified misdemeanor OVI can be decreased to thirty days in exchange for 110 days of “alcohol monitoring” – typically an ankle bracelet that constantly monitors your blood alcohol content.

The severity of an OVI charge can depend on a variety of factors – blood alcohol content level, the number of prior equivalent convictions, and refusal to test, among others. But even the lowest level OVI – a first-degree misdemeanor – is a serious offense with serious consequences. A first-in-ten OVI conviction is followed by between three days and six months in jail, and a mandatory license suspension of between one and three years – we can explain options that mitigate these penalties, such as attending a Driver’s Intervention Program in lieu of serving jail time, and obtaining limited driving privileges for the duration of your suspension.

The Milano law firm is considered among the best in Cleveland, Ohio and surrounding counties. We represent clients in various municipal courts in Lorain and Cuyahoga counties, among others.

Whether you are faced with an OVI charge for the first time or the fourth– whether you are charged with a misdemeanor or a felony OVI – we can help. We will assess your situation, explain your options, develop a plan, and work through it together. If you need help, Contact us.

Every Lawyer Needs to Understand Trial

Lawyers are- In Trial… On Trial… Trying a Case… Going to Trial, Preparing for Trial, In the Middle of a Trial, Just Coming Off a Trial– or working very hard to assure that their clients never undergo such a painful experience.

Trial is, in the mind of the populace, what lawyers do. But most lawyers will never enter a courtroom.

What all lawyers must do, regardless of their specialty, is protect their clients from the danger of trial, while laying the groundwork for success should that endgame become necessary. Our common principles; integrity, the professional effort, applying law to fact, mean just as much to the transactional lawyer as they do to the litigator.

Cases are disputes that end up in a lawyer’s office. Usually they arise from conduct never touched by lawyers. Sometimes they arise despite the best efforts of a lawyer to avoid the conflict. No lawyer wants his/her client to end up with a case.

Trial is the end game of all cases. It is the application of evidence to law. It is the crucible where evidence and law and skill and personality are mixed and burnt down to yield a verdict- a judgment.

This article is not intended to be treatise on how to conduct a trial. It is written, rather, with the hope it will provide a framework on how to approach the task.

You are not a shark, or a tiger, or a wolverine.

You are a teacher-at every turn.

It is your job to make people understand. You need to insure that your client understands why his case is different than his story, his chances of success and what the world of trials will be like for him.

It is your job to teach the judge, at your first opportunity and at every opportunity that you are right about your case. He or she will make decisions based upon conclusions drawn, whether realized or not. Right from the first contact with the Judge or the staff attorney, you need to load in the quality of your case and your competence as Counsel.

It is your job to teach your opponent. Don’t be overly concerned about a strategy of secrecy. Convince your opponent that they will lose and you will win the case – more likely on the safer ground of mediation or a settlement conference.

And then you need to teach the jury.

It is a case, not a story

There are books written about the use of story telling in trial. It is, after all, the way we communicate and pass on history. It is an important tool, but it is death if you overly rely on it as a trial tactic. ‘My story against yours,’ allows for too many extraneous factors; like emotion and prejudice and inherent power, to taint the result. Contrary to popular myth, all but lawyers with the most powerful clients want intelligent juries. They want juries willing to do hard examination of fact and law, self examining of their prejudices, and then make the difficult decisions necessary to render just verdicts.

Clients come in and tell their story. They ask you, “Do I have a case?” The lawyer’s question should be, “Can we win at trial?” expanded to, “What will the admissible evidence be?” and to “What is the law that applies?”

That method of analysis is issue based, rather than story based. It needs to be done as a threshold in every case.

In every case, do an issue-based analysis.

Do a complete exploration of your client’s version, exhausting every possible fact or explanation or witness. Your questions are, What else? Who else?, until there are no more answers left. Ask each client, and each potential witness: “What will the other players in the case say good about you- say bad about you- tell me about the situation?”

You also need to prepare a timeline-immediately. People are not that smart and it is difficult to follow a complex presentation. However, they do respond to a framework. The chronological framework gives them a tool to organize their thinking.

(Remember, sadly, that the most common motivation left in America is self-interest. As a result we have trained ourselves to believe that it is OK to lie to forward our interests. And beware of a new and viral strain of this virus, the person who will make up any lie to fit a nugget of fact. They have no compunction to lie on such an outrageous level that they achieve Orwellian credibility because no one believes that they could make that stuff up.)

The next thing you need to do is understand the law of the case. That is easier than you would think. Trial is the end game. The jury finds the facts based upon the presentation of evidence and applies them to the law. They are the ones you have to convince. Where do they get their law? They get in through the jury instructions. A plain English recitation of all of the elements of the trial, from what the cause of action is to what rules the jury uses to reach a verdict.

Read the general jury instruction on such issues as credibility and burden of proof until you can recite them by rote. Read the case-specific jury instructions at the onset of each case and read them again until you thoroughly understand what you have to prove.

Determine what may or may not be admissible, and then apply that evidence to the law.

Make a determination about whether you can win at trial. Repeat the process on a regular bases as the case progresses over time. Cases are fluid and often do not end up where they began.

Integrity Wins Cases

Cases are settled favorably (or won at trial) because you have shown the Judge and the opposition (and the Jury) that your case is real. You should win. They will only believe you, however, if you present yourself and your case with integrity.

Integrity, in this context, means that you will stake out the furthest reasonable position for your client. You will make the professional effort to be fully prepared on each issue. If you say it, regarding law or fact, you say it because you believe it to be true.

People watch and listen. A lawyer might get away with a stretch here or an outright falsehood there (lawyers do lie). But over time, people will watch what you do. You will either build a reputation for integrity or not. In my opinion, you will win more cases based upon a well-earned reputation for credibility and reasonableness than you will on good facts.

How do I prepare?

One way to look at a human being’s level of intelligence is to consider on how many levels of abstraction they can think ahead. Chess players think 64 moves or levels ahead. Composer writes symphonies blending levels of instruments and rhythms and tones. Most of us cannot think past lunch.

Young lawyers watch old lawyers operate smoothly in any situation and wonder how. Experience is an equal to intelligence as it allows you a higher point to jump off. You have seen the first 15 steps before, so it is easier to see the next.

So how does a lawyer overcome a lack of intelligence or experience? Through layered preparation. Do the analysis, set it aside and do it again. Do it with others. Each time you do it you will see more, understand more and your arguments and presentations will be more complete.

Has this ever worked in the real world?

I tried a murder case, by myself in Akron.

The allegation was that a young man murdered his girlfriend’s 2-year-old child by punching him in the stomach. The case was based upon expert testimony regarding the timing of the blow. If it was delivered the night before the baby died, the client was guilty.

I contacted James Patrick MD, the elected coroner from Toledo. He is a large, charismatic fellow, from Harvard Undergrad and Yale Med School (or Vice Versa).

We met 7 or 8 times as he taught me the science of immune cells and how they could be used to time insults to the body. He was convinced that the baby was injured days before. The client was not guilty.

My theory on direct examination, especially with experts is that it is a dance. The lawyer only leads imperceptibly, while the expert teaches the jury.

So we went to trial and it was a big deal. Packed courtroom. The elected County Coroner of Summit County testified for the state. Our current Chief Justice, then the elected prosecutor, presented for the state.

Dr. Patrick took the stand and I attempted to teach through him by gently leading through his presentation. Except to each of my questions he answered only yes or no. I tried to dance. He stood firm and I began to sweat. In desperation I said, “Dr., what do you want to tell the jury.” He got up, set up his presentation equipment and taught the jury, uninterrupted by anyone for more than an hour, exactly how and why the baby died. The client was acquitted on the first ballot and I had nothing to do with it.

But I did learn that while people might root for a fighter, they will listen to and believe a teacher.

“Every Lawyer Needs to Understand Trial” written by Jay Milano, will be published in the Cleveland Metropolitan Bar Journal, November 2013 Edition. To view the actual article, please click here.

Jay Milano Named Top Rated Lawyer

Jay Milano first spoke in court during a murder trial and has practiced at that level of intensity for over 30 years. His clients include Snoop Dogg, Hell’s Angels, sports figures, doctors, judges, lawyers, and executives, as well as countless people who just needed help. He has tried to not-guilty verdicts cases involving death penalty, multiple homicides, and the “shaken baby” syndrome. He is nationally known as a defender of those falsely accused of sexual assault on children.

Mr. Milano led the exposure of sexual assaults and the cover-up by the Catholic Church and was featured on the Emmy-winning 60 Minutes report, “The Church on Trial.”

As his practice progressed, Mr. Milano became more focused on complex litigation, white-collar crime, and cases where law and science intersect. His method: fearless, aggressive and personal lawyering remains constant – regardless of whether a trial is called civil or criminal. His practice now includes significant malpractice, injury and defamation cases, many with Judgments exceeding $1 million.

He regularly represents professionals; doctors, dentists, nurses, lawyers or judges on issues of professional conduct.

He has taught Trial Tactics at Cases Western Reserve School of Law for 20 years and teaches advanced tactics to practicing attorneys several times a year.

The Buzz on Ohio OVI Testing

“No person shall operate any vehicle… under the influence of alcohol, a drug of abuse, or a combination of them.”

Whether you call it OVI, DUI or just drunk driving, those words from the Ohio Revised Code put fear into the hearts of thousands of drivers throughout the State of Ohio who are accused of drunk driving every year. With mandatory jail sentences and fines that can be attached to drivers who previously had spotless records, drunk driving arrests have become a major issue throughout the state. It’s not just for driver’s who are completely intoxicated either. Just a few drinks can push you past the 0.08 blood alcohol limit in Ohio and before you know it an evening with friends can end up as a weekend in jail.

Throughout Cleveland and the surrounding communities police use a variety of methods to track down drunk drivers and then use several tests on the driver to determine if they are impaired. The primary method that officers use when they first pull someone over is the traditional slate of field sobriety tests. These tests measure a person’s coordination, balance and dexterity in an attempt to determine if the person is impaired.

Officers also use breathalyzer’s in the field and after arrests are made to determine how much someone has been drinking. Drivers in Ohio can refuse these tests, however, a refusal will automatically result in a license suspension by the Ohio Bureau of Motor Vehicles.

The results from the field sobriety tests and the breathalyzer can all be challenged, however, and that’s why it is so important for defendants in OVI cases to seek out an attorney. Specifically, the results from breathalyzers need to be reviewed to determine if they are accurate and if proper guidelines were followed when the test was administered. The breathalyzers commonly used in Ohio have come under a massive wave of scrutiny over the last year and it is important to know how to use that scrutiny in each case.

With potential penalties that can include multiple months in jail and thousands of dollars in fines, defendants have to seek out every possible way to challenge the allegations against them. If you or anyone you know has been charged with a driving under the influence Contact us and let’s figure out what we can do to help.

Who is best qualified to be our next prosecutor?

Dear Friends and Colleagues,
This is an important election coming for Cleveland and Cuyahoga County. We will be conducting a contested election for a new county prosecutor for the first time in our lifetimes. Given all that we have seen in the past two years, unfathomable corruption, and a justice system so inbred that it has mutated beyond recognition, we need to pay very close attention. So, given that I have spent my whole life in that system, please allow me to impose upon you my opinion of who is best qualified to be our next prosecutor. 

In my opinion,
In order to understand how justice works in our county, you need to understand our history.

Our entire county, not just the courts, was dominated from the 1950's until the 1980's by John T. Corrigan. He was not always right, and his office got out of control as he got older, but he was a good man.

Ironically, he and my father fought cases with mutual respect for years and ended up in the Sandusky Veteran's home together, both enduring Alzheimer's, neither able to recognize the other.

During that time judges routinely came from the prosecutor's office. It was a strategy. If any judge fell into disfavor, an assistant was there to contest  the election. We also began the bizarre custom of electing Judges by last name (usually Irish, not that there is anything wrong with that) rather than an examination of their qualifications. John T loomed over it all.

Stephanie Tubbs Jones followed John T and the Justice Center lived in the Pax Stephanie. It was a time of reasoned and reasonable conflict.

Draw your own conclusions about Mr. Mason and what has happened to the County in recent years. But, in my opinion, we should all be ashamed of the job we let him do. It was almost like a Saturday Night Live Skit, with county cronies carrying out the furniture while the elected county prosecutor gave press conferences talking about how tough he was on crime.

What is most true to me about Cuyahoga County Criminal Justice is that it has evolved so far into its own world, it has become so ingrown, that it is a system in need of complete overhaul. We need a thoughtful approach to problem solving unencumbered by the past.

Now we have five Democrat candidates. Whoever wins the upcoming primary will no doubt  be the next prosecutor. This is Cuyahoga County and the chance of a Republican taking this position is so slim that none have yet filed.

So, in my opinion-

Subodh Chandra is the most thoughtful, and the best prepared of these candidates. He is well educated (Stanford, Yale Law), a former Law Director of the City of Cleveland, and a former assistant US attorney. His experience matches or exceeds all of the others. He is also a Justice Center outsider. Most important to me about his experience is the US attorney component. The Justice Department operates under strict rules for its prosecutors, built with checks and balances. On the other hand, in Cuyahoga County we have operated in a system so loose that almost anyone could have jumped on and taken it for a ride. The Tiki Hut and Hooker trial that will go on until after this election provides a clear view of how the county has operated. The only misleading aspect is that it appears what Dimora did was "small potatoes" compared to Russo looting the county property taxes for the benefit of his friends.

It is time for us, we here in Cuyahoga County, to look hard for an exceptional candidate to fill a difficult and complex job. To my mind, Subodh Chandra gives us the best chance to rebuild Criminal Justice in Cuyahoga County. That is surely something we need to do.


The Policeman Is Your Friend*, Homicide Case Dismissed

* Unless he thinks you are guilty.

“I am not a criminal-so what am I doing sitting here waiting for a criminal defense lawyer- Jay Milano?”

There sat the client and his wife on a bench outside of a courtroom.

They were young, good looking, hard working and had been trouble free. They were about to start their family. They had just received the news that she was pregnant. They looked much like they would have looked sitting and waiting for her OB/GYN- except they were surrounded by the usual suspects that haunt criminal courts.

They were frightened. They were also confused.

There had been an accident. A man had died. There had been two independent witnesses. Both had a clear view. Both said it was not the client’s fault.

Nevertheless, there they sat. He had been indicted for Vehicular Homicide. Vehicular Homicide means you killed a man with your car. It was your fault and the result of you breaking the law. The allegation alone changes your life.

This client was driving down a straight road in Lorain County. It was a sunny Saturday afternoon. No drinking, no drugs. He was traveling within the speed limit, following a car but not tailgating. Traffic was average.

The road was a bit confusing because there was a cross road, but it did not pass straight through. It came in on his right and dead-ended. The left turn was a few hundred feet further on the left.

As they came to the road on the right, the car in front of him slowed down. It looked like it was trying to turn left, but had nowhere to go. It moved forward a bit, started to turn left, hesitated and then started to turn again.

Like a video game the scene in front of the client exploded. The turning car was struck head on and started to spin. The client tried to avoid it but was struck and ended up in a ditch.

Everyone seemed all right. The old man in the left turning car did not appear to be injured. As a matter of caution, he was taken to the hospital. The highway patrol came and took pictures and interviewed everyone. They exchanged insurance information. Bad day, but things happen.

The old man died at the hospital.

The client learned of the death when a highway patrol officer came to interview him. The client reported that it all happened very quickly. It appeared the car in front tried to turn, hesitated and was struck by an oncoming car. It began to spin. The client tried to avoid the car as it spun, but he hit it and went off the road. “Weren’t there witnesses?” he asked. He felt terrible, but it was not his fault.

That was it, he thought. It was over.

In a few days he got a letter from a lawyer for the deceased’s family telling him to notify his insurance company, that he had caused the death. The insurance company informed him that he might be charged in the accident. They told him they would defend him in a civil case, but not a criminal case.  They sent him the complete police report.

It was not over.

At this point, like most people, he thought that this would resolve itself. The police report had statements from two witnesses. They saw the accident exactly as he had seen it. The car tried to turn and was struck head on. The criminal part, he thought, would never happen. His insurance company would take care of the rest.

But he called and made an appointment. He thought it prudent to talk to a criminal defense lawyer since he was told he might be charged.

He came in with his wife. I reviewed the reports, told him that I would contact the Prosecutor’s Office and the Highway Patrol-just to make sure. I did. I got no answers except that the case was under investigation and they would let us know.

Three months passed, along with phone calls from the client and unanswered inquiries. Then he was indicted. He was charged with Vehicular Homicide. He was charged with causing the man’s death. It made no sense.

So there they were on a bench, in the hallway of the courthouse- him scared, her scared and pregnant.

Cases start with the Prosecutor and Defense Lawyer meeting to exchange information. I went, assuming that a close look at the witness statements would cause the Prosecutor to come to his senses.

The Prosecutor gave me the police reports to look over. There was a problem. There were pages missing. The only pages missing were the independent witness statements. The exact statements that exonerated the client were not there. They had not been presented to the grand jury that charged the client with a crime. They were not given to the Prosecutor.

There was no logical explanation that I could see. I believe to this day that the Policeman had taken sides. It is my opinion that someone deliberately withheld the witness statements.

Right or wrong or a coincidence, the only two independent witnesses were gone. If the client had not gotten the original police reports, then chances are no one would ever have known about them. They would have ceased to exist.

I pointed out to the Prosecutor that there were missing pages- very important pages. I showed them to him.  He shrugged it off and said he would look into it.  We were postponed a month. The clients were disappointed.

A month layer, same hallway, same bench, same scared client and his wife, her a little more pregnant.

The Prosecutor had no explanation. He had taken no action. He said that he and his colleagues would “round table” this case and likely dismiss it.

Hope. They were going to be reasonable. Despair, another delay. Being charged with a crime weighs more on you every day. You wake up in the middle of the night, and stay awake, thinking about nothing else.

A month later, same hallway, same bench, same scared client and his wife, her a little more pregnant.

This time we had a new Prosecutor.  The Highway patrolman was also there.  He sat down to explain to us how he knew what happened. He went through his version of the events and never mentioned the witnesses. The ones who said he was wrong. The ones who said the client was innocent. He walked out, cock sure that since he was a policemen, all would believe him.

The new prosecutor said she was concerned about the statements, but she had to look into it. Amazingly, she called to tell me that they were going to have an expert from the highway patrol examine the accident to see who was right. The argument became heated. She did not need an expert, that there were two eyewitnesses. The statements had been concealed. I did not dissuade her.

Two dynamics of criminal justice were at work here. First, once a charge is filed, it carries weight. It is very difficult to undo. A victim has been named. His family has rights and a very loud voice in court. To dismiss the case dishonors his death. Second, police and prosecutors work together every day. Prosecutors will do everything reasonably (and sometimes unreasonably) possible to protect their policemen.

A month later, same hallway, same bench, same scared client and his wife, her a little more pregnant.

This time a young highway patrolman came in and declared,  without any hesitation, that he knew who had caused the accident. It was the client.  He could tell by marks on the road that the witnesses were wrong. He was sure. It was astonishing that he dismissed the witnesses with such clarity. He had no real evidence. This young highway patrolman fully expected me to say “Yes, sir” and go out and tell the client that he and the witnesses were had met a greater force. He must surrender. He had better pled guilty.

Put it in writing, I said. Let us have an accident expert test your theory.

It is my opinion that this young highway patrolman who called himself an expert was willing to stretch his expertise (read the truth) to accommodate his friend (who, by this point, knew he had a major problem with hiding evidence).

Now we were set for Trial two months out. The wife would be seven months pregnant by then.

The Judge ordered the prosecutors to produce the young highway patrolman’s report. They never did. We let the Judge know two weeks before the trial that the State had not done what he told them to do.

Two days later, I got a phone call from the Prosecutor. The young highway patrolman would not put his opinion in writing. They would dismiss the case.

Three days later, as if another insult was necessary, we went back to Court. The clients sitting on the bench as they had done seven months before, she very pregnant, both of them very relieved.

The case was dismissed. It had been a year since it started.

My opinion: the original highway patrolmen took sides. He decided that it was the client’s fault and then, rather than investigating, just built a case. He did so even to the point of hiding evidence. His young buddy covered his ass as best he could, but in the end would not put himself on the line by joining in the lie.

People take criminal justice for granted. They assume the police are out to help them. If they just explain what happened, it will all be fine. Regularly people come to us in serious trouble, after having trusted their instincts or the policemen or an inexperienced or ineffective lawyer to “Straighten it out.”

Right now we represent a professional woman who thought she could explain away sloppy paperwork. She got charged with 6 felonies. A friend walked into our house, unannounced, a few weeks ago, desperate for information because her son’s lawyer would not talk to her. Had he done his job, the young man may never have been charged.

Criminal justice is hard. And it is counter-intuitive. It is not something you can do yourself.


PS The baby will soon be born. I will keep you apprised.

If anything comes up, for you or someone close to you, anything for which you might need a lawyer, just call. If it is not a problem, I’ll tell you. I am not in the business of scaring people. If there is a real problem, we will put it behind you.