A Bad Deal

There didn’t seem to be anything out of the ordinary when we first looked at the student interviewing with us for a law clerk position.  He a pale, skinny man in his late 20s at the top of his class at a local law school.  The interview was pretty normal until the very end, when our candidate asked about the background check he would have to pass if he were hired on.  We explained that misdemeanor criminal convictions, like DUIs would probably not disqualify him.  He said that he had a DUI, but that it was a felony.  Neither my coworker nor I were very sophisticated about employment law; neither of us asked any follow up questions, probably on the assumption that we didn’t want to know more.  Felony DUIs in California happen under two circumstances.  Either you get three misdemeanor DUIs and your fourth is a felony, or your DUI causes someone injury.  But in the moment, neither of us though about it much: we figured he would either pass a background check or he wouldn’t.

Later in the interview, the candidate mentioned that he worked for a non-profit expunging convictions.  This brought me back to his question about our background check, so I asked him why he didn’t expunge his own conviction.  He said that he looked into it but the best he could do was a certificate of rehabilitation.  He said that you cannot get a conviction expunged if you did a certain amount of time in state prison.  We were shocked that this candidate would have gone to state prison on a DUI.  We asked him about that, and he said that the DA made him a bad deal.  We thanked him for his time and finished the interview.

But something about what happened was stuck in my mind.  We talked it over with another prosecutor, a ten year veteran, after the interview.  As we were relating the story, and the candidate’s strange answers, a look of recognition seemed to come over his face.  He asked, “what’s this guy’s last name?”  We told him.  “I know that guy!  I remember that guy!”  Ten years ago, when this prosecutor was new, he was assigned to a preliminary hearing department and actually handled this candidate’s case.  We looked it up  in the computer, and he was right.  And what was even more extraordinary was that our colleague remembered the facts.

The candidate had a drinking problem when he was a younger man.  Ten years ago, even before he was legal drinking age, the candidate had driven drunk.  He crashed his car into a house.  The car entered the bedroom window of the house and landed on the bed.  The bed was not empty.  The car crushed a person lying in the bed, breaking their back.  The candidate, instead of remaining at the scene and aiding the victim, fled.  He didn’t even call 911 to let them know that an ambulance was needed.  When he returned home, he saw his father, who suspected that something was up.  He asked his son if anything had happened, and the candidate drunkenly mumbled that he had crashed his car.  His father feared the worst, and went out to look for his son’s crashed vehicle.  He found it crashed into a house.  The father approached the police and told them that the vehicle belonged to his son.

Later, in court, the father changed his mind.  He hired a lawyer for his son, who rejected the people’s offer of 16 months at an early hearing.  The father said he regretted ever cooperating.  They did the preliminary hearing, which was held to answer, and then asked for the early offer again.  The DA refused.  The candidate ended up pleading to high term on a DUI with injury, with the agreement that the DA would strike the punishment for the great bodily injury enhancement.  He was sentenced to three years, and did about half of it.

Step One: Throw a Fit. Step Two: Give Up

The Defendant just gave up halfway through my sixth trial.  It was a DUI with a refusal allegation.  It’s a difficult misdemeanor because a lot of jurors want to have a chemical test to rely on when they are deliberating.  Without a chemical test, some don’t feel comfortable convicting.  The police didn’t see a lot of objective symptoms of intoxication which might make up for the lack of a chemical test.  In fact, some of my witnesses disagreed on whether the Defendant smelled like alcohol.  And the police didn’t observe bad driving, another factor that is normally used to argue that the Defendant was under the influence.  All the Defendant was pulled over for was a speeding ticket.

In addition to the weak evidence of intoxication, the Defendant had an alibi.  He claimed that he was the victim of a shooting which left a bullet in his body.  This bullet cut off oxygen to his brain when he was under stress.  Despite this alibi, the defense had not noticed any witnesses, such as doctors, nor did they intend to introduce any medical records.  All they had were photos of lumps in someone’s body that I assume they were going to claim were bullets in the Defendant’s body.  That’s it.  I think the Defendant was intending to get up there any say, “Hey, I’m the real victim here.”  “I was robbed back in the 90s and I was shot three times.  One of the bullets has traveled to my heart.  Because of that bullet, every time I get excited the bullet cuts off oxygen to my brain and I pass out.”

There were several problems with that theory, even if you don’t consider the total lack of independent evidentiary support.  First, and most important, I had a report by an EMT on scene showing that defendant’s blood was properly oxygenated.  In other words, his defense was a complete fabrication.  Second, the Defendant didn’t even pass out, he just fell down.  Third, the robbery part, and the bullets part are completely irrelevant.  Fourth, again, there was no evidence of any of this other than Defendant’s self-serving testimony.  And of course, if he really had this condition, should he be driving in the first place?

The case was won on motions in limine.  I was able to exclude virtually every aspect of the other side’s defense.  I successfully argued that his statements about the prior robbery were an irrelevant attempt to garner the sympathy of the jury.  Then I pointed out the lack of medical records, and argued that Defendant should not be allowed to give his lay medical opinion as to his injuries, nor should he be allowed to repeat a doctor’s diagnosis, since this is hearsay.  These motions were granted as Defense counsel threw a fit and cursed the name of the judge to anyone who will listen.  I think he was putting on a show for his client.  He made several comments to that effect.

This case taught me the value of discussing your cases with your coworkers: they suggested the motions that I used, even though I was more than capable of coming up with them myself.  I knew it was valuable to write motions in limine, but they were so effective in this case that the Defendant just threw in the towel.

Twi Travails

Twi is an African dialect with 14 vowels that is spoken in West Africa.  There is only one Twi interpreter in the State of California and she was present to assist the Defendant in my fifth trial, a DUI involving a hit and run.  He claimed that he did not speak English, even though he was from Liberia, whose official language is English.

It’s Hard To Cross-Examine In Twi.

Cross-examination was extremely difficult with an inexperienced translator interposing herself between me and the Defendant.  He spoke English well enough to take classes at a local college and to pass a drivers’ license exam but was using her anyway.  This additional layer allowed him more time to think about his answers and avoid incriminating himself.  I also did not speak up when the translator appeared to be conversing with the Defendant after my questions.  I should have found out whether the translator is allowed to explain my questions to the witness, or whether her role is just to translate.  If he is pretending not to understand even simple questions then the jury she see that, so they can use it to evaluate his credibility.

Another prosecutor analogized cross-examination to playing ping-pong.  The most successful cross-examination is done with rapid questions and rapid answers.  Each questions should be designed to throw the Defendant off just a little bit.  Once he’s thrown off, he may lie, or at least contradict himself.  He may also go too far, and say something the jury is not likely to believe.  But the method is impossible if the defendant has a lot of time to think about what he’s going to say.  If he slows down the pace, the chance of him slipping up disappears almost entirely.

If you can’t play ping-pong on cross-examination, then you need to try a different strategy.  Ask questions that you know the answers to.  Ask questions where the answer doesn’t matter: questions that reinforce your theory of the case regardless of what the defendant’s answer is.  Stick to your main points and hammer them home.  This alternate method means many fewer questions and a much shorter cross-examination.  But it avoids the problem of getting stuck in the weeds with the defendant.  It also helps you avoid looking like a bully, which I found out during my second trial can be death.

The Defendant denied being under the influence and being involved in a hit and run.  But he still had to explain his poor performance on the field sobriety tests and his refusal to submit to an alcohol test, as the law required.  He claimed that he fled the scene of his accident and did badly on the FSTs because he didn’t understand English well.  He also claimed that he could not understand the officer’s instructions on how to submit to a chemical test.  The most effective portion of my cross-examination involved the Defendant’s ability to speak English.  I pointed out that he was from a country whose official language is English.  I pointed out that he spoke English at school and with his friends.  I pointed out that he worked a job for an English speaking boss and that he passed a drivers’ exam in English.

The Importance of Jury Selection

The jury convicted him after several days of deliberation, showing that jury selection really can make or break a case.  Here, there were two holdouts that eventually came around to vote for guilt.  I interviewed the foreman after the trial, and the jury really went through some herculean efforts to convince the holdouts.  They went from excuse to excuse, even at one point forcing the jury to send a note to the judge asking if the officer’s failure to give a Miranda warning prior to the FSTs invalidated the Defendant’s subsequent performance.

There has got to be a better way to identify and challenge these jurors.  I really need to be extremely careful and deliberate during voir dire.  I will say that one of the leading jurors, who also stuck around to get interviewed was an engineer, and I don’t know how the defense allowed him to remain on the jury.  True to every stereotype that I’ve heard since I’ve started, he was right in my camp and helped persuade the holdouts.

Snatching Victory From The Jaws of Defeat

It finally took an instruction on the judge to get unanimity: a very aggressive instruction.  At the close of evidence, the Defense brought a motion for a new trial.  This was denied.  The Defense renewed this motion after the verdict.  This time, the court granted the motion, to my surprise, and the surprise of others in my office.  The judge decided that his instruction to the jury was too aggressive, so aggressive, he said, that it coerced them into coming to a verdict.  Then, on his own motion, he dismissed the driving under the influence count.  He said that he did not believe the arresting officer, who he believed was angry at the Defendant because the arrest occurred at the end of his shift and out of his jurisdiction.  That left the hit and run count.  This count was supported by the testimony of an independent witness (as was the DUI count, by the way) but it only involved minimal damage.  The judge then allowed the Defendant to plead guilty in exchange for diversion.

I’m ambivalent about the wild twists and turns that this case took after judgment.  On the one hand, I wanted to win the case, and I feel like I did win the case by persuading the jurors.  On the other hand, the Defendant completely escaped accountability, which makes me feel angry.  His bad attitude made this even worse, especially the way he acted outraged even after the judge had saved his case from the jaws of defeat.  He was not even grateful for this last minute generosity.  At the end of the day, it was just a misdemeanor, and maybe he learned his lesson regardless of whether he goes to jail.

Branch and Area

I was sent from my branch office to an area office, like going from the provinces to the capital, for my fourth trial.  I was happy to be there, several people from my training class were assigned as prosecutors there, and a couple of other people that I really liked.  Trial took about a week.  I put on two witnesses and used two exhibits, an audio file and some pictures.  As part of my ongoing self-criticism project, I think there are some things that I could have done better.  I could have done a little investigation into the case and maybe found some more witnesses.  That would have helped corroborate my existing evidence.  One of the jurors even said as much after they jury hung.  I could have prepped a little more in advance.  I could have used 911 call documentation to find another key witness that I didn’t have.  I didn’t go to the scene.  I could have prepared my opening and closing farther in advance.

During my rebuttal argument I also was playing with fire a bit.  I know from our training materials that prosecutors often commit error during argument.  I argued the failure to call logical witnesses, which is close to commenting on the defendant’s failure to testify, a clear error.  After the trial a supervisor suggested that I not do that unless the defense puts on some kind of a case (any kind of case).  I also took a risk during my rebuttal argument by injecting some emotion and feeling into my argument in response to the suggestion that I should just let this case drop because there were no prior incidents.