Prosecutor’s Corner – Hopelessly Devoted

#5 The Jury Trial Involving Math

Jury Trial 5 went right back into the arena of DUI. At 12:56am the defendant ran a stop sign at the entrance kiosk to Loafer Creek campground in Oroville. A State Parks officer attempted to pull him over but defendant did not yield, instead he continued to drive outside of the campground and onto Hwy 162; going about 300 feet before eventually stopping. Defendant had bloodshot and watery eyes and an odor of alcohol about him. Defendant admitted to drinking three Sierra Nevada beers between 11:00pm and 12:30am. Field Sobriety Tests were performed including a PAS (Preliminary Alcohol Screening) 28 minutes after driving which indicated the presence of alcohol at a .09%/.08%. Defendant was arrested and a breath test was administered 49 minutes after driving indicating a Blood Alcohol Content of .08%/.07%.

Defendant was charged with two separate counts of DUI. We call them the “a count” and the “b count” referring to the subsection of Vehicle 23152 that applies. One is based on intoxication above a legal limit of .08% and the other is based on the presence of an intoxicant and impairment shown by the circumstances. Usually that includes, bad driving, poor performance during the field sobriety tests, admission of drinking etc. A defendant can be convicted of both, but only punished for one.

Math was an issue here guys. According to the regulations governing DUI investigations there is built into the testing a .02% margin of error. With a .08/.07% and the margin of error the breath test technically could come in under the legal limit of .08% where intoxication is presumed. In this case we had a way to get around that, the PAS test. 28 minutes after driving the defendant took a PAS that showed a .09%/.08% meaning the defendant’s blood alcohol level was on the decline at the time of the chemical test. A half hour before the PAS at that level would have meant, based on a dropping BAC, the defendant was actually a .10%/.09% at the time of driving. We just had to get the PAS results in.

Our Judge wasn’t having it. Repeatedly, the issue of admitting the PAS results was brought up: first orally, then in writing, then in again in writing. Every time the Judge declined to allow the actual results in; limiting testimony on the PAS merely to a confirmation of the presence of alcohol. The judge asked for case law, which was provided. It was distinguished by the court on the facts. An argument was made that the results of the PAS and their reliability went to the weight of the evidence and not to admissibility. The Court ruled that the Legislature had intended there to be a distinction with the PAS and the chemical test and because of that the prior ruling would stand.

Without the PAS results I could not prove that the BAC was declining at the time of driving and without that reference point our expert could only give the opinion that it was either at .10% at time of driving or a .06% at time of driving depending on whether the BAC was rising or declining.

We had to pivot to a reliance on the bad driving and the performance of poor FST’s in order to convince the jury beyond a reasonable doubt that the defendant was guilty. As my expert said, “of course he was intoxicated, look at the bad driving.” Defendant was convicted of one count of DUI, the one involving impairment shown with bad driving. Math had worked us out of a conviction based on the .08% presumption. The jury in this case took a logical and well-reasoned approach in their verdict—Defendant was impaired by alcohol when he was driving regardless of his BAC at the time.

This trial taught me that, sometimes a judge will disagree with your legal analysis. To this day I stand behind my position that the results of the PAS should have been admitted into evidence; it was supported by case law. However, a judge ulitmately decides these issues, not the prosecutor, and I learned that as a prosecutor I have to be able to adjust to rulings I was otherwise anticipating to go in my favor. Fortunately, the alternative charging in this case saved it from an aquital in a jury trial where the defendant had been driving impaired. Regardless of the math, we were able to prevail based on the dual basis of liability we had set up at the time of charging.

#4 The Jury Trial Without a Victim

My fourth jury trial introduced me to the world of domestic violence. To say that as a prosecutor we never really know how a domestic violence case is going to pan out in front of a jury is an absolute understatement. These are the cases where prosecutors have to be prepared for absolutely every possibility. There are a couple of reasons why I believe this happens:

Victims don’t show up to court. In domestic violence cases everyone has a heightened emotional state at the time of the event. When the dust settles and the real life consequences on a family relationship put in the criminal arena begins; often it just becomes too much for a victim to handle.
Victims change their story. Victims of domestic violence are usually under an immense amount of pressure: they have lost the ability to co-parent, they usually lose an income, they don’t want someone they love to go to jail. The reasons for stories to change goes on and on. Often prosecutors don’t know what a victim is going to say on the stand until the testimony starts.
Witnesses are often family members. This includes the children of the parties. Family members are reluctant to be involved.
Victims become overly cooperative. This can also be a red flag. Sometimes and unfortunately law enforcment contact is used to influence family law cases. As a prosecutor we always have to look at the family law case to see what is being said by the parties in their corresponding family law cases to get a better understanding of the bigger picture.

Domestic violence often happens behind closed doors and so every scrap of cooberating evidence supporting the victim’s statement becomes key. We use small bits and pieces of those observations and evidence law enforcement finds to get to the truth between what he-said and what she-said. Always the best practice it to be able to rely on something other than the statements made by either party to prove the crime that occurred.

Trial #4 involved a female defendant and a male victim who had been in a relationship for approximately 22 years. They had recently broken up but the victim continued to live on the same property as the defendant, just in his own mobilehome. On this occassion victim and defendant got into an argument because the defendant beleived the victim was not sympathetic enough to his adult son’s situation and she went to victim’s mobilehome to confront him about it. She was told to leave; however defendant did not. Instead she got upset and grabbed victim by the jacket. The victim then punched her in the face causing a laceration to the defendant’s chin.

This was a misdemeanor level domestic violence battery. Minor, but documented injuries to the victim and a corroberating injury to the defendant. There were some pretty complex legal issues to convey to a jury in regards to self-defense that came up. Namely that the defendant shouldn’t be able to claim self-defense in a situation she created and the fact that the victim had a right to reasonable self-defense in response to her conduct. We relied on defendant’s own admissions of guilt made to law enforcement and photos taken of injuries in our case-in-chief.

Our victim also relocated out of the State prior to the jury trial and that opened the door to allow defendant to take the stand on her behalf to tell the jury about what happened INSIDE her house before defendant confronted the victim at his own. Information our office was not privy to at the time of the arrest. Information we could not discuss the accuracy of with our victim. Information we could not overcome at trial.

This rocky road of a trial taught me so much.

Evaluate self-defense prior to filing and make sure we can prove beyond a resaonable doubt that the defendant’s actions were not in reasonable self-defense. As a prosecutor that is always my burden to carry and it should never be overlooked.

Non-verbal communication can have an affect on the outcome of a trial. We had a non-traditional DV here. One were the female was charged. She took the stand using a cane and used assisted listening devices in the courtroom. Defendant also testified as to medical issues that she was having at the time of this incident and through the trial, lending her as a sympathetic soul to the jury.

A jury will always wonder where your victim is, even if they are told not to speculate.

Our Judge in this case was a long-term retired judge who had been filling a vacancy in our County for so long he was a permanent fixture. He had seen and heard it all. As soon as the jury left the courtroom, he turned to me and defense counsel and said, “Well this isn’t going to take long.” He was right, 10 minutes of deliberation to a not guilty verdict.

#2 The Jury Trial Involving The No Drive Defense

Driving under the influence is one of the most common jury trials to cut your teeth on as a new prosecutor. I got my chance my second trial in. The case essentially revolved around the discovery of an abandoned vehicle in the roadway which was had major damage to the driver’s side of the vehicle, it was missing a tire, and had been driven quite a distance on three wheels. The defendant was located approximatley 30 feet away lying down behind a hill. Defendant admitted to drinking (he was a .20% BAC) but not to driving. Gouge marks in the road showed that the vehicle had crossed double yellow lines and hit a guard rail on the opposite side of traffic; the vehicle had been driven until it no longer functioned. Witnesses put the defendant, and his vehicle, at King’s Tavern hours prior to the collision. Oh and defendant was on probation for a DUI at the time of this offense with terms that included no drinking and no driving with any amount of alcohol in the system. Sound’s solid right?

Not so much.

Defendant took the stand and claimed “his friend” was the one driving the vehicle and that “his friend” had taken off after the vehicle was disabled. Names will not be used here, but the very experienced defense attorney I was up against provided a name, and conveniently, a death certificate, showing that the friend had died approximately 2 months after the collision. Additionally, while we had witnesses from the bar telling us defendant had arrived in the vehicle alone and had been drinking, no one actually saw the defendant leave.

It was a “no drive defense” and a good one. We ended up with a hung jury in this case, and not a good split. 11 jurors for not guilty and 1 for guilt. The issue being that we just could not show beyond a reasonable doubt that defendant’s story of a friend driver was not a reasonable explanation of the facts as they were. No one observed the collision. The vehicle was discovered by law enforcement during routine patrol. And while the vehicle was associated with the defendant, no one could tell the jury he was the one driving it away from the bar that night. And let’s not forget, the claimed was dead. Lastly, the height and weight of the friend and our defendant were such that we couldn’t use the positioning of the driver’s side seat to make any kind of factual argument as to who the driver was.

One of the most frustrating things about this particular case for me is that in criminal law we have a reciprocal rule of discovery. Both sides are required to give over evidence they intend to use at trial. Prosecutors have an additional burden to turn over all exculpatory evidence. I’m certain that had the defense attorney provided information about the “friend,” driver in advance this case would have been reevaluated prior to trial to determine whether or not we should proceed. Instead, we did it after the court declared a mistrial. We determined that a second jury trial would not acheive a different result, after recontacting the bar and the patron witnesses just to make sure they didn’t have any additionaly information about the “friend” and his whereabouts that night.

One of the things we do as prosecutors when a case ends in a mistrial or a not guilty is to attempt to reach out to the jurors to find out what evidence they were looking for, to see if there were credibility issues with our witnesses, and to see which elements of a particular crime was difficult for them with our presentation of the evidence. This part of my job has helped me learn what jurors are looking for in cases such as this, where the defendant claims he wasn’t driving and in others. I have modified my presentation in future cases, as well as my charging decisions based on these difficult conversations.

Justice is sometimes served by not proceeding on a case when the outcome isn’t going to change. A significant amount of public resources go into every single jury trial, no matter the charge. We ask the public to take time out of their lives to perform one of the most basic, and important civic duties we have. Prosecutors are always balancing this public interest in every decision they make and jury trial #2 taught me that this consideration never goes away, even if you have already completed a jury trial in the matter.

#1 The One in Which I Had my First Jury Trial

The year was 2012. I had been a lawyer for about 6 years in the civil sector with nary a jury trial to my name. You see, what they don’t tell you in law school, that jury trials in the civil sector are expensive, which means working for a small boutique law firm in rural Northern California gives you zero opportunites to have a trial go out.

After Maizy was born I set out on my own, opened my own practice and worked next to my family and their shirt shop they had owned my entire life…but that it a story for another day. Let’s just say that it got to a point where I had to decide whether to hire a legal secretary and work full time or pursue my dream of working in criminal prosecution. Criminal prosecution won that battle and my first jury trial came about 8 months later.

As a new prosecutor I was assigned to work in the misdemeanor division. This is a fast paced part of the DA’s office. So many cases come through any misdemeanor prosecutor’s door on any given day and this is where you are expected to cut your teeth on jury trials. On this particular ocassion the Court had become disillussioned with the number of cases pending trials and set multiple defendants with multiple cases for the same jury trial dates. Something was bound to get out.

I spent the weekend (the cases were confirmed Friday morning for a Monday jury trial) prepping ALL of my cases. And there was a stack of them. 3 defendants in total. 2 each had 1 case a piece and the final defendant had 3 cases. At the very bottom of the stack was a relatively simple case of driving on a suspended license. It was the very last in terms of priority and unlikely to confirm, or so we thought.

Monday morning came around and I watched as the cases were called widdling down to the very last one. One defendant failed to show up. One pled. One case had a necessary witness that was unavailable. And so we had it. My first jury trial was going to be Driving Under a Suspended License.

It was relatively straight forward. The case boiled down to an officer observing the defendant driving. Based on prior contacts the officer knew the defendant’s license was suspended. The defendant was contacted in the parking lot where he had parked and admitted his conduct. Proof of the suspension came from certified DMV documents that showed proof of notification of the suspension was received. To add to the mix, defendant opted to testify on his own behalf in the trial and TOLD THE JURY HE HAD BEEN DRIVING. A guilty verdict was received.

When the defendant tells you he did something, you beleive it.

One of the most poignant traditions we have at the DA’s office is a tie-cutting ceremony which occurs the first time you receive a guilty verdict on a trial. My scarf (no ties were worn by me) was off of the burgandy blouse I had worn in trial. It hangs in a case with my DDA counterparts as evidence of a job well done.