Posted on by Jessica F. Miller

#15 Caught on Camera: A Jury Trial Focused on Fraud

Worker’s compensation fraud doesn’t get the credit it deserves by my fellow prosecutors. The general public, on the other hand, eats these cases up. My opinion is that the public knows that those are are defrauding the system in this way are harming everyone: insurance premiums rise meaning the costs of goods and services also rise to pay for the difference. Also, these cases tend to involve the use of sub-rosa video surveillance by private investigators hired by insurance companies who follow fraudsters around and catch them in their lies. Who doesn’t love a good “gotcha” moment?

#15 involved a former private security officer who was ultimately convicted of five separate counts of Workers Compensation fraud. Essentially the defendant claimed that as he was putting gas in his work vehicle another vehicle backed into his own causing him to be knocked down. Defendant claimed extensive back, neck and leg pain as a result of this accident and went to seek medical treatment.

In a follow up visit, the defendant changed his story and told doctors that his vehicle “spun around,” knocking him to the ground. Later investigators were able to retrieve a copy of a surveillance tape from the gas station which showed the impact to be minor, revealed the defendant was never knocked down, and showed the defendant walking normally after the impact, but then started limping when the other party involved in the bumper tap saw him. When that individual left, defendant started walking normally again.

Defendant was seen by a variety of doctors during the course of his treatment under his employer’s workers’ compensation insurance and he repeatedly denied any back, neck or leg injuries prior to this. However, investigation later determined he had in fact suffered the same type of back injury he was now claiming when he had been lifting boxes 10 years prior. This prior injury had also been treated under the worker’s compensation system. Defendant had also complained to several co-workers about back pain and was taking pain medication for his back approximately one month prior to the incident. He had not disclosed the prior back injury to his employee at the time of hire. He also failed to report this prior injury to doctors treating the current injury.

Therein lied the fraud. Defendant was required to truthfully report prior injuries to his worker’s compensation doctors so they could make accurate determinations regarding treatment as well as assess what injury was attributable to which event.

The case was further compounded by the extended treatment defendant received. His hesitancy to either return to work or to accept re-training under the worker’s compensation also did not help his case. Lastly, undercover surveillance tapes of the defendant showed the defendant using a cane to enter the doctor’s office, but not on other occasions. He was also filmed lifting bails of hay to feed his horses and lifting 4-5 gallons of milk at a time at the grocery store.

For this case, the validity of the injury actually wasn’t the issue. Back injuries are tricky beasts in the medical world. It is very hard to say when the event happens that causes the problem. I didn’t have to prove the validity of the injury itself though. The issue was whether or not the misrepresentations relating to the prior injury were material in the doctors determinations in the worker’s compensation system and whether or not those misrepresentations resulted in the defendant receiving a benefit he would not have otherwise received.

The sheer volume of information available in this case was a learning experience for me. I had three years worth of medical records from five doctors who ultimately testified. We had video surveillance, co-worker testimony, as well as employment records and prior worker’s compensation claim records. ALL of that information was brought into court. It was not all admitted into evidence-defense counsel and I worked hard to stipulate down the records into packets that were manageable for the jury. However, with a paper case, the magnitude of the information available is sometimes evidence in and of itself.

I can remember a very specific moment when defense counsel was attacking the medical records from one of the doctors. I was able to find the information I needed in the stacks of records, have my investigator copy it, and then mark it as an exhibit in front of the jury. It was only by having a full understanding of all the evidence available to me that I was able to overcome that entire line of questioning by defense. This trial taught me that mastering of all the evidence is essential in jury trials whether or not you intend to use it in your own case-in-chief.

This caught-on-camera fraudster didn’t get away with it. Ultimately he was convicted and was ordered to repay all of the money and benefits he received during the three year period he received care under the worker’s compensation system. Further hearings, after the jury trial, occurred to determine what defendant owed. Ultimately, the worker’s compensation company settled with the defendant to help alleviate the hundreds of thousands of dollars of potential debt he accumulated by the lies he told.

Posted on by Jessica F. Miller

#14 A Do-over Jury Trial

I’ve written (and talked…if you are following my live videos on this topic) about what happens when a jury cannot make a determination about guilt or innocence with 100% certainty. This results in a “hung jury,” which is technically a mistrial. A jury can hang on some charges and not others or it can hang on all the charges; really it just depends on the circumstances. This type of mistrial means the case must be tried again as to whatever count(s) hung.

This is why jury feedback is so important. Our office needs to know what the issues were in order to determine whether or not we should spend the time and resources trying the case again. Usually, we take the feedback in mind and make a offer to the defendant to try and settle the case short of trial. If that gets rejected, or if our office declines to do so, the case get tried in front of a jury again.

Usually, if you are the prosecutor who handled the first trial you will be the one handling the second. Jury trial #14 was a bit different. The prosecutor who handled this particular trial the first time left our office for a new job before this case came back up for trial again. In the meantime, I was moved to cover the assignment and inherited the case having nothing but the transcripts and notes from the former prosecutor’s attempt to get a conviction.

This case involved a bar fight at a local Chico establishment. This particular bar has a bell hung on the wall. Ring the bell, pay for a round. Those are the rules. If a person rings the bell but declines to follow through with the rule, they are escorted out of the building by a bouncer. The defendant in this case, rang the bell but refused to buy drinks. The bouncer tried to escort the defendant out of the bar. After defendant was outside he turned back around and punched the bouncer in the face, breaking his jaw in two different places. Our victim ended up in surgery, ICU and had his jaw wired shut for 8 weeks.

The first time around, the defendant’s statements were not introduced into evidence. This is a common tactic used by prosecutor’s to try and get the defendant to take the stand. In assaultive crimes a common defense is self-defense, but often a defendant will have to take the stand to explain why self-defense was needed. I refer to this as a “Christmas Present” because normally a case doesn’t get any better for a defendant when he takes the stand and subjects himself to cross-examination. It opens him up to discussion of prior bad acts and convictions and subjects him to a level of intense scrutiny by the jury who is watching verbal and non-verbal behavior to see if defendant is credible at all.

However, in this case, it was the lack of key statements made at the time of the incident by defendant that made all the difference. What the jury did not hear the first time was that when the defendant was told he had to leave, defendant told the victim he wasn’t a “punk” and that “it wouldn’t be easy to get him out of the bar.” Our victim placed the defendant in a bear hug and started walking him towards the exit. Defendant struggled, broke free and took a fighting stance. Defendant was then pushed out of the door. The victim then turned his attention to the friends of defendant who had started fighting other bar employees. It was at that time the defendant punched the victim in the face.

The do-over was successful, as my supervisor put it at the time: “This was a second go-around for defendant having previously received a hung jury of 6 for not guilty, 4 voting guilt and 2 undecided. Jessica, not having the benefit of trying the first case, took a fresh approach which resulted in 0 for not guilty and 12 for guilty. Jessica has disprove the old adage that there is no such thing as a felony bar fight.”

There are many tactical decisions to be made when handling a jury trial. Taking a case to trial a second time after a different prosecutor tried it once before showed me that those tactical choices can make all the difference in the outcome. Here, we were able to change things up in a way that resulted in a conviction. But I use this case as a reminder that there is more than one way to try a case; the trick is to chose the right path.

For those of you who are familiar with this local Chico establishment, the bell in question has a plaque under it which reads: “Those who ring the bell in jest, buys a drink for all the rest.” Don’t ring the bell, if you don’t want to follow the rules. And never punch a bouncer in the face.

Posted on by Jessica F. Miller

#13 A Jury’s Struggle: “Being Under the Influence” v. “Being Impaired”

The laws relating to Driving Under the Influence (DUI) have provided a standard formula when it comes to prosecuting defendants who have consumed too much alcohol and chose to get behind the wheel of the car. We have two ways to proceed, and we often proceed with both routes: (1) the defendant’s blood alcohol content (BAC) was above the legally allowed limit of .08% at the time of driving; or (2) the defendant was impaired at the time of driving.

This second theory relies on the objective signs of intoxication present in the defendant as observed by the investigating officer and witnesses on the scene. Bad driving, terrible field sobriety tests, and the admission of alcohol consumption are just a few of the things prosecutors rely on to show impairment.

Being under the influence as it relates to drugs (both legal AND illegal) is a much trickier concept. This is because there is no set standard provided by the law where it is presumed someone is under the influence of a drug. Science has provided us with “therapeutic levels” that can be used, but that simply means that at that particular level the drug is doing what it is supposed to be doing. When drugs are involved, we have to show that the drug caused impairment.

#13 involved a drug related DUI case. The defendant had been driving down a curvy backroad from the Town of Paradise into Oroville near the Lime Saddle Marina. He was driving too fast and failed to negotiate a curve. Witnesses in the opposite lane of traffic saw his vehicle cross a double yellow divide. They had to swerve to avoid being hit. Defendant’s vehicle then continued on, rotating 180 degrees, before falling off an embankment. Luckily the vehicle landed on a culvert pipe that was approximately 25 feet below, stopping the fall into the canyon. Defendant, and his passenger, both exited the vehicle and tried to convince the witnesses not to call police. At first, defendant claimed the passenger was the driver, but eventually admitted to driving and to drug use. Blood results showed: Soma, Valium, and marijuana in his system. All the drugs were within the therapeutic range, except the Soma which was toxic (in this situation “toxic” means above a therapeutic range).

The issue: was this bad driving because of impairment or just bad driving?

There were just too many questions the jury wanted answered by our experts in this case. For example, our officer had not been trained as Drug Recognition Expert (some officers are trained to identify individuals and what potential drugs they are under the influence of based on field sobriety tests and other factors). Because of the lack of training she did not feel qualified discussing the field sobriety tests and how they related to drug impairment, based on her training and experience. Additionally, it was impossible for our pharmacist to tell the jury what level of drug in the blood would lead to impairment. So while it was clear drugs were in the system, the jury had very little guidance on whether or not defendant was impaired by them.

Bad driving was the main indication. But it was bad driving on a dangerous road.

The strangest thing to me was that the jury, after the fact, told me some of the members felt there was a distinction between “being under the influence” and “impairment.” “Under the Influence” is a legal term which is defined by the court in a specific jury instruction given to every jury on this issue:

“A person is Under the Influence if, as a result of consuming or taking a drug, his or her mental or physical abilities are so impaired that he or she is no longer able to drive a vehicle with the caution of a sober person, using ordinary care, under similar circumstances.” (Cal. Crim. 2110)

Some of the jury members felt we had met our burden of showing the defendant was under the influence of the drug, but believed the defendant was not impaired. It took me a while to understand this distinction because impairment is embedded in the definition of “Under the Influence” itself. I think it boiled down to the fact that it was not clear in this case whether the defendant actually had a loss of function or ability that led to to the bad driving or, in the alternative, the defendant just drove badly down a winding backroad in rural Butte County.

The ambiguity in impairment is unfortunate because driving under the influence of drugs is just as dangerous to the public as those who choose to do so with alcohol in their system. It is just more difficult to prove beyond a reasonable doubt. Until we can provide clarity as to what levels we can presume impairment in drug cases, much like we do with the .08% standard for alcohol consumption, this jury struggle will continue.

Posted on by Jessica F. Miller

#12 A “Who-Done-It” Jury Trial

Eye witness identification is a tricky thing. So many variables come into play that there is an entire jury instruction given. Things like: whether the witness knew the person, race, length of contact, stress of event, lighting conditions, proximity, suggestability of line up, and how closely the witness was paying attention are just a few of the variables. Needless to say, in jury trials where the witness and the defendant do not know eachother, it is always a stressful moment to ask for the witness to identify the defendant in front of the jury.

Jury trial #12 was all about identification. It involved the robbery of a female college student at night as she and a friend were walking down the streets of downtown Chico at around 2:ooam. A male subject rode his bicycle up behind them. He said, “excuse me” and rode past them on a silver beach style cruiser. A short time later the male on the bike appeared again. The male rode up to the victims, held a knife out and demanded the victim’s purse. She froze, and the male then grabbed the purse off her shoulder. Her friend grabbed her waist to stop her from being pulled over. The force used ripped the strap off the bag allowing the male to ride off, purse in hand.

The police were called and the general description of a white male adult in his late 20’s or 30’s on a silver beach style cruiser was given. They further described the male as wearing shorts and a black t-shirt with no facial hair and no hat. His hair was short and dark. The male held the knife in his right hand. The knife was described as a blue handle knife with a silver blade.

Approximately 2 weeks later the victim contacted law enforcement again. She had seen the person who robbed her riding the same bicycle in downtown Chico. The individual was detained and both victim and her friend identified the male as the robber from two weeks prior in an in field show up.* The bicycle he was riding was also identified. The victim described the bicycle as having a distinctive clicking sound. At the time of the arrest the male had a knife on his person, which was not identified as the knife used.

Interestingly enough, the defendant lived at a house which contained what I would describe as a bicycle graveyard. Approximately 50 bicycles were parked outside the residence of all types and sizes. Defense counsel also knew that this case hinged on identification and an expert was slated to testify regarding the problematic nature of late identifications. I had done my homework on the issue as well and was ready to go in terms of expert opinions on eye witness identification.

We never got to that portion of the trial. First up was our victim. She testified beautifully as to what happened and it was clear that she was terrified still because of the event. The time came to have her identify the defendant as the individual who robber her. When I asked her if she saw the individual in the courtroom, she said, “yes.” I then asked her to describe where he was seated and what he was wearing. Our victim paused and said, “It’s the individual standing next to the clerk in the Sheriff’s uniform.”

“The Bailiff?” I inquired.

“Yes, that’s weird,” said our victim.

I went into preservation mode as I felt defense counsel ramping up-blood was in the water. I followed up with a booking photo of the defendant and confirmed with her both that the individual in the photo was the individual who robbed her and that it was the person she identified prior in the in field show up. Then I asked her again if she saw that person in the courtroom today. Victim again identified the bailiff as the person who robbed her.

The bicycle defendant was riding was physcially brought into the courtroom. Victim identified the bicycle as the one the person rode.

The witness, her friend, was then called to testify. Unfortunately she was unable to identify the defendant or the booking photo as the person who commmited the robbery.

We had lost the case on identification. The case was dismissed.

Some things are entirely out of our control as a trial attorney. Things like identification of the defendant by our witnesses fall on their memory, and ability to recall under stressful and unfamiliar circumstances. In this case, we will never know whether the defendant was the individual that robbed the victim or just a person riding the same bicycle two weeks later in downtown Chico. I’m certain it wasn’t the bailiff.

*An in field show up is a procedure commonly used by law enforcement when they find a person matching the suspect in public. They drive the witness to the individual and admonish them that the person may or may not be the individual they observed commiting the crime. The witness is told it is just as important to clear the innocent as it is to arrest the guilty. From there the witness is asked whether or not the person they are observing is the individual they observed commiting the crime.

Posted on by Jessica F. Miller · 2 Comments

#11 The Jury Trial Involving Justice for Murphy (the dog)

Murphy riding passenger with Paradise Animal Control in 2015

The biggest takeaway from jury trial #11 was that people in our neck of the woods care about animals, a lot. Animal cruelty was the only charge the defendant in this trial faced and it involved a pit bull puppy named Murphy who sustained multiple injuries to his face and body, as well as a broken leg and dislocated femur. This was discovered when a neighbor contacted animal control because she could hear her neighbor, the defendant, yelling at his puppy, which was followed by thumping noises and yelps.

Animal contol arrived and found the dog with a bloody nose, walking on three legs, with a swollen face, and cuts and scrapes all over his body. Murphy was taken immediately to a Veterinarian. At the time the defendant gave numerous excuses to animal control about how Murphy was injured: (1) Murphy had his foot stepped on by a 3rd party; (2) Murphy had his foot stepped on by defendant; (3) Defendant accidentially ran Murphy over with his bicycle; (4) Murphy got his foot stuck in a fence. The excuses went on and on.

These excuses continued on at jury trial when the defendant took the stand to testify on his own behalf. On the stand we also learned that (5) Murphy had been in a fight with other dogs, (6) had accidentially been dragged behind the bicycle and (7) had gotten his foot stuck in a fence. However, the Veterinian who had treated Murphy was able to sustinctly state that none of the injuries observed on Murphy were consistent with the many unlucky accidents the defendant attempted to portray. In fact, the Veterinarian noted in her report, and on the stand, that the injuries on the dog were in various states of healing which was inconsistent with defendant’s statements. This along with circumstantial evidence (aka the noises heard by the neighbor) was enough to obtain a guilty verdict.

After the verdict was rendered the jury stuck around, not to provide feedback regarding the trial, but rather to find out what happened to the dog. The jury wanted to make sure the dog had been adopted out and was in the hands of a caring individual or family to ensure that the abuse did not continue.

It was a happy ending for Murphy. He ended up working as a partner with the Animal Control Officer’s who rescued him. Over the years I received several photos of Murphy on duty; and not to worry, he took his job as an officer seriously. He was even spotlighted in the local paper for his role with animal control.

In California an individual convicted of animal cruelty is required to taken animal cruelty prevention courses (much like a batterer’s treatment program in Domestic Violence Cases) if they are given a grant of probation. This is to try and curb animal abuse in the future. Defendant’s are also required to repay the cost of care associated with the animal’s injuries as part of ther sentence. Both were ordered in this case.

A picture of Murphy still hangs on my bulletin board in my office as a reminder that justice involves many types of victims, including puppy’s named Murphy.

Watch me talk about this blog post here!
Posted on by Jessica F. Miller

#10 The Jury Trial where I Learned (the hard way) that My Instincts Matter

#10 was my first jury trial with significant media exposure. It involved a victim who went onto property that defendant was squatting at in Chico. He and his dog were attacked by the defendant with a knife and eventually chased off the property. The victim screamed for help as he ran away. One witness opened her door to see what was going on and the defendant threatened her with the knife; prompting the witness to call 911. Another neighbor came outside and the victim hid behind him. This neighbor was threatened with a knife by the defendant too.

The defendant represented himself, in pro per, and claimed that he was acting in self-defense. He took the stand and said his knife was used for “urban and wilderness survival” against an agressive dog being used as a weapon by the victim. However, all the witnesses were in agreement that the dog was not acting agressively even after the dog had been stabbed in the mouth by defendant.

The combination of animal cruelty and the issue of crime as it related to the unhoused in Chico were, and still are, hot-button issues for local media which meant that a reporter covered the entirety of the jury trial. This added an additional layer of pressure to the jury trial as it progressed. It was also my first felony jury trial. To complicate matters further, the defendant was also self-represented.

Pro per defendants are particularly tricky in the realm of criminal prosecution. Prosecutors want to make sure that justice is served, which means balancing the rights of the defendants, the victims, and the public within the parameters of the law. When someone represents themself it falls on the prosecutor to make sure their rights aren’t violated as a jury trial progresses. These cases often get appealed and the pitfalls of self-representation can set up an appealable issue if caution is not used.

Jury selection in this case went longer than I anticipated and I felt that the jury we had were getting impatient with the process. Against my instinct I did not use a peremptory challenge on one of the jurors and that ultimately was a costly mistake. A peremptory challenge, at the time, allowed either side to kick a certain number of jurors off the panel without giving any specific reason why. The particular juror I was concerned about reminded me a lot of my good friend’s grandmother. A woman I had grown up around and loved, but knew was unable to make any hard decisions about wrong doing-she was just too nice.

However, the evidence in this case was strong, so against my instinct she remained on the jury. We conducted closing arguments the evening before and the jury was released to go home before starting deliberations the next morning. This juror showed up the next day with an ice chest full of food for her fellow jury members. A wonderfully kind gesture, but a gesture that solidified the fact that she was going to be problematic for me.

She was. The jury ended up hanging with 11 jurors on the side of guilt and 1 for innocent. My instinct had been right and I had ignored it. This kind woman reminds me to trust my gut at the beginning of every trial I have started since this date and likely into the future. While she hung up the jury on #10, she has reminded me to take the time I need in many trials that have followed. When it comes to jury selection, instincts matter.

Posted on by Jessica F. Miller

#8 The Jury Trial Where the Verdict Was Reached Outside the Courtroom

A lot of effort is involved in keeping our jurors insulated from any outside influences that could affect their opinion of the case. The Court gives them instructions that jurors cannot do any independent investigation, cannot look up or research the people involed on the internet, or do any research on legal concepts. Lawyers and investigators and ordered not to speak directly to jurors at all. Not even a “good morning” or a “hello.” We have to avoid even the appearance of inpropriety.

A jury trial is supposed to take place inside a bubble. The lawyers guide the facts as allowed by the judge and the Court instructs the jurors on the law. It’s the jury’s job to apply the law to the facts in that little bubble to see if a crime was committed-proving that is a prosecutor’s job beyond a reasonable doubt.

#8 was a battery case between two women who were involved in a road rage incident. The defendant got mad because she thought the victim’s vehicle cut her off and then refused to let the defendant pass as both vehicles traveled own Forbestown Road in rural Butte County. The defendant followed the victim into the parking lot of a grocery store and confronted the driver about it. The victim, got out of the car and between defendant and the driver, telling defendant to leave. Defendant then grabbed the victim by the hair and punched her in the face numerous times, leaving a bruise over the left eye and a clump of hair pulled out.

At trial the defendant claimed self-defense saying the victim struck first by chest bumping the defendant numerous times forcing the defendant to stand her ground.

In assaultive crimes the prosecution has to prove that it was not self-defense, which can be a tricky thing to prove. How do you prove a negative? We usually rely on the facts and circumstances of the incident-who threw the first punch, who intiated the negative conduct, the severity of injuries or their location, past history between the two parties etc. We use circumstantial evidence to show that the only reasonable conclusion was that this was not self-defense.

Defense can bring in character evidence of the victim showing they have a tendency to be violent and only then can we rebut that with character evidence of the defendant doing the same.

Self-defense is tricky. And in this case, the only witness we had who was not directly involved in the road rage incident did not see the beginning of the fight. To further complicate matters every witness in this case, including the defendant, provided slightly different versions of events; the case was three years old by the time it got to trial and while everyone tried their best to remember what happened, details fade as time passes on.

Our victim in this case testified and was put through a rather brutal cross-examination regarding her tendency towards violence. She got a little heated with defense counsel on the stand but overall handled the pressure well. What happened outside the courtroom after she was done testifying ultimately swayed this jury to a not-guilty verdict. The jury had been released for lunch and was walking out to their cars. As they did they saw our victim yelling at someone on her cell phone while standing in the hallway of the courthouse. The jury later told me they beleived that the victim was quick to anger based on how she conducted herself in their presence.

In a perfect world the jury would not have seen victim out in the hallway yelling on her cell phone. It was not part of the trial, it was not evidence, and it should not have been considered. But we don’t try cases in a perfect world and the fact of the matter is that everything that happens in a jury’s presence can and will effect the outcome. This one was outside of my control and while the inability to control this behavior was frustrating, it also taught me to be aware of what everyone involved in the trial is doing at any point in the jury trial, because we want to preserve the bubble as best we can.

Posted on by Jessica F. Miller

#7 The Jury Trial Where I Try to be Mean

When you are first learning how to be a trial lawyer you often get encouraged to try different techniques. It can be as simple as using a different method to introduce photos, or maybe using your body language and positioning to suggest important details as a witness testifies. Techniques also include your own tone as a lawyer while questioning a witness or presenting closing argument. There is a lot you can do with your volume, your cadence, or your body language to be persuasive.

I like to try out new techniques to see what works and what doesn’t. One of the benefits of working in criminal prosecution is that I am in the courtroom a lot so I get to see other attorneys practicing law on a regular basis. I’m exposed to different ways to approach our job all the time and the only way to figure out what works for you, and more importantly, what doesn’t work for you, it to try it out and see what happens.

Trial #7 was a domestic violence case involving a boyfriend and girlfriend who had gotten into an argument over the defendant taking the victim’s ATM card. Victim tried to get her card back and defendant grabbed her arm, putting her into a control hold. Both fell into the couch and as defendant got up he kicked the victim.

Victim and a witness, who was in the apartment at the time, both took the stand and both changed their story. They were inconsistent with each other, with the prior statements they made to law enforcement, and with the 911 call that was placed. To put it plainly, this case fell apart on the witness stand.

Because I had nowhere left to go with my evidence, I decided to take a different approach in my direct examinaiton of the victim. I thought perhaps if I was more assertive with my questions through aggressive behavior perhaps the victim would respond in a way showing her unwillingness to testify in court, which would highlight the lies she was telling the jury.

My overly assertive behavior was viewed as just being mean. The jury, the defense attorney, and the judge all commented about the stark difference in my questioning. The defense attorney even said, “man, I didn’t think you could be so mean.” To be clear, I wasn’t being mean. I was being direct. The line of questioning was crafted to call a witness out on her lies without skirting around the issue. In reality, it sounded like a personal attack on the victim by an overly aggressive prosecutor.

One of the most invaluable tools I have learned is that for me, as a female, it does not play well to a jury if I am overly assertive. I want this to be different. I routinely watch my male prosecutor counterparts get away with direct examination exactly like the one I had crafted in this case. It is where I got the idea to try it in the first place. But, when I tried it the attention turned away from the evidence and landed right on me and my “attitude.”

I’ve talked to other female prosecutors in this area and they report similar feedback with overly assertive behavior. Some of my counterparts make it work, others adjust. I have learned to adjust. At certain times with certain witnesses, I can get away with a question or two that cross the line into assertive+, but this trial, and others, have taught me that in my own personal trial practice, an entire line of questioning in this style will not work for me.

Ultimately, my job is to guide the jury through the evidence in a way where they can understand both what it is and why it is important. Then my job is to provide the jury with the tools and arguments they need at the time of deliberation to determine guilt. If I dissappear into the backdrop at the end of the case then I have done my job. Trial #7 ended with the focus on me, which does not serve justice in any way; it is a lesson I carry with me in the preparation of every case that I’ve taken to trial since.

Posted on by Jessica F. Miller

#6 The Court Trial Involving Puppies

Sometimes a defendant will waive their Constitutional Right to a jury trial and agree to have the case decided by a Judge. This happens for a variety of reasons. Sometimes it is a complicated legal argument, or the case could involve some highly inflamatory facts and a defendant may be concerned about a jury’s reaction. Puppies and crime fall into that second category.

#6 was a court trial mainly because the case had grown so old. It had happened in 2009 and involved 30 counts of misdemeanors for animal neglect as well as 3 infractions for Butte County kennel violations. As the case trudged along the co-defendants changed attorneys and an investigating officer moved to a different State. We started the Court Trial 3 years after the incident date, and, due to Court and counsel availability, the case was heard in 3 one-half day increments.

The defendant’s were on probation from a different county in relation to a puppy mill they had run and this case was a result of a compliance check of their probation terms. When probation arrived they found 6 dogs inside the residence in violation of Butte County kennel law. A large storage container was on the property and 17 dogs were found inside without adequate heat (it was February), ventilation, water, or bedding. 13 dogs were also found in a pump house in the same condition. All the dogs were seized and it was determined that they were unkept, had feces on them, and matted hair. Several had tapeworms and giardia. Defendants’ admitted they were collecting the dogs in order to start a breeding program after they finished their existing probationary term.

In this case separate counts were filed for each puppy using the citation issued as the compliant. As a practical matter at trial it made the case a bit difficult. None of the puppies had names and we had to specifically identify where each animal was on the property and their physical condition as reported by the veterinarian. Ultimately, we used a large poster board and the puppy number assigned by the Vet. After sufficiently identifying each animal, we played video of the sad state of the animals in all three locations.

17 pairs of eyes peering out of a storage container on a cold February morning is a powerful peice of evidence. The same went for the 13 puppies piled in crates in the pump house. Defendants’ were found guilty by the Court on all counts.

When it comes to animal neglect and cruelty cases, the law requires that the defendants take a class to learn awareness on how to care for animals and requires resitutiton to the agency who provided care to the animals after they were seized. In this case over $12,000 was spent by Butte County Animal Control to get the animals in a healthy and adoptable condition. The defendants were order to repay that amount. Defendants were also required to be animal free, with the exception of a service animal for one of the defendants.

This case was a perfect example to me of the type of case a defendant may want a Judge to hear, given the inflammatory nature of unkept puppies. It helped me learn the value of organization at the outset when a case involves a lots of charges with many victims. I also learned that some evidence can be damming all on its own; puppies in peril on video is a prime example.

Posted on by Jessica F. Miller

#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.