Don’t Forget that Police Cars Contain Video Cameras

I recently ran across video posted on a New Jersey law firm’s blog of a man singing Queen’s Bohemian Rhapsody at full volume after he had been arrested for DUI.  Apparently this gentleman did not realize that most police cars are equipped with video facing forwards (to record a stop and arrest) and backwards towards the back seat – to record everything done or said by an arrested person.

The police have the right to record you when you are in custody.  At the same time, you have the right to remain silent and you should exercise that right.  If you say anything, it should be that you want to speak to your lawyer.

Singing or doing anything that could be used as evidence of your intoxication is definitely not a good idea.   Should your case go to trial, you can be sure that the prosecutor will play the video of you singing or otherwise carrying on, for the jury.

If you were arrested and did engage in the type of behavior as the gentleman in this video, please tell your lawyer.  In some instances we can move to suppress this evidence and keep it away from the jury.   Even if you do not intend to go to trial, getting prejudicial evidence like this ruled as inadmissible will result in more favorable please negotiations.

Thanks to our colleagues at Console & Hollawell for the inspiration.


A Defense of the DUI Law Practice

Every DUI lawyer has faced the question “how can you face yourself in the mirror in the morning, knowing that you are defending drunk drivers who might cause injury or death to innocent men, women and children?  Wouldn’t we all be better off if drunk drivers lost their licenses permanently and were left to rot in jail for months or years?”

Persons accused of driving under the influence garner little sympathy, especially those with multiple offenses.   How can any lawyer want to get a repeat offender off on a technicality?

Here is how I respond:

First, the goal of any reputable criminal defense lawyer is to investigate to determine whether the state (in the form of the police officers and the prosecutors) have done their job according to the law.  In the American system, criminal prosecutions are adversarial in nature, meaning that the state’s attorneys (the prosecutor) and the defense attorney are on opposite sides.

Our founding fathers recognized that representatives of the state have significant resources and built in authority when appearing before juries.  Such power can be abused if not held in check.   Unfettered police power can turn a free society into an authoritarian one.   History has shown that when agents of the state can enter people’s homes at will, detain them indefinitely, and incarcerate without critically analyzed evidence, personal freedom disappears.  We can both support the hard work and bravery of policemen and women while at the same time demanding that these officers take care to collect and store evidence properly, advise the accused of certain constitutional rights and engage in a certain baseline of appropriate conduct.

How does all this apply to a DUI case?  Take a look at this informative article about blood alcohol testing kits in Georgia from respected Newnan, Georgia DUI defense attorney Alan Trapp.   Alan discusses the blood collection kits used by state and county police forces in Georgia and the potential for false results because of stale preservative or a defective seal.  Now imagine that you consumed one beer at dinner and were randomly stopped at a DUI checkpoint.  Further assume that the DUI kit used by the local police officer was contaminated with a yeast called Candida albicans that began to ferment when blood was added.  Further assume that there was insufficient preservative in the test kit.  A properly calibrated kit might have shown your blood alcohol content at .03, well below the legal limit, but the contaminated kit yielded a result of .09. [Read more…]

Supreme Court Vacates Murder Conviction Because a Juror Gave the Trial Judge a Chocolate Penis as a Gag Gift

Laws that describe various crimes may be set out in both state statutes as well as federal statutes.  Generally crimes that are “local” in nature such as burglary, assault, rape and murder are state law crimes, whereas interstate drug trafficking, organized crime and crimes that occur in multiple states are federal crimes.  Sometimes, a defendant can be prosecuted by both a state prosecutor (i.e. the district attorney) and a federal prosecutor (the United States Attorney).

When a defendant is convicted of a state law crime such as murder, he will generally file an appeal to a state appeals court.   Appeals generally involve supposed errors of law – the defendant may contend that certain evidence was improperly admitted or that the jury instructions were wrong.   Except in rare instances the appeals court will not reverse a conviction based on the judge or jury’s evaluation of the evidence.  In other words, an appeal of a criminal conviction is not a new trial – the defendant must convince the appeals court that the trial court made significant errors that could have changed the outcome.

If a defendant loses his state court appeals and does nothing further, the state will enforce its penalty by leaving the defendant in prison, or in capital cases, by executing the defendant.

Because “death penalty” cases involve the ultimate penalty, capital defendants have a second layer of appeal available to them under a concept called “habeas corpus,” which allows a federal court (and federal appeals courts, up to and including the United States Supreme Court) to consider issues involved in the state court trial or subsequent appeal as Constitutional matters.  The “due process” clause of the 14th Amendment to the Constitution guarantees all citizens fundamental fairness and justice in all criminal prosecutions, and the federal court can review the decisions of the state trial and appeal courts even in cases not involving federal criminal law.

Successful habeas corpus appeals are rare.   Federal judges have the power to decide which cases they will consider – thus there is no guarantee that the federal courts will accept a case for review.  The further along the appeal process a case travels, the less likely that it will be heard, much less be decided in the defendant’s favor.   Very, very few cases end up before the United States Supreme Court – only cases involving important legal issues with far reaching consequences will be accepted by the Supreme Court for review.

One such case that has made it through both state appeals procedures and federal appeals procedures all the way to the United States Supreme Court is the case of Wellons v. Hall, the case involving the chocolate penis.

Defendant Wellons was convicted by a Cobb County jury of the rape and murder of a 15 year old girl named India Roberts.  Because of the vile and horrible nature of the crime, the jury sentenced defendant Wellons to death for the murder and life in prison for the rape. [Read more…]

Update on Troy Anthony Davis Case

In previous blog posts, I have discussed the case of Troy Anthony Davis, a Savannah man convicted of murdering a police officer in 1989.   Mr. Davis current sits on Georgia’s death row, while attorneys pursue all available remedies.

Davis’ current (and possibly final) appeal rests in the United States Supreme Court.  On June 29, 2009, however, the Supreme Court concluded its 2008-2009 session without making any decision on Mr. Davis’ petition for habeas corpus.   A petition for habeas corpus is a demand for extraordinary relief and is used in a criminal matter when a defendant contends that he has been denied due process by lower courts.

At this point, Mr. Davis is asking the Supreme Court to set into motion a process whereby he would end up with a new trial on the evidence.  He contends, among other issues, that since the original trial the eyewitnesses to testified against him in the original trial have recanted, and that other witnesses, previously unknown, were now available to testify.

In addition the Georgia Resource Center, which provided legal help for Mr. Davis (as well as for other indigent defendants) found its budget and staff cut, thereby reducing its effectiveness in presenting Mr. Davis’ case.

Davis’ plight has also garnered the attention of activists and celebrities throughout the world who are voicing support for a new trial. [Read more…]

11th Circuit Panel Hears Troy Anthony Davis Argument

In October of this year, I wrote a blog post about the Troy Anthony Davis capital murder case.  At that time, Mr. Davis was scheduled to die, although his lawyers were actively seeking a stay in his execution.

The 11th Circuit Court of Appeals did, in fact, stay Mr. Davis’ execution, and on Tuesday, December 9, 2008, a three judge panel of the 11th Circuit heard arguments as to whether Mr. Davis and his attorneys have presented enough evidence to continue the stay of execution and to permit defense attorneys to pursue different theories of appeal.

Note that the 11th Circuit panel was not deciding guilt or innocence or even whether a new trial was warranted.  They were considering a very narrow procedural matter – was there enough evidence to continue to the stay of execution so that Mr. Davis would have time to present an argument for a new trial.

A decision has not yet been issued by the 3 judge panel and there is no indication as to when it may be released.  In the meantime, Mr. Davis, his family and supporters will continue to hope for redress, and Officer MacPhail’s relatives will continue their vigil for closure.

The Troy Anthony Davis Death Penalty Case – What do You Think?

The criminal law blogosphere has been discussing the case of Troy Anthony Davis – a Georgia man who was convicted of murdering a Savannah police officer in 1989.  Mr. Davis was convicted of this crime based on testimony from multiple eyewitnesses and was sentenced to death.  Just go to and enter “Troy Anthony Davis.”

Recently, Mr. Davis’ attorneys filed an appeal to both the Georgia Supreme Court as well as the United States Supreme Court arguing that the conviction should be overturned because several of the eyewitnesses have “recanted” their testimony.  The attorneys argue that to execute a defendant with a “strong claim of innocence” would be a violation of the Bill of Rights prohibition against “cruel and unusual” punishment.

My colleague, blogger Paul Kennedy of Houston, weighs in on this controversy with a blog post entitled “Its not Cruel and Unusual to Execute an Innocent Man.”  Paul argues:

that just because a citizen was given a fair trial doesn’t mean that the verdict is correct?  When it comes to deciding whether or not a fellow citizen’s life is to be taken away by the state, the very least we can do is make certain that the state is killing the right person.

On the other hand, Atlanta Journal-Constitution editorial writer Jim Wooten says this:

Before you buy-in to the Troy Anthony Davis PR campaign, go to the source. Read for yourself the Georgia Supreme Court decision handed down March 17 that dealt with quality of the alleged recantations in the murder of Savannah police officer Mark Allen MacPhail. Cut out the spin. Read Justice Harold Melton’s majority opinion.

There have been many studies which demonstrate that eyewitness testimony can sometimes be seriously flawed.  Often our memories of what we genuinely believed that we saw are simply incorrect.  On the other hand, eyewitness testimony has long been accepted by our courts as an acceptable basis for finding criminal liability.

Like many of my fellow bloggers, I am concerned with the prospect of putting an innocent man to death.  On the other hand, I think that the family of the slain Savannah police officer does deserve justice.

I encourage you to take a look at the Georgia Supreme Court opinion.  Here are some of the facts that are not in dispute:

In the early morning hours of August 19, 1989, Troy Davis was at a pool hall with his friends Sylvester Coles and Darrell Collins.  Nearby a homeless man named Larry Young was exiting a convenience store with a six pack of beer.  Coles approached Young to ask for a beer but Young refused the request.  Coles then followed Young, cursing and screaming at him.  Davis and Coles circled around a nearby building and together with Coles, surrounded Young.  Davis then pistol whipped Young, severely injuring him.  An off duty police officer, Mark MacPhail observed the altercation and approached Davis and Coles.  Officer MacPhail was subseqently shot and died on the scene.  Davis says that Cole was the triggerm, and Coles points the finger at Davis.

Earlier that night a man named Michael Cooper was shot at a party.  Several eyewitnesses named Troy Davis as the shooter.  Bullets removed from Cooper’s body during treatment matched bullets removed from Officer MacPhail’s body.

During the investigation, several witnesses were interviewed by the police and stated that Davis had confessed the murder of Officer MacPhail.   Larry Young identified Davis as the person who struck him on the head with a pistol.  Darrell Collins, who had run from the immediate area of the Young-Davis/Coles altercation, testified that the person who struck MacPhail also shot him.

Subsequent to the trial that resulted in Davis’ conviction, several of the witnesses noted above changed their stories.

Davis was convicted of murder, not for being a really bad person.  A jury heard the evidence presented, including the witness testimony and concluded that Davis was the murderer.

I encourage you to read the heartfelt opinions of fellow bloggers who sincerely oppose the death penalty and who stand for the principle that the state needs a great deal of certainty before taking a convicted criminal’s life.   You will note that few, if any, of these bloggers report the undisputed factual background of this case.  Does it matter?  Should the Georgia courts ordered a new trial?  Does the recitation of facts shapre your opinion?  What do you think?

Supreme Court Concludes that DUI is not a “Violent Felony” for Purposes of Armed Career Criminal Law

Very few DUI cases find their way to the United States Supreme Court.  Generally DUI cases are a matter of state law and over the years, the Supreme Court has been fairly deferential to the arguments put forth by lawyers representing the government and police departments.  Obviously everyone supports the goal of removing impaired drivers from the road, and groups like MADD have done a good job in keeping political pressure on lawmakers to make DUI punishments harsher.

Nevertheless, the law does not treat every DUI defendant the same way because some DUI offenders are more culpable than others.  Further, the law requires that the prosecutor prove his case.  It is not enough that the police officer “thought” that an individual was under the influence – there needs to be proof, which can include blood test, breath tests and other types of evidence.

Recently, the Supreme Court agreed to hear the case of Begay v. United States, a decision which was released in April, 2008.  In the Begay case, the defendant (Begay) was arrested in New Mexico for unlawfully possessing a firearm, a violation of federal law.  Mr. Begay was a convicted felon and thus was not permitted to possess a gun.

Following a trial, the federal judge hearing the case sentenced Mr. Begay to 15 years under the Armed Career Criminal Act, which mandates a 15 year sentence to a felon who is convicted of possessing a firearm and who has three or more convictions for “violent felonies.”  The violent felonies relied up on by the judge were Mr. Begay’s 12 DUI convictions.

Clearly, Mr. Begay is not a sympathetic defendant.  However, the law requires three or more convictions for violent felonies.  The Supreme Court held that DUIs are not violent felonies because a DUI is usually not an intentioal act to hurt another person, and because the examples of violent felonies set out in the Armed Career Criminal Act were of a substantially different nature than a DUI.

Does this mean that Mr. Begay is not a dangerous person or that he should not be incarcerated?  No.  It does mean that he should not be convicted of a crime when his conduct does not equal the conduct procsribed in the statute.

Can Chewing Tobacco Cause a False Positive Alcohol Breath Test?

California DUI lawyer and blogger Lawrence Taylor writes about a case in Kentucky where a DUI defendant is fighting DUI charges based on a claim that his chewing tobacco contained small amounts of Tennessee whiskey (for flavoring purposes) and that the breath test inaccurately showed an over-the-limit blood alcohol level.

Attorney Taylor explains that:

To obtain the percentage of alcohol in the blood, the breathalyzer machine is basically programmed to multiply the amount by 2100 times (called the partition ratio) to get the equivalent amount in the blood.  This is because the alcohol in the lung air (called  alveolar air) has been greatly attenuated in the process of being transferred from the blood into the lungs.  In other words, the machine is programmed to assume that the sample is alveolar air.  If the alcohol has not passed through the body and into the lungs, however, but is still in the mouth, the machine is multiplying alcohol 2100 times when it should not be multiplying it at all.  And it doesn’t take much alcohol to get a high reading if it’s being multiplied 2100 times.

I am not aware that this defense has been tried in Georgia, but it is intriguing.  How many common products include alcohol?  Mouthwash, cough medicine, pastries (rum cake).   If anyone has tried this defense, please let me know.

Breath Test Devices that Shut off the Ignition if the Driver’s Breath Shows Alcohol Above the Legal Limits

Hawaii is considering a law whereby drivers convicted of DUI will have to pay for the installation and monitoring of breath test devices in their vehicles.  The devices work by shutting off the ignition if the driver’s breath generates an alcohol reading over the legal limit.

These devices cost $150 to install and $75 per month to monitor.

I have no issue with any tactic that can take drunk drivers off the road, although I can certainly envision scenarios whereby a driver will be inconvenienced if the device malfunctions.   My question – will accident victims and/or drunk drivers themselves – have any recourse against the breath test manufacturer if the device fails to stop an intoxicated driver from starting his car?

Hawaii leads the nation in the percentage of traffic deaths involving drunk driving (52% of total highway deaths).

Eyewitness Testimony Not Always Reliable

I recently came across an interesting article in the Baltimore Sun that addressed the issue of eyewitness testimony. According to a lawyer who works for the Innocence Project – a group of lawyers who work to reopen cases to introduce DNA evidence – seventy percent of successful exonerations involved convictions based on eyewitness testimony.

This does not mean that eyewitness testimony is always bad – it does mean that there are legitimate grounds (and perhaps reasonable doubt) to challenge a case when the only evidence is eyewitness testimony.