On Monday, September 12, at about 11:30 am, I was contacted by a client who was set to start a trial that afternoon at 1:30 with a public defender. He was being charged with both DUI and assaulting a police officer. I agreed to go to court with him and fully believed that the Judge would grant me a continuance to prepare to do his trial. When I got to court and saw the public defender’s file, it was clear that NO work had been done on the case at all. No experts consulted no investigations, no subpoenas, no notes….. NOTHING! I was even more convinced that this judge had to grant my continuance request to prep the defense. I had been in this position before and had always been granted the time necessary to prepare case when the previous lawyer had not done an adequate job and in this case, the PD had done NO work at all.
However, the judge refused and would only allow me to substitute in as the attorney of record if I agreed to start trial, as scheduled, at 1:30 that afternoon. Normally I would not agree to do a trial with no preparation but in this case my client was faced with the prospect of doing the trial with a PD who just didn’t care enough to do anything or doing it with me, who could be as equally prepared as the PD in about 5 minutes. Because of the unusual circumstances of this particular case, I agreed and the trial started at 1:30.Today, one week after meeting my client and beginning the trial we got our verdict… NOT GUILTY on all counts.Why did we win? A number of factors, including:
- The assaulting a police officer charge was very weak and amounted to little more than twisting when being moved while handcuffed. I have always liked the joinder of a weak charge with a more difficult one as it can, as it did in this case, make both charges look weak. I emphasized the Police misconduct.
- My client and his Fiancé were sympathetic. I put them both on the stand as I knew the Jury would “feel” for them even if they did not believe everything they said.
- Since the BS assault led to not giving the official breath test (they marked it a refusal though it wasn’t), I argued that not having the good evidence was their fault.
- Got the police officer to admit that he did not watch for burping before giving the preliminary alcohol screening (he did not think it affected the test) and then got both their expert, and ours, to say that burping can give a false high reading.
There were obviously a lot more that went into our victory then that. I am just glad that I was able to help a good person avoid being railroaded by what, in this case, seemed to be an out of control justice system.