It seems like every week something happens at one of my court appearances that leaves me shaking my head. After doing the work of a criminal defense attorney for a few years now, nothing surprises me. But something happened in court last week that pushed me over the edge of tolerance. And it happened to me personally.
Simply put, I was "struck" from behind by a court officer. From behind, he jabbed me in the back with his fingers. I'm sure he will characterize it as a "poke", but it felt like some kind of Jedi poke that got me right in a spot that caused pain. This happened four days ago and I still feel the spot where he "poked" me. I keep telling myself what I feel is psychosomatic. The truth is, I feel violated and I am angry about it. I didn't spend 100k to become an officer of the court to be physically violated by a cop in a courtroom.
Why did this happen? The officer said I was disrupting the proceedings and that I disrespected the court (I think he meant I disrespected him). He admonished a colleague and I for talking at a very quiet and un-disruptive volume. Putting the situation in context, the court was a local justice court. No hardened criminals here except a couple of guys in cuffs being arraigned. The vast majority of the cases heard in this court are misdemeanors and traffic offenses. It is simply a zoo in this courtroom. There is never enough room for the 100+ defendants. The judge likes it quiet for obvious reasons.
Shortly after being rudely admonished by the officer for talking, I whispered to my friend that it was the "uniform talking" and we chuckled. Seconds later, I felt like I got stung by a bee with a badge. I was pretty outraged by this incident and as much as can't afford to waste time with stupid stuff, I felt compelled to take some kind of action. Did I complain to the clerks? No, that would have been dumb. After all, they are buddies with the officer and I frankly need to maintain good relations with court clerks. Did I complain to the judge? No, that would have been an even worse idea. I could just imagine her eyes rolling in to the back of her head. And even more importantly, I need to maintain good relationships with judges.
So I filed a civilian complaint with the Guilderland Police Department. They took my calls seriously. Maybe a phone call from a defense attorney complaining about police conduct in court was cause for concern. After all, this particular police dept. has had its share of problems in the past few years. I met with a sergeant. He was very polite and nice. He asked me what I wanted to see happen. My response was that a minimum, I wanted this officer to recognize his mistake and learn that he can't do stuff like that. I was assured he would be reprimanded and will be pulled from court assignments.
I realized that my biggest problem with this situation is that this officer should not be allowed to behave in an unlawful and improper manner. If he felt it was ok to do this to me, a lawyer in court, what would he do to a guy on the street? I understand that there is no way this officer's offense against me would ever be prosecuted. Despite the fact that New York Penal Law 240.26 defines 2nd degree harassment as occurring when a person with intent to annoy or alarm someone, physically strikes or otherwise subjects the victim to physical contact. He is guilty of this violation.
This event really sent home one of the bedrock reasons I feel my job is important. Criminal defense lawyers stand up to police misconduct. We have an attitude about government misconduct that fuels our fires. Official misconduct must be sanctioned. Unfortunately, our job is like pushing a boulder up a mountain.
Finally, the most outrageous thing about this event was that the Officer told to me leave and that my cases were being adjourned! Can you believe this? Of course I refused and after a staring contest he backed down. That was after he told the ADA and the clerks to adjourn my cases. For any lawyer reading this, imagine you are in court for a felony arraignment and you are ordered to leave by a security guard. Or maybe the speedy trial clock was running? This obviously would have been an adjournment without consent, time charged to the people. If leaving would have worked in favor of my clients that night, I would have.
Monday, October 18, 2010
Saturday, October 9, 2010
Judge Me Not
There has been some discussion in the Bsphere lately about this Judge in Mississippi who held a lawyer in contempt and sent him to jail for refusing to recite the pledge of allegiance. Oh I could write for hours about what is so wrong about this, and if I have to explain it to you are living on a different planet than me. But if you want a good rant about it check out Mark Bennet's post about loyalty oaths. I have decided to write instead about a few "judge crazy" moments I have experienced in the past few months. Sorry, but they are far less dramatic than contempt.
Me: "Your honor, my client is a first time misdemeanor drug offender with mental health and physical issues. I am concerned about his well being if he is sentenced to county jail".
Judge: "Don't worry counselor. There are no blacks in that jail".
The problem here? Pretty obvious.
Me: "Your honor, It was not my understanding that the court required a plea today. I thought the agreement was to conduct a pre-plea investigation".
Judge: "I don't do those. You are wasting my time". Turning to the DA he says, "indict him, no deal".
The problem here? The judge is a neutral and detached magistrate who is prohibited from being involved in the decision to prosecute. It's called separation of powers.
Me: "Your honor, my client is an eligible offender under the judicial diversion statute".
Judge: "Well if he had marks all over his arms it might be different. But he sold heroin".
The problem here? The judicial diversion statute does not discriminate on the basis of what controlled substances are involved. Without further consideration of judicial diversion for an eligible offender, the judge is thwarting the law.
I'll end with the story about a judge who bitched me out twice for appearing without my client. The CPL in New York allows clients to appear by counsel in traffic cases with "good cause shown". I guess it is up to the judge to evaluate good cause, but a client who has to fly to get to court should qualify for having good cause not to appear. That was not good enough for this judge. Twice he lambasted me in front of a packed courtroom (with other clients of mine present) about how I was showing dis-respect for his courtroom. Rather than point out that the statute provides for appearances in absentia, I honestly stifled a giggle. If anyone should have been embarrassed, it should have been the judge.
Me: "Your honor, my client is a first time misdemeanor drug offender with mental health and physical issues. I am concerned about his well being if he is sentenced to county jail".
Judge: "Don't worry counselor. There are no blacks in that jail".
The problem here? Pretty obvious.
Me: "Your honor, It was not my understanding that the court required a plea today. I thought the agreement was to conduct a pre-plea investigation".
Judge: "I don't do those. You are wasting my time". Turning to the DA he says, "indict him, no deal".
The problem here? The judge is a neutral and detached magistrate who is prohibited from being involved in the decision to prosecute. It's called separation of powers.
Me: "Your honor, my client is an eligible offender under the judicial diversion statute".
Judge: "Well if he had marks all over his arms it might be different. But he sold heroin".
The problem here? The judicial diversion statute does not discriminate on the basis of what controlled substances are involved. Without further consideration of judicial diversion for an eligible offender, the judge is thwarting the law.
I'll end with the story about a judge who bitched me out twice for appearing without my client. The CPL in New York allows clients to appear by counsel in traffic cases with "good cause shown". I guess it is up to the judge to evaluate good cause, but a client who has to fly to get to court should qualify for having good cause not to appear. That was not good enough for this judge. Twice he lambasted me in front of a packed courtroom (with other clients of mine present) about how I was showing dis-respect for his courtroom. Rather than point out that the statute provides for appearances in absentia, I honestly stifled a giggle. If anyone should have been embarrassed, it should have been the judge.
Visual Speed Estimates
I have been struggling to finish this post for days now. The truth is, I think it is very boring. But since I wrote it I should post it.
Whether you are trying a speeding ticket case or challenging a traffic stop at a suppression hearing, you will have to deal with visual speed estimate testimony. In New York and in many other states, an officer's testimony that he visually estimated a speed is enough to sustain a conviction at trial, or meet the state's burden of proof to prove a lawful traffic stop at a hearing. I often have to explain this fact to prospective clients who are understandably incredulous about this fact. I don't blame them. It's not that I don't believe an officer can accurately visually estimate a vehicle's speed. They can. And they are trained to do so, and must pass a test demonstrating their proficiency. My problem stems from an officer's recent refusal to answer my questions about this particular skill on the stand. I did not believe he was being truthful and the judge let him off the hook by shutting down my cross-examination.
At the recent DWI pre-trial hearing I cross examined a Trooper extensively about his "skill" at estimating speeds. Initially, I objected to the visual estimate coming in as evidence in the state's case for lack of foundation. For non-lawyers, a foundation is evidence that makes other evidence admissible. For example, if a doctor is going to testify about his opinion, he first must establish he is qualified to render one. Or in a DWI case, before evidence of a breath test is admitted, the state must produce documents establishing that a breath test device was working properly. The foundation required for visual estimates to be admitted in evidence is clay and stone at best. All that is required is testimony that the officer was trained and is experienced. They don't have to explain how it is done. Apparently there is no method to it. You just guess until you are good at it. That's it. An educated guess or dead reckoning, as some call it.
At my recent hearing I didn't believe the Trooper when he said he did a visual estimate the night he pulled my client over. It doesn't really matter too much whether he did or did not for my case, but I was really frustrated by his answers to my questions. He didn't indicate anywhere in his paperwork that he did a visual estimate. He refused to admit there is a method of any kind. I always thought it was a matter of dividing a car's travel distance by time. Using an internal clock or timer, you can pick two points a certain distance apart and time how long it takes for the car to traverse the points. It's math after that. I believe that a police officer, in a stationary vehicle on a familiar road, who has a perpendicular view of the road, probably visually estimates speed without thinking to much about it. But what about at night, and from a moving patrol car traveling in the opposite direction of the suspect (as in my case)? Are the police trained to perform visual estimates in these conditions?
To wrap up, I'm really glad I got this silliness out of my system. There are bigger fish to try (i meant fry). This case is heading for trial though and I need to impeach somehow. In hindsight and for future reference, when I deal with a visual estimate issue involving cars at night from a moving patrol car, I will at least argue the police are not trained to do visual estimates under those circumstances.
Whether you are trying a speeding ticket case or challenging a traffic stop at a suppression hearing, you will have to deal with visual speed estimate testimony. In New York and in many other states, an officer's testimony that he visually estimated a speed is enough to sustain a conviction at trial, or meet the state's burden of proof to prove a lawful traffic stop at a hearing. I often have to explain this fact to prospective clients who are understandably incredulous about this fact. I don't blame them. It's not that I don't believe an officer can accurately visually estimate a vehicle's speed. They can. And they are trained to do so, and must pass a test demonstrating their proficiency. My problem stems from an officer's recent refusal to answer my questions about this particular skill on the stand. I did not believe he was being truthful and the judge let him off the hook by shutting down my cross-examination.
At the recent DWI pre-trial hearing I cross examined a Trooper extensively about his "skill" at estimating speeds. Initially, I objected to the visual estimate coming in as evidence in the state's case for lack of foundation. For non-lawyers, a foundation is evidence that makes other evidence admissible. For example, if a doctor is going to testify about his opinion, he first must establish he is qualified to render one. Or in a DWI case, before evidence of a breath test is admitted, the state must produce documents establishing that a breath test device was working properly. The foundation required for visual estimates to be admitted in evidence is clay and stone at best. All that is required is testimony that the officer was trained and is experienced. They don't have to explain how it is done. Apparently there is no method to it. You just guess until you are good at it. That's it. An educated guess or dead reckoning, as some call it.
At my recent hearing I didn't believe the Trooper when he said he did a visual estimate the night he pulled my client over. It doesn't really matter too much whether he did or did not for my case, but I was really frustrated by his answers to my questions. He didn't indicate anywhere in his paperwork that he did a visual estimate. He refused to admit there is a method of any kind. I always thought it was a matter of dividing a car's travel distance by time. Using an internal clock or timer, you can pick two points a certain distance apart and time how long it takes for the car to traverse the points. It's math after that. I believe that a police officer, in a stationary vehicle on a familiar road, who has a perpendicular view of the road, probably visually estimates speed without thinking to much about it. But what about at night, and from a moving patrol car traveling in the opposite direction of the suspect (as in my case)? Are the police trained to perform visual estimates in these conditions?
To wrap up, I'm really glad I got this silliness out of my system. There are bigger fish to try (i meant fry). This case is heading for trial though and I need to impeach somehow. In hindsight and for future reference, when I deal with a visual estimate issue involving cars at night from a moving patrol car, I will at least argue the police are not trained to do visual estimates under those circumstances.
Tuesday, October 5, 2010
Warren Redlich for Governor
Any New Yorkers out there want to live in the coolest state in the country? Vote for Warren. Here's why:
He is a man's man. A loving father. A humanitarian. He is fiscally conservative. He likes guns. He is compassionate for the downtrodden and sick. He thinks marijuana policy is backwards. He likes fast cars, especially fuel efficient cars. He likes good food. He is generous. He is nice. He is opinionated and aggressive. He knows Tae Kwon Do and will kick some ass in Albany. He holds a degree in economics from Stanford. He is funny. He is smart. He employs people. He is not rich but does well. Special interest groups probably think he is dangerous. He never shared a cigar with Monica Lewinsky. His father was a brilliant law professor at Albany law School. He takes care of his mother. His wife is also very smart, very sweet, and his current law partner at the Redlich Law Firm. He is different. He is controversial. He loves Ron Paul.
What an endorsement! Seriously, I know Warren pretty well being a former associate of his at the Redlich Law Firm. He would make such a difference in New York. This state is turning in to a third world country. I think the rest of my fellow Empire State brethren would like to maintain our way of life with little things like access to the public parks we all own. Warren's slogan is "Stop Wasting Money". Governor Paterson insisted that we couldn't afford to pay to keep state parks open this past summer. When one thinks of the money wasted on things like interest on bad state investments, the cost of marijuana prosecutions, and drug offender incarcerations, remember that New York's natural beauty was nearly foreclosed on because our priorities were elsewhere.
Let's regain some sanity. Let's elect a man of the people like Warren.
My name is Christian deFrancqueville and I approve this message. Nothing contained in this blog post should be regarded as factually accurate other than things mentioned that are factually accurate. I am not employed by the Redlich Campaign. I am just a fan and I intend on voting for Warren. If I get my hands on one somehow, I will plant one of his signs in my yard. I intend on contributing to his campaign tommorow.
He is a man's man. A loving father. A humanitarian. He is fiscally conservative. He likes guns. He is compassionate for the downtrodden and sick. He thinks marijuana policy is backwards. He likes fast cars, especially fuel efficient cars. He likes good food. He is generous. He is nice. He is opinionated and aggressive. He knows Tae Kwon Do and will kick some ass in Albany. He holds a degree in economics from Stanford. He is funny. He is smart. He employs people. He is not rich but does well. Special interest groups probably think he is dangerous. He never shared a cigar with Monica Lewinsky. His father was a brilliant law professor at Albany law School. He takes care of his mother. His wife is also very smart, very sweet, and his current law partner at the Redlich Law Firm. He is different. He is controversial. He loves Ron Paul.
What an endorsement! Seriously, I know Warren pretty well being a former associate of his at the Redlich Law Firm. He would make such a difference in New York. This state is turning in to a third world country. I think the rest of my fellow Empire State brethren would like to maintain our way of life with little things like access to the public parks we all own. Warren's slogan is "Stop Wasting Money". Governor Paterson insisted that we couldn't afford to pay to keep state parks open this past summer. When one thinks of the money wasted on things like interest on bad state investments, the cost of marijuana prosecutions, and drug offender incarcerations, remember that New York's natural beauty was nearly foreclosed on because our priorities were elsewhere.
Let's regain some sanity. Let's elect a man of the people like Warren.
My name is Christian deFrancqueville and I approve this message. Nothing contained in this blog post should be regarded as factually accurate other than things mentioned that are factually accurate. I am not employed by the Redlich Campaign. I am just a fan and I intend on voting for Warren. If I get my hands on one somehow, I will plant one of his signs in my yard. I intend on contributing to his campaign tommorow.
Subscribe to:
Posts (Atom)