5 Angry Old Women

12 Angry Men might struggle and deliberate for days to find a man not guilty of murder, but 5 angry old biddies can decide guilt pretty quickly.  In 21 minutes, I got a jury verdict of guilty today based upon no evidence.  I thanked the jurors for their time, because that’s how jurors should be treated, but I do not respect the decision.

Jury selection is paramount in DUI cases.  As a defense lawyer, you need jurors who are willing to listen to the fact and decide hard questions before they cast judgment.  When the random numbers fall against you, however, you might end up with a bad jury pool no matter how hard you try to get a fair and impartial jury.  In today’s pick, I used all my challenges, and the judge would not permit challenges for cause. I ended up with a jury that did not care about “proof” or “evidence.” (My only good juror was kicked off at the end of the trial as the randomly selected alternate juror. Ugh.)

5 little old ladies walked out with one young man. That was my jury, and each of the old women looked dour, nasty, and angry.

No surprise, the single juror who stuck around to talk was the young man. He shared a few words with me. He explained that they all agreed that the  “preponderance of evidence” suggested my guy might have drank, and the “totality of circumstances” suggested he was guilty.  That’s not the legal standard, which requires affirmative proof beyond and to the exclusion of reasonable doubt.

My client was accused of making a sharp left turn.  In the prosecutor’s words, “had a car been there, he would have struck it.”  But… in the middle of God-awful no where, it did not result in an accident, since there was no car present in the hypothetical lane violation that went unrecorded by patrol car video.  Nor was there any danger when my client touched the dotted lane markers when his left tires touched them for a total of 2 seconds.  This was the only infraction that actually appeared on video, and it took an incredible stretch of the imagination to see it.

There was no breath or blood test. No numbers at all.

With no chemical test results, the client’s alleged improper recitation of the alphabet must have seemed quite incriminating.  He was told to say it from A to Q, but he said A to T.  Holy Jeez, Louise!  Get this man off the road.  And when asked to count backward from 72 to 57, he stopped at 63.  He also did the finger-count improperly.

The judge would not permit me to ask the officer to say his alphabet or count backwards, even though several police officers have failed this so-called test during jury trials.

There are good field sobriety tests and bad sobriety tests.  These were not validated tests.  The cop admitted it.  They were meaningless, in fact.

Over objection, these non-standard tests were admitted as evidence that the client was drunk.  The jury considered this evidence in combination with the prosecutor’s repeated comment that there was a “STRONG” odor of intoxicants.  The prosecutor repeatedly said “strong” about 42 times, even though the odor is meaningless, and the officer admitted it several times.

Now, I still have confidence in jurors, so I can’t be all that hard.  The real problem here was the that the judge initially read a charge of high BAC over .17 and then allowed the prosecutor to argue and say everything under the sun, while prohibiting me from asking the hard questions.  It was a constant interruption from the prosecutor and the judge.  Nonetheless, the jurors share a huge amount of blame because they were charged with the most serious civic duty under our laws… and they basically couldn’t get out of the court fast enough.  It was Friday, after all.