5
Sep/10

Indepent Judiciary?

by Wayne under Uncategorized

Recently one of my readers sent me a long, thoughtful question regarding the role of the judiciary in our court system. As he pointed out the judiciary is supposed to be a branch of the government that is separate, but equal.

The Legislature passes the laws. The executive branch enforces the laws. The judicial branch interprets the laws. Of course at the trial level there is very little interpretation going on. Trial judges are supposed to enforce the law as it has already been interpreted by the appellate courts. The trial judges of the judiciary branch preside over the day-to-day operation of the courts.

They handle motions, pretrial rulings on evidence, and they preside at hearings and trials. It is a very important job. It is a job where impartiality and judicial independence is very important. Citizens come in contact with trial judges. Although decisions made by trial judges do not generally have a broad impact, they almost always have a direct impact on the life, freedom or well-being of a citizen.

Whenever I handle a criminal case in the Federal courts, I am always impressed with the attitude and demeanor of the judges. All of the cases start out before a Magistrate judge. That judge presides over the initial arraignment, any pretrial motions and hearings or any other informal matters that are necessary to resolve prior to the case going to the District Court Judge.

The proceedings in Federal Court are much more formal than in most State courts. At the same time they are much more efficient. By comparison, though, I always feel that the judges in Federal Court demonstrate clearly that their role is to stand between the Government and the defendant as a neutral official whose job it is to make sure that the defendant’s rights are protected. I do not get the same feeling in a lot of State courts. Sadly, more times than not, I leave the State court proceeding with the impression that the judge feels he or she is on the prosecution team.

Part of that may be as a result of the way we select trial judges. In the Federal system even trial judges are nominated by the President of the United States and confirmed by the Senate. They are appointed for life. That gives them a certain independence. As long as they commit no high crimes or misdemeanors during the term of their office they can stay on the bench until death.

In Missouri we elect most of our trial judges. There are a few counties in which they are appointed. However, in rural counties judges run for election. In my opinion, that causes some problems. Although I know many judges, I consider only a few to be social friends. Those judges are more likely to be candid with me when they are not on the bench. And those judges will admit that it is hard to ignore the consequences some of their actions may have with the electorate. However, those same judges are more likely to make a decision that is unpopular if it is the right decision.

I have long preached for judges staying out of the plea bargain situation. That has little to do with judicial independence. That has to do with my feeling that when the prosecuting attorney and defense lawyer come to the judge with a plea bargain they have worked carefully to structure that bargain. It is usually based on, among other things, the strengths and weaknesses of the particular case. There are facts that the lawyers know that the judges don’t. Because of that, I think that judges should accept that plea bargain without getting involved. Why would they get involved? Well, I have had judges tell me that they are worried about what voters would say about them if the defendant got in some further trouble.

What really irks me is that I have seen a number of circumstances where judges reject a plea bargain. However, I have never seen them rejected because they thought it was too hard on a defendant. Universally, I have seen the bargain rejected because they think it is too easy on the defendant. What’s that all about?

I clearly do not think that judges should should rubber stamp every situation that comes before them. More importantly I don’t think they should rubber stamp everything the prosecutor puts in front of them. Unfortunately more judges are willing to accept what the prosecutor says without hesitation than what a defense lawyer recommends. That is wrong.

I understand why judges want to be reelected. They have one of the best jobs in the law profession. They make a decent wage, they have nice working conditions, they have a good retirement plan and if they have a health package. Once they get the job, all they have to do is keep it.

Sadly, the best way to do that is to be known as a “law and order” Judge or a “hanging” Judge. The facts are that people in law enforcement are more likely to vote than those who end up as criminal defendants. Since most lay people do not understand the judicial system it doesn’t do a judge much good with the electorate by trying to be independent and enforce the Bill of Rights. Most people who have never been involved in the criminal justice system don’t think that “criminals” should have any rights at all. Most people see the Bill of Rights as a document that is individually directed to their rights, not to “those” people.

So my reader wonders how separate the judiciary really is? I am afraid it is not as independent as it should be. One of the great pejorative terms used to condemn a judge is that he is an “activist judge.” What that usually means is that the judge has made a decision that irks the person being critical.

The course of in my life there have been independent judges. The civil rights movement was dependent upon independent judges. We would still have segregated schools if it were not for them.

As a practical matter the only people who see firsthand what a judge does or doesn’t do on a regular basis are the lawyers. Lawyers are fairly spineless group of people. It is hard to find one who will run against a sitting judge. And since that is the only universe of potential opponents judges can pretty well get away with anything they like once they take the bench.

Independent judiciary? Yes, on paper. In practice, seldom. At one point in my long career I thought this might change. I am past that believing that. I still do not accept it.

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2
Sep/10

Tale of Two Bails

by Wayne under Uncategorized

This could be called the Tale of Two Cities, or the Tale of Two Counties, or even the Tale of Two Judges. Instead, I choose to call it the Tale of Two Bails.

As most of you know I practice law all over the State of Missouri. One day I may be in Lafayette County, the next day and Howell County and then back to St. Charles County. Because of that I am exposed to a wide range of judicial philosophies.

In rural Missouri we elect our judges. It really isn’t a bad way to do it. However, in some counties judges are prone to lack enough backbone to vigorously support the Bill of Rights. They think that granting bail to somebody is dangerous because the voters might not like it.

I agree that elected officials should reflect the wishes of the electorate. I also think that judges fall into a separate category. Judges should not go around pandering to the electorate. If that were part of their obligation we would just let them step aside and we would have a good old-fashioned lynch mob.

So let me tell you the tale of two bails.

In a recent case I was representing a man who was charged with murder in the second degree, or in the alternative, involuntary manslaughter. He was a young man who had never been in trouble before. He has been in jail for quite a few months. His family has been unable to raise bond money.

We filed a motion requesting he be released on a lower bond. He had family in the area, he was from the area, he had a job before he was arrested and there is no reason to believe that he would flee before trial.

We had a hearing on the Motion. At that hearing the defendant’s mother testified and the mother of the person who was killed testified. Both were in favor of reducing the defendant’s bond and allowing him to be released before trial. Seems like a no-brainer, right?

The judge denied the Motion. It really seemed the judge didn’t even listen to the evidence. In giving the ruling the judge seemed more interested in the fact that the defendant’s mother wore a T-shirt that the judge found objectionable, than anything else. That’s right, there was a slogan on the front of the defendant’s mother’s T-shirt that caught the attention of the judge and the judge went so far to mention that in making a ruling.

Now the slogan on the T-shirt was not profane or in-your-face. It was a cute slogan that a large charity had used to sell the T-shirts in a fund-raising effort. I have seen them before. I admit I haven’t seen one in court before. Do I wish the woman hadn’t worn the T-shirt? Yes. Do I think the judge should have let that have any impact on the ruling? No.

So this young man sits in jail awaiting his trial. He has lost his job, his family is suffering, he has not been convicted of anything, and yet the bond is denied to him. No bail, stay in jail.

Let me tell you another story. In a different county, far, far, away, I represent another man who is charged with forcible rape. He is in jail awaiting trial. Well, he was in jail awaiting trial. He is now free on bond.

My client in this particular county was accused of forcibly raping a woman at gunpoint. He had previously been in prison for child molesting. Oh, that was his second trip to prison. His first trip to prison was for burglary. He was finally paroled on the child molesting charge and that is when he picked up his new charge of forcible rape.

Under those circumstances we did not even consider filing a motion for bond reduction. It just did not occur to him or to me that a judge would consider reducing his bond and letting them post bail on these charges. We talked about it. He was willing to sit in jail awaiting trial. I will tell you that the charges against him are very weak. There is very little evidence that he committed this forcible rape. But that will be determined at trial. It will be determined the same way the murder trial is determined; at trial. The eventual guilt or innocence, in my opinion, of the defendant should not weigh on the ultimate issue of a reasonable bail.

Suddenly my client in the forcible rape case developed a fairly serious health problem. The local jail took him to the hospital. The hospital said that he needed surgery. The prosecuting attorney called me. He asked me if I was going to file a motion for a medical furlough for my client. He explained that if I filed a motion for medical furlough, my client could be released on his own recognizance (that means he does not have to put up any money at all for bail) so that he could get his medical treatment and the county would not have to pay for it. Whoa!

I called my client. We talked about this. He thought it was a good idea. Who wouldn’t?

Now, make no mistake this man does have a serious medical condition. It affects his heart. He is going to have to have surgery. So on the appointed day we appear before the Court for our Motion for Medical Furlough. The Judge listened to me and the Prosecuting Attorney explain to him that the defendant had this condition and needed treatment.

He did not require medical records, testimony from doctors, x-rays, reports, records, or anything else other than the representation by two officers of the court (I’m talking about me and the prosecutor) that this man needed treatment. Based on that representation he entered an order releasing the man from jail pending trial so that he could get medical treatment.

This is what any good judge would do. This is what a judge who has confidence in his rulings would do. This is what a judge who understands the Bill of Rights and the justice system would do. I cannot imagine getting this ruling in the other county. I can certainly not imagine getting this ruling from the judge in the murder case under any circumstances.

I’ve said it before, I will say it again, there are judges who do not fully appreciate their role of impartiality in the system. There are judges who talk about the “victims” before they have ever heard one word of evidence in a trial. There are no victims until a defendant is convicted. Until then there are only “alleged victims.”

In every trial the judge reads instructions to the jury about the defendant being presumed innocent. I don’t know how some judges can read that instruction and never hear it.

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25
Aug/10

Liar, Liar

by Wayne under Uncategorized

At least he was honest

Alright, I thought by this morning my anger would pass. I have been doing this for over 35 years. I should not be surprised when a police officer lies under oath. Yet, it still shocks and offends me when it happens.

I had to try a case yesterday in east central Missouri. I have never handled the case in this county. I don’t know any of the local players. This was going to be a bench tried case. For those of you who don’t know, that means there is no jury, only a judge.

One of the issues in the case was who was actually driving the cars involved in this collision. Two cars collided at an intersection. It happened in a rural setting. It took the Highway Patrol 35 minutes to get to the scene of the collision. When they got there there were no drivers in the vehicles.

My client was charged with careless and imprudent driving by failure to yield. For reasons that are entirely too complicated to go into, my client was unable to enter into a plea bargain. His injuries were so severe that he has no recollection at all of even being in the collision. Interestingly enough, the other person has no recollection of even being in the collision. We have two people in a collision and neither of them can remember what happened.

So we decided that the best way to resolve the issue was to have a bench trial. It did not occur to me before the trial that the State would not recognize the problem of placing the drivers and vehicles. But apparently that never crossed their mind. I believe everybody just assumed that identifying the drivers would not be an issue. However, at a minimum there had to be some testimony putting my client behind the wheel of one of the cars. It became evident when they put the Highway Patrolman on the stand That no one on the prosecution side had thought about that.

I think the judge could have gone either way on that issue. Do I think they proved beyond a reasonable doubt that my client was driving? No. However, I am an involved advocate. The judge, who has taken an oath to uphold the law, believed beyond a reasonable doubt that my client was driving one of the vehicles.

You see when the paramedics arrived they did have to take the other man from his vehicle. However, my client was sitting on the curb. Now had the State brought in the paramedics they could have testified that these were the only people present when they arrived and is shown with a little more certainty that my client was driving. Although no one could affirmatively put him behind the wheel, they could have ruled out with more certainty that someone else might have been driving. I mean, theoretically, another person could have been there and left. That person could have been driving one of the vehicles. It is the obligation of the State to come forth with the evidence. As I said, I think they missed the burden on this point. The judge disagreed with me.

So when this particular Highway Patrolman was on the stand and started to testify that my client was the driver I objected. I pointed out to the court that the Highway Patrolman did not know that. The judge, in one of those little tricks that judges play, said that he would allow the Highway Patrolman to testify about that, not for the truth of the matter but to explain why he took certain actions.

Someday I will write an entire article on that kind of crap. Sometimes it seems like the judge and the police officer and the prosecutor are all on the same team. The judge should not be on anybody’s team. The police officer should simply be an accurate reporter of the facts. The prosecuting attorney should be the advocate. Many times it just doesn’t work out that way.

In any event, once the judge gave the Highway Patrolman a free rein to testify the Highway Patrolman started to wax eloquent about what happened out there.

In other words, when the pressure was on, when he saw that he was not going to be able to definitely show that my client was the driver of the vehicle he had a choice to make. Would he lose on that point or would he lie? He lied!

First he said that the paramedics had told him that my client was the driver. Then he said that the paramedics had told him that they had extricated the drivers from the cars. Both of those statements were lies.

There was an ambulance report in existence that showed that my client was sitting on the curb when the paramedics arrived. Clearly he wasn’t extricated from the car by the paramedics. Clearly the paramedics would not have said he was driving because they did not know. Even if the paramedics had said he was driving the Highway Patrolman should have noted that in his report. He did not. This officer simply worked on the assumption that my client was driving the car. He did no investigation at all to confirm that. He realized that as he sat on the witness stand. And then he made a choice that tells what kind of man he is.

I will never forget the name of this Highway Patrolman. Every time I see his name on the ticket or a police report I will wonder whether it is the truth or the truth as this Highway Patrolman wants it to be. This man has done a disservice to the Missouri State Highway Patrol.

Police officers are supposed to be scrupulously honest reporters of the facts as they exist. They are supposed to come to court and relay the facts. They are not supposed to be advocates. They are supposed to be reporters. This officer crossed the line. He lost focus as to what he was supposed to be doing. He disgraced himself. He disgraced the Missouri State Highway Patrol. He spit in the face of the justice system.

I have seen this happen over and over again. One would think that after 35 years of watching police officers lie under oath that would be used to it. I hope that never happens.

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23
Aug/10

Keep Your Mouth Shut

by Wayne under Uncategorized

This is Sunday evening. I’m looking at my schedule for next week and reviewing the events of last week. It was a busy week. It was not only busy for me.

The Federal government indicted Roger Clemens for lying to Congress. I think everybody is sorry to see that happen for a lot of reasons. Roger Clemens was a great baseball player. While accounts he seems to be a pretty nice person. He claims he never used steroids. I understand that perjury is perjury but it should only be a crime to lie to Congress when Congress stops lying to us.

A few years ago we started a witch-hunt in major league baseball about steroid use. One or two players decided to “out” other players. I am not sure what their motivation was.

I don’t know how I feel about steroid use. I know why athletes do it. As far as the adult, professional athletes I don’t object to them abusing their bodies that way if they want to. However, it puts pressure on other athletes who may not want to use steroids. In order to compete and make the millions of dollars that professional athletes make they may be forced into steroid use just to keep up.

If Roger Clemens lied to Congress, shame on him. Not shame on him because he lied to Congress. Shame on him for being so stupid. Every time I talk to a client who is considering making a statement to any Federal investigator the first thing I stress is that he or she must tell the truth under any circumstances. Once they make the decision to talk, the truth is the only way to go. I don’t know that I recommend everybody talk to the Federal government. We have a right to remain silent. I think we should use that more often.

I’m sure the Roger Clemens case will drag on for a long time. How long ago was it that Barry Bonds was indicted? He still hasn’t come to trial.

Speaking of cases that never seem to go away there is the case of the former Illinois Governor Rob Blagojevich. I, along with many others, was surprised by the verdict. I was surprised that he was not acquitted of all of the charges. Of course the only count he was convicted of was “lying to the Federal government.” So, there you go! If they can’t convict you of the actual crime they get you for lying about it. What is the lesson? Exercise your right to remain silent.

I am representing any number of people right now who would unquestionably not even be charged with a crime if they had just asked for an attorney minute the police started asking questions. But for some reason, a reason I will never understand, people think they can talk their way out of bad situations. They can’t. So what you have in the Blagojevich case is a man who would probably be walking free today if he would have just kept his mouth shut.

I don’t think there is any chance that Rob Blagojevich is ever going to keep his mouth shut. He is just too stupid to do that.

This really didn’t start out to be a lecture about the Fifth Amendment. But maybe it should be. It seems that Americans now really don’t appreciate the Bill of Rights. There seems to be this odd trust of the government on one hand and distrust of the government on the other. People run around and holler about high taxes but don’t think about their individual rights.

I am sincerely concerned about the future of this country. I will give you an interesting insight. The people I deal with who are most aware of our individual rights are those who have come here from other countries. I am not talking about illegal immigrants. I’m talking about legal immigrants. I’m talking about those who have waited and waited to be admitted to this country and who have become citizens. Those people know and understand the importance of the Bill of Rights. Too often, people who have been here all their lives, and who come from generations of Americans, are ignorant of the rights granted to them by the Constitution. All they want to holler about is high taxes.

Okay, I’m done for today. I hope you get something good out of this. This is going to be a busy week. I have a lot of court appearances and a lot of contested hearings. All I can hope for is that the judges before whom I will appear have the same respect for the Bill of Rights as a newly sworn-in immigrant American citizen.

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18
Aug/10

Truthful Sentences

by Wayne under Uncategorized

There was a news story today about the Three Strikes law in California. You might remember this law. It provides that if a person is convicted of a third felony the minimum sentence is 25 years to life. About 15 years ago a man with two previous nonviolent crimes was convicted of a burglary for breaking into a food pantry to steal something to eat.The man got the sentence that was required by law.

At that particular time most people were in agreement with that sentence. After all, this guy had had two opportunities before that. He committed another felony. He should go to jail for at least 25 years.

The news story today was that a judge let him out of jail. This judge said that the sentence was unreasonable, unduly harsh, cruel and unusual punishment. The judge confined his decision to this case. Most people now seem to agree with him.

The law students at Stanford University Law school are working on a project reviewing many of these Three Strike cases. In cases where the punishment seems severe for the crime, especially the third crime, they are filing court challenges to the reasonableness of the sentence. I don’t know how successful they are being. But it does bear some scrutiny.

One of the problems we have with our legal system is that a criminal laws are passed by elected legislators acting on emotion. These legislators, in an effort to pander to their constituents, frequently put harsh sentences on various crimes. When the crime rate doesn’t go down they go back to their legislatures and raise the penalties. They then go back to their constituents and brag about how hard they are on crime.

The answer to lowering the crime rate is not in harsh prison sentences. We should have learned this lesson some time ago. We haven’t. Crime does need to be punished. But it needs to be punished appropriately. What we need is truth in sentencing.

If a person is sentenced to serve 15 years, they should serve 15 years. Perhaps they should get some time off for good behavior. But it should probably not be more than 10%. Usually the time off for good behavior works to the benefit of the prison guards. If the prisoners have an incentive to behave well they are less inclined to be a problem to the guards. That is a good thing.

Unfortunately in the state of Missouri we do not have truth in sentencing. One person might be sentenced to seven years in the penitentiary and do seven years. The next person might be sentenced to seven years in the penitentiary and do 15 months. That is wrong.

The problem with imposing long, harsh prison sentences is that even the enforcers will not impose those sentences on most offenders. People who are involved in the legal system will frequently look at mandatory prison sentences and realize that they are unreasonable.

Legislators should take a look at the penalties imposed for certain offenses and make them reasonable. Long mandatory sentences result in prison overcrowding. Decisions then have to be made by bureaucrats as to who to let go in order to make room for other prisoners.

It is easy to look at a person who has committed a third felony and assume they have no hope in life. Maybe they don’t. However, locking them up for the rest of their lives is not the answer. This especially applies to nonviolent criminals. Will they be in and out of jail for the rest of their lives? If not for the rest of their lives, at least for most of their lives. But we, as citizens, must be reasonable. Long sentences do not solve the crime problem.

Reasonable sentences that will be enforced and reasonable sentences that can be imposed are the answer.

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8
Aug/10

Watch for the DRE

by Wayne under Uncategorized

Years ago the National Highway Safety Administration developed a series of standardized tests called Standardized Field Sobriety Tests. These tests consist of the Horizontal Gaze Nystagmus, The Walk and Turn and the One Leg Stand. Conducted by a trained individual and in a laboratory setting they are far from perfect in determining whether a person is under the influence of alcohol.

The original purpose of the tests was not to determine if a person was too impaired to drive. The original purpose of these tests was to give a police officer at the roadside a guideline to help determine whether or not they should even bother to bring the driver to the station for a breath test. Through years of misapplication by lawyers and judges who really had their collective heads up their collective asses, the tests have become significant evidentiary tests in almost every alcohol related driving case.

Remember these are scientific tests. They have to be administered exactly as instructed or they are invalid. It is just like you remember in your high school chemistry or physics classes. You must follow the exact instructions or the results of your experiments weren’t valid. In the situation of administering these tests, the police officers have to remember exactly how to give the tests, give those precise instructions to the suspect driver, score the tests accurately and just as accurately record the results.

I am telling you that this almost never happens. These officers are trying to recite these instructions from memory while standing on the side of the road, watching a suspect who may or may not be intoxicated. The cop in question probably hasn’t been back to DWI school for five years. Any mistake has has ever made in giving the instructions is now incorporated into the way he gives the tests. Most of the time the officer will testify the the driver “failed” the tests. The tests are not “pass/fail” tests. On each test the officer is to record “clues”.

Believe me when I tell you that these filed sobriety tests are not good evidence of anything and should never even be admitted at a trial because they are more prejudicial than probative. But a bunch of lawyers through the years who have not understood what the tests are about have, with the help of a bunch of judges who didn’t get it either, developed an entire body of case law that allows these tests into evidence for purposes they were not originally intended. The original purpose of the tests was to help the officers decide whether the suspect driver had a chance of blowing more than .01 on the breathalyzer.

For those of you who think that blowing .08 or more on the breathalyzer makes you automatically guilty of driving under the influence of alcohol, you are wrong. Sadly many lawyers practicing in the State of Missouri believe that to be the law. It is not.

If you are eve on a jury for a DWI case be very suspect if they start giving evidence about Standardized Field Sobriety Tests. Chances are that evidence is being offered for the wrong purpose, by a prosecutor who does not even understand why he/she is offering it, and testified to by an officer who does not know or understand how to administer the tests, score the tests or interpret the test results, defended by a lawyer who does not know how to cross examine on the issues and admitted into evidence by a judge who is clueless as to the travesty taking place right there in the courtroom.

Now, hold on folks, if you think this is a mess, the powers that be have come up with a gimmick called Drug Recognition Evaluation (DRE). If you haven’t heard about it yet, you will. It is a series of tests administered by a “Drug Recognition Evaluator” (a cop who has been through some course at the police academy) that takes over an hour at the police station and has at least ten separate parts of the tests, some of which are divided into subparts. At the end of the test the evaluator gives a subjective opinion as to whether or not he/she thinks the suspect is under the influence of some drug.

The sad thing is this intrusion upon our liberties and privacy is going to be ignored because the government is going to tell us that it is in our best interests to allow this in an effort to remove impaired drivers from the roads.

That ladies and gentlemen is just a crock. Yet so many of you will say, “Oh no. We need to do this to make our roads safer.” Look around, we have been aggressively prosecuting alcohol related driving offenses for years. Has it stopped people from drinking and driving? No.

There may be ways to address the problem of impaired driving but infringing on our rights of privacy is not the solution. And allowing police officers to administer these tests which, even if administered correctly, yield very little of an evidentiary value is just wrong. We have laws against driving under the influence of alcohol or drugs. That conduct should be illegal. But we should also only punish people who actually violate the law.

When we lower the requirements for a person to be found guilty of any kind of law violation we are slowly eroding all of our rights. Please do not forget that these are your rights. I have spent over thirty years protecting your rights. One of the motivators I have is that they are my rights, too.

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4
Aug/10

Stop Trying to Stop Me

by Wayne under Uncategorized

St. Charles County is discussing whether or not it should ban bicycles from certain roads. I am not sure how I feel about this.

Apparently people enjoy riding their bicycles on the hilly, two-lane roads in southern St. Charles County. I am not into bicycle riding. I have ridden on the Katy Trail a number of times. It was enjoyable. It was mostly flat and not too challenging. That is about all I need.

A few years ago my brother-in-law was involved in bicycle racing. He would tell stories of going out into St. Charles County and riding his bike for miles. None of his accounts included stories of near collisions with vehicles.

Apparently it is the drivers of automobiles who are complaining. The struggle between bicyclists and motorists has been going on for years. Granted there are bicyclists who do not follow the rules. They do put themselves, and others, at risk. But so do drivers of automobiles. Why not ban automobiles from those highways?

I thought that we were in a time where we wanted less government intrusion into our lives. But maybe I am wrong. As usual, we only want less government intrusion into our lives. We don’t care whether or not the government intrudes into others lives. And therein lies the problem.

Government says we have to wear helmets when the ride motorcycles. Government says we have to wear seat belts when we ride in cars. Government says we cannot text and drive. Government says that we cannot smoke marijuana. I know a lot of people who would not wear a helmet when they ride their motorcycles if they had a choice. I know people who would not wear seatbelts when riding in a car if they had a choice. I know a lot of people who would smoke marijuana. But, we have no choice.

An interesting sidebar to this whole issue is that there is now a debate between governments as to who can regulate this. The Missouri Department of Transportation says that it makes the rules. St. Charles County says it can make the rules. Why do there have to be rules?

The people who formed this country established a Bill of Rights. The Bill of Rights was supposed to protect the citizens from government. But we are government of the people. It becomes clear to me, as each day goes by, that we really need to be protected from ourselves.

There seems to be an overwhelming urge to regulate everything. There seems to be an overwhelming urge to complain about government regulation of everything. It really is hypocrisy. People only want to regulate the conduct of others. But they do not want others regulating their conduct.

Government should stay out of this.

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25
Jul/10

by Wayne under Uncategorized

This past weekend I attended a seminar at the Lake of the Ozarks on DWI Law and Science. Keeping up on the law is an important component of any lawyer’s practice. It is especially so when defending those who are charged with crimes.

DWI or DUI is a crime in the state of Missouri. In Missouri it is against the law to operate a motor vehicle in an intoxicated or drugged condition. Just what does that mean?

Most of the cases that I have handled in the thirty plus years I have practiced deal with alcohol related offenses. In Missouri there is a rebuttable presumption that a person is intoxicated if they have a blood alcohol content of .08 or above. Read that carefully. “A rebuttable presumption.”

What that means is the fact that a person has a blood alcohol reading of .08 or above does not automatically make them guilty. But sadly most people don’t understand that.

That is why these seminars are so important. This year the General Assembly met and made some significant changes in the laws dealing with alcohol related offenses. And you can be sure that these laws did not do one thing to protect the rights of people charged with DWI. To the contrary. These laws increased the penalties for some offenses and made it harder for people charged with DWI or DUI, as it is sometimes called, to defend themselves.

At the request of Governor Jay Nixon, a guy who I at one time liked and respected, a commission met with the sole purpose of writing stricter laws about driving while intoxicated.

Nobody likes drunk drivers. That isn’t the point. People should not get drunk and drive. On the other hand, drivers who are not under the influence of alcohol or drugs should not be wrongfully convicted. But each year it is harder to get fair treatment in the courts if a person is charged with DWI.

People get stopped, they are scared, they are put through a series of tests on the roadside that are supposed to be given a certain way. Most of the time they aren’t properly administered. But how do you prove that? The cop says he did the tests right. Trust me, many of them don’t. But unless you get a good lawyer who knows how to defend these cases, you don’t have a chance.

Then, based on those tests you are arrested and given a breath test. You are damned if you do and damned if you don’t. And the Governor wanted to make it a crime not to take the breath test!

Police are applying for search warrants to take your blood against your will based on these wrongfully conducted field sobriety tests and the judges are giving them the warrants.

Ever since September 11, 2001 the rights of citizens are being sacrificed in the name of law and order. It has to stop sometime, somewhere.

These seminars are a good starting point. They help the lawyers who attend to understand how to combat overreaching police, prosecutors and, yes, judges. The system is becoming rigged against people charged with alcohol related driving offenses. It has to stop.

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18
Jul/10

West Plains

by Wayne under Uncategorized

On Friday the 16th of July I had to go to West Plains, Missouri for a preliminary hearing. West Plains is the county seat of Howell County. It is located in south-central Missouri. My client was charged with five counts of various white collar crimes. We left with two of the charges being dismissed. It is a small victory, but a victory nonetheless. The State’s case is pretty weak and I expect a very good outcome.

Howell County Courthouse


The trip takes about three hours from my house to the courthouse. The picture you see here is the Howell County Courthouse. It looks like the architect was uninspired about designing a courthouse. Until they added an elevator shaft, (that is that thing sticking out on the right) the building was just a simple square with a flat roof. My wife, a student of architecture, tells me this is an art Deco project built in 1933 as part of a public works program after the previous courthouses burned down. Apparently there is a history of Courthouses in Howell County burning down.To me it is just a square box.

But as you can see from the next picture it is more interesting on the inside, at least from a lawyer’s point of view. You see that door is to the Circuit Clerk’s office. That by itself is not that interesting. See the pedestal next to it? That is what I found interesting. On that pedestal sits a Bible.

The Bible was open to the book of Psalms. I find that to be one of the most inspiring books in the Bible. Proverbs runs a close second. Almost all the lessons an person would ever need in life are found in those two books. Still, I was fascinated by the fact that right here in this Courthouse was a Bible sitting in a place of prominence.

I must confess that it took me back a bit. Why was this here? Is this the Bible they use to swear people in? Maybe. But it wasn’t used in our hearing. In fact, as I think back on it, the judge used sort of a secular oath when he swore in the witnesses.

West Plains is deep in the Bible belt. I guess what I saw should come as no surprise. Since courthouses usually cater to the locals, I am not surprised that it sits there without question.

I must point out that I was really impressed with the local Associate Judge. This was one of the most professional Associate Circuit Court proceedings in which I have ever had the pleasure of participating. The judge was dignified, intelligent, and commanded respect without demanding it. To top it off the State had brought in two lawyers from the Attorney General’s office in Springfield. I like having good lawyers on the other side of a case. Things run a lot more smoothly.

My next scheduled appearance is August 3rd. It will be in the Circuit Court. I had never been to West Plains. I came away with a very favorable impression of the place. I am still not sure about the Bible being displayed in the Courthouse but I do expect to learn more about that on my next trip.

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11
Jul/10

Sunday Morning Bill of Rights

by Wayne under Uncategorized

Supreme Court of the United States

It is Sunday morning. I was off to have coffee with my Ukrainian friend Anatoliy. We get together on some Sunday mornings to speak Russian, drink espresso and discuss the cultural differences he has observed since coming to America. Anatoly and his wife are now American citizens and very proud to be.

With that pride comes concern. Anatoliy and his wife, as do most of the immigrants from the former Soviet block, get most of their news from the Fox Network. They are politically very conservative. We spend a lot of time talking about the future of America.

Anatoliy is very afraid that the country will become socialist. He always asks me about events he has heard about on Fox news. I try to assure him that our country is safe and stable. He is very conservative when it comes to crime. He has been here less than ten years and already he is beginning to forget what the BIll of Rights is all about.

On the way to meet him I saw an interesting set of circumstances unfold. I travel north on Lindbergh Boulevard through Frontenac. It is no secret that the Frontenac police sit in wait, almost constantly, for people to exceed the forty mile per hour speed limit on that part of Lindbergh. I see a car almost every morning on the way to the gym

This morning was no different, except the car was parked at a different location. I made note as I passed the police car. The officer was sitting there with his radar gun at the ready. I wondered if he had turned it on me as I passed to see if I would speed up after I passed the speed trap? In a few moments I looked up and saw him approaching from the rear at a rate of speed much higher than forty. He did not have his lights and sirens on. I caught up to him at the stop light at I-64, formerly highway Forty. We both turned left and he sped up at a very high rate.

I didn’t travel far before I saw the object of his attention. He had pulled up to where two other Frontenac cars had stopped a vehicle. He was getting out of his car as I passed.

What I saw was three police cars and officers, an older model Volvo station wagon pulled over in front of them and a young African-American male sitting on the guardrail looking rather frightened.

The doors and trunk of the Volvo were closed but I had the distinct feeling they wouldn’t be for long. This is reminiscent of a scene I see a lot. The civilian is often Hispanic or African-American They are surrounded by officers and are sitting on the ground or perhaps a guardrail.

Our Constitution dictates that we in America should be free of unreasonable warrantless searches. Every person in this man’s situation has a right to refuse to allow a search of his vehicle. Certain rules apply to automobiles that don’t apply to houses. Still, the police have to have some articulable suspicion of an actual crime before they can search.

Unfortunately many Courts and Judges have abdicated their responsibility to keep us safe from government intrusion. They allow searches based on such suspicions as the “driver acted nervous” when I questioned him. Well who wouldn’t be nervous in this man’s situation?

I wanted to stop and have a conversation with this man. I wanted to stop and tell him that he had no obligation to answer any questions or to consent to any searches. But under our current law I could not do that. I, too, could be subject to arrest for interfering.

I know that these police officers were not going to go out of their way to protect this man’s rights. I also suspect that he was not well enough versed in his rights to stand up for them.

That man’s rights are my rights and your rights. If they are not protected and safeguarded they will slowly be chipped away. I have no way of knowing how the situation played out. I hope for his sake that there was no contraband in his car.

Enforcing the law is an important and necessary part of maintaining our civilization. But to do it without honoring the Constitutional rights of every person in this Country erodes the fabric of the freedoms that make this country great.

Anatoliy came from a system where there were no rights. I hope his migration to America does not find him living in a similar situation.

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