Jon Katz's victories

Image from National Institute of Standards & Technology.

Image from National Institute of Standards & Technology.

When a lawyer fully prepares a case to go to trial, it is more likely to settle than when a lawyer prepares the case to settle.

I prepare every case to go to trial, and take many of them to trial. The preparation increases my victories, I believe, whether they be acquittals, partial acquittals, favorable settlements, dismissals and case inactivations, and favorable sentences. 

Before I advise a client to plead guilty in a case, I find out whether the prosecutor's witnesses and evidence are available for trial, and do my best to figure out the extent to which the prosecutor and his or her witnesses are otherwise ready and prepare for trial (for instance, whether they have more pressing matters than to want to deal much with my case). This information informs whether to accept or reject the guilty plea offer, or to counteroffer for another settlement, whether it involve a guilty plea or not. Similarly, were I a prosecutor, I would want to see the extent to which my opponent is battle-ready, to inform me how to proceed with settlement negotiations.

Criminal case negotiations sometimes involve brinksmanship, seeing who will blink first and sometimes not seeing a favorable plea deal until the eve or morning of a major felony trial. For misdemeanors, it is common in the Virginia and Maryland courts where I usually practice, with some exceptions, for no plea negotiations to take place until the day of trial.

Image from National Institute of Standards & Technology.

Sometimes criminal defendants win their cases by getting the evidence suppressed. That is how I won a recent DWI case.    

Where I practice, judges, not juries, decide evidentiary issues over suppressing stops, searches, seizures, arrests  and statements to the police, although juries may be instructed to determine whether the statements to the police were made freely and voluntarily. I recently won a Virginia drunk driving trial at the suppression motion hearing stage, as follows: The arresting officer testified that my client was stopped after driving at a high rate of speed apparently over the speed limit. The officer testified that my client was blasting his music, was not immediately orally responsive to the officer, and was soft spoken. The officer testified that my client lives and is licensed to drive in Maryland, and further testified that my client refused to do field sobriety tests.  

On cross examination, I confirmed that the police officer only started policing the same year as the arrest. That precluded lending any special reliance on the police officer's testimony.  The officer also agreed with me that the officer offer for my client to do field sobriety tests, but did not tell my client which tests she wanted my client to take (e.g. horizontal gaze nystagmus; one-leg stand; walk and turn, or other tests.) The judge questioned whether I was helping the defense by asking whether the officer had specified the field sobriety tests she planned to administer. I took that as a good clue for the defense.  

The prosecutor rested his case for the suppression motion. In orally arguing to suppress my client's arrest, I pointed out to the judge that my client's refusal to do any field sobriety tests was no indication of consciousness of guilt, and in harmony with the caselaw in my client's native Maryland, that puts Marylanders on notice that field sobriety tests are searches whose refusal is not even admissible in evidence in Maryland, whereas Virginia's caselaw is significantly different from Maryland's on that point. The judge indicated that refusal to do field sobriety tests would not sway him against my client.  

Consequently, in further arguing to suppress my client's arrest -- in order to keep out of evidence the Intox EC/IR II/breathalyzer test results -- I pointed out that my client's loud radio was a sign of the times, and the judge agreed. I also argued that the loud music could have accounted for my client's slow response to the officer after being stopped. I suggested that my client's quiet speaking voice was probably from submitting to the officer's authority, and no type of admission, nor anything worse. I argued that the totality of circumstances did not justify an arrest of my client, despite testimony about such matters as my client's driving behavior, his statements about his drinking behavior that night, and behavior after being stopped by the police.  

The judge found no probable cause to arrest my client, so entered an acquittal.

Image from National Institute of Standards & Technology.

Recently I met with a potential client charged with drunk driving. When I was addressing some of his case defenses with him, he replied: "I am guilty, so why should I be pleading not guilty?" Why, indeed. Because the prosecution alone has the burden of proving a defendant guilty beyond a reasonable doubt. Because those who commit crimes sometimes go free when they plead not guilty. Because I generally believe in pleading innocent when the worst outcome of doing so is not likely to be much worse than if a guilty plea is entered. Because being convicted and put on probation (and sometimes getting jail, limits on driving, and other limits on liberty) are rude awakenings that should be prevented if possible.  

When a client comes to me for a drunk driving case, I usually explain that if it is a Virginia first-time drunk driving charge with no unusually bad evidence, no blood alcohol result of 0.15 or higher (a conviction for a 0.15 BAC brings mandatory jail time and the ignition interlock), and no refusal to take the breath test, I anticipate recommending a not guilty plea. Sometimes I recommend an innocent plea when the stakes are higher than that. In Maryland, I usually recommend an innocent plea under the foregoing circumstances and even up to 0.19 blood alcohol readings and even higher sometimes, with little concern under such circumstances about refusal to take a breath test, because Maryland does not apply Virginia's sanction of one year of no driving at all for an unreasonable refusal to take the Intox EC/IR II "breathalyzer" test, or blood test. 

Magical things can happen with an innocent plea. Sometimes the prosecutor learns s/he does not have available the witnesses and evidence essential to obtain a conviction. Sometimes the defendant wins.  

Today, I obtained two back-to-back DWI trial wins. Here is a brief overview of my first win. My client was stopped for allegedly crossing over the yellow line and speeding. The stopping police officer alleged such indications as odor of alcohol and admission to drinking. My client did just fine on the alphabet test, but the officer testified about some "clues" on the one-leg-stand and the walk and turn test. I kept out evidence of calibration of the officer's speedometer, and the prosecutor did not attempt to show my client's roadside preliminary breath test result.  

This being Virginia, we had to have our first trial -– and last, as a result of our acquittal -- in district court without a jury. The judge denied my motion to suppress the arrest of my client. He denied my argument under the Sixth Amendment and Bullcoming v. New Mexico, 131 S.Ct. 2705 (2011), to keep out the Intox EC/IR II breath test results, elicited from the breath test operator, where the prosecutor offered no live testimony nor even certified documentation from the Virginia Department of Forensic Sciences as to the calibration and certification of the Intox EC/IR II. Moreover, had we presented our own expert witness on the Intox EC/IR II or had a chance to cross-examine the DFS employee responsible for calibrating and certifying this machine, I would have expected to show that the DFS fails even to self-certify its dry gas standards used as a control mechanism to verify accurate operation of the machine, and instead solely relies on the manufacture's certification.  

My focus in cross examining the arresting officer included how my client recited the alphabet fine, and mainly did the walk and turn fine, except for missing heel to toe a few times, taking two too many steps on the way out, and making an improper turn on the way back. Although the officer mentioned my client’s putting his foot down on the one-leg-stand on counts including 18, 24 and 30, he agreed with me on cross examination that he was trained to do the one-leg-stand for no more than thirty seconds, and that he did not use a watch or other timepiece to assure he had not gone over thirty seconds, which made the counts 24 and 30 matters more of a non-issue. The officer just estimated the 30 count, but estimate is a cousin of ASSUME. As Felix Unger says: "When you ASSUME, you make an ASS of U and ME."

Continue reading "Assault trial victory is benefitted by Virginia's one-party taping law. "

By Jon Katz, a criminal defense lawyer and DWI/ DUI/ Drunk Driving lawyer advocating in Fairfax County, Northern Virginia, Rockville, Montgomery County, Prince George's County, Maryland, and beyond for the best possible winning results for his clients. http://katzjustice.com 

The amazing Sunwolf inspires me to see reality as no obstacle in the fight for my clients.

As I repeatedly tell my clients when advising them to plead innocent and go to trial, that is the only way to have a shot at beating the charges against them, and sometimes nuggets of gold are discovered during trial that were not obvious before starting the trial.

In that spirit, my client and I recently took his Virginia drunk driving case to a bench trial. Nothing jumped off the page immediately that we would win in this county where prosecutors and police rarely show us police reports, and do not have to, by law. By the same token, I did not anticipate any significantly worse outcome by pleading innocent than pleading guilty, and anticipated no active jail time if convicted. I kept my eyes on telling the most persuasive possible story as the trial proceeded.

The arresting officer testified that my client's wheels repeatedly touched the yellow dividing line, that a moderate odor of alcohol was coming from the car (with a passenger inside) after it was stopped, and my client admitted to drinking at a nightclub several hours ago. The officer testified to field sobriety test performance that was significantly less than stellar. He said my client mentioned a broken ankle from many years ago, and the officer tried downplaying that.

The officer tried testifying from his notes. This particular judge tends to allow that, but also allows defense counsel to see the notes on request when that happens, and that is what I did.

The judge integrated the suppression motion and trial together. The officer had already given me good material for a favorable story for my client, so I narrowed my cross examination to include highlighting how the officer had completely deviated from the National Highway Transportation Association-approved method for doing the one leg stand by having my client count backwards rather than having him count to thirty by the one-one thousand, two-one thousand method, thus raising the question about how much the officer may have deviated from the NHTSA standards in doing the rest of the field sobriety testing.

In closing, I focused the judge that all of my client's behavior was consistent with being tired at a time when most people are asleep, and with someone having previously suffered a broken ankle. It probably did not hurt my client that he said he had finished drinking several hours before, and that the officer testified to a moderate odor of alcohol rather than a strong odor of alcohol.

The judge issued what might be seen as a compromise verdict, finding my client guilty of reckless driving rather than drunk driving. Arguments can be made that the judge had no legal authority to do anything other than finding innocence or guilt of the only filed count, which was drunk driving. However, had I complained, what would have happened if the judge had then converted the guilty verdict to drunk driving, and left my client with an appeal as the only option (with the risks of a worse sentence if convicted on appeal)?

Reckless driving was a much better result than a drunk driving conviction here with the sentence being only thirty days of restricted driving (versus a year of mandatory restricted or suspended driving for a drunk driving conviction) and a fine.

“Innocent” can be a beautiful plea.  

Image from National Institute of Standards & Technology.

Winning in court is not about brute force nor about merely believing that the client deserves victory. It is about constant preparation, devotion, practice, passion, study with others and solo, and belief in the lawyer's client and cause. Winning requires shoveling sh*t on the way to victory, and not slipping on nor falling in the sh*t. Winning requires being in the Samurai moment. It requires knowing the power of silence and the danger of verbal diarrhea,

With the foregoing always in mind, I recently proceeded to win a motion to suppress the stop of my client's car in a drunk driving bench trial. The trial started in a familiar format, with the prosecutor's asking the police officer what drew his attention to my client's car, and about any unusual actions by him. The police officer testified that my client's tires touched the yellow divider line several times, and that he made an unsafe lefthand turn, causing beeped horn(s) from oncoming traffic.

Not having been before this particular judge before, I asked the judge for confirmation that my previously-filed suppression motion made it unnecessary for me to preserve my objections to the stop, statements and arrest of my client beyond the suppression motion itself. The judge agreed, and suggested that the prosecutor stop at each stage of suppression for me to cross-examine the officer on that point and to argue each point.

Once the prosecutor finished asking the officer questions about the stop of my client's car, the judge leaned back in his chair, and started speaking in a way that made me realize that my own silence was in order. The judge pointed out that it made no sense that my client had made an unsafe lefthand turn if the police officer then followed my client into the lefthand turn. Talk about a judge being in the moment, without my needing to say a word. The judge asked the prosecutor where the lawful basis of the stop was.

Here, where the judge had not even yet offered me a chance to cross-examine the police officer, the prospects of a stop suppression looked promising, but of course I was ready to cross-examine and argue.

After the judge and prosecutor went back and forth, the judge asked if I had any comments on the matter. I told the judge that I agreed with him, and underlined that a valid stop needed reasonable articulable suspicion of a traffic law violation. I emphasized that the officer had not articulated reasonable suspicion, having nothing more than a left turn that after all was not unsafe, and touching rather than crossing over the yellow line.

The judge then suppressed the stop, and the case was over.

This trial victory underlined the importance of finding victory however it can be found, even when the lawyer cannot take much or any credit for the victory other than showing up fully prepared. After all, the point of trial victory is the liberty of the client, and not the glory of the trial lawyer.

Image from National Institute of Standards & Technology.

Image from National Institute of Standards & Technology.