I've spent most of today getting ready for jury selection in a trial in Comal County Court-at-Law. We're picking a jury in a Deadly Conduct case. This one's interesting. Keep you posted on the twists and turns and the results. It seems like the number of jury trial settings that we have had over the past 3-4 years has exploded. Our clients have been much more willing to set cases for jury trials in the past few years than when I started in private practice, particularly in misdemeanor cases.
I'd like to think that it's because we engender awe-inspiring confidence in our representation, but I think there's some more practical reasons. First, clients have grown more sophisticated. When I first started in this business, clients had very little exposure to jury trials. Most of what they knew about trials is what they saw on the evening news or read in the newspaper. Now you can watch condensed versions of criminal jury trials practically every day either on cable television or the internet.
There's also just a great deal more info available about trial procedure out there, mainly online; so much so that courts have started having problems with jurors in trials trying to do outside research on their own while hearing a case. Trials are just less mysterious now, and, as a result, less scary to clients. Also, clients now have more at stake in misdemeanor cases than in the past. We now live in the age of the full-blown criminal background check for everything (getting a job, finding a place to live, keeping a professional license, etc.), and there are more other types of collateral consequences to a misdemeanor conviction than before (such as driver's license suspensions or surcharges). Clients simply have more to lose by having a misdemeanor conviction than before, so they are more likely to take a case all the way to trial. This is having a big impact on the way that criminal law is practiced at the state court misdemeanor level.
Years ago, the lion's share of continuing education for criminal lawyers, for example, focused on pretrial procedure and appellate law. Now, there's much more of an emphasis on mastering jury selection and trial technique, not to mention the rise of burgeoning cottage industries in the area of trial consulting and expert witnesses. Although the stakes for clients have risen in misdemeanor cases, I think the trend towards more trials is to their benefit. It forces the state to look at their cases more critically, and makes the State jump through more hoops to attempt to obtain convictions. This ultimately leads to more weak cases getting poured out before they even reach the trial stage.
November 3, 1989: George Bush Sr. was in the White House, The Cosby Show was still atop the Nielson ratings, Janet Jackson's "Miss You Much" was the #1 song on the Billboard charts, and hardly anyone had heard of this obscure thing used by defense researchers called the internet. And yours truly (with a lot more hair and a very bad suit) was standing in a crowd of other people wearing not much better suits squeezed into the Frank Erwin Center in Austin, Texas being sworn in as a lawyer. I don't remember much more about that day, other than the chicken fried steak at Threadgill's and getting a J.C. Penney briefcase from my beaming, choked up mother.
I don't remember what I was expecting the next 20 years to be like. I just had a vague notion that I wanted to make a living as a criminal trial lawyer, and I wanted to have an interesting time doing it. Now, I have noticed that wealth tends to corrupt people and has a way of wringing the joy and fun out of work, so I am fortunate, like many others who do what I do, to have studiously avoided getting rich.
But two decades, several thousand criminal cases, and approximately 100 jury trials later, I can say that it has been interesting. I have witnessed not only jaw dropping stupidity and cruelty in both people and institutions, but also flickers of humor and humanity even in people who have been accused of doing unspeakable things. I have had the proverbial front-row seat at the circus. If I died tomorrow, I could honestly and proudly say that I had kept a few people out of prison who didn't belong there, saved more than few poor people from being needlessly buried beneath the courthouse, and helped change the way in which criminal law is practiced in my small corner of the world for the better. I'm not supposed to be doing this, of course. I grew up in a small town in the rural South.
I had one grandfather who was a bootlegger during Prohibition and another from the backwoods of Alabama who never graduated from school. I'm supposed to be driving a truck or bottling beer like my dad did. I'm supposed to be working on a farm or in a factory like the friends I went to school with. I'm not supposed to be part of a tradition of protecting liberty that stretches back literally hundreds of years and includes people with last names like Adams and Lincoln and Darrow. Sometimes when I'm in a jury trial, and there's a lull in the action, I'll look around at the courtroom and the people sitting in the jury box and think to myself: "This can't be me. I can't believe I get to do this." I have been very lucky for the last twenty years. Here's hoping my luck keeps running for another twenty.
Both Comal and Guadalupe Counties recently finished a Driving While Intoxicated "no refusal weekend" a few days ago. For the uninitiated, a "no refusal" weekend means that the government will not allow a person to refuse alcohol testing after being arrested for DWI. Normally, when a person is arrested for DWI, he is taken to the nearest jail and offered a breath test. The arrested person has the right to refuse the breath test, but may suffer a driver's license suspension as a result. But during a "no refusal" weekend, a person refusing to take a breath test is told that the police will then, instead issuing a notice of driver's license suspension, obtain a search warrant authorizing the police to take a blood sample from the person. The blood sample would then be shipped off to the Department of Public Safety lab for testing. Thus, there is "no refusal" because a test will be taken one way or another. Many people, when told they will be forced to submit to a blood test against their will, simply give up and agree to take the breath test that was first offered. This is absolutely the wrong thing to do. What to do, then, when faced with a test you can't refuse? Easy: REFUSE TO TAKE THE BREATH TEST AND MAKE THE COPS GET A BLOOD SAMPLE INSTEAD. Here's why:
1. THE COPS MAY SCREW UP THE WARRANT FOR THE BLOOD TEST. The ways in which obtaining and executing a search warrant for blood, or anything else, can be FUBAR are too numerous to list here. But you should certainly give the police the opportunity to find one of them. If the search warrant for blood is no good, the breath test is inadmissible.
2. WHEN YOU REFUSE, YOU KEEP THE CLOCK RUNNING. The result you get on a breath or blood test is just a starting point. What's really important is what your blood alcohol content was at the actual time you were driving a car. When you refuse the initial breath test, you force the cops to spend time obtaining a warrant, which lengthens the time between the driving and the test. Without spitting out a volume's worth of blood testing theory, simply put, the longer the time between the driving and the test, the harder it is to reliably figure out what your blood alcohol content was at the time you drove.
3. ROUNDING UP ALL OF THE PEOPLE INVOLVED IN THE TAKING AND ANALYZING OF A BLOOD TEST IS LIKE HERDING CATS. One of the reason the government prefers to give breath tests is that it makes it easier to round up its witnesses if there is a jury trial in the case. The government needs to produce all of the people involved in the administering of, and analysis of, the test. When there's a breath test, everyone involved is a member of law enforcement. They are, essentially, professional witnesses. When blood testing is done, it is more likely to involve civilians along the way, such a nurse or EMT. These people are sometimes harder to get to a trial.
4. YOU MAY BE ABLE TO RE-TEST THE BLOOD SAMPLE When a breath test is done, the breath sample is purged from the breath test machine and lost forever. When a blood test is done, some of the blood sample may be left over at the end. Your lawyer may be able to obtain the rest of the sample for independent testing. We have done this before on a few cases, and have come up with interesting results.
5. IF YOU ABSOLUTELY HAVE TO TAKE A TEST, BETTER ONE BASED ON REAL SCIENCE THAN JUNK SCIENCE When was the last time you saw a breath test machine in an emergency room? Never, and you probably never will. That's because breath testing has been widely criticized as being based on junk science, and no reputable health care professional would ever dream of relying upon it. Only the government does, because its cheap, fast, and "efficient." It you are forced to submit to a test, might as well take one that at least has a fighting chance of being correct. MORAL OF THE STORY: WHEN IN DOUBT, REFUSE THE GOVERNMENT'S REQUESTS AND MAKE IT JUMP THROUGH HOOPS.