Monday, August 20, 2012

A not so open-and-shut case

The other day I was down in the little town of Rosenberg to try a speeding case for a truck-driving client of mine. It seems he was clocked doing 54 in a 35. Since he had a commercial driver's license our only option was to try the case.

The judge wore a polo shirt over jeans with suspenders. No robe-wearing man was he. Since we were the only case set for trial he had to find a random way to pick 15 potential jurors from the 30 or so folks who turned up for jury duty. After he did that he told them that they were going to be listening to a speeding case and that they usually took no more than an hour to try - but that since the defendant had an attorney, it might take a little bit longer. Nice.

Then we were shuffled from council chambers to a tiny courtroom down the hall. The bench was in one corner. Six chairs were set against the wall to the judge's right for the jurors. Council tables were against the opposite wall and the panel was seating in the middle.

I didn't care too much for some of the folks in the first two rows (based on overhearing them talking to each other in council chambers), so I asked that the panel be shuffled. Instead of mixing up the cards for a truly random shuffle, the court divided the panel into five groups of three jurors and rearranged the three folks in each group. Then they moved the last group up to third. So, the two people I didn't want in the first two rows were still in the first two rows. Nice.

The officer actually brought his LIDAR unit to court (that never happens in Houston). I got to play around with it a little bit.

Now being that there is no published court opinion stating that LIDAR has been proven to be reliable science, I decided to ask for a Kelly hearing to determine the admissibility of the evidence. I was banking on the city prosecutor not bringing in an expert - just assuming the evidence would come in.
Click here for the opinion from Hall v. State, 297 SW3d 294 (Tex.Crim.App. 2009).
The admissibility of LIDAR has only been taken up one time (where it was rejected by the Court of Criminal Appeals) because most cases involving LIDAR are in municipal and JP courts and most folks who get speeding tickets either take defensive driving or request deferred disposition. Due to the prohibitive cost involved, no one is going to appeal a traffic ticket case all the way up the ladder. The only way an appeals court will hear a case involving LIDAR is if the officer's use of LIDAR was the basis of the stop and the driver was arrested for driving while intoxicated, possession of a controlled substance or some other serious crime.

I asked the officer if he was familiar with the scientific principle behind LIDAR. He said he wasn't. I asked him if he could explain how the device determined a car's speed based on pulses of light. He couldn't. I asked him if he knew what calculations the device made in determining the speed. He hadn't a clue. I asked him if, other than the device's self-check, he had calibrated his unit before his shift. He said he didn't think it needed calibration and that he wasn't sure if it had ever been calibrated. I asked him if the device had ever had to be repaired. He said he didn't know. All he knew about the device was what he learned in an eight-hour course on how to use it.

Naturally the judge allowed the evidence to come in.

It didn't matter in the end. After deliberating for over an hour (that's right, six reasonably intelligent adults deliberated over a traffic ticket for more than an hour), the jury came back with a two-word verdict. My client was happy. The prosecutor was apoplectic.

My client and I both shook the officer's hand and wished him well. Then my client went to shake the prosecutor's hand. She refused to shake it. Instead she went on a tirade about what a bad driver he was and that he was lucky he hadn't hurt anybody and that he should know better than to drive 20 miles per hour over the speed limit.

Her reaction alone made my day.

I talked to a couple of jurors afterward and they told me the prosecutor gave them all a dirty look after the judge read the verdict. They also said that they had doubts about the reliability of the LIDAR device because the officer knew nothing about how it worked or if it had ever been calibrated. They also said they had received speeding tickets in the past but didn't think it was possible to beat them in court.

The lesson, of course, is that even a case that looks open-and-shut can be won - provided you find an issue that resonates with your jury.

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