I could not believe the DAs wanted to try my guy- he gets pulled over for 71/65 on a toll road, according to the police report he was polite and courteous throughout the investigation. He looks great on the walk test (taking too many steps because the rookie cop gives him the incorrect instructions), normal on the one leg test and solid balance on the eye test as the cop does it wrong (does not matter anyway because the HGN may indicate alcohol but it does not correlate it to an amount and there are 37 other judicially recognized causes of it). The case went to trial, why? I have it on good authority one of the DAs needed a "stat", for you see, stats add up to promotions within the office which means raises. I wish I was kidding. Someone's life is at stake who has spent thousands in his defense, a cop who makes probable cause arrests not at all uncomfortable with the case being worked out, and we spend 2 days in trial because the DAs need a stat. Heinous. Well, these DAs were banking on getting a jury that has bought into the mass hysteria "Drink. Drive. Go to Jail." The foreman after 2 hours sent out a note: "evenly divided". The judge sends back an Allen charge (legal charge that urges a unanimous decisions unless it violates one's conscience) then later brings them back out to which the foreman said it was not possible for the decision to ever be unanimous. After the judge declared a mistrial, the DAs and I went back to discuss with the jury. The split had changed 4 Not Guilty, 2 Guilty. The foreman proceeded to explain if anyone should be wanting a Guilty verdict it would be him as one of his close cop friends was killed by a DWI (he wore the fundraising tee shirt the 2nd day of trial) and he felt strongly that my client was Not Guilty and proceeded to give the myriad of explanations. He pointed out that the alcohol counselor (I kept her on because her brother had a DWI and had to use my 3 strikes on far worse biased jurors) had argued she was the expert on HGN (eye test) and this was one of the big issues (even though the cop testified on cross you can't correlate the movement of the eyes with an alcohol amount, don't ask me what possessed her to think she was an expert?). One of the jurors asked what made the lawyers choose them. We explained that it was not a matter of choice but a process of elimination. I went on further to explain that I never let drug/alcohol counselors on my jury but ran out of strikes to which she smiled and said "I was wondering....". Sad in that right there she herself could not see her own bias. People like that (like cops, victims of DWI, MADD members) violate the law when they sit on DWI juries saying they can be fair when they know they can not. Travesty. So what now - a retrial. What is wrong with this picture ? Some simple solutions:
1. DAs (and defense lawyers) should have to spend at least a week in jail as on the job training so they can really understand and appreciate freedom. They sit there day in and day out making jail decisions, most of them (in misdemeanor DWIs) are too young to even understand or appreciate middle age ailment that may falsely make one appear intoxicated when they are not. Real estate agents look at the property before they sell; we test drive cars before we buy... how is it that a fresh out of law school kid without the requisite common sense and life experience can sit there and play with people's lives for their own statistics in hopes of a promotion? We need laws and regulations that require DAs go through certain education, supervision and training before making life decisions on people facing jail and convictions that will hold them back the rest of their lives. Simply put, a fresh faced kid with no life experience should not hold that much power until they are ready to exercise it wisely.
2. We should pass laws that require DAs to document in great detail why (the reason and motivations) they are taking their courses of actions and this should be open to public review (like officer personnel records for those who make open records requests). This should be subject to review and held to accountability. Then we would not have DAs (like I have to deal with ALL the time) that simply respond "it's office policy." "Office policy on DWIs" should not be a reason to circumvent justice. Then the public can with better education (as newspaper reporters discover through the records) elect appropriate DAs. Information is power. An informed electorate is a powerful one. We are still living in a day where the lawyer that has the most electable name or who can afford the most fliers wins. Disgusting. It's only the people who get hurt. This leads to unchecked tyranny. This would be one check put in place to prevent what happened when a Williamson County DA now judge concealed evidence that proved a defendant who spent decades in prison was innocent: http://blog.bennettandbennett.com/2013/04/limitations-and-the-ken-anderson-prosecution.html . With the passage of laws that require accountability and disclosure on the part of DA prosecutorial actions (they are acting and paid on behalf of the 'state'), there will be enough information for the public to make the right decisions as they evaluate how justice is administered in their communities and oversight to help prevent judicial travesties.
3. There should be a yearly renewal of the "oath" for every judge, DA and defense lawyer that requires not just that they recite the vow to seek justice but an application form that requires responses such as:
a. How many defendants (clients) have you represented this year?
b. In interactions seeking justice of each client this year - do any involve grave injustice as a result ? List why and with whom (DA, defense lawyer, judge)
Criminal defense, prosecution and sentencing deals with people's lives, not commodities. Everyone in the system should be held to the highest standards. There is more regulation in the restaurants we eat in than in the courtroom. Every person accused of a crime is entitled to respect and understanding. It is up to the public to require this.
Bottom line. We need documentation and accountability. The DA, defense lawyer or judge who gets caught not making ethical decisions when accountability is required and open to review will be the one that societal evolution requires they find another path. Justice is too precious.