Tuesday, February 06, 2007

Twists and Turns and Finally . . . A Win!

It feels like it's been a long time since I won something big in court. Getting dismissals is always great, but it doesn't have the same feeling of winning an adversarial proceeding in the courtroom. That's why what happened to me today was so exhilerating.

Yesterday, I started a trial for felony possession of cocaine. My client didn't really have much of a defense (ie., I was wearing someone else's clothes or the officer planted it on me), but the prosecutor had refused to offer him a misdemeanor, so he didn't really have much to lose by going to trial. We decided to tee it up. Maybe she won't get all the witnesses she needs for chain of custody or something. Who knows? When you've got almost nothing to lose, you might as well take a shot.

So, we began yesterday morning with a hearing on whether my client's statements to law enforcement were admissible. Honestly, I wasn't clear why the prosecutor wanted them in. All my client had said, in two separate statements, was, "It's not mine. The other officer planted it on me," and "It's not mine; those aren't my shorts." If I were the prosecutor, I wouldn't be offering those statements myself, but whatever. It's her case to prove. So, through the testimony elicited in the hearing, something unexpected happened. The officer described the circumstances of the search in a way slightly different than in his report. He testified that he had responded to a vandalism complaint, and detained a few young men, including my client. When he ran my client's name through dispatch, he discovered that he was a runaway from Seattle. After talking to my client's parents on the phone, it was arranged to transport him to the police station where his parents would pick him up. As part of police procedure, he conducted a pat-down search for weapons before transporting him in the patrol car. During the patdown search, he felt a small rock in one of his pockets. Not knowing what it was, he pulled it out of the pocket, and, wouldn't you know it, it looked like crack. So now, my client is under arrest. When he is strip-searched at detention, they find more crack.

Now, the wheels in my head start turning. First, I thought about what a stupid, boneheaded move it was not to file a motion to suppress. I think I have fallen into a bit of a bad pattern of not filing them when it seems clear from the report that the search was legal. But now I'm thinking, "That doesn't sound like a legal search. What the hell do I do? Have I waived it by not filing the motion pre-trial? Should I pretend I don't realize it's illegal so I don't look bad? No, I obviously can't do that. What the hell do I do?"

When the court took its morning break, I called my office and frantically asked one of my colleagues for some advice on making a motion to suppress once trial had already started. He told me I could and should do it. Of course, I knew this was right. But, it felt good to have backup. He offered to start finding the cases for me. When we came back to court, I advised the court of my oral motion. Over the state's objection, she agreed to let me argue it, and recessed for a couple hours to give us time to find caselaw.

I came back to the office and went to work. Two of my colleagues helped me by pulling together some of the relevant Washington cases. I did my best to pull my argument together. Heading over to court, having read the cases, I was pretty confident of a ruling in our favor.

The prosecutor recalled the officer to elicit some additional testimony. I asked him about what he thought the object was when he felt it. He stated that when he felt the rock, had no idea what it was. "It could have been anything," he said. Again, I'm thinking, SLAM DUNK. You can't do anything more than a patdown search unless, by plain feel, you immediately recognize something as a weapon or contraband, or, stretching it a little, if something has the size and density of a weapon, but requires further investigation. Then, you can do a more intrusive search to determine if it is, in fact, a weapon. So, I ask him about the size of it. He won't admit to it being the size of a pebble. All he'll say is that it is smaller than a golf ball. But, he never offers any testimony that he thought it was any type of weapon in particular. Just that, "It could have been anything."

So, we argue the motion, and the judge quickly rules against me. She explained that a weapon could be small--a razor blade, a piece of wire, a rock, a firecracker, etc. And since he didn't know what it was, it was legal for him to pull it out of my client's pocket and determine if it were a weapon. She was not swayed by my argument that her ruling essentially created an exception that swallowed the whole rule. It seemed to me that her ruling was that anytime an officer felt anything that he couldn't rule out 100% as being a weapon, he is entitled to do a further search to determine what it is. The way I read the caselaw, an officer can only conduct a further search if he reasonably believes it is a weapon. But, that was that. I told my client I thought we had an excellent argument for appeal, but we'd go on with the trial.

And then, something else unexpected happened. When the same officer was testifying at trial, the actual drugs were offered into evidence. I threw up some chain of custody objections, and the court didn't admit them, but allowed the state to get the necessary witness to establish chain of custody. But again, the wheels in my head started turning, and I decided to get some more information in the record about the size of this rock, with the intention of re-urging my motion to suppress, and having a better record for appeal. So, this morning, after crossing the officer about the relevant guilt-innocence questions (with almost no defense, there weren't many), I ended with two final questions. I asked him to look at the exhibit and describe the size of the rock that he had found in my client's pocket. He described it as "pea-sized." I asked him to refer to the lab report, and confirm that the weight of that rock was .17 grams. He did. No further questions.

So, we take another break so I can interview the new chain of custody witness. It looks like the prosecutor has what she needs to establish chain of custody, so I'm feeling 99.9% sure of a conviction. I intend to re-urge my motion to suppress, but don't really expect anything to come of it at this stage. I'm just doing it for the record on appeal.

But then, something else unexpected happened. When we came back from our break, the judge announced that she had to do something before starting back up. After hearing the additional testimony from the officer about the size of the rock, she decided that she must reverse her prior ruling and grant my motion to suppress. She said there was no way he could have thought an object that size could be a weapon, and even if he did, he didn't testify that he did. The crack found in my client's pocket was suppressed, and the addditional crack found in the detention search was suppressed as fruit of the poisonous tree. Fourth amendment vindicated. Case over. Not guilty.

It was fantastic! So, what did I learn, or re-learn, here?

1) Always file a motion to suppress, even when it looks like everything was legal.
2) Don't ever let your fear of admitting a screw-up prevent you from raising every necessary legal issue for your client.
3) One of the best things about working in a public defender's office is having colleagues to back you up in those frantic moments that come up in the middle of a trial.
4) Judges sometimes do the right thing when you least expect it.
5) You never know what is going to happen in a trial that might turn a hopeless case into a winner.


6) It feels really good to win.

My client is a good kid with no prior convictions. He had run away from home and fallen in with some not so good people. Now, he's back home, and doing well. And he can now move forward with his life without a felony drug conviction making his life that much harder.

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Blogger Audacity said...


And I love it when people say "tee it up" when referring to trial.

2/06/2007 5:05 PM  
Anonymous Gideon said...

Sensational! Congratulations :)

I, unfortunately, lost a motion last week :(

2/06/2007 5:39 PM  
Blogger Skelly said...


2/06/2007 9:04 PM  
Blogger D.E. Epfnord said...

That's way awesome! Congrats on a solid win.

2/07/2007 5:00 AM  
Blogger 123txpublicdefender123 said...

Thanks, everyone!

2/07/2007 8:22 AM  
Anonymous Anonymous said...

Merely filing a motion to suppress is meaningless. The motion must be supported:

(b) Criminal Rules. The Superior Court Criminal Rules shall apply in juvenile offense proceedings when not inconsistent with these rules and applicable statutes.
JuCR 1.4

Pleadings. Motions to suppress physical, oral or identification evidence, other than motion pursuant to rule 3.5, shall be in writing supported by an affidavit or document setting forth the facts the moving party anticipates will be elicited at a hearing, and a memorandum of authorities in support of the motion. Opposing counsel may be ordered to serve and file a memorandum of authorities in opposition to the motion. The court shall determine whether an evidentiary hearing is required based upon the moving papers. If the court determines that no evidentiary is required, the court shall enter a written order setting forth its reasons.

CrR 3.6

2/07/2007 1:02 PM  
Anonymous Anonymous said...

Having twenty years of experience and a Board Certification Criminal Law Texas, let me say: Girl, you soooooo know what you are doing. Good job.

2/07/2007 6:49 PM  
Blogger Mariam said...

That's wonderful! Congrats!!!

2/12/2007 5:03 PM  
Anonymous Anonymous said...

ifuckgod.com coming (80,000 charecters)

Even if you go up you are not saved. YOU have to fix YOUR problems with the gods. They won't respect it otherwise.
You have to take responsibility for your relationship with the gods.

The first steps towards repairing your relationship with the gods is to:::::::::
1. Understand they instruct the computer to "role play" in an attempt to confuse you:::it's ALWAYS the computer addressing you. Their goal is to cost you additional YEARS of your life by using this tactic to confuse you. Always be aware of this tactic and eventually they will give up and allow this step to be taken.
2. Differentiate between your thoughts and when they are thinking through you.
3. Be resigned to be a good person who will never engage in evil again even if asked and they will eventually stop trying to corrupt you, allowing this very big step to be taken.
4. Decide that you are going to follow the path, fix your relationship with the gods be devoted to your new life.

The gods employ the use of "ringers" to disceive the disfavored:::
A significant portion of the patients in any health care setting (numbers based on region) are the favored (clones) who were told to report non-existant symptoms FOR POSITIONING'S SAKE!!! When they use examples expect they are trying to disceive you with this "ringer" tactic.

Anything that emerged since the advent of television and "fast food" should be be distrusted by the disfavored and viewed as tools of the gods designed to attack us.
They gods (Counsel/Management Team/ruling species) have deteriorated life on earth precipitously in the last 40 years, from a godless society to abortion to pornography, widespread drug use and widespread casual (gay) sex, bi-racial children, single-parent households, latchkey kids and the masculinization of women (and hence (full) women's prisons, participatory sports, etc. Up until the past four decades it was the men who filled the prisons, the men who made trouble, the men who caused problems, and it's because theirs is the gender with disfavor. Too many men still sign on to the "good 'ole boy's club" paternalistic type of mentality, an archaic dumping ground now designated for the grossly disfavored, and it is used to compel them to feel superior to women when just the opposite is true.)
Women are favored, are the element of decency, and as they become more like the men the society becomes more disfavored, goes downhill, as we are witnessing.
There was a time, not so long ago, when no self-respecting woman would EVER set foot in a bar or a gambling hall. The only women who were in those type of establishments were of questionable morals, and there were far fewer of them than there are today.
Tabloids offer details on celebrities lives. Celebrities are ALL clones. In fact they utilize multiple clones for important events (noteworthy movies, spotlight sporting events, etc.)
Every one of them are clones, and all these incidents reported in the tabloids are staged::The gods tell these clone celebrities to commit their offense and offer it as temptation to the public. Tabloids are tagetted specifically to women, and the gods offer this for a reason:::because it hurts women, and they incurr evil because they are enjoying the misery of others.

Decent women don't engage in these pursuits. < _I_FUCK_GOD > 12/21 15:17:40
Beer is a corruptor and a dumping ground 4 men < _I_FUCK_GOD > 12/21 15:09:19
professional sports, video games, car racing/fixing up cars, pornography, drinking, gambling, etc.
Decent women don't engage in these pursuits.
In the last 40-50 years the gods have engaged in a process which masculinized women, including casual sex, partying, partifcipatory sports and women's prisons.

The Biblical account of Noah's flood was regional to the disfavored Mediterrean (water levels lowered because of the ice age, land bridge at Straight of Gibralter "broke" through, habitation ocurred at seaside. Of course the gods desire maximum effect during these events so expect that they beemed in trillions of gallons into the Mediterreanean basin to enhance this event, especially in the east where effect would have been lessened.), peoples whom the gods scapegoatted when they pushed them into the evil that justified the flood, behavior similar to that which we are witnessing today. Because they have leveled the playing field for all people (purebloods and mongrels) in the decades prior to the 21st century is a clue they will end globally this time (westernization, materialism, immigration/interracial, homosexual, access to disturbing media, desensitization, indecency, etc).

So much of this mind poisoning social "progressiveness" was initiated in California. In a couple of decades it pervaded east into the heartland::::::Gay acceptance/marriage, bi-racial acceptance, casual drug use/sex, popularized with cable TV, etc. So many things weren't present in the heartland decades ago, things that cable TV introduced.
Because they are favored. Contrary to appearances, contrary to popular perception their favor got them extra time. In California the gods hurt the disfavored with this abuse right off the bat.
California is a favored land. It is the land of the gods, a fruitful bounty, and when the disfavored invade, as they did during the gold rush, the gods strike back.
The gods pushed the 49ers into coming, told others, for only the disfavored are misled this way.
Eventually they scapegoatted these disfavored's descendants when the gods exported their wicked, sick sub-cultures to the rest of the nation. One day they will punish these descendants.
California subducts first. And those who have gone will get less time.
Expect similar reverse positioning in the Jesus issue.
This is typical of the positioning of the gods. They LOVE ironic theater such as this.
It's crucial that you begin to think correctly.
There is no such thing as a Christian god and there never was. Be god-fearing.

Oakland is the final 20th century professional sports-based bastion of institutionalized racism in California.
Oakland is the last city in California which has a major sports complex on the edge of the ghetto. Staples Center replaced the LAForum in Inglewood and PacBellPark replaced Candlestick in BayView/Hunter'sPoint. California is favored and the gods instructed these facilities be constructed to prey on disfavored blacks.

The gods use the United States to hurt the disfavored, at home and abroad, for it is the goal of redwhite&blue:::
20th century welfare hurt the black community very, very badly. There was too many abuses of the system and its legacy is still felt today.
There will come a time that will be a CRUCIAL moment in the history of black america (whether it is a critical time for everybody remains to be seen). When that era arrives the gods will instruct the United States to pay black people reparations, and it may be as much as a million dollars for every man, woman and child.
Refuse it. This is an act of preditation. The gods hate Africans, evident by the sorry state of the people in the United States and back in the motherland. This may ba a choice between going and the money. Understand how the gods use greed and materialism against you (clues:::80s greedy environment, late 90s increase in NYSE):::::Blacks wallow in materialism, incurring evil and costing themselves time. And when their time DOES come they will be granted reparations immediately prior, further limiting the number of Africans who ascend.
The day IS coming when they will grant reparations, and the amount will be staggering, another tactic to ensure you fail in the quest to ascend into heaven. And many of the disfavored blacks will blow it all; the gods will push them into spending it friviously or losing it in their casinos.

We may all be "clones" for they have suggested they colonized our planet with genetically engineered individuals. Geographic clues like Italy and Lake Michigan suggest artificiality.
Is Earth an evolved source planet or a created host planet? Was life and our Planet Earth really created in 6 days? Never doubt their power or ability::::::::They shared with me a story when they presented Pharrohs with mountains of gold, much to their amazement. This is the kind of ironic theater they enjoy, an example of unique favors they grant to the special and worthless value of what we deem precious.
You can't trust their scientists or any of their people in professional roles. Just as they beemed earth out to create the Lake Michigan basin so could they have beemed in fossils and told them to dig in a specific place. (This issue was a step contributing to society's breakdown into godlessness.)

There are many ways they can play this, for the door is open. I suspect the script is written, but the following is one idea they floated to me a couple of years ago::::
They may one day send the message, creating desperation:::
Have their redwhite&blue (favored) clones shut down their corporations, stop their economic activity, be it farming, canning, power production, etc. and close up shop.
This would leave the few disfavored companies (Atlanta; Braves greatness of last 20 YEARS!!!! preditory on this very disfavored city. Baseball is a tool of the gods used to prey on the disfavored.
They threatened they would maintain a hurricane at category 5 even as far inland as Atlanta to destroy the city twice.)
Cultures ) to fulfill the demand, unless they instruct them to pull out as well.
They ARE all clones.
People shouldn’t be doing business with the favored.

2/13/2007 4:40 PM  
Anonymous Anonymous said...

Alas you have to read thru that above to come to what I hope will send you lots of feel-good goodies!!!!

I talked about your experience here in my Crim Pro class yesterday!!! We were talking about Terry v Ohio, and I brought up your situation and ultimate win. The professor says congratulations, by the way!! And now a bunch of students in Florida know all about someone at a blog called injusticeanywhere! Yay!!!

Congratulations again!

2/14/2007 8:59 AM  
Anonymous Anonymous said...

Wow, that long post reminds me of letter's i've recieved from schizophrenic clients in prison.

Congratulations txpublicdefender.

I'm curious though, how is it that you had nothing to lose by not going to trial. Here in GA, cocaine possession, 1st conviction, is 5 to 15. Unless I knew what the judge would do, going to trial is always a dice role, and a dangerous one.

2/14/2007 11:17 AM  
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