Articles Posted in Confrontation

The National College for DUI Defense (NCDD) and the National Association of Criminal Defense Lawyers (NACDL) just wrapped up their annual Las Vegas seminar.  As usual, it was well attended and the presentations were very informative.

The conference featured presentations on Thursday, September 22, on cross-examination by Jim Nesci; accident reconstruction by Steven M. Schoor; succeeding without an expert by Tommy Kirk; and, the psychology of winning by Allen Fox, Ph.D.  The conference continued on Friday, September 23 with presentations on case law update by Don Ramsell; NHTSA’s ARIDE program (Advanced Roadside Impaired Driving Enforcement) by Tony Palacios; preparing for direct and cross of experts by Virginia Landry; ethics by Jim Nesci and nine other regents; gas chromatography for jurors by Suzanne Perry, M.Sc.; closing arguments by Joe St. Louis and Tommy Kirk; field sobriety test facts and fallacies by Tony Palacios; and, prescription medication issues by Fran Gengo, Pharm. D., Ph. D.  The conference concluded today with presentations on closing argument by Tommy Kirk; cross of the standardized field sobriety tests by John Hunsucker (for attorneys with 1-5 years experience) and by Don Ramsell (for attorneys with over 5 years experience); analyzing a DRE facesheet and narrative report by Steven Oberman and Tony Palacios; breath testing by Jim Nesci; defending the impaired marijuana case by George Bianchi; and, how to try your first DUI case by John Hunsucker.

I have been reflecting on Memorial Day and paying tribute to the men and women who gave the ultimate sacrifice in defense of our liberty.

We are very fortunate to live in a place where an accused is presumed innocent, and has a right to notice, counsel, proof beyond a reasonable doubt, against compelled self incrimination and against unreasonable search and seizure. We also have constitutional rights to equal protection, due process, and freedom of speech and religion, and against government establishment of religion.

Each generation has a responsibility to fight to keep the rights and ideals enshrined in our Constitution alive. As lawyers, we have a special responsibility to give meaning to these rights that define us as a nation of laws and liberties, and we fight in court every day to ensure that the government promotes our rights, and does not encroach on them. We know from experience that many of our citizens take these rights for granted and don’t agree with them unless or until they face charges. As many of us know all too well, many of our prosecutors and judges give only lip service to our rights and achieving justice in many cases requires hard work by us, and is not always successful.

The National College for DUI Defense (NCDD) just concluded its second annual Serious Science seminar Saturday in Ft. Collins, Colorado.  Attended by 21 lawyer students, the five day seminar featured a day and a half of lectures by the nation’s leading experts on forensic blood alcohol testing, Jimmie Valentine, Ph.D., Carrie Valentine, Ph.D.Janine Arvizu, NCDD Regent Joe St. LouisPatricia Sulik, Ph.D. and Robert Lantz, Ph. D., followed by a tour of a working forensic laboratory, Rocky Mountain Instrumental Laboratories. Rocky Mountain Instrumental Laboratories in Ft. Collins, Colorado, is run by Patricia Sulik, Ph.D. and Robert Lantz, Ph. D.

The science portion was followed by three days of lectures and breakouts on trial techniques  taught by by two veteran faculty members of the Gerry Spence Trial Lawyers College, Marjorie Russell, and Francisco “Paco” Duarte.   The TLC website says:

Trial skills are only part of being a force in the courtroom. The trial lawyers’ power originates from within. Knowledge of oneself gives the lawyer the capability to know others and to connect with each person in the courtroom including the witnesses, the judge and the jurors. The power of TLC’s methods come alive through creative, spontaneous, outside-the-box innovations that capture juries and move them to justice.

The Court of Appeals announced its decision in Norton v. State today.  I was privileged to have been local counsel on the amicus brief filed by the Innocence Network in this case.  The case was a win for Norton, but more importantly, it was a win for all defendants who wish to confront scientific evidence offered against them in court.

The rules governing application of the Confrontation Clause have been changing over the past few years.  A series of cases had helped to expand the ability of defendants to confront scientific evidence: Crawford v. Washington, Melendez-Diaz v. Massachusetts, and Bullcoming v. New Mexico.  These cases required the State to produce in court a chemist who actually tested a defendant’s blood in a DUI case.  I was also privileged to have helped to write the amicus brief filed in Bullcoming by the National Association of Criminal Defense Lawyers and the National College for DUI Defense.

Unfortunately, in Williams v. Illinois, the Supreme Court backtracked and ruled that in a DNA case, the State did not have to produce the analyst.  However, there was no majority for what became a plurality opinion of four justices.  There were also four justices in dissent.  The deciding vote was cast by Justice Thomas, who agreed with the dissenting justices with respect to their reasoning but voted to not require confrontation because the document stating what the DNA results were was not sufficiently formal.  This confusing alignment of justices brought into question what rule should be applied by the lower courts.

In this blog, I want to weave a couple of strands of thought together here on the Fourth and Fifth of July, as I complete the 2015 update for the 8th edition of my Maryland DUI Law.

As defense lawyers, we are trained to look for the good facts in our cases, and the good traits of our clients, so that we may use the good to persuade judges and juries at trial, and judges at sentencing. What we find is that there are very few people that are all good or all bad. At the same time many of us, through one path or another, end up advocating on particular issues. The issues we may end up being most involved with are not necessarily the most noble, but with so many issues and so little time, we must pick and choose.

Two issues that I am particularly proud of having had the opportunity to argue for are Fourth Amendment issues, the constitutional right to be free from unreasonable and/or illegal searches and seizures, and the Sixth Amendment right of confrontation, guaranteeing that witnesses testifying against our clients be present in the courtroom to be cross-examined. I helped to write amicus briefs in both the Fourth Amendment case of Missouri v. McNeely, and the Sixth Amendment case of Bullcoming v. New Mexico. In McNeely, the Supreme Court held that dispensing with a warrant to obtain a blood sample in a DUI case should never be the norm. In Bullcoming, the Supreme Court held that the actual chemist who tested the defendant’s blood must be present in court for cross-examination. These are important cases, and the government and many lower court judges are doing everything they can to work around them.