It Might be a Million Dollar Case

Tony Vitz, TLC 99' Grad & Faculty Member. 7/19/2012

     What is a person’s job worth, especially in this economy? When Walter was arrested for Driving While Intoxicated (DWI), he knew he was in jeopardy of losing his job as a car salesman even though he was the top salesman in the company. This arrest was not only about Walter and his job, it was about his ability to support his wife and their (3) children. There was no doubt that a conviction for this type of offense would mean termination of his employment and a major detour in this family’s life path.

     Walter trusted the breath test and the officer to get it right, but he and the jury found out that the officer and the machine were on a different team and it wasn’t a team for Justice. Walter’s breath specimen produced an alcohol concentration result of .149 on the Intoxilyzer 5000 about an hour and twenty minutes after the officer stopped him. (A .08 or higher is considered intoxicated) Walter admitted to (7) drinks and that “maybe he had two too many”. His field sobriety tests weren’t too bad, but he hopped a bit to retain his balance and wasn’t able to stand in place with one foot in front of the other. The bottom line is that Walter’s actions on the video could be explained and they were not the result of being intoxicated.

     We always want to know how another lawyer won a big case. We get questions like, “How did you overcome the presumption of intoxication?” or “Who was your expert?” and others. I can share some of how we won this one, but there isn’t any one reason. Many lawyers don’t understand what it takes to win. We go into the courtroom with the culmination of life experiences that we use. It is caring about our clients, and being genuine that make the difference, not how much law or science we know. I think trials are like football games. While they aren’t games at all to most of us, every inch can be the difference. Momentum is also very important. We’ve got to grab it and keep it as much as we can until the trial is over. We begin with ourselves in jury selection.


Jury Selection

     As I sat there while the prosecutor was attempting to conform the jury to his way of thinking, I was, as usual, trying to blow it off and act like I didn’t care what he said. Reality is that I was a little bothered by all the tactics the prosecutor used to try to win. Sometimes, I have a difficult time coming up with words to describe my feelings. I have to be able to slow down and find the feeling because I know I’m prone to skip right over the feelings and the reasons for them and run to anger. So, I asked the jurors, “What is going on with me right now?” They knew it. Ms. White said, “It’s written all over your face”. I responded, “You must have been talking to my wife because that is what she says”. “What do you see on my face?” “You look irritated”. “Yes. Anyone else?” The word, “Frustrated”, comes out. “Yes, I get frustrated”. “Why am I irritated and frustrated?” If they don’t answer, I give them some examples to assist them a little. “It bothers me when I constantly hear the words, “this defendant” or “the defendant” from the prosecutor”. “This man has a name and it is Walter….” “Phrases like “Police officers let people go all the time that aren’t intoxicated”, and “we aren’t talking about drunk; we are talking about intoxicated”. These comments make me feel helpless to help Walter because I want to win for him.

     The biggest issue in this case was the breath test result, but there are several sub-issues that are also important. I have a list and try to cover them during the Voir Dire process and trial. i.e. Not performing perfectly on the field sobriety tests. I used something I stole from a lawyer, named Stuart Kinard. Years ago, I would use a thick poster board with the words, “If the government bought it…” with the answer hidden behind some butcher paper taped below it. After the jurors would come up with answers like, “it cost too much” to finish the sentence, I would rip the butcher paper away to reveal the answer- “It must be O.K.”. Well, I admit that I used it again, but with power point this time. But, I did tell them the story about the butcher paper so it didn’t come off as being too slick, corny or tricky. All I wanted them to know is that Walter is not guilty even if there is a breath test result above the legal limit.

Opening Statement

     I knew Walter’s story and I told them everything and more. “This is a case about being exhausted, not intoxicated”. “It is about the war on drinking and driving and the innocent casualties that always come with war”.

Cross Examination

     I was just having fun with it. Sometimes we get too serious and can’t be ourselves or we think that we can’t say certain things in the supposed solemn courtroom. Thanks to psychodrama and other personal work, I’m beginning to know myself and not afraid to be human. The cross was simply telling our story with the state’s witnesses.

     We know what we need to win the case and we know what the state’s witness wants the jury to believe. I can’t control the state’s technical supervisor or the police officer. The sooner we learn that we can’t control anyone else, the better we will be. I know they want to win and that they believe that the breath machine and their opinions are absolutely correct. The state’s technical supervisor is a strong, good looking female. I know I’m not going to beat her with her science, but I have to constantly remind myself not to fight and argue with her answers. The first question/statement to her is something like, “You’re pretty good at this” and “I’m certainly not going to fight with you” I hope I didn’t, but I think I might have said, “You’re better looking than me or not bad looking either”. Sometimes, she would go into a long narrative about how great the machine is. Instead of objecting and looking like she was hurting us, I might acknowledge her narrative with a question. “It’s hard to answer questions with a simple yes or no, isn’t it?” “By the way, did you know we can go to eBay and buy one of those intoxilyzers for about $250.00?” “If I buy one, can I hire you to come set it up and get it going so I can use it at my party?” Just be yourself and have fun with it.

     Walter’s story came out and the jury knew that it would take a lot of alcohol for a person to really have a .149 alcohol concentration. At a minimum, the jurors had doubts about the accuracy of the machine and they didn’t want to hurt him.

Closing

     We’ve learned that we can’t win it in closing and I believe it. We started winning this case at the beginning when the jurors were telling me how I was feeling and why. At the same time, we never really know what the jurors are thinking and we certainly don’t want to lose it in closing.

     I always like to repeat our “power statement” or theme as much as possible without wearing it out. I just talked to them about what I’ve been thinking about lately. “It seems that our world has become so competitive. We’ve got all these teams that want to win. We’ve got the Republicans vs. the Democrats; neither wanting to agree or say anything positive about the other for fear that they might lose some edge. We’ve got the police team, the prosecutor team, and we’ve got our team. This isn’t a game to us. It isn’t about winning or losing, it is about Walter’s life. Why can’t John (the prosecutor) say the name, Walter, especially when he knows his duty “is not to convict, but to see that justice is done”? They’ve got their white board in their office that lists all the cases going to trial that will display the results for everyone in the office to see. What they need is a column entitled, “Justice was done” with a place for yes or no.”

     Conclusion Sometimes we become numb to consequences of convictions or marks on our clients. We are sometimes sucked into the money man’s propaganda. We don’t think about what it is really like to spend (5) years in prison or be under a probation officer’s thumb for even a year. What would it feel like to be required to give a urine specimen while someone is watching it fall from your urethra to a cup? How does it feel to be under that thumb? We might not allow ourselves to think about our client’s struggle to keep or get a job and support their family. Think about your law license and what you might do if it is taken away. We are the only ones who have the ability to fight, teach, and educate the people about what is going on. If we can’t see what is happening, we will not be able to get the people to see. Is it really all about the money for you?