What are your rights with respect to canine searches of your car?

One minute you are driving down the road without a care in the world, and the next minute you have been pulled over for a broken tail light.  Well, if the police officers have a drug dog with them, the next minute they could be tearing your car up while you wait on the side of the road.   Doesn’t sound like too much fun, especially if there are people you know driving by.

Even for people who know their rights, the laws on drug dog searches can get a little tricky.  When I think about drug dog searches, I think of the song “99 Problems” by Jay-Z describing an incident in 1994 when he was pulled over for speeding when he had drugs in his trunk.  The police ask Jay-Z to consent to a search of his car.

“Well, do you mind if I look round the car a little bit?”
Well my glove compartment is locked so are the trunk in the back
And I know my rights so you’re going to need a warrant for that
“Aren’t you sharp as a tack, you some type of lawyer or something’?”
….
Nah, I ain’t pass the bar but i know a little bit
Enough that you won’t illegally search my shit
“We’ll see how smart you are when the K9 come”

I got 99 problems….

What stumped Jay-Z is that he didn’t know his rights on the subject of a canine search, and this became one of his “problems.”    O.k. so here is how canine searches work.  First the bad news, and then the good news.

The bad news is that generally, a canine sniffing the outside of your car is NOT a search.  The U.S. Supreme Court reasons that the little molecules of marijuana (or whatever) that are wafting away from your car are in the public space, and the police are free to have their dogs everywhere the police are free to be.  It used to be that the police needed an “articulable suspicion” in order to bring their canine up to your car.  This was the rule in New York State in 1994 when Jay-Z was stopped.  However, in 2005, in Illinois v. Cabelles, the U.S. Supreme Court ruled that the police needed no such articulable suspicion to bring a police dog up to your car at a traffic stop.  So if the police officer is writing you a ticket for broken tail light, he or she can have the drug dog right up beside the car (but not inside).  If the dog indicates that it smells drugs, the police may then search your vehicle.

The good news is that there are ways to fight drug dog searches.  While the law does allow a canine to accompany an officer on a routine traffic stop, the officer is not allowed to delay the traffic stop unnecessarily while the dog searches.  In many rural areas such as Lincoln County, Grant County, or Okanogan County, the delay in a drug dog arriving can be substantial.  In urban areas such as Spokane, the dog can arrive in a matter of minutes.  If your ticket has been written, the officer cannot require you to keep your vehicle on the side of the road while they wait for the dog to arrive without just cause.  Additionally, it does not seem permissible for the officer to put the writing of the infraction “on hold” while a canine search is done.   For an officer working alone, this may pose a problem.   Also, it may be that the Washington State Supreme Court might rule differently than the U.S. Supreme Court.  The Caballes issue has never been squarely before our Washington supreme court, and are justices in Washington could construe the right of privacy in our state constitution more broadly.

How to Challenge a Drug Dog Case

Training a dog to recognize the smell of marijuana or other drugs is relatively easy.  One simple way is to stuff a toy with the substance and to use the dog’s “fetch instincts” to learn how to find the toy.  However, to have a judge accept the dog as reliable in court is very difficult.  Dog handlers have extensive training for their dogs and must keep extensive records.  If the dog “alerted” to a car, and no drugs were found, the dog handler will record this error.  Because of the prevalence of cocaine and marijuana in our society, trace amounts of these drugs can be found all over, particularly on paper currency.  It is not unusual for a drug dog to “alert” on a car only to find money.  Some studies, such as one cited in the Cabelles case, show that dogs in artificial testing situations return false positives anywhere from 12 to 60% of the time, depending on the length of the search.  In my practice as a criminal defense lawyer, I often use the publication A Guide To Canine Interdiction as a reference.  This DEA manual recommends that the canine and the handler both be trained at the same time, and that the two be paired for life.   The dog should be certified by an independent agency with no financial stake in the outcome.   The manual recommends that every use of the dog to screen luggage, vehicles or houses be documented.  Courts generally require that all these records be turned over to the criminal defense lawyer if he or she makes the request.

Hiding the Odor of Marijuana

It is next to impossible to hide the odor of marijuana or other drugs.  People have sealed marijuana in ziplock bags, inside tupperware, inside coffee grounds, and wrapped it with animal fat, and the canines have still detected the drug.  People have also attempted to hide the drugs by submerging them in a fuel tank.

For more information on marijuana laws in Washington State, see here.

What do you think?  Should the police be able to approach your vehicle at a traffic stop with a drug dog?  What are some of the ways you have heard that people attempt to hide the odor of drugs?  Are drug dogs sufficiently reliable to justify searches of our personal belongings?

The search for Indiana University college student Lauren Spierer has involved social media in a way that we have never seen before.  Lauren Spierer, the Indiana University fashion major, went missing after a night out with friends on June 3rd of this year.  Her family has launched a nation-wide effort to keep the case in front of the largest possible audience. Their efforts have included the traditional “missing” flyers, but they have also used YouTube, QR codes, Twitter, Facebook, RSS feeds, and e-bay auctions.  Some of their efforts seem to be born out of frustration – the case largely took a back seat to the Casey Anthony trial last summer.  But some of their efforts are surely motivated by a belief that no effort is ever enough.

Their efforts at distributing “missing” posters even lead to one anonymous letter sent to her parents that there were “too many” posters to the point of “littering”.  If other missing-person campaigns are looking for a benchmark of success, there you have it: hate mail from the callous and selfish.  It makes me think of Grant Cardone’s goal of marketing: omnipresence.

Some of Lauren Spierer’s parents’ efforts seemed to be aimed at keeping pressure on witnesses who might not have come forward, or who might not be telling the truth.  So far some of the witnesses have told inconsistent stories, claimed memory loss, or hired celebrity attorneys.  In some states prosecuting attorneys have procedures available to compel these reluctant witnesses to either tell what they know, or to take the fifth.  Such processes, such as grand juries or special inquiry proceedings, can help narrow down lists of suspects. And no one wants to be nationally known as the person who “took the fifth” in a case such as this.  Defense lawyers can assist the investigatory process by brokering deals where witnesses gain immunity for secondary concerns like underage drinking that occurred that night.

We will hope for some leads for Lauren Spierer’s family, and in the meantime, keep checking out this story on Twitter @NewsonLaurenS, and @FindLaurenS, and in Facebook here.

For some of my past blog posts on missing persons, see here and here.

Lastly, check out this awesome youtube video of a song her supporters wrote.

Minor in Possession of Alcohol

They say it is a rite of passage for young adults to try alcohol.  So I suppose parents shouldn’t be surprised when their kids get caught, and they receive “the phone call” from police or school officials. Our society sends kids mixed messages on the subject of alcohol.  Our justice system makes it a criminal offense to consume alcohol until someone is 21 years of age.  However, it is almost as if no one expects literal compliance with this law.  Most parents seem to accept some level of occasional “social drinking” when the child is 19 or 20 years old, and sometimes even when the child is still in high school.  This is usually no different for parents in law enforcement; it is just not discussed openly.  Despite the prevalence of underage drinking, many parents are still caught off guard and baffled as to how to react when their child comes home at night accompanied by a police officer.  It helps to know what to expect from the criminal justice system.

Courts and Minor in Possession of Alcohol

What occurs when your child is caught with alcohol depends largely on the child’s age.

For youths under 18

Children under 18 go to juvenile court, but if they have no prior offenses, they are sent to pre-trial diversion.  When the police detain your child for Minor in Possession (MIP), they rarely are taken to jail and booked.  Rather the police usually give the child a ride home or more likely will call you to come pick up the child.  The police can’t cite a juvenile with a “ticket,” rather the officer will inform you that paperwork will be coming in the mail.  This can often take several weeks, leaving parents confused about the delay.  The notice in the mail often comes from the juvenile court probation officer who will invite you and your child in for a meeting.  At that point, your child will be invited to sign a “diversion agreement.”  Rather than go to court the charge will be “diverted” away from the court system and over to the local community diversion board.  The diversion board will meet with the child and parent and decide on a punishment.  The punishment could be an essay to write or community service hours.  The diversion board will sometime refer your child for an evaluation for chemical dependency.  Accepting a diversion agreement will suspend your child’s driver’s license or learner’s permit (or ability to obtain one) for 12 months.  However, early re-instatement is possible after 3 months.  A child has a right to confer with a criminal defense lawyer prior to accepting the diversion agreement, but this usually means finding a private attorney.

If diversion is rejected

If your child rejects diversion, he or she will be charged and sent through the juvenile court system.  If your teen is innocent or denies having possessed or consumed alcohol, he or she can reject the diversion agreement and have the case sent to court.  Once the case is sent to juvenile court, the prosecutor will have to prove the crime beyond a reasonable doubt to the satisfaction of a juvenile court judge.  Your child can apply for a public defender. Parents may obtain a private lawyer for their child as well. There are no juries in a juvenile court, so the judge will decide the case based on the testimony of the officer.  Occasionally the prosecutor will call other witnesses such as school officials or other juveniles, but the trials are usually pretty brief. Parents can be called as witnesses against their own children, but this is less common.  If the judge finds your child guilty of MIP, the judge will impose a sentence requiring your child to do community service hours and maybe have your child do an alcohol evaluation to make sure he or she is not chemically dependent.  The conviction will cause your child’s license to be suspended for 1 year as with a diversion agreement, but your child may be eligible for early reinstatement.

In juvenile court, the terminology is different than adult court.  In juvenile court a defendant is called a “respondent”, a trial is called a “fact finding” or “adjudicatory hearing”, and a sentencing is called a “disposition hearing.”  In the juvenile court system the parents or guardians are also summoned in and required to appear for court hearings.

For defendants over 18

A young adult (age 18-20) charged with MIP goes through adult court.  The adult courts that handle such offenses are the district courts of Washington or local municipal courts.  There is no formal diversion program in Washington State for these sort of MIPs, however prosecutors will sometimes make offers to resolve a case where it is dismissed after one year if the defendant stays out of trouble.  A defendant is sometimes asked to obtain an alcohol / drug evaluation or asked to attend an 8-hour Alcohol Drug Information School.  Unlike juvenile court, parents are not involved when a MIP defendant is over 18.  This is true even when the 18 year old is still in high school and living at home.  An 18 year old is entitled to a jury trial, and unlike a defendant under 18, he or she will not face a license suspension.  However, an adult defendant convicted of MIP will have a criminal conviction that is public record.

Sometimes the lines between 17 and 18 year olds are blurred.  When a 17 year old is caught with alcohol, he or she still may end up in adult court.  To avoid adult court, the 17 year old must accept a diversion agreement or be formally charged prior to his or her 18^th birthday.  So 17 year olds who offend just before their 18^th birthday often find themselves sucked into adult court simply due to administrative delay.  Once the matter is in juvenile court, the judge can extend the jurisdiction of the juvenile court for a year or more.  However, the department of licensing (in deciding whether to suspend the child’s license) will only look at how old the child was on the date of the offense.

Repeat offenders

As one would imagine, repeat offenders of MIP usually face a tougher time with the court system.  If a child or young adult is on probation and re-offends, he or she may face jail time, or could be ordered to be evaluated for possible chemical dependency.

Selective prosecution

Parents are often concerned that the MIP laws are not being evenly enforced.  Just as parents have differing views on teens and alcohol, so do police officers.  It is not uncommon at all for the police to overlook or ignore cases of MIP.  This is particularly true in instances where the suspect is a bit older or has smaller quantities of alcohol in his or her possession, and does not pose a threat of driving.  However, police can also play favorites, or single out children for arrest due to personal bias.  In my experience as a criminal defense lawyer (and former prosecuting attorney), in small towns the police seem to overlook certain cases where the parents are influential.  In rural counties such as Okanogan or Stevens County, the police officers are more likely to know the kids compared to urban areas like Spokane.

Getting into the military

Many parents of high school kids are worried that an MIP could prevent their son or daughter from getting into the military.  Generally speaking, such a conviction would not prevent a child from entering the Navy, Army, Air Force, Marines, etc.  However, if your child is planning on entering the military, you should certainly mention this to the juvenile probation officer or criminal defense lawyer that your child is working with.  The military won’t accept your son or daughter if he or she still has obligations to the court.  Sometimes it is possible to terminate a diversion or probationary period early to make a child eligible.

Urinalysis

The courts do not make use of urinalysis or UA tests as much as most parents would think.  These sort of tests are more common in cases of marijuana use, or when a juvenile is on his or her second or third Minor in Possession of Alcohol charge.

Criminal defense attorneys and parents

It is important for parents to understand the job of a criminal defense attorney.   The lawyer’s job is to represent the child.  Even if the parents are the ones to pay for the lawyer, this does not change the relationship.  Usually, a criminal defense lawyer will ask the parents to sign a fee agreement explaining that they will not have any control over the representation of the child.  In my experience, parents are often of two minds when their son or daughter has been charged.  On one hand they hope that their child learns their lesson, but they don’t want their child to have a criminal record.  Sometimes a parent thinks it is in the child’s best interest to be held accountable.  However, it is the job of the defense attorney to give the defendant “zealous representation” including researching ways to have the case dismissed on a technicality.  As odd as it may sound, it is not the defense lawyer’s job to do “what is best” for the child.  Rather a defense lawyer is ethically bound to listen to the client and to respect the client’s decision as to whether the case should resolve by plea or be taken to trial.  In my practice as a criminal defense lawyer, I do usually explain the seriousness of the problem of underage drinking to my clients.  If the parents take the incident very seriously, it is certainly not very helpful for the defense lawyer to treat the matter lightheartedly.  Any criminal defense lawyer would admit that 80% of their caseload is related to alcohol and drug abuse.  None of us ever want our teen clients to turn into “repeat customers.”

When your child is called as a witness

A child cannot commit the crime of Minor in Possession of Alcohol without obtaining the alcohol from someone.  Sometimes a child will take the alcohol from a parent without the parent’s permission.  However, usually the child was given the beer or the wine by someone over 21.  If your child identified the individual to the police, it may be that he or she will be called to testify against that adult.  Occasionally, a child will receive immunity on their criminal charge if they testify against the adult.  However, this is not always the case.  I have had cases where parents have complained to authorities about the adult in question, only to have their son or daughter be subpoenaed.   If your son or daughter is subpoenaed to testify in a Furnishing Alcohol to Minor case, he or she should probably speak to an attorney as soon as possible.

Regional differences

MIP cases are often handled differently in different counties.  For example, in Spokane the court systems are more congested then in rural areas such as Stevens County, or Okanogan County.   In Spokane County District Court, the courts have a more active probation department where your son or daughter could be assigned an actual probation officer.  Additionally, it seems like the public defenders have a heavier caseload in more urban areas such as Spokane.

Minor in possession on college campuses

When kids leave for college, it seems as if part of the experience is to use or at least try alcohol.  College campuses and the different residence halls usually have different policies on the subject of involving the police.  The way such cases are handled at Washington State University may not be the way such cases are handled at Eastern Washington University or Gonzaga.  Usually, a first-offense for Minor in Possession will not lead a student to get kicked out of the dormitories.  When the minor is in college, lawyers have to try their best to work a resolution of the case that doesn’t involve a conviction.  No college student wants to hit the job market with a criminal record.

For more information, see our firm’s webpage on Minor in Possession.

Judge Rebecca Baker retired recently from her position as Superior Court Judge for the Ferry, Stevens, Pend Oreille Judicial District. In her place, Chewelah lawyer Patrick Monasmith was appointed.

Pat Monasmith

The appointment was made by governor Christine Gregoire.  See story.  In Washington State, superior court judges handle such cases as personal injury lawsuits, probate matters, divorces and adoptions, real estate disputes, and all felony court cases. The change in judges probably will not result in any dramatic changes in how the court system is run or how the cases are handled in the tri-county area.  However, here are a couple of things to look out for.

Medical Marijuana

Every judge across the state has a different take on the issue of medical marijuana.  The law is vague and poorly written in some areas, and legislative attempts at clarification have sometimes raised more questions.  In my work as a criminal defense lawyer, I have noticed that Judge Baker views the medical marijuana laws from a more traditional view point, and this is true of our other local judge Allen Nielson.  But many other judges state-wide have taken a broader view of the law, interpreting the statutes more liberally.  So we will have to see how Judge Monasmith rules on issues like this.  The laws are vague on some of the following issues of law:  When can a single patient have more than 15 plants?  Can the police ever be ordered to return cannabis to a patient?  Is medical marijuana limited to patients with extraordinary health problems or can it be lawfully authorized in more routine cases of pain management? Do patients have to produce their physician in court at their own expense to use the medical marijuana defense?  Can patients use medical marijuana while on probation?  We will see how Judge Monasmith deals with these sort of legal issues when defense attorneys bring them to court.

Public Defense

Judge Baker was always a strong advocate for the public defense systems in Ferry, Stevens and Pend Oreille counties.  She helped the formation of guidelines that would make sure the public defenders were not overwhelmed by their case load, and that required the public defenders to account for their time in each case.  She also encouraged contracts with local lawyers to make sure that public defenders were available the next day after a person was arrested.  In other parts of the State it seems like some superior court judges have given in to the wishes of the county commissioners to hire the cheapest lawyers possible to do the work.  Consequently, some counties have been sued.  Judge Baker did some public defense work earlier on in her career, and this may have shaped her thinking on this subject. In these tough budgetary times, Judge Monasmith will certainly face pressures from county commissioners to cut public defense costs. The commissioners in Ferry, Stevens, and Pend Oreille counties have forced other county departments to make cuts, and this could be an issue with public defense lawyers too.

CASA and Child Protective Services

When Judge Baker came on the bench in 1996, she helped get the local CASA program started that appointed trained volunteers to serve as advocates for children in CPS cases instead of local lawyers.  I don’t do very many cases with CASA, but some lawyers are of the opinion that they are too chummy with Child Protective Services and always side with the department’s wishes.  Child Protective Services in Colville has been criticized by the State Ombudsman in the last few years in several news articles.  This subject will continue to arise in court, and Judge Monasmith will have to come to his own conclusions on the subject.

Defense lawyers in eastern Washington are seeing more and more people charged with DUI with breath alcohol levels of under .08.   Under Washington law, a prosecutor can convict on a DUI if a person is over .08, or if the individual is “affected” by the alcohol.  This second option is referred to in court as the “affected by” prong, and defendants are usually pretty surprised to learn the law on this subject.

In rural areas such as Lincoln county, Stevens county, or Adams county, DUI arrests are in rural locations with few witnesses present.

For years this second prong was largely ignored by prosecutors, meaning if a prosecutor didn’t have a breath test or blood test result of over .08, no charges would be filed.

Legal Strategies on DUI Charges < .08

The strategy a defense lawyer uses on a DUI under .08 can be dramatically different than other DUI’s.

Traditionally, a defense lawyer will fight tooth and nail to try to exclude the breath or blood test, or to try to get the test results “thrown out of court.” However, if a defendant has an alcohol level of under .08, it will often be the defense lawyer who will fight to have the results admitted.  In the perception of some jurors, a test result under .08 means the defendant “passed” the test. When a prosecutor takes a DUI to trial and the BAC (blood alcohol content) is under .08, he or she usually will attempt to prove that the defendant is “affected” by the alcohol by showing that the defendant did not do very well on the roadside filed sobriety tests.  But as you can imagine, these sort of test are highly subjective.  In my practice as a defense lawyer, I often will request a copy of any video showing the defendant on the night in question.  Usually the defendant will be shown to be in far better shape than the police officer might suggest. Many jails will have video recordings of the defendant when he or she was booked or when he or she took the breathalyzer or breath test.  It is important to have an attorney request this video right away because usually the jails will record over it within a matter of days if it is not preserved.  Even if the arrest is made by the State Patrol, it is the local county or city that keeps the video. Some police stations (such as the Grand Coulee police department in Grant county) do not have video in the BAC room.  Other sources of video evidence is any video camera the officer might have in his or her car, and sometimes officers will wear a “body cam“.  In more metropolitan areas like Spokane, security camera video footage might exist from nearby businesses.  This is less common on the rural roads of Stevens or Lincoln county, but even towns like Colville or Davenport have businesses with security systems monitoring their parking lots.  If a defendant is truly intoxicated, such evidence can be very incriminating because it will show the person staggering or loosing his or her balance. However, in cases with low alcohol levels, such video footage is crucial to the defense.

Strategies Prosecuting Attorneys Use

When a defendant has a breath test under .08, the prosecuting attorney will sometimes argue that the defendant’s alcohol level was actually higher at the time of the traffic stop.  A human body will burn off .015 alcohol per hour on average.  So if a defendant is stopped at 9 p.m. and blows .070, the prosecutor will argue that he or she was actually .085 at the time of the stop at 10 p.m.  Sometimes in DUI trials, the prosecutor will call toxicology experts from the state lab to come testify on this subject.  In large rural counties such as Lincoln County, Adams County, of Grant County a defendant might have considerable travel time to get to a breath instrument.  However, it is possible that a person got behind the wheel and was stopped prior to full absorption of any alcohol consumed.  Usually all alcohol will be absorbed between 2 and 20 minutes after drinking.  More urban counties such as Spokane might have more than one breath test instrument, but in rural counties such as Lincoln County, Adams County, or Grant County, the police have fewer options.

The transport time from arrest to a jail-house breath test can be substantial in rural areas such as Lincoln County, Okanogan County, and Grant County.

There are breath test instruments in the county seats of Davenport, Ephrata, and Ritzville, WA, and sometimes in the smaller cities.  Some counties, such as Okanogan County, have breath instruments at the Tribal jails on the local Indian reservation.  These instrument are located on sovereign land, but are still owned and maintained by the WSP and Toxicology lab.  In Grant County, Washington, there is also a mobile BAC unit.

PBT Tests in DUI Cases

When the police stop a person for DUI or DWI, they will usually ask a suspect to blow into a portable breath test or PBT.  These PBT’s are not very accurate, and the results are not admissible at the jury trial.  When the police stop someone they will usually either arrest someone or let them drive off.  This can be a hard decision for the police.  If they improperly allow someone impaired drive off, they could face a lawsuit.  However, if they arrest improperly, they could also face a suit.  As a criminal defense lawyer, I worry that fears of false-arrest lawsuits might motivate the police to exaggerate a suspect’s intoxication.  In decades prior, police may have simply given the defendant a ride home if they were not sure of their impairment, but those days have come and gone in eastern Washington.

In DUI cases involving alcohol levels under .08, prosecuting attorneys will usually be quick to make plea offers of reduced charges down to negligent driving first degree.  However, such a plea deal will count as a prior alcohol related offense in case someone ever gets into trouble again.  Convictions for Negligent Driving First Degree can also make entry into Canada difficult, and can affect a commercial driver’s license.  Under a new law that went into action September 1st, the Department of Licensing may require ignition interlock devices for Negligent Driving or Reckless Driving under certain circumstances.

For more information about DUI, see here.

I had a case recently where I used an out-of-state boat accident reconstructionist.  I don’t blog about my own cases too often, but the case was unusual enough that it is probably worth reflecting on.  The boat accident expert we used was Phillip Odom of H2O Investigations, and he was helpful in resolving this case.

In the U.S., boat death fatalities only number about 700 per year, so there just aren’t many experts on boat accident reconstruction.  I spent a couple of days on my hunt for an expert, and did a lot of research.  I stumbled upon one lawyer’s website  which warned: “What you don’t know about motor vehicle or boat accident reconstruction can get you into a lot of trouble in court.”

A photo of a boat accident experiment staged by Phil Odom for the State of California

We know because we have been instrumental in getting a lot of “experts” disqualified or voluntarily withdrawn.”  The article sites a federal case from the 5^th Circuit that spells out the criteria the courts use in determining whether an individual is qualified to be a boat “accident reconstructionist”.  There is a lot more than simply taking a class in accident reconstruction.  Courts will look to the training and experience, any experiments a person has conducted, and whether he or she has taught any classes on accident reconstruction.  The boat accident expert we found, Phil Odom, used to teach boat accident reconstruction for the State of California, and you can see from his website that he has conducted dozens of scientific experiments to back up his training.  Phil Odom has conducted over 70 different experiments with boat collisions, and was the operator of the vessel during the tests.  Many of these tests were conducted between 2006 and 2008, and California does not conduct such tests today.

The State's accident investigator wrote: "Upon further and closer inspection of the vessel I found that there was no physical damage to the two Honda motors attached to the rear of the vessel, the lower units, the propellers, or skegs." As this photo depicts, there was damage to the engine, and the damage was indicative of a foreign object being stuck in the steering.

Like a lot of boat accident experts, he got his start in the early years of his career investigating motor vehicle fatalities, which are of course much more common.  He was thorough as a vehicle accident investigator and won awards from such groups as Mothers Against Drunk Drivers.  In the case where I used him, we flew him up to examine the boat in question a couple of months prior to trial.  He noticed some damage done to the engine that was indicative of a vessel that had something caught in the steering, thus corroborating the defendant.  The damage was not immediately apparent to everyone, and even the prosecutor’s accident investigator failed to notice this crucial damage.  As with motor vehicle accident reconstruction, boat experts must be knowledge about the applicable mathematical formulas required to reconstruct what occurred.  During our trial the prosecutor’s accident investigator was asked to come down to the easel to explain to the jury how to convert feet-per-second to miles-per-hour and yet was unable to do so.

Accident Reconstructionist Phil Odom analyzing GPS data with an attorney via Skype

The accident investigator hired by the prosecutor did not notice the damage to the engine, and wrote in his report that the motors were undamaged.  When Phil Odom explained to the jury the damage to the motor, he explained that damage to metal must be inspected closely because you can often see in what direction the metal was forced or twisted.  In the case I did, I actually printed out enlarged photographs to each juror so that they could follow along.  Phil Odom also testified on the subject of occupant kinematics, which is the study of the positioning of the bodies in the vessel at the time of the collision.  Generally speaking, the injuries to the human occupants follow the direction of force.  In this case, the vessel struck a fixed barrier in the front right-hand corner.  The prosecutor’s investigator was not permitted to testify as to the subject of occupant kinematics due to his insufficient experience.

There were other issues in the case that assisted the defense, in that the defendant was not intoxicated, but Mr. Odom’s discovery of the steering jam was important to our defense.  You might expect that a witness such as Phil Odom would be outside a defendant’s price range, but in this case our expert was actually about the same price as the state’s investigator who had never testified as an expert before on boat accident reconstruction.  We had to fly in Phil Odom from Arizona to inspect the boat and again to testify, but it was worth it.  The lawyers that I talked to prior to hiring him described Phil Odom as one of the top three boat accident experts in the country.  After my trial, I spoke to the jurors and I know they were impressed by his work.

Post by Steve Graham

What will Amanda Knox’s lawyers say on her behalf when they deliver their closing argument Wednesday?  I am predicting that they play it fairly conservatively, and that they don’t try to oversell the defense. They will tailor their arguments to the judge and jurors and not the world stage.  We will have to wait and see, but here are a couple of themes that I am predicting they focus on.

No Motive (Women don’t commit rape)

We are accustomed to the outlandish sort of crimes that occur on T.V. shows, but in reality but the fact remains that women don’t commit rape. There are many technical rules that apply in a court of law, but that doesn’t mean that you have to check your common sense at the door.  Women don’t rape.  Italian women don’t commit rape.  American women don’t commit rape.  Women aren’t committing the rapes that are happening in the Sudan right now.  It is not in their nature.  It is usually committed by men – acting alone.

What a “Not Guilty” Verdict Means

All a “not guilty” verdict means is that the government, for whatever reason, hasn’t proved their case.   It doesn’t mean the police did a bad job.  It doesn’t mean that Amanda is “innocent”, and it doesn’t mean she is a perfect person.  A “not guilty” verdict doesn’t amount to putting a halo over Amanda’s head.  It just means that there is a doubt.  And if there is ever a doubt in any case, it is this one.  We don’t send people to prison for life unless we are absolutely sure.

I am not expecting that the defense team will attack the police and prosecutors too aggressively.  It is a trial lawyer’s job to attack the thoroughness, the fairness, and sometimes the professionalism of the police during a trial if need be.  But during the closing argument it is best to tone it down and be a little more magnanimous.   It is sometimes best to credit the police for the things that they did do correctly.  Jurors generally feel loyal to to the police on many levels, and are dependent on them for public safety.  They are slow to buy off on a world view where the police are dysfunctional to the level outsiders have seen.  I am sure that many of Knox’s supporters would love to see a blistering attack on the police, and to see them called out on their misdeeds.  However, if Knox’s lawyers push that too hard, then it becomes an issue of national pride, and the next thing you know we are at the supreme court in Rome.

It is sometime acceptable to try a riskier strategy to try to shake things up, but this is when you feel you are not succeeding and you have nothing to lose.    I guess you saw that with Giuliano Mignini last week.  But to be honest, that man is so erratic, it is hard to say what he is thinking.  The closing argument of Patrick Lumumba’s lawyer Carlo Pacelli was just plain odd.  Not to be upstaged by Mignini, Pacelli called Amanda Knox a “witch of deception”.  I am not sure if he is just trying to get some publicity, or if he thinks that is good lawyering.  Doesn’t he know that we sometime refer to this case as a “witch trial” already?  Isn’t he just proving our point?

What do you think?  What arguments do you think Amanda’s defense team should advance?

Today during his closing argument, prosecutor Giancarlo Costagliola vouched for the credibility of known heroin addict Antonio Curatolo, who claimed during the criminal trial that he saw Knox and Sollecito near the crime scene the night of the murder.

Prosecutor Giuliano Mignini. (Photo by PerugiaShock.com)

Curatolo’s testimony unraveled during the appeal when Curatolo’s story grew more implausible as he claimed buses were running and students were congregating on a night when the buses were not running due to the disco being closed.  During his closing argument, Costagliola apparently minimized the effect of heroin use on a person’s perceptions and credibility, which led Perugia Shock blogger to sarcastically write:

Heroin doesn’t give hallucinations …  your perceptions won’t change. You can work the same if you take heroin. You can follow a class without any problem. You can work at the assembly line. You can manage your clients’ money. You can operate on your patients. You can sit on the directors’ board. You can sit in court to testify, or to judge people. It doesn’t give you hallucinations. So, why do people take it if it doesn’t give them not even a bit of hallucination?

In the U.S. the testimony of known drug addicts is so troubling that courts often will issue an “addict instruction” to the jurors cautioning them to be careful in considering the testimony of an addict.  The instruction usually goes like this:

The testimony of a drug addict must be examined and weighed by the jury with greater care than the testimony of a witness who does not abuse drugs. An addict may have a constant need for drugs, and for money to buy drugs, and may also have a greater fear of imprisonment because his or her source of drugs may be cut off.

I noticed the prosecutor Giancarlo Costagliola also asked the jurors: “As you make your decision, I wish that you jurors feel a little bit like the parents of Meredith Kercher…”.  For what it is worth, in the U.S. these sort of put-yourself-in-the-victim’s-shoes type of arguments are considered prosecutorial misconduct, and are banned in courts.

Not to be out done by Costagliola, Mignini himself made some pretty outlandish statements today, comparing the Amanda Knox defense claims to Nazi propaganda. Mignini argued that the defense committed: “…slander, slander, slander in the hope that it some of it will stick. It’s worthy of the noted propaganda minister of Nazi Germany in the 1930s.”

Who was impressed by all this nonsense?  Pretty much just Barbie Nadeau, who headlined her article as follows: “Knox Appeal Hits a Snag – Since her appeal began, Amanda Knox has appeared to be sailing toward an acquittal—but the prosecution’s powerful closing argument today could alter her fate once again.”  Is she kidding?  Apparently in the mind of Barbie Nadeau, the jurors said to themselves: “Hmmmm…. maybe we shouldn’t acquit.  Mignini DID have a pretty good point about our war-time allies the Nazis.”

Lastly, Mignini made reference Rudy Guede and argued: “Don’t let the poor black guy be the only one to pay the price for this murder.”  The best response to this was by EdLancey in the comment section of Nadeau’s article.  He wrote: “Have you ever heard a more disgusting comment, the poor girl’s room was covered in his [Guede’s] bloody footprints and semen, and this lunatic tries to play the race card.”

I just finished the book The Goose That Laid The Golden Egg, by Doug Bremner.  The book describes Dr. Bremner’s attempts to study the side-effects of the acne medicine Accutane, and the book chronicles his life’s unraveling in the face of a smear campaign by the drug company Hoffman-La Roche.

Teenagers who had taken the acne drug Accutane had an increase in risk of suicides and suicide attempts. In 2002, a teenager who had taken Accutane intentionally flew a plane into an office building.

Doug Bremner was working for Emory University in 2001 when he was approached by the father of a boy who had killed himself after being prescribed Accutane. Having no real idea of what he was getting into, Bremner volunteered to conduct studies and ended up in the vortex of a multi-million dollar battle between a ruthless pharmaceutical company and shark trial lawyers working for the plaintiffs.

Roche took the drug off the market in 2009, but not before accumulated statistics on suicides, birth defects and stunted growth attributed to the medicine.  Roche warned of possible side effects in the fine print, but the company soon began pushing sales of the drugs to kids with just normal teenage acne.  You will recall that this sort of pressure for more and more sales is what motivated Purdue-Pharma to be fined $600,000,000 for over-marketing OxyContin as a “safer alternative” to Percocet or Vicodin. (See earlier post.)

Bremner signed on as an expert witness for plaintiff’s counsel for several families that sued Roche when they lost teens to suicide. I came to learn a little bit about what it is like to be a witness in a high-pressure court case by reading this book. Bremner was grilled by defense lawyers in 15 different, day-long depositions where he was forced to answer endless questions over a course of years. At Roche’s apparent urging, Bremner was brought up to defend ethics charges at the university where he worked, and Bremner’s life slipped out of control as one of the world’s richest corporations did everything they could to publicly discredit him.  The lawyers working with Bremner failed to prepare him or fully protect him, and the stress pushed Bremner away from his family. Bremner tried to keep centered by reminding himself that he was helping the families of Accutane patients, but this only carried him so far.  He escaped by taking long drives where he researched the background of his mother who died when he was just 4 years old.  But this angered his other family members, who viewed this as an affront to his stepmother.  Feeling alone, Bremner grew too close to an ex-girlfriend from high school in an online friendship.  Bremner resolved these issues on a therapist’s couch, and in the book he mused on New Age religions, particle physics, genealogy, and contemporary music.

Doug Bremner M.D. dared to speak out and conduct studies on the side effects of the drug Accutane. This book describes his battle.

The book ends on an upbeat note as Roche pulled the drug from the market. Also, Bremner’s biggest detractor is exposed as being secretly on the payroll of Big Pharma.  Doug Bremner healed his familial rifts when he smartened up and refocused on his wife.  Bremner’s efforts to learn more about his mother led him through a trail of dinky towns in eastern Washington, which is the same area where I live and practice law.  In the end, Bremner held a long-overdue burial service with his mother’s ashes.

Someday, society will hold these drug companies to higher standards of decency, and they will not be able to stall and hide these side effects for so long while they reap billions of dollars.  But until this day, Doug Bremner will go down in the history books as a champion of the forgotten patients, as a physician who told the truth at great personal cost, or simply dared to conduct basic studies in response to patient complaints.

Doug Bremner writes in the book: “I don’t know how I got dragged into this mess… I always avoided controversy and confrontation like the plague.”  I am sure Doug Bremner was selected as an expert witness because he was honest, well-credentialed, and could connect with a jury.  But to take on a project like this, it helps to have a hide like an alligator.  This book is an amazing personal story of a man who nearly lost everything in his bid to stand up for families harmed by a company that pushed Accutane for profit – it is definitely worth picking up.

I think Amanda Knox has a 91.5% chance of being set free this month when her appeal is concluded.  That is my expert opinion as a practicing criminal lawyer who has followed this case closely. In other words it is just a wild-ass guess.  But as everyone just powerlessly sits and wait, this “percent chance” question seems to be what everyone is asking.  I have seen this “percent chances” question asked in blog forums and also in the comment section of Murder in Italy‘s Facebook page yesterday. Ultimately, all any lawyer can do is try his or her best to convince the judge or jury.  There are no assurances of outcomes. Oftentimes, people will study the slightest thing judges or juries do in order to divine what result will be reached.

Amanda Knox meets with her lawyer, Luciano Ghirga. Her appeal is going well, and closing arguments begin on September 23rd.

For example, it was generally viewed as a good sign when Judge Pratillo Hellman denied the prosecution’s request to have the DNA re-tested again.  However, I suppose one could interpret this as meaning the judge believed the prosecutor’s case was sufficient without the DNA, and wished to spare the prosecution the trouble and delay.  I have a feeling that when closing arguments begin on September 23rd, the lawyers will pretty much feel that they have made many of their points already.

One of the other things I wonder about is what sort of life Amanda Knox will have if she is freed and returned home.  Surely that would be a good day to look forward to, but Mignini’s injustice has already done irreparable harm to Amanda and her family.  My experience has been that individuals cleared of serious allegations experience a short “high” upon their release, but later dwell bitterly on their mistreatment when they reflect on time lost, legal bills, and the torment on their family members.  In my opinion no sort of court victory will be complete without Giuliano Mignini being held to account and without reform in the Italian criminal justice system.  While the press in the U.S. has been more fair to Knox, Americans too can be cruel.  Mignini’s attacks and half-truths have reached our shores as well, and not just by the Lifetime T.V. network.  It seems Giuliano Mignini should face separate criminal charges for how he has handled the Amanda Knox case.  My expert opinion is that upon Knox’s acquittal, Mignini has a 96.2% chance of never practicing law again.

What do you think about the latest developments in this case?