Horrible advice….

So I was recently pulled over, accused of speeding by the officer. Being the person I am, of course I requested a trial. Recently I began doing some research on how to possibly fight this ticket, 82 mph in a 65mph zone. I started by looking for some cross examination questions. One of the first sites that I found that wasn’t a paid advertisement for a local lawyer wanting me to pay them to fight the ticket, was an article on nolo.com. If you are unfamiliar with nolo.com and their series of books, the concept is that through these articles and books you can essentially represent yourself. If this one article is a reflection of the body of work, they cannot be more wrong. Here is a link to the traffic cop cross examination questions from nolo.

First of all, I’m not even a lawyer yet. Secondly, I haven’t tried 100s or 1000s of cases throughout my career. However, I do understand the fundamental principals behind cross examination. You’re not really supposed to ask questions. I mean, you ask “questions” because you expect a response, but you don’t ask anything that warrants anything but a response. Almost every question in this cross examination asks for an answer, not a response.
Essentially, the point of cross examination is to ask yes/no “questions” that you already know the answer to, and if you don’t get the answer you expect that it should become clear and apparent to the judge or jury that the person who is on the stand is lying.

Here are some of my favorites:
“Were you paying attention to the other traffic in order to drive safely?”

This seems like you know what answer you’re sure to get–but there are ways to answer this question, or break it down into a series of questions, that will ensure that you get the right answer(s). Plus, this could be objected to as either a compound question or one that lacks proper foundation, as the foundation for the question is argued within the question.

This works much better:
Officer, you previously testified that there was [light/moderate/heavy] traffic at the time you began pacing my vehicle?
(here you are asking the officer to repeat from his/her previous testimony- he/she will either give you a YES or obviously lie)

You’ve been a licensed driver for most of your adult life?

You’re accustomed to driving in this type of traffic?

Safety is among the most important aspects of your job, right?

In fact, your job is to guarantee safety on the roadways, and other places of the sort?

So, when driving in this much traffic, it’s important to pay attention to many of the cars that are near you?

While you were pacing my car, you were also keeping your eye on 3-4 other cars?
[Boom-this is the question that you don’t care what answer you get] Here you have set a trap, and there isn’t a right or a wrong answer. The officer is either forced to admit that he wasn’t being safe, or he wasn’t focusing entirely on pacing your vehicle.

Do not fall into the trap of asking the next question. On courtroom TV dramas the attorneys often ask the next question “so you weren’t being safe” or “so you couldn’t have been paying complete attention to my car” which would illicit a breakdown of the witness on the stand.
THIS DOES NOT HAPPEN IN REAL LIFE.

If you make the mistake of asking the “ultimate question” then you’re going to get an answer, not a response. The officer will explain the flaw in your logic, and explain in some way that his training and years of this type of work have taught him to track multiple cars at once with accuracy, or perhaps even a better answer that will really throw you for a loop.

Moral of the story 1) hire a lawyer and 2) if you are ever cross examining someone, don’t ask the ultimate question.

and in just the blink of an eye….

The last time that I blogged was a week into the semester. I had begun my clinical course, and was thrown into the fire when an attorney called in sick. Time has flown by, and we are just a few weeks until the end of the semester. This semester has blown by. It literally seems like only yesterday that I handled my first case on the record, and now I’ve handled over a hundred.

No trials yet, which is somewhat disappointing, but somewhat expected given the court that i’m working in and the lack of “volume” of cases. A lot of counties in Maryland have courts with 30 or 40 cases on the morning or afternoon docket for each of 4 or 5 or sometimes more courtrooms. Baltimore City has 3 separate district court houses for criminal matters, and a completely separate 4th court for civil matters in the district court. In Cecil County the morning docket is about 20-30 cases total (for the state) in each of 2 courtrooms. This is a mix of criminal and serious traffic matters. In the afternoon, many times there is only one courtroom handling serious traffic and criminal, the other is either closed or handling speeding tickets and other payable traffic matters.

I have had a great experience, working with clients and preparing cases for the potential of trial. In doing so, I have learned that almost any case that is worth putting on trial for the defense, isn’t particularly good for the State. What I have learned without doubt, is that preparation on the defense side often pushes these cases into “worth dropping charges” as far as the State is concerned.

I have realized that the most important asset that a good attorney often has is preparation. Not that it took any time or effort to come to this conclusion, but seeing this in action is huge. Unlike the State’s Attorney, you actually have access to your client. You can meet with them, get at least their side of the story, and pick it apart from there. Often times the ASA only has a police report, limited access to the officer who filed the report (but didn’t witness the offense) and if there is any level of innocence on the part of your client, you have the advantage and ability to find it.

The semester has so far proven to be a great learning experience as far as client advocacy is concerned, and really gaining a comfort level in the courtroom.

I am not looking forward to it ending. While it’ll be another chapter closed, and another step closer to graduation and admission to the bar, it’ll be the bench mark to what should be one full calendar year of me not being in the courtroom on the record. This will be the sad part of the story.

Trial by fire

As you know, if you’re reading regularly or at all, or if you know me–I am involved in the UB clinic program which allows me to handle cases under the supervision of the public defender’s office.

I am in there 2 days a week, and for most students in the position the first few weeks are supposed to be shadowing, etc. Since I had done all of the shadowing that a 3rd year law student could mentally handle in my internship this summer, and more or less having the confidence to handle cases, and having the confidence of the head of the office to handle cases, the decision was made that I would start getting cases today. With that in mind, last friday I met with a public defender who had a docket of cases schedule for the district court this morning. In Maryland there are two trail courts. The district court is the lower court, and limited to bench trials, if a case is to be tried at all. Charges carrying a max penalty exceeding 90 days in jail give the defendant the right to pray a jury trial. Jury trials are in the Circuit Court, and are set in roughly 2 months down from the prayer.

The plan was that I would review the docket last friday with this attorney, and to “ease me in” we would cherry pick a few cases that shouldn’t be too tough for me to handle. Mostly cases in which the state is dropping charges, or putting the charges on what is called the ‘stet docket’. Sounds good to me, I can handle this, no big deal.

So this morning, court begins at 8:30, and I’m in the office waiting for the attorney with the docket, who will have to supervise me during all of this, to show up. Tick, tock, tick tock. Eventually the phone rings, and it appears as if this attorney has called in sick. Seriously? No big deal to me, and in fact I think this might have even been set up. “I got this, its show time.”

I took it upon myself from this point to handle the entire docket. For confidentiality reasons I can’t really go into any details, none of which were too exciting anyway, but everything went well. Talked to the State’s attorney, the clients, even put pressure on the ASA to drop charges that they wanted to stet, and stet cases they wanted to offer a PBJ. A job well done, at least for a rookie.

By 11am I had handled my first case ever, and 8 more. Exciting. In fact, so exciting that my next move was to figure out who had an afternoon docket and hijack that!

These district court cases are relatively minor. In fact the bulk of the afternoon docket I grabbed were driving on suspended or other “serious traffic” charges. All in all, out of 18 total clients (3 of which failed to appear) everyone seemed happy with the results–especially those who got better results than the state originally wanted to offer.

This clinic is supposed to provide experience, and a real feel of practice. Its also supposed to help someone decide if this is in fact what they want to do. Check, Check and Check.

Bring it on!

 

UNSTOPPABLE REBEL FORCE

It’s on.

Tomorrow I will start taking on some cases. While I will start with some soft-balls, stets and noelle prosqui, it’s time to start getting the feet wet. The goal is to become an all-out litigation machine by the end of this semester. I am already enrolled in trial boot-camp, so to speak. Trial advocacy class kicks into high gear next week when we have direct and cross examinations to prepare and to be critiqued upon. This will continue all semester, polishing the basic skills of setting a theme, getting the story to the jury, and challenging witnesses and their testimony.

Brilliant.

The clinic, while I will be taking on baby cases in the beginning, will have similar training in the classroom component. I am also learning the “rules” aspect of both criminal and civil cases in Maryland in my other 2 classes.

Let’s win.

Yeah, the trial team I was on last year now has 2 full teams from our school, and the gloves come off around September 9th when the competition problem is released.

It’s time to crush it and become a complete machine by November 16th competition date, and beyond.

It is time to bring back the tag I put on the Ravens Superbowl run last season: Unstoppable Rebel Force.

 

Officially sworn in today!

It’s official, I’m a lawyer* under Maryland’s Rule 16. The asterisk is there due to the fact that I’m now an attorney in limited capacity. This semester I will be working under the supervision of the Office of the Public Defender in Cecil County, Maryland.

This means that 2 days a week I’ll be in the Public Defender’s office, with cases, clients and actually be in court.

Very exciting, but I’m not a full on lawyer.

First, this only exists within the specific supervision at the OPD. It ends when final exams end. I also cannot give you legal advice on any other matters or situations that you may be dealing with. Also, nothing on this website has changed, or will. Nothing on this site should or can be seen as legal advice, on any topic, no matter how close to a situation you may be dealing with is.

 

Good times, and limited info will be updated as possible.

 

My Car Experience(s)

Car buying seems to be something that most people dread. Personally, I negotiate for a living, and also essentially work in customer service. I enjoy the experience, and I appreciate when sales people are good at customer service, and I also notice when they are not.

In 2009 I decided that it was time to purchase a new vehicle. Typically I buy cars cash, and don’t carry any sort of payments. At this time, I was driving an old car that didn’t get particularly good gas mileage, but a family member had “looked the car up” and determined that it was not eligible for the “cash for clunkers” program that the federal government was offering at the time. Therefore, I was just out to buy a more fuel efficient car to help with my 50+ mile each way commute to work.

Through the process I had gone to 6 or 7 different dealerships, across a variety of brands, honda, toyota, volkswagen, nissan, and the first question, relevant at the time, was always “is your car a clunker” to which I would respond “no, my is 1MPG too good to qualify.”

It was at about my 7th or 8th dealership, and second or third Honda dealership (I had test driven cars at most other dealerships) that Dave Eno at Martin Honda responded to my answer “well, go get your registration, lets see if you’re right.”  So he gets the registration, asks me a few other qualifying question, and sure enough…my car IS a clunker. Dave Eno just sold himself a car. At this precise moment my car buying decision, at least pertaining to brand and dealership, had been made. The cash for clunkers program was a $4,500 rebate incentive deal where the federal government was basically buying cars with poor gas mileage if you bought one that was at least 15 or 20 mpg more efficient.

Moral of the story, do your job–do the whole job, and get rewarded.

To further the good customer service, I have recently purchased another car. Recalling this experience, plus the fact that I get an e-mail or other correspondence each year on my birthday from Dave Eno, I didn’t shop. I decided what car I wanted, I returned to Martin Honda, and bought a car from Dave. Simple.

If you win a customer’s business, and really win it, you’ve likely earned a customer for life.

In a future post I will discuss how horrible my experience was with the Martin Honda service department back in 2009, and how they’ve apparently made a complete 180 since, as they recently won back my business.

Looks like a good year coming up

Today I learned something new and great. As you may know, I will be enrolled in the UB Law Clinic program, where under Maryland Rules for admission 16(which apparently is going to change) I will be practicing law through the school, and under the supervision of the public defender’s office. This is different from my internship, as I will actually be taking on a docket of cases 2-3 days/week and pleading cases, trying cases, counseling clients, whatever needs to be done.

I had hoped that I would be able to get lucky enough to take the clinic program again the the spring, chew up 6 more credits and continue practicing 2-3 days/week, but an even better option may be on the horizon. Apparently, as the rule number is changing, so are some of the provisions. It may be possible for me to enroll in an “internship” in the spring, get credit, and actually practice under rule 16(or whatever the number will be moving forward).

This excites me greatly.

Just over 2 weeks (and another year) left!

So last night my wife, who might be counting down to the end of law school more intensely than I, did the math and advised me that as of this wednesday there are only 2 weeks left in this summer schedule, then a final exam of course.

Although this is exciting, for the time being, I still have 2 fairly full semesters left in my law school career.

Positives: This fall I’m only taking “classes that matter.”

Negatives: It’s still another year of working part-time and parenting part-time.

My classes for the fall include:

Criminal Practice Clinic, which basically means going and being a public defender 2 days/week- Under rule 16 in Maryland I will actually be an attorney within the confines of this program.

Maryland Criminal Practice- If this isn’t an extension of the previous, I don’t know what is.

Trial Advocacy- I already spoke to the professor. There is a book of fact patterns, we break out and do direct and cross examinations, then we critique and move onto the next.

Maryland Civil Procedure- This may not be exciting, but its the backbone of what I do day to day in my real job. Somewhat important.

Advanced Legal Research- I will independently, with an advisor, write a 20-25 page law review type comment. I’ve already begun work on this

I will also take part in the ABA Labor & Employment trial team again.

Should be an incredibly busy schedule, but it sets me up to only need 11 credits in the spring. Since I can get credit for the ABA labor & employment trial team, I may bump the ALR to the spring, and really only need to take 9 classroom credits, but if I do this I will have 2 writing classes to take in the spring. These 2 writing classes are all I have left in my “required courses”

Should be a busy, but rewarding fall…and a somewhat more laid back spring, then….bar prep!

Foreign Jurisdiction Law Clerk: Part 3

State v. Dezso, 512 N.W.2d 877 (This is an independent analysis of the case, not shepardized)

Routine-ish traffic stop with some subsequent shenanigans by the boys in blue up for debate here as we ruffle the feathers of the 4th amendment yet again. Hero in this case is traveling from Michigan to California for work, passing through the lovely land of ten thousand lakes when he is pulled over for speeding. So far so good, and this was January so I will assume that its par for the course in Minnesota to invite your pulled over guest into your squad car when its cold outside?

Officer did a license check and verified that Michigan license was good. Then he asked the defendant if he had anything in the car, asked if he could search. Ultimately he felt that something was fishy about the guy’s wallet, and took a look inside. He found a paper with blotter acid (LSD, dude) and arrested the guy. Defendant lost suppression hearing, and intermediate appellate court upheld the denial. Supreme court says not so fast, and cites one of my favorite ambiguous theories of law “whether a reasonable person would have felt free to decline the officer[‘s] requests or otherwise terminate the encounter.” Florida v. Bostick, 501 U.S. 429, 115 L. Ed. 2d 389, 111 S.Ct. 2382, 2387 (1991).

In Maryland, there is a case Ferris v. State, 355 Md. 356 in which this reasoning is rested with a totality of the circumstances test, encompassing a myriad of factors that could lend itself to the defendant feeling intimidated, or feeling free to decline the search, consent, etc. Minnesota seems to have a similar set of circumstances that they use as a test: “the nature of the encounter, the kind of person the defendant is, and what was said and how it was said. The encounter in this case took place at night, on a highway, and in the front seat of a parked squad car”

 

The court does not find that the circumstances lend themselves to the state meeting the burden of proof to sustain such findings, and reverse the prior decisions of the trial and appellate court.

Foreign Jurisdiction Law Clerk: Part 2

State v. Barajas, 817 N.W.2d 204 (This is an independent analysis of the case, not shepardized)

I’m starting to get a good feel for the drug culture in Minnesota after reading another 4th amendment case from their Supreme court. So here we have another meth case, good times. Don’t these kids know what this stuff does to your brain cells? Maybe the long term cognitive impairment was there before the meth…

Regardless, in this case our hero was a cell phone collector who was also squatting in an unoccupied apartment. Police received a report of his squatting from the landlord, and upon investigation found defendant and his cell phone collection. He didnt’s speak much english, and upon contacting a border patrol agent determined him to be unlawfully in the country, and detained him. Border patrol advised the offices that defendant may be involved in drug trafficking, which was apparently enough to create probable cause to search the apartment. With this apparent probable cause and consent of the landlord(which is probably all they really needed), the apartment was searched and “The police recovered five plastic bags containing a white crystal substance, a digital scale, powdered milk, salt, an empty sugar container, motor oil, razor blades, an “SD card” that can be physically moved from one cellular telephone to another for the purpose of transferring data, a fourth cellular telephone, and packaging materials, including tin foil, plastic bags, plastic wrap, and electrical tape.”

He was charged with possession with intent to distribute. He moved to suppress photographs taken from his cell phone(s) and such motion was granted due to the overly invasive nature of the search: “intentional invasion into the contents of an electronic device” by the police, which requires an “intentional search . . . or other deliberate key strikes,” must be supported by either a warrant or an exception to the warrant requirement. The district court also concluded that Officer Schroeder’s warrantless search of Barajas’s cellular telephone did not fall under the search-incident-to-arrest exception to the warrant requirement because no exigency existed, Barajas had already been removed from the premises at the time of the search, and the telephone was not contraband, an instrumentality of trespassing, or a weapon affecting officer safety.” This quote encompasses almost the entire first half of my con crim pro 1 class. Good work Minnesota courts!

However, apparently our hero had signed a consent form to have the phones searched. Although defendant did not speak much english, it was apparently OK with the court that he sign a consent form entirely in english. I’m certain the local officers in Moorhead explained the form and he signed it intelligently and knowingly of its purpose and extent of the consent. All of this aside, it was apparently good enough for the court to reconsider the suppression motion and allow the photos. (I recant my previous praise to the court).

With the evidence in, trial commenced, and defendant was found guilty by a jury of his “peers.” Appeal ensued.

It must be easy to brief cases as a Minnesota law student. If its not, and I’m just reading softball opinions, my apologies. The court breaks down the issues in the opinion:

ISSUES

I. Did the district court err by denying appellant’s motion to suppress evidence obtained by the police during a warrantless search of appellant’s cellular telephone?

II. Did the district court err by admitting in evidence photographs recovered from appellant’s cellular telephone that were irrelevant and unfairly prejudicial?

III. Did the district court err by admitting in evidence drug-courier-profile testimony?

 

How sweet is that? I mean, this case continues on as essentially a brief of itself. This case results in what is essentially a “moral victory” and one more important to the search guidelines for this type of evidence. “An individual has a reasonable expectation of privacy in the concealed contents of a cellular telephone. Because appellant’s cellular telephone concealed the photographs stored within the telephone’s internal memory, the investigating officer was required to obtain a warrant before searching that telephone.” Basically, he won, but he lost. The search was no good, but the district court error was not only harmless, there was enough other corroborating evidence to convict. However this does seem to solidify, if there were no such cases before it, that a warrant or real informed consent is required before snooping through someone’s cell phone photos.