The Decision From Hell (Part 2)

December 28, 2011

Yesterday, in Part 1 of this post, I critiqued the first part of the Court of Appeals decision affirming the trial court’s denial of her pretrial motion to suppress evidence.

I concluded that the Court of Appeals erred because it improperly relied on evidence (1) obtained after the deputy stopped Crane Station and (2) facts invented by the trial court. The Court of Appeals also (3) erroneously claimed that her appellate lawyer had failed to challenge any of the trial court’s findings of fact. I provided links to the decision by the Court of Appeals and Crane’s Opening Brief on Appeal and her Reply Brief.

In a related post today entitled How Could Judge Taylor Forget Garcia v. Commonwealth, I discussed a decision he wrote reaching the opposite conclusion on a set of materially indistinguishable facts. You may find that to be an interesting and helpful follow-up to Part 1 since he is one the three judges who decided her case. I also referenced Crane’s Petition for Rehearing of the decision by the Court of Appeals just so there is no misunderstanding or confusion regarding whether her lawyer challenged the findings of fact.

This first part of the decision by the Court of Appeals stands for the proposition that a motion to suppress based on an argument that a police officer lacked a reasonable suspicion to stop someone can be decided on the basis of information he acquires after the stop. Likewise an argument that a police officer lacked probable cause to arrest can be decided on the basis of evidence that turns up after the arrest. Both principles are contrary to long established federal and state case law and eviscerate the Fourth Amendment.

Therefore, the Kentucky State Supreme Court must grant discretionary review and reverse the Court of Appeals. If it does not, trial courts across the state will create havoc by following the decision by the Court of Appeals and denying motions to suppress in violation of a long line of state and federal cases. Eventually, the Supreme Court would have to grant review in one of those cases and overrule the Court of Appeals in the Leatherman case.

That is why it is necessary to grant discretionary review.

Today, I will critique that part of the decision that deals with Crane’s statement that her watch had fallen behind the seat during the ride to the hospital and her request for the deputy’s assistance to retrieve her watch for her.

Tomorrow in Part 3, I will deal with the final issue; namely, the decision by the Court of Appeals that the trial court properly denied her motion for a directed verdict of acquittal on the DUI charge. Due to the length of today’s article, I have decided that I should discuss the latter issue in a separate post.

When Deputy McGuire assisted Crane to get out of the back seat of his patrol vehicle at the hospital (because she was handcuffed with her hands behind her back), she told him that her watch had fallen off her wrist and dropped behind the rear seat during the ride. She asked him to please retrieve it for her. That is undisputed.

At the preliminary hearing, McGuire testified that, after they returned to his vehicle following the blood draw, he pulled the seat back, saw the watch and the suspected controlled substance near it, and seized both of them. When her lawyer asked him if he could see the two items before he pulled the seat back, he said. “No.” However, at the suppression hearing, he testified that he saw both items in “plain view” sitting at the top of the seatbelt crack next to where she was sitting when he opened the door to assist her to get out of his vehicle at the hospital.

Those two statements are mutually exclusive. They cannot both be true and there is no question that Crane’s lawyer was entitled to challenge the deputy’s credibility at trial by impeaching him with his prior inconsistent statement under oath at the preliminary hearing. Nevertheless, the trial judge sustained an improper objection by the prosecutor to that line of inquiry preventing him from eliciting the inconsistent statement.

Why did the trial judge do that?

Before jury selection, the trial judge granted the prosecutor’s motion in limine (i.e., at the beginning) for an order preventing the defense from introducing Crane’s statement about her watch and her request for his assistance in retrieving it on the ground that her statement was inadmissible hearsay.

I have addressed this issue previously in Hearsay, Part Deaux.

The judge’s ruling was improper because the statement was not hearsay, since it was not offered to prove the truth of the matter asserted in the statement. It was offered to show that, as a result of something she said (and it really does not matter what it was, which is why it was not offered to prove the truth of the matter asserted), he pulled the seat back to look for her watch and found both the watch and the suspected controlled substance in proximity to each other.

There is nothing misleading or improper about allowing the jury to hear that evidence because that is the way it happened, according to the deputy’s testimony at the preliminary hearing.

Instead, the jury only heard the deputy’s trial version of his discovery, which was that he found her watch and the suspected controlled substance in plain view on top of the rear seat in the seatbelt crack right next to where she was sitting. To make matters worse, in his final summation the prosecutor said the proximity of her watch to the suspected controlled substance in plain view amounted to her “autograph” on the controlled substance and she had not offered any explanation for how they happened to be in plain view together in the seatbelt crack right next to her.

It’s not surprising in the least that the jury found her guilty of possession and evidence tampering for attempting to conceal the rock of crack. Would the jury have convicted her if they knew that the deputy found the rock not in plain view, but under his back seat because she asked him to retrieve her watch from under the seat?

I do not believe the jury would have convicted her because who would ask a police officer to retrieve their watch from under the seat, if they had lost the watch while attempting to slough a controlled substance?

That was her defense, but the trial judge took it away from her with his ruling in limine.

The Court of Appeals did not decide whether her statement about her watch and request for his assistance to find her watch was inadmissible hearsay. Instead, it dodged the issue by saying the error, if any, was harmless because she could have testified about her statement and request. Indeed, the Court of Appeals noted that the trial judge told her that she could testify about it.

Why does this not make any sense?

(1) If the statement were hearsay, it is not admissible, whether or not she testifies. That is the law and the trial judge cannot create an exception that does not exist.

(2) She had a constitutional right under the Fifth Amendment not to testify and a right to have the judge instruct the jury that it cannot hold her silence against her. In other words, silence is not evidence of guilt.

(3) The judge’s unlawful exception was a manipulative and coercive effort to force her to testify against her will in violation of her Fifth Amendment right to remain silent and not have her silence held against her.

(4) If she had testified, the jury would have been presented with a classic he-said-she-said controversy in which he said he found her watch and the rock together in plain view at the top of the seatbelt crack on the seat right next to her, and she said he found it under the seat after she asked him to look for her watch. Not even the longest long shot Louie at Hialeah would put a fin on her fate in such a swearing contest.

(5) Who could deny that the odds on the outcome of that he-said-she-said swearing contest would change dramatically, if the jury found out that the deputy had previously testified under oath at the preliminary hearing, about a week after her arrest, confirming her statement. The suppression hearing was five months after her arrest and the trial was 18 months after her arrest, by the way. There can be little doubt that the jury would have believed her and disbelieved his plain-view testimony. Then their whole case falls apart.

(6) That is why her lawyer’s attempt to cross examine the deputy by impeaching him with his prior inconsistent statement under oath at the preliminary hearing was proper and legitimate.

To call this error harmless is disingenuous and absurd. But guess what? That is not even the right test. Why is it not the right test?

The trial judge’s order in limine and his ruling preventing her lawyer from impeaching the deputy with the deputy’s prior inconsistent statement under oath at the preliminary hearing took away her defense.

A defendant in a criminal case has a constitutional right to put on a defense and her right to do that was denied to her by the trial judge’s rulings and aggravated by the prosecutor’s closing argument in which he commented on her silence, which is forbidden by the Fifth Amendment. He also attempted to switch the burden of proof over to her to prove her innocence, which is a denial of due process of law under the Fifth and Fourteenth Amendments.

When the court and a prosecutor violate a defendant’s constitutional rights, the test presumes the error affected the outcome of the trial and the prosecution must rebut that presumption by proof beyond a reasonable doubt that it did not.That is a far different test from the one employed by the Court of Appeals.

There is no way the prosecution can meet its burden in this case. Therefore, the Court of Appeals must be reversed on this issue.

Until tomorrow . . .


The Art of Cross Examination (Part 7) The Killer Cross That Never Happened

December 26, 2011

Author’s Note: This is the final part of the Killer Cross. After the conclusion, I will discuss the real reasons why we believe Chris McNeill refused to use it.

120. Q: Deputy McGuire, I presume you do know the difference between 1 gram and 0.1 grams, don’t you?

A: Yes.

121. Q: When you booked the controlled substance into evidence, you wrote in your report that it weighed 1 gram, didn’t you?

A: Yes.

122. Stricken

123. Q: But the substance weighed by the lab analyst at the Kentucky State Crime Laboratory was only one tenth of a gram, right?

A: Yes.

124. Q: You sent the blood sample to the crime lab for analysis before the preliminary hearing, didn’t you?

A: Yes.

Lab report

125. Q: But you didn’t send the substance that you knew all along was gonna be crack until after the preliminary hearing, right?

A: Yes.

Transcript Preliminary Hearing, page 5, lines 1-5

126. Q: That’s because you knew what it was going to be all along, even though you didn’t know how much it was going to weigh, correct?.

Answer: Yes.

127. Now, I know I’m not your lawyer, so you may want to consult a lawyer, if you don’t already have one and tell her what happened here today. I’m sure she will tell you that the only way to avoid a perjury indictment is to recant your lies and finally tell the truth, but we’ll leave that for another day and another jury.

Author’s Note: I doubt any lawyer would have made the last statement because it is improper. It is not a question and it is argumentative.

What is the significance of the weight difference?

We believe the deputy did not recover a controlled substance from underneath his back seat when he pulled the seat back to search for her watch. Recall that, when they arrived at Lourdes Hospital, she told him that her watch had fallen off her wrist during the ride and she asked him to please retrieve it. I find it impossible to imagine that she would have asked him to retrieve her watch, if it had fallen off her wrist while she was attempting to slough a rock of crack behind the back seat. That would be like asking the deputy to retrieve my watch and, while you’re at it, please pickup my dope. That does not make any sense.

A few months after the arrest, the police officer in charge of the McCracken County Evidence Unit was arrested at a flea market in an adjoining county for attempting to sell a handgun that he had removed from the evidence unit without proper authority. The gun was loaded and the person to whom he was trying to sell it accidentally shot himself. The wound was not serious, however, and he survived.

As I recall, the newly elected sheriff, arranged for an inventory to be made of all of the items in the Evidence Unit by an independent auditor. The final report was disquieting to put it mildly. The unit was not secure. In fact, it was not exclusively used to store evidence with access limited to the people who worked in the unit. That is standard procedure for police departments all over the country. I believe the auditor also reported that a room within the unit was used as a lunchroom by civilian employees and police personnel at the Sheriff’s office. In other words, it was basically an open-air pharmacy with guns, drugs, and money available to anyone who worked at the Sheriff’s office at anytime. The auditor found evidence missing as well as evidence stored in lockers that was not even listed as evidence on the inventory sheets and logs maintained by the unit.

One would have expected a thorough investigation of everyone who worked at the Sheriff’s Department and prosecutions of people who stole stuff, but the only person prosecuted was the boss who attempted to sell the loaded gun. He pled guilty to some relatively minor offense and that was it. The story disappeared.

I googled the story today looking for the name of the officer in charge of the evidence unit and verification of what I recall, but could find no reference to the story, which has apparently been scrubbed. I find that troubling.

We believe Deputy McGuire wanted a notch on his gun, figuratively speaking, and he planned to obtain some heroin in the Evidence Unit by raiding a drug exhibit, but he could not find any and had to settle for crack, which would account for the weight discrepancy (0.1 grams versus 1 gram) and for his delay in sending the rock to the Kentucky State Crime Laboratory for analysis.

We believe he formed this plan on the way to the hospital after the roadside searches failed to turn up any drugs, paraphernalia, or drug residue. He likely seized something like a bread crust, perhaps from something he ate earlier in the front seat of his vehicle before the stop, which occurred at approximately 8:20 PM. Or, maybe he found it under the back seat when he retrieved her watch. Wherever he found it and whatever it was, he probably discarded it after he booked her into jail.

He filled out his narrative report and entered 1 gram as the approximate weight of the suspected controlled substance, intending to later obtain a small amount of heroin in the unit and send it on for analysis to the crime lab. We think it significant that he charged her with possession of a controlled substance without ever specifying what he thought it was in the Uniform Citation or his narrative report.

When I called the court the next day after Crane Station’s arrest, I was told by a court official named Kimberley Thornton that Crane was charged with possession of heroin, tampering with evidence, and DUI. Someone must have told her that Crane was charged with possession of heroin because the drug was not mentioned in the deputy’s paperwork.

I went to the preliminary hearing a week later believing Crane was charged with possession of heroin only to discover that she was charged with possession of crack cocaine.

Deputy McGuire testified at the hearing that the substance was still in the Evidence Unit; that he had field tested it for heroin sometime after the arrest and obtained a negative result; and that he had not field tested it for cocaine because he “knew all along it was gonna be crack.”

How did he know that, unless he already knew for certain what it was because he obtained it from the Evidence Unit after he could not find any heroin?

If he did this, he would have done it several months before the scandal broke about the evidence unit. That did not happen until after the new sheriff was elected and he was elected in November 2006. Crane Station was arrested in late June, 2006.

The purpose of the cross examination was to so utterly destroy Deputy McGuire’s credibility that the jury would believe him capable of almost any misdeed, including perjury and planting evidence. Whether I would have made that argument had I represented Crane Station, which I could not do because I was not admitted to the Kentucky Bar, would have depended on some investigation that had not been done, and receipt of additional discovery that had not been requested, despite my recommendation that it be requested. I may have elected to leave out the specific theory and rely on reasonable doubt based on Deputy McGuire’s shredded credibility.

Whether I would have argued that the deputy was a perjurer who planted evidence or a confused young man with an extremely poor memory such that he was incapable of establishing anything beyond a reasonable doubt is unclear, although I would have been sorely tempted to go for the hard approach.

Finally, in the spirit of fairness, I must point out that I neglected to include a series of questions in the cross about the deputy’s testimony at the preliminary hearing when he said the watch and the controlled substance were not in plain view. He testified at the suppression hearing and later aqt the trial that they were in plain view in the seatbelt crack next to where she was sitting. Both statements cannot be true.

I drafted this set of questions by hand over a period of two to three hours and simply forgot to include them, but I do recall telling McNeill that they should be included.

Now, why did Chris McNeill throw the case by refusing to use this devastating cross?

We do not believe he was telling us the truth when he said the jury would get angry if he used the cross examination since Deputy McGuire was young and innocent. We have come up with three possible reasons.

1. He is the regional chief of the public defenders office for a multi-county area in western Kentucky. In order to protect his budget, he has to assist in keeping the railroad running on time. Therefore, he has a strong interest in not ruffling anyone’s feathers and that means not fighting too hard in some cases. This is a built-in conflict of interest and I don’t think any lawyer in his position should be trying cases. Besides, running the office is a full time job.

2. He wanted to be appointed by the governor to replace a retiring circuit court judge, so taking on the corrupt legal system in western Kentucky was the last thing on his agenda. He didn’t get the job, btw. The chief prosecutor did.

3. He doesn’t have the stones to go to war. He is too timid to take on corrupt cops, prosecutors, and judges. He also lacks integrity. He is not a stand-up guy. Anyone who is too timid and dishonest to fight for his client does not have the right stuff to be a criminal defense attorney.

McNeill did not order the preliminary hearing to be a part of the record on appeal and this delayed action by the Court of Appeals for one year. We believe he did that deliberately because that is when Deputy McGuire testified that the watch and the controlled substance were not in plain view and he had to pull back the seat where he found them after she asked him to look under the seat for her watch. We believe he did not want the Court of Appeals to see that transcript, as it would show that he provided ineffective assistance of counsel in violation of her Sixth Amendment right to counsel.

Most people do not realize this, but criminal defense lawyers are our last line of defense and only hope for keeping the system honest. Honest and knowledgeable judges and prosecutors know this to be true and will openly acknowledge it. Corrupt judges and prosecutors hate honest and tough criminal defense attorneys. Ever since Reagan was elected president in 1980 and commenced an undeclared and ever escalating war against them, corruption has been increasing. Now it has reached the point where the criminal justice system is an openly corrupt and stinking sewer in many parts of the country.


The Art of Cross Examination (Part 6) The Killer Cross That Never Happened

December 25, 2011

Author’s note: Welcome back to the Killer Cross. If you are a new reader, or you would like to review the previous three portions of this cross examination, go here for:

Part 1,
Part 2
Part 3

I did not know the answers to questions 106-108, so I left them blank and recommended Mr. McNeill check it out. Crane’s first lawyer, Will Kautz, had asked Deputy McGuire if he would be willing to submit the plastic baggie containing the rock to the crime lab for fingerprint analysis, which he agreed to do. These questions were designed to elicit answers relative to his handling the bag. Crane and I knew her fingerprints would not be on the bag and we figured his fingerprints would be.

We found out at trial that no request was made by McGuire or a prosecutor to check for prints on the bag.

Questions 75-81 were supplied by Crane-Station

75. Q: You previously testified under oath in Mrs. Leatherman’s case that the seatbelt crack where Mrs. Leatherman was seated in the back of your cruiser for transport did not have a seatbelt pulled through, is that correct?

A: Yes.

Transcript Suppression, page 25, lines 22-25

76. Q: So, in your thorough, routine weekend maintenance, you forgot to pull the seatbelt through?

A: Yes.

77. Q: So, Mrs. Leatherman was cuffed behind the back for transport without the benefit of even seatbelt safety, correct?

A: Yes.

78. Q:Are you aware that Kentucky has a seatbelt law?

A: Yes.

79. Q: And, as a trained police officer who has seen any number of traumatic injury accidents, you can surmise that the seatbelt law is in place to prevent injury, permanent disability, or death, correct?

A: Yes.

80. Q: But the benefit of added safety does not apply to your suspects that you handcuff and place in the back seat for transport, correct?

A: Yes.

81. Q: And this ‘oversight’ on your part could place not only you but your entire department, in jeopardy for carrying liability for injuries or deaths that could have been prevented, correct?

A: Yes.

82. Stricken.

83. Q: When you filled out the Uniform Citation, you charged Mrs. Leatherman with possession of a controlled substance, but you did not specify or identify the substance, did you?

A: No, I didn’t.

84. Q: Even though you immediately recognized it as crack, correct?

A: Yes.

Transcript Grand Jury, page 7, line 12

85. Q: Crack is a form of cocaine, isn’t it?

A: Yes.

86. Q: Cocaine comes in another form called powder, right?

A: Yes.

87. Q: And isn’t it generally true that white folks prefer powder cocaine while African Americans prefer crack?

A: Yes.

88. Q: Isn’t it also true that crack is smoked?

A: Yes.

89. Q: Crack is a highly addictive drug, isn’t it?

A: Yes.

90. Q: That’s because crack produces an intense high that only lasts a few minutes, correct?

A: Yes.

91. Q: Coming down from that high is so unpleasant that users refer to it as crashing, isn’t that right?

A: Yes.

92. Q: And one reason why crack is so addictive is that users want to feel good again so they’ll smoke another rock, if it’s available, won’t they?

A: Yes.

93. Q: Most users will smoke up all the crack they have and go look for more as soon as they run out, right?

A: Yes.

94. Q: They will keep smoking it sometimes for several days until they run out and then they might sleep for several days, right?

A: Yes.

95. Q: Crack smokers usually carry a glass pipe and a torch with them so they can smoke crack as soon as they purchase it from their dealer, right?

A: Yes.

96. Q: You and Deputy Walters and Officer Dawes did not find a glass pipe in Mrs. Leatherman’s car or on her person, correct?

A: Yes, you’re right.

97. Q: You, Deputy Walters and Officer Dawes did not find a crack torch in her vehicle or on her person, correct?

A: Yes, you’re correct.

98. Q: And the three of you did not find any residue of smoke crack in her vehicle or on her person, right?

A: Correct.

99. Q: It’s not unusual for crack users to have burned lips, right?

A: Correct.

100. Q: It’s not unusual for crack users to have burned fingertips, correct?

A: Correct.

101. Q: And crack users, or people under the influence of crack will have dilated pupils, right?

A: Yes.

102. Q: Since you didn’t document that Mrs. Leatherman had dilated pupils, the ladies and gentlemen of the jury can conclude that she did not have dilated pupils, right?

A: Yes.

103. Q: You picked up the suspected controlled substance with your fingers, didn’t you?

A: Yes.

104. Q: You were not wearing gloves, correct?

A: Correct.

105. Q: You wouldn’t want to risk catching a serious life threatening disease such as AIDS or Hepatitis C by coming in contact with a foreign object or substance that might be infected, right?

A: Of course.

106. Q: I noticed on the video that Deputy Walters wore rubber gloves when he searched the trunk of Mrs. Leatherman’s car. Do all deputies carry rubber gloves with them on patrol?

A:

107. Q: Did you have rubber gloves available in your vehicle?

A:

108. What hand did you use to pickup the suspected controlled substance?

A:

109. When you showed it to Mrs. Leatherman, you said, “It sure looks like heroin to me,” didn’t you?

A: Yes.

in dash audio/video

110. Q: She responded that she didn’t know what it was although it looked like some kind of bread crumb, correct?

A: Yes.

in dash audio/video

111. Q: Then she told you to find out what it was by field testing it and sending it to the crime lab for a confirmatory test, right?

A: Yes.

in dash audio/video

112. Q: After you took her to jail, you field tested substance for heroin, right?

A: Yes.

113. Q: Even though you believed it was crack?

A: Yes.

114. Q: The substance tested negative for heroin, right?

A: Yes.

115. Q: But you didn’t field test it to determine if it was crack, did you?

A: No, I did not.

116. Q: And the reason you didn’t is you knew all along it was crack cocaine, right?

A: Yes.

117. Q: If you had any doubt that it was crack, you could have field tested the substance, correct?

A: Yes.

118. Q: You were trained to field test supected controlled substances to eliminate the possibility that a suspected controlled substance is not a controlled substance, right?

A: Yes.

119. Q: Yet, even though you knew it was crack all along, you did not specify in the Uniform Citation that the controlled substance was crack cocaine, correct?

A: Yes.

To be continued . . .


The Art of Cross Examination (Part 5) The Killer Cross That Never Happened

December 24, 2011

Author’s Note: This is a continuation of the Killer Cross that never happened because Crane Station’s lawyer, Chris McNeill, refused to use it. If you have missed the first two parts of the cross, which are in Part 3 and Part 4 of this series, follow the links. I recommend reading them before reading this post, for the sake of continuity.

All rise. Court is again in session.

Good morning, ladies and gentlemen. You may be seated.

Deputy McGuire, you may return to the witness stand. I remind you that you are still under oath.

Counsel, you may proceed with your cross examination.

Thank you, your Honor.

40. Q: On the way to the hospital, you never detected any movement in the back seat that caused you to believe that Mrs. Leatherman was attempting to hide anything, did you?

A: No.

Transcript Suppression, page 24, lines 15-18

41. Q: But you testified under oath to the grand jury that on the way to Lourdes Hospital “Of course, she’s cuffed behind her back, and she is trying to work it — work it down into the seat, and she dropped her watch with it,” didn’t you?

A: Yes.

Transcript Grand Jury, pages 4-5, lines 23-1

42. Q: You didn’t see anything that would suggest she did that, did you?

A: No.

43. You told another lie, didn’t you?

A: Yes.

44. Q: You also testified to the grand jury that the Kentucky State Crime Laboratory result of the alcohol content in Mrs. Leatherman’s blood wasn’t back yet, didn’t you?

A: Yes.

Transcript Grand Jury, page 5, lines 17-18.

45. Q: Please take a look at Defendant’s Exhibit A. It has been identified as a copy of the laboratory analysis of the alcohol content in Mrs. Leatherman’s blood by Examiner Neil K. Vowels. Do you recognize it?

A: Yes.

46. Q: He did not detect any alcohol in her blood, did he?

A: No, he didn’t.

47. Q: Please take a look at the bottom left corner of the exhibit. There is a notation that reads, “Date Completed.” What date appears next to these words?

A: 7/14/2006.

48. Q: You testified before the grand jury on July 28, 2006, didn’t you?

A: Yes.

49. Q: So, you testified 14 days after Examiner Vowels completed his report, correct?

A: Yes.

50. Q: Now take a look at the top line. It indicates that the report was faxed to the prosecutor’s office at 12:32 PM on July 24, 2006, doesn’t it?

A: Yes.

51. Q: That was 4 days before you testified before the grand jury, correct?

A: Yes.

52. Q: Now at the grand jury when the Commonwealth’s Attorney said, “We don’t have the blood results back?” and you answered, “I don’t believe so, blood or lab, yeah,” can you explain why you and the Commonwealth Attorney did not know the result of the alcohol analysis of Mrs. Leatherman’s blood sample — a test completed two weeks before and faxed to the Commonwealth’s Attorney four days before you testified before the grand jury?

A: No.

53. Q: You have testified that Mrs. Leatherman failed all six clues on the HGN test. You did not document the basis for your conclusion in your narrative report, did you?

A: No.

54. Q: We only have your word for that, don’t we? Just as only have your word that she told you that she was on all of her prescription medication?

A: Yes.

55. Q: For the sake of argument, let’s assume you did tell the truth when you testified that she failed all six clues. As a police officer certified to give the HGN test, you must know that NHTSA, the National Highway Traffic and Safety Administration, recommends that the test be administered to a suspect facing away from the police cruiser because the strobing lights will cause a false nystagmus, don’t you?

A: Yes.

Link.

Q: Yet, you positioned her facing your strobing police cruiser when you administered the HGN, didn’t you?

A: Yes.

in-dash video

56. Q: Metoprolol is one of the prescription drugs that Mrs. Leatherman had in her car when you pulled her over, correct?

A: Yes.

57. Q: Metoprolol is a drug used to control hypertension, or high blood pressure, correct?

A: Yes.

58. Q: As a police officer certified to administer the HGN test, you know that hypertension can cause nystagmus, don’t you?

A: Yes.

59. Q: You, Deputy Walters, and Officer Dawes thoroughly searched Mrs. Leatherman’s vehicle, including the trunk, her purse, and her personal belongings, correct?

A: Yes.

60. Q: Other than the three prescription drugs, you didn’t find any drugs, drug residue, or paraphernalia, did you?

A: No.

61. And Officer Dawes thoroughly searched Mrs. Leatherman by the side of the road before you placed her in the back seat of your police cruiser, didn’t she?

A: Yes.

62. Q: The search included a visual examination of her genital area, correct?

A: Yes.

63. Q: She also reached into Mrs. Leatherman’s back pockets, correct?

A: Yes.

64. Q: And before the search, you ordered Mrs. Leatherman to empty her front pockets by turning them inside out, didn’t you?

A: Yes.

65. Q: And Officer Dawes checked Mrs. Leatherman’s breasts to see if she might have hidden something in her bra, didn’t she?

A: Yes.

66. Q: She also checked around Mrs. Leatherman’s waist to see if she might have hidden something there, correct? And shoes?

A: Yes.

67. Q: No drugs, drug residue, or paraphernalia were found, right?

A: Correct.

The answers to questions 59-67 can be verified by the in-dash video.

68. Q: You didn’t arrest her for DUI Alcohol, did you?

A: No, I did not arrest her for DUI alcohol.

69. Q: You didn’t arrest her for possession of a controlled substance at that point either, correct?

A: Yes.

70. Q: You arrested her for DUI Drugs, didn’t you?

A: Yes.

Transcript Preliminary Hearing, page 8, lines 4-6.

71. Q: You didn’t advise Mrs. Leatherman that she was under arrest, did you?

A: No, I didn’t.

72. Q: You told her that you were taking her to Lourdes Hospital for a blood test, didn’t you?

A: Yes.

73. Q: A blood test that she offered to take, correct?

A: Yes.

74. Q: You didn’t tell her you were taking her to jail, did you?

A: Correct, I didn’t tell her I was taking her to jail.

Author’s Note: Questions 71-74 set up a point to be made during final argument; namely, that Crane-Station had no reason to attempt to slough a rock of crack behind his seat during the ride to the hospital. Assuming for the sake of argument that she had somehow hidden it so well that Officer Dawes could not find it and, given that we know that Crane-Station knew her blood test would come back negative for alcohol and drugs, we can reasonably conclude that she would have had no reason to think she would be searched again. Therefore, why risk attracting attention attempting to slough drug?

This illustrates another important point about cross examining effectively. Use it to set-up your final arguments during summation.

Judge: Excuse me Counsel. Let’s break for the day. Court will be in recess.

To be continued . . .


The Art of Cross Examination (Part 4) The Killer Cross That Never Happened

December 23, 2011

Author’s Note: This is a continuation of the Killer Cross. If you have not read the first part, please go here to read it, as it is important for the sake of continuity.

Notice that each question is a leading question. That is, the questioner, in this case the defense attorney, makes a statement and asks the witness, Deputy Eddie McGuire of the McCracken County Sheriff’s Department, to agree or disagree with it. With the exception of a few questions to which the answer is common knowledge or otherwise apparent, the statement in each question is a prior statement that the witness made in his report or a prior statement that he made under oath while testifying at the preliminary hearing, grand jury, or suppression hearing.

After the question that contains the witness’s prior statement, I provide an answer that confirms the prior statement that he made. Below the answer in italics, I provide the source for the statement.

For example, in the first question below (#25 in the sequence that started yesterday), Deputy McGuire testified at the preliminary hearing that he pulled Crane Station over because he thought she possibly had some heroin. If he had answered the question below with a “No,” the lawyer would have impeached him with his prior inconsistent statement under oath by following the formula that I presented in Part 2 of this series. Please review that procedure, if you have not read it or are uncertain about it.

As I have said previously, impeachment by prior inconsistent statement is one of the most powerful and effective tools to cross examine and destroy the credibility of a witness and your opponent’s case.

Unfortunately, Crane Station’s lawyer, Chris McNeill, refused to use this cross examination and he lost the case. However, in the strange manner that the universe works, his refusal ended up giving me this opportunity to educate all of you about something only a few of you know anything about, which is the art of cross examination.

In a subsequent post, I will discuss why I think he declined to use it.

I love teaching! and I hope you enjoy reading the Killer Cross that never happened.

All rise. Court is back in session. You may be seated.

25. Deputy McGuire, you pulled Mrs. Leatherman over because you thought she possibly had some heroin, correct?

A: Yes.

Transcript Preliminary Hearing, page 8, lines 14-15

26. Q: You have testified that you thought she possibly had some heroin on her because Mr. Wilkey called 911 and reported that she asked him if he knew where she could purchase some tar heroin, correct?

A: Yes.

Transcript Preliminary Hearing, page 7 lines 1-3

27. Q: That’s what you told the members of the grand jury on July 28, 2006, isn’t it?

A: Yes.

Transcript Grand Jury, page 1, lines 17-23

28. Q: The grand jury is a group of citizens who decide whether to indict a suspect whom a law enforcement officer, such as yourself, has arrested for a felony crime, right?

A: Yes.

29. Q: The grand jury decides whether there is probable cause, or reasonable grounds to believe that a suspect has committed a felony crime, correct?

A: Yes.

30. Q: You would agree with me that it is extremely important for a witness testifying before the grand jury to tell the truth, isn’t it?

A: Yes

31. Q: You promised to tell the truth, the whole truth, and nothing but the truth when you testified, didn’t you?

A: Yes.

32. And that is the same promise that you made to this court and this jury today, isn’t it?

A: Yes.

33. Q: Mr. Wilkey told the 911 operator that Mrs. Leatherman had a conversation with his neighbor in the neighbor’s yard in which she “mentioned something about tar heroin and all that stuff,” isn’t that correct?

A: Yes.

Transcript 911 Call, page 2, lines 8-9

34. Mr. Wilkey did not tell the 911 Operator that Mrs. Leatherman asked him if he knew where she could purchase some heroin, did he?

A: No he didn’t.

35. Q: And the 911 Dispatcher did not tell you that Mr. Wilkey had reported that Mrs. Leatherman had asked him if he knew where she could purchase some heroin, did he?

A: No, he didn’t.

Transcript of Dispatcher Tape, page 1. This transcript was first made available by the prosecution during the trial. I did not have it or include a reference to it in my proposed cross. Nevertheless, I included this question because I believed the dispatcher never would have said what the deputy claimed he said in view of what the 911 caller had said. I also knew we could request and obtain a copy of the dispatcher tape and transcribe it before the deputy testified. Both the 911 call and the 911 dispatch could have been played to complete the impeachment.

36. Q: Despite promising to tell the truth to the grand jury, you did not tell the truth when you told the grand jury that Mr. Wilkey called 911 and reported that she asked him where she could buy heroin, correct?

A: Yes.

37. Q: You also told the grand jury under oath that Mrs. Leatherman was “very unsteady on her feet,” when she got out of her vehicle after you stopped her, didn’t you?

A: Yes.

Transcript Grand Jury, page 3, lines 6-7

38. Q: That was a lie too, wasn’t it?

A: Yes.

39. Q: Lying under oath to a grand jury is a felony called perjury that is punishable by up to 5 years in prison, isn’t it?

A: Yes.

Author’s Note: If the deputy said he did not know that what he did was perjury, the lawyer could simply hand him the statute and have him read it out loud. I did not put this in the document that I prepared for Chris McNeill because any lawyer should know this.

This is called playing hardball. I designed this part of the cross to provoke the judge into interrupting and advising the deputy of his Fifth Amendment right to remain silent and refuse to answer on the ground that his answer might have incriminated him. An honest judge also would have offered to recess the trial long enough for the deputy to consult with a lawyer and decide whether to continue answering questions.

At this point, an honorable prosecutor would have, in effect, tossed a white handkerchief over counsel table into the middle of the courtroom as a symbolic gesture of surrender.

None of this happened, however, because Chris McNeill refused to do the cross because, as he put it, “the deputy was a nice young man and the jury would have been offended,” if he used my proposed cross examination.

But, let us continue. Now that we have established that the deputy is a perjurer, let’s take him all the way down. Until tomorrow, Court will be in recess.

To be continued . . .

Cross posted from my law blog.


The Art of Cross Examination (Part 3): The Killer Cross That Never Happened

December 22, 2011

Author’s Note: I have reproduced below the cross examination that I prepared for Crane-Station’s public defender, Chris McNeill. He told me that he decided not to use it because the jury “would be offended.” He said the deputy was “young and innocent and just doing his job.” I will leave it to you to decide if that explanation is credible and reasonable.

Keep in mind, as you read this proposed cross examination, that Rule 3.130(1.1) of the Kentucky Rules of Professional Conduct provides:

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

Rule 1.130(1.3) of the Kentucky Rules of Professional Conduct provides:

(1) A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client’s cause or endeavor. A lawyer must also act with commitment and
dedication to the interests of the client and with zeal in advocacy upon the client’s behalf. A lawyer is not bound, however, to press for every advantage that might be realized for a client. For example, a lawyer may have authority to exercise professional discretion in determining the
means by which a matter should be pursued. See Rule 1.2. The lawyer’s duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.

When a defense lawyer impeaches a critical prosecution witness with a prior inconsistent statement, he can take the soft approach and argue that the prosecution failed to prove its case beyond a reasonable doubt because its witness is not credible.

He can say, for example, “I don’t know whether the witness lied to you under oath or innocently forgot, but there is absolutely no question that his inconsistencies and contradictions add up to a reasonable doubt.”

The hard approach would be to use the dreaded ‘L’ word and argue that there is a reasonable doubt because the deputy is a liar. This approach, particularly when it involves attacking the police, can anger a jury and backfire unless the inconsistencies were egregious.

I have tried it both ways successfully. I opted for the hard approach in my proposed cross, but it easily could have been adapted to the soft approach.

When McNeill made the comment to me about the deputy being young and innocent, I assumed he meant that he would opt for the soft approach. I did not consider the possibility that he was opting for no approach.

When I began to type the proposed cross to reproduce it here, I discovered that it is much too long to enter in one post, so I am going to present it in a series of posts. Each post will deal with a separate topic or set of topics. This post will cover what the deputy witnessed prior to the investigatory stop.

The cross examination is organized in a question-answer format. A reference to the document or transcript containing the deputy’s previous statement is incorporated in a leading question asking for a ‘yes’ or ‘no’ answer with the source of the statement provided below the answer. If the deputy were to give an answer that was inconsistent with his previous statement in the document or transcript, the lawyer would then proceed to impeach him with that statement. I illustrated how to do that in Part 2.

I hope you enjoy the Killer Cross.

1. Q: Whenever you are considering whether to charge a suspect with DUI, you document everything you observe that would be consistent with drug or alcohol impairment, isn’t that correct?

A: Yes.

Source: Transcript Suppression lines 2-6, page 19

2. Q: Staggering or stumbling would be signs of alcohol or drug intoxication, right?

A: Yes.

Q: You did not document any staggering or stumbling in your report, did you?

A: No.

Transcript Suppression, lines 14-17, page 17

3. Q: In fact, you previously testified under oath in this case that Mrs. Leatherman had no problem getting out of her car, didn’t you?

A: Yes.

Transcript Suppression, lines 11-13, page 17.

4. Q: Difficulty producing identification and proof of insurance are signs of alcohol or drug intoxication, aren’t they?

A: Yes.

Q: You did not document in your report in the Uniform Citation that you filled out the night that you arrested her that she had any difficulty producing her identification and proof of insurance, when you asked her to produce them, did you?

A: No.

Uniform Citation

5. Q: In fact, you previously testified under oath in this case that she had no problem producing her identification and proof of insurance, didn’t you?

A: Yes.

Transcript Suppression, lines 18-22, page 15.

6. Q: You did not document that she had any difficulty speaking, did you?

A: No.

Uniform Citation

7. Q: At no time during your encounter with Mrs. Leatherman did she exhibit slurred speech, did she?

A: No.

Q: Slurred speech is another sign of alcohol or drug intoxication, isn’t it?

A: Yes

Transcript Suppression, lines 18-19, page 17.

8. Q: You did not document in your report that Mrs. Leatherman exhibited any sign of mental confusion or disorientation, did you?

A: No.

Uniform Citation

9. Q: In fact, you did not notice any signs of mental confusion or disorientation, did you?

A: No.

Uniform Citation

10. Q: Mental confusion or disorientation is another sign of alcohol or drug intoxication, isn’t it?

A: Yes.

11. Q: An odor of alcohol is another sign of intoxication, isn’t it?

A: Yes.

12. Q: You did not document in your report that you noticed an odor of alcohol emanating from Mrs. Leatherman, did you?

A: No.

13. But you did document that she passed the portable breath test (PBT) ruling out alcohol intoxication at the roadside after you stopped her, didn’t you?

A: Yes.

14. Q: Yet, two weeks later when you testified before the grand jury in this matter, you told them that she stumbled getting out of her car, was very unsteady on her feet, and was smelling of alcohol, didn’t you?

A: Yes

Transcript Grand Jury

15. Q: Inattentive driving is another sign of drug or alcohol intoxication, isn’t it?

A: Yes.

16. Q: You have previously testified under oath in Mrs. Leatherman’s case that you first noticed that her left turn signal was blinking as you passed her, isn’t that correct?

A: Yes.

Transcript Suppression, lines 4-6, page 5.

17. Q: Both of you were approaching the Cairo Road intersection, weren’t you?

A: Yes.

18. Q: The Cairo Road intersection is a traffic light controlled intersection where motorists can turn left or right, isn’t it?

A: Yes.

19. Q: If Mrs. Leatherman had moved into the left lane as you started to pass her, she would have collided with your vehicle, wouldn’t she?

A: Yes.

Transcript Suppression, lines 21-25, page 12.

20. Q: The fact that she did not move into the left lane and collide with your vehicle indicates that she was attentive, doesn’t it?

A: Yes.

Transcript Suppression, lines 21-25, page 12

21. Q: You slowed down and fell in directly behind her as soon as you realized that her vehicle, Washington plates, and the blonde hair matched the description provided by the 911 caller, didn’t you?

A: Yes.

Uniform Citation, Transcript Grand Jury, Suppression Transcript

22. Q: As soon as you fell in behind her, she activated her right-turn signal, moved over onto the shoulder of the road, and slowed down to a stop, correct?

A: Yes.

Transcript Suppression, lines 3-5, page 15.

23. Q: That would be another example of attentive rather than inattentive driving, wouldn’t it?

A: Yes.

24. Q: In conclusion, she was driving appropriately, she wasn’t weaving, and her speed wasn’t a factor when you decided to pull her over, isn’t that correct?

A: Yes.

To be continued . . .


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