Face it most drunk driving arrests (DUI) are made between midnight and 4:00 A.M. Los Angeles DUI lawyer Lawrence Taylor  posted about the effects of the your circadian rhythm  and the field sobriety tests .  Your circadian rhythm is basically your body clock. It stands to reason that if your are doing a agility test  late at night , your body might not perform as well . it is common knowledge that west coast or east coast football teams don’t play as well when they travel to the opposite coast.

British physicians and psychiatrists reported that "the same blood alcohol level is associated with a significantly greater impairment of different aspects of psychological functioning when achieved in the morning." "Circadian Variation in Effects of Ethanol in Man", 18 (Supp. 1) Pharmacology, Biochemistry and Behavior 555.

 

 

It stands to reason that there are more factors that impact the field sobriety tests than just a beer or two.

Denver , Colorado DUI attorney Jay Tiftickjian wrote a recent blog post on " It never pays to talk to the police". I agree 100 % . One reason citizens talk to police is that is the way we are wired. We are brought up to believe the police will help us if we explain the facts . Now , the pressure is to arrest folks .Our forefathers knew what they were doing when they wrote The Fifth Amendment  into the U.S. Constitution the right to remain silent. You can’t talk yourself out of an arrest.

Here is an  some example ;

Officer : " Have you had anything to drink." You: "Yes. I had a glass or two of wine with dinner."

This one statement gives the officer the right to order you out of your car to begin a DUI investigation. Then , your probably going to be charged with a DUI and going to jail. It is always better to refuse answering any questions.

Attorney Tiftickjian uses this wise passage in his post;

More than 60 years ago, in Watts v. Indiana, 338 U.S. 49, 59 (1949), Supreme Court Justice Robert H. Jackson, a jurist with decades of experience as a prosecutor, including the U.S. Chief of Counsel for the prosecution of Nazi war criminals in Nuremberg, Germany, wrote that “any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to police under any circumstances.”

A  U.S. Supreme Court Justice recognizes that no attorney should let his client speak to police let alone speak without a lawyer present.

You can’t bargain with the police.

You might self incriminate yourself.

A saying from World War II is in order , "Loose lips sink ships." In today’s world loose lips gets you arrested then possibly convicted.

 

 

Here is the latest submission by Judge Sophia Crawford for Juvenile Court Judge . All candidates are invited to submit their qualifications. They will be unedited and appear as submitted. My name is Sophia Crawford and I am currently serving as the Davidson County Juvenile Court Judge. I am asking for your vote on May 6, 2014 so I may continue to serve the children and families of Davidson County as Juvenile Court Judge. I believe how our justice system treats minors impacts the future of our city in a way most people cannot even imagine. Although I decided to attend law school at the fateful flip of a coin, I quickly realized that I have a great passion for the law. After graduation, I practiced in family and juvenile law, and also served on the Foster Care Review Board of Davidson County, which was created to oversee children in foster care, make sure they receive appropriate care, protection and treatment, and that treatment and services are provided promptly to the parents to ensure safe return of the children. Additionally, this board ensured that other long-term placement goals were achieved when re-unification of the family was not possible. I was also appointed to the Tennessee Children’s Justice Act Task Force, which was charged with making recommendations to the Governor and legislature for improving the detection, intervention, prevention and treatment of child sexual abuse in Tennessee. After watching three colleagues go to the bench (Judges Mark Fishburn, Sue Evans, and Gloria Dumas), I was encouraged to apply for a Juvenile Court Magistrate position. It was an incredible opportunity for me to continue working on the things I care about most in a new and exciting environment. Judge Betty Green appointed me to the bench in 2002. I was immediately humbled by the experience, not just because of the hard work and long hours, but also because I was working out of a cubicle courtroom. My courtroom attendees would actually stand up when the court officer from the next cubicle over called for the courtroom to rise! My experience as Magistrate helped shape my understanding of what it means to be an effective judge. I was instrumental in the development and establishment of dockets in Juvenile Court for the establishment and collection of child support for children in foster care. I also assisted in managing a Federal grant associated with this position. These two things resulted in the highest collections in the state for child support for children in foster care. I also helped develop procedures and protocol for the first Order of Protection docket in the Davidson County Juvenile Court, and presided over that docket. In 2012, Judge Green retired and I was given the honor of taking her place as Davidson County Juvenile Court Judge. That was when I realized my true calling. The position requires bench experience and solid administrative experience to serve as the department head to a court of approximately 114 employees, a detention center, and a $13 million budget. My years as a private practitioner, coupled with the responsibilities of co-owning a convenience store with my husband, Jay, prepared me well for this role. In addition to my duties as judge, I am a member of the Tennessee Council of Juvenile and Family Court Judges, Women’s Political Collaborative of Tennessee, Napier-Looby Bar Association, Women in Numbers and the Nashville Bar Association. I am also a member of the Old Hickory, Donelson/Hermitage and Madison Chambers of Commerce. I am an active member and board member of Christ Church Nashville. The privilege of judgeship demands we serve with accountability, discernment, integrity, respect, equity, timeliness, thoroughness and neutrality. I strive to demonstrate these attributes, and will continue to do so. Nothing is more rewarding than making a positive difference in someone’s life. While it is rare to get feedback from those who come before us in court, some cases have stayed with me. Those include: a child on a terribly destructive path who turned their life around; parents who completely change their lives to be reunited with their children; and the child who said I probably saved their life when I committed them to state custody. These cases have given me the chance to help and guide the most vulnerable people in our society and I am thankful for the trust people have placed in me, Our Juvenile Court has continued many programs developed by Judge Green and I am proud of the enhancements and improvements made by our staff. We will continue our court philosophy that accountability and early intervention can be the most effective tools to get a youth or family on a path to become productive members of our community. I am asking you to keep me as your Juvenile Court Judge, and promise to preside over the court with the toughness and compassion required to instill generations of children with respect for themselves, their fellow citizens, and the law. See: Facebook at facebook.com/JudgeSophiaCrawford; Webpage: www.judgesophiacrawford.com

Your nervous when you go to a lawyer’s office to decide if you should hire them. You have a list of questions hopefully that you want to ask . Experience. Have you handled a case like mine ? What is best case or worst case ? There are a ton of questions depending on the case. The first meeting is one of the most important meetings in preparing your case and choosing your criminal defense lawyer. Now there are some things you should tell your lawyer or they should ask.

1. Do you have a criminal record ? A prior criminal conviction can be used to enhance your punishment . Your lawyer needs to know your complete record. It can help you in plea bargaining the case .If you don’t have a record it can also help you. You may be eligible for a special probation under Tennessee laws . It can also be a factor if you wish to testify in your own defense.

2. Have you ever been on probation ? One key fact is have you ever been on probation. Your performance on probation is critical.

3. Are you a U.S. citizen ? A criminal conviction may have severe collateral consequences on your status in this country . Your lawyer needs to know this fact.

4.Do you have any charges pending ? It is amazing that some folks don’t disclose that they currently have a charge pending and are looking for a lawyer . The left hand needs to know what the right hand is doing.

5.Tell your lawyer what you goals are in this case. Want a dismissal ? Want to avoid jail ? Want to  avoid a DUI conviction.

These are the main things you should tell your criminal defense lawyer. The answer to some of these questions may impact the direction your case takes.

Jury selection is the most important part of a criminal trial . Jury selection is when the attorneys question jurors on their qualifications and if they can be fair and unbiased jurors. Each attorney has eight peremptory challenges in a felony case under Tennessee law. A peremptory challenge allows a lawyer to strike a potential juror for whatever reason. Some challenges are based on looks , how they answer a question , and even what bumper stickers they have on their car.

Prior to 1986 , the laws on jury selection allowed the unfettered use of peremptory challenges . In Batson v Kentucky , the U.S. .Supreme Court required the lawyers to state on the record a non-discriminatory reason why a juror was excused on the basis of race.

The question has now been raised whether a juror can be excluded on the basis of sexual orientation. This week the U.S. Court of Appeals for the Ninth Circuit became the first circuit to bar peremptory challenges on the basis of sexual orientation. Here is an excerpt from the ruling;

“Gays and lesbians have been systematically excluded from the most important institutions of self-governance,” Judge Stephen R. Reinhardt wrote for a unanimous three-judge panel. “Strikes exercised on the basis of sexual orientation continue this deplorable tradition of treating gays and lesbians as undeserving of participation in our nation’s most cherished rites and rituals.”

In the trial , a juror was excused based upon his alleged sexual orientation. It was not clear whether he expressed himself as gay  but stated about his partner "He was retired."

Compare this case with a ruling a few years ago from the U.S. Court of appeals in the Eighth Circuit which came to the opposite conclusion. It appears this case might be headed to the Supreme Court for a clear ruling. One key point for the trial lawyer is to be aware of the shifting law in jury selection.

 

Last December , I was asked to participate in a meeting about a proposal by the folks at the state mental health department on a DUI law . Basically , the law will give folks that are facing a DUI jail sentence for a second or third offense DUI charge to get more jail credit for treatment. The bill was proposed to several groups including MADD, the District Attorney General’s Conference , law enforcement , and other key players.

While the bill is not perfect , there are some positive changes. Here is a link to the proposed bill . I would invite your comments on the bill. It has not passed yet. So any comments might be helpful in tweaking the bill.

The last R for trial lawyers is remember. Once you relax , rehearse , and  react , you have to remember. Remember what happened , what worked , and what failed . Why do we want to remember ?  Great trial lawyers don’t want  to make the same mistake twice.

How do we remember ? We start with the creation of a trial journal . What would it contain ? Several years ago , I got a trial notebook written by Florida lawyer Elliott Wilcox . The basic idea of the notebook is to find the lessons learned and things to do differently. Here are some of the areas;

  • Theme
  • Jury selection
  • Opening statement
  • Direct examination.
  • Cross examination
  • Closing Argument
  • The most important lesson learned.

I write in the notebook after each trial. New lawyers should start one just for hearings or motion hearings. I hope you found the four Rs’ series helpful. I always invite your comments.

I am pleased to post the second statement of qualifications of office. This time it is Rob McGuire’s qualifications. If you have not read the ground rules here they are.

 
I’m Rob McGuire and I’m running for District Attorney General. Torry Johnson, who has been the District Attorney for the last twenty-six years is not seeking re-election and is endorsing me to succeed him. 
 
I have dedicated my entire professional career to seeking justice in every case. My obligation as a prosecutor is not to seek convictions but to pursue the truth: to hold the guilty accountable when the evidence supports it but to protect the innocent when it does not. For over twelve years I have been on that mission. I want Nashville to be both a safe city and a free city and as District Attorney I will strive to pursue both goals. It is vitally important as well to temper justice with mercy. The consequences of a criminal act must not only fit the crime but they must be fundamentally fair with an aim toward rehabilitation if at all possible. It’s essential to separate the hardened criminal from someone who has made a mistake and has the chance to make amends. I have the experience to make those kinds of judgments and the skills to lead sixty other attorneys in making those judgments. I have the respect and support of my colleagues in the District Attorney’s Office that will allow me to effectively lead from day one forward. My reputation within the defense bar is that I am fair, honest, professional and handle my cases with openness, transparency and a sense of humor. I respect the job the defense attorney does and I believe it is crucial to protecting our liberty. 
 
I have my degree from Northwestern University where I graduated with honors. I then attended Vanderbilt Law School where I was a member of the law review and the honor council. I joined the D.A.’s Office five days after graduation and I’m a career prosecutor. I’ve served as an Adjunct Professor of Law at Vanderbilt Law School and am currently on the faculty at Belmont Law School teaching trial advocacy. I am certified as a Criminal Trial Specialist by the National Board of Trial Advocacy and the Tennessee Commission on CLE & Specialization. I’m routinely invited by state prosecutor associations to lecture to them on prosecutorial ethics and I was invited to be ethics panelist at the National District Attorneys Association annual conference in 2011. I have tried over 90 felony jury trials including over 30 First Degree Murder cases. 
 
I believe that being a prosecutor is a calling not just a job. I also believe that the office of District Attorney is vitally important to the health of our city and that we should vote for someone who not only believes in the mission of prosecutor but can lead others to follow that mission. I know I can do that I and I want your support and your vote on May 6, 2014. If you’d like to know more about me and what I believe please go to my website at www.McGuireforDA.com. Thank you – 
 
Rob McGuire 

The first two Rs’ were relax and rehearse. The third R is the ability to react. I had lunch with a civil lawyer a couple of weeks ago. The conversation turned to civil trials. He commented on there are no surprises in a civil trial .Everyone knows what is going to be said and done. The major difference between civil and criminal trials is the scope of the discovery process. In a civil case , there are interrogatories , request for production of documents , and depositions. Discovery in a criminal case is limited. A criminal defense attorney can not take a deposition. A witness does not even have to talk to a defense lawyer or an investigator.

You must be able to react . The judge throws you a curve ball. A witness changes their statement . Being prepared to react on your feet takes some practice. You have to be under fire a couple of times in order to grasp this skill. There are a few ground rules that may help you;

  • Master the rules of evidence.
  • Master the rules of criminal procedure.
  • Learn key criminal law cases.
  • Be prepared for a curve ball.

Remember , a criminal trial still has some surprises . You must be able to react to any situation that arises.

 

 

 

In yesterday’s post , I talked about the first R which is to relax. The second R is rehearse . Coach Bosque spoke about thinking  about the play before it happened and play in his mind what he was going to do with the baseball if it was hit to him. Preparing for a hearing or trial is the same.

The typical lawyer gets ready by reading the file , meeting with the client , interviewing witnesses , and reading the key law on the topic. It might be a better means of getting ready for a case is to rehearse . I was exposed to some techniques at the Gerry Spence Trial Lawyer’s College.

The core basis of the Trial Lawyer’s College is the use of psychodrama to prepare your case for trial. a blog post can’t cover the topic but I want to leave you with some ideas.

  • Rehearse your opening statement. Give it in front of the mirror , your loved one  , or any way you choose.
  • Know the battlefield especially if you have never been in that court before.
  • What will the judge allow ? Will the judge cut you off ? Increase bond if you have a hearing ? Know the judge.
  • Know your opponent. Everybody has strengths and weaknesses.
  • Rehearse your voir dire. I have even hired folks to play jurors so I could practice my jury selection.
  • Do a focus group.
  • Have your client cross examined by another lawyer.
  • Play the hearing or trial in your mind . Visualize the trial.
  • Have your client assume the role of the complaining witness . Then have the client to state the point of view from the complaining witness.
  • Talk to friends , other lawyers , or folks you know about the case.

I just mentioned a few ways to rehearse . But think about it. A baseball player stands in the on deck circle. he swings his bat to get rid of muscle tension. He looks at the pitcher throw the ball. In his mind he sees the pitch coming to the plate . He swings the bat and knocks it out of the park. Now he is ready to step up to the plate to face the pitcher when it counts. He is ready because he rehearsed. Criminal trial lawyers should rehearse as well and not just read the file.