Visalia – the Trial

I suggest you read the earlier blog, titled “Visalia” before starting this one.

It’s about a four-hour drive on Interstate 5 from Orange County through the Tahachapis (the Ridge Route into the San Joaquin Valley,) past Bakersfield into Tulare  County on Highway 99, to the Visalia off-ramp into the town where you check in to The Holiday Inn located just as you come off the off-ramp.

The Holiday Inn is OK- clean, nice rooms, a breakfast plan, some cocktails at the end of the day and good service, but don’t you think spending one month (or more) in the middle of nowhere is a little too much? Well, that was how long the trial of James Mc lasted. The daily trial sessions were scheduled Monday through Thursday from 9:00 AM to 4:30 PM. So I would either drive after trial on Thursday back home to Orange County, or, depending on what was required for the case, stay over to Friday and drive back to Orange County. I would return to Visalia Sunday, around noon.

Sounds not fun, and it wasn’t. However one learns where the hidden gems are pretty quickly. One hidden gem was one of the best restaurants I have ever dined in and was called “John Vartainian’s Vintage Press,” located a few blocks from the hotel on the main drag. Really good food and elegantly prepared in a rustic setting, featuring Valley lore from the area.

Another place I found was “The Imperial Palace Restaurant” in a neighboring town called Hanford, the county seat of Kings County, known for its many dairy farms and agriculture. It was a short drive from Visalia. When the Union Pacific Railroad was built, the labor from the West Coast laying down the tracks was predominantly Chinese brought in by the railroad, and, from the East Coast, the labor was predominately Irish immigrants, again brought by the railroad. They met in Hanford and it is reputed that junction was where the two work crews met and laid the final spike, completing the railway. So why not go to this famous restaurant for a nice Chinese meal? Guess what? I could have been dining in France, as the owner sent one of his kids to Paris to be trained as a fine dining chef, and he was. When he returned, the menu was completely changed to fine dining French food, and for very little, one got an elegant five course meal from soup to nuts.

I was told to go to an adjacent town located in the Northern County of Fresno called Kingsberg. Again a short drive from Visalia, and there was a cowboy bar in the town. Go to the bar, walk into its back room and, my goodness, there was this elegant restaurant run by two young lawyers and their mother featuring again a grand meal such as frogs legs and other French dishes. Now this place is really off the beaten track, a place no one would have ever heard of unless one was local. Well, one evening when I decided to dine in this remote, out-of-the-way restaurant. I walked in and guess what? A couple already seated were having a private and enjoyable meal when their evening must have been ruined, as the guy was a lawyer I knew from Orange County, and the gal was not his wife. We acknowledged each other and he and his friend left rather rapidly. Lesson is- no place is safe when one wants to dally around.

The client, if you recall, was charged with one count of vehicular manslaughter of a young college girl in which the client’s Ford Bronco T-boned a VW at an intersection where the young lady was a passenger, and her boyfriend, the driver, was seriously hurt. The client had already been convicted of felony drunk driving and felony driving under the influence and the manslaughter conviction was reversed on erroneous jury instruction. So, the trial involved only the manslaughter charge, but the sentencing portion of the alcohol-related offenses was sent back for reconsideration of the six-year, eight month sentence. For a more detailed version of the pending facts, go back to the earlier blog titled “Visalia.”

A jury trial generally starts with some pretrial motion by the parties, and when that is done, with the jury panel called to the courtroom. Jurors are called to sit in the first twelve seats with generally some alternates in the event a chosen juror for some reason cannot continue. When a juror is excused after the jury is selected, then an alternate takes his/her place and the case goes on. The discharge is for cause, such as illness, or the juror cannot perform for some reason, or the juror, as an example, just refuses to deliberate with the rest of the jurors, The judge first addresses the jurors, letting them know what the charges are, learns of their marital status, are of residence, whether they are new or former jurors, asks about biases and prejudices, relationship to prosecution or defense witnesses and a variety of other subjects. When the judge is finished, he then turns over the questioning of the jurors to the attorneys. Sometimes, the prosecution goes first, and sometimes it’s the defense. What I am looking for in jurors, is first,  I like a juror who have never served before rather than one who has been through the process previously and has become jaded, or talked to the prosecution after a previous case, where, on occasion, they learn about all the bad stuff in a defendant’s past they were not able to know about; I do not necessarily want a jury of my client’s “peers.” I believe one demands more from his/her peers, such as young people are harder on young people, whereas an older person may look upon a young defendant more kindly, and a younger person may be more inclined to respect one’s elders, Of course, I don’t want anyone related to law enforcement. The DA Is looking to exclude anyone who has had, or his/her family has had, a bad experience with a police officer. I have to say this,  though one cannot systematically exclude or challenge a juror by race or religion, it happens. Also, occupation is considered. Do I want a medical doctor, when the issue has to do with questioning a medical issue that may come up in a case? Maybe or maybe not. I can’t write all the variations that occur in jury selection or reasons to excuse a juror. I should mention generally each side is entitled to ten challenges without any reason, and that is where it gets tricky. Actually there is a whole group of people with experience in specific psychological traits known as jury consultants, that specialize in helping lawyers pick a jury. I have only used such a person once in my career, and will cover that experience in a later blog where I represented a young woman accused of murdering her husband’s lover as well as suffocating the victim’s five month old baby.

The bottom line is, each side tries to get a jury panel they are comfortable with

In the present case, I was not too happy with the selection; I had two non-drinkers, two forest ranger game wardens, and they all had either heard of the case, or read something about it. Some even knew the prosecutor through Bible School. It didn’t look good for my client.

After the jury is selected, the prosecution then can make an opening statement as to what he/she believes the evidence will be to support a conviction, and the defense can address the jury or reserve its opening statement to the conclusion of the DA’s case. I generally make a brief opening statement, basically to try to diffuse the DA’s opening, reminding the jury of their promise to keep an open mind, and not to form an opinion until the entire case is submitted to them. I should mention, I hit hard on that aspect of an open mind in my questions to the jury during the selection process. I learned that approach when I was a prosecutor, because it became clear then, jurors generally have their mind made up before the defense has a chance.

Now, after opening statements, the DA starts to call his witnesses, and I  now have the advantage of the former trial’s transcript; thus I know in advance exactly how the prosecution’s case is going to unfold, which gives me plenty of time to either cross-examine, or to set the opposition up for cross or to lay the groundwork for my defense evidence.

The first witness for the DA is the surviving boyfriend and his testimony of  what occurred earlier that evening,  some about the destination and the speed, the collision and his injuries. No cross is needed, and no reason to keep him on the stand any longer, so “No questions, your Honor” Then the police, regarding their investigation, which includes an opinion on where the accident occurred, where the automobiles ended up, an opinion as to the location in the intersection where the collision occurred, the interviews, the defendant’s statement and then into the DUI investigation, the taking of the defendant’s blood, approximately an hour later, then the securing of the vial of the defendant’s blood, and the transporting of the blood to the chemical laboratory and the field sobriety tests administered at the scene. All this is routine, so what my defense will attempt to establish through cross-examination is what I call “accentuating the positive and eliminating the negative” (an old Johnny Mercer tune.) I rarely become nastily aggressive in my cross to the surprise of attorneys . My approach to cross exam is to be professional and nicely forceful. In every case, I write on my yellow pad “Be Nice” and “Be Professional.” I am convinced jurors try to do the right thing as best as they can, and appreciate an attorney who is professional, knows his/her case, does not seem unprepared or is fiddling with his/her paperwork. That works for me and is also based on lessons I learned earlier in my career when engaged in battle with good defense attorneys I encountered as an LA Deputy District Attorney. (One of them comes to mind:(Frank Duncan was an excellent defense attorney who was so nice in his presentation you could just see that jurors would favorably react to him. He did have a terrible tragedy in his career when he was living in the Santa Barbara area. He married after living with his mother for many years, Mom did not like her son being taken away by another lady, so she hired a couple of thugs to get rid of the new wife, which they did by kidnapping the wife, and they thought they killed her, but, no, she was buried alive and suffocated. The cops broke the case and cut without any promises to the two thugs. They testified against Frank’s mom, hoping to avoid the death penalty. They all were convicted, given the death sentence and executed. You can read the case People v Elizabeth Duncan 53 Cal 2nd 803.) I know jurors liked me and that is a big plus as a defense attorney and even better if they like the accused. I work with clients and greatly prepare them for cross examine. I am further convinced when it comes to trial that it is the only game in town where “Nice Guys Win Ballgames.” It is not a game, but it doesn’t hurt to be nice. Also, most important: be yourself. When I was  a DA, I encouraged those deputy DAs not to watch other attorneys in action, but develop their own winning style, because if one tries to emulate another lawyer, the jury will smell it and feel the insincerity and have a negative reaction. I may have mentioned  in an earlier blog, and, if so, forgive me, but I recall a DUI case I was defending in Santa Ana where I tried to emulate Al Forgett, a big bear of a guy, who was naturally just a swell, friendly guy. I noticed, when questioning the jurors, I was getting a negative reaction, so I just asked one of them if he was annoyed at my presentation and what do you know, he said yes. I followed up with a general question to all the sitting prospective jurors if any others felt that way, and several hands went up. The judge saved my bacon by dismissing the whole panel and we started over. I went back to my winning style and things worked out.

OK back to Visalia. What I wanted from the police witnesses was to firmly establish what they thought was the exact location of the accident based on skid marks and the location of fallen dirt from the fenders, because my expert was going to demolish the DA’s theory of speed and location of the collision, coupled with pictures I had obtained, showing the defendant’s vision was obstructed due to leaves blocking the boulevard stop sign for southbound traffic. When I talk about accentuating the positive, I try to bring out all of the positive signs showing sobriety, which I will use against the prosecution’s expert witness on blood alcohol and symptoms of one being under the influence, which I will use in my closing argument- re: sobriety, such as the first thing to go when a person shouldn’t be driving is mental stuff,  such as short term memory and the cross would also accentuate his answers to questions, spelling, no dropping of the driver’s license, did not need to use the door for balance when exiting the car, ability to understand and just a whole bunch of positive things one would not expect a drunk to do.

The main witness for the DA was Dr. Miller who was the County Coroner, and who proudly told the jury he had studied under Dr. Debowsky at the University of Oklahoma Medical School. Depowsky was the recognized authority regarding drinking and driving. He gave the usual stuff about what is known as retrograde extrapolation, which simply means there was a formula derived from an old study by another expert from Sweden, Dr. Widmark, known as the Widmark theory of absorption and elimination of alcohol, where one can relate back from the time the blood was drawn back to the time of the accident based on a given absorption time, such as one hour to absorb into the system, and an elimination rate of 1.5 hours. Also, the machine used to measure the blood, in this case, about .15, was a single chamber gas chromatograph. What Dr. Miller did not know is that I was in possession of several articles written by Dr. Dubowsky in peer-reviewed publications condemning retrograde extrapolation as unscientific due to the variations of the human condition, and one can absorb anywhere from 15 minutes to four hours and eliminate anywhere from 15 minutes to four or more hours, depending on all kinds of variables. So I presented the articles to Dr. Miller, plus copies of depositions in which Dubowsky had testified, with the bottom line being that Dubowsky condemned the back assumption and advised not to make such an opinion. That, plus all the things the accused did which were consistent with sobriety and reflecting that the accused was not under the influence at the time of driving. When Dr Miller walked off the witness stand he said in open court and in front of the jury, “I want to thank you, and I will try to come up to date on the science regarding alcohol and its effects”

Boy, was I smug. A recess was called before the next witness was to be called. This is when I learned a lesson for this case, and all future cases. I had engaged a local lady to watch the trial, let me know if SADD or MADD people were trying to infect the jury, and to let me know if I got too aggressive. So I sauntered up to her at the back of the court expecting praise of my cross examination of Dr. Miller. Well, she looked daggers at me, and said “You embarrassed Dr. Miller. He is one of ours!” Bingo. Remember that I mentioned I did not get a jury that I wanted? Two non-drinkers and two forest rangers among the twelve, plus a couple of school teachers, and I don’t like teachers, even thought my own daughter is one, as they are generally authoritative with little patience and particularly antagonistic to drunk drivers. In closing argument, instead of demeaning Dr. Miller for his lack of knowledge, I praised him as an honest man…. I said I hated to cross examine him, but what could I do in representing my client, which I would do if I represented one of the juror’s wife, husband, or child, etc. Since this case, I do the same to any witness I have demolished, and  I also complement my opponent attorney for a good job based on what he or she had to work with. One is always learning in this business.

Eventually it comes down to the defense. I called Harry Kreuper, the mechanical engineer, and he was great. We established the impossible line sight situation. proved the client’s car had already entered the intersection before the other car, based on location, dirt falling and crush damage, at a speed within the posted speed limit. Then Darryl Clardy explained the Widmark theory was created in the 1930s and has been criticized. He read the original article, which was in German, and it was based on a limited number of subjects and was not, in this case, scientifically viable and the DA couldn’t touch him Then, most importantly, the machine used in this case was an old model gas chromatagraph, with a single chamber measuring the alcohol content and had been modified to a two chamber machine in order to assure the measure of the sample was accurate.

The client testified to his drinking pattern and time of last drink just shortly before he left the earlier gathering,

To shorten this up, we argued, judge instructed, jury went out to deliberate, and, shortly thereafter, returned a verdict of not guilty to the manslaughter charge, and then, for some reason the judge also asked the jury to reach a verdict on the DUIs which had not been reversed, and the jury found not guilty on those as well

I moved to have the DUIs dismissed, but the judge ruled against me based on cases that upheld inconsistent verdicts. Instead of prison, he put my client on 8 months house arrest and a probationary term, which reduced the case from a felony conviction to a misdemeanor and had enormous advantageous consequences, allowing the client to continue as a gun dealer, as he would no longer be a felon, prohibited from possession of a fire arm.

The press really went after me as the “Big City” slick lawyer who stole the case from the local DA. (bothered me because we didn’t consider Orange County at the time as a Big City.)

Client was appreciative and every Christmas for several years sent me a case of olives from his vineyard

That’s it for now,

Marshall