Missouri Criminal Defense Lawyer

This thing they call “jury nullification” means that the jury can acquit a defendant if they think a strict application of the law–as given to them by the judge–would be unfair. It means that the jury is judging both the facts AND the law.

How exactly can a jury get away with giving a “not guilty” verdict when the facts clearly show that the defendant ACTUALLY DID what he was accused of doing?

The chief factor is the 5th amendment prohibition against double jeopardy. The defendant–once acquitted–cannot be tried a second time (this also means the state cannot appeal a “not guilty” verdict).

In addition to the fact that “not guilty” verdicts are binding and unappealable, the second factor is almost as important: no juror can be punished for rendering a “not guilty” verdict, even if they apparently failed to follow the court’s instructions. Unless they commit a crime like taking a bribe, they are untouchable.

When I was a prosecutor, the idea that a jury was free to acquit any defendant, was very distressing to me. Reasonably enough, prosecutors expect juries to render guilty verdicts when the prosecutor proves his case.

They can understand losing a case that turns out to be weaker than they expected. Things sometimes go badly at trial. But, on the other hand, nothing is more frustrating than seeing jurors acquit an obviously guilty person.

This is ironic because prosecutors typically exercise their own discretion in refusing to file 15% to 20% of all the cases the police send to them.

Just as prosecutors are annoyed by juries who disagree with them, the police are often rankled when the prosecutor won’t file every case submitted to them. Yet the police themselves will give a lawbreaker a second chance when they issue a warning or let a friend drive a troublemaker home, instead of arresting him.

It seems that nobody wants to convict a person who cannot or should not be prosecuted, but once THEY decide to punish the accused, THEY expect their decision to be the final word on the subject.

This raises the question: Who should have this power? Who should we trust with this sort of discretion? Who is more likely to bring the mind and values of the community to the decision-making process?

I’d welcome any comments on this. More in my next post.

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Before every Missouri criminal trial begins, the judge asks the jury to stand and raise their right hand as the jurors take this oath:

• Do you solemnly swear or affirm that you will well and truly try the issues in this case and render a true verdict according to the law and the evidence, so help you God?

After all the evidence in the case is heard, the court instructs the jury as to the law, telling them that they must decide the facts in the case. Something like this:

If you find and believe from the evidence beyond a reasonable doubt:

First, that on or about March 18, 2008, on US Hwy 54, in the County of Cole, State of Missouri, the defendant operated a motor vehicle, and

Second, that he did so while in an intoxicated condition,

then you will find the defendant guilty of driving while intoxicated.

It looks very mechanical. Very simply, if the defendant was

1. intoxicated; and
2. driving, then he is automatically guilty.

But that is not how it works.

In fact, the jury has unquestioned power to find the defendant “not guilty.” Without having to justify why.

Now most of the time, jurors do follow the court’s instructions and render a verdict based on whether the state has proved the facts in the case beyond a reasonable doubt. But there are times when the jury clearly DOES NOT CARE that the state has proven it’s case.

If they think the law is unjust in a particular case, they exercise their power and vote “not guilty” even though the defendant undoubtedly did what he was accused of doing.

Twice-when I was a prosecutor–I learned this lesson firsthand.

The first time was a felony DWI trial. The defendant had been drunk (very drunk) driving and his lawyer was the only person who could dispute it with a straight face. But the jury came back with a “not guilty” verdict. Several jurors went out of their way after the trial to find me and tell me not to feel bad, that I did a good job, but there was no way they were going to find that nice boy guilty of a felony.

Another fellow was acquitted after I proved his guilt-beyond all possible doubt-that he illegally possessed a concealed weapon (a knife he kept under the driver’s seat of his car). I spoke with some jurors afterward and they just disagreed with the law. There was no way they were going to convict a man for doing what everyone has a right to do; i.e. keep a weapon in his car for self-defense.

The fascinating thing about this is that the jury got away with ignoring the court’s instructions. No one could stop them. No one could reverse their decision. No one could punish them afterward.

This power of “jury nullification” of the law is intriguing. I’ll get into it more in later posts.

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Let’s pretend it’s a clear starry Saturday morning, 1:00 a.m and the cop lights me up and pulls me over. He says I crossed the centerline. I did?

He asks for license and insurance and smells what he will describe in his report as an “odor of intoxicants” emanating from me.

It’s all downhill from there: the one-legged stand test, the walk-and-turn, the gaze test. Then come the handcuffs and a ride in the back seat to the sheriff’s office, where the cop reads some stuff from some form. He says:

• “You are under arrest for driving while intoxicated.”

• “To determine the alcohol content of your blood, I am requesting you submit to a chemical test of your breath (or maybe blood). If you refuse to take the test, your driver license will immediately be revoked for one year.”

• “Evidence of your refusal to take the test may be used against you in prosecution in a court of law. Having been informed of the reasons for requesting the test, will you take the test?

So . . . should I blow?

If I say NO, I lose my license for a year.

If I say YES, I provide additional evidence to be used against me in court.

There are some other things I should think about:

A first offense DWI may result in a 30/90 day license suspension, but a repeat offense (or one involving injury or death) will likely cause a license revocation of a year or more. Considering that the punishment for anything more serious than a first offense DWI is probably jail or prison, and a year or more revocation, I might feel there is not much to lose by refusing the breathe test. So I think to myself . . .

• Now if I just had a beer or two, I might want to blow if am confident that my blood level is below .080%. It would prove me innocent.

• But in a close case it could be just enough for the state to make the case against me.

• If I am really drunk, however, it probably doesn’t much matter whether I blow or not. They’ve got me good and nothing will change it. Most prosecutors will just argue that I was so drunk that I knew the breath test would convict me. They would be right and the jury would probably agree with them.

Now there is one thing the police won’t tell me: the law gives me twenty minutes in which to try to contact an attorney. At the end of the twenty minutes, I must take the breath test or lose my license for the year.

So with that additional 20 minutes I can try to get some advice. If I can’t reach a lawyer, I still have 20 more minutes to think about taking the test. Of course, after a few beers, my thinking is not as good as it could be, but on the bright side, 20 minutes is long enough to lower my blood alcohol from .084% to .079%. That might help.

One final thing to consider is that–if I refuse to blow and the offense is a felony–the police are very likely to wake up a prosecutor and a judge to get a search warrant, so they get the blood sample anyway. If that happens I am triple screwed.

1. I refused to blow, so I lose my license for a year,
2. I look guiltier because I tried to hide my alcohol level; and
3. They got the blood alcohol evidence anyway. (Sure didn’t see that one coming, Ouch!)

As you can see, it’s very hard to know whether taking or refusing the test will hurt or help your case. Sometimes you won’t know until it’s too late.

If you can reach an attorney during your twenty minutes (good luck on that), he or she can help you decide. Don’t rely on this post because it is too short to address all the issues involved. If you want to call me, my number is in the book. Or just avoid the whole thing and have somebody else drive you home.

PS: Some folks will try anything:

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There is a handy list of the point values that the state will assess against one’s Missouri driving record if convicted of vehicular misbehavior.

It’s good to know how much that speeding ticket is going to hurt. Here is the link:

THE POINT SYSTEM.

This PDF file comes to you courtesy of our own Drivers License Bureau at the Missouri Department of Revenue:

For another handy link about points, suspensions and revocations, click here.

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Spring in the Missouri legislature always sees the introduction of bills designed to prevent drunk driving. In addition to the Drunk Driver Victims memorial signs discussed in an earlier post, here are a couple more:

Senator Wes Shoemyer’s Senate Bill 861, attempts to close what some consider a “loophole” in the DWI laws. Currently, some DWI-related convictions do not count toward “enhanced” punishment for persons accused of subsequent alcohol offenses, unless the defendant is represented by counsel or has waived the right to an attorney in writing.

This bill simply snips away the requirement that the defendant must have been “represented by or waived the right to an attorney in writing.”

This is one of those bills that tries to crackdown on DWI offenders, but in the end may backfire by permitting the courts to get sloppy about the constitutional right to an attorney. This would result in overturned convictions and would foul up repeat offender charges.

A written waiver of an attorney is a simple method to protect defendant’s rights (and the prosecutor’s conviction record). A written waiver in the file usually ends any controversy. By doing away with this requirement, Senate Bill 861 will create more problems than it solves.

* * *

Senator Tom Dempsey’s Senate Bill 1053 doesn’t beat around the bush. In addition to jail, fines and license suspensions (click here for a complete list), this bill tacks on an additional–and mandatory–$1,000 fine on a first offense; $2,500 on any later offense.

I guess it follows that since poor people cannot possibly pay such fines, only rich folks will be able to afford DWI’s anymore!

As a practical matter, the courts will be helpless to deal with such mandatory fines, except to sentence everyone to jail and put them on probation with orders to pay the fine in 30 - 90 days. Then when half of them can’t pay, just throw them in jail.

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We hear in the news nearly every week how the police have either misused a Taser on somebody or killed somebody with one. Read: Tasers: Safety measure or Electronic attitude adjustment?

There is a bill in the Missouri Senate which –at first glance–I wondered if it might address this problem. But it does not. Sen. Yvonne Wilson is sponsoring Senate Bill 813, which would make ownership, possession or discharge of a taser a felony.

This prohibition would not apply, however, to police and a handful of other persons in legal/security related professions.

For some reason, I don’t feel any better now.

And now this ironic note from our Straining at Gnats and Swallowing Camels Dept:

• In Missouri, you can carry a firearm openly. You can carry it concealed, if you get a permit. You can carry it at home or concealed in your car even without a permit.

• Now with a knife, you can own and carry one, but not concealed. You can’t get a permit.
  

• Finally–if this bill passes–you cannot even own a Taser, let alone use it, even to protect against an intruder in your own home..

Sigh

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Sen. Rob Mayer is sponsoring Missouri Senate Bills 1034 & 802, which contains provisions for regulation and recordkeeping about scrap metal.

Thieves beware, for the bill sets a new record for punishment WAY OUT OF PROPORTION to the crime.

As most people know, stealing is a crime.

Steal a small thing, it’s a misdemeanor.

Steal a BIG thing (worth at least $500), it’s a felony.

This bill, however, makes it felony to steal a wire. Or a pipe.

It won’t matter if it’s worth 3 cents. It’s a felony.

Can you imagine going to prison for up to four years for stealing a piece of wire or pipe.

It is bad policy to “get tough on crime” by declaring obviously unfair punishments for trivial offenses.

It’s pure deterence, and no justice, no balance.

It’s like kicking a kid out of school for drawing a picture of cowboys and Indians shooting at each other.

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Yesterday was my birthday. My wife got me the perfect present. A not-so-Welcome mat.

You can get them at Target. Here’s a shot of it:

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I noticed in the newspaper that the police department is running DWI checkpoints to catch drunk drivers here in Jefferson City at the end of February.

The deal is that the police get to stop your car and check you out to see if you are under the influence. Most of the time, stopping and examining citizens without ANY cause whatever is considered a blatant violation of the fourth amendment protection against search and seizure.

But that protection was permanently swept away by a U.S Supreme Court decision in 1990. The United States Supreme Court held that a state’s use of a highway sobriety checkpoint does not per se violate the Fourth Amendment to the United States Constitution. There are maybe half a dozen states that still consider such stops as unconsitutional, but Missouri is not one of them.

The police cannot, however, simply stop whomever they want, whenever they want. If they want to use a DWI roadblock, the police are required to create a detailed plan in advance.

They must have their plan in writing and have a supervising officer present throughout the time of the roadblock. They have to design it to catch the most offenders while creating minimum delays for everyone else and to do it in a safe manner.

The police sometimes get clever in setting up such roadblocks. A sign on the highway will say “Sobriety checkpoint ahead - be prepared to stop.” The police then setup the roadblock–not on the highway–but at the next exit.

The idea is that drunk drivers will “select” themselves by taking the exit to avoid the roadblock. Like checking into a roach motel. Too late, the driver realizes, he put his head in the noose.

Of course, once the police have a car stopped and the window is rolled down, the party is over in the time it takes to smell the driver’s breath.

Any driver arrested for a DWI or other charge needs to talk to an attorney as soon as possible. This goes double when the arrest stems from a roadblock situation. DWI prosecutions are always tricky. The legal & scientific requirements are complex. They are made even more complicated by checkpoint requirements.

Cops are human and they make their share of screw-ups. No defendant should plead guilty to a crime without knowing if the state actually has a legal case against them.

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Senate Bill 912, sponsored by Sen. Kevin Engler, would create the crime of murder of a criminal justice official in the first degree (that is, the deliberate killing of police, prosecutors, judges and jailers).

We may ask–since plain-vanilla murder in the 1st degree can already be punished by death–how can things be any harsher? A 1st degree murder trial has two phases:

• First the the jury decides on guilt or innocence. Then, if guilty,
• More evidence is presented and the jury decides between death and a life sentence.

Under the current murder law, the prosecutor must put on punishment phase evidence to prove that a killing was especially egregious, showing that it involves any of 17 different aggravating circumstances as listed under section 565.032.2, RSMo.

The murder of a criminal justice official would require an automatic death sentence unless a jury finds mitigating circumstances sufficient to justify a life sentence without parole.

If this is to be seen as a get-tough law, I think it backfires:

If a jury finds a defendant guilty of an ordinary 1st degree murder, the prosecutor–during the punishment phase–will then be allowed to present evidence to prove any of the 17 possible & applicable aggravating circumstances.

The defense then gets to put on all of its mitigating circumstances. Then the jury decides between life and death.

Contrast this with a defendant who is found guilty of 1st degree murder of a criminal justice official:

• The prosecutor doesn’t prove anything during the punishment phase. The death sentence is literally his to lose.

• What happens is that during the punishment phase the defense gets to put on all of its mitigating circumstances.

• The prosecutor can introduce evidence to refute the mitigating evidence, but much of the nasty, inflammatory stuff he could have used against the defendant to prove his aggravating circumstances may be kept out because it would no longer be relevant.

• Then the jury still has to decide between life and death.

I’m not a prosecutor anymore, but if I were, I would never handcuff myself by charging a defendant under this proposed law.

There is a legitimate concern with protecting criminal justice officials, but we might keep in mind that the killing of those same listed officials is already included in that current lineup of 17 aggravating circumstances. The only ones missing are probation and parole officers.

Perhaps if we simply add the words “probation and parole officer” to the current list it would extend that protection to them without opening this can of worms.

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