Criminal Defense Attorneys Are Not All That Bad When Prosecutorial Misconduct Exposed.
Ever since I was a young man and decided to be a lawyer those who knew, or asked this standard “occupation” query of any young person, there were always 2 more questions to follow: 1) What kind of lawyer do you want to be? And when the answer i gave was “criminal defense,” the second question always followed; “but how can you defend someone who is guilty?” The answer from me was always very simple and quick to leave my lips: “everyone is innocent until proven guilty.” Until a jury of peers renders a guilty verdict, a person is, in fact innocent. The defendant is quiet simply Not Guilty. Not only that, but many, and all to often those charged with a crime are in fact innocent, yet found guilty due to the “guilt” of others in the system. they are a form of collateral damage. It is the guilt of those who prosecute, that create this damage. By virtue of their failure to adhere to ethic’s, their failure to investigate, and sometimes their failure to simply present ALL facts; good and bad for their case. Not every prosecutor is guilty of this, in fact the vast majority are very ethical, but even 1 in our system is too many.
Recently a story was run in USA TODAY (http://www.usatoday.com/news/washington/judicial/2010-09-22-federal-prosecutors-reform_N.htm?POE=click-refer). The story documents the failures and ethical lapses above. Specifically, in the headline case a man was convicted of a crime he did not commit because the prosecutors handling the case did not let the jury hear all the facts. The prosecutors intentionally covered up evidence that discredited many of the defendant’s accusers; they failed to revealed that their eye witness struggled to identify the defendant’s photograph; and they hid the fact that promised were made to other witness in exchange for their cooperation. These types of facts are required to be disclosed all defendants in every case. These issues are called “exculpatory” evidence, meaning evidence that tends to disprove the prosecutors case. While the lawyers for the defense do not need to be spoon fed the information, the fact that it is exits does need to be disclosed. It is these ethical lapses that get in the way of the system working properly. It is these prosecutors who are blinded by the goal of winning who seek only a conviction, rather than the truth and justice, where the problem lies. it is started with the attitude of “because i can” that begins this harmful process. Attorneys are responsible for adhering to a code of ethical conduct and the failures of these sorts are the most egregious.
As explained in the story, these abuses have put innocent people in prison, set guilty people free and cost taxpayers millions of dollars in legal fees and sanctions. While Judges around the nation have warned for decades that misconduct by prosecutors threatens the Constitution’s promise of a fair trial, this behavior still exits despite the Congressionally enacted law aimed at ending such abuses. From the average citizen’s tax paying perspective, the prosecutors are the lawyers who are supposed to be working for the citizen’s and in so doing also supposed to uphold the law, ethics, and the US Constitution. In situations like this each and every one of those requirements was disregarded, broken, and violated beyond belief. In this instance, the prosecutor were criminal because their actions stole a US citizen’s most precious right: freedom.
These types of misguided attempts are not rare, as others in the justice system routinely cut corners and use the explanation and justification of their actions with stating that “it doesn’t really matter because they are guilty.” Admittedly, some shortcuts may not affect the end result but system cannot be short cut that way. When there are rules they are exist for the protection of not only the accused, but they protect the citizen’s who look to and rely on the system. In the case above, far to many resources were expended upon making a man look guilty when he was in fact not. They wasted resources to hide the evidence and facts that contradict their interest and seek to convict a person who in fact was NOT GUILTY. While all this was being manufactured, the true culprit escaped a charge. Rather than follow the rules and investigate, prosecute, and let the chips fall where they may, these prosecutors looked only for a “W” rather than simply presenting the facts.
This attitude from these types of prosecutors is infectious and eats away at the principals of the system and ultimately leads by bad example. Consider the recent crime lab problems that are beginning to surface in the news and headlines that exposed such behavior this past summer that were discussed in this forum . Washington DC, Alaska, and yes here in Washington state where the crime lab was found to harbor these very troubling short cuts all under the defense of “well it is so insignificant that it does not matter.”
When these attitudes surface, when these types of prosecutions are engineered, when these types of prosecutors are exposed for what they are, others are likewise exposed because the problem is not isolated. Consider the links above and these crime labs that create otherwise non-existent evidence were exposed for what they are: actors looking for a win.
So I look back on the answer I gave as a young man and remember my answer and add to it: “everyone is presumed innocent and is entitled to a FAIR trial. A trial that is not engineered to circumvent the very basic rights our system of justice is founded upon, a fair trial because the end result is not a forgone conclusion. While these may be simplistic, they are after all basic rights of everyone. In this day and age where some prosecutors, law enforcement, and crime lab personnel are all too quick to take a short cut, exposing these shortcuts and providing my clients with the best defense possible means challenging their evidence, presenting the best evidence available, and the findings things that many say does not matter. In the end, what is said to not matter, can mean Not Guilty.
Jonathan Rands limits his criminal defense practice to those charged with the crime of DUI, or other alcohol related charges. These charges almost always involve scientific principles as a result of breath testing. These charges also rely upon “sobriety tests” that are also said to grounded in science but only a DUI defense attorney highly trained in both these areas who possesses the skill and creativity to expose the limitations of this “evidence” can provide a successful defense to those charged with a DUI. Jonathan Rands is an experienced, dedicated, and a tenacious DUI lawyer with proven DUI defense success. He has been apart of every major breath test challenge in the various courts where he practices in the last 8 years. If you or someone you know is facing a DUI or alcohol related arrest, contact Jonathan Rands | http://www.jrandslaw.com | Email: jrands@jonathanrands.com| Phn. 360.306.8136| Jonathan Rands is Focused On Your DUI Defense. | Serving Whatcom, Skagit, Island, and San Juan Counties. | Jonathan Rands regularly discusses DUI issues with (AM 790 ) KGMI’s Tracy Ellis every other Sunday on the Legal Docket at http://www.kgmi.com/pages/7015350.php
Washington State Supreme Court Still Focused On Citizen’s Privacy.
Although July 4th is a nationally recognized holiday celebrating the freedom and civil liberties of those within the land, July 1, 2010, the State Supreme court celebrated early. In the recently issued case of, State v. Afana, the State Supreme Court followed the US Supreme Court reasoning in Gant (police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search) and then added another layer of protection to driver’s in the state of Washington. This protection is state-wide. While this was a non-DUI case, it has important ramifications to those seized and arrested for a Washington DUI because a search of the vehicle when the person is in the back of a police cruiser can lead to the discovery of other items.
These items may be as trivial as a “switchblade” knife, a small amount of marijuana residue in a “smoking device,” or as serious as a firearm that the person has no license for. Regardless of what our belief systems about these items are, the law is now settled: A discovery of items post-arrest when the person is handcuffed and locked away in the police cruiser is unlawful. Rather than find an excuse to ignore precedent, the Court clearly recognized the dangers associated with ignoring the historical protection given to citizens as evidenced by the following:
“In effect, the State asks us to make an exception to the exclusionary rule for illegally obtained evidence by analogy to cases in which the evidence was obtained legally. This we will not do. We reject the State’s argument that the “good faith” exception. . . and hold that it is incompatible with the nearly categorical exclusionary rule under article I, section 7. Article I, section 7 of our state constitution “clearly recognizes an individual’s right to privacy with no express limitations.” Unlike the Federal protection under the 4th amendment the court focused its attention to the more protective state Constitution, article I, section 7 emphasizes “protecting personal rights rather than on curbing governmental actions.” This understanding of that provision of our state constitution has led us to conclude that the “right of privacy shall not be diminished by the judicial gloss of a selectively applied exclusionary remedy.” Thus, while our state’s exclusionary rule also aims to deter unlawful police action, its paramount concern is protecting an individual’s right of privacy. Therefore, if a police officer has disturbed a person’s “private affairs,” we do not ask whether the officer’s belief that this disturbance was justified was objectively reasonable, but simply whether the officer had the requisite “authority of law.” If not, any evidence seized unlawfully will be suppressed. With very few exceptions, whenever the right of privacy is violated, the remedy follows automatically.”
What this means is that the legality of the seizure or arrest is not the issue, rather the issue is whether the officer had the authority to search the vehicle after arrest once the person is safely removed and handcuffed in the rear of a police vehicle. All too often, officers engage in a fishing expedition of the arrested person’s vehicle in hopes of finding incriminating evidence so that additional charges can be stacked on top of the primary offense of DUI. In almost every arrest, where the person was previously in a vehicle, police officers open personal items simply because it is subsequent to an arrest. They often have no indications that they may find additional items, yet searched simply because they could. Such searches are no longer lawful. Driver’s and citizens alike no longer have to be embarrassed, or forced to plead guilty to charges that would otherwise be reduced because of something else found in their vehicle. Sometimes the items are known to the driver, other times they are not. Consider the driver who is arrested for DUI and his/her passenger has marijuana on them and once stopped sees fit to stash it in the console, under the seat, or in the glove compartment. Or consider a scenario where the newly graduated High Schooler who is the designated driver giving his under-age friends who have been drinking a safe way home. The friends have bottles of alcohol with them and hide them in the car when the officer is not looking. One thing inevitably leads to another and the traditional scenario plays out where the driver now faces new or additional charges because the car was searched-his/her privacy was violated. It may seem like this is a farfetched defense lawyer hypothetical, but in reality, the hypothetical is ALWAYS inspired by real life and true scenarios that are often times much worse.
As a result of this ruling, the person facing a Washington DUI, will most likely never again see additional charges of Possession of a marijuana pipe, or possession of a “springblade” knife, possession of a marijuana less than 40 grams. This is important because the defense can be focused on the primary charge: DUI.
Since a Washington DUI is a very serious offense, and an accused driver needs a dedicated and knowledgeable DUI lawyer to be focused and challenge the allegations that use aging and obsolete breath testing devices, or improperly administered sobriety tests that are nothing more than exercises equivalent to patting the head and rubbing the tummy couched in scientific language. Such are the tools used by the State agents to ferret out and attempt to prove DUI beyond a reasonable doubt.
As a result, never having to deal with other unlawfully obtained evidence pursuant an unlawful search that places a driver in a poor light, means that a person will remain to be truly “presumed innocent,” unless/until the charges are proven beyond a reasonable doubt, and those charged with the honorable and monumental task of providing a defense will have a more level playing field.
DUI is not an allegation to be dealt with lightly and this is exactly why an experienced, dedicated, and tenacious DUI lawyer with proven DUI defense success is mandatory. If you or someone you know is facing a DUI or other alcohol related arrest or charge, Jonathan Rands can be reached at http://www.jrandslaw.com | Email: jrands@jonathanrands.com| Phn. 360.306.8136| Jonathan Rands is Focused On Your DUI Defense. | Serving Whatcom, Skagit, Island, and San Juan Counties.
DUI Or ADD/ADHD? A Case Of Wrongful Arrest & Prosecution.
You may have seen or heard about Washington Roadside DUI “Sobriety Tests” and that officers use them not just here, but nationwide to justify their arrests. In Washington the law allows use of the tests as “evidence” to help prosecute drivers for DUI. In Washington state, the prosecuting attorneys does not need a breath test to move forward with DUI prosecution if the driver performed these roadside tasks. However, these tests do not account for the disability of ADD/ADHD that is recognized by the American Disability Act and these tests will likely be the basis of a wrongful DUI conviction.
The roadside tests are called Standardized Field Sobriety Tests, they are essentially divided attention (psychophysical) “field sobriety tests” and observations of the defendant based upon scientific studies commissioned by the National Highway Traffic Safety Administration (NHTSA). While the researchers and authors did take note of some, but not all, physical disabilities impacting the validity of each test, and have accommodated several of these disabilities with either special instruction,or elimination of certain tests because no accommodation could be made the disability of ADD/ADHD, it has never been addressed by NHTSA or the National Sobriety Testing Resource Center.
A common condition which is often misunderstood due to lack of training is attention deficit disorder (ADD) or attention deficit hyperactivity disorder (ADHD) which can be confused with the common signs and symptoms of intoxication. References to a driver being confused, unable to follow direction and showing abnormal behavior can be a sign of ADD/ADHD. Adults with ADD/ADHD struggle daily with self regulation: regulating their attention, regulating their impulses in talking and action, and regulating their emotions. However, without special training, time and attention, will the police officer who pulls over a driver with adult ADD/ADHD give him the benefit of the doubt?; Will the police officer be able to spot ADD/ADHD and differentiate it from other signs and symptoms of alcohol consumption?; Unlikely. Consequently, without any specialized training, or recognition of ADD/ADHD, within the SFST training curriculum, the symptoms of ADD/ADHD will be misconstrued; not only misconstrued by the officer, but they will be reported as evidence of intoxication/impairment to the jury by the officer.
Adults with ADD/ADHD have problems in six major areas of executive functioning: Procrastination; difficulty getting started on projects; Excessive disorganization and messiness; Inability to prioritize tasks; Underestimating the time needed to finish a task; Inability to screen out distractions; “Zoning out” when others are talking; Randomly skipping from topic to topic in conversation; Reading words over and over to grasp the meaning; Difficulty sustaining effort over long periods of time; Starting multiple tasks, but never completing any of them; Missing deadlines; Trouble going to sleep at night and staying alert during the day; Easily bored; Low tolerance for frustration and stress; Unstable, unpredictable moods; Quick temper; Constant worrying; Trouble remembering things, even for a short time; Does not recall conversations, things others said; Forgetting appointments; Constantly losing or misplacing things; Inability to delay gratification; Speaking without thinking; Acting impulsively (e.g., impulsive spending, sudden change of plans) without regard to the consequences; and Jumping to conclusions.
As a result, ADD/ADHD can be a big stumbling block and in terms of roadside tests and potential evidence, lethal to your defense. The symptoms of disorganization and inattention, in particular, pose problems for those being tested using the standard NHTSA scoring for field testing where the idea and criteria for failure is an inability to divide attention under stressful situations.
As a result of these problems, the results of the tests which challenge a person to divide their attention under stressful situations will be “failed” and used to prove sobriety; when in fact the driver who suffers from ADD all of the symptoms the tests are designed to look expose while being administered in a stressful and distracting environment.
A colleague of mine, Scott Robbins, recently shared some research some of his research with and what follows is a very basic outline of the issue and if you suffer from ADD/ADHD and have been arrested for DUI after these tests, the evidence supporting the arrest is likely inadmissible but a successful challenge requires DUI and SFST expertise.
In its most basic form, drivers who undergo roadside tests are being discriminated against and such discrimination can lead to wrongful DUI convictions. The Americans with Disabilities Act of 1990 provides clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities. 42 U.S.C. § 12101 (b). On September 25, 2008, President Bush signed the Americans with Disabilities Act (ADA) Amendments of 2008. The amendments to the ADA expand the definition of disability to include an impairment that limits one of major life activities. Specifically, among the list of major life activities are “concentrating, thinking, [and] communicating.” 42 U.S.C. § 12102(2)(A). As a result the Tests should NEVER be provided to a jury when the driver suffers from this condition because the testing criteria for divided attention field sobriety tests cannot accommodate this disability.
While ADD/ADHD is a very specific and unique example of how these tests work against a driver, there are numerous other flaws in the design and interpretation of these tests and this is why you should never do these tests. The tests are voluntary in the State of Washington and there is no penalty for not doing them. However, many citizens do not know this and find themselves placed in precarious and uncomfortable positions on the side of the road and then quickly under arrest for DUI.
If you are in such a situation you need an experienced DUI lawyer who has training and experience in the area of sobriety testing in order to expose the flaws and limitations. Jonathan Rands, is trained and qualified to administer these tests and will ensure that they are challenged and exposed to a Judge and Jury as being unreliable. Since the tests are standardized, they MUST be administered and interpreted in a very specific and precise manner. Regardless of where you were arrested: Oak Harbor-Island County, Mount Vernon-Skagit County, or Bellingham-Whatcom County, Jonathan will challenge these tests in your defense and in so doing provide an expert witness who is an instructor of these tests . On Call now for a free consultation.
If you or someone you know is facing a DUI or other alcohol related arrest or charge, Jonathan Rands can be reached at http://www.jrandslaw.com | jrands@jonathanrands.com | 360.306.8136.
