This week I had a jury trial in the City of Dallas Municipal Court. Not terribly unusual. Usually. This one's different. And not because of the allegation. Actually, the charge in this case, by most standards, would be considered quite mundane. A speeding case. In a school zone, mind you, but still "just" a traffic offense.
As often happens, my client faced a decision. Accept a plea bargain offer from the state, or go to trial. As are most people who never go to court, she was quite apprehensive about going to trial. "What happens if they convict me?" "How much will the fine be?" All of the expected questions were asked.
"I couldn't see the sign. The pole was bent, and the sign was leaning against a tree," she tells me. Aha! Something to work with! At least, potentially. But she hadn't taken any pictures. I look at her case file, and realize that she was cited over nine months ago. Not a particularly long time, by City of Dallas court standards. "The sign's still down to this day," she says. "but I don't know that I want to spend the day in trial. How long will it take?"
I tell her I need to speak with the prosecutor, who says she'll "look into it," and ask the officer if, in fact, the sign was down. After all, that's a defense to prosecution. I mean, if the sign's down, how can anyone be expected to know they're in a school zone, right? The law is that you're entitled to "appropriate" signs, informing you of what it is you're supposed to be doing. Otherwise, you don't have proper notice, and you can't be held legally responsible.
The prosecutor returns. "The officer says the sign's good. We're ready for trial." Hmmm. A factual dispute. That's a lawyer's way of saying that somebody's lying. But who? I wasn't there, and don't know the area. Arguably, both have a motive to lie. Undoubtedly, one of them is.
It's now 10:30. A docket that began at 8:30, with over 60 defendants, has now dwindled to just one. This one. Everything else has either plead, been reset, or been dismissed. I ask the judge if the prosecutor and I can approach the bench, as the bailiff heads down the hall to retrieve the jury panel.
"Your honor, I would respectfully request a continuance," I tell the judge. Continuance. A lawyer's way of asking the judge to reset a case for another day. "Apparently, there's a factual dispute as to the existence of the sign in this case, giving notice to the defendant that she was in a school zone. I'd like to give the defendant an opportunity to take pictures of the location." After objection by the state, the judge makes his ruling. "Motion denied." That's a judge's way of saying, "We're going to trial right now, sucka!"
I'm used to this. Anyone who practices trial law, for any length of time, gets used to having motions granted, denied, or "held under advisement" so that the judge can think about it, or research the law, before making a decision. So I revise my strategy. "In that case, judge, I would respectfully request an hour and a half for lunch, so that my client can have an opportunity to take pictures during the break." No problem, I'm told.
"May the officer be released until after lunch?" asks the prosecutor. The judge grants her request, knowing that there's no way we'll get to his testimony until then, since we haven't yet impaneled the jury. It's now around 10:45.
The bailiff brings in the potential jurors. Each side, prosecution and defense, has an opportunity to question the panel, after which six end up on the actual jury. Anyway, a jury is seated, and the judge dismisses everyone for lunch. It's now 12:30. "Be back at 2:00," says the judge. The jurors leave.
I turn to my client, who says that she needs to go home, pick up her digital camera, drive to the where the sign is (or isn't), and run by the drugstore to print them. And then make it back to court. "I'll be cutting it close, but I think I can make it," she tells me.
Though I know my client's rushing around, I, on the other hand, enjoy a leisurely lunch. Of course, wondering the whole time what her pictures will show. I eat and read the paper at a cafe next to the courthouse, and head back to resume the trial.
It's now 1:45. With nothing left to read (or eat), I go back into the courtroom. As I walk in, I see my client sitting alone, on the front row, with her back to me.
"Do you have the pictures?" I ask. "Is the sign still gone?" "Yes," she says. "And you're not going to believe this." She shows me the pictures which, in this case, are, without a doubt, worth AT LEAST a thousand words. Maybe even a hundred thousand. She's taken several. But two catch my eye. The first shows a city work crew, standing on the street next to a sidewalk next to a hole in the sidewalk where a sign clearly used to be. The next picture, taken shortly afterward, is of the same crew, new sign in hand, as they attempt to put it in the hole. Like the soldiers raising the flag at Iwo Jima in the famous sculpture everybody's seen. Wow. By the way, here they are:
Two prosecutors enter the courtroom. As we await the judge's return, one notices I have pictures in my hand. "What do you have there?" I'm asked, which revs up my internal monologue. I have two choices. I can surprise the courtroom with a Perry Mason moment, revealing my sterling photographic evidence after allowing the officer to testify under oath that the sign was, in fact there. Or, I can show the prosecutor what I have, and hope she chooses to move for a dismissal and end the trial. I opt for the latter. As thrilling as the former might be, it would also be an embarrassment to the prosecution. And in my view, they were duped by their officer. In other words, if their witness says the sign is good, their job is to prosecute the case. It's not their fault if he's untruthful.
But I decide to have a little fun. "What would you say if I had pictures that my client took during the lunch hour, that show a city crew erecting a new sign at the very location at issue in this trial?" "I'd say that's a pretty wild hypothetical?" she replies. And she's right. I can hardly believe it myself. Even though it happens to be true. I show her the pictures. She reviews them slowly, first one and then the other. Then she turns to me and says what any prosecutor who does the right thing will say at this point. "When the judge returns, I'll be moving for an acquittal." She pauses, then adds wryly, "Hopefully, before the jury returns."
Since the trial, I've learned a couple of very interesting pieces of information. In telling this story to a judge in another court, he interrupted me mid-sentence to ask, "Was it Officer "X?" A perceptible chill crept down my spine. Of all the policemen on the force, this judge had correctly identified the officer in my case. Of course, I asked the obvious question. "How'd you know?" "Had a very similar problem with him in my court."
Also, I contacted the city department that handles the placement of signs for the city. Long story short, I had someone in their department pull the service report for that location. "Would you mind telling me what lead to this sign being replaced?" The sign guy replies, "Well, the crew was working on another sign in the area, when a motorcycle cop rode up and asked the crew to replace that sign." Another revelation. Another spine chill. The officer in this case is a motorcycle cop.
So here's what I think. Feel free to email me if you think I'm wrong. In my view, there's only one scenario that makes any sense:
The officer tells the prosecutor that the sign is good, who then tells me. He likely expects that the case won't go to trial. That the defendant will enter into a plea bargain agreement. When that doesn't happen, he's stuck with his story. He's already told the prosecutor that the sign is good. She believes him and decides to go forward with the trial. Also, she likely, though unwittingly, tells him that my client intended to take pictures during lunch. Remember, she was present when I asked the judge to reset the case for that purpose.
So the officer leaves court around 10:45 and heads for where the sign is. Or, as we all know by now, isn't. Knowing that my client will soon return with photographic evidence of that fact, he locates a nearby city sign service crew and directs them to replace the sign, in hopes that they'll be able to get it done before my client has a chance to take pictures. Only they don't. And my client gets even better pictures. Pictures that, coupled with the service report, show that the officer was lying about the sign from the very beginning, and, in the middle of the trial, tried to cover it up.
Posts
