Jury Returns guilty verdict after only twenty minutes of deliberation

What are the facts of this case

What I know about this case comes from watching the video, plus 30 years of experience in Criminal Law and General Legal Practice.

The defendant in this case went to a ball game with his girlfriend. By the time they were on their way home, the defendant had consumed by his own admission 3 to 4 beers. Defendant was driving in an erratic and unsafe manner prior to being pulled over by police

The arresting officer could smell a strong odor of alcohol coming from the vehicle, possibly in large part due to the passengers intoxication. Defendant was asked to exit the car and perform standard field sobriety test to determine whether he was safe to continue driving. Defendant refused because of extreme cold and blustery wind conditions that might effect elements such as balance. Defendant was given one part of the test, the Horizontal Gaze Nystagmus Test which involves following the tip of a finger with the eyes without turning the head. According to the officer he failed this part of the test. Defendant requested to perform the other parts of the field sobriety test at the police station because he felt the cold and blustery wind conditions created an unfair environment for these other parts of the test such as the one leg stand, walk and turn stepping heal to toe.

Defendant agreed to take a chemical test of his BAC at the time of the stop but, later at the police station refused, stating that he didn't trust the test to be accurate

What Did Defense Counsel do wrong in his closing argument?

A closing argument is your final chance to with the case. It is your chance to bond with the jury. A defense lawyer needs to appear to be sharper than the DA with respect to what's at issue, in the eyes of the jury to win. The only way to do that is to define the issue as proof beyond a reasonable doubt. If a defense lawyer defines the issue as who's right and who's wrong, who did their job and who didn't he's sure to lose. The issue must be defined as why a failure to do a thorough investigation raises a reasonable doubt, not whether the officers failure to do a full investigation makes him a bad guy, or an irresponsible cop. Remember, two wrongs don't make a right

Point 1

From the video starting around _______ending around________ defense counsel states "I'm going to be brief because I think you've all been paying attention". Why is he going to be brief? Is this case not important?, Is his client not important? Does he think his client is not worth the time and effort? If the lawyer feels that way why should the jury acquit. Why tell the jury "I think you've all been paying attention". Is there any doubt that the jury has been paying attention? That remark is condescending and inappropriate. As a lawyer every word that you say counts.

Point 2

From the video starting around ending around __________defense counsel states "This is where you decide who's telling the truth, who to believe who not to believe". That remark is damaging to his clients cause. First they already know that they are there to decide the case, more importantly, the issue is not who is telling the truth, it's whether the evidence as a whole is sufficiently reliable to be believed beyond a reasonable doubt. By making that remark defense counsel just reduced the standard of proof from beyond a reasonable doubt to a preponderance of the evidence or a "he said she said" standard and contradicted the judges instructions at  3 minutes and 8 seconds of the video where the judge states: "You shall find the defendant not guilty of operating a motor vehicle under the influence of intoxicants unless you believe from the evidence and beyond a reasonable doubt all of the following:".  Counsel for defendant should have requested a standard criminal jury instruction in this case that they didn't get. Jurors in criminal trials are generally instructed by the judge that they are to treat the testimony of a police officer just like the testimony of any other witness. Fact-finders are told that they should not give police officer testimony greater or lesser weight than any other witness they will hear from at trial. Jurors are to accept that police are no more believable or less believable than anyone else. A better approach at that point would have been:" One question before us is whether the officer is telling the truth, the whole truth and nothing but the truth. . We know that at least some of the things that the officer testified to are true and are not contradicted by the defendant. The officer may believe the defendant was probably intoxicated, however the belief of the officer alone is insufficient basis to meet the legal standard of proof beyond a reasonable doubt. We submit that the question before you is whether the officer did a sufficiently thorough, disinterest, and scientific investigation into the defendants believed state of intoxication to back up and prove his hunch beyond a reasonable doubt in a court of law.

Point 3

At 7:34 of the video defense counsel states "We don't have video in this case, and in a lot of counties where I practice there is video, ... in bigger cities and counties departments find ift important to have video...and that would have made your job a whole lot easier." In New York we call that trying to sell someone the Brooklyn Bridge. First, defense counsel made an illegal argument here that could have been objected to by opposing counsel. As the judge instructed, counsel are entitled to make fair comment on the evidence. The only evidence you are to consider is the sworn testimony from the witness stand. Defense counsel's experience in other counties is completely irrelevant and is not evidence in the case, therefore it is not proper to attempt to bring it in through a closing argument. Second, as everyone knows, it is not necessary to have the crime on video tape to reach a verdict. Everyone has likely seen and watched hundreds of trials and verdicts either on the news or on court TV and they know there is no requirement that a crime be video taped. Third, defense counsel is implying to the jury that they don't have the judgment and insight to reach a verdict without seeing the crime on video tape. Third, being selected to be on a jury in a criminal case is a once in a lifetime opportunity. It is the chance for the average person to be the judge. By telling the jury that they have to acquit because they didn't see the crime on videotape is insulting and demeaning after the Judge just got through telling them that "you and you alone are the judges in this case", you are to base your decision solely on testimony that came from the witness stand.

Point 4

At about 10:04 of the video defense counsel states that defendant offered to take a blood test at a hospital at the point of stop but the officer refused. The prosecution claims in closing from the testimony of the officer that the defendant never expressed  a desire to take a Blood Test and that the officer of 16 years experience said he would have accommodated the defendant if he had requested a blood test instead of a breathalyzer test.. Furthermore at the police station he refused to submit to a breathalyzer test. Both a blood test and a breathalyzer test produce scientifically accurate results, although as between the two, there is less chance of error with the blood test. The breathalyzer tests is certainly more convenient to the police since it can be conducted at the police station by a certified operator of a breathalyzer machine and would be standard procedure in a run of the mill routine DWI stop. There should have been a detailed argument at this point in the difference between a blood test and a breath test, and why defendant subsequently refused to take a breath test while expressing a willingness to take a blood test. Since the officer was in a hurry to get on to other business and a breath test was standard procedure, it is quite possible that the officer lied about being willing to accommodate the defendant with a blood test. Defense counsel should have made a huge point about this in his closing argument. There is a standard criminal jury instruction that defense counsel should have requested that was never given which states " If you find that a witness intentionally lied about one thing you may disregard his entire testimony, but you are not required to do so". This was a key point where defense counsel should have asked the jury to disregard the officers entire testimony because he lied about being willing to accommodate defendant with a blood test instead of a breathalyzer test.

Point 5

At approximately 11:03 of the video defense counsel states "The police officer should have, and could have and had the opportunity to conduct a full on investigation and he did not do so....he chose, he made the affirmative decision to not do his job.....they have standard operating procedures that must be followed, and why he did not follow them in this case we will never know....therefore I have no doubt in my mind that you will find Mr. Joseph E Woods not guilty".

Defense counsel is on the right track here, however his statement is at best a conclusion that he would like the jury to draw concerning the officers investigation. The purpose of the closing argument is to argue. To argue why the officers investigation or arrest procedures was deficient, or was it?

It appears as though the officer conducted himself in a standard way. He stopped the vehicle for erratic operation, tried to make the defendant take standard field sobriety tests, but the defendant refused. He took the defendant to the station to conduct a standard scientifically reliable breathalyzer performed by an independant certified operator and the defendant refused? So in what way is the officer a bad guy, in what way did the officer affirmatively refuse to do his job?

A better way to approach this situation would have been: " A citizen being stopped by a police officer who is under suspicion of DWI has options. He is not required by law to comply with all of the police officers requests. For instance a citizen has an absolute right to refuse to perform a field sobriety test. A driver has an absolute right to refuse to take a breathalyzer test". The police officer bears the burden of proving his suspicion of DWI beyond a reasonable doubt in a court of law. Faced with the defendants choice of legal options what could the officer have done better to prove this case? When Joseph refused the breathalyzer at the station what are the officers options? Joseph expressed a willingness to take a whole blood test at a hospital where blood is drawn from the arm because he was concerned about the reliability of a breathalyzer. The officer could have complied with this request even though he had no legal obligation do so. The defendant at the stop told the officer he would perform the field sobriety test under more neutral conditions such as the station where it wasn't - 9 degrees and blustering winds. In light of the defendants refusal take the breathalyzer at the station, the officer could have obtained evidence of defendants alleged state of intoxication by complying with defendants request to take the field sobriety test at the station. In fact he could have video taped the defendant at the station as he went through the standard tests, which include standing on one leg for 30 seconds, walking ten steps heal to tow, touching the fingertip to the nose, reciting the alphabet, and the horizontal gaze nystagmus test." Why didn't he do this? I would submit to you that the officer doesn't want you to know objectively how sober the defendant actually appeared to be.

Point 6

Defendant is charge with being impaired to the extent that he could not operate a motor vehicle safely. In fact defendant was operating the car in an unsafe manner to the point where he had a near collision with a police vehicle. That in and of itself is strong evidence of the ultimate conclusion, that defendants driving ability was impaired by alcohol.

Why didn't defense counsel offer some alternative explanation for defendants driving? For example defendants girlfriend was highly intoxicated and tried to grab for his crotch or such other explanation such as girlfriend start yelling or saying look over there, etc. Make the argument that defendants erratic driving was caused by the girlfriends state of intoxication, not the defendants.