Sometimes you WIN, Sometimes you LOSE
By: Tim Dees
Police officers seldom look forward to appearing in court. Detractors claim this is because the officer’s misconduct, untruthfulness and bias will be revealed for all to see. This is true for some, but for most others, it’s just the dread of waiting for hours on a bench outside the courtroom, eventually being called in and having your personal character and professional integrity attacked by defense counsel and/or the judge. Prosecutors, especially those in relatively low-level cases like DUI and domestic violence, tend to be overworked and under-experienced, and aren’t much help to the officer.
Now and again, the cops have their moment. Lawyers representing the defendant sometimes defeat themselves by using their own wording and methodology to win the case for the prosecutor. I was testifying in a DUI case where the traffic stop had been made on a street that was notorious for having many drinking establishments in one location. The attorney was trying to get me to say I stopped every car I saw on that street and lacked reasonable suspicion for the stop. He asked me the same question six different ways, and was getting frustrated that I wouldn’t give him the answer he wanted. He finally got down to the bare essentials: “Officer Dees, isn’t it true that the only reason you patrol up and down that street is because of all the bars there?”
I replied, “Well, counselor, when you go duck hunting, you have to go where the ducks are. They won’t line up on your front porch and wait to be shot.”
The same attorney, who was something of a legal K-Mart for drunk drivers, often resorted to what we called the “whites of the eyes” defense. He would try to schedule multiple clients for trial on the same docket, and wait to see which officers showed up to testify. He would try to get continuances for the ones that appeared, and insist on going to trial immediately if the officer wasn’t there. As many of his clients had hired him over the phone, he hadn’t met some of them, and didn’t even know what they looked like. He also occasionally pretended he didn’t know what they looked like. Outside the courtroom one day, he asked one of my colleagues if he saw the man the officer had arrested in the hallway. The defendant was seated about six feet away, but the officer said he didn’t see him.
The case went to trial. When the prosecutor asked the officer if the person he had stopped was in the courtroom, the officer identified the defendant sitting next to defense counsel. The defense attorney then demanded to take the officer on voir dire (literally “to speak the truth”) to determine the officer’s competence to make this identification.
“Officer, didn’t I ask you before court if you saw the defendant in the hallway?”
“Yes, you did.”
“And didn’t you tell me he wasn’t there, even though he was seated a few feet away?”
“Yes, I did.”
So, officer, why is it you couldn’t find him in the hallway when he was mixed in with everyone else, but you can identify him when he’s seated at the defense table?”
“Out in the hallway. I wasn’t under oath.”