It's Been a Rough Week

This is obviously the only post this week. The Memorial Day holiday disrupted the schedule. Even in a shortened week though much has happened. This is the kind of week where I am forced to take a step back and wonder how much this job affects me. It also makes me wonder about the future of the human race.

The first event was by far the most emotional. I have never been a part of anything like it and hope that I will never have to again. It was the sentencing of a 24 year old woman after her guilty plea for killing a seven month old child while she drove her car drunk and high on marijuana and cocaine. Even now the sentencing is too difficult to recount, with the child's mother's statement and the tears that flowed freely from the dozens of people in the courtroom. To me, sentencing in a death case rarely brings closure. It's not just two lives that are affected. All we have to do is look at every person in that courtroom to see this case will affect everyone forever, including me. I'm not sure I'll ever be able to talk about this case, but know I will never forget it.

The next event is about an ongoing trial, where a 17 year old is accused of gunning down another teenager at a crowded park in the middle of the day. I am not prosecuting this case, but I did watch some of it because the lawyers on both sides are the best at their jobs. The defendant waived a jury trial and the trial proceeded before a judge only. It disgusted me to watch the defendant laugh, make faces, and flash signs to one of his friends in the audience as the testimony poured forth about a young man gunned down for no reason. Guilty or innocent, the kid had no respect for the proceedings or the fact he is accused of murder.

Otherwise it was a normal week, witnesses making appointments and not appearing, 20 year old defendants going to jail for crime sprees and leaving behind their 5 kids, and the weather is getting nicer which means crime usually increases.

It's been a tough, emotional week. Not all are like this, but the frequency of them increases as you deal with more serious cases in advancing your career.

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Why .08?

We discussed how to get to a .08 and be legally intoxicated earlier this week. Why is the standard .08% across the United States? Is it the choice of the states or a federal standard?

.08% was selected as the magic number because scientific tests determined that at this level a person's coordination is noticeably affected. Driving is considered a divided attention task, which means that a driver has many things to focus on at the same time - the road, other cars, their speed, street signs, pedestrians, bicyclists, the radio, etc. Alcohol delays a person's reaction time and if you are reading a street sign and look back to see the person in front of you is stopping, alcohol in your system can delay the signal from your brain to your leg to slam on the brakes.

In the late 1990s, the states were split in how they applied DWI laws. Some states had a .10% level, some a .08% level, and two states had no laws concerning the minimum level for intoxication. There was a strong national push to make uniform standards at that time and the federal government then dangled a carrot for the states. States that lowered their BAC limit to .08% would be eligible for a pool of money. The result, we have a .08% limit nationwide now. (You can check out more facts surrounding this from the GAO report here).

Will the limit get lower than .08%? Across the globe, the limits vary from zero tolerance to .10% (thank you Swaziland). As long as there are DWI related deaths there will always be pressure to lower the BAC limit. Depending on the person and conditions such as an empty stomach, even one drink can impair a person. Groups looking to prevent drunk driving will point to the lower fatalities that have resulted since the legal limit was lowered, and enforcement and penalties increased.

I've already heard from bar and restaurant owning friends who said they will close up shop if the BAC drops to .05%. At that level, one drink could cause a person to be over the limit. It appears there will be a fight if the level is to drop. But if the federal government offers another financial incentive for every state to lower the limit, then the fight might just be a minor skirmish in this cash-strapped economy.

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How to Blow a .08

The National Traffic Safety Board announced last week that it is recommending lower standards for drunk driving in all 50 states and requesting to move the threshold from .08% to .05%.

We've all seen the commercials and the billboards - .08 Don't Blow It. What does that mean though?

BAC is the Blood alcohol content of a person's blood, expressed in a percentage. If a person has a BAC of .10, then one-tenth of one percent of a person's blood, by volume, is alcohol. Obviously, the higher the number the higher the percentage of alcohol volume in a person's blood.

I'll post on the reasons behind the current law and the motives to change it later this week, but today I wanted to give you a glimpse into how BAC is calculated based on forensic toxicology.

Every alcoholic drink increases a person's blood alcohol. A drink is a regular size beer, shot, or glass of wine. The amount it increases blood alcohol depends on a number of factors like gender, body weight, food consumed, metabolic rate, and frequency of drinking. We'll look at a 180 pound man who is drinking normally and has not eaten.

I'm certain that I'll get some messages from people explaining how wrong the science behind all this, but so be it. Generally, one drink will increase a person's BAC .02. Click here to see a chart.

How many drinks to get to a .08?

1 Hour:

.065

Four drinks in an hour will get a person to .08. But the moment you start hitting the bottle, your body begins processing and eliminating the alcohol from the blood. After this point, we have to start factoring in how much alcohol is eliminated in an hour. Generally, around .015, or .015% is eliminated an hour. Basically, one drink an hour is eliminated from your body.

A person is under the current legal limit.

2 Hours:

.07

You were at the .08 from the four drinks the first hour. But the body is still getting rid of the booze. Add in another .02 for the extra drink, but your body has gotten rid of a drink and a half at this point (.015 per hour or .3 for two hours).

At 5 drinks, a person is under the legal limit, but toeing the line.

.09

6 drinks takes the total to .09, above the legal limit.

3 Hours:

.095

Another beer for 7 total (.02) and another elimination (.015).

6 beers in 3 hours? .075

4 Hours:

.10

Another .02 added and another .015 subtracted.

7 Beers in four hours? .08

These are just rough calculations to show you how much a person needs to drink to get to the current legal limit. Remember a person can still be intoxicated at any number if the alcohol has impaired them enough that they shouldn't be driving a car.

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The Emotional Courtroom

The defendant had just turned 16. It's a milestone in every person's life - driver's license, proms, SATs. In the New York criminal world, it means graduation. A graduation from family court to adult court. The change from family court where the main goal is to address the needs of the juvenile to adult court where the main goal is deterrence of crime is often jarring.

And most kids just don't get the difference until it's too late.

The defendant had not appeared for the previous court date, but due to her age the judge agreed to allow her another chance to appear a month later. The date rolled around and again the defendant does not show. The judge issued the warrant, meaning the police would actively hunt for her.

She did show up that day, hours late and with her mother. The defendant claimed she did not really understand how serious the charges were. The judge had heard enough excuses in this case and probably her other cases and the situation warranted an increase in bail. In most of these teenage defendant cases, the parents take center stage when anything bad is about to happen to their children.

This mom made no exception. She arrived in jeans and a tight, teal tee shirt, with eye shadow to match. She stood in the front row as the judge increased bail, the tears dripping down her face and soaking her shirt. She made no efforts to stop the flow. She begged the judge not to take her baby away, because her other baby was already in jail. She was homeless right now and needed her daughter to sleep with at night.

The judge allowed mom to say whatever she needed, and then, calmly and rationally, explained why the bail was increasing. She kept emotion out of her decision and even left open the possibility of releasing the defendant if mom was able to pull her life together.

It's a difficult world and some lessons are learned the hard way.

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The Uncontrollable Witness

Let's call this Charles Ramsey week in America.

We've all watched the unfolding events in Cleveland this week with a mix of disgust and awe. The disgust is for Ariel Castro and his twisted actions. The awe is in the men who helped to free the girls. Many have written about one of the heroes of the drama, Charles Ramsey. As a prosecutor, I could not help but envision Ramsey on the witness stand in this case.

To analyze Ramsey as a witness, I have to tell you about my general rules for witnesses and preparation. The first time I meet with a witness, I let them know the outline of events in a criminal case in addition to discussing the crime. We don't go over the specifics of trial testimony because it is too early and the events are too fresh. I don't want courtroom testimony to come off scripted because it's been rehearsed so many times. I cannot tell a witness whether to speak to anyone or not, but I do tell them they have the right not to speak if they wish. I remind witnesses of this for two reasons: 1) the media, and 2) defendants.

It is never a good idea for a witness to give media interviews. The interviews are taped and are now prior statements where even the slightest misstatement may come back to haunt them at trial. The more interviews, the more possible inconsistencies. Plus, a person's hidden past might emerge once the media begins digging.

A witness does not need to broadcast their involvement to their neighborhood either and begin to feel any pressure associated with testifying. Defendants, their family, their friends, and defense investigators will try to speak with a witness once the secret is out and a witness does not need this kind of attention.

As we get closer to trial, I sit down with a witness for trial prep. This consists of explaining how the courtroom is set up and the trial procedure. I then go over the general rules of testifying - only answer the question being asked, do not get combative, tell the truth, say "I don't know" if you don't know, say "I don't recall" if you don't remember. There are others and every trial is different, but this advice never changes.

Ramsey is fantastic. He does not shade the truth and does not try to hide who he is. He is the type of witness every attorney loves and fears. Put him on the stand and let the jury see how direct and credible he is. The only problem is he will be absolutely uncontrollable on the witness stand. He has already violated just about every rule by speaking to every media outlet. On the stand, he would expound and elaborate every question. A yes or no question would not necessarily get a yes or no response. He would be funny, combative, and sympathetic at the same time.

We attorneys crave control and he'd be everything an attorney is afraid of at trial, and the jury would love him for it. Sometimes rules need to get broken, though.

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Quarterly Stats - April 2013

The numbers went down overall this quarter because I was transferred to a new bureau that focuses on bigger investigations as opposed to single files. One of the biggest investigations I've ever worked on wrapped up last week. It will be fun to discuss - murder, robberies, juveniles, cell phone records, DNA, cell phone tower records and the coordination of about twenty different law enforcement personnel. The wrap-up means the beginning is over, but a trial is coming down the road.

On to the stats for the first quarter of 2013:

Total cases handled: 53 files - Higher than last. Not sure whether that is good or bad.

Number of pleas taken: 21

Number of cases closed after arrest but before indictment: 5

Main reason why: Insufficient evidence

Number of cases where guns were used: 30 

 

Type of gun in every one of those cases: Handgun

Saddest case: 4 girls jump out of a car and beat and rob a female who was just walking down the street, stealing her shoes and cell phones. The girls ages? 14 and 15.

Youngest defendant: 14 (robbery)

Types of cases handled: gun point robberies, burglaries, car thefts, shootings, gun possession, drug possession, attempted murders, murders, vehicular assault

Worst offender(s) of the quarter: Same as last - a group of young lads who spend three days robbing pizza delivery and taxi drivers. 10 that we know of. Like it's not hard enough to make some money.

Number of defendants given probation and a sealed record that were rearrested for the same charge: 2

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