Monday, April 26, 2010

God Bless the Jury!

In my experience, law enforcement are rarely wrong in the eyes of the Court.  This was evident to me years ago when as a very young Bad Lawyer I sat in a municipal court and watched a gentleman successfully defend himself on a traffic ticket only to have the magistrate adjudge him guilty on the "incredible" testimony of the cop.  As I've pointed out on Bad Lawyer in the past I also have known Judges independent enough to stand up to the local police, but let's be honest, there is a lot of pressure on Judges to back up local law enforcement.   So absent a pretty strong, independent-minded judge, it is always the citizen's fault if the cops choose to give a citation.

So this account from the Kokomo (Indiana) Tribune, made me smile:

Kokomo police said Addie Etherington was completely at fault when she collided with a police squad car in 2009.  A Howard County jury, however, wasn’t buying the official version.  It decided Etherington didn’t commit either of two alleged traffic citations, rejecting police testimony Etherington failed to yield and made an unsafe lane change.

The decision could end up costing the city, which has already received notice from Etherington that she may sue over the Oct. 20, 2009, incident. Etherington collided with a brand new Dodge Charger, driven by KPD Officer Adam Martin, at the intersection of Monroe and Washington streets. Police said Martin and other officers were pursuing individuals wanted on felony charges when the accident occurred.  According to witness testimony, Etherington was stopped at the intersection, ready to turn west onto Monroe, when Martin’s cruiser came up behind her and attempted to pass her on the left. Witnesses disagreed as to whether Martin was using his siren as he came up on Etherington.

She turned into the police car, witnesses said.

Howard Superior Court 3 Judge Doug Tate, who presided over the trial, said that much was evident from the damage to Martin’s right-front quarter panel and Etherington’s left-front quarter panel.  Tate said Etherington may have thought she was clear to turn when she saw another police cruiser go by on Monroe Street in front of her.  'I think if she had heard or seen the cop behind her, she would not have turned,' Tate said.  But proving 'failure to yield' required convincing the jury Etherington should have known she was required to yield. Tate said he might have ruled the same way as the jury, if the case had been handled as a bench trial.

'Given all the facts, I can’t say the jury’s decision was the wrong one,' Tate said. 'I also don’t feel the officer was in the wrong, in any way, shape or form.'
The April 16 trial was punctuated by Tate admonishing KPD Major James Calabro from the bench.

A defense attorney saw Calabro and Martin conferring in a courthouse hallway during a break, in apparent violation of a court order separating the witnesses.  'I take full responsibility for what happened. I made a mistake,' Calabro said Friday. 'I meant no disrespect to the court, to Ms. Etherington or to the lawyers involved in the case. It happened and I offer no excuse for my actions.'

The Dodge Charger sustained more than $9,000 in damage, and last year, city officials said the matter would go to litigation as to fault.  They made that statement more than a month after receiving a tort claim notice from Etherington’s attorney, Matt Golitko, blaming the city for the collision.  According to Martin’s police report, which Martin said Calabro contributed to, Etherington complained of a bruise to her face. In the tort claim notice, Golitko said Etherington suffered 'serious injuries.' Kokomo attorney Erik May defended Etherington during the jury trial.

Tate said the jury deliberated for about 15 minutes before issuing a finding of “false” on the traffic citations. 'The reality of it was that we were forced to take it to trial,' Golitko said. 'We requested it be dismissed ... but the state wanted to proceed. I don’t think it’s any lawyer’s desire to go to trial on traffic tickets.'”
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Are you hearing what the Judge is saying--I'm telling you folks, this Cop caused an accident by foolishly trying to pass a driver be going left of center, and the Judge is saying:  the officer didn't do anything wrong!  Are you kidding me.  Notice, Judge Tate says, "[I] might have ruled the same way as the jury." 

Uh, Huh, good thing Mrs. Ethertington opted for a jury trial. 

Good judges, and good cops are a community treasure--but, God bless the jury!

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