The Police Did What with the Evidence?

The Milwaukee-Wisconsin Journal-Sentinel reports on a livid local Judge who tossed a burglary prosecution over the failure by the police to preserve a crucial piece of evidence--an automobile that everyone agrees provided the defendant with potentially exculpatory evidence but which the police destroyed.  An excerpt from the Daniel Bice's Journal-Sentinel report follows:

"Late last year, Detective John Behning found himself in a place no cop wants to be.  He was on the stand admitting to a judge that he was responsible for allowing the destruction of an important piece of evidence in a felony burglary case in which an off-duty officer shot the defendant.  Specifically, Behning let the city crush the defendant's car. The off-duty officer had fired up to nine shots at the gold 2001 Kia Rio - striking the driver twice in the hand - after the cop said he confronted the defendant alone in his garage after dark. The off-duty officer said he was acting in self-defense.  Behning, the lead detective in the case, told the judge it slipped his mind that he had OK'd the release of the vehicle. He also forgot to mention this fact during more than two dozen conversations with a couple of prosecutors over 1 1/2 months.

'That's definitely some egg on my face,' Behning conceded at the December court hearing.

It was a stunning admission. The car, in fact, was crushed just three weeks after the incident and two days after the defendant's lawyer asked to see all the evidence.

'In this case, it's inconceivable to me that any good defense lawyer wouldn't want to see the car'" said Dean Strang, a top criminal defense attorney who has no involvement with the case. 'You've got to see the car on this.'

The defendant, Ronald Carter - a former city employee with a history of burglary convictions - said he broke down in tears when the detective confessed to the error.  Even prosecutors were surprised by the case's unusual turn.

'The car should not have been crushed,' Assistant District Attorney Thomas Potter later wrote. 'On that we can all agree.' But one question remains unresolved to this day:  Was the detective just sloppy and incompetent, or did he intentionally destroy evidence that might contradict the off-duty cop's story?

Judge Jean DiMotto minced no words when she issued her decision dismissing the case.

'The Court determines that MPD's concealment of the car's release and destruction over a period of six weeks with affirmative misrepresentations to both the State and the defense is not only egregious but permits the conclusion that MPD through Det. Behning knew of the potential exculpatory value of the car,' DiMotto wrote in December. The veteran judge didn't stop there. DiMotto accused Behning, his superiors and the Police Department of acting 'in bad faith' by giving up custody of the car and not telling anyone for weeks. She added: 'The egregiousness of the violation, demonstrated by its lengthy continuing concealment with accompanying misrepresentations, warrants dismissal.'

That's some unusually harsh language from a judge."
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Harsh language?  Are you kidding, it sounds to me like an accurate description of what the cops pulled and a just outcome ordered by a conscientous judge.

How To Try a Lawsuit

You might reasonably ask yourself, why would I listen to a Bad Lawyer on the subject of how to try a lawsuit?  I myself do not purport to give you advice, but I was a petty good trial attorney and on occasion when I could get out of the way of my case, I won many if not most of the matters I took to trial as either a plaintiff's attorney, or in my later years, as a defense attorney.

Getting the verdict paid, well that was altogether another thing.

A young lawyer friend of mine is scheduled to try her very first lawsuit, next week;   and, while the probability of her matter actually going forward is slim to none, you never know.   Laura must act as if it is actually going to proceed.  This morning, Laura was agonizing (my word, not her's) over how to have a document that she believes is crucial admitted into evidence at trial in light of the fact that the attorney who prepared the matter prior to her assumption of the case skipped steps which would have made admission of the document automatic.  We talked about her scramble to get this document "authenticated," in the absence of testimony from the custodian of the document.   As I've said before, and I don't want to overuse the metaphor, but this is classic "inside baseball."

You do not have to be a young attorney to be perplexed and agitated by the rules relating to how evidence is handled at trial.  It's not unlike trying to dance, and not being able to remember the number of steps that you make with your left foot and those you make with your right foot and which direction: backwards, forwards, left or right.  While some of this important, the reality is a trial is not like being on television or the radio where "dead air" is to be avoided at all costs.  There are rule books and it is not uncommon for matters to grind to a halt while these debates are worked out.  More importantly---most of the time what should come in for the Judge or jury to consider comes in, and the stuff that should stay out, stays out.  Where the trouble comes in, most of the time are the unnecessary arguments over superfluity.  That which is beyond necessity or relevance.  The arguments themselves take on an importance and life of their own that are distracting and crippling--it has always seemed to me that evidentiary argument is a lot like martial arts, it's not the punch it's the psychic energy wasted in focus on the worng things that is to be avoided at all costs.

WHAT IS MY CASE ABOUT?  That is the question.  How do I prove my case?  That is the next most important question.  You prove your case with credible and relevant testimony which comes primarily from your client, and the defendant.  If a person says something that is not true and you can confront them with a document, even a documnet that has "not been authenticated" (and therefore can not stand on its own as separately admissible evidence, but) which contradicts what the party or witness says, no court is going to say you can't cross-examine them on this evidence. So have at it.

Stay focused on the case!

Laura is trying a lawsuit that involves another young woman who bought a "great" used BMW for $20,000.  Her dealer advertised this "great" car even though he knew or should have known that the car had been in an accident and had a damaged chasis.  The dealer denies knowing that car damage reporting services had documented this damage, notwithstanding he held this vehicle out to the public as "great."  The last time I looked the common english definition for "great" is "markedly superior in quality."  This damaged car was not, and moreover documents readily available to this dealer said so. 

That in a nutshell, is my Laura's case.  The fact that this car dealer will say he did not read the reports means that he is either a liar or grotesquely reckless.  In either event she should be able to show this from her client's testimony or the dealer's testimony.  The argument over whether my friend can independently offer the ":car fax" and otheer documentation--as stand alone evidence, should not occupy one further moment of anxiety in my young friend's preparation.

Ex-husband: Nevada Barr is a Lying Whore--So What?

Nevada Barr the best-selling author, lied under oath about an affair she had with her current husband during a Mississippi divorce proceedings in 2005.  While the perjury came to light during that divorce, her ex-husband is still getting his "pound of flesh" (more on that concept later) and the Mississippi Supreme Court has now instructed (link is to the Mississippi Supreme Court Opinion) the Chancery Court of Hinds County, Mississippi to whack-her-one-good as a sanction for perjury. 

The proceeding in Mississippi is as gothic as you get, turning on a "Dear John" letter Barr penned on a personal computer she subsequently destroyed, dismembered, and disposed of in a Bayou according to a report in the Mississippi Clarion Ledger.  By the way, this is a highly dramatic story covered in sensational detail by Jimmie E. Gates at the Clarion-Ledger website.

Nevada Barr is going to get an expensive legal smack for lying under oath and for destroying evidence.  She may go to jail if the Chancery Court decides to refer the matter for criminal prosecution.  Is any of this fair?  Probabaly not.  Oh, don't let me go all Bad Lawyer on you, but why is her "affair" relevant to the division of property decision in a divorce court?  Her extra marital affair while it may go to her "character" or lack thereof, is hardly relevant to a division of property which is all the proceeding in Chancery Court was about.  In fact the Mississippi Supreme Court confirmed the property division decision that the Chancery Court made at the time.   Her ex-husband, who certainly deserves to feel hurt and wounded by the betrayal doesn't have the right to compel an inquirey about non-material matters, to wit:  my wife is a lying whore, punish her.  That's all this is about.

Perjury is by definition, a false statement of fact or assertion that goes to a "material issue" in the case.  This is why Bill Clinton was not prosecuted.   Clinton's lie "about that girl" spoke volumes about his character, but was not perjury.  Well, the boys down in Mississippi see it a little differently, and Nevada Barr is going to pay and keep on paying.  As someone labled a "liar" by the OurState Supreme Court in the opinion that confirmed my status as a Bad Lawyer, I acutely feel the pain.