Thomas G. WitkopLaw Offices

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Sometimes when the prosecution is hard it makes the case easy

Last week I was representing a client already on probation for driving while suspended. While on probation he was again charged for driving while revoked. My client was a decent generally law-abiding citizen. It seemed like the prosecution was ready. I tried to negotiate with the prosecution to reduce the one year in jail, 12 points on his license offense down to a 60 day in jail three points on his license offense. Not that my client would necessarily go to jail for 60 days but that was the possibility. And 60 days is a lot better than one year. The prosecution stuck to their guns and basically ridiculed my attempts at settling the case. The battle lines were drawn and the case was called for trial.

A little background: My client advised that he had left a bar at approximately 11 p.m. and was sober and before he got into his car he saw the police officer in the parking lot waiting for drunks to come out to be stopped. My client was fully aware of the officer and drove very carefully. He observed a stop sign exiting the parking lot and began down the road and noticed that the officer was after him. The officer put on her takedown lights and my client pulled into the 7-11. At that point it was determined that his license was revoked. The officer told him that she had stopped him for running the stop sign.

The testimony of the officers surprised me. The officer testified that it was 11 a.m. and she had run my client' s tag and determined that the owner of the vehicle was suspended. She testified that the owner was a white male who was 5'8" tall and 190 pounds. This matched the description given from her police car computer. Obviously the testimony was quite different from my client. On cross examination she fell apart establishing his height and his weight (he was sitting in a car and all she could see were his shoulders and above-rather difficult to figure out somebody's height and weight). My client admitted police officer that he was suspended.

During the suppression hearing (we challenged the constitutionality of the stop) my client testified that his wife owned the car and consequently the description should have come back for a woman. Also he testified that he was stopped for running a stop sign. He told the judge that he did not run the stop sign.

The judge looked at the facts. The officer was very shaky in her testimony. She did not have her notes. She had had hundreds of stops of other motorists since the original stop. She had made hundreds of arrests since this original arrest. She was wrong as to the time of the arrest. She was wrong as to the vehicle owner. She was wrong as to the reason for the stop. My client was properly prepared and had a very strong memory of the events. His testimony was solid and credible.

The judge granted our motion to suppress the evidence and my client was acquitted. No jail, no probation, no conviction, no points, no fine. Often when the prosecution makes the offer too difficult, it makes the case that much easier to try.
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the prosecution's discovery violations cost them their case

While waiting to try my DWI case I watched the following occur before Judge Richard Collins in the Hyattsville District Court. The defendant was charged with DWI. Defense attorney entered his appearance in August of 2009 and requested discovery. The trial date was September of 2009. In writing, the defense attorney asked to continue the September court date because there was no discovery provided and this request was granted. Thereafter, the defense attorney called the prosecutors several times looking for discovery and each time was advised that it would be coming. The trial prosecutor made the last promise on November 13 and faxed the usual DWI report and the like on December 1 (one day before trial).

Defendant and attorney show up for trial and he moves to dismiss or in the alternative preclude testimony of the officer or for a state's continuance. He argues that he has suffered prejudice because he could not timely prepare with this late notice. He could not go to the scene of the stop with his client, et cetera. Judge Collins dismisses the case based on the fact that the last time the case was continued because of discovery violations. He did not seem to have much trouble dismissing the case either.
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follow-up to preparation for a civil trial

Well the jury came back. The plaintiff had approximately $500 in medical bills and approximately $3000 in time missed from work. The jury came back with $5,200. The doctors fees for testifying were probably $1500 which the plaintiff must pay. The attorney's fees were probably 40% which would be $2080 which would leave the plaintiff a net of $1620 (assuming that his medical expenses had already been paid). The pretrial offer was higher than the verdict. The plaintiff would not have had to pay the doctors fees in the pretrial verdict. The plaintiff would have netted at least double the amount he got a trial.

This is only one case so it would not be fair to extrapolate some general lesson other than if you go to trial you gamble with the results.
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Going to Trial Requires Preparation from Day One

while I was in the Circuit Court for Montgomery County I stopped to watch a simple car accident case. the plaintiff was heading southbound on a road. the defendant was heading northbound andbegan to make a left turn which resulted in an accident. The plaintiff went to the emergency room complaining of headaches, neck ache and low back pain. he stated that he smacked his head into the steering wheel and bruised his head.Thereafter he went to his treating physician two times for follow-up care.

I watched the testimony of the plaintiff's treating physician as well as the testimony of the plaintiff. The direct testimony of the plaintiffs Dr. and the direct testimony of the plaintiff himself went smoothly enough.

It became rough for both the doctor and the plaintiff during cross examination by the defense attorney. The defense attorney clearly had memorized the deposition testimony of the plaintiff and had memorized the medical reports of the plaintiff's doctor.

Small omissions in the medical records and lapses in memory called into question the competency of the medical treatment and the credibility of the plaintiff.

The emergency room records only listed that the plaintiff had suffered from a neck injury. There was no mention that he complained of hitting his head or that his low back hurt. In fact, the emergency room doctor had noted that there was no concussion and no bruising. This contradicted what the plaintiff said on the stand.

When the plaintiff went to his doctor the records did not indicate anything about low back injury nor did it indicate anything about concussion or bruising on his head. This also contradicted what to the plaintiff said on the stand.

I believe that the plaintiff told the emergency room of his problems and told the doctor of his problems but the doctor either didn't hear what the plaintiffs said or forgot to write it down or perhaps the person that transcribes the notes forgot to put it in. The plaintiff's doctor was not prepared for cross examination on these errors. Preparation for the discrepancy in information would have at least allow the doctor to give a credible explanation to the jury why these items were missing in the medical record but did exist in the plaintiff situation.

On the witness stand the plaintiff testified that his speed prior to the accident was 30 mph. The defense attorney immediately turned to the plaintiff's deposition and proved that his prior testimony was that he was going no faster than 25 mph. The plaintiff stated that the accident caused him so much pain that he could no longer exercise and that he gained weight. He testified that just prior to the accident he was 215 pounds and then gained 45 pounds. The defense attorney grabbed the doctor's records and showed that two weeks before the accident the plaintiff was at 238 pounds and three months after the accident he was at most at 245 pounds. Again, the plaintiff should have been consistent in his testimony and should have been certain in his testimony. A review of his deposition transcript prior to trial as well as his medical records would have helped better prepare him for the trial.

These may seem like small matters but they can affect how a jury looks at the case. Is the plaintiff lying or just mistaken. If the plaintiff is mistaken about one matter, Mikey just as likely be mistaken about another matter. Is the doctor sloppy and forgetful? If so, can we put much weight on the doctor's opinion?

There are only 24 hours in a day and it is difficult to anticipate all the problems in a case but there will be problems in a case no matter how good it is. If you are going to go to trial you must prepare for it.
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