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A very interesting case has just come out of the Tennessee Court of Criminal Appeals.  This is what happens when the government’s case blows up right in front of the jury.  I recommend that you read the opinion, but here’s the gist.  First, let me introduce the relevant players in this drama:

Philip Blackburn—the Defendant

Danny Green—the codefendant; he testifies for the State

Priscilla Allen—the victim; she testifies for the State

Kamela Ward—another victim; she also testifies for the State

Mr. Blackburn and Mr. Green were charged with robbing a fast food joint.  Blackburn went to trial, Green opted to testify for the state and cut a deal.  Ms. Ward and Ms. Allen were employees of the store that were robbed.  At trial, the two women testified first.  They basically stated that they were at the store the morning of, they had just opened the place up, and two gunmen came in and robbed the place.  So far, so good for the government.  Then the codefendant gets on the stand.  He’s testifying against his partner so he can get a better deal.  He first waives his 5^th Amendment right against self-incrimination.  He testifies to the robbery, how Mr. Blackburn approached him with the idea.  Then he testifies that he and Mr. Blackburn met with some other people a few days before the robbery to plan it.  We all got together and decided who was going to do what, he says.

And who were these other people, asks the prosecutor?

Ms. Ward and Ms. Allen, he replies.

Who?

Ms. Ward and Ms. Allen.  You know, like, the victims.

Whoops.

I tell you, you’ve got to love this line of work.  If you don’t laugh at it you’ll go crazy.  After realizing that their whole case was an inside job, that this was not even close to a robbery but actually was more like a simple theft of property, the government, wisely, decided not to ask Mr. Green any more questions.   And the trial judge, after some legal flip-flopping, decided that Mr. Green would not be subject to cross examination and that all of his testimony would be stricken from the record and was not to be considered by the jury.

Mr. Blackburn was convicted as charged and sentenced to 10 years.

Long story short, the appeals court reversed the conviction and sent the case back for a new trial.  I’m glad.  It gives me no pleasure to say this, but that was a terrible call that was made at trial.  To deny the defense from cross-examining a witness who just testified to some seriously exculpatory evidence is unfair and unconstitutional.  Once a witness begins testifying on direct examination, they are fair game for cross even if they stop the direct to invoke a privilege such as the 5^th.  No ifs, ands, or buts.  No exceptions.  

Cross-examination is the absolute bedrock of our justice system.  It is the only way to insure that the truth comes out.  Without it we might as well change the name of this country from “The United States” to “The Congo,” or “Iran.”   

There are many fines and penalties associated with a DUI conviction.  How severe these will be will depend on how many previous DUI convictions a person has, if any, and in the case of first offenders whether their blood alcohol content (BAC) was above or below .20.  Now, I’m going to skip right over the issue of what it takes to be convicted of DUI.  For that, the government must prove that the driver was “under the influence.”  This is a controversial and, really, existential issue that deserves its own post. 

So let’s assume the client has been convicted.  What happens next?  Here is a breakdown, from first offense to fourth offense.

First offense The mandatory jail time is 24 hours, but if their BAC (assuming they submitted) was above .20 it is 7 days.  Additionally, if it is a sub-.20 BAC, they must perform 24 hours of litter pickup.  This is done in three 8-hour shifts.  A first offense DUI is a Class A misdemeanor, and in Tennessee those are punishable up to 11 months and 29 days.  Therefore, the individual would serve the remainder of the sentence (11 months/27 days) on probation.  Next, they would lose their driver’s license for one year.  They could apply for a restricted license in which they could drive only to get from home to work or school and back, and only during the times indicated on the restricted license order.  The minimum fine is $350. 

Second Offense The minimum jail time is 45 days.  It is still a Class A misdemeanor with a maximum punishment of 11 months and 29 days, so the remainder of the sentence would be served on probation.  Now, however, the individual would lose their license for two years and face a minimum fine of $600.  They could not get a restricted license for the first year but they could for the second year.  During their mandatory jail time they could participate in work release.  Furthermore, the government may seize the person’s car if it is their second offense after January 1, 1997 and the two convictions occur within five years of each other.  The first conviction does not have to have been in Tennessee, but the second one does.

Third Offense The minimum jail time is 120 days.  It is still a Class A misdemeanor with a maximum punishment of 11 months and 29 days, so the remainder of the sentence would be served on probation.  Loss of driver’s license could be anywhere from 3-10 years and the minimum fine is $1100.  Work release and a restricted license are not available. 

Fourth Offense A fourth offense DUI is a felony.  It is punishable anywhere from 1-6 years.  The minimum jail time to be served is 150 days, with probation for the remainder of the sentence.  Loss of driver’s license is for at least five years, and the minimum fine is $3000.  Work release and a restricted license are not available.

There are numerous other costs to a DUI conviction.  All DUIs, even first offenses, stay on the person’s record forever.  They cannot be expunged.  There will be additional costs in the form of alcohol safety school, probation supervision fees, and higher insurance costs. 

For purposes of determining as second offense, the preceding conviction must have occurred within 10 years of the current violation.  For determining third offenses and up, each conviction must have occurred within 10 years of the next one, but no convictions more than 20 years old will be considered.

As I said at the beginning, these are simply the penalties.  This is what happens after a conviction.  It’s what happens before a conviction that’s going to determine the outcome.  That entails analyzing the traffic stop, analyzing the breath and field sobriety test, and determining whether the government can meet the elusive “under the influence” standard. These will all be subjects for future posts.

Ordell: How did you find me?

Max: Winston found you.

Ordell: How the fuck did he find me?

Max: That’s what Winston does.  He finds people who don’t want to be found.

Jackie Brown, 1997

Bail bonds are really a form of insurance.  They are there to insure a defendant’s appearance in court.  Once someone is arrested and booked, they will be given a bond.  In order to be released they must pay the bond. 

If someone’s arrested, how do they go about paying the bond and getting let out of custody?  There are two ways.  They can pay what’s called a cash bond.  A cash bond is actually paying the full amount of the bond in cash—no checks or credit cards.  The other way is to get a bail bonding company to pay.  Most bonding companies will require about 10% of the bond to be paid to them.  They will then cover the bond.  So if someone’s bond is set at $5,000, a bonding company is going to require $500.  If the defendant bonds out, then doesn’t come to court, the bonding company will try and find the person.  (If you’ve ever watched that show “Dog the Bounty Hunter” you know how this works.)  The bonding company will try real hard to find their person because if they don’t, they’ll be on the hook for the whole amount. 

One other thing about cash bonds: the person gets the bond back once the case is disposed of, even if they are convicted.  However, if they owe court costs the court will take that out of the bond first and then give them back the difference.  Also, if the defendant goes on probation they don’t get it back until the end of the probation term.

Bonds usually are set by judicial commissioners.  The amount is going to depend largely on the crime with which the person is charged.  If the person is deemed a flight risk and/or has an extensive arrest history the amount will be higher.  Judges can lower a bond if it is too high for the person to pay.  This is going to require a hearing with proof.  The client is going to want to have family members there at court, as well as proof of employment, to have a chance of persuading a judge to lower the bond.