I Don't Trust the Machine, Either, Barney.....

Anyone not living under a rock in the Columbia, SC area is well aware that Fifth Circuit Solicitor Barney Geise was arrested for Driving Under the Influence earlier this month. He refused the Datamaster test, wasn't sure if he could get a blood test or not, swore he'd resign and generally talked himself blue in the face, on camera, at the station. His license was automatically suspended for his refusal to take the Datamaster, but he received a restricted license, and applied for an administrative hearing. He pled Guilty to two lesser included charges, and the latest word is that, as I predicted on several forums, the officer failed to appear for the administrative hearing, meaning Barney has his full driving privileges back mere weeks after refusing to take the Datamaster test. I have watched the video, and frankly, I'm not convinced he was DUI. Having seen Barney in court on a number of occasions, his mannerisms and demeanor don't look terribly different, though I have to admit that some of the things he says are downright pitiful, and the fact that he talked almost nonstop indicates he wasn't exactly dead sober. General stupidity behind the wheel is another issue altogether, and though highly dangerous, we've not found a way to make it illegal yet. I might be in favor of prosecuting him on a charge of it if it were, though.

I take issue with the folks who are assuming that the reduction of charges was solely due to his political position. It wasn't a very strong case factually. That so many assume he was guilty of DUI based solely on the fact that he was arrested and charged is part of what's wrong with our system. He isn't the only one for whom the officer didn't show up for the administrative hearing, either. That happens all the time. That Barney is cleared legally from this is not troubling to me in the least. Neither is the fact that he is now in serious hot water politically, mainly because he displayed incredible stupidity in more ways than I can count, but also because he can't effectively argue to juries anymore.

Has Geise done a good job as Solicitor? I think it is arguable, from a citizen's point of view, that no one really knows. What are the standards? "Tough on crime" is the most likely response if you ask citizens how they judge a Solicitor. How exactly is a Solicitor judged as to whether he is tough on crime or not? High profile cases won or lost? How often they seek the death penalty (and get it)? How often cases get overturned on appeal for prosecutorial misconduct? Whether they refuse to prosecute cases for political or personal reasons? Whether they've been caught illegally recording defendants talking to their attorneys? How many times they've been arrested themselves? It is a sad commentary that we have to consider the last few at all, but circumstances in the midlands seem to dictate that we do just that. But the real questions remain: Is Geise a good Solicitor or not? If so, can he continue to be?

I am not sure whether Barney is a good Solicitor or not. If good means managing the Solicitor's office in a way that basically forces an understaffed office to undermine the entire discovery process by omission, neglect and delay (as opposed to blatantly unethical deliberate withholding of evidence), then yes, I would say he is very good. Is he different from any other Solicitor in SC in this regard? No, and we can't really expect much else when the entire judicial system is grossly underfunded, from police to solicitors and indigent defense to court staff, bailiffs, judges and clerks. If good means having really smart assistant solicitors who have a knack for trial work and care about what they're doing, then again, I would say he is very good. He's won some high profile cases, and lost some. He isn't known for seeking the death penalty, but I've not gotten the impression he avoids it, either. I haven't kept track of how many cases from his office get overturned on appeal due to something he or one of his assistant solicitors did wrong. I doubt it's more than the number of successful PCR's claiming ineffective assistance of defense counsel, though. Those who know what decisions he may have made based on political and personal connections aren't talking, as far as I know. In general, I'd say Geise is not significantly better or significantly worse at the job of Solicitor than any other, not only in SC, but across the country. Now, the question is: Can he continue to "be" whatever he was prior to this arrest?

I think not. Not because he was arrested - the evidence wasn't there to convict him so he's innocent of that charge. Not because so many detractors think just being arrested is tantamount to being guilty and foolishly say so. Not because he was out alone with a woman not his wife late at night out of town leaving a bar - for absolutely no good reason at all (at least no moral one).....but because he has admitted that he knows good and well that a major prosecution tool is simply unreliable, despite having argued vehemently in its defense in Court. He lied to every jury he ever argued a Breathalyzer or Datamaster case to, and now we all know it. Will jurors believe him when he looks them in the eye and tells them... well.... anything?

Geise was there - he was accused - he was scared. I'm not convinced that his mental and physical faculties were appreciably impaired by the consumption of alcohol. Several folks I've talked to have disagreed, some quite adamantly, and think he WAS appreciably impaired. As a former police officer AND criminal defense attorney, I have to agree it's arguable either way - we don't see him standing or walking in the video, which could have told us a lot. But he knew what the Datamaster does, and doesn't, do. The truth came out - as it often does when people don't have time to think through the political implications of statements made. In this case, in the process of making a decision that cannot be delayed. Geise cleared up a big question - the question of how Solicitors can so wholeheartedly believe in the Datamaster when they all know how it operates. The answer is "they don't." Thank you , Barney, for letting us know that. Every law enforcmeent officer and prosecutor in the state is furious that you said this on video. But don't feel bad - it's easy to rely on Datamaster results when it isn't you being tested. Many of my officer friends want to smack me when I talk about the flaws in the Datamaster, but when I remind them that my opinion in this regard means that I believe the most important evidence is what they see on the side of the road, most have to agree that a good officer's judgement, based on what happens in the traffic stop itself, is the best indication of whether a particular person should or should not have been driving, which is why we don't have or require roadside breath tests, and why we require that a person be already under arrest and charged with DUI before the test is offered. The test is secondary, after the fact, and when they refuse to take it, the case moves right on through. The breath test has never been, and should never,be, the best evidence for a conviction. If only the jury could see what the officer saw.....but back to that later.

Mind you, the Datamaster does what it's supposed to, most of the time - it measures breath alcohol content then mathematically converts it to BAC. The problem, as every defense attorney will tell you, but until now prosecutors staunchly refused to admit, is that the number it spits out may or may not be the suspect's actual BAC. The number the Datamaster uses to do its math is based on the average blood/breath ratio, but the actual ratio of the person being tested can be far enough from the average to make a significant difference in the results. I'm not against the Datamaster itself, but I am against people assuming the results are correct, or that the results reflect the effect that alcohol has had on the individual in any predictable manner. Studies, of course, have shown that a typical person's faculties are probably impaired at .08 or higher. Probably isn't certainly, and not everyone is typical. Do you know what your personal blood/breath ratio is? Are you sure it's average? Would you trust your fate, under arrest, on an assumption that it is? Barney knew the results could be higher than his actual BAC, and wasn't willing to risk the damage that would be done by an incorrect reading. Many will say he refused because he knew he would register above the limit. Are you sure? Have you watched the video? Reasonable minds can differ, but I doubt Barney had reason to think he was significantly over the limit, if at all, unless he's a closet alcoholic and knew he would register something ridiculous like .22 despite his appearance. Regardless of his motivations, his words are clear, and he can't take them back no matter how hard he tries. Some people can barely function with a .07 and I've personally seen a suspect register over .30 and still walk and talk (though not well). I don't want impaired people behind the wheel any more than anyone else, but a conviction for DUI is a very serious matter, and not everyone who is arrested committed the crime. So, how do we deal with this?

We deal with this by videotaping EVERY traffic stop, ALL sobriety tests, AND the interaction at the jail. Period. Every vehicle driven by any officer with the authority to make a traffic stop must be equipped with proper video equipment maintained in operating condition and deployed every time a stop is made. Prohibit the administration of sobriety tests unless a video is in place and operational. If the officer makes the stop for public safety and doesn't have operational video, he has to wait until video is there to do sobriety tests, or make the arrest and then do the tests at the station, or not at all, if the suspect is kneewalking drunk and none are needed. As an officer, I would rather make a case that then gets dismissed than let the person drive on to possibly hurt someone. As a defense attorney or investigator, I want video. As a prosecuting officer or prosecutor, I would want video. Everyone wins. The cost? That's easy - add another $200 to the fine for 1st offense DUI that goes into a statwide fund to issue grants to departments in need of additional funds for camera purchases and maintenance - that should cover it.

We must keep in mind that officers have to make a judgment call in close cases, and that the attorney(s) or jury disagree(s) is not necessarily a reflection on officers' general judgment or skill. People get arrested for DUI who are not guilty of it, and some people are found not guilty by juries for reasons other than the merits of the case. Video would eliminate the vast majority of cases from the docket where the defendant is either clearly impaired, or not impaired, or not clearly impaired. It would reduce misplaced reliance on "per se" laws that really aren't, and on the questionable numbers that come out of the Datamaster. Show the jury the person, at the scene AND at the station. Ask them to follow the officer's instructions and do the sobriety tests themselves, preferably with the lights in the jury room out and a flashing light substituted. Ask them if the person on the video is someone they would want driving towards them and their family on a dark, rainy night. Let's look at the real issue, which is what condition the defendant was in when driving, not rely on questionable numbers from a questionable chemical process with a questionable mathematical basis.....

I don't trust the machine either, Barney...I trust the officers, and I trust the juries. Do you?

An earlier article here addressed some of the issues associated with the lack of standards in American society. Today, I came across a well-researched, tactfully honest article regarding one aspect of a larger problem, and the conclusion is clear - BAD PARENTING is rampant, and its damage is profound and lasting. This article addresses education gaps, but I beleive the concepts can be applied to other issues, including work ethic, sense of personal responsibility, duty to community and country and attitudes toward morals, childbearing and marriage. The article is wonderful:
CNN "Commentary: What Parents can do for Their Kids" by Ronald F. Ferguson
http://www.cnn.com/2009/LIVING/07/17/ferguson.education.parents/index.html

Quick update and kudos to a good boss

I've been remiss in posting the last couple of months. Never fear, parts II and III of the "wrong people in jail" series are forthcoming. In the meantime, though, I've noted a marked increase in violent crime in Columbia and in SC in general. The economy is trashed and our governor is a borderline psychotic, philandering joke (which is sad because I admired his fiscal policies). North Korea is emerging as the threat many of us predicted they would be, we're mired in wars and aid projects overseas while we implode at home via the utter breakdown of societal standards and mores. No one seems to recognize the distinct possibility that we may all be required to speak Chinese in the not too distant future, either....

All of that to say that in these social and economic hard times, even the best (like us) are having a tough time. Despite an upturn in the criminal defense side of the business, domestic cases are way down. But instead of cutting staff in a panic, my boss has listened to wise counsel and instead redirected resources to marketing and to upgrading communications and other equipment. From what I have learned, these responses to a tight economy will result in the company emerging not only intact, but strengthened. Other companies cut staff, increasing workload and fear of "the axe" in remaining employees. They cut supply and equipment expenses, making it even harder for the remaining staff to complete, never mind excel in, their newly-increased workload. They rush to reduce advertising and marketing initiatives, which in any small business is all but a death knell, and in a tight economy IS a death knell. While these folks are steadily and repeatedly shooting themselves in the foot despite all advice to the contrary, our boss has heeded the advice of successful small business owners:

In a tight economy, cut staff only as a last resort, unless you have unproductive people or positions you needed to cut anyway. Take a long-overdue (for most), comprehensive, objective look at your marketing plan and find ways to make more of the budget you already have - redirect, but don't cut. Talk to your staff - be realistic, but don't try to frighten them into working harder. If you've been a good boss all along, and you're honest with staff, they will want to help, and it will show. We're in a tight spot right now, but I am confident that my boss is doing all he can, and in turn, staff are pitching in and working as a team to weather this economy.

Thanks, boss, for being a dedicated owner committed not only to our profession and the clients who depend on us in some of the most difficult times in their lives, but to the company and the people who work for you. Kudos!