Samuel’s Take: A Boston Drunk Driving Verdict From An Experienced Defense Lawyer’s Files

Happy new year to you all.

In each daily installment of the Boston Criminal Lawyer Blog, I tell you that, should you have reason to believe that someone is mentally measuring you for a pair of the Commonwealth’s bracelets of shame and a warm cell, you should engage an experienced criminal defense attorney.

The reasons may be obvious to some. There may be some among you, however, who think, “Aw, that’s just Goldberg tooting his own horn again. My case is so simple, a trained chimpanzee with a law degree could handle it. Besides, experienced lawyers are more expensive than those without experience.

Well, no and yes. I have not yet met any monkeys who have made it all the way through law school (although I have had my suspicions in some cases), and, yes, experienced attorneys usually cost a little bit more.

Every case is different and some cases seem more straight- forward than others. However, any case can have its little surprises. Further, even the simplest of cases can be lost.

The fact is, there are certain things that one can only pick up through experience. As in most professions, one can develop a “sense” about things.

This is especially true at trial.

Speaking of trials, I have also told you that, at times, police officers (like any witnesses) may not find it necessary to limit themselves to the truth.

How dare I?

Let me tell you alittle “war story” from my 25 years of trial experience.

Ollie Under The Influence (no, not his real name), was on trial for his 4th drunk driving offense. I was his lawyer. In this particular case, there was no breathalyzer, but there were field sobriety tests that he was given and that he had purportedly failed. The Commonwealth wanted Ollie to have a vacation at the jail at South Bay for awhile.

Ollie did not want to go.

The prosecution had alleged that Ollie had made certain admissions to the police, such as admitting that he had been drinking. So, I brought a motion to suppress the statements as he had not been advised of his Miranda Rights.

We lost that motion, as I expected we might. However, we did have a sampling of the officers’ testimony to use at trial. In my experience, that is usually a powerful tool at trial.

This time it absolutely was.

The two Commonwealth witnesses were two police officers, whom we will call “Sgt. Sarcasm” and “Police Officer Openminded”.

Sgt Sarcasm was the first witness to testify. He had been the only witness the Commonwealth had produced at the hearing and I had already taken his testimonial measurements. He was quite cocky and easily exasperated that a slug like me would question his word.

My method of cross-examination, however, was different from what it had been at the hearing because, this time, there was a jury present. Plus, this was the real battleground of the case –trial.

This time, I began mild enough, just like at the hearing, but then, I turned up the heat. My sense of him as a witness had been correct.

He started to show his cockiness with answers like, “Yeah, you could say that.”, as he shrugged his shoulders.

Jurors do not like cockiness. After awhile, once I was sure the jury could see how he was answering, I started to respond in kind.

“I just did. I’m kind of wondering if you could say it”, was my response to such quips on his part.

At other points, he would say anything but a direct answer to my more inconvenient questions. I would keep repeating the same question, word for word. Finally, I would add, “You know, I can keep going round and round with you like this all day, if you want to.”

The prosecutor would storm to his feet and yell, “Objection!” and the judge would tell the jury to disregard the statement, for which I would dutifully apologize.

But the point was made. Eventually, it did not matter what the answer was.

Sgt. Sarcasm did not like it. Especially when I began confronting him with inconsistent answers he had given at the earlier hearing.

The inconsistent statements and theatrics of the Commonwealth’s lead witness were helpful, but not really enough to make me totally comfortable. Sgt. Sarcasm’s demeanor, however, including when he stormed off the stand and literally kicked the courtroom door open to get out, made me feel much better.

But was all that enough to get the Boston jury to feel that the police officer was lying? After all, the jury had heard about the alleged admission.

The other witness against Ollie was Officer Openminded. He had not testified at the hearing, and so I had not had the opportunity to get a “bead” on him.

As the prosecutor asked him questions, I began to get the sense that Officer Openminded was not so sure of his testimony; he seemed to need to follow the assistant district attorney’s lead too much.

When I got up to cross-examine, I with the typical questions a defense attorney would ask…now, much less caustic so that the jury would see that I had only been that way before because of the good Sgt.’s attitude. I was really a nice guy.

The sense was still there.

I decided to do what all the “trial manuals” tell you not to do. I asked questions to which I did not know the answer. Not only that, I pushed it a bit further. I invited Officer Openminded to accuse my client of all kinds of things that had never been mentioned in police reports or in Sgt. Sarcasm’s testimony.

My client began sweating profusely, perhaps wondering who’s side I was on, but I thought the officer would take the bait.

“In fact”, I asked, “a couple of times, Ollie started to fall down and you had to help him stand, right?”

There had been no evidence of that hapenning and Sgt. Sarcasm had said that my client had been able to stand just fine. However, I was following my hunch and also knew that officers generally have no trouble heaping additional dirt onto a defendant.

“Yes. Yes he did.”

I went away from the topic and then later on, fitted in, “In fact, wouldn’t it be fair to say, officer, that at one point, my client even tried to punch you?”

Pause. Sweat forming a pool around my client.

“I don’t…wait. Yes, he did.”

“And you remember that clearly, don’t you?”

The point of that question was to take Officer Openminded’s attention off the question of what in God’s name I was doing. Of course, he would have to say he remembered it because he was expecting my attack was going to be that he did not remember the case well and so his testimony should be discarded.

“Yes, I remember it.”

“As clearly as you remember the rest of your testimony, right?”


Satisfied that my hunch was correct, I lead him all over the facts of the case, virtually creating a different case entirely. By the time he was done, he had pleasantly agreed to the events happening at far different locations with different results and totally different things being said and done.

How did this happen? Because Officer Openminded was not sufficiently prepared for trial and because, out of a sense that one can only develop through experience, I knew how to take advantage of it and push it to the limit, but with a “back door” strategy in case he began to catch on.

Fortunately, I did not need it; he never caught on.

Officer Openminded had given me the fodder to argue to the jury that there actually had been two inconsistent Commonwealth cases and if they felt they wanted to believe the Commonwealth, they would have to pick one and discard the other. I, naturally, suggested they discard both.

The jury was out deliberating for under ½ hour before they came back to find my client not guilty.

Pay the extra few dollars – get an experienced defense attorney. It’s better than saving additional money by forced free food and board at the local jail.

Samuel Goldberg is the senior criminal defense attorney at the firm of Altman & Altman, LLP. A former prosecutor in New York, he has worked as a Boston defense attorney over 18 years. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call 617-492 3000

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