The trial was troubling. The laboratory technician who analyzed my client’s blood was not called as a witness by the State (she was not available). This made her certified laboratory result (the analysis of her blood for alcohol) inadmissible “hearsay.”
The Judge allowed the laboratory certificate into evidence despite clear authority that prohibits the introduction. I have always despised injustice. I get passionate in the face of injustice. The Court’s ruling was quite disturbing. There is New Jersey legal authority supporting the defense position that the laboratory certificate is inadmissible without the technician being available for cross examination. From a constitutional point of view, the Defendant has a right to confront the accuser – thus, since a document cannot be cross-examined, the facts contained in the document cannot be admitted against a defendant.
In addition to New Jersey Law, there was a recent United States Supreme Court case, Melendez-Diaz v. Massachusetts, that without question, prohibits the introduction of a laboratory certificate without producing the laboratory technician.
My client was found not guilty of careless driving, and not guilty of dwi based on the observations. She was however, found guilty of dwi but based only on the laboratory certificate showing her blood alcohol concentration. The guilty finding was based solely on a document that was improperly admitted. The sentence was, at my request, held in abeyance (“stayed”) pending an appeal. I am 100% confident that the conviction will be overturned.
I am heading back into my office to file the appeal. I will post the result. I am very confident the final ruling will be a reversal.
A prosecutor has a unique position in the criminal justice system. His chief duty is “to see that justice is done” not merely to convict defendants. State v. Ramseur, 106 N.J. 123, 320 (1987). With that in mind, I wrote the following letter to the Prosecutor in this case (I omitted his name, and the County where the case is pending). You are free to speak your mind and comment:
The defense argued that the affair tainted the trial, and resulted in “obvious and outrageous violations” of Hood’s constitutional rights. “No one would want to be prosecuted for a parking violation — let alone for capital murder — by a district attorney who is sleeping with the judge,” one of Hood’s attorneys said. “We are outraged by this breakdown in the integrity of the justice system. … Mr. Hood is entitled to a new trial before an impartial judge and a fair prosecutor.”
I am currently handling an interesting dwi appeal. My client was convicted of his second dwi in Municipal Court after a trial. He was sentenced to, among other things, a two-year loss of his driver’s license. He hired an experienced criminal defense lawyer. The lawyer then passed the file off to an associate; a young attorney who had only recently graduated law school and passed the bar examination. The trial ended in a guilty verdict, but I believe the case could have been won with more effective defense.
The trial transcript was painful for me to review. The young lawyer was completely out-classed by an experienced and savvy prosecutor. Moreover, the defense lawyer made fundamental errors in his defense. For instance, he asked questions during cross examination that served only to bolster the State’s case. The State’s case went in very weak. Rather than limiting his questioning, his questions allowed the State’s witnesses to set forth damaging testimony against the defendant and clarify what was otherwise neutral testimony. This was one of several fundamental trial error I believe were made.
I got the impression that the lawyer was working off of a script of sorts, and rather that taper the questioning around the testimony, he stuck to his script. It was unfortunate that this young lawyer was sent out to “cut his teeth” on a case with such severe consequences to my client.
I am a baseball fan. Many games are won on pure “fundamentals.” Similarly, trials are often won or lost on pure fundamentals. The State has the burden to prove their case beyond a reasonable doubt – the defense has no obligation to assert a defense, and the defendant has a constitutional right to remain silent. Very often, clients want to know what the defense “strategy” will be – what the “game plan” if you will is even before the State’s case is reviewed. The best strategy has to hinge on knowing the pure fundamentals – in the game of criminal defense (and dwi defense), the fundamental principle is that the State has the burden to prove guilt beyond a reasonable doubt. If they have not met the elements, game over; the defense wins. If they have not proven the elements, do not pursue a defense strategy that will allow them to do so.
After years of defending people charged with drunk-driving, I have seen human suffering embedded in hearts and souls that make many people feel overwhelmed, ashamed, alone, and depressed. I have counseled clients weighed down by problems with complex and deeply-embedded layers that are seemingly impenetrable. I see people who feel like nobody could possibly understand their pain – people who feel ashamed, embarrassed, depressed, alone, and unworthy.
I have represented and counseled rape victims, victims of childhood abuse, adults who grew up with abusive parents, adults in abusive or poorly-rooted marriages, adults who inexplicably lost parents or loved ones, and adults who had a parent or loved one abandon them. Their depression, bitterness, anxiety, and low self-esteem are real and intense. That human suffering – the desire to get out of pain, is at the root of the alcohol abuse.
Chris Prentiss, the founder of “Passages”, a premier addiction treatment center, says that “[a]lcohol and drugs are not the problems; they are what people are using to help themselves cope with the problems.” (“The Alcoholism and Addiction Cure”, Chris Prentiss).
According to Prentiss, “[a]lcohol is just a quick and easy way to change ordinary, everyday reality from unbearable to bearable. All it takes is a short trip to the liquor store and a few drinks. People who are dependent are merely using alcohol as a crutch to get through the day. Yet doctors and scientists are still treating “alcoholism” as if it is the problem, when it has nothing at all to do with the problem. They might as well be studying “scratchism” for people who have a chronic itch.” (“The Alcoholism and Addiction Cure”, Chris Prentiss).
According to Dr. Keith Ablow, all addictions have a “common denominator … addicts are turning away from underlying emotional pain, always rooted in their life stories.” (New York Post, August 19, 2008).
According to Dr. Ablow, “[a]ll too often … attempts to cure addictions neglect to acknowledge their psychological cause – the why that explains a person’s determination to use one thing or another to try to run from unconscious conflicts, grief or low self-esteem. And without getting to the why, cures remain elusive.” (New York Post, August 19, 2008).
Dr. Adlow identifies what he calls “three truths about addiction (New York Post, August 19, 2008):
First, “[a]ddiction to anything – food or alcohol or an illicit drug or sex – is a symptom of an underlying psychological problem, not the whole of the problem. Insist on treatment that addresses the motivation for your behavior, not just the behavior itself.”
Second, “[t]he emotional fuel for addictions is more easily discovered than most people believe. You don’t have to spend years in therapy to find the psychological key that unlocks real healing. But you do have to make that exploration a priority.”
Third, “[a]ddiction often masks underlying major depression or an anxiety disorder or attention-deficit disorder. Treating those conditions can have a very significant impact on your long-term well-being.”
In the book “Terry: My Daughter’s Life-and-Death Struggle with Alcoholism”, former Senator George McGovern talks candidly and heart-wrenchingly about his daughter’s struggle with alcoholism. His daughter, Terry, died at age 31 when she froze to death after she passed out drunk, outside of a bar.
The book is very moving. One thing that was telling for me as I read the book was that Terry McGovern’s alcoholism morphed. Her abuse of and reliance on alcohol, caused her more problems and pain. That pain caused her to turn to alcohol to numb the pain – the pain caused by her alcohol abuse. It was a proverbial “vicious cycle.” I see this often with clients who are suffering from depression and anxiety. Unfortunately, these clients who are already in pain have added worry and depression after getting charged with a dwi.
I do not have all of the answers to this complex human issue. I do know however, that human suffering is the root cause of many dwi offenses. People who judge dwi defendants harshly and see only the offense, are myopic in their thinking. Many dwi defendants are merely people who have deeply-embedded pain that they are trying to medicate. Have comments? – Leave your thoughts by following the comments link below.
I intentionally did not include my clients in the Chun litigation. My logic was this: a challenge to the general reliability of the machine would be unsuccessful, and the only benefit in the end would be to the State and not the defense. The benefit(s) to the State as I reasoned would be: 1. establishing the reliability of the machine, and 2. ironing out the machine quirks and defense issues. My reasoning was that the defense was better off operating in a state of ambiguity – in other words, the State needed the clarity, not the defense. I achieved great success in the Alcotest cases I intentionally kept at the lower court levels. I could have brought my clients into the fold of the Chun litigation, but believed that they would be better served by remaining in the lower courts. The success I had in Alcotest cases included an outright dismissal, suppression of Alcotest readings, and recently an acquittal after trial in a Union County Municipal Court.
The Chun litigation served to bolster the State’s use of the Alcotest, and clarified for the State, the defense challenges. My opinion is that the defense (i.e. the defendants) would have been in a better posture operating in a state of ambiguity because the burden of proof rests squarely on the State – the defense has no burden of proof.
Greggory M. Marootian, Esq.
New Jersey DWI Defense Lawyer
The strict and unforgiving DWI law(s) in New Jersey fail to serve the aim of deterrence and may hinder rehabilitation. Harsh penalties create havoc on lives that may already be in emotional turmoil that caused the drinking and driving in the first place. Innocent family members who are relying on the drivers are negatively affected. For many offenders, a DWI charge is a wake-up-call. The stress, shock, shame, and embarrassment of being arrested, handcuffed, and having to stand in front of a Judge is a sufficient deterrent for many offenders. For many, (particularly multiple offenders), there is some underlying psychological condition that is causing the drinking. In other words, many people facing a DWI charge are “self-medicating” with alcohol to get out of pain and/or to change their emotional state(s). I have represented people suffering from varied and real emotional trauma that underlie the DWI offense (e.g. rape and child-abuse victims, people who have suffered unexplained loss of loved ones, people who have been betrayed by spouses, etc.). Penalties that are excessively punitive do nothing to help these people. Rather, the harsh laws may very well exacerbate their underlying psychological distress.
There is a prohibition against plea-bargaining DWI cases. A plea bargain is an agreement between the prosecutor and defense whereby the defendant will plead guilty to a lesser offense. New Jersey lawmakers have, for reasons that defy logic and fair play, singled out DWI as an offense that cannot be plea-bargained. The thinking is that DWI is a serious offense – the often-used lightening-bolt language used is that DWI causes “carnage” on the roads. However, murderers, rapists, child-molesters, armed-robbers, and other sociopath offenders cause greater havoc to society. Why are their offenses not targeted like DWI? These defendants can plea-bargain and make deals, but DWI defendants cannot. I believe that the distinction and targeting is simply unfair.
The targeting of DWI offenses (by not allowing plea-bargains, and not allowing conditional licenses) defies equality and fundamental fairness. Harsh New Jersey DWI laws do little to make New Jersey a safer and better place to live. Rather, harsh and unforgiving DWI laws allow other more serious and cold-hearted offenders to get breaks creating an illogically unfair system of justice. New Jersey DWI laws fail to deter, they punish families, and they push people who are already in emotional pain into greater despair. New Jersey DWI Defense Lawyer Greggory M. Marootian, Esq.