Fact or Science Fiction?

I am a big Sci-fi movie fan so when the new summer trailers started to appear this winter my heart raced with excitement. I could not wait to see Star Trek, Wolverine, and the upcoming soon to be released Terminator. I enjoyed Star Trek for the first rate performances, dialogue, and special effects but was not overwhelmed by the story. Yeah call me a stickler but ...WARNING SPOILER ... PLOT ALERT... having Young Spock and Old Spock meet up face to face and then lead dual lives (different purposes) in the same time period was a bit much. To me it violated every science fiction rule possible. My boys told me to lighten up, and suspend disbelief, anything is possible, it is fiction.

Which brings me to time travel and criminal defense. Everyone has a story. How things happened, what they saw, the way things went down. Every story comes from a perspective, a vantage point so to speak, and also comes through a set of unique and personal filters.

How we all view the world and things constantly happening around us are different for the teenager versus the senior citizen, different for the conservative versus the liberal, etc. We bring to all of our senses (and sensory inputs) a set of relationships. What we think is big or small, cheap or costly is always based upon comparisons, never is anything decided in a vacuum.

I listen to my clients version of events, then read police reports, gather evidence, visit scenes, and piece together a story. What is the un-biased version? Because every police report and government document is written with a bias. The bias being the crime or crimes charged must be substantiated. They want a conviction. What descriptive words were selected to explain the pre-stop, stop, and probable cause needed for the arrest? What facts were left out of the officer's narrative? Since we do not have a time machine as yet, we can not go back, and re-live the night. We must (as good criminal defense lawyers) detail all the facts, both good and bad to our case, even the ones left out of all the documents. We must draw out with our imagination how the story played out. The more vivid we can make our story for the jury the more likely that our movie will be successful, and well received as the truth. Yes, I believe stories that come alive, make sense, and have depth win the day in Court.

Recently, I had a case where the Police officer wrote conflicting bad facts in his report. Both facts were bad for my client. The first fact he stated was that my client was wobbling and swaying during the HGN (Horizontal Gaze Nystagmus) test. The HGN is supposed to assess BACs above 0.10% and therefore indicate DWI when done properly. His second bad fact he stated in the report was that my client failed the HGN. Now comes the good part, the HGN test requires a fixed head that is not moving. You can not have it both ways Officer!

What are the facts: If the body is swaying and wobbling the head must also be moving (that was not in his report). How can you observe and record the movements of eyeballs under those conditions? How can you estimate angles? Now think of the absurdity of this:

With a pen in one hand, a flashlight in the other hand, at 2:00am, with blue and red lights flashing, with my client swaying and wobbling, the officer is moving the pen side to side, recording and observing eye movements, and scoring this test objectively? Needless to say this case did not go too far.

That is why I laugh when criminal defense attorneys tell me they spent five minutes with a police report, and then give their clients an opinion about their DWI case. I do not speed read police reports or other important discovery documents. That is when slow, careful reading and dissection is required. More importantly, I place the facts into the clear light of day, and within the context of probable cause.

The mental skillset necessary for any good defense attorney are the ability to "read between the lines, find conflicts in the evidence, and to bring the true facts most helpful to our clients to the attention of the Court and most importantly to a Jury."