If Only Our Respect for the Legal System Could be as High as Our Respect for Journalist!

As many of you may have read or heard about, a Tarrant County judge was recently arrested for DWI. The arresting officer obtained a blood warrant and the judge was forced to provide a specimen of her blood. The defense successfully challenged the validity of the warrant which resulted in a ruling that the blood test result would not be allowed to be presented as evidence during the prosecution.

Apparently, this ruling did not go over well with Dallas Morning News columnist Steve Blow who wrote the following article in the Morning News:

Plenty of blame to go around in Tarrant judge’s DWI case

06:38 AM CST on Thursday, January 29, 2009
A week has passed and I’m still hacked. Many of you are, too. So let’s talk about it.

I’m referring to the ruling last week that threw out the blood-alcohol test in the drunken-driving case against Tarrant County Judge Elizabeth Berry.

Compounding my frustration is that I don’t know exactly whom to be mad at.

Berry was stopped for speeding last year in Alvarado, south of Fort Worth. She refused to take a field sobriety test, a breath test or a blood test, so a municipal judge signed a search warrant authorizing a blood test against her wishes.

Last week, after a three-hour hearing, Judge Robert Dohoney ruled that the results of the blood test can’t be used against Berry because the arresting officer’s supporting affidavit was too vague.

Too vague?

It said Berry was driving 92 miles an hour, appeared confused and unusually quiet, had eight beer bottles on the floorboard of her SUV and the smell of alcohol on her breath.

I’m no legal expert, but let’s just apply the parent test. If you caught your kid driving almost 30 mph over the speed limit, acting weird, with beer bottles in the car and smelling of alcohol, who isn’t going to think “drunk”?

But that’s just common sense. And as we have seen before, courts and common sense often don’t mix.

In the Johnson County courtroom last week and in a phone conversation with me this week, defense attorney Mark Daniel really tortured the limits of common sense on what arresting officer Taylor Archibald should have included in his affidavit.

“It just said he observed beer bottles in the floorboard. Daniel said. “Which floorboard? The front or the back? If in back, which side, right or left? Were the bottles empty or full? Were they warm or cold?”

When I mentioned the smell of alcohol as solid information, he attacked that as too vague, too. “Was it strong or minimal? Was it the smell of beer? Or bourbon. Or isopropyl alcohol?”

Daniel bristled at my suggestion that all this amounts to technicalities. “Some people may call it technicalities. Some call it the Constitution,” he said. “And I think the Constitution matters.”

Then he really landed a low blow, saying maybe I ought to be commiserating with Dick Cheney on what a darn nuisance that Constitution is.

OK, OK. I do fully support our protections afforded by the Constitution. I know specific standards must be met. I accept the painful reality that a few guilty may go free in protecting the rights of us all.

And that’s why I say I’m frustrated by not knowing exactly where to direct my anger. It sure looks like Officer Archibald and the Alvarado Police Department have to take some blame here, too.

Common sense may be enough elsewhere. But officers should know what the legal requirements are to support a search warrant.

In last week’s hearing, it came out that Officer Archibald’s original affidavit did not include the crucial information about alcohol on Berry’s breath. That was added only after the municipal judge coached the officer on the need for more specific information before she could sign the warrant.

It will be a real shame if this case falls apart on the basis of sloppy police work. It’s already a shame that the case has further eroded respect for our legal system.

A jury may never get to decide Judge Berry’s fate, but voters will have the chance next year. And as far as I know, common sense is still permitted there.

If you read Mr. Blow’s column you may have the impression that the case against Judge Barry has been thrown out and that she will not be prosecuted for DWI. If you have this impression, you are not alone as I have had several people ask me about this case and specifically why it was being thrown out on a technicality. A belief that this case is being thrown out is completely false. The case against Judge Barry has not been thrown out, only the results of the blood test. However, I don’t blame people who read Mr. Blow’s column for this mistaken belief, I blame Mr. Blow.

I have two questions for Mr. Blow. First, “Did Mr. Blow really believe the case has been thrown out?” And second, “If Mr. Blow knew the case WOULD NOT be dismissed why did he slant his column to give readers the false impression that the case was over?”

If Mr. Blow really believed the case was going to be thrown out then he should spend a little more time on research before firing off columns. In a metroplex with thousands of attorneys and two law schools, it should not have been hard for Mr. Blow to discover the case is not thrown out, only evidence illegally obtained by an improper search warrant is excluded.

Courts routinely hold pre-trial hearings to determine the admissibility of evidence that is anticipated to be brought up in future trials. In this case, Judge Barry’s attorneys challenged the warrant and evidence obtained through its use, for good reason. The Fourth Amendment to the United States Constitution prohibits unlawful searches and seizures without due process of law.

The warrant in Judge Barry’s case was properly challenged for being vague and because there were allegations that the judge who signed the warrant gave the officer suggestions on what to put in the warrant. I did not attend the pre-trial hearing, but a judge agreed with the defense and ruled the warrant was improper.

Judge Barry will still face a charge for DWI. Just because the warrant and evidence obtained from its use was ruled illegal does not mean that the Tarrant County DA will dismiss the case against Judge Barry.

Instead, the State will proceed to trial against Judge Barry with all other evidence. That evidence includes: 1) driving 30 miles per hour over the speed limit, 2) having numerous beer bottles on the floor board, 3) the odor of alcohol on Judge Barry’s breath, (4) videos from the arrest, and 5) Judge Barry’s refusal to perform sobriety test which, under state law, the prosecutors may argue that her refusal is a sign of intoxication.

At trial, a jury will determine if this evidence is enough to convict Judge Barry. The jury may also implement Mr. Blow’s “Parent Test” if they so choose. If the jury decides Mr. Blow’s “Parent Test” is enough to convict Judge Barry, then she will be convicted.

In regard to my second question for Mr. Blow, if he knew that Judge Barry’s case was not going to be thrown out, why did he slant his column to leave reader’s with the impression that it would? As a defense attorney, I often spend more time during jury selection rehabilitating potential jurors, due to columns like Mr. Blow’s, than I do asking relevant questions to determine if they would be fair jurors.

Mr. Blow may not be happy with a “technicality”, such as a violation of Judge Barry’s constitutional rights that prevented illegally obtained evidence from being admitted. However, he should have focused on why the warrant was illegal and not on attacking the defense attorney. However, that may not have sold papers. Misleading readers to believe a drunk judge was getting away with something does, I guess.

In the end, it doesn’t really matter. Mr. Blow has the bully pulpit to publish his column to the masses who read the Dallas Morning News. I am just an attorney with a blog that few people read. I will continue to educate jurors who are tainted by columns like Mr. Blow’s. I just hope that the next time one of my clients deserves to be exonerated because his or her constitutional rights were violated, that the jurors don’t have the same mentality as Mr. Blow.

Oh, and I also hope that one day my respect for the legal system will be as high as my respect for journalist.

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