Today I had a conversation with a friend of mine over coffee after our cases were called in District Court. We went across the street for a cup of coffee, and he told me about his recent OUI trial. He said that at the close of the Commonwealth's evidence, he moved for a directed verdict because the prosecution had not offered any testimony that the place where the defendant was stopped was a "public way." This is an element of the offense, and must be proven BRD. The judge thought for a moment and then said that because there had been some testimony that there was a curb and a line on the pavement in the area of the field tests, the jury could find that it was a public way. That, of course, is bullshit. My friend's client was found NG anyway, so the issue is moot. But this is a scenario that is not foreign to many who practice in this particular courthouse, and a few others.
This is the type of judge who is constitutionally incapable of questioning the credibility of a police officer's testimony. It is the type that turns himself inside out to save prosecutions, safe in the knowledge that most defendants in District Court will plead, so there will never be an appellate review of the case. It has become common knowlegde on the street in the communities served by this courthouse that the minute someone walks into the building as a defendant, he or she is screwed. It has become amusing, in a macabre sense, to watch out of town lawyers try to get their heads around some of the rulings the judges in this building are issuing. For those who are there regularly, it is a challenge not to get worn down, to become part of the machinery working smoothly to process defendants.
I am reminded of a story I heard at a NACDL conference somewhere. I apologize to the speaker, I do not recall who it was. He said that the justice system is like a bicycle, rolling along carrying our clients to jail. The prosecutors are the pedals, pumping along, building momentum toward a guilty verdict. The judges are the handlebars, steering the contraption directly to conviction. We criminal defense attorneys are the front wheel, going along, keeping the machine upright, going wherever we are steered without hesitation or resistance. The speaker, who was riveting, then said, Don't just be the wheel, going along with the rest of the machine. Go flat. Fall off. Do anything to stop the machine, or at least make it take another route.
I try to remember that story when I am feeling beaten down by a judge who thinks he wears a badge under his black dress.
