I’m joined today by my good friend Cliff Barnes.
MK: Cliff, I understand you ventured into the trial forum last week.
CB: First jury trial in seventeen years, Mike.
MK: Let us hear about it.
CB: Well, we got a two-word verdict, which is always an encouraging sign.
CB: This should go under the Unwinnable Cases because if you’re a law enforcement officer or a lousy lawyer, you would look at this and say, “This guy is guilty, dead to rights. Why’s he got this tricky lawyer, wasting all his money to defend him?”
MK: To tell you the truth, one of the courthouse deputies said that to me last week while your jury was deliberating.
CB: Ah, good, that makes it even sweeter.
CB: So, the case is about three years old. I got it after another lawyer had done nothing for a year. Hadn’t done Discovery. Hadn’t subpoenaed the video. Hadn’t basically done anything but set him for a plea, a plea of guilty, a year after he got the case.
CB: The family panicked and somehow I got hired to represent him, and when I read the police report, before I saw the video, I definitely would have said this was an Unwinnable case.
MK: What about it was unwinnable?
CB: Well, it was a high-speed, fleeing and eluding on the turnpike. He had a smell of alcohol and he was incoherent and couldn’t stand up. But the worst part about it wasn’t that, it was that he was going the wrong way on the Florida Turnpike for eleven miles – four-and-a-half miles of which the trooper was able to capture him on video before he pushed him off the road in what’s called a “pit maneuver”.
MK: Let me get this right. Your client was on video, driving the wrong way on Florida’s Turnpike, with a police officer behind him, videotaping the driving.
MK: Lights and sirens going?
CB: Yes, and my guy was in a little Prius – what, it weighs about several hundred pounds? And he’s in the lane where semi’s are going 80-90, and Suburbans and big vehicles like that – they all got out of his way, thank God, and the trooper actually saved his life and probably lots more. The trooper, in an amazing act of courage, they didn’t intercept him, the trooper got behind him with lights and siren and headlights, of course, flashing, so the oncoming traffic was at least alerted to the fact that there was a problem, but he couldn’t get him to pull over, and he had to eventually run him off the road to get him to stop.
MK: You mentioned a “pit maneuver”. What’s that?
CB: Pit maneuver is when the trooper comes up behind you and either hits your left bumper, turns right into your left bumper to make you go left off the highway, or gets up on your right, turns left, and then you would go off into the right area off the highway.
MK: I remember looking at this video with you at some point and to the right of your driver was some kind of a barricade.
CB: Yeah, it was the concrete separation. That area, that stretch of the Turnpike parallels I-95. So, my client was actually driving down the road with cars going in the correct lane just to his right, and the cars, they were headed north like he was, but he was in the southbound lane of the Florida Turnpike, so he had cars without any separation coming dead-on, semi’s, because it was midnight and a lot of trucks drive at night. So, they’re going seventy, he was going seventy, so you can imagine what would have happened with one hundred and forty miles per hour of collision.
MK: Sure. So the trooper did a pit maneuver and got your guy off the road?
CB: Got him off the road, but then my client started driving, but this time he was driving the correct way in the southbound lane. He didn’t stop. So then another trooper had to come up and physically push his car into the woods beside the highway.
MK: What happened next? Gosh, that sounds like a prosecutor’s question. What happened next?
CB: I won the trial.
MK: Just like that.
CB: The jury found him not guilty.
MK: Well, as they should.
CB: Of course. Well, what happened next was he was ordered out of the car at gunpoint, and when the trooper walked up to his car with a gun and pointed at him, he did the only thing he knew how to do at that point and raised the driver’s window, leaving all three of the other windows down.
CB: The troopers then got him out of the car. He had wet his pants. He couldn’t stand up. He told the troopers he thought he was on Indiantown Road, which is a two-lane for part of the way. And he thought he was going east-west, headed home on Indiantown Road instead of going north-south on the Florida Turnpike.
CB: I told somebody it’s the only DUI I’ve ever had, and I’ve been doing them, other than when I was a judge for eleven years, I’ve been doing them for forty years, and, of course, as DUI lawyers, we all try to minimize our clients’ inebriation or impairment, but in this case, I actually tried to emphasize his impairment to a degree, even more than the prosecutor, because it played into our defense.
MK: And your defense was…?
CB: Well, our defense was involuntary intoxication. Yes, ladies and gentlemen of the jury, he was impaired, but he was not impaired by alcohol. He was impaired by an unknown drug that, obviously, someone must have given him.
CB: My client was pretty much an altar boy or a choir boy, just a beautiful young man, working on his PhD in psychology. Never been in trouble in his life, He was not a drinker or a drug addict, at least according to everybody that knew him and his parents. Not the kind of guy that you would expect to go out partying on a Monday night when he had work the next day and get messed up.
CB: So, the defense was basically involuntary intoxication. He doesn’t know who drugged him. He doesn’t know how he was drugged, or what he was drugged with.
CB: My expert was able to say that the signs of impairment were not of alcohol, because the whole time, keep in mind he drove eleven miles on the Florida Turnpike without a collision (going the wrong way), and for four-and-a-half miles he was videotaped, and the videotape showed a driver not weaving, not swerving, not alternating his speed, not braking erratically, any of the signs that cops use to detect intoxicated drivers. Yet, he was so impaired he literally didn’t know where he was.
CB: So, that was the defense – involuntary intoxication. I put him on the witness stand, and the jury liked him. I love the kid. He’s thirty-something, but compared to me, he’s a kid. And that’s when I knew I was going to win the case, when I can look at a client, and I believe them and they have a valid defense. I’m not ashamed to try the case or put them on the witness stand, because I think I can make the jury feel the same way I do.
MK: Cliff, what kind of an expert did you look for and did you find?
CB: Well, you know, psychiatrists are known for prescribing and knowing all about medications and pharmaceuticals, but through your contacts, I was able to find a local psychologist who also was trained and had many, many years of experience with patients who were under the influence of various drugs, who had attempted suicide. Unbeknownst to me until this case, I found out that psychologists receive extensive training in these pharmaceuticals and their effects on the human body. Maybe they can’t prescribe drugs like a psychiatrist, but, and I didn’t know this, they can actually recommend to the patient’s treating physician a specific drug that they think would improve their symptoms.
MK: And this psychologist was able to help you educate the jury on what sort of symptoms one might expect from different kinds of drugs.
CB: Absolutely, The judge would not allow me to have him tell the jury what he saw when he viewed the video combined with what he read in the depositions of the troopers. In other words, I had to connect the dots between what you would expect from somebody under what’s called a sedative hypnotic, which is an extremely dangerous drug.
MK: That’s like a roofie.
CB: The illegal form is a roofie. The minor forms that you get prescriptions for could be Lunesta, Sonata and Ambien. The date-rape drugs are the dangerous pills that used to be manufactured here, now they’re manufactured in other countries.
MK: Okay, so this expert witness was somebody that didn’t know your client, didn’t view your client, didn’t talk about your client’s video, but just helped educate the jury about why a person under alcohol would have different behaviors and different symptoms than a person that was under the influence of a sedative…what did you call it?
CB: Sedative hypnotic.
MK: Sedative hypnotic.
CB: Absolutely, bingo. The expert was able to testify that someone, not my client obviously because he couldn’t apply it to the facts of this case, but someone who was intoxicated by alcohol couldn’t drive a car in a straight, unswerving manner for eleven miles, especially if it was combined with another drug, and I think the prosecutor made the mistake of asking him if the combination of alcohol and the sedative hypnotic could impair him.
CB: Well, of course, it could impair him. It would impair him so badly that he couldn’t have gone one mile, much less eleven miles.
MK: I remember when you and I looked at this videotape together before, way before you tried the case, we both thought that there was something else going on here, not alcohol, because his driving was so good. The only thing wrong with his driving was that he was going the wrong way on the Turnpike and he wasn’t pulling over for the cop behind him.
CB: Exactly. And then another trooper came in his lane, head on, to try and get him to swerve off the road, and my client kept going right straight, and the trooper actually had to swerve and then do a u-turn and catch up with the two cars, the other trooper and my client.
CB: It was fleeing. One of the charges, it wasn’t just DUI, it was fleeing/eluding, which carries a fifteen year prison sentence, up to fifteen years for high speed fleeing/eluding, and it probably should. If my client had truly been drunk, he probably should have gone to prison. He almost killed, well not only himself, but he could have killed a family. There could have been a chain reaction in the middle of the night there on the Turnpike. It’s an extremely serious offense, but my guy wasn’t guilty.
CB: The troopers had testified in the depositions and at trial that in all their years, which amounted to about forty years of working the Turnpike and I-95, they had never seen a case like this, which gave added credibility to the defense because the defense was terribly unusual. It was an unusual defense I’ve never used before. I’ve never seen it used. And so their testimony dovetailed with the fact that the defense was so unusual.
MK: And your client behaved, he drove as if he was completely unaware that there was a police officer behind him with lights and siren.
CB: That was the weirdest thing. And the way to explain that was, the psychologist said that there’s been many, many, many examples of people driving in between cities, in between states, who get in their car and drive until it simply runs out of gas. They don’t know where they are or where they’re going. But in their mind, in their dream world, in their sedative hypnotic world, they think they know where they’re going. They’re sure they know where they’re going.
MK: This is what we refer to as “sleep driving”.
CB: Sleep driving. Absolutely, and it sounds wacky but I’m there are lots of people that don’t report it because they’re embarrassed, but there’s lots and lots of examples in the literature. I’ve seen it, before and after I took this case, I’ve seen it reported in the news, because it’s such a strange occurrence that we don’t understand it.
CB: Even the expert said we don’t fully understand how they could have their fine motor skills like they do, and yet be literally in another world, in a dream state.
MK: Well, props to you, my friend, You did a great job last week and you got the right verdict.
CB: Thank you! My client was such a nice, young man, and he’s got a second chance at life and a second chance at his career now, so that really makes me feel good, that my work resulted in a good outcome.
MK: And the judge, and the clerks, and the bailiffs and the prosecutor all saw that you can win the Unwinnable Case.