Jay Milano Attorney and Counselor at Law

Monthly Archives: December 2010

The Policeman Is Your Friend*, Homicide Case Dismissed

This is not the accident scene.

[teaser]* Unless he thinks you are guilty[/teaser]

“I am not a criminal-so what am I doing sitting here waiting for a criminal defense lawyer- Jay Milano?”

There sat the client and his wife on a bench outside of a courtroom.

They were young, good looking, hard working and had been trouble free. They were about to start their family. They had just received the news that she was pregnant. They looked much like they would have looked sitting and waiting for her OB/GYN- except they were surrounded by the usual suspects that haunt criminal courts.

They were frightened. They were also confused.

There had been an accident. A man had died. There had been two independent witnesses. Both had a clear view. Both said it was not the client’s fault.

Nevertheless, there they sat. He had been indicted for Vehicular Homicide. Vehicular Homicide means you killed a man with your car. It was your fault and the result of you breaking the law. The allegation alone changes your life.

This client was driving down a straight road in Lorain County. It was a sunny Saturday afternoon. No drinking, no drugs. He was traveling within the speed limit, following a car but not tailgating. Traffic was average.

The road was a bit confusing because there was a cross road, but it did not pass straight through. It came in on his right and dead-ended. The left turn was a few hundred feet further on the left.

As they came to the road on the right, the car in front of him slowed down. It looked like it was trying to turn left, but had nowhere to go. It moved forward a bit, started to turn left, hesitated and then started to turn again.

Like a video game the scene in front of the client exploded. The turning car was struck head on and started to spin. The client tried to avoid it but was struck and ended up in a ditch.

Everyone seemed all right. The old man in the left turning car did not appear to be injured. As a matter of caution, he was taken to the hospital. The highway patrol came and took pictures and interviewed everyone. They exchanged insurance information. Bad day, but things happen.

The old man died at the hospital.

The client learned of the death when a highway patrol officer came to interview him. The client reported that it all happened very quickly. It appeared the car in front tried to turn, hesitated and was struck by an oncoming car. It began to spin. The client tried to avoid the car as it spun, but he hit it and went off the road. “Weren’t there witnesses?” he asked. He felt terrible, but it was not his fault.

That was it, he thought. It was over.

In a few days he got a letter from a lawyer for the deceased’s family telling him to notify his insurance company, that he had caused the death. The insurance company informed him that he might be charged in the accident. They told him they would defend him in a civil case, but not a criminal case.  They sent him the complete police report.

It was not over.

At this point, like most people, he thought that this would resolve itself. The police report had statements from two witnesses. They saw the accident exactly as he had seen it. The car tried to turn and was struck head on. The criminal part, he thought, would never happen. His insurance company would take care of the rest.

But he called and made an appointment. He thought it prudent to talk to a criminal defense lawyer since he was told he might be charged.

He came in with his wife. I reviewed the reports, told him that I would contact the Prosecutor’s Office and the Highway Patrol-just to make sure. I did. I got no answers except that the case was under investigation and they would let us know.

Three months passed, along with phone calls from the client and unanswered inquiries. Then he was indicted. He was charged with Vehicular Homicide. He was charged with causing the man’s death. It made no sense.

So there they were on a bench, in the hallway of the courthouse- him scared, her scared and pregnant.

Cases start with the Prosecutor and Defense Lawyer meeting to exchange information. I went, assuming that a close look at the witness statements would cause the Prosecutor to come to his senses.

The Prosecutor gave me the police reports to look over. There was a problem. There were pages missing. The only pages missing were the independent witness statements. The exact statements that exonerated the client were not there. They had not been presented to the grand jury that charged the client with a crime. They were not given to the Prosecutor.

There was no logical explanation that I could see. I believe to this day that the Policeman had taken sides. It is my opinion that someone deliberately withheld the witness statements.

Right or wrong or a coincidence, the only two independent witnesses were gone. If the client had not gotten the original police reports, then chances are no one would ever have known about them. They would have ceased to exist.

I pointed out to the Prosecutor that there were missing pages- very important pages. I showed them to him.  He shrugged it off and said he would look into it.  We were postponed a month. The clients were disappointed.

A month layer, same hallway, same bench, same scared client and his wife, her a little more pregnant.

The Prosecutor had no explanation. He had taken no action. He said that he and his colleagues would “round table” this case and likely dismiss it.

Hope. They were going to be reasonable. Despair, another delay. Being charged with a crime weighs more on you every day. You wake up in the middle of the night, and stay awake, thinking about nothing else.

A month later, same hallway, same bench, same scared client and his wife, her a little more pregnant.

This time we had a new Prosecutor.  The Highway patrolman was also there.  He sat down to explain to us how he knew what happened. He went through his version of the events and never mentioned the witnesses. The ones who said he was wrong. The ones who said the client was innocent. He walked out, cock sure that since he was a policemen, all would believe him.

The new prosecutor said she was concerned about the statements, but she had to look into it. Amazingly, she called to tell me that they were going to have an expert from the highway patrol examine the accident to see who was right. The argument became heated. She did not need an expert, that there were two eyewitnesses. The statements had been concealed. I did not dissuade her.

Two dynamics of criminal justice were at work here. First, once a charge is filed, it carries weight. It is very difficult to undo. A victim has been named. His family has rights and a very loud voice in court. To dismiss the case dishonors his death. Second, police and prosecutors work together every day. Prosecutors will do everything reasonably (and sometimes unreasonably) possible to protect their policemen.

A month later, same hallway, same bench, same scared client and his wife, her a little more pregnant.

This time a young highway patrolman came in and declared,  without any hesitation, that he knew who had caused the accident. It was the client.  He could tell by marks on the road that the witnesses were wrong. He was sure. It was ashtonishing that he dismissed the witnesses with such clarity. He had no real evidence. This young highway patrolman fully expected me to say “Yes, sir” and go out and tell the client that he and the witnesses were had met a greater force. He must surrender. He had better pled guilty.

Put it in writing, I said. Let us have an accident expert test your theory.

It is my opinion that this young highway patrolman who called himself an expert was willing to stretch his expertise (read the truth) to accommodate his friend (who, by this point, knew he had a major problem with hiding evidence).

Now we were set for Trial two months out. The wife would be 7 months pregnant by then.

The Judge ordered the prosecutors to produce the young highway patrolman’s report. They never did. We let the Judge know two weeks before the trial that the State had not done what he told them to do.

Two days later, I got a phone call from the Prosecutor. The young highway patrolman would not put his opinion in writing. They would dismiss the case.

Three days later, as if another insult was necessary, we went back to Court. The clients sitting on the bench as they had done 7 months before, she very pregnant, both of them very relieved.

The case was dismissed. It had been a year since it started.

My opinion: the original highway patrolmen took sides. He decided that it was the client’s fault and then, rather than investigating, just built a case. He did so even to the point of hiding evidence. His young buddy covered his ass as best he could, but in the end would not put himself on the line by joining in the lie.

People take criminal justice for granted. They assume the police are out to help them. If they just explain what happened, it will all be fine. Regularly people come to us in serious trouble, after having trusted their instincts or the policemen or an inexperienced or ineffective lawyer to “Straighten it out.”

Right now we represent a professional woman who thought she could explain away sloppy paperwork. She got charged with 6 felonies. A friend walked into our house, unannounced, a few weeks ago, desperate for information because her son’s lawyer would not talk to her. Had he done his job, the young man may never have been charged.

Criminal justice is hard. And it is counter-intuitive. It is not something you can do yourself.


PS The baby will soon be born. I will keep you apprised.

If anything comes up, for you or someone close to you, anything for which you might need a lawyer, just call. If it is not a problem, I’ll tell you. I am not in the business of scaring people. If there is a real problem, we will put it behind you.

%d bloggers like this: