The Prosecutor, May-June 2013, Volume 43, No. 3

If it bleeds, it doesn’t always plead

An Upshur County jury has unexpected sympathy for a mother who drank and drove with three kids in the car.

There I sat, waiting, as my heart pounded in my throat, for the most agonizing moments of a trial to begin: the announcement of the jury’s verdict. “I’ll go ahead and read the verdicts in order,” the judge said. “As to Count One, we the jury, find the defendant, Courtney Farnsworth Lemmon, not guilty of driving while intoxicated with child passenger, as charged in the indictment.”
    Well, not quite the verdict I had anticipated.
    “As to Count Two, we the jury find the defendant, Courtney Farnsworth Lemmon, not guilty of driving while intoxicated with child passenger, as charged in the indictment.”
    Stop right there! I thought. There was blood evidence of Lemmon’s intoxication! And there was a highly trained, experienced, and likable trooper who made the traffic stop and testified. And there was a seasoned chemist who shot down the defense’s claims so badly, it was almost uncomfortable to watch. Each count, for each child in the car, had identical evidence, yet only on Count Three was Lemmon found guilty. What exactly had gone awry?
    Suddenly, it dawned on me: jury nullification, the elusive option given to a jury I had only ever read about in law books or seen on television. Even with blood evidence, reliable witnesses, and 12 citizens of a relatively conservative East Texas county, my case had just fallen victim to almost complete nullification. It was time to go back to the drawing board.

The case
If I’ve learned anything during my year as a prosecutor, it is this: A slam-dunk case does not exist. Never feed the belief that you are the prosecutor who has found the mythical slam-dunk case. What you think you’ve found is exactly that, a myth. In fact, the phrase, “this is a slam-dunk case,” is vehemently forbidden from utterance in our office.
    But one September afternoon of last year, sitting in my office as the newest felony prosecutor examining her newest file—The State of Texas v. Courtney Farnsworth Lemmon, DWI with child passenger—I smiled and thought I just might have a slam-dunk case sitting on my docket.
    Admittedly, Courtney Lemmon was not your typical meth-slinging, tattooed defendant with an approaching retirement at the penitentiary. And, as far as I could tell, this was her first run-in with the law. But she was untruthful, vulgar, and very intoxicated on video—the makings of a great defendant for the State. She had lied to the trooper about where she was coming from, how much she had to drink, and when she had had her last drink. Lemmon claimed she had her last drink in Austin, which at the very least was five hours away from where she was stopped. Impossible. She also said she had spilled a drink in her car “earlier,” and then the story changed to “a few days before.” Which was it? It didn’t matter; what mattered was she was too drunk to keep her story straight. And rather than thanking the trooper who released her children to their father rather than CPS for the night, Lemmon called him a “deutschbag.”
    Certainly, a jury would have no tolerance for a crass, visibly intoxicated driver who was endangering other drivers in their county. And no jury would like a mother who drove drunk with three children, all well under the age of 15, strapped in the back of her SUV. The case definitely had promise. As I flipped through the file, there lay my golden ticket—the blood analysis report. In the middle of the page I read, “0.13.” Well beyond the legal limit and high enough to disparage the thought that at the time of the stop, her blood alcohol content was below 0.08. Surely, this case would end in a plea.

Our plea offer
Because this was her first felony offense, Lemmon’s attorney received the typical DWI offer of probation—specifically, two years’ confinement probated for five years. As a condition of her probation, Lemmon would submit to a drug and alcohol evaluation, complete 400 hours of community work service, take a victim impact panel, have a guardian interlock installed in any vehicle she operated, and pay a DPS lab fee, CrimeStoppers fee, probation fee, and $2,000 fine. The only reason she escaped any jail time as a condition of probation was my sheer inexperience in determining felony plea offers.
    I never heard anything back regarding my plea offer to Lemmon. But I did hear from the defense, quite clearly, via a slew of arguably unusual motions. Her attorney never challenged the reason for the stop—her busted headlight, which was not captured well on video but was noted in the trooper’s report. Instead, her attorney subpoenaed a disk’s worth of information from the lab in Tyler and asked the court to take “judicial notice of nystagmus causes other than alcohol.” (The judge ultimately denied this motion as an improper comment on the evidence.) What would the defense be, and why, I wondered, was the case even heading toward trial?

The trial
The day voir dire began, I scoured the courtroom for the defendant I had seen on video. She was nowhere to be found. Instead, I spotted Lemmon, seemingly meek, young, and frankly a bit sympathetic. She sat huddled in a coat, wearing glasses and little makeup. It was then I should have known there would be many defenses in this trial; Lemmon would not even have to take the stand for the jury to listen her.
    But I stuck to my voir dire notes, explained the meaning of intoxication, and tried to weed out those who thought blood draws invaded their privacy and those who would weigh officer testimony based upon the past. There was no need to discuss punishment, as Lemmon elected sentencing from the judge. The defense asked the panel why a defendant would not agree to a plea offer where there is blood evidence. Their answer: because machines can be wrong. The defense also reminded the jury that we had to prove intoxication at the time of driving, not at the time of the blood draw.
    So there it was, why Courtney Lemmon refused my plea offer. Machines can be wrong, and she wasn’t drunk when she was stopped. That is exactly what the defense argued at trial.
    Now, I should say that the Lemmon trial was filled with firsts for me. It was the first and, I hope, last time a juror raised his hand during my opening argument to talk to the judge. It was also the first time I’d ever questioned the chemist who performed the blood analysis. So I’d be lying if I said it was my brilliant redirect of the chemist, Karen Ream, that blew the defense’s theories away. Ms. Ream alone, with her vast training and experience, single-handedly destroyed any idea that Lemmon was not drunk when she was stopped. Ream testified that because the stop happened around 11:15 p.m. and the blood draw happened at 11:40 p.m., there was just not enough time for Lemmon’s BAC to spike from below the legal limit to well above the legal limit at 0.13. And it was Ream who shot down any speculation that the blood vial was expired or that an alcohol fermentation process occurred in the vial. Interestingly, after Ream’s testimony, the defense decided to call no witnesses.
    So there we sat. Witness testimony and scientific evidence showed that as Lemmon drove drunk that night without a headlight, she endangered not only other drivers, but also her own children.
    With trooper testimony and video evidence, the jury saw at least one of Lemmon’s children and heard that when they arrived at the jail Lemmon herself confirmed their ages—all under the age of six. The jury also learned this wasn’t Lemmon’s only traffic stop that night.  Apparently, five to 10 minutes before the stop that ultimately led to Lemmon’s arrest, a different officer, this one in Winona, had stopped her for the burned-out headlight, but she let Lemmon go on her way with only a ticket. The jury never saw that officer or the ticket, but I’m certain now the jury remembered the story, as the jurors, like that elusive officer in Winona, let a little sympathy outweigh the evidence and overshadow the law. But I think the difference between the jury and that officer is this:  The jury wasn’t all right letting a defendant, even a seemingly tamed, single mother of three, head on her way without any punishment. Maybe that explains the single guilty verdict. At the same time, that jury wasn’t quite ready to give Lemmon three felony convictions. Maybe that explains the two not-guilty verdicts.
    Or maybe I’ve still got it wrong. At this point, I’ll never know for sure. I do, however, now know this. There will be strong cases for the State but probably never a true slam-dunk. The strongest cases will have officers and chemists, like the ones I questioned in the Lemmon trial—witnesses who perform their jobs meticulously. But no matter how strong the case or how sympathetic the defendant, the decision to convict remains with the jury.
    As a good friend and former prosecutor reminded me after this trial, “Sometimes juries just let everybody win a little.” There’s just no other way to explain it.