It’s time to tell you how my traffic ticket saga ends. First, however, I should tell you how it started.
About a month ago, I was driving on a local expressway when I entered an area with some construction off to the side of the road. At about the same time, I came up behind a slow-moving car. We were in the middle lane, so I changed lanes to pass him on the left.
I was still in that lane when I noticed a State Police car right behind me. A few seconds later, he flipped on his lights. Not sure if he was stopping me or just trying to pass (it’s happened before), I signalled a lane change and moved over. He followed me over.
I waved to let him know I saw him, then I moved over to the right until I was off on the shoulder. I found a nice wide place to stop, and I pulled way over so he’d have plenty of room to stand next to my car without getting hit by passing cars.
He walked up and told me I had passed an emergency vehicle parked on the shoulder without changing lanes. My confusion must have shown, because he explained that there was a truck with flashing lights on the shoulder in the construction zone.
While he went back to his car to write the ticket, my wife and I discussed the situation, and neither of us could remember the truck. When the trooper returned, my wife asked him to explain what had happened, and he again said there was a truck with flashing lights on the shoulder, and that my lane change had taken me closer to it when I should have been giving it more room.
The ticket required a court appearance, and when I read up on the law, I got a little worried about the potential for high fines or suspension of my license, so I hired a lawyer.
I should point out that despite my misgivings about this law, I have no principled objection to requiring drivers to change lanes or slow down when passing a stopped emergency vehicle. It’s a simple rule, it infringes no basic rights, and it serves a legitimate public purpose.
In other words, I wasn’t under the impression that I had done nothing wrong. I didn’t remember seeing any construction vehicle, but neither could I say with any certainty that there wasn’t one. Given that I don’t think of construction trucks as emergency vehicles, I could easily have missed seeing one in the shoulder.
I hired a lawyer to avoid getting screwed because I didn’t understand the law, not because I thought I was innocent. Going into court, I assumed I was guilty.
Unfortunately, when I had my day in court, the judge agreed with me. I lost.
How did that happen? I think most losing defendants blame lying cops and lousy lawyers when they lose in court. Why should I be any different?
My lawyer and I spoke twice before the trial, once on the phone and once outside the courtroom, for a total of about half an hour. He’d clearly spent some time thinking about the case. I was kind of impressed since this was just a traffic ticket. He had me believing the case was winnable.
Because my record is pretty clean, my gut instinct was to plead guilty and ask for supervision. If the judge agreed, I’d pay a fine, attend traffic safety school, and keep my nose clean for 4 months, and nothing would go on my record. I haven’t done that in about 20 years, but I gather it still works that way.
My lawyer had a different idea. He thought the law was poorly written, and he couldn’t find any case law about it, so he thought we should go to trial. I told him that as much as I hated telling a lawyer not to do his stuff, I was reluctant to take the risk of a conviction when I had a chance at supervision. He told me I’d still be eligible for supervision. I told him to go ahead.
About 10 minutes later the clerk called the case and my lawyer indicated we wanted a trial. The prosecutor said he was ready, so the cop and I were sworn in together in preparation for our testimony. Then the prosecutor started questioning the cop, and a strange thing happened.
The cop changed his story.
When he originally stopped me, he had told me twice that I passed a truck. In court, however, he testified that I passed a State Police car that had pulled someone over. He also said there were no other vehicles nearby, and that I didn’t slow down.
My first thought was that he had changed the vehicle to a police car because that sounds worse than a construction truck. When I thought about it later, however, I remembered that one of the elements of the crime was that the emergency vehicle had to be engaged in its official duties. My lawyer had thought he might have a chance of getting a dismissal if nobody was able to put it on the record that the construction truck was on duty. How would the trooper know? Did he go back and interview the occupants? I wondered if maybe he changed his story because a police car performing a traffic stop is clearly doing its official duties.
There are more benign explanations as well, such as bad memory. The scenario he described is typical of a special enforcement effort for this law: One cop spots an unrelated infraction and pulls the offender over, then a second cop pulls over people who pass the first cop. If the trooper did a lot of those recently, maybe he just got one of them confused with my case. Or maybe, despite identifying me as the guy he pulled over, he has no actual memory of the stop and just made up something plausible. In either case, he should have taken notes, but maybe he’s bad at that, or he forgot, or his dog ate them.
So, it’s possible the cop didn’t really lie. But he certainly didn’t tell the truth.
While I was out driving one night many years ago, shortly after I first got my license, I noticed a police car had done a traffic stop ahead. This was a street without a shoulder, so he was in the right lane, and I was in the left lane. Just as I passed him, the officer threw open his door and stepped out, forcing me to swerve for his safety. He didn’t actually step in front of my car, so I probably wouldn’t have hit him, but ever since then I’ve approached emergency vehicles with caution.
My point is that I would have noticed if I passed close to a police car. I might not have changed lanes, but I would have remembered all those flashing lights.
Yet the only way the officer could be telling the truth is if (1) I didn’t notice the police car, (2) my wife didn’t notice it either, and (3) when the cop stopped me, he somehow misidentified a police car as a truck.
There’s just no way. I passed a construction truck or nothing at all.
Now there’s an interesting thought. They say that you should always tell the truth because it’s easier to remember. Maybe that’s why the officer couldn’t keep his story straight: He made it up. Maybe the reason my wife and I don’t remember a construction vehicle is because there wasn’t one. It suddenly seemed possible that I was actually innocent—as in I didn’t do it. Needless to say, I like this theory.
During cross, my lawyer asked the trooper how far off the road the other cop car was (in the shoulder), where its driver was (standing to the left of the car he stopped), and what method he used to tell I didn’t slow down (eyeball).
I was surprised that my lawyer ignored the change in the cop’s story. I asked him about it later, and he seemed to have missed it, which kind of pissed me off. Wasn’t he paying attention?
Then again, so what if the cop changed his story? The specific factual issue is immaterial: Whether I passed a truck or a police car, I still passed something the law defines as an emergency vehicle. On the other hand, if the cop can’t keep his story straight then his testimony is a lot less credible. However, I’m the only one who knows that for sure. If I tell the judge about the cop’s conflicting statement to me, is there really any chance he’ll believe me? Does it create reasonable doubt? Still, what’s the harm in trying? I’m not sure what to think about this.
The prosecution rested, and my lawyer moved for dismissal, which was denied. Now it was my turn. My lawyer asked me what I did when I saw the police car on the shoulder.
Given the cop’s testimony, I was tempted:
“The trooper is mistaken about the highway being clear of other vehicles. I had just come up behind a slow-moving vehicle in the middle lane. I signalled and moved into the left lane to pass. The road curves to the right, so until I was fully in that lane, my view of the shoulder was obstructed by the other vehicle. Once I saw the stopped police car ahead, I started to slow down to move back into the lane I had just left, but the other vehicle slowed down too. By the time I had dropped back far enough for a safe lane change we had already passed the stopped police car, so I just stayed in that lane until the trooper pulled me over.”
I don’t know if that would have worked, because it would still be my word against the trooper’s. Who’s the judge going to believe? Even worse, the prosecutor—who’s probably done 500 of these things—might have found a quick way to trip me up. In any case, I wasn’t about to perjure myself over a traffic ticket. I told the judge that I didn’t remember seeing a police car or anything else that presented a hazard or that was unusual, so I don’t know what I did.
In closing arguments, the prosecutor reiterated his case. He also called my testimony “not credible,” which pissed me off.
My lawyer responded with a defense I didn’t quite understand. I think he was arguing that the law was poorly written and unclear and that it seemed to require that whenever a cop pulled onto the shoulder all the traffic was supposed to move over a lane and that if everyone did that then traffic would grind to a halt and that no one ever really does that so that cannot have been the intent of the law in which case we don’t know what it means so I should be found not guilty. Or something like that. I really didn’t get his point.
When we were done, the judge said he used to do personal injury law and accidents were terrible things and safety was important, so he convicted me and gave me a $150 fine.
My lawyer then told the judge that I shouldn’t be punished for asserting my right to trial and asked for supervision. The judge denied it and moved on to the next matter before the court. As we were leaving, the judge told us to come back up so he could get one more thing on the record. He addressed my lawyer and said that he’d been giving out $150 fines to everyone that day.
When I said I had a lousy lawyer, I was mostly kidding. It just feels like I had a lousy lawyer because I lost. I was also pissed off that I let him talk me into going to trial. I should have taken the supervision.
As he walked me to the clerk’s office to pay my fine, he seemed genuinely embarrassed that we lost. He told me that he hasn’t lost a case in this courthouse in about 6 months. He also told me that because the offense was failure to yield to an emergency vehicle I wasn’t actually eligible for supervision, so we lost nothing by going to trial. I didn’t ask him why he told me before the trial that I was eligible for supervision.
It would be easy to say he’s a bad lawyer because he lost, but that would be a common analysis error: You can’t learn much from a single data point. The outcome of a case depends on lots of variables beyond the control of the lawyer—many of them also unknown to him—so whether he wins or loses a single case doesn’t reflect all that strongly on how well he does his job. In this respect, lawyers are a lot like sports figures: On any given day, the best can lose and the worst can win.
In sports, you can just watch more games until you build up enough data to draw sound statistical conclusions. That’s harder to do in trials, because they’re all different and because of some selection bias (i.e. good lawyers getting the harder cases). In situations like that, you have to ignore the outcome and judge elements of the actual performance.
Only I don’t know nearly enough about lawyering to judge his performance. Most of what I know comes from reading courtroom stories about spectacular cases, and my lawyer did nothing that struck me as spectacular, but that’s not at all surprising for a routine traffic case. If he’d made some clear and obvious mistakes, I could safely decide he did a bad job, but he didn’t, so I can’t.
I’ve mentioned a few things about my lawyer that give me pause, but I doubt that any of them would have changed the outcome. The cop said I did it, I said I didn’t. The judge believed the cop. I guess my lawyer did what he could with the case I brought him.
The only thing we could have done differently is not gone to trial, and if the lawyer’s right about this case not being eligible for supervision, even that wouldn’t have helped.
The truth is, I really don’t know how to tell if my lawyer did a good job. He told me later that the prosecutor’s plea offer was a $500 fine, so we still beat that.
He probably did a decent job, but…dammit! I was hoping for an acquittal!
On the other hand, I’m going to remember the lying cop for a long time. It astounds me to think that a cop would lie in court over a traffic ticket, which is why I’d like to think that he didn’t do it on purpose. Nevertheless, his testimony was flat-out untrue.
That’s a bit of life experience I’ll definitely take with me next time I’m sitting in a jury box.