DUI procedure quickly followed

Wednesday, February 25, 2009

When an attorney subpoenaed evidence against his client in a case alleging drunken driving last week in court, the Marshall County General Sessions Court judge declined to grant the lawyer's request, citing state law.

It's really in the Criminal Laws of Procedure, or rules under which trials and pretrial hearings are conducted, and in this case - which just happened to have a school board member as the defendant - the facts of life and power prevailed.

"Each judicial district does it differently depending on the position taken by the district attorney," according to Shelbyville-based defense attorney John Norton who noted the practice in this 17th Judicial District is more strict than what he's experienced in, for example, the 12th District that includes Winchester and the 14th District that includes Manchester.

"Clearly, the more information you get, the more likely you are to try to settle, especially if the information is bad for your client," Norton said, turning to a theoretical example with armed robbery as the charge. "The client may say, 'I didn't do it,' but if you are restricted to Rule 16 [that limits discovery to the circuit court level,] you wouldn't know that the state has two witnesses...

"If you did, you might have one of those 'uh-oh' moments," he said. "The facts are the facts."

They can help tailor the defense, lead to a settlement and save taxpayers' dollars, the court's time and the defendant's time, he said.

The case in question with Lewisburg defense attorney Walter Bussart asking the court to enforce subpoenas for information included Judge Steve Bowden suggesting that Bussart confer with Assistant District Attorney Kate Lavery to see how much information she'd share. Lavery is assigned by District Attorney Chuck Crawford to prosecute all DUI cases in the district that includes Marshall, Bedford, Lincoln and Moore counties.

"The rules of discovery kick in once the case hits circuit court," Crawford said of the chain of events after a grand jury indictment. "Prior to that, there is no discovery," Crawford said, reiterating his position that was supported by Bowden's ruling.

Defense attorneys have access to public records and their clients have a right to a preliminary hearing in sessions court where law enforcement officers are called to state the charges and are subject to questioning by the defense.

District attorneys are the highest elected law enforcement officers in their districts. They have discretion to prosecute or not, based on their judgment, application of the law and experience.

Prosecutors in other districts permit "open file discovery," Norton said. Even with that he felt obliged to take a murder case to trial in Murfreesboro because the plea bargain available was life in prison, and while that's what the defendant got, there was always a chance hat the trial might result in a lesser sentence.

Crawford said the rules requiring prosecutors to share information in circuit court is to "do away with the practice of trial by ambush."

Nevertheless, it's rare that a case is resolved with a bench trial in sessions court. That level of adjudication is to determine whether there's probable cause to move a case toward trial in circuit court after probable cause is considered by the grand jury.