Friday, November 7, 2014

Beyond A Reasonable Doubt

Everyone, Judge Payne included, stands for jury entering the courtroom

In a Jury trial held Wednesday at the Eastern Hampshire District Court, Deoclecio Artur, age 38, was found "not guilty" of the charge Operating Under the Influence of intoxicating liquor by a Jury of six.

The incident occurred back on Feb 21 when AFD Fire Chief Tim Nelson called Dispatch somewhat late on Friday night (10:47 PM) to report an "erratic operator".

Chief Nelson first observed the pickup truck as it came on to South Pleasant street via a clumsy turn where both the front and rear tires of Mr. Artur's truck went up over the curbing.

Chief Nelson, on his way home from a long day/night at Central Station, followed the truck for 1.8 miles observing him swerving over the center double yellow lines "five to seven times" and almost hit a PVTA bus that had stopped to release passengers -- one of them handicapped.

Mr. Artur pulled into the busy Hess Station on the corner of Rt 116 and Pomeroy Lane, going inside to get a coffee. Chief Nelson testified that Artur tripped upon entering the store.  Officer Corsetti, a nine year veteran of the department, soon arrived and Chief Nelson pointed out Artur.

Corsetti made contact in the Hess station and asked him to step outside. When the police officer looked back wondering why Artur was not close behind he noticed that he was having trouble getting out the double doors which require a push from the center line rather than left or right margins.

Corsetti had instantly picked up the "strong smell of alcohol" as well as those other associated signs of intoxication: glassy blood shot eyes and thick tongued slurred speech.

But, as usual, it was a busy time of night for understaffed APD, with reports of minor car accidents starting to come in, so Corsetti -- who had not actually witnessed Artur driving -- offered him a "gentleman's agreement":  Call someone for a ride and pick your truck up tomorrow.

 Officer Corsetti under cross examination by Attorney Chamberland

Artur called his mother in South Hadley, but she told him it would take 20-25 minutes to get there, which kind of defeated the purpose of the agreement, to allow Corsetti to return to patrol.

At this point the officer told Artur he would give him a ride to APD headquarters where his mom could pick him up. Convinced he was in no condition to drive officer Corsetti was simply not going to take the chance that Artur would simply jump in his truck after the officer left the scene.

Artur became agitated shouting, "You can't arrest me, you got nothing on me!" Convinced by up close examination that he did have something on him, Corsetti then decided to do a Field Sobriety Test and walked Artur over to a flat, paved, lighted area in front of the dumpster.

 Hess Station on West Street where FSTs performed

Corsetti patiently explained, and even demonstrated, the nine step turn, and one legged stand and then asked Artur, "Is there any reason you can't do this test?" (besides being drunk of course) to which Artur simply replied, "I'm cold".

He repeatedly lost his balance and missed every single step in the return phase of the 9 step heel/toe walk, also failing to stay on a strait line vector.  On the one legged stand he didn't count out loud as instructed (count to 30 by using "one thousand" after each number) and only made it to 7-one-thousand (minus the "one thousand").

In other words, he failed miserably.

Corsetti took him to APD for booking.  The booking video, presented to the jury by the defense, certainly does not show a staggering, slurring drunk (although the quality of the film left much to be desired).  Although I did notice Artur briefly use both hands to stabilize balance when coming up from a bent over position after removing his shoes.

 Deoclecio Artur on the stand

The defense made much of Artur being from Brazil where Portuguese was his native language, suggesting he did not understand the officer's FST instructions.  Although the prosecutor countered that he came to America when he was 12, graduated from an English speaking High School and trade school and even his mother proudly pointed out on the stand that he was fluent with English.

It was indeed cold that night and the defense put a Hess worker on the stand who testified it was slippery as she had to put down salt on the front entryway.  She also called Artur "a regular," although she didn't remember interacting with him close up that night.

 Amherst College weather station shows temperatures that night just above freezing (33.85 degrees)

Defense Attorney Chamberland also requested and made much of records from the Amherst DPW showing "spot treatments" had taken place around town at the time of the incident.

The defense also put a co-worker on the stand to testify that Artur had complained of a back injury due to heavy lifting while on the job as a carpenter prior to the DUI incident.  And medical records (well, chiropractor) showed he did seek treatment for a back injury, but not until April/May -- well after his February arrest.  

And the prosecutor did point out that Corsetti asked if there were any reason he could not perform the tests and Artur did not mention back problems.  In fact just prior to his arrest Artur had been at the Amherst Brewing Company, where he admitted to drinking "two beers," playing pool for almost three hours with friends.

One of those friends testified that Artur "was fine" just before leaving the establishment.  That same friend had left a little earlier and had texted Artur to, "Be careful the rotary is very icy."

The prosecution pointed out that you do tend to bend over and assume other physical postures while playing pool. Artur also admitted to not missing any days from carpentry work due to the back injury, and couldn't even remember the exact incident that caused it.

In his closing statement Attorney Alfred Chamberland reminded the jury that the American system of justice is built on a "presumption of innocence, and it's important you hear this term over and over again:  Guilt beyond a reasonable doubt."

He paused for just a dramatic second then quickly added:  "The Commonwealth fell incredibly short of that."

The jury agreed.

Two vital pieces of information, however, were not presented to the jury:  Artur had a previous DUI record; and he refused to take the chemical Breathalyzer back at APD station -- the test that is admissible in court.

In Massachusetts neither of these telling bits of information are allowed as evidence in a trial where the defendant must be found guilty, "beyond a reasonable doubt."


Anonymous said...

What the public does not know is that the SFST battery includes tests that Massachusetts does not allow into testimony (specifically the HGN and PBT). The battery is 91% accurate in identyfying those inpaired to an 0.08%. The tests have been scientifically validated HGN = 88%, WAT = 79% and the OLS (thats LEG not be one LEGGED means you have one leg) = 83%. The jury just let a danergous person go. Cops seldom (I mean less than 9%) arrest an unimpaired person. Trials like this is exacly why cops get apathetic and stop making OUOI arrests. They do their job and get beat up due to the poorly written statute.

Anonymous said...

And so, despite all of your embellishing details to paint the picture of a guilty man, the jury found him innocent. You presume he was guilty. One can easily read that in your tone, which as always, is blatantly obvious.

If this were a case of a fire fighter being found innocent by a jury of his peers, you would lauding the great jury system in the united states. Instead, since you are the over zealous reformed drunk yourself out to save the world from the evil alcohol, you choose to imply this innocent man's guilt. Drinking was ok until you decided to stop. Now it is everyman's downfall. Is that it?

Larry Kelley said...

Actually if it was a firefighter or cop I think I would be even more snarky about the results.

They have a higher calling which requires a greater amount of public trust.

To be perfectly honest (and this is the second trial I have now covered where I've said this) had I been on the jury I probably would have held my nose and voted "not guilty."

Without the breath test and the fact that he refused to take it, and the prior offense being kept secret, there would have been the tiniest bit of doubt.

And that's all it takes.

Anonymous said...

I didn't get that part about a "gentleman's agreement"; is it a cop's prerogative to let a suspected dangerous criminal go free?

Anonymous said...

Blah blah blah. No one cares about your statistics. That post reads like a failed defense.

I think there is something else to consider here that would have weighed heavily on my mind if I were on the jury--did the arresting officer actually observe him operate a motor vehicle?

It seems to me the "gentleman's agreement" made by the officer was likely based on that. Sure, the AFD chief would be considered a reputable witness, but, his role in criminal law enforcement of this nature would be just that.

In my opinion, jury did their job. He may or may not have been legally drunk that night, but I think without the officer's testimony/direct observation of him driving, the APD had no case. Perhaps the officer knew it wouldn't hold up in court and did what he could to keep this guy from getting behind the wheel.

The commonwealth failed to present enough evidence this week, maybe so, but what if you are alive today only because this guy didnt get the chance to crash into you back in February?

I applaud the officer. Gave the guy a chance before doing what he needed to do in order to protect.

Larry Kelley said...

A drunk driver is only dangerous if he/she is behind the wheel of a car.

Anonymous said...

Prior criminal charges and a refusal to take a breath test SHOULD NOT remove a jury's doubt, that's why they are not admitted: defendants need to be protected from members of the public who make assumptions rather than base their decisions on the facts of the case.

Anonymous said...

Speaking of justice, did you read the masslive article about Carolyn Gardners new website? Im wondering what her supporters are going to demand at the school committee meeting.

Anonymous said...

Wow, a cop was going to let a previously convicted drunk driver, who clearly appeared intoxicated and was observed by a fire fighter crossing lines and going over curbs, walk free.

Because he's a "gentleman".

Convince a mom whose kid died by drunk driver that that's a "gentlemanly" thing to do.

Anonymous said...

This guy had to be guilty beyond a reasonable doubt. Who in their right mind would choose getting arrested in paying legal fees and going to trial over just taking a ride home. No clear thinking sober individual would ever choose that.

Anonymous said...

Thank you Larry, for approving "drunk in public" as being OK with you.I'm sure glad it's only the driving part that bothers you. We need a few more drunks in town to spice things up...

Larry Kelley said...

Try paying attention ANON 3:31 pm
The officer was not going to let him "walk free".

He was going to remand him into the custody of his mother, and I've heard tell that Portuguese mothers can be as scary as Irish mothers.

Larry Kelley said...

Sorry I meant 3:13 Anon

And CAN 3:22 PM, what the Hell have you been smoking?

Anonymous said...

Anon is my understanding that Oui is arrestable on probable cause for operation. Meaning, the cop did not need to see him driving himself. In this case, He had a named witness that called the police while he was following him and relayed this info. When the officer arrived on scene, he coaberated this. I HIGHLY doubt the cop was giving him a break because he didn't see him drive and knew he couldn't do anything. He didn't observe him and didn't need to in this circumstance...

Anonymous said...

Bottom line; its a before the grace of God go I charge. Anyone can make the mistake. IF cops detect you then you deserve what you get. This guy, however, has had two bites at the time maybe he smashes into a bicyclist. They never ride bikes or walk in the road in amherst at night/sarcasm

Dr. Ed said...

Bottom line -- as a very good retired cop once explained it to me -- an officer must prove that the person was drunk while operating the vehicle (or attempting to) and not afterwards.

That's why George Bush's OUI should have been thrown out -- the arresting officer came to his house and arrested him there, after GWB had parked his car and gone into the house. There was no way to prove that GWB hadn't been drinking AFTER driving...

Or that this perp -- who almost certainly was guilty -- hadn't consumed the alcohol which put him over the limit AFTER driving. He had exited the vehicle -- I'm not even sure the legal authority to demand FSTs in such a situation...

Anonymous said...

My mother was Irish! You take that back!!