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THOMAS MORTENSEN,
THOMAS MORTENSEN, 01.06, Tulsa, won a misdemeanor (six person) DUI jury trial last week(!) Two day trial. Client left a bar in Tulsa and took off driving 70 MPH while cop pursued. Cop followed for about a mile before activating lights. Thomas reports that when client was arrested he refused to take any SFSTs, refused the breath test, and just told the arresting officer, "Just take me in." Client had had surgery on his leg one year prior to the arrest and walked with a limp. The officer never asked client if he had any medical conditions that would cause the limp and insisted that the limp was "gait ataxia" which I think is a fancy way of saying that client walked with a limp because he was drunk. Thomas reports that the arresting officer was a DRE and testified to the usual DUI symptoms. Client attempted to take the stand, got so far as giving his name, before he had a panic attack in open court and in front of the jury(!) The trial court recognized it and called a recess. How to win the case?
1. Impeach cop: Thomas acquired the X-rays and medical reports regarding client's leg surgery (and the State stipulated to them). When cop took stand, Thomas asked if the fact that client had leg surgery would have changed his opinion about the limp being gait ataxia. Answer, "No." Eye rolling by the jury. Also, cop testified that client was weaving during the drive, but did not put anything about weaving in his written report.
2. Good closing: Thomas took a page from Gerry Spence (in voir dire and closing) and explained to the jurors that the burden of proof is not a sword that guilty criminals use to go free, but rather is an important tool to help jurors decide cases so they do not have to guess about the outcome(!) Thomas said he watched Spence's CDs and they are incredibly helpful. During closing, Thomas hammered this home this concept and also the fact that the cop would not even consider the surgery as being a factor in the case. Inexplicably, one of the jurors was a medical doctor who worked at the same hospital as the doctor that treated client and the State left this person on the jury. Thomas asked the jury who were they going to trust, a cop bent on making an arrest or a respected medical doctor?
3. A little luck: Cop administered HGN test and Thomas filed a motion to exclude it. The State did not respond and apparently conceded this issue and did not mention this evidence.
FINAL NOTE: Thomas was mortified when he spoke to the alternate juror while the jury was deliberating and discovered that the alternate would have voted to convict, stating that she did not believe that the defendant had proved he was not drunk(!!) She said this even after Thomas had spent a lot of time explaining the State's burden of proof and the presumption of innocence during voir dire. This is a good lesson that you can never over-explain these concepts because sometimes they jurors just do not get it.
Fabulous work, Thomas
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