The Seven Year Slog By Andrew Mishlove
The case lasted seven years, six of it with me. I was lucky to have a motivated client, but whose faith in me only made it more stressful. I could tell a hundred vignettes about this case, but I’ll not try to do it all at once.
The Ethics Dilemma
Johnson was charged with third offense DUI, facing a year in jail. I had an argument that his record was flawed, and he should be charged with a first offense. I won.
It was a big win, but there was a problem. A day after the hearing I found a case directly on point that supported the state’s position. I had inadvertently made a false statement of law to the court. I had an ethics dilemma. Should I correct my mistake? I felt that I must. I am not a believer in using trickery to win. That may work sometimes, but I must live with myself and God. Cleverness fails more often than it succeeds, and my name is worth more than any case. So, I talked it over with the client. He was NOT happy with me for suggesting that we throw away a victory, but he consented to it. There were several times over the next few years where he brought it up, unhappily.
I told the judge. He vacated his order, and the issue was re-argued. I lost, appealed, and won. Then the government appealed, and after years and a trip to the supreme court, I finally lost the issue.
My candor with the court left us in the same position we were in years earlier.
Back to Square One
Once again Johnson was facing a year in jail on a third offense charge. Years had passed and we were just getting started.
We argued pretrial motions about admissibility of evidence. Finally, we were on for trial. Then COVID hit, and there were years more delay. It was an ordeal for Johnson. He got his day in court almost seven years later, but his ankles were bloody raw from years on an alcohol monitoring bracelet.
Late one Monday afternoon in mid-Summer 2016, Johnson was in a traffic accident. There was moderate property damage and Johnson suffered a minor injury. It was the other guy’s fault, but he blamed Johnson and told the cops that Johnson smelled like he had been drinking. Johnson initially denied drinking, then admitted it, and gave varying statements about when he drank. He was consistent, though, that he had two glasses of wine with lunch.
The cop started with the verbal tests, and Johnson did okay, but not perfect. He had a bad hip, so he did not want to do SFST’s. He demanded a lawyer, stating “I do not want to incriminate myself.” Johnson was arrested and the subsequent blood test yielded a .114.
I considered but rejected the so-called blood alcohol curve defense, where you do not challenge the test result, but instead argue that the client had just had the drinks before driving so the test result was higher than the level at the time of driving. To me, lawyers overuse the curve defense because it is easy. I call it the “I could’a made it home,” defense, or the “I wasn’t guilty YET,” defense.  Anyway, Johnson’s varying statements about when he drank deterred me from the easy path.
I looked over all the lab records and saw the contamination defense. The blood sample was spoiled before it was tested and yielded a false high result. If a blood sample is not drawn properly, it is subject to contamination by organisms that can cause the sample to ferment in an unrefrigerated tube. This can happen if the tube is left unrefrigerated for as little as a day.
We had a blood sample with no record of refrigeration for seven days before it was logged in at the lab. We had a police bodycam video of poor sterile technique in the blood draw. We also had lab records with indications of other fermentation byproducts in the sample; so my defense was more than just speculation (more on that later, as it almost blew up in my face, but instead it became a lesson learned).
The most important part of trial advocacy is storytelling. The scientific facts and the law are critical but only as components of storytelling. A trial is not a contest of competing arguments, it is a storytelling competition. I encourage any trial lawyer to study storytelling, improv, theater, and filmmaking to become a better trial lawyer (all subjects addressed in the National College for DUI Defense curriculum, and which will be the focus of the Summer Session in Chicago July 19-22, 2023).
I had a good story. Johnson was a great guy, who had suffered a horrific hip injury in college decades earlier. He was hospitalized for seven weeks, and on crutches for a year. So, he invented a collapsible, foldable crutch, which was the start of a successful business career. He took the worst thing in his life and made a success of it. Even so, his hip was never the same.
He was working that Monday and needed to go to the computer/office supply store. He drove his vintage mint Jaguar convertible to the big box store in the early afternoon. He noodled around the store for almost an hour, bought his stuff, and drove across the parking lot to the Charcoal Grill. He sat at the bar, read trade magazines, ate a burger, and drank two glasses of red wine. Then he left.
As he was driving back to his office, a fellow named Shane, pulled his Lexus SUV away from the curb, to drive into a driveway directly across the street. The Lexus smacked Johnson’s Jaguar right in the middle of the passenger side.
The cop investigating the accident wrote Shane a ticket and did not even suspect that Johnson had been drinking, until Shane said, “I smell alcohol on him.”
“I smell alcohol on him.” Every story has important moments when something happens that suddenly changes everything. We should search for those moments and makes them scenes in the case. That was the moment! Suddenly Johnson was no longer an accident victim, but rather a DUI suspect. From that moment, the normal behavior of an accident victim with a bad hip was seen by the police as sinister. He was wrongfully arrested.
I argued, “He consented to give blood. He thought, “I want to give blood. The blood will clear everything up!” He didn’t know that the blood would be drawn improperly from a kit that wasn’t inspected, not properly refrigerated, sent to a lab that is behind on its maintenance, a lab that won’t admit it’s shortcomings. He had a right to expect better, and so do you, ladies, and gentlemen of the jury!”
The Bad Facts
If there is one lesson for me in this case, it is to embrace the bad facts. Truth is complex, and all cases have unchangeable bad facts. You cannot run away from them. Run toward them, embrace them, and look for the truth of the emotional core of your story.
Johnson’s statements at the scene were not good. I expected aggressive impeachment. He told the cop that he had drank nothing. A moment later he said, “I drank a couple of hours ago.” Then he said, “I had two glasses of wine with lunch four hours ago,” followed by “What time is it? It was two hours ago.” After some ambiguous performance on the alphabet and counting exercises the cop wanted to do the balance tests, but that did not happen because of Johnson’s bad hip.
I spent hours with Johnson in preparation. He is an engineer with a sharp analytical mind. So, when I confronted him with the landmines, he responded with analytical arguments or explanations about why they didn’t matter. “If I admitted drinking, I’d be targeted.” “I don’t wear a watch.” I got a lot of explanations from Johnson; but, when you are explaining, you are losing! I needed to get closer to the story. I urged him to stop telling me what he thought but rather tell me how he felt. That was not easy for Johnson, but we got there. “I was afraid.” “I was rattled.” “My shoulder hurt, it wasn’t my fault, and I’m being targeted! What the hell!” Rather than trying to explain it away, we emphasized the lie and the confusion about the drinking time as part of the theme of the shock of the moment when suddenly everything changed!
Another bad fact was that my cross-examination of the state’s expert went badly. I made some points, and I got our story out, but she was an exceptionally experienced, intelligent, and articulate witness, who genuinely believed in her work. I knew better than to get in the cage and wrestle with her, but I did anyway. I could not help myself. I knew better than to argue science with her, but I did it anyway. It felt bad. A young attorney watched the cross, and afterward I asked him if it was as bad as it felt. He replied, “Yeah, at the end.” I knew that I could not run away from this. But I also knew that a trial is not a contest of arguments, it is a storytelling contest in which the jurors are the heroes of the story. I decided to own my failure with the jury.
So, in closing I said, “I told you that I liked Christine and I would not argue with her, but I did anyway. I think it was a waste of time and I apologize to you for wasting your time. She is smarter than me, she is more clever than me, and in the battle of wits, I lost. — But ask yourselves this: In your lives, should you rely on the most clever person, the smartest person … when you are searching for the truth?”
The state’s expert hit me with another bad fact. Part of the fermentation argument was evidence of n-butanol in the sample. N-butanol is a fermentation byproduct, so I told the jury in opening that it was evidence of a bad test. She expertly explained that was nonsense. What I was calling n-butanol was just baseline noise on the chromatogram (a graphic representation of the test result), or some buildup in the column, that could be removed by a “baking out,” procedure. These columns get a lot of use, and they sometimes need some “tender loving care.” It was in almost all the chromatograms, including the aqueous blanks. I was shaken. Aqueous blanks cannot ferment, and the statistical likelihood that a fermentation would occur in the majority of samples in a run is nil. We spent a lot of time hashing this out. My two experts were analytical, scientific, and spoke of ISO standards, quality control auditing, etc. They had explanations; but when you are explaining, you are losing! The centerpiece of my case was wrong. The explanations, although scientifically valid, made things worse. I was screwed.
I knew I needed to get closer to the story. Okay… so this was buildup in the column that could be baked out. That meant taking the machine out of service for a day. That was IT! The bad fact became a good fact. The lab needed to pull the machine out of service but wouldn’t do it! They were running tests on a machine that needed maintenance. They assumed that was the only problem and they could ignore it! But all they did was mask any other problems! Not only was there n-butanol in Johnson’s sample, but the lab deliberately put off maintenance on the machine masking the issue. The state was arguing that the engine temperature light doesn’t matter because you know you are low on oil!
I had two great experts in court. The first one was so great that I did not think that it would get better. It was Friday afternoon. We talked it over, and I rested without calling the next one, even though we had flown him in. It was a gamble.
When a trial lawyer makes a closing argument, he better believe that he is right, and that he is going to win. And I did. Yet as the jury deliberated, I worried. It was not a perfect trial on my part. Only 55 minutes later we had a verdict. That is a bad sign. And the jury didn’t look at us as they walked in.
As the two not guilty verdicts were read, Johnson broke down. Seven years of being out on bail and all the stress. Countless trips to different courts. He wept uncontrollably. I sighed with relief.
 The names have been changed.
 My able partner, Lauren Stuckert, has had success with the curve defense, and we debate the issue amicably. I will use it when indicated. Ultimately, the truth drives any defense, not tactics.
 Kudos and acknowledgments to Maren Choloupka, a wonderful attorney from Nebraska, and the Trial Lawyers College, for introducing me to The Moth style of storytelling, storytelling in general, psychodrama, and generally changing my life and law practice. You are never too old to be a student and learn.