You can watch the Courier Journal's related Video:
Video Caption: Sobering Results | A look inside DUI trials: The Courier-Journal reviewed 200 Jefferson County DUI trials and found when the accused request a bench trial instead of a jury trial they are more likely to go free.
Written by: Jason Riley and Andrew Wolfson | The Courier-Journal | Published 2:54 AM, Dec 2, 2012
Jason Sterling drove down the middle of Goldsmith Lane, straddling the center line for about a half-mile on April 14, 2010, before he was pulled over, then failed a field-sobriety test and recorded a blood-alcohol level twice Kentucky’s legal limit.
But when Sterling’s case went to trial, Jefferson District Judge Donald Armstrong found him not guilty of driving drunk, court records show. Armstrong’s reason? He could find no law against driving down the middle of the road, so the officer who arrested Sterling had no reason to pull him over.
Anthony Cordova drove his Chevy Silverado into a wall on June 14, 2009, was found passed out behind the wheel and had a 0.26 blood-alcohol content — more than three times the 0.08 legal limit — when he was tested an hour later at a hospital, according to court records.
But at trial, Jefferson District Judge Katie King found Cordova not guilty of drunken driving, saying she couldn’t read hospital records that contained his blood-alcohol level.
“I can’t act as a doctor,” she said. “That would be like a doctor coming in here and practicing law.”
The outcomes aren’t unusual: A Courier-Journal review of 200 hundred DUI trials found that when defendants in Jefferson County request a trial by a judge — rather than a jury — the odds are good that they will go free.
Since 2007, 73 percent of Jefferson County’s drunken driving defendants tried by a judge have been acquitted, compared with 45 percent of those tried by juries, The Courier-Journal found in its detailed inspection of trial records and testimony.
Most of those acquittals came in the courtrooms of three district judges, Armstrong, King and Erica Williams, who acquitted defendants or dismissed charges in more bench trials than the 16 other district judges combined. Together, the three acquitted 83 percent of the accused drunken drivers they tried without juries.
Scott Burns, executive director of the National District Attorneys Association and a former prosecutor in Utah, said that while there are no national averages for judge-tried drunken driving cases, the acquittal rate of Jefferson County judges was “shocking” and “mindboggling.”
Warren Diepramm, a former DUI prosecutor for the National Highway Transportation Safety administration, said the figures suggest that “judges are finding defendants not guilty who are guilty.”
And Jeffersontown Police Chief Rick Sanders said his officers were losing so many DUI cases in front of Armstrong and Williams that he called the chief district court judge, then Sean Delahanty, last year to talk about what police could do to strengthen their cases.
“There were several officers … concerned with the number of dismissals, acquittals and amended cases” by those judges, Sanders said.
Defending their record, Jefferson County judges say only a very small percentage of DUI cases are brought to trial and typically only the weakest cases are tried before judges rather than juries.
Judges also say they have no choice but to dismiss or acquit when police lack cause for stopping a driver, or when jail officers deny defendants their rights.
“Drunk driving is a terrible crime … but people’s constitutional rights should be above and beyond anything else,” said King, who found defendants not guilty or dismissed charges in 12 of the 13 DUI cases she has tried since 2009.
The vast majority of drunken driving cases in Jefferson County result in a guilty plea, according to court records and the Jefferson County attorney’s office.
Last year, for example, Jefferson County Attorney Mike O’Connell’s office said it had an overall conviction rate of 94 percent in 3,671 DUI cases.
But defendants who chose to go to trial only before a judge had a much better success rate — 91 DUI cases tried by Jefferson County judges since 2007 resulted in 67 acquittals or dismissals. Of the 100 DUI cases tried before a jury during that time, 45 ended in acquittals.
In Fayette County, defense lawyers almost never request trials by judges because they are seen as tougher than juries, said attorney Dan Carman and other lawyers who handled DUI cases there. First Assistant County Attorney Lee Turpin said she doesn’t recall a single trial by judge in Lexington in the past 15 years.
Defense lawyer John Berry, who won all four DUI cases he tried before judges since 2007, said, “Some people deserve to be found not guilty.”
Beating the charge
The newspaper found that one Jefferson County judge — Armstrong — seemed to try to find reasons to acquit defendants, often relying upon his personal experiences.
He acquitted one defendant who was pulled over for speeding the wrong way on Sixth Street, noting that he himself had inadvertently driven the wrong way on that street.
He acquitted another defendant who failed her field-sobriety tests after citing his own inability to “perform a one-legged stand, even if I have to.”
On Jan. 26, 2010, Armstrong found a third defendant, Bertrand E. Howlett, not guilty despite an officer testifying that he saw Howlett speeding and nearly drive off the road, before he later “blew” a 0.015 result on a breath test.
Armstrong threw out the result, citing Howlett’s testimony that he had burped before the test — and Armstrong’s own recollection from years earlier when he was a prosecutor that a “burp” could invalidate such a test.
The Kentucky Supreme Court later ruled that Armstrong acted improperly in the case by relying on his prior experience but, because Howlett had been acquitted, he could not be prosecuted again.
O’Connell said that “a judge should not substitute his or her opinion for” that of police officers. But Armstrong responded that’s “my job. My job is to be fair to both parties and make sure the defendant’s rights are protected.”
One attorney’s success
The newspaper’s review found that one defense lawyer, Paul Gold, has been particularly adept at persuading judges to find his clients not guilty.
A former Jefferson County district judge, Gold took more than 30 drunken driving cases to trial between 2009 and this summer — choosing every time to go before a judge rather than a jury.
He won all but three, with most of his success before Armstrong, King and Williams. Appearing in their courts, Gold has won 21 bench trials and lost only twice.
Prosecutors contend that Gold maneuvers to get his clients before one of those judges by repeatedly requesting postponements for hearings and trials until cases land in one of their courtrooms.
O’Connell, who said his office is concerned about Gold’s success rate and practice of “shopping” for favorable judges, cited one period — the last six weeks of 2010, in which Gold had seven DUI bench trials in front of Williams and won them all.
“Our prosecutors have been concerned about the outcomes of (Gold’s) cases,” O’Connell said. “Either he’s the greatest lawyer that’s ever come down the pike to try bench cases or we’ve got the worst set of prosecutors, and we’re not talking about inexperienced people trying these cases.”
One of Gold’s cases involving a driver with a blood-alcohol level 21/2 times the legal limit was reset 41 times until the arresting officer — three years after the arrest — said he had no independent recollection of what happened and the defendant was found not guilty.
O’Connell would not say whether he believes judges are giving Gold preferential treatment, and Gold, Armstrong, King and Williams all denied it.
“They know when I’m coming, I’m ready,” Gold said of the judges.
But he asks for continuances so predictably that it has become a courthouse joke.
On June 20, 2011, for example, when Senior District Court Judge Kevin Delahanty was substituting for Armstrong, Delahanty said in court: “I had hearings scheduled with Gold, but he doesn’t want to hear them with me, he wants to hear them with Armstrong.”
Assistant County Attorney Michael Morris sarcastically responded, “There’s a new development.”
Gold, who was on the bench from 1990 until his defeat in 1998, said he tries DUIs before judges rather juries because judges are more knowledgeable about the law and less likely to give more weight to the testimony of police officers than lay witnesses.
Gold said he wins so often because he prepares “meticulously,” poring over police cruiser videos and other evidence to find holes in cases.
He has contributed more than $25,000 to 32 judicial candidates in Jefferson County since 1999, including $2,750 to King, $962 to Williams and $2,000 to Armstrong. Gold said those donations have no bearing on his success in drunken driving cases, which he attributes to hard work and experience.
“Everybody knows I have been around for a while and have tried many DUI cases and am knowledgeable,” he said.
King agrees. “He’s completely changed the way I look at DUIs, honestly,” the judge said. “He is very creative, very inventive. It just amazes me his ability to take a case and pick it apart.”
Armstrong also said Gold is “using the law to make some very novel arguments that make sense,” while “the prosecution is not responding very well.”
Law enforcement mistakes
Armstrong, other judges and defense lawyers say some cases were dismissed because of errors by police and jail employees.
That included the failure of Metro Corrections employees to give accused drunken drivers a proper opportunity to try to reach an attorney before taking a breath test at the jail.
Kentucky law says a person must be given 10 to 15 minutes “to attempt to contact and communicate with an attorney.”
Gold, a former prosecutor, said he repeatedly pointed out during trials that higher courts have said that defendants must be allowed to call anyone to get their lawyer’s number — and that they should be given access to their cellphones to get it.
But Metro Corrections repeatedly denied them that right, resulting in multiple dismissals, including several in Williams’ court.
“I’ve been bringing it up time and again, and I’ve been getting rulings in favor from judges and they keep doing the same thing,” Gold said of jail workers. “Do you know the definition of insanity? Doing the same thing over and over again and expecting a different result.”
In a case before Armstrong, for example, Gold persuaded him to suppress key evidence — defendant Deniz Salaka’s refusal to take breath test — because Armstrong found that Salaka hadn’t been given a sufficient opportunity to call his attorney.
Salaka had been stopped June 4, 2011, after running a red light at Whittington Parkway and South Hurstbourne Parkway, almost hitting a police officer, according to a citation, which said he also failed his field-sobriety test.
He was allowed to plead guilty in March to reduced charges of alcohol intoxication and reckless driving, paid a $235 fine and kept his license.
Armstrong has complained repeatedly in court that defendants should have access to their cellphones and get to make as many calls as they need within 15 minutes of being brought to jail.
“For the life of me, I’ve yet to figure out why the Louisville Metro Department of Corrections says you are entitled to one telephone call,” Armstrong said in one court hearing.
Armstrong also cited a jail error as one reason for acquitting Joshua Wilcox on July 27, 2011, despite evidence that he drove in reverse at a high speed toward an officer, took off the other direction at 20 mph over the speed limit, failed a field-sobriety test and blew twice the legal limit on a breath test.
The judge found that, while Wilcox’s driving was “very unusual,” it was not illegal, and that Wilcox hadn’t been given a sufficient opportunity to call an attorney before the breath test.
After The Courier-Journal asked Metro Corrections and the county attorney’s office about the call policy, it was changed.
Corrections Chief Mark Bolton said many of his officers were trained 10 to 15 years ago, when defendants were allowed one call to an attorney.
“I wish we would have been advised about this sooner,” Bolton said. “It’s unfortunate that some of these cases have gotten thrown out, but I think we are on top of it now.”