Originally published 11:16 p.m. EDT October 11, 2015
Copyright Courier Journal
By Andrew Wolfson
View the original story here: http://cjky.it/1LjVMMh
Courtroom video from early September DUI case of Joshua Wilcox, who was found not guilty by a judge. Wilcox used the same attorney several years ago to successfully defend him in a previous DUI case with a judge.
Should Juries, Not Judges, Hear DUI Trials?
Pulled over March 14 in Germantown after hitting a curb and nearly striking a garbage can, Joshua Wilcox seemed to be caught dead to rights driving under the influence.
His eyes were bloodshot and his breath smelled of alcohol, Louisville Metro Police Officer Kyle Jordan wrote in a citation.
Wilcox could barely stand on two feet, let alone on one, as required in one of the field sobriety tests he failed miserably, as shown in a cruiser dashboard video.
“He was drunk as a skunk,” Jefferson County Attorney Mike O’Connell said later.
But demanding a trial before a judge only, Wilcox, 33, and his lawyer, DUI specialist Paul Gold, presented an unusual defense: Wilcox was impaired, they conceded — but not by alcohol or drugs.
Shortly before he was stopped, he testified Sept. 9 in a one-day trial, he was assaulted as he left a party and struck his head on the pavement when he was thrown to the ground.
A retired physician who reviewed the police video testified he may have suffered a concussion.
Supporting his story, Wilcox’s glasses were broken and his entire right side was covered with mud. A mug shot taken that night seems to show cuts on the right side of his face.
But on the other hand, he didn’t report the alleged assault to police, didn’t seek medical attention and never mentioned the incident to Jordan, either at the scene or during a long ride to the jail.
District Judge Stephanie Pearce Burke, though, said she couldn’t find beyond a reasonable doubt that he was intoxicated and acquitted him.
In an interview, O’Connell said the defense was “preposterous” and the trial’s outcome shows why the prosecution should be able to demand jury trials.
Under current law, only the defendant can make such a request.
Wilcox was previously acquitted of driving drunk in another bench trial, despite evidence that he drove in reverse at a high speed toward an officer, took off in 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.
Then-Judge Don Armstrong found that while Wilcox’s driving was “very unusual,” it was not illegal, and that he hadn’t been given a sufficient opportunity to call an attorney before he was tested at the jail.
The case was one of several featured in a 2012 Courier-Journal project, “Sobering Results,” which reported that 73 percent of Jefferson County’s drunken-driving defendants tried by a judge alone had been acquitted over the prior five years, compared with 45 percent of those tried by juries.
O’Connell said the results of cases like Wilcox’s put motorists at risk and that he will ask the General Assembly next year to change the law so that prosecutors can demand jury trials. State Rep. Denny Butler, a former Louisville detective, said he will file the bill.
O’Connell said a jury would have found Wilcox guilty.
“Any reasonable person watching him on that video would see he was wasted,” O’Connell said.
But Gold, who won Wilcox’s first acquittal as well, said O’Connell — and his DUI prosecutors — are just sore losers.
“They think every single person they prosecute is guilty,” he said. “I am very good at what I do, and the prosecutors need a lot more practice.”
Gold also said that O’Connell’s office should have never taken the case to trial because the Breathalyzer operator who observed Wilcox was fired for lying under oath in another case. That meant the prosecution couldn’t mention during Wilcox’s trial that he had refused a breath test.
Burke declined to comment, and Wilcox, a student at the University of Louisville’s Speed School of Engineering who also works at U of L, didn’t respond to messages.
Testifying for the defense, Wilcox said he never saw the person who allegedly assaulted him and was just trying to “get somewhere safe” when he was stopped by police.
“My head was throbbing,” he said. “I didn’t understand what was going on.”
Asked by Assistant County Attorney Josh Schneider why he never mentioned the alleged attack to Jordan — and that he was being falsely accused of DUI — he said he was “confused and dazed.”
But Schneider noted that the in-car video shows Wilcox was able to engage in small talk with Jordan en route to the jail, asking him where he was from, for example, and how long he’d lived in Louisville.
Burke, though, delivering her verdict from the bench, noted that Wilcox said some bizarre things as well, such as asking Jordan whether he met his wife before or after he married her.
She said Wilcox’s conduct was so unusual, in fact, that it led her to believe he might have been impaired from his head injury.
He was so confused he couldn’t give his address, for example, and he struggled to put his boots on after he took them off to attempt the field tests.
She said that while Jordan asked him why he was covered on one side in mud, the officer didn’t wait for him to answer.
“I am not faulting the officer,” Burke said, “but I am concerned that he did not follow up.”
Addressing Wilcox, she said, “I am not thrilled with the fact you drank and got behind the wheel of a car and were driving.” But she said something more than alcohol seemed to be involved.
“Maybe he was suffering from a concussion or something else that exacerbated his condition,” she said. “I am going to find the defendant not guilty.”
Reporter Andrew Wolfson can be reached at (502) 582-7189 or firstname.lastname@example.org