Wisconsin Public Defender. Theory & Themes of a DUI Case. Jerry Cox & Wil Zevely 2010

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1 Wisconsin Public Defender Theory & Themes of a DUI Case Jerry Cox & Wil Zevely 2010

2 HARDEST MOST IMPORTANT

3 TERMINOLOGY Legal theory Theory of the case Theme(s)

4 THEORY OF THE CASE A short paragraph Facts Emotions Law Tells your client s story of innocence

5 RESISTANCE & MISUNDERSTANDING

6 RESISTANCE Impossible in every case Don t want to give strategy away Why box myself in what if something better appears during trial? Hard

7 MISUNDERSTANDING What is a story of innocence? Not a good story teller, actor Committing the client to testifying? Already have a great story about a cabbage

8 Wirth Michael Wirth and his wife, Canis, went to a costume Halloween party. Michael was dressed as a clown with a big puffy suit, enormous shoes, a painted face, and a red nose. He drank only two beers so his wife could drink and enjoy the evening. The trip home took them down a winding narrow two lane road. It is extremely difficult to not cross lines going down this hill. Most people cut the corners.

9 Officer Fern knowing the difficulty people have on this road positioned himself at the bottom of the hill so he could stop every car coming down the hill if he chose. He gave Michael the finger count test in the car, which he passed. He made him exit the car and walk up a slippery short steep damp hill to get to the sidewalk to do more tests. Michael fell going up the hill.

10 The officer asked Michael to do the one leg stand. Michael asked to take off the clown shoes as they were about two feet long. The officer would not allow him to do this. Michael tried unsuccessfully to take the test. The officer wanted more tests. Michael felt the officer s request were unfair and asked for a lawyer. The officer read him his Miranda Rights, but told him he couldn t have a lawyer. Michael refused all other tests. At that point Officer Fern tried to trick Michael into admitting guilt.

11 CHARGES DUI Reckless Driving

12 STATE S THEORY Michael drive in a reckless manor down the winding road. He was under the influence of alcohol. He was belligerent. He refused field sobriety tests knowing he couldn t pass. He refused the intoxilyzer, because he knew he would blow above the legal limit.

13 NOT GUILTY

14 Responsible and sober Michael Wirth drove down a winding road into a trap, where Officer Fern was lying in wait. Officer Fern intruded into Michael s pleasant Halloween evening with his wife with a game. The game was complete with tricks and a single goal of arresting Michael for DUI. When Michael realized the game was afoot, he did what he could to end the unfairness. He refused all further requests of the officer. Michael was not caught drunk driving, he was simply caught in a rigged game.

15 WHY TELL A STORY? Human beings use stories to bring order and understanding to the world In our real lives we use stories, why not in the courtroom? Jurors use them

16 HOW AM I GOING TO TELL THE STORY OF THIS CASE?

17 PREPARATION

18 KNOW YOUR FACTS

19 Complaint Discovery Visit scene View and handle evidence Investigation Preliminary hearing Suppression hearing

20 FACTS BEYOND CHANGE

21 Bad driving Fell walking up hill FBC Bad on one leg stand Drinking Refused tests

22 Your theory should incorporate as many facts beyond change as possible

23 EMOTIONAL CONTEXT Identify the characters What motivated the characters? How do you want the jury to feel about each character? Role play How much of a burden should you take on?

24 If the story is not about the hearer, he will not listen Steinbeck

25 WHYSTORM

26 CATHY KELLY S GENRES It never happened It happened, but I didn t do it It happened, I did it, but it wasn t a crime It happened, I did it, it was a crime, but not this crime It happened, I did it, it was the crime charged, but I m not responsible It happened, I did it, it was the crime charged, I m responsible, so what?

27 IT NEVER HAPPENED Not Impaired Mistake Complaining witness is lying No intent

28 IT HAPPENED, BUT I DIDN T DO IT Mistaken identification Scapegoat

29 IT HAPPENED, I DID IT, BUT IT WASN T A CRIME Self-defense Defense of others Duress

30 IT HAPPENED, I DID IT, IT WAS A CRIME, BUT IT WASN T THIS CRIME Lesser-included offenses

31 IT HAPPENED, I DID IT, IT WAS THE CRIME CHARGED, BUT I M NOT RESPONSIBLE Insanity Entrapment

32 IT HAPPENED, I DID IT, IT WAS THE CRIME CHARGED, I M RESPONSIBLE, SO WHAT? Jury nullification

33 PICK A GENRE AND ONLY ONE GENRE

34 Wirth WHAT GENRE ANSWERS AS MANY JUROR QUESTIONS AS POSSIBLE?

35 Facts, emotions, language Not your opening statement Three or four sentences that capture the essence of your story For your eyes only

36 HOW DO I BEGIN? Barstool method Sleazy tabloid headline

37 YOUR THEORY OF THE CASE INFORMS EVERY ASPECT OF YOUR TRIAL

38 VOIR DIRE Officer trying to trick Michael Drinking Drinking and driving Bad driving Refusal of field tests Refusal of intoxilyzer Doing bad on field tests

39 THEMES Officer trying to trick Michael Michael is a family man Drinking Weaving Refusal Environment

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