Thursday, June 22, 2006

A small victory

Yesterday was a bench trial calendar and I, luckily, only had three cases set. I knew that we would resolve two -- one by pretrial intervention and the other would be dismissed.

The third was a red-light case. As in, my guy was ticketed for running a red light. The Solicitor had offered a $200 fine. The new assistant didn't really seem to think that I was willing to try it, but my guy was saying that it was yellow when he went through.

So we tried it.

The officer testifed that he had run a stoplight at Derrill Avenue, where it intersected Glenwood, and that's what the ticket said. The problem was that the assistant who drafted the Accusation, charged my with running a stoplight at Demill Avenue. (At a glance, the "rr" did sort of look like an "m"...) Anyway I established that the officer didn't remember much other than seeing my guy run the light, which isn't particularly remarkable because the incident occurred over a year ago. I asked the officer if she knew of any "Demill Avenue" in our county, and she said no. I asked some other questions, and sat down.

After the State rested, the Judge asked if I was going to present any witnesses, and I said, "Well, Judge, I do have a motion." I assume that he thought I would make the perfunctory motion for directed verdict. However, when I pointed out that the was charged with running a light at "Demill" and the testimony indicated he ran a light at "Derrill," the Judge immediately understood that there was a variance between the proof and the charge.

Now, our new assistant solicitor is brand new to criminal law, and the Judge has taken a liking to her and I think he wants to mentor her. So he turned to her and began to grill her about whether the variance was fatal. He let her flounder some, and then held that the variance was indeed fatal and granted my motion.

I stood and started to pack up my stuff. And then I realized that my guy was still sitting. So I leaned over and whispered, "we just won." He was very happy, which is always a nice feeling.