Rescuing Romeo, or How Tim Almost Went to Prison
By Andrew Mishlove on November 09, 2018
The Story of the Case
Tim is a Wisconsin guy. He loves to hunt, fish, and to tip a few beers. His best friend is Romeo, his black lab. About twenty years ago, Tim had four drunk driving convictions, and a couple of other misdemeanors. After that he stayed out of trouble – until one day when he went ice fishing.
Tim is a dump truck driver. He lives with Romeo about 100 yards from the shore of Wolf Lake. In the winter he takes Romeo out of the lake with him ice fishing. Ice fisherman will spend a long time out on the lake, sometimes more than a day. Fish caught in the ice-cold water taste better. Also, many fishermen like to drink out on the lake.
On January 15 a couple of years ago, Tim drove his pickup out onto Wolf Lake and set up for perch fishing. He spent the afternoon on the lake, but didn't catch much. After dark, he set up fishing for walleye pike. He parked in a spot a hundred or so yards off “the channel,” which empties into Wolf Lake from another lake. The ice around the channel can be unstable, but the bad spots are marked by buoys set by a local diver named Bill. Bill is a big part of this story.
There is a dam on the channel that connects the two lakes. Tim didn’t know that a day or so before, that dam was opened. With the increased water flow, the ice near the channel was more unstable than usual.
About 9:00 p.m. Tim started putting his gear into the bed of his truck to head home. He flicked on the headlights so he could see his gear. Romeo was asleep in the backseat of the truck. Tim was drunk. He was in no shape to drive; but that’s what he planned to do. It’s illegal to drive drunk in Wisconsin, even on a frozen lake.
Tim never got that far. As he was loading his gear in the truck bed, the front of the truck broke through the ice. The truck was sinking, bow first, into the water. Romeo, who was in the back seat with an open window, was barking. There was water all around the truck now. Tim tried to get Romeo to jump out the window, but Romeo wouldn’t jump. He just kept barking. Tim inched out on the ice, got soaking wet, and grabbed Romeo’s collar. The collar came off in Tim’s hand, but Romeo stayed in the truck. Romeo whimpered as the water started pouring into the truck cab. Romeo and Tim looked each other in the eyes. Tim got on his hands and knees on the ice, got wetter, and again inched up to the truck. He got his shoulders through the open rear window, grabbed Romeo by the scruff of his neck, and pulled him out of the truck.
Two ice fishermen were nearby. They saw Tim’s truck and heard the ice crack, so they called 911. Cops and ambulances arrived. One of the fishermen took Tim to shore on his ATV. Tim was taken to a warm ambulance, and given a blanket. Romeo ran around barking like crazy.
Deputy John got into the ambulance to talk to Tim. Deputy John’s report said that he asked Tim what happened. Tim said that he was driving on the ice to go home, and the truck went in.
Uh oh! Driving on the ice is still driving, and Tim was drunk. Tim also had four prior DUI convictions, the most recent being twenty years ago. That would make this a fifth offense, a felony that would put most people in prison. To make matters worse, Tim was a truck-driver. Even if he stayed out of prison, he would be out of work.
Tim was charged as a felony repeat offender. So, he came to me. He denied driving. He denied telling the cop he was driving. He stuck to his story.
He insisted that Bill, the diver who salvaged his truck from under the water would verify that it was not running when it went in the lake. So, I called Bill. Bill, his 80- something Dad, and now his kids, have a business pulling stuff out of the water. They’ve been at it for thirty years, and have seen over 300 vehicles go through the ice.
Bill told me that he found the truck with the key halfway in the ignition, the ignition turned off, and the transmission in park. The truck was not running when it went through the ice. This was a pain in the ass for Bill, because he had to power up the ignition while underwater, in order to get the truck into neutral, so that he could winch it out of the lake. He also said that the ice was jammed up against the truck in such a way that it was impossible to open any of the doors, and only the passenger rear window was open. No one could have gotten out of that truck through a door, or through any window but the right rear. Bill said that in all of his years and hundreds of salvage operations, he had never recovered a vehicle that went into the ice while moving, where the driver had taken the time to put the vehicle in park and shut it off. Bill said that Tim was telling me the truth.
I listened to the body-microphone recording of Tim’s alleged confession. It was garbled. You couldn’t really hear what was being said. It might have been a confession, but it also might have been a description pretty close to what Tim told me. The deputy wasn’t satisfied either, since he kept repeating the question, and started leading hard for the answer he wanted. This sort of thing:
Q: You were driving on the ice? A: I was just coming home.
Q: You were in the truck when it went in? A: Got out the window with my dog.
I made a memo of the conversation with Bill, and sent it to the DA. I thought the case would be dismissed. I was wrong. Our August trial date remained.
In August, eight months later, I got new discovery from the DA. Deputy John had just interviewed the fishermen who were out on the lake with Tim. They both said that they saw Tim’s truck driving across the ice. They said to each other that he was heading toward thin ice, and they saw the truck go in the lake. WTF! The trial was adjourned.
I hired Dan, the accident reconstruction expert. I figured that, maybe, the headlights going through the ice at an angle created an illusion that the truck was in motion. Dan is an expert in human perception in accident situations. Dan did great work. He interviewed the two fishermen – and even went out on the ice with them the next winter. One of them admitted that he did not actually see it, as he had his back turned. The other one seemed hesitant in his answers. Dan also went out on the ice with Bill, who reiterated his opinion.
I provided Dan’s report to the DA, hoping for a breakthrough (pardon the pun), but none was forthcoming. The DA did offer a no-prison deal, but Tim stuck to his story. We rejected the plea offer.
Tim was going to trial.
The Story of the Trial
In this trial, I had a compelling story. I knew that I had to rely on my training from the great teachers at the Gerry Spence Trial Lawyers College and the National College for DUI Defense.
In the weeks leading up to triaI, I was in a bit of denial, since I had hoped for a reasonable resolution. At some point, perhaps far too late in the process, I dove into the little nuts and bolts things that act as substitutes in a lawyer’s mind for actual preparation: things like, witness lists, jury instructions, outlining a voir dire, outlining an opening statement and cross-examinations. These things are necessary, but they are not the real preparation for a trial. The real preparation is living and breathing the story of your case. It’s like sports; the real preparation is in the physical training, not the game plan. I listened to the audiotape of Tim’s “confession” many times. It was, at worst, unintelligible, and at best, exculpatory.
My story was simple. My theme was simple. If only Romeo could talk....
From the DA’s perspective, he also had a simple case. Tim got drunk and drove onto thin ice. He had a confession and two eyewitnesses.
A few days before trial, the DA filed a motion to exclude the “expert opinion” of Bill’s account that the truck was stationary when it went through the ice. Of course, Bill was not my expert, he was a citizen fact witness, who happened to believe that Tim was innocent. I saw the DAs characterization of Bill as a strategic error, and I wondered how it would play out in the courtroom. I agreed to the DAs motion; after all, Bill was not an expert, he was a fact witness. I would have him recite all the relevant facts and let the jury draw their own conclusions. That turned out to be prescient.
I knew that Tim would have to testify, and I am a believer in candor with the jury. I could have easily followed the conventional wisdom and limited the cross- examination to the number of Tim’s prior criminal convictions, without any mention that they were for prior DUIs; but I made a decision to expose Tim. On voir dire I told the jury about his prior DUIs, and a prior criminal conviction. I told them that he planned to commit the crime, and would have done so but for the intervention of fate. I never suggested how they should feel about any of that. I just got a discussion going. Many of the jurors were experienced ice fishermen, and they knew Wolf Lake well. I knew that if Tim was bullshitting me about anything, the jury would see right through him. I told him so.
The DAs opening statement was not surprising. He laid out his case methodically. He hammered the confession, and the eyewitnesses. He specifically narrated that Tim said, “I was driving down the ice, and I came around the corner and it just went in.” I wondered if he had heard something in a recording that I had missed? I was nervous.
The defense opening statement is the time to tell the story of the case. I gave a fact- intensive opening, abstaining from polemics, editorializing or arguing. Instead, I tried to create the scene in the courtroom, acting out how Tim was loading the truck when the ice cracked, and how Tim rescued Romeo. I acted out Tim’s interrogation in the ambulance, and I narrated the words that I heard on the tape: “I was just coming home.” “Got out the window with my dog.” I acted out the salvage of the truck, and how Bill found it underwater. As Joshua Karton taught me, facts drive the narrative, not opinions. I enlisted the jurors as participants in the story. They needed to be the heroes in the courtroom.
The arresting officer’s direct exam was by the script. The DA played the same tape that I had listened to, and claimed it was a confession. He was overplaying his hand.
On cross-examination, I remembered that it is not about winning the argument with the witness, it is about telling a story. I refrained from arguing with the cop. I played the tape, and asked the cop if Tim said what I believed he had said. The cop denied it. I left it there. Since the state’s case was based upon the officer’s testimony about what was on the tape, I explored a somewhat insignificant discrepancy. The officer testified that Tim admitted that he had drank “two” beers. In fact, Tim had said “a few” beers, and that was very clear on the tape. I played that portion for cop, and
asked him very nicely if that was the conversation about which he had testified earlier. He said yes. I did not argue with him, I just paused and looked at the jury. Then the cop gave me a gift. Without being asked he volunteered: “Two beers, a few beers. To me me it's the same thing, there isn’t a difference.” I looked at him, looked at the jury, and just said, “Oooookay.” A few of the jurors returned me knowing looks.
Now to the eyewitnesses. Again, my theme was to treat them with respect. They were good citizens, who had, after all, rescued Tim. On direct exam, they were both adamant that the truck that they saw driving across the lake was the truck that went through the ice moments later. I didn’t confront them that they might be mistaken. Both of them admitted, however, that they had seen the moving truck a few indeterminate moments earlier, and they were both bent down with their backs turned, looking down into the water, when they heard the ice crack. They also said that they saw the moving truck very close to the warning buoys, and that's where it went in. I was delighted when, to my surprise, Bill testified that the truck was not near the buoys, and that he was the guy who had set the buoys in the first place.
In the defense case, I first called Bill. Bill is a very likeable guy, running the diving/salvage business that he started with his dad. His teenage kids now help him with it. All three generations of his family worked on the salvage of Tim’s truck. Bill told us what happened, and what he found under the ice. The truck was underwater, with ice blocking the doors. The doors could not have been opened from the inside. The truck was an extended cab with four windows. All the windows were closed except the passenger-side rear window. The key was halfway in the ignition, the ignition was off, and the truck was in park. Bill had salvaged more than 300 vehicles that had gone through the ice in his career. About 90% of them were moving when they went in. Of the previous 275 or so moving vehicles that he had salvaged from going though the ice, none of them were found in park with the ignition off. I left it there.
It seemed to me that the DA’s best argument was that the truck had gone through the ice slowly; it had taken a few minutes to sink. There was plenty of time for Tim to shut the truck off and get out before the water got up to the doors. The DA did make that point, but he didn’t rely on it.
Instead, he made a dramatic blunder: he launched a full attack on Bill in cross- examination. The DA argued that the truck windows were really open, and that Tim had escaped out the driver’s window, consistent with the DAs interpretation of the “confession.” In support of that, he produced pictures of the salvage operation taken from a Facebook page that Bill’s teenage daughter had set up for the business. The pictures showed the truck being winched out of the lake with the driver’s window open. It was the DA’s gotcha moment – and it backfired. Bill calmly explained that he had opened the window as part of the salvage operation. He never sits underwater in a closed vehicle, without first opening an escape route, in this case the driver’s window. This truck had a three-panel rear window on the cab, and
one of the windows was broken, probably from the ice. The DA hammered Bill on this point. The only effect of that was to create sympathy for Bill.
At this moment I knew that I had to make a distasteful decision. A case needs a villain. It is often the arresting officer. It is sometimes the callous impersonal system. As Daniel Rodriguez, said, the best villain is the person who knew the most, but cared the least. The DA had just made himself the villain. I didn’t like it; as he is a nice guy, doing his job. I know that he wouldn’t like it, and that he would resent me for it. But it had to be.
I had one question for redirect of Bill: “Bill while the DA was snooping around on your daughter’s Facebook page, and sending cops out to interview witnesses eight months after the fact, did anyone from the DA’s office or the police ever bother to call you?” I looked at the jury and I could see that two or three of them were on my side – and one of those turned out to be the foreperson.
It was now Tim’s turn to tell his story. He was scared shitless. He’s not an articulate fellow, and he was wanted to back out of testifying. I could not let that happen. I bucked him up.
On direct of Tim, I set up his pickup truck in the well of the courtroom in front of the jury box. I used four chairs for the seats and two more chairs for the pickup bed. I had Tim get off the witness stand and act out the scene in front of the jury. Once he started physically moving, he got into it. Mentally, he was back there. When he showed us how he had yanked Romeo out of the truck and fell on his ass, he actually fell over backward on the floor of the courtroom. Everyone in the room was there in the scene with him. We had all just witnessed it happen. No cross-examination was going to change that.
While an opening argument is the story of the case, the closing argument is the story of the trial. To put it another way, the opening argument should be about what happened out on the ice, and the closing argument should be about what happened in the courtroom. There is an old canard that the first step in trial preparation is to sketch out the closing argument. When you understand the purpose of a closing, you see that it cannot be true.
The DA stuck with his game plan. His closing argument was competent and scripted. He hammered the same themes that he had in opening: the eyewitnesses and the confession. Then he did something that DAs in Wisconsin always do, but it was a mistake. He argued, quoting from the Wisconsin jury instruction, that a trial is not a search for doubt, it is a search for truth.
So, I used the “search for truth” language. I hoisted the DA upon his own petard. Was it a search for truth to snoop around on a teenager’s Facebook page, without even speaking to the witness? I didn’t, however, ignore the facts. I literally got
down on my hands and knees in front of the jury, acting out the scene of the ice fisherman looking down into the lake, at the moment that they heard the ice crack.
It took the jury a long time. There was a holdout or two, I think. But after almost three hours I heard those two beautiful words. The DA stormed out of the courtroom. He offered me no congratulations.
As we left the courthouse, Tim hugged me. One of the jurors driving by wished Tim good luck.
The DA may not like me any more, but I have no regrets.
"Mr. Mishlove was worth every penny and then some. I would consider him the Michelangelo of the DUI defense world. He is professional, dedicated, and pours his heart into his job. I would give him 10 stars if I could."Ronald S.