Don't Kick the Puppy! By Mishlove and Stuckert, Attorneys at Law on January 18, 2022

When Andrew came to the trial, he was a successful young man.  He graduated at the very top of his college class in computer science and was now in grad school.   But it was not always that way.

 Andrew came into our office with his parents Jeff and Karen in 2020. He had been referred to us by his attorney, who was at the end of his rope with the case.  In 2019, Andrew was an 18-year-old mess. He was intelligent but going nowhere - a sullen dropout doing nothing, but with a sense of entitlement.  Meanwhile, his parents were enablers; their little boy was being persecuted.  That was the human story as it was first presented to me.  The facts of the case were worse.  

A caller reported Andrew’s car on the freeway at about 6:30 pm on an April Saturday night, “all over the road,” and “almost hitting two other cars.”  A state trooper saw the car on a major city street. The trooper reported seeing Andrew cross the centerline twice, multiple lane deviations, a lane change without signaling, wide turn without signaling, and hitting the curb when he pulled over.

The trooper was not on a state highway, so the sheriffs were called in. Before the sheriffs arrived, the trooper reported that Andrew was confused and lethargic. He denied drinking but admitted being on medication, showing the trooper a bag full of bottles of prescription meds.

The trooper told the sheriffs that Andrew was confused, lethargic, and admitted to being on medication.  A rookie, Deputy Hall performed field sobriety tests. Although Deputy Hall made some errors in the administration of the tests, Andrew looked very clumsy. 

The blood came back with unquantified gabapentin, unquantified topiramate, 67ng sertraline, and worse, 16 ng clonazepam.  Andrew did not have a script for clonazepam.   

This did not look good.  But, the case was won for several reasons.  First, Andrew was innocent.  Next, I got past my disdain for this overprivileged child, and came to respect and (in the lawyer’s sense) love him and his parents.  I embraced the bad facts in the case, and held them close to my bosom.  I had a great expert, and I successfully challenged the expertise of the state’s expert, limiting his testimony to only the chemistry, not the pharmacology.  

Deputy Hall was a rookie, and I was taught that juries love rookie cops like puppies.  So, I did not kick the puppy!  

This trial came on the heels of a previous trial that I lost, and my confidence was not high.  I learned from that. The things that we learn and teach about eye contact, vocal fluency, courtroom staging are just tools to allow your authentic self to shine through. If you use them as an artifice they will fail. Like the highly trained but bad actor, the ham, you will not be credible.  Find what you love about your client, find the human story of your case, and tell it truthfully.  Then the communication skills will serve you.

The story:

At the trial, Andrew was a 22-year-old young man, who had graduated at the very top of his college class in computer science (4.0 average) and was now in grad school, still at the top of his class.  But it wasn’t always that way. Andrew grew up in an upper middle-class home, but his parents worked hard for it. They live in a high-end suburb, but his mom grew up in a very rough neighborhood.   He did well in school until high school. He was on the soccer team, but suffered a terrible injury with two broken vertebrae. He had to wear a rigid back brace 24-7 for the better part of a year. He was never able to play sports again.   He got good grades, but he struggled with depression.  Even so, he was accepted into the University of Southern California. He made plans to move to LA, but he had to cancel, as his family could not afford it.  

So, he went to Illinois-Champaign/Urbana. It was disaster.  He dropped out after a semester and moved back to his parents. Depressed, anxious, suicidal.  His parents brought in a psychiatrist, and the psych drugs started. Lots of them, always being varied. It didn’t help. He got worse. He couldn’t sleep at night.  About a month before the arrest, Andrew started secretly stealing clonazepam from his mom.  

On the Thursday night before his arrest on Saturday evening, he took double his regular amount of clonazepam, and had a very bad reaction. He was scared.  He eventually fell into a troubled sleep.  When he awoke Friday morning, he confessed to his parents and begged for help.  They called his psychiatrist who immediately dropped him as a patient.  The parents stayed home from work that Friday with Andrew.  Being a dumb kid, Andrew was texting with a couple of girls that he knew at the University of Wisconsin, and somehow on Saturday, he got his parents to allow him to drive to Madison to see them.  This was his very first solo road trip.  Being a dumb kid, he spent much of the time texting while driving – missed his exit, got off the freeway, and was trying to find his way back to the freeway, all the time fiddling with his GPS and texting.  Of course, he got stopped.

After some difficulty, we retained an excellent PhD in pharmacology, who was unequivoically in our corner and great on the witness stand. 

The trial went all our way.  I opened with the human story, just as I told it here. 

All stories have a beginning, which is the way things were.  Then something happens which changes everything. You must find that moment of change in your trial. In my case that something was the moment that Andrew told the trooper that he was on meds and showed him the bag of pill bottles. That was the moment that the cops stopped the real investigation, and just narrowed their focus to drugs only. From that moment they ignored everything other fact.  I flatly stated that in opening, and cross examined the experienced trooper on it.  Andrew just a stupid, clumsy kid with a bad back, until they saw the bag of pills. Then the cops saw nothing else but a drug case.

The trooper was also ARIDE, a higher level of impaired driving investigation training.  So, I cross examined him on all the things an ARIDE officer would do, that Deputy Hall, the rookie could not and did not do. I never blamed Hall. I did not kick the puppy. He was still in training.  Same thing with Hall’s mistakes in the field tests.  I never kicked the puppy, I never went after the rookie cop.  I gently put it off on the other, more experienced cops who stood by and watched.

The state’s expert was a chemist. So, he was allowed to testify only to the result, and general effects of clonazepam on humans. He was not allowed to render an opinion about the specific level as it related to Andrew.  I cross examined him using as law enforcement reference, the Burns and Page guide, which said that impairment could be expected at level above 100 ng. My guy was at 16 ng.

Well before the trial, I took the case to a focus group.  The HATED Andrew. They hated his privilege. They hated that he stole his mom’s meds. They hated that he was texting while driving.  Losing a case in a focus group prepares you for trial. I took the things they hated and held them close.   We never contrived, but we found truthful things to say.  

Andrew testified.   As to the privilege, Andrew expressed awareness and mindfulness of it, extreme gratitude to his family, and humility.   As to stealing the meds, Andrew expressed genuine shame and remorse.  We had the text message records, and as we went through them, I got aggressive with Andrew confronting him with his stupidity, to which he readily agreed and apologized.  His demeanor was respectful, humble, and very clear that he was not impaired.  Rather than seeing a bratty kid who needed to be taught a lesson, the jurors the young man who had learned his lesson. So, they did not need to teach him.

The jury returned a Not Guilty verdict in 22 minutes.

Andrew Mishlove and Lauren Stuckert

Mishlove and Stuckert, LLC Attorneys at Law

Mishlove & Stuckert, LLC Attorneys at Law has been rated the #1 OWI/DUI law firm in the state by Wisconsin Law Journal Reader Rankings. Our OWI/DUI specialists have been highly rated by organizations including: 

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