Author: Neil Rockind

In January, 2020, the Michigan State Police Breath Alcohol Program, responsible for overseeing the “breathalyzer” program in Michigan was rocked by scandal.  At first, MSP fired the company servicing the machines. But that was only the tip of the iceberg. Soon allegations of fraud and misrepresentation were levied against technicians who worked side by side with the MSP in servicing and maintaining the machines. Soon after Rockind Law began a search for evidence of the real story – the truth behind the scandal.  We obtained thousands of pages of reports, documents, etc.  Some were obtained under a protective order. Others obtained through FOIA.  Despite the fraud, prosecutors pushed forward trying to “get around” the issues of fraud and misrepresentation. Key to the prosecution’s efforts to salvage the cases and the breath test program was a figure, a toxicologist who was the technical leader of the program. They planned on him being their savior.

For months, I’ve been preparing to cross examination this expert with the intention to reveal the truth, to shine a light in the dark corners of the breath alcohol program, to expose them. The cross examination, watched and followed by many, is now in Part/Phase 3.  I write about some of the revelations that have come out so far.  This will blow your mind.

The breathalyzers and the technicians, long touted as seemingly perfect and beyond question, were far from it.  The cross examination revealed that the leaders had their own opinions and conversations about the technicians, the quality of their work, the machines, etc., none of which was shared with the public. Some machines were referred to as “repeat offenders”, the “instrument from hell”, on a top 25 bad machine list and even a POS. When questioned, the MSP expert said that he believed that POS stood for “Point of Sale.”

Tune in and listen to the first installment of this killer cross examination on the subject of the breath test program and the MSP expert.

Please be aware we are relying on impressions, recollections, memories and interpretations.

A tribute to Ruth Bader Ginsburg

(March 15, 1933 – September 18, 2020)

Please be aware we are relying on impressions, recollections, memories and interpretations.

The phrase, gilding the lily, comes from a Shakespeare play, King John.  The line in the play is actually, “to paint the lily.” The quotation reads, in part, “To gild refined gold, to paint the lily / To throw a perfume on the violet. . .. / Is wasteful and ridiculous excess.” What it means is simple:  when you already have something beautiful, e.g., a lily, gold, a violet, don’t attempt to make it more beautiful.  All you do is risk ruining it.  For a cross examiner, this is a golden rule – DON’T GILD THE LILY.  In other words, once you’ve gotten the answer that you wanted or a good answer, leave it alone, don’t attempt to make it better because you really just risk making it worse or ruining it.  How?  For example, you’ve gotten the witness the admit to describe the room in which he says a crime occurred that he personally observed incorrectly.  Leave it alone.  Instead, so many questioners in search of the “dunk” or in an effort to “make the point even clearer” ask further questions and clue the witness in that he made a mistake.  For example, rather than leaving the wrong description alone, the lawyer follows up with more:

• Q:Now, you’ve described a room with a single bed right?
• A:I believe so.
• Q:You mean a narrow bed as opposed to a queen or a king, right?
  • (now the witness is clued in because the lawyer is going back and trying to make this point again.  Realizing that he made a mistake, he backtracks on the lawyer)
• A:well, I might’ve been a queen or king size bed. I wasn’t really paying attention that closely at that point because I was so startled by what I saw.

The lawyer has gilded the lily.  Rather than leave the answer alone, he tried to improve on it with more follow up only to ruin it.  In Episode 17, I explore this phenomenon and encourage you all to stop, respect the good answer and don’t gild the lily to make it better.

Please be aware we are relying on impressions, recollections, memories and interpretations.

Science. Complex, costly, imperfect and time consuming.  That’s the way science has been, is and always will be. Unless of course, it is the “science” of the law enforcement and the criminal justice system.  The complex and imperfect sciences that we are familiar with become, in the legal system, perfect, beyond question, fast and I expensive.

Why? Because the legal system needs certainty and expediency, not costly and uncertain. Uncertainty means doubt and that means reasonable doubt.  In Episode 16, I begin to touch on how the legal system has converted science, kidnapped it and made it into something it is not – beyond question.  Maybe, as I point out, if we treated science with more respect and awe, we’d treat those in the system with more respect and awe themselves.

Please be aware we are relying on impressions, recollections, memories and interpretations.

Of all the questions I get regarding cross examination and trial work, “how do you deal with difficult judges?” is asked the most often. During Episode 15, I explore the qualifications of becoming a judge and share stories of how I’ve dealt with difficult judges in the past. Most jurors and members of the public think that a judge must’ve been an amazing all-knowing lawyer and must know all areas of the law. Wrong. Worse, some judges cannot help but interfere in the trial and interfere in the cross examination.

How do you handle these judges without losing the jury and without hurting your client’s case? Very carefully.

Listen to Episode 15 for more …

Please be aware we are relying on impressions, recollections, memories and interpretations.

Whether intended or not, prosecutors are the most powerful entity in the criminal justice system.  That’s right.  You probably thought judges were.  While judges have tremendous power, in the end prosecutors have more.  They have the power to charge people with crimes, decide what crimes to charge, seek enhancements, make plea bargains, propose sentence agreements, etc.  The list is endless.  It is because prosecutors have so much power that special rules of responsibility (ethical rules) apply to them.   Prosecutors are supposed to ministers of justice and not just advocates.  Think about that for a moment — ministers of justice.  That means they have an additional responsibility to not just advocate for a conviction but to do justice.  

While most people know of prosecutors who work for the government or state, there is another type of prosecutor that most are unaware of — the city or municipal attorney.  Some cities hire their attorney or prosecutors internally.  In those cities, the attorneys function like a prosecutor hired by the state or county — they are government employees. However, most are not.  Most work for private law firms whose firms bid for a contract with a municipality or city.  These contracts can be withdrawn or terminated or the firm could, if the city is displeased with the relationship, could be lost during a competitive bidding process.  

This podcast is devoted to this type of prosecutor, the city attorney who works for a private law firm who wants to keep the city contract.  While most that I’ve encountered are responsible and can put aside the need to keep the city or municipality pleased, some do not.  What happens then? What happens when the city or municipal prosecutor is servant to two (2) masters, justice on the one hand and those that hired them on the other?

Please be aware we are relying on impressions, recollections, memories and interpretations.

We can learn a lot by watching someone do it right. We can also learn much, maybe even more, by watching someone do it wrong or poorly.  And this episode I break down and tear apart a cross examination done by another lawyer of a very important state expert witness.  I hold nothing back.  I. Hold. Nothing. Back.  

From asking open-ended questions, to having no plan, to not having ammunition to challenge the witness to asking questions of the witness that could do nothing but help the witness appear stronger, I point out various parts of the cross examination so that listeners and others can learn … what not to do.  If you can’t help your client or the case with asking questions, then don’t.  Just sit down.  But in this cross examination, the one that we tear apart, the lawyer did the opposite.  He brought a butter knife to a battlefield when the other side was armed with nukes and then tried to puke at the expert.  Not only did not help his client, it emboldened expert, made him appear more credible and gave the prosecution the appearance of having solid ground to stand on.

There is something called the sponsorship theory of trial advocacy .  If you put evidence out there or question a witness, the judge and/or jury will assume that the information you have or the information you are advancing is as good as it gets.  They will assume that you’re doing all you can and if you can do is hurt your position and aid the other side, the Court or jury will draw that conclusion.  This is to be avoided at all costs and in this episode, I break down a cross examination that did just that in my opinion, undermined the defense and helped the expert and state make their case even stronger.  

If you want to learn what not to do, in my opinion, tune in.

Please be aware we are relying on impressions, recollections, memories and interpretations.

From a young age, we’ve been told that ignorance of the law is no defense to a criminal offense or charge.  But shouldn’t it be?  The concept that ignorance of the law is no defense is rooted in the notion that we should know what the laws are and govern ourselves accordingly.  But how can we? Every year, the legislature passes more and more laws making more and more acts criminal violations.  For years, the legislature was creating on average of 45 felonies a year.  That doesn’t include misdemeanors and doesn’t include local municipalities.  The number of new laws is just staggering.  It is impossible to keep up with.  But even if you could, you’re required to know how those laws are being interpreted by the various appellate courts as well.  It is simply overwhelming.  

It can even prove overwhelming for the police yet, according to our courts, the police can be ignorant about whether was something was a crime and the evidence they seize or gather as a result of their mistaken believe that you were committing a crime is still evidence even though they were wrong so long as they acted reasonably or in good faith.  You read that right — if you act reasonably or in good faith, you can still be charged and convicted but if the police do the same thing, the evidence they seize can still come in as evidence against you.  We should get back to a different standard — criminal intent.  Either you intend to break the law or you don’t.  If you do, you should be able to be prosecuted.  If you don’t, you should not or at least you should be able to defend yourself saying, “I acted in good faith.  I thought what I was doing was legal.”  If it is good enough for the police, it is good enough for the rest of us.  

Tune in and hear my take. 

Please be aware we are relying on impressions, recollections, memories and interpretations.

In this episode, Neil Rockind discusses the concept known as the “Presumption of Innocence” and describes why it is such a cornerstone of our justice system. He analyzes the impact and effect of this presumption and explains the grave danger inherent in disregarding this essential aspect of the law.

By incorporating clever examples of how this would fare if it was applied in our daily lives, Neil makes clear just how destructive it may be when we choose to ignore the presumption of innocence and instead jump to conclusions. Listen to Episode 11 to hear more!

Please be aware we are relying on impressions, recollections, memories and interpretations.

Gathering Evidence of Innocence Should Come First

Did you know that the police and prosecution must turn over evidence favorable to the defense to the accused?  Did you know that the US Supreme Court has stated that it is a denial of due process for a prosecutor not to turn over favorable evidence? Likewise, did you know that even if a prosecutor is unaware of the evidence, if any member of the police department or someone within the sphere of influence and control of the prosecution knows about it, it must be disclosed.  Yet, why do cases still get overturned for the failure of evidence to be disposed?

Perhaps the root of the problem is that some police officers do not took for evidence of innocence or as we call it, “exculpatory evidence”.  Instead, the police simply seek out evidence that confirms the allegations or “helps prove the charges” rather than seek or attempt to obtain evidence that undercuts the allegations.  Most police officers would claim that they are neutral, i.e., that they just gather evidence without bias but when do they overlook evidence that tends to exculpate the accused so regularly.

Within the last month, I’ve cross-examined 2 police officers who both admitted that they didn’t know what exculpatory evidence was.  Isn’t that shameful?  How can police officers claim to look for something and claim to preserve it if they don’t know what it is?  How can prosecutor’s claim to have turned everything over and to be even handed ministers of justice, if the police officers that are working with them don’t know what exculpatory evidence is?

Things should change.  If they haven’t looked for and processed all evidence, and most importantly, evidence that favors the accused, than a person should not stand trial for that offense.  Hear me discuss this issue in Episode 10.

Please be aware we are relying on impressions, recollections, memories and interpretations.