Category Archives: Trial Issues

Does it really matter what Jodi Arias wants?

By: Melinda Joiner – Student Blawg

In an interview with Phoenix television station KSAZ just moments after the jury returned their verdict, thirty-two year old Jodi Arias had the audacity to say, “I believe death is the ultimate freedom, so I’d rather just have my freedom as soon as I can get it…I would much rather die sooner than later.” Unfortunately, Jodi, you lost your freedom when the jury convicted you of first-degree murder. Your fate lies in the hands of the jury.

Yesterday, an Arizona jury convicted Arias of first-degree murder for stabbing her ex-boyfriend Travis Alexander twenty times, shooting him in the face, and cutting his neck, nearly decapitating him back in 2008. If the jury finds that ‘the murder was committed in an especially heinous, cruel, or depraved manner,’ Arias could face the death penalty. If they are unable to establish at least one aggravating circumstance, Arias would face the dreaded life in prison sentence.

I’m usually not one to express my opinion, but I was flabbergasted when I read her statement regarding her punishment preference. Who cares what her preference is? Not only did she commit murder. She committed it in a horrific manner. How can anyone convicted of such a heinous crime expect his or her “freedom?” All I could think when I saw Arias’ statement was “I hope the jury gives her exactly what she doesn’t want: life in prison.”

Last month Arias’ attorney filed a motion to have jury members sequestered, stating to the judge ‘The court asks the question of the jurors every morning, “Have you seen anything on the media?” No one raises their hand…To believe that to be true is to believe an absolute fiction. It is a fairytale to assume that this jury is not hearing any of this. It is all over the news, be it local or national.’ The judge denied the motion urging the jurors to avoid all media coverage of the trial. However, if I was a member of the jury and accidentally saw or heard Arias’ statement, I would find it extremely difficult to cast it aside and determine her punishment solely on the heinousness of her crime. Every fiber of my being would want to give her a lifetime in prison punished by her own thoughts and feelings.

After a bomb threat at the courthouse where the trial was being held and the rescheduling of the aggravation phase of the trial (where the jury will determine whether or not the death penalty may be imposed) today, we will have to wait until next Wednesday for the jury to begin the process to determine if Jodi Arias will get her wish.

Sources:

http://www.cnn.com/2013/05/09/justice/arizona-jodi-arias-trial/?hpt=hp_c2

http://abcnews.go.com/US/jodi-arias-lawyer-asks-jurors-sequestered/story?id=18876926#.UYyz8LWceSp
http://usnews.nbcnews.com/_news/2013/05/08/18128048-jury-finds-jodi-arias-guilty-of-first-degree-murder?lite

http://www.foxnews.com/on-air/on-the-record/2013/05/09/exclusive-jodi-arias-interview-death-ultimate-freedom-so-id-rather-just-have-my-freedom

Click to access Final-CapPun.pdf


Supreme Court: Dog Sniffs At Persons’ Homes Are Searches Requiring Probable Cause Under the Fourth Amendment

Washington, DC (March 26, 2013) – In its decision in Florida v. Jardines (11-564), the U.S. Supreme Court today upheld the Florida Supreme Court, which affirmed the suppression of marijuana evidence unearthed by law enforcement arising out of their use of a canine sniff at Mr. Jardines’s front door without probable cause. This is the second dog sniff opinion of the term. This time, though, the Court sided with personal rights over law enforcement’s use of enhanced searching technologies.

In summary,

Police took a drug-sniffing dog to Jardines’ front porch, where the dog gave a positive alert for narcotics. Based on the alert, the officers obtained a warrant for a search, which revealed marijuana plants; Jardines was charged with trafficking in cannabis. The Supreme Court of Florida approved the trial court’s decision to suppress the evidence, holding that the officers had engaged in a Fourth Amendment search unsupported by probable cause.

 As in United States v. Jones, the GPS case from last term, the Court’s majority today reaffirmed a centuries-old tradition to “keep easy cases easy”—the government must obtain a warrant before it may intrude upon private property in order to gather evidence of a crime.  By finding the conduct of law enforcement in this case to have violated a person’s constitutional right to protection from unwarranted search and seizure, the Supreme Court made clear today that the Fourth Amendment is not, in fact, dead.

The use of a trained police narcotics dog is no different than the use of GPS or thermal heat imaging technology. Law enforcement may not use enhanced search technologies to intrude upon private spaces without a warrant. Today’s ruling reinforces the old adage that “a man’s home is his castle” and the Government, even in the form of a “drug sniffing” dog, cannot intrude on that fundamental right with the purpose of gathering incriminating evidence without a warrant.

Some highlights from the opinion:

 (a) When “the Government obtains information by physically intruding” on persons, houses, papers, or effects, “a ‘search’ within the original meaning of the Fourth Amendment” has “undoubtedly occurred.” United States v. Jones, 565 U. S. ___, ___, n. 3.

(b) At the Fourth Amendment’s “very core” stands “the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” Silverman v. United States, 365 U. S. 505, 511. The area “immediately surrounding and associated with the home”—the curtilage—is “part of the home itself for Fourth Amendment purposes.” Oliver v. United States, 466 U. S. 170, 180. The officers entered the curtilage here: The front porch is the classic exemplar of an area “to which the activity of home life extends.” Id., at 182, n. 12.

(c) The officers’ entry was not explicitly or implicitly invited. Officers need not “shield their eyes” when passing by a home “on public thoroughfares,” California v. Ciraolo, 476 U. S. 207, 213, but “no man can set his foot upon his neighbor’s close without his leave,” Entick v. Carrington, 2 Wils. K. B. 275, 291, 95 Eng. Rep. 807, 817. A police officer not armed with a warrant may approach a home in hopes of speaking to its occupants, because that is “no more than any private citizen might do.” Kentucky v. King, 563 U. S. ___, ___. But the scope of a license is limited not only to a particular area but also to a specific purpose, and there is no customary invitation to enter the curtilage simply to conduct a search. Pp. 5–8.

(d) It is unnecessary to decide whether the officers violated Jardines’ expectation of privacy under Katz v. United States, 389 U. S. 347.

And the best part about it: Scalia delivered it!

A link to the Supreme Court’s opinion in Florida v. Jardines is available here.


Hello Officer, read my middle finger!!

In a 14-page opinion, the U.S. Court of Appeals for the 2nd Circuit ruled that the “ancient gesture of insult is not the basis for a reasonable suspicion of a traffic violation or impending criminal activity.” Read this: giving a cop the finger!

This case all started when John Swartz  flipped off an officer who was using a radar device at an intersection in St. Johnsville, N.Y. Swartz was later charged with a violation of New York’s disorderly conduct statute. Swartz and his wife Judy Mayton-Swartz sued the two police officers who arrested him.

The officer’s record and explanation as to why he pulled over the couple on this case is classic! Richard Insogna, the officer who stopped Swartz and his wife claimed he pulled the couple over because he believed Swartz was “trying to get my attention for some reason.” The officer further claimed: “I thought that maybe there could be a problem in the car. I just wanted to assure the safety of the passengers,” and “I was concerned for the female driver, if there was a domestic dispute.”

Thankfully the appeals court didn’t buy that crap, ruling that the “nearly universal recognition that this gesture is an insult deprives such an interpretation of reasonableness.”

This opinion is awesome. In a wonderful analysis of the standard of “reasonable suspicion” the Court lamented

Perhaps there is a police officer somewhere who would interpret an automobile passenger’s giving him the finger as a signal of distress, creating a suspicion that something occurring in the automobile warranted investigation. And perhaps that interpretation is what prompted Insogna to act, as he claims. But the nearly universal recognition that this gesture is an insult deprives such an interpretation of reasonableness. This ancient gesture of insult is not the basis for a reasonable suspicion of a traffic violation or impending criminal activity. Surely no passenger planning some wrongful conduct toward another occupant of an automobile would call attention to himself by giving the finger to a police officer.

Hey officer Krupke, Krup you!

indexHere’s the opinion.


Attorney fees for NRA Attorneys

Attached is the recently-filed attorneys fees opinion from the district court in Illinois resolving a fee petition for the prevailing lawyers for the NRA before the Supreme Court.

Two lawyers who argued before the Supreme Court were found entitled to hourly rates of $1,020 and $880, respectively.  Another such lawyer who sought compensation at $800 per hour, but who had discounted his time to his client, got $450 per hour, notwithstanding that he had actually charged his clients at the discounted rate of only $225 per hour.  Evidence showed that he charged other clients at rates between $400 and $500 per hour.

While you might find this objectionable, a significant amount of thought goes into the award of attorney fees.  I think the court gives a decent analysis how it justified such profound rates.

What can we learn from this …

Read the opinion here: NRA v Village of Oak Park (N D Ill 2012) (gargantuan hourly rates for NRA lawyers)


Student Blawg: The Costa Concordia

By: An Anonymous Student

During the night of January 13, 2012, the 955-foot Italian-flagged COSTA CONCORDIA struck rocks and capsized near the coast of Giglio, Italy, resulting in evacuation of the 4,252 people on board. Thirty-two people are known to have died during this tragic event, others were injured and two are still missing.

This tragedy raises a number of issues including cruise ship safety and the rights of cruise ship passengers, particularly pertaining to the matter of legal jurisdiction. A cruise ship ticket is also known as a “cruise ticket contract.” By purchasing the ticket, a passenger arguably enters a contract and agrees to its conditions, which include a series of limitations and waivers in case of dispute. Two clauses of concern on the Costa Concordia ticket address the jurisdiction and which laws apply for possible legal claims against the company. The “forum selection” clause stipulates the specific court in which a plaintiff may file a claim against Costa. The “choice of law” clause is where Costa names which country’s laws will apply to that claim. Despite the fact that the cruise ship has its headquarters in Miami, FL, the forum is in Italy and the choice of law is Italian law. According to Beard Stacey and Jacobsen, LLP, maritime injury law firm in Washington, this clause gives the passengers a huge disadvantage of bringing their lawsuits in Italy versus the US where it is typically easier to recover damages for pain and sufferings. Time limits on legal notices and actions are stated on the contract, and there is also a clause in the Costa contract barring the filing of a class action lawsuit.

At last report, Costa Concordia has said it will reimburse passengers for travel expenses and medical expenses. The company is also offering uninjured passengers about $14,460 each to compensate for lost luggage and psychological trauma. It is obvious that not all the passengers agree that this amount is sufficient to cover the terrifying experience of being on a sinking ship. Costa plans to address compensation to those with physical injuries and to the families of those who died on an individual basis. The Costa ticket contains a clause limiting its liability for the death or injury of a passenger to about $71,000, although that doesn’t apply in cases of recklessness and some legal experts say it could be successfully challenged.

Despite the terms on the Costa cruise ticket contract, lawsuits, including class action suits, by U.S. citizens and citizens of other countries are being filed in Florida and other states. The families of those who lost their lives fear that Italian law and courts will not appropriately address their losses. It is unclear whether the Florida court will keep the case or uphold the forum selection clause in favor of the Italian court. Even if the Florida court finds a way to keep the case on jurisdictional grounds, it may still uphold the choice of law clause stated in the cruise ticket contract. In such a case, damages would be governed by Italian law.


E-MAIL gets 4th Amendment Protection

The Sixth Circuit United States Court of Appeals, Tuesday, ruled that e-mail is legally protected by the Fourth Amendment. It determined in a 3-0 vote that users still had a reasonable expectation of privacy online, that e-mail was similar to traditional communication and thus that the government still needed a search warrant to intercept and read e-mail.

The Court stated:

Given the fundamental similarities between email and traditional forms of communication [like postal mail and telephone calls], it would defy common sense to afford emails lesser Fourth Amendment protection…. It follows that email requires strong protection under the Fourth Amendment; otherwise the Fourth Amendment would prove an ineffective guardian of private communication, an essential purpose it has long been recognized to serve…. [T]he police may not storm the post office and intercept a letter, and they are likewise forbidden from using the phone system to make a clandestine recording of a telephone call–unless they get a warrant, that is. It only stands to reason that, if government agents compel an ISP to surrender the contents of a subscriber’s emails, those agents have thereby conducted a Fourth Amendment search, which necessitates compliance with the warrant requirement….

Applying the Fourth Amendment sets the first legal precedent of its sort and could prevent the government from any further attempts to snoop civilian e-mail without a warrant.

Read the opinion here!


District Attorney Criticizes Colorado’s Public Defenders

Colorado District Attorney Martin Beeson should hand in his prosecutor’s badge and tear up his bar card. It’s like he was asleep in Con Law class during law school. Perhaps he should join the Tea Party with Christine O’Donnell to burn up the Constitution.

According to the Aspen Daily News, District Attorney Martin Beeson said that he stands by recent comments he made in October 2010 criticizing public defenders, as lawyers throughout Colorado condemned his statements.

These comments stem from a meeting he had recently with Pitkin County commissioners concerning his office’s 2011 budget. Beeson criticized local public defenders for some overzealous courtroom tactics, accusing them of unethical behavior and abuse of the system, wasting taxpayer resources, filing meritless motions clogging courtrooms, and unnecessarily using up tremendous resources at taxpayers’ expense.

Beeson told the Aspen Daily News, “Public defenders are not defenders of the public. They are not serving the public good. They are taxpayer-funded attorneys for criminals.” According to the News, he said that Public Defenders “are government-funded defense attorneys and should be called just that, government-funded defense attorneys.”

Who is this guy? He is clearly not anyone who gives a damn about equal justice for all. I guess he skipped over the part of the Constitution that imposes due process. Remember that?  Thou shall not be deprived of life, liberty or property without due process of law?  I guess he expects the accused to just lie down and roll over.

Talk Left commentator, Jeralyn stated in an article “The Worst Prosecutor Comment of the Week” of October 22, 2010, states that “… Someone needs to clue Beeson in to the purpose of the Bill of Rights… The framers of the Constitution understood mistakes happen, and it is better that a guilty person go free than an innocent person be convicted.”

SOURCE

I have to appreciate the comments of my friend and colleague, Tina Fang for sticking up for her office, who has to deal with this clown on a daily basis. According to the News, she said his characterization of their work “demonstrates why, now more than ever, the public defender’s office must heed its mission to ensure that indigent people accused of crimes in this valley are provided the highest and most zealous level of representation money can’t buy.”

The head of the Colorado Public Defenders System, Defender Douglas K. Wilson, said via e-mail: “It is sad, and scary that Mr. Beeson does not believe in the same principles.”

Doug Wilson went on record with the News criticizing Beeson.  “The men and women that work for the [state public defender] work for the poor with little financial reward because they believe in the protections set forth in the Constitution by our founding fathers.”

I agree! What kind of archaic attitude do you need to have to believe that the citizens of your country, state, or county are not entitled to due process and the right to be innocent until proven guilty; or that the government better have enough evidence to convict you beyond all reasonable doubt? It is the DA’s obligation to prove beyond a reasonable doubt to guarantee the protection of the innocent.

SOURCE

In retaliation to the report published in the Aspen Daily News, Martin Beeson refused to apologize for his statements about the public defenders, claiming that he was misquoted, and backed up his initial statement with a Guest Opinion article ‘The Truth Hurts’ which was published in The Aspen Times on November 1, 2010. Beeson writes “The presumption of innocence and the right to counsel are simply smoke screens thrown up by those who have a vested and pecuniary interest in protecting their dirty little secret. …It is the prosecutor who represents you, the people. It is the defense attorney who represents the interests of the perpetrator who has forever devastated the life of the victim… …The truth is that prosecutors and law enforcement officers live with the pain of victims of crime. Defense attorneys do not.  …the only apologies needed are from those defense attorneys who routinely re-victimize the good and decent people of our communities who have suffered devastating and life-altering experiences at the hands of their clients.”

SOURCE

Tom Silverman fired back at Beeson, stating that “Martin’s latest responses are so misguided, contradictory, and poorly grounded in law or fact that it begs for a response.”

“I remember cases in which the defense ‘frustrated’ the DA’s efforts to convict the innocent. The literal statement of the DA characterizes these people as ‘criminals’.”

“… Every warrantless arrest is presumed illegal. Most arrests are warrantless. Every statement to the police is subject to scrutiny regarding its voluntariness and compliance with constitutional warnings. Every case involves the obligation of the prosecution to provide exculpatory evidence, reports, and statements of witnesses to the defense. … Ethical conduct by the defense is to ensure the defendant’s rights are provided and protected. Failure to file motions is, in my opinion, a bigger problem than the filing of frivolous ones. Cynically believing that pecuniary interest of attorneys is the issue shows a fundamental misunderstanding of defense motives.”

SOURCE

Beeson’s unremitting statements are affirmation that his interests are not in support of due process of law, but more likely politically motivated tactics to instill fear in the public, as a push to move his political aspirations forward.


Student Blog – Boeing Must Pay $462 Million in Damages to Satellite Firm ICO

By Dawn Moffit

The Star Tribune is reporting:

A jury ordered the Boeing Co. to pay $236 million in punitive damages Friday for breaching a contract to build and launch satellites for a company headed by cellular phone pioneer Craig McCaw.  Boeing now owes at least $607 million to ICO Global Communications, including $371 million in compensatory damages the jury awarded last week.  The total could top $700 million after the court adds interest, ICO said.


The jury’s decision follows a four-week trial in which Reston, Va.-based ICO accused the aerospace giant of hindering the launch of its satellite network by fraudulently raising prices for the project.  Boeing “was extremely hurtful and harmful to the company and almost destroyed ICO,” said ICO attorney Barry W. Lee.

Boeing spokeswoman Diana Ball said the company will appeal the case, citing “fundamental flaws throughout this trial.” She said the process could take several years.
ICO’s lawsuit, filed in 2004 in Los Angeles County Superior Court, stems from the company’s decade-old plan to launch a fleet of satellites that would broadcast video and other services to mobile device users around the world.

ICO contracted with El Segundo-based Hughes Electronics Corp. in the mid-1990s to build and launch 12 satellites. Boeing acquired Hughes in 2000 and inherited the ICO contract, but only finished two satellites — one of which was lost because of a failure aboard a Boeing Sea Launch rocket.  ICO sued Boeing and its satellite division four years later over breach of contract after Boeing allegedly demanded ICO pay another $400 million to finish the job.  Ball said costs of producing the satellites increased as ICO tried to delay the project during a major slump in the telecommunications sector.

ICO attorneys argued during trial that once Boeing got into the satellite communications business, its former customer became a competitor. Boeing’s attorneys argued the aerospace company attempted to keep the deal alive and accused ICO of canceling the contract for convenience.

The jury found Boeing acted with fraud and malice and awarded ICO $59 million from Boeing Satellite Systems, which is based in El Segundo, and $178 million from the Chicago-based parent company.  The judge will determine whether $91.6 million in compensatory damages related to a separate contract with the parent company is already included in the $371 million award or should be added to the total.


This is just an example of how slow the justice system works and how long it actually takes to settle a case and how much can happen in the meanwhile.  The case filed in 2004, brought to trial in June and the jury finally finished the damages’ verdict this past week.

ICO probably used anticipatory breach to sue Boeing since Boeing didn’t complete performance on the contract and demanded $400M more to finish the project.  Since this is a sale of goods agreement, the UCC would apply.  ICO also claimed Boeing didn’t fulfill the K since Boeing now considered them a competitor not a customer in the satellite communication business.

Source


State v. Tyrell

Oh wow! There are some things in this legal profession that just beg to be made public. I have to thank my good friend Marc Randazza for bringing this case to my attention.

The case is the State of Florida v. James Tyrell where Tyrrell is appealing his conviction of misdemeanor battery. riginally he was charged with three counts of sexual battery on a person twelve years of age or older, all second degree felonies. The facts presented by the government are fairly typical of a sexual assault case. But the crux of this case, and the issue that makes it unique is that Tyrell raised two defenses at trial. The first was that he had a very small penis, thus it likely didn’t cause the injuries complained of by the victim. And, second that the victim had caused her injuries herself with “aggressive use of a dildo.” Apparently at trial, Tyrell tried to get the victim to produce her dildo and consent to a dildo lineup. At trial, on July 23 and August 2, 2004, “the trial court ordered the victim to produce the sex toy and/or dildo discussed in her depositions within 15 days.” However, she never produced it.

On appeal, Tyrell argues that his

“right to due process and right to confront witnesses” was violated because the state did not produce the items that were the subject of the July 23 and August 2 orders. However, it was the victim, not the state, who was ordered to produce. The defense never moved to hold the victim in contempt for failing to turn over the dildo and medical records; there was no showing that the state possessed the items and withheld them from the defense. At trial, the victim described the dildo and explained in detail how she used it. Even if there was error in the court’s ruling about the dildo, the error was harmless. The jury did not need to see the actual dildo to understand the testimony or the nature of the defense.

Wow! I need to give credit to the victim who put her personal life out in the open. It can’t be easy talking about the subjects she was exposed to.

All in all, the orders of the trial court were affirmed and Tyrell’s conviction was upheld. You can read the Appeal here:Florida v. Tyrell


A Cop’s Opinion isn’t Expert Opinion

As I promised, I was going to give you an update to the story below about entrapment and how it was affecting a trial I was just involved in. And that event is still to come. However, equally as important is to give you a little taste of my trial and how I wanted desperately to convince the judge in this trial to keep out a police officer’s opinion that my client was involved in a drug deal. To give you a little bit of a background (please note that the names have been changed to protect the legally challenged), the Investigator asserted in his report that

“At approximately 8:30 p.m., [the] Investigator drove past [my client] in the parking lot. This male looked towards the Investigator and nodded his head several times. [The] Investigator has participated in undercover narcotic operations in this area for a year and half, and has completed nearly thirty (30) crack cocaine transactions. [The] Investigator has learned through training and experience that street level narcotic dealers will nod and waive at passing vehicles and pedestrians in an attempt to attract potential customers.”

Yes, I know what you are thinking. You need to turn yourself in for narcotics dealing, and you didn’t even know it. To quote Patrick from Spongebob Squarepants “I didn’t even know I was an alien.” And these are the officials we have entrusted to our streets. Careful as to who might be watching the next time you try to get someone’s attention.

Obviously, I saw an opportunity to pounce on this investigator (figuratively of course) and file a motion to keep his speculative and unsupported (lame man’s) opinion to himself at trial. I never got the opportunity but, here’s what I was ready to argue (please note that because this was a Colorado case, I was applying Colorado law. Please don’t think for a moment that this analysis applies in every state, or even in federal court, or that it would even fly again here in Colorado. Hire a good lawyer first) :

Under Colorado law, opinion evidence is expert testimony and is now determined by Colorado Rule of Evidence 702 and its applicable case law. The Colorado Supreme Court has determined that C.R.E. 702 and 403 represented a better standard for determining the admissibility of scientific evidence than the general acceptance test set forth in Frye v. United States, 293 F. 1014 (D.C. Cir. 1923). People v. Shreck, 22 P.3d 68 (Colo. 2001). The Shreck Court noted that this is due to the fact that the flexible approach represented by the Rules considers a wide range of issues. The Shreck Court noted that the approach set forth in the Rules was to be applied to all scientific evidence and not limited to the novel scientific evidence previously governed by the standards set forth in Frye v. United States, 293 F. 1014 (D.C. Cir. 1923.) Pursuant to 702 and 403, the focus of a court’s inquiry should be to determine: (1) the reliability of the scientific principles as to which the witness is testifying; (2) the qualifications of the witness to opine on such matters; and (3) the usefulness of the testimony to the jury in understanding the evidence or to determine a fact in issue. Id.

As further modified under Masters v. People, 58 P.3d 979 (Colo. 2002), the Shreck four step analysis requires 1.) the opinion and the knowledge on which the opinion is based be reasonably reliable; 2.) the expert is qualified to give the opinion; 3.) the testimony will assist the jury, and 4.) the probative value is not outweighed by the danger of unfair prejudice or other trail concerns of Rule 403. The Colorado Supreme Court also recognized that factors mentioned by other courts may be pertinent, including: (1) the relationship of the proffered technique to more established modes of scientific analysis; (2) the existence of specialized literature dealing with the technique; (3) the non-judicial uses to which the technique are put; (4) the frequency and type of error generated by the technique; and (5) whether such evidence has been offered in previous cases to support or dispute the merits of a particular scientific procedure. See Shreck, 22 P.3d 68.

Furthermore, in applying C.R.E. 702 to determine the reliability of the evidence, the court should consider a wide range of factors, including those set forth in Daubert v. Merrell Dow Pharaceuticals, Inc., 509 U.S. 579, 593-94 (1993). Under Daubert, the Supreme Court enumerated a non-exclusive list of “scientific validation factors” a court might consider to wit: (1) whether the technique can and has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the scientific technique’s known or potential rate of error, and the existence and maintenance of standards controlling the technique’s operation; and (4) whether the technique has been generally accepted. Daubert, 509 U.S. 579.

In the present case, the scientific determination that “[the] Investigator has learned through training and experience that street level narcotic dealers will nod and waive at passing vehicles and pedestrians in an attempt to attract potential customers” is not evidence or testimony that the finder of fact should be allowed to consider as testified to by the Investigator due to the lack of scientific reliability under Daubert, Shreck, and the subsequent cases. This expert statement is not backed by any proof, peer review, publication or otherwise scientific research and application. Moreover, the Investigator is not qualified to make this statement as fact or present it as evidence within any degree of scientific certainty. The Investigator’s opinion as to this fact is not sufficiently reliable to be used by the finder of fact to determine the underlying issue in this case.

And what I really wanted to tell the judge:

Not to mention, it’s just damn silly as hell.