Because we are criminal defence lawyers, we spend a lot of time reviewing evidence and conducting our own investigations. Like the police, we follow up clues and develop leads. When we get an inkling that something is suspicious, quite often our inquiries reveal much more than we expected. And sometimes we end up in situations that are more bizarre than anything you would see in a movie.
In criminal cases we review the police evidence and then we start digging where we see weaknesses in the prosecution’s case. This can take time. Sometimes we find little that can help our client. But often enough we find the evidence that leads to our client’s acquittal. Our legwork has prevented wrongful prosecutions and wrongful convictions. We are proud of that.
When it comes to Immediate Roadside Prohibitions we are disadvantaged mainly by the timeline and steps taken by the Government. We had innocent clients who received 90-day IRPs and we were aware of it. The problem was that the client was already suffering the punishment and the hearing had to be conducted in less than 20 days. If we asked for an adjournment, it was often not granted and in any event, the prohibition would stand in the meantime. So we were at a great disadvantage and this allowed wrongful punishment.
If you look at the response of the Government concerning faulty Approved Screening Devices and inaccurate readings, you can see that they were not interested in ensuring that innocent people were exonerated. After all, they wrote and implemented legislation that precluded the defence of innocence.
Nevertheless we continued to investigate. We realized early on that we could not investigate every lead in every single IRP case mainly because of the time it would take and the fact that the punishment would be served long before we acquired the evidence. So we began to gather the information we could from a handful of police detachments simply to see what was out there.
Ultimately we allowed some reporters to see the proverbial tip of the iceberg. It is amazing and overwhelming, but the gigantic mass still lies underneath. Why did we go to the media and not the Government? Re-read two paragraphs above.
We have reams of documents and some of them we have never closely considered because we simply don’t have the time. (If you know a statistics or economics student looking for a PhD thesis topic, tell them to give us a call.)
From time to time, the evidence we collect can be enlightening for a particular case. For example, several months ago we had a case that was adjourned by the Superintendent’s Office because after we conducted the hearing but before the decision was rendered they changed the rules to eliminate our client’s defence. (We’re not kidding.) Consequently, the client did not succeed at his review hearing. It made us angry, but it was not unusual and the client was so disheartened that he was not interested in taking it further.
This week the client called us back because he read on the blog that we had disclosure from that particular police detachment. He wondered if there was anything there of interest to his case.
We obtained this disclosure just a few months ago. His hearing took place last summer. To our surprise, we discovered that both of the ASDs he blew into were not calibrated. The documents showed that the officer who tested them found them to be out of calibration but did not then re-calibrate them. We have seen this on a few occasions, but we had not looked to see if it had happened on the two units to which the client provided a sample.
This person served the punishment and paid the fines, towing, interlock, RDP etc. Should we write to the OSMV to request a re-hearing on the basis of fresh evidence? We have written to make this request in other cases and received no response. Should we file a Petition to seek a remedy from the Court? It costs money, and the remedy would be a new hearing before the Superintendent. Bearing in mind his experience the first time, our client is not interested in pursuing this option.
In criminal cases we as lawyers have the time to consider the evidence, research, investigate and find the truth to protect our clients. The IRP scheme disallowed this. Expediency is important to this Government. Justice does not register on their radar.