Dean's Address

That first case was thrown out on voir dire hearing. But on this occasion Myers was more careful to get close enough to the van to add credibility to his claim. The next statement issuing from Officer Myer's lips at the scene of the arrest was, "I detect a strong odor of marijuana coming from your van, what about you Officer Hall?". At which point Hall confirmed, as if from the script of a fourth grade play, " Yes, I also detect a strong odor of marijuana coming from the van", the words being mouthed as a conscious parody of the truth. To conclude, the door to the van was forced open, all parties in the vehicle searched and the contraband recovered. The defendants had not been quite as careful as they should have been. Inside the van, from the ashtray were confiscated two or three roaches, not of the insect variety, but rather the butts of marijuana cigarettes. This find would of course afford strong eveidentiary substantiation to the claims of the arresting officers to have smelled the marijuana. Defendants however convinced us that absolutely none had been smoked inside the van prior to the search and seizure, and that the claims on the part of the vice officers to have had reliable information, and to have smelled the odor or marijuana, were absolute lies. Pre‑trial conferences with the district attorney and narcotic officers indicated that they would seek to justify the search and seizure solely on the officers' having detected the odor of marijuana. They had abandoned as an apparently unneeded over‑kill the non‑existent reliable informer. But there we were. All the tangible and circumstantial evidence was in favor of the State. Unless we could prove on voir dire, by a preponderance, that Officer Myers did not in fact smell the odor of marijuana prior to his entering and searching of the van, we had prison‑bound clients. We had to establish that truth in favor of two known and one convicted drug traffickers, pitted against the testimony of the soft spoken and fair‑haired All‑American disciples of Starsky and Hutch. The problem was a nagging one. How to prove that there was no smell of burning marijuana. The marijuana cigarette butts were glaringly there. There was no deductive clinical test to establish that they had been burned not on the night of the arrest, but some ten days to two weeks previously, and carelessly left odorless, tasteless and hidden from the view of anyone outside‑the van. All the legal precedent in the case, from Mapp, Escobedo forward, was neatly stacked on the prosecutor's table. We were left to save the freedom of two drug traffickers through their own testimony that they had smoked those cigarettes two weeks prior to their arrest, a case with no over‑abundance of trial merit.

The members of our firm conferenced the matter out as we do each morning with cases where we need think‑tanking. Those among you are very fortunate who have joined practice with individuals whose personalities and ideas catalize your own. In our small firm the queries "why" uniformly begat quips of "why not?" We decided to employ as our initial strategy the three cardinal rules in criminal drug defense‑Delay, Delay, Delay‑ Some months later, before the preliminary hearing in the matter, I got a call from my younger son who said he had just discovered, while taking his post‑tennis shower, the reason we were stymied in our effort to dream up a defense strategy. He told me of a book that he had just read entitled "Zen and the Art of Motorcycle Maintenance", and it had shown him the way to win our case. Responding to my next question which touched on his soberiety, my son, in an excited state, related to me a curious proposition. "Dad, if it hadn't been so impossible I couldn't have come upon it. There is no legal or practical defense in the case, right? We know the legal precedents and we know the probative probabilities. Deductively, we can't formulate any strategy to attack probable cause to search in this case. The cops are going to lie and we can't impeach them. At least, we can’t impeach them with ordinary means, such as contrary credible witnesses, or prior inconsistent statements. "In other words," he said, "we can' t solve the problem as lawyers. But that is what is so beautiful about it, " he continued. "We can solve it as movie producers‑and the solution has real quality. Then, when we've finished being movie makers, we'll take the movie and become lawyers again, and win the case. I got the hunch that he was onto something, and that that something had quality.

In the office the following Monday, my young partner outlined the miracle we were to perform. Our end to negate probable cause. Our means, was to establish the absolute and habitual mendacity of the prosecuting officers. There was scant precedent for that. As we all know, one is permitted in his defense to put on evidence of a significant character or personality trait of a witness which bears on material issues in the case, or on the witness' veracity. But the question was, of course, how to establish through deductive logic that one is possessed of an overdose of subjective quality ‑mendacity‑ My son's response was still enthusiastic. "But that's the mistake you're making," he insisted. "The books and the teachers have taught us to be deductive in our methods of proof and reason. There is an entirely different system of establishing truth, the process of‑'induction'. As Starsky and Hutch are liars on occasions A, B and C, which are past and unprovable, then there is a distinct likelihood that they will be mendacious on future occasions E, F and G, which we can and shall establish." "Are you thinking what I think you are thinking?" I said to him. He said, "Yes, we are going to arrange for our clients now on bail to be arrested again by Monty's Marauders; and this time we're going to say after its all over, 'Smile, you're on candid camera"'.

The plans were made and were executed with military precision. On April 18, Officer Myers received a telephone tip by an unidentified and absolutely unreliable informant. Her words spoken while the tape recorder was going were, and I do here quote ‑"Hey , Monty, do you know a jerk by the name of Tommy Logan?" Response affirmative. "Well he and that sorry friend of his, George Stalder going to be at Lum's at Zayre Shopping Center at 6:00 tomorrow night; and they are going to have ten pounds of sh‑‑ on them and I want you to bust their ass "...click.

The night before the "bust", the subject vehicle (that is, our client's van) was cleaned by professional cleaners under the direction of an unbiased, unimpeachable law student from Wake Forest University.One expert witness was sent to a local health food store, where he obtained receipts for his purchase of the contraband bait a ten pound mixture comprised of oregano, basil and oriental dandelion tea in equal parts. The resulting grass‑like mixture could have deceived the nose of a Mexican border official's hound dog. Before the night of the appointment, the subject van was again thoroughly cleaned from ashtray to tire well with the commercial substance, Mr. Clean. The clothing of defendants Stalder and Logan was thoroughly laundered, and all foreign material extracted from pockets and cuffs. The van was equipped with two separate fail safe recording and transmitting devices able to pick up conversation and noise within thirty feet of the subject van with the windows closed. The counterfeit grass was again hermetically sealed in plastic bags, so as to render the package completely odorless. The packing was then wrapped again in an impermeable raincoat and hidden from view in the tirewell of the subject van. Our surveillance vehicle was equipped with one‑way glass, sound motion picture and receiver equipment to monitor and record conversation and activities in subject van. We were going to make a movie of an actual drug bust. Our intent was to establish that Monty's Marauders would search and seize a motor vehicle on bare suspicion or on unreliable information, and further that they would fabricate lies, according to their habit, to establish probable cause ex‑post facto.

The bust came off like clock work. The defendants arrived at Lum's at Zayres Shopping Center at quarter of six. A very suspicious looking individual with beard and business suit entered the van and conversed with defendants, all in broad daylight, each acting according to script and making absolutely no covert movements with their hands, and smoking only filter‑tip cigarettes. The three entered the restaurant where they dined according to plan, under the careful scrutiny of yet a third unimpeachable witness. The suspicious party was of course our plant, an impeccable source, who was in fact the professional movie producer who lent us his expertise in the matter of sound and movie recording of the event. At all times we were in radio contact with the defendants and their guests; and we filmed the arrival of the police surveillance vehicle, driven by narcotics officers Myers and Hall, as they entered the shopping center to view our scenario. We filmed them through the one-way glass of our surveillance van up until the moment, fifteen minutes before sundown, when according to script the subject van departed and headed home, none of its occupants having done anything suspicious enough to warrant a search of the van. The unmarked narcotics vehicle, assisted by three marked patrol cars with emergency lights twirling and sirens blowing, pulled the subject van over at 6: 10 p.m. Our surveillance van pulled around on a side road and from this hidden vantage point filmed and recorded the arrest which began in the traditional and rehearsed manner with three raps at the window. Officer Myers: "Open the door, Tommy". Response from within: "Whats the problem this time, Monty?" Officer Myers: "We have reliable information that you're carrying pot on this van, and we want to come in and search the vehicle". Response from within: "Reliable information? What kind of reliable information?" Response: "That's for us to know, just open the door, Tommy". Response from within, again according to script, "What law have we violated? You've got no cause to search this van. " Officer Myers: "In addition to the reliable information, I also detect the strong odor of marijuana emanating from this van. What about you, Officer Hall?" Officer Hall, according to our script: "Yes, I detect a strong odor of marijuana coming from this van." Officer Myers: "Open the door, Tommy, or I'll bust the window in". According to script, the defendant at this point voluntarily opens the door; all parties are searched with the cameras still clicking frame after frame of the unlawful arrest, defendant still protesting that there is no cause for their arrest, search and seizure. In a few short moments, Officer Myers, wildly exuberant at finding his ten pounds of dandelion tea, shouts triumphantly into the recording machine, "We don't need probable cause when we got the pot, Tommy". By the time of trial, as you might suspect, the defendants, who had been booked on the charge of felonious possession in the planned arrest, had been relieved of those charges when the SBI lab report came back with its embarrassing analysis. Fortunately for us, neither Monty and his Marauders nor the DA could read the writing on the wall, and all were easily led down the primrose path at the voir dire hearing in the trial of the case proper. The facts of the two arrests were almost identical. The words of the arresting officers on the occasion of both arrests were, according to their own admission, almost verbatim. However, on trial, Myers, when being cross‑examined on the event of the planned drug bust, denied absolutely ever having predicated his search on any reliable informant. His excuse for arresting the defendants Logan and Stalder on the second occasion was that he intended to make a routine motor vehicular check; and when he pulled the vehicle over, he and Hall both detected the strong odor of marijuana pouring out of the van, the windows of which were open, etc., etc. Of course, we wound up cross‑examination with the question directed to Myers‑"And you're just as sure you smelled the odor of marijuana on arresting defendants at the shopping center as you were when you arrested them in the case here being tried?" Answer, amazingly‑ "Yes". After the trip down the garden path was complete, we put on our experts, our sound and film makers one by one, and established to a clinical certainty that the van was clean as a pin and the defendants were even cleaner; that the windows of the van were rolled up, and that the only odor which could have emanated from the van that evening, was the odor of shaving lotion on our movie producer's body. When we brought down the screen and showed to the court our sound movie of the second bust, Starsky and Hutch fled the court room; the DA sat mute with hands over face; and our voir dire motion was granted summarily, without oral argument, as our pictures and recordings proved to be each worth 10,000 words.

In the experience of our law Firm, most instances of stuckness have been cases of this sort, that is difficulties in establishing truth. One can nearly always find the needed legal precedent or rubric on which to found an argument in his client's defense or case, the nagging hurdle in most cases being the problem of bringing the facts home to the trier. In the problem of probation or adducing evidence, mendacity, or bias‑colored testimony, is often the trial lawyer's nemesis. I am not saying or suggesting to you that in every case where you are stymied in your efforts to establish truth, you or some member of your firm will come through with the type of golden inspiration that is the certain impeachment of your prevaricator. What I am urging you toward is the appreciation of the fact that when you are stymied at first blush in a case or personal quest, you are in a blessed condition. Avoid the normal gumption traps where frustration leads one toward retreat or concession. Learn to apply the techniques of judo to your practice of law, where the strength or tendencies of your foe may be utilized to topple him. If the means of proving your issue cannot be found in Am. Jur's Proof of Facts, then do as my son did‑abandon logic and replace it with Hollywood fantasy. Before you dismiss Mrs. Blank from your office with regrets concerning the demise of her marriage, take off your legal hat and don the hat of Facts Coordinator for XYZ Industries, etc.

On the best seller's list for about 2 years, and now required reading in many of the leading universities the philosophical work, Zen and the Art of Motorcycle Maintenance, by Robert Pirsig, which I referred to earlier, is a work I recommend highly to all of you as a philosophical and psychological treatise which, as the cover blurb threatens,‑may well change your life. On its surface, the book is an account of the experiences shared by a father and son during a cross‑country motorcycle trek which assumes en route the proportions of an odyssey of self‑discovery. The narrator of the story is by trade a rhetorical technician, that is a writer of technical manuals, instruction books and the like. As the story unfolds, you learn that he previously was a brilliant and celebrated scholar and college professor, teaching in the field of philosophy and rhetoric.

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