Once again, as I had with my previous court appearances, I arrived about 15 minutes early for my 1:30pm court date.
On November 2, I got a call from Mr. Cho to see if I would be willing to postpone the case further - apparently Officer Jackson had been scheduled for a training class on November 7th. I refused - not only because Mr. Cho wasn't following the proper procedures for a continuance, and that even if I had agreed it would not have been legal to continue the case without a hearing and the assent of the court, but also because I figured that six and a half months was more than enough time to spend fighting a speeding ticket.
Officer Jackson showed up his civvies, wearing a black leather biker jacket. Gabriel Cho had managed to talk him into leaving his training class to show up for the trial.
We were admitted to the court, at 1:30, and once again there was a bit of mishmash as things got organized. Mr Cho approached me and indicated that since Officer Jackson was missing class, he would ask the judge if our case could be heard first. He the approached the baliff to ask to speak to the judge. The baliff instructed him that he could not communicate with the judge outside of my presence, so we both were eventually admitted to the judge's chambers. And of course, Mr. Cho was not the first person that day to ask to go first, and Commissioner Heath indicated he'd do the best he could to get Officer Jackson back to class. I suppose the request worked - my case wasn't dead last like it had always been.
We approached the bench, and before anything else I was asked if I wanted to go forward with a trial. I half-jokingly asked whether I would still be able to take traffic school if I lost here. The Commissioner said no, that the outcome of this trial is the final determination, there's no turning back. I was a bit daunted, but I opted to press forward.
The baliff began to swear everyone in. I continued organizing my paperwork, not raising my right hand. Then there was an "ahem" - they were asking me to raise my right hand and be sworn in. I replied, "Oh, sorry, I don't intend to offer an affirmative defense."
I could hear a bit of murmuring behind me - my statement had raised a few eyebrows. Most speeding ticket defenses consist of the accused stammering out "I wasn't speeding, honest!" under oath, and I think the attorneys in the room could tell that this was going to be something a bit more interesting.
I opened with a couple of motions to see if I could scuttle the case straight away:
Motion to dismiss due to prosecutorial misconduct in denial of right to discovery.
Commissioner Heath denied this one, saying that it was more likely ignorance on the part of several parties involved, as opposed to a deliberate intent to deny discovery, that caused the problems over the last six months.
Did I just hear the commissioner obliquely call the SJPD, the clerks, and the DA's office "ignorant?" I think so.
Motion to ... (trying to recall, may try to get court records of case.)
Denied.
Then Officer Jackson entered his sworn testimony, working through the checklist provided by the department for RADAR tickets (scan in copy of this). He got down to the "three point" definition of a local street or road, saying that a survey was not required because the road was less than 40' wide, one lane in each direction, and abutting residential property, and wrapped up his testimony with that.
Commissioner Heath asked him, "is there anything you want to add to that?" Trying to draw the Federal map definition of a local street or road out of them, it appeared. Jackson conferred in a whisper with Mr. Cho, and finally said that there was nothing they wanted to add.
The commissioner then looked over to me and said, "is there anything you want to say to that?"
I saw my opening, and I took it! Pulling out my copy of Vehicle Code section 40802 by its post-it tab, I said - "Yes, your honor - the definition of a local street or road in 40802(b)..." and the commissioner interrupted me, saying "Okay, stop right there, don't go any further."
He knew that I had written down his remarks on this subject from my initial motion hearing, and he knew exactly where I was going with that citation. And he then launched into a 5-minute scolding of the DA's office.
Apparently not too long after my intitial motion hearing, he had been asked to speak to a few people on a few traffic law issues. He was expecting a handful of people, but wound up speaking to about 40 people on the court staff about this very issue. He had warned them that for the past 15 years, they had been screwing up local street and road RADAR tickets, and instructed them as to what legal requirements they needed to meet in order to secure a conviction. If the road use map has been submitted to the Federal Highway Administration, it must be used to prove a local street or road, and the three-point definition does not apply.
He also said that he doesn't blame Officer Jackson, that he expected that the information he'd conveyed to the leadership months ago just hadn't trickled down to the lower levels.
In the midst of all this, Mr. Cho was rifling through his papers looking for a copy of the map, taking some hints from his DA's office mentors, pointing him over to the files on the right side of the courtroom where the maps are kept. He finally asked me for the copy of the map that he had sent in response to my request for discovery - I of course took my own sweet time pulling it out of my files. I was relaxed at that point, I knew I'd won, and what's a little harmless psychological torture of a hapless government employee between friends, right?
Finally, the Commissioner said that he was not going to allow the prosecution to rehabilitate their case on the stand, and that he would "1188" it - I blinked a few times, wondering, "is that good or bad?" But as it turned out, it was very good! Case dismissed in the interests of justice!
I suspect that the Commissioner was very happy to finally have a case before him to drive home his point about this issue, and to force a clean break from 15 years of misbegotten tradition in prosecution of "local street or road" RADAR citations. He'd given them fair warning, now he gave them a point in the "LOSS" column as well.
And I expect that not too long after November 7th, a memo went out to the San Jose Police Department entitled "Local Street and Road RADAR Citations," referring to the "San Jose v. Pelletier" case.
So that was that! I didn't even have to use the various other arguments I'd prepared about visibility, the width of the RADAR beam being twice the width of the road, the reflection and refraction of the beam, case citations about police officers hiding from view, etc.
I packed up my big stack of materials into my folder, and headed out the door. I offered my hand to Mr. Cho for a friendly handshake, like you see on Ally McBeal, and he reluctantly took it. He seemed rather nonplussed about it all, but of course, who could blame him? He'd just suffered an embarassing, decisive defeat against someone who had been a procedural thorn in his side for months, who never intended and never offered any kind of affirmative defense, and who won hands-down without even testifying, offering any evidence, or even denying the charge.
I passed Cho and Jackson in the hall on the way out - apparently Mr. Cho was trying to explain what the heck had happened in there. I bid them both a good afternoon, and headed back to work, finally victorious! I wonder what Officer Jackson told his classmates about where he'd been?