As a lawyer, you acclimate quickly to the notion that most judges are ill prepared for their profession. The irony is, the higher up you go in the judging business, as a rule, the less time they spend smelling their own armpits. Figuratively speaking, that is. Or maybe not. Federal judges are tough as nails, but those nails are as straight as anything found in nature. Then we have Judge John Mischtian. Bell County Court at Law 2.
I’ll have to admit, he’s an entertaining fellow. Love his annual vaudeville performances as, I believe, one of the “East Bell County Boys”. Unfortunately, what works in the art of vaudeville is a world away from what works in the world of law. Or maybe several universes away.
So, today I had a routine Special Hearing on the suppression of evidence in a DWI case. The key issue was the fact that the cop in the case, an Officer Taylor of the Temple Police Department, demanded that a nurse release to him the results of a HIPAA-protected blood draw, in clear violation of state and federal law. Prosecutor Lazott agreed that the disclosure was inadmissible under Texas Rules of Evidence. I argued that it was also inadmissible under the general rule that you cannot admit evidence obtained illegally. And the cop agreed that he did not have the legal authority to demand that the nurse release the results of the blood test. Nevertheless, despite the fact that both the State and Defense agreed that the evidence was inadmissible and should be suppressed, Mischtian overruled my motion to suppress.
Then we had the HGN evidence. HGN, to those of you who have real lives, is Horizontal Gaze Nystagmus, a test where a cop shines a flashlight in your eyes and declares that you are legally intoxicated. For a long list of reasons I will not address in this post, if a cop tries to pull this on you some day, politely decline. It’s just a way for them to use pseudoscience to convince a naive jury that you’re drunk. In the present case, my client was involved in an accident where his body was flung some 30 feet out of his truck. Imagine that impact. He was then transported by ambulance to Scott & White’s flagship hospital, where he was treated for life-threatening injuries in the ER, and moved to what Officer Taylor described on the record as a “Trauma Unit”. Taylor then entered the Trauma Unit and began to interrogate my client, who was obviously on a continuous morphine drip for pain suppression. Taylor asked him if he remembered being ejected from his truck during the accident, a collision that caused the roof of my client’s truck to be compressed to within “four inches of the front seat”, according to Taylor’s report. My client, again in severe trauma and under a constant morphine drip, answered that he did not remember. Taylor then asked the two key questions in the Field Sobriety Tests pantheon: “Are you suffering from a head trauma” and “Are you under the influence of any drugs”. My client, suffering severe trauma and under the influence of a constant morphine drip, answered “no”. Taylor, despite having previously violated federal law by demanding the release of my client’s HIPPA-protected healthcare information, made no attempt to ask the medical personnel on site whether my client had suffered head injuries or was on medication that would invalidate the HGN tests. After all, why would a cop want to invalidate a collar? Our society has placed no consequences on illegal police behavior. In fact, can you identify any other profession where an employee can kill a customer in cold blood and still remain on active duty?
Nevertheless, despite even Taylor’s own admission that he failed to follow the NHTSA standards for performing the HGN test, and despite the clear evidence that my client could not lawfully be administered that test, given the fact that he was drugged to the gills with morphine by virtue of his medical treatment, Mischtian refused to suppress that evidence.
Folks complain about Williamson County justice, just to our south, but I will submit to you that at the very least, WC judges follow some admittedly crazy variation of the Law. But in Bell County, as is common with so many small Texas counties, the Constitution has become more of a political slogan than a real limitation on the oppression of a governmental class.
