Courts

Judge Doesn't Trust Wile E. Coyote On Roadrunners And He Doesn't Trust Cops On Criminals

Probably shouldn't trust either on the proper use of explosives.

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3d rendering of tnt dynamite sticks with detonator box isolated on white background.An appellate court in Maryland issued an opinion this week affirming the conviction of a man caught with multiple offenses stemming from an intent to sell fentanyl and cocaine. For the most part, the case is fairly straightforward, but there is one question posed on appeal that inspired a Meep Meep concurrence.

At trial, prosecutors called a sheriff’s deputy as an expert in “[t]he identification, packaging, distribution of controlled dangerous substances including the amounts, usages, values, packaging, modus operandi, techniques, activities, and schemes of drug traffickers” based on a week-long course and five years of narcotics work. Ultimately, this was a bridge too far for the trial court, who limited his testimony to “slang or street terminology and/or street value.”

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While the court determined that the judge did not err in recognizing the deputy for limited testimony, Judge Friedman penned a concurrence highlighting how close to the line this whole exercise gets. And, as flagged by Joe Dudek, summed up the problem with using cops to explain what alleged criminals think:

As I explained in my concurrence in Ingersoll v. State, I am very skeptical of the State’s use of law enforcement officers as experts in the sociology of the criminals that they try to arrest…. Wile E. Coyote is simply not an expert in the sociology of roadrunners.

Despite being a “genius,” Wile E. Coyote isn’t an expert on much of anything except comedy. But the judge’s argument goes deeper than just asking a starving predator to describe the object of his relentless pursuit. A cop’s “expert testimony” on this subject runs dangerously and impermissibly close to a dump of prejudicial statements.

In the first example, State’s Exhibit 5 was shown to Deputy Nolan. It is a picture of a test [sic… text] message in which someone asks Lewis: “How much did you say for 50?” And Lewis responds “325.” Deputy Nolan gave his expert testimony that “in this case, 50 is an amount or quantity of some kind of drug and 325 would be a response, which would be a dollar amount.” Id. Without Deputy Nolan assuming that Lewis is a drug dealer, nothing about this test exchange identifies it as a drug transaction. A purchaser asks to be quoted a price for 50 units and the seller says $325 dollars (or $6.50 per unit). It could be tomatoes or turnips. Or it could be heroin. But Deputy Nolan—expert or not—has no way to know which it is.

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See how “it’s about drugs” just got shoehorned in there? Prosecutors will argue that the expert testimony establishes that drug dealers actually employ this sort of standard market lingo. But this isn’t deciphering gangland numerology, it’s basic sales. It’s a step removed from eliciting expert testimony for “all drug dealers use the word ‘the,’ this person used the word ‘the,’ therefore this person is a drug dealer.”

Actually, it’s not much of a step…

The second example is even worse:

State’s Attorney: Deputy, do you see any slang or coded language in this exchange?
Deputy Nolan: I don’t see any slang. I just see who – the person who sent is saying, “Hey, are you good?”
State’s Attorney: And have you seen that phrase before –
Deputy Nolan: Yes.
State’s Attorney: — in the context of drug transactions?
Deputy Nolan: Yes. It’s just – it looks like someone who’s selling drugs checking on somebody that they sell it to to see if they need more.

(emphasis added). I don’t think that is expert testimony at all. The text could have meant precisely what it said; one person asking if another is okay. I probably have a text just like it on my phone. Deputy Nolan’s testimony proceeds from the assumption that he and the State were trying to prove—that Lewis is a drug dealer.

The defendant objected to the court recognizing the cop as an expert, but not to the specific questions and answers here so Judge Friedman had no choice but to affirm, but the concurrence points to a pretty big tunnel-sized spot painted on the side of the criminal justice system mountain.

So to speak.

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(Opinion on the next page…)

How Wile E. Coyote Explains The World [Deadspin]

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