OT: Las Vegas judge orders mistrial after Breathalyzer test confirmed attorney was inebriated
Shrike!
KIDNAPPING CASE: Alcohol test on lawyer stirs mistrial
Breathalyzer used in court
By GLENN PUIT
Las Vegas Review-Journal
http://www.reviewjournal.com/lvrj_home/2006/Aug-08-Tue-2006/news/8944900.html
Joseph Caramagno
http://www.reviewjournal.com/lvrj_home/2006/Aug-08-Tue-2006/photos/caramagnomug.jpg
Michelle Leavitt
http://www.reviewjournal.com/lvrj_home/2006/Aug-08-Tue-2006/photos/leavittmug.jpg
After a lawyer due to defend a man against a kidnapping charge showed
up to court late and smelling of booze last week, a Clark County
District Court judge ordered the attorney to take a Breathalyzer test
in open court, then declared a mistrial when the test confirmed her
suspicions.
In a remarkable exchange captured by the courtroom's video camera,
District Judge Michelle Leavitt ordered defense attorney Joseph
Caramagno to submit to the test after she smelled alcohol on his breath.
The result indicated that Caramagno's blood-alcohol level was 0.075.
In Nevada, it is illegal to drive with a blood-alcohol level of 0.08
or higher.
After seeing the test results, Leavitt declared a mistrial in the
kidnapping trial of Caramagno's client, Dale Jakuchunas.
"Mr. Jakuchunas is facing a life sentence, so if you came to court
intoxicated, you've got a problem," Leavitt told Caramagno.
"I don't think you can tell a straight story because you are
intoxicated," Leavitt said.
Caramagno, in an interview Monday, denied being drunk. He said he was
in a car accident on the way to court and suffered a concussion,
causing him to appear intoxicated when he was not. He said police were
not called to the fender bender, so there was no record of it.
"I wasn't drunk," he said. "I was ready to go forward."
"I've always considered myself the consummate professional," he said.
"I take all my cases very personally."
Caramagno is well known in Las Vegas legal circles because he was one
of the lawyers who helped secure the acquittal of Rick Tabish on a
murder charge two years ago. Tabish and his lover, Sandy Murphy, were
acquitted of charges of killing Las Vegas gaming mogul Ted Binion.
They were convicted, however, of charges stemming from the theft of
Binion's silver.
On Thursday, Caramagno was scheduled to appear in Leavitt's courtroom
for the first day of witness testimony in the trial of Jakuchunas.
Caramagno arrived about 90 minutes late in the company of a young
woman wearing a black halter top and tight pants.
On the video recording, Caramagno can be heard slurring his words, and
Leavitt asks him what is wrong with him.
"I'm going to tell you, to be honest with you, you don't look right,"
Leavitt said.
He told the judge that his car had been rear-ended by another car on
Sahara Avenue, causing him a head injury.
But Leavitt said she became suspicious when details of Caramagno's
accident account varied. Leavitt summoned him and prosecutors into her
chambers. During this meeting, the judge said, Caramagno told her the
woman who accompanied him into court was his ex-girlfriend.
But when Leavitt questioned the woman, she said she had met Caramagno
about 20 minutes earlier at the nearby Courthouse Café and had never
dated Caramagno.
Caramagno also referred to the woman as Christine. The woman later
identified herself in court as Josephine.
"You told me she was your ex-girlfriend," Leavitt said. "Now I'm very
upset with you."
"I apologize, your honor," Caramagno said. "She's a friend of a
friend. I was nervous about coming to court late."
"I don't want to make this a soap opera, and I apologize," Caramagno said.
"Well, you have," Leavitt told him. "I've never seen anything like
this in my entire life. You've turned this into a soap opera."
Leavitt ordered him to be examined by a nurse at the courthouse, and
the nurse told the judge that Caramagno said he had shots of tequila
hours before court. He subsequently acknowledged in court that he was
drinking the night before, but he continued to maintain that he was
not drunk.
After another recess, Leavitt ordered Caramagno to take a breath test.
He at first resisted. "Judge, I don't want to submit to it," he said.
"I don't think you really have a choice," Leavitt said. "If you come
to court and you give me reason to believe you are intoxicated, you've
got to submit."
Caramagno is seen on the courtroom videotape sitting down and blowing
air into the Breathalyzer. After the test results were announced,
Leavitt declared a mistrial. "For the record, your blood-alcohol
content is .075," Leavitt said.
Leavitt did not order Caramagno into custody on a contempt of court
finding. It was not clear Monday evening whether Caramagno could face
disciplinary proceedings from the State Bar of Nevada.
This is not the first time Caramagno's actions have drawn the ire of a
Clark County District Court judge. Shortly before Tabish's sentencing
hearing in 2005, a letter Caramagno penned in the case surfaced, and
in the letter, Caramagno belittled District Judge Joseph Bonaventure.
The letter prompted Bonaventure to openly scold Caramagno in court.
"This is why the public hates lawyers, why lawyers have a bad rap,"
Bonaventure said at the time.
--
Trout Mask Replica
J.D. Baldwin
In the previous article, Shrike! <calt...@newsguy.com> wrote:
> After another recess, Leavitt ordered Caramagno to take a breath
> test. He at first resisted. "Judge, I don't want to submit to it,"
> he said.
>
> "I don't think you really have a choice," Leavitt said. "If you come
> to court and you give me reason to believe you are intoxicated,
> you've got to submit."
By what legal doctrine did she arrive at *that* conclusion?
--
_+_ From the catapult of |If anyone disagrees with any statement I make, I
_|70|___:)=}- J.D. Baldwin |am quite prepared not only to retract it, but also
\ / bal...@panix.com|to deny under oath that I ever made it. -T. Lehrer
***~~~~-----------------------------------------------------------------------
Shrike!
> (J.D. Baldwin) wrote:
>> By what legal doctrine did she arrive at *that* conclusion?
> The one where judges get to call it "my courtroom" and make up the
> rules as they go along.
>
> (OK, so maybe "my courtroom" is from watching too much TV...)
How would you like to be a client of his?
--
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J.D. Baldwin
In the previous article, Terry del Fuego <t_del...@hotmail.com>
wrote:
> >How would you like to be a client of his?
>
> wasn't mine. Apparently there *does* need to be a law saying you
> can't work a trial drunk...but in the absence of said law, the judge
> is bounding over her steps.
I don't have a problem with a judge throwing an inebriated attorney
out of her courtroom. I have a problem with the idea that stepping
into court results in the same "implied consent" to a search of one's
bodily fluids as does getting behind the wheel of a vehicle, which is
more or less what she said.
Shrike!
> In the previous article, Terry del Fuego <t_del...@hotmail.com>
> wrote:
>> I wouldn't, but I believe that wasn't J. D.'s point and I'm sure it
>> wasn't mine. Apparently there *does* need to be a law saying you
>> can't work a trial drunk...but in the absence of said law, the judge
>> is bounding over her steps.
J.D. Baldwin said the following:
> I don't have a problem with a judge throwing an inebriated attorney
> out of her courtroom. I have a problem with the idea that stepping
> into court results in the same "implied consent" to a search of one's
> bodily fluids as does getting behind the wheel of a vehicle, which is
> more or less what she said.
Pardon my lack of clarity. My question was irrespective of the valid
point both of you make. I also believe the judge was 'out of order'.
--
Trout Mask Replica
Charlene
J.D. Baldwin wrote:
> In the previous article, Shrike! <calt...@newsguy.com> wrote:
> > After another recess, Leavitt ordered Caramagno to take a breath
> > test. He at first resisted. "Judge, I don't want to submit to it,"
> > he said.
> >
> > "I don't think you really have a choice," Leavitt said. "If you come
> > to court and you give me reason to believe you are intoxicated,
> > you've got to submit."
>
> By what legal doctrine did she arrive at *that* conclusion?
Inebriation renders an individual legally incompetent. You can't act as
an officer of a court if you're legally incompetent. Judges actually do
have the right to ensure all officers of the court (and lawyers in
court are "officers of the court") are legally competent at the time
they are exercising their privileges as officers of the court. They
have the right to take reasonable steps to ensure this. The question,
of course, is whether this was reasonable, and whether other steps
could have been taken.
I'm not sure if the judge could have removed the lawyer without the
Breathalyzer results, but perhaps in her mind the defendant's right to
a fair trial vetoed the defence lawyer's right to unreasonable search
and seizure, especially if she considered a Breathalyzer test
reasonable as a test of his legal competence.
wd42
J.D. Baldwin
In the previous article, Charlene <charlene...@gmail.com> wrote:
> > > "I don't think you really have a choice," Leavitt said. "If you come
> > > to court and you give me reason to believe you are intoxicated,
> > > you've got to submit."
> >
> > By what legal doctrine did she arrive at *that* conclusion?
>
> Inebriation renders an individual legally incompetent.
Not unless it's extreme. You can, for example, consent to a search
while intoxicated.
> You can't act as an officer of a court if you're legally
> incompetent. Judges actually do have the right to ensure all
> officers of the court (and lawyers in court are "officers of the
> court") are legally competent at the time they are exercising their
> privileges as officers of the court.
Fair enough, but the judge's statement implies that she has legal
grounds to compel a search solely because she has reason to believe
he's intoxicated. This would either have to be some kind of "implied
consent" doctrine or "exigent circumstances," both of which are about
equally absurd.
> They have the right to take reasonable steps to ensure this. The
> question, of course, is whether this was reasonable, and whether
> other steps could have been taken.
From an exigent circumstances point of view, she could simply have
declared an adjournment for the day, and called a police officer to
investigate a charge of public intoxication.
> I'm not sure if the judge could have removed the lawyer without the
> Breathalyzer results, but perhaps in her mind the defendant's right
> to a fair trial vetoed the defence lawyer's right to unreasonable
> search and seizure, especially if she considered a Breathalyzer test
> reasonable as a test of his legal competence.
The defendant's rights could easily have been protected with lesser
measures as described above. Also, if the judge had asked the
(presumably) drunk lawyer to leave and come back when he was sober,
and the lawyer had refused that, her case would have been a little
stronger.
I don't have a problem with removing a drunk lawyer from court -- I
have a big problem with the judge's conclusion that he didn't have a
choice about consenting to an ordered search as if it were some
self-evident principle of law.
Jane Margaret Laight
J.D. Baldwin wrote:
> In the previous article, Shrike! <calt...@newsguy.com> wrote:
> > After another recess, Leavitt ordered Caramagno to take a breath
> > test. He at first resisted. "Judge, I don't want to submit to it,"
> > he said.
> >
> > "I don't think you really have a choice," Leavitt said. "If you come
> > to court and you give me reason to believe you are intoxicated,
> > you've got to submit."
>
> By what legal doctrine did she arrive at *that* conclusion?
try this--the Fifth and Sixth Amendment to the U S Constitution, in
part, read as follows:
Amendment V
No person shall be held to answer for a capital, or otherwise infamous
crime...nor shall be...deprived of life, liberty, or property, without
due process of law;....
Amendment VI
In all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury of the state and district
wherein the crime shall have been committed,...and to have the
assistance of counsel for his defense.
The legal concept of "Due Process" has been held to also involve the
accused's "right to counsel"--in past times, many defendants were
convicted and put to death or incarcerated for long periods because of
the lack of counsel--or, even if counsel was available, the same result
would have because their cousnel was incompetent in some way. In the
extended discussions over the death penalty in the US, it has been
pointed out in a number of capital cases that counsel for the defense
was inebriated to the degree that they were not able to provide
"assistance" for the defendants--even to the xtent of being
falling-down drunk or passed out and snoring when while sitting at the
defense table.
as an officer of the court, a practicing attorney is held to a higher
standard than just regular walking around people like ourselves,
particularly when they are in open court going about their business. It
was apparent from what articles were printed that this attorney really
wasn't ready to undertake this trial. At best, this would open the
doors to an appeal on the part of the defendant based on the fact that
"I didn't get a fair trial--my lawyer came to my trial drunk and with
his floozie"--the Judge was acting prudently and I believe that even if
her actions come under scrutiny, she'll be found to have acted within
the scope of her duties. The lawyer on the other hand, should be--at
least--fined.
And before you start shouting that "well, he wasn't that drunk",
remember--the airlines won't let pilots fly commercial aircraft who
register .07 on the breathalyzer--you wouldn't want to be in a bus or a
train driven by an driver or an engineer who register just "barely
legal" on the breathalyzer; would you want a pediatrician diagnose your
kid or a surgeon operate on a loved one who just registered just under
the legal limit? Better to wait for another day.
I think the judge was justified in her actions.
Jane Margaret Laight
currently in Cape Elizabeth, Maine
MGW
<jml2...@yahoo.com> scrawled:
> The lawyer on the other hand, should be--at
> least--fined.
I'd go for disbarment.
--
MGW (Note: my Hotmail address is seldom checked)
Hofstadter's Law: It always takes longer than you expect, even
when you take into account Hofstadter's Law. - Douglas Hofstadter