Friday, March 18, 2005


F. Lee Bailey is lawyer for the defense, and he is cross examining Jimmie James, an important government witness. Bailey is telling about it in the portion of his book quoted below:

[Bailey:] Q. Did you also say to Delane and to the others, "He's right about one thing, I hate n______s"?
A. No, sir.
Q. Did you make that statement or didn't you?
A. Absolutely not, and you heard me correctly, sir. I absolutely did not say that.
Jimmie James made the answer sound as emphatic as he could, but he was clearly nervous. And the atmosphere in the courtroom was equally tense, for it had changed noticeably when I used the word "n_____s." I had barked out the word, trying to give it as much meanness and venom as I could. It hung in the air, an all but palpable accusation. Within seconds the witness was showing signs of strain. He sat motionless, but he was biting His lip frequently now, and the jury was staring at him.
My pace had been very fast, so I slowed it a bit by pausing, and then picked up the speed again. My voice was firm and loud.

Q. You say that you did not. You do not use that word at all, do you?

I knew that if James denied using the word, I could put the investigator on the stand to refute him, thereby impeaching that statement and casting doubt on the rest of his testimony as well. The witness must have had similar thoughts.

A. I'm sure I've used it, yes, sir, because I'm from the South.

Several jurors who had been watching me returned their gaze to the witness. As soon as James said he used the word,I had what I needed to asked [sic] the next two questions without objection from the prosecutor. I almost shouted them.

Q. As recently as last week, perhaps, in Greenville?

James went literally pale. His hand gripped the top of the witness box.

A. I may have.

Q. Describing your own employee, Lee Grimes, whom you call a n______ on a daily basis?

A. He enjoys it.

I waited a moment for the impact of his answer to sink in, and then I said, as I picked up my notes and returned to the defense table, "'He enjoys it.' And you believe all men are equal in your eyes? Thank you. No further questions."

Hugh Smith [prosecutor] was on his feet like a shot, objecting to my final remark. But the jury hardly noticed him. All eyes were on Jimmie James, the "fair and equal" man.

One black juror, a woman who had betrayed absolutely no emotion up to that point, appeared stunned. She stared at the witness.

The lawyers went to the sidebar, where Smith prevailed in the argument that my last remark should be disregarded. The woman paid no attention as the Judge said, "Ladies and Gentlemen of the Jury, I want you to disregard the comment Mr. Bailey made when he sat down. It was not addressed to the witness or anyone else. You may proceed, Mr. Smith."

The Judge could have saved his breath for all the apparent effect it had on the
jury. The black woman in the front row continued to stare at Jimmie James all through Smith's less-than-enthusiastic redirect examination. The juror next to her, another woman, kept patting her on the knee the whole time, saying what even an amateur lip reader could recognize as "Calm down now, calm down."

F. Lee Bailey, FOR THE DEFENSE (with John Greenya)
New York ATHENEUM 1975

Thursday, March 17, 2005


Reading of people who come up with a blood alcohol level of .08% or .1% or .15%, and who say they had two or three drinks, or two or three beers, we may wonder whether these drivers are telling the whole truth. The important thing in these DWI cases is the condition of the driver at the time of the driving. The test we have come up with is the test of the alcohol content of the blood. From that information, we know that the alcohol in the blood is also in the watery substance around the brain. That is what causes the impairment of ability to operate a motor vehicle with safety to self and others. The alcohol on the brain, or the blood alcohol content, may affect different drivers in different ways. However, there is a blood alcohol level at which all of us are impaired, that is, the ability to operate a motor vehicle with safety is impaired in each and all of us. Some years ago, that figure was set at .15%, because the medical doctors claimed that everyone with a blood alcohol of .15% was impaired. They wanted acceptance of blood alcohol testing, and intentionally set the bar high to gain that acceptance from the general public.

Many impaired drivers are better and safer drivers than many cold sober drivers. That is true, but irrelevant. The law is designed to prevent all drivers from driving impaired; that is, the law prohibits the excellent driver from driving when that driver is impaired. From each according to his ability, unimpaired by alcohol or other drugs. That is the rule.

Many people absorb alcohol into the blood stream, and hence onto the brain, faster than others; or they absorb alcohol faster if they take it on a relatively empty stomach; or the alcohol dissipates in their bodies faster than in the body of another person. True, but again irrelevant; because the law is concerned not with how long it took to get in that condition, but whether one has a concentration of alcohol of a certain level or higher at the time of the driving.

Ordinary DWI can be proved by proof of a blood alcohol concentration of .08% in adult drivers operating ordinary vehicles. If you weigh 100 pounds or 200 pounds, it is easy to calculate how many drinks you need in the bloodstream to get to the .08% level. The formula is BA = X over watery body weight. According to a respected theory, the average person has 10 ounces of watery substance in each pound of body weight. The watery substance is what we consider, because that is the medium that carries the alcohol to the brain.

So let us consider a 200 pound person of 10 ounces watery substance to the pound. That is 2000 ounces. The blood alcohol concentration, or BA, is .08%, or .0008. X is the amount of alcohol by weight ounce. BA = X over 2000. Cross multiply and X equals 1.6, that is 1.6 weight ounces of alcohol. Multiply that by 5/4 to get fluid ounces, and you have 2.0 fluid ounces of pure alcohol in the bloodstream of the 200 pound person and a presumptive DWI.

If she is drinking beer at 4%, that is about four 12-ounce beers "in the bloodstream." Add two beers for every three hours of drinking, for the oxidation, or dissipation, and you have someone who has had five beers before being stopped by the officer. Approximately the same for shots of 86 proof spirits. They are 43% alcohol, so a shot glass full is somewhat less than a 4% beer, but still close. Say the driver had 4 and ½ shots of spirits in the blood stream, and this driver with the .08% blood alcohol probably had 5 to 6 shots of spirits. Is that "three drinks?" It could easily be, but if the drinker is taking it straight from the bottle, it is more likely six drinks.

If you are 150 pounds, keep it to three shots or three beers in the blood stream, plus one for each 90 minutes of drinking, and you should be under .08%. The writer's experience with DWI cases began when defendants got a 12 person jury trial and the test was .15%. No one who had a BA under .15% was prosecuted for DWI in the Fifth District during that time(late 1950's). In the late 1960's, in Albuquerque, the acting coroner testified that all persons with a BA of .1% were under the influence. Now the presumptive level has dropped to .08%, and no jury, not even a 6 person one.

DISCLAIMER. Drinking and driving is dangerous in itself, because it is too easy to misjudge, or forget, how much you have had to drink. This discussion is not meant to encourage drinking and driving. IT IS IMPORTANT TO NOTE THAT ONE MAY BE IMPAIRED WITH A BLOOD ALCOHOL OF LESS THAN .08%. THE LEGAL TEST IS WHETHER THE DRIVING ABILITY OF THE ACCUSED IS IMPAIRED TO THE SLIGHTEST DEGREE ON ACCOUNT OF THE ALOCHOL OR OTHER DRUG. Also, I hope that someone with more knowledge and math skills reads this, so that this post can be corrected on any point if it is at all in error. It is serious business and corrections will appear here immediately. [The one in all caps just did; AND THE TITLE TO THIS POST HAS BEEN CHANGED TO CONFORM.]