ATTENTION READERS: WHAT YOU ARE ABOUT TO READ IS A CONTINUATION OF AN EXISTING STORY. FOR THOSE UNFAMILIAR, I WOULD SUGGEST YOU START AT THE BEGINNING
OR PREVIOUS POSTS:
In the early morning of March 23rd, 2010, I returned to the TA courtroom for my appeal hearing. The TA board of directors meets monthly to discuss and rule on any and all issues that pertain to the taxi industry and they decide everything in the business. They decide what the meter rate is, they decide how many medallions are issued, they decided who can buy medallions, they decide who gets a permit, they decide who keeps a permit. They pen the laws that pertain to the industry and among many other things, this panel decides if the citation hearings were conducted justly and thus has the authority to overrule previous judgments. These meetings are generally as highly attended as they are highly contended and some of the discussions have dissolved into heated exchanges in the past. However the appeal hearings appear first on the agenda, an hour before the more important industry concerns are addressed so at this early hour, only the relevant parties were present.
The agenda indicated that there were to be three individuals bringing appeals today and I was ecstatic to see that I would be the last of us drivers to be heard. I considered it a very nice advantage to be able to observe the two cases prior to mine, especially since the lawyers outnumbered the drivers at this point better than 2:1. Sitting elevated on a long straight table at the front of the room were the members of the Board. Six individuals make up the Nevada Taxicab Board of Directors, all of which with an “Esq.” culminating their nameplates. All of them appeared to be under 40 years of age easily and despite this, I’m certain that each of their resumes are exemplary. I can imagine that residing in a Governor appointed position does wonders for fast tracking one’s career. On the morning of March 23rd only five of the Board Members were present and they included Chairman Stacie Truesdell Michaels, Vice Chairman Susan Carrasco O‘Brien, Member John G. Marushok and Member Joshua C. Miller. Apparently, making an indication of one’s middle name is an integral part of Board Membership. Sitting below and to the left of the Board of Directors at a perpendicular table, and also present on behalf of the Taxi Cab Authority were Deputy Attorney General Kimberly Arguello who I believe acts as general counsel for the TA and sitting to her right was the Administrator Gordon Walker, who would now be hearing me speak on this matter for the second time. I wondered if he remembered me? I don’t know for sure if the Administrator obtained his law degree as well but it would not surprise me in the least. To the right of the Board of Directors at another perpendicular table sat reporting secretary Barbara Webb. Two more tables in front of the bench were situated for the prosecution & defense. Sitting at the left table was Deputy Attorney General Scott Davis who would speak for the State. I guess 7 lawyers isn’t enough for one side so they bring in the big gun from the Attorney General’s office to sit in as Prosecutor. As it were, Mr. Davis did not utter a single word throughout all of the hearings. He sat silently, head down, thumbs crossed. The Board did a swell enough job of slicing and dicing on their own I imagine. There were only four other people in the courtroom at this time. The first driver or respondent, was a middle aged Chinese man who was there to appeal a conviction on a ticket regarding running a red light. The second driver was a Somali and he was appealing a conviction for long-hauling. I was there, of course, to appeal my conviction of interfering with traffic while loading. The fourth person was my girlfriend, Michelle, whom I convinced to tag along for a few reasons but mainly because I wanted her to see what all the time I had spent preparing for this was for. And there’s no harm in having a cheering section. In retrospect however, I think the fact that I asked her to go had much more to do with how important I felt this day was for me. I was about to find out if I was totally out of my fucking mind or not and I needed somebody close to me to witness it.
By this time the Members of the Board had taken their seats on the elongated bench, everyone else seemed to be in their places and it appeared as though the court reporter would be calling the hearing into session any minute. Michelle sat quietly as I looked over and re-read some of my pages. I was just starting to feel pretty good about my chances and then to my right, I noticed the courtroom doors swing open as someone walked in and I could not believe my eyes. It was Bishop! That motherfucker. I stood up and met him halfway across the room and shook his hand, “no fucking way man,” I believe were the words that stumbled out of my mouth. During one of our phone conversations he had seemingly innocently asked me when my appeal hearing was, but I just thought he was curious about how much time I had to get ready or something. I never dreamt that the guy would show up here like this. A true friend. Plus, it appeared as though he was on the tail end of an all night binder which in my mind made his surprise appearance even more awesome. We sat down, Michelle elated to see Bishop as well, and the three of us whispered a conversation while we waited. At one point I opened my manila folder to look at my papers and Bishop, sensing that I was about to ask him something, was very quick to say, “don’t show me anything ok, I’m here as your friend.” Yes of course I thought, how stupid of me. A short time later the court reporter called the meeting into session, offered the floor to the Chairman of the Board Stacie Truesdell Michaels and away we went…
CHAIRMAN MICHAELS: Good morning everyone, I now call today’s session to order…First item on the Agenda is driver appeals. I see there are three driver appeals today and everyone is present. Gentlemen some information regarding the procedure for appeals; we are here to determine if your previous hearings were conducted properly. We are not here to listen to any new testimony. Everyone has received a copy of the minutes (transcript) and any attempts to introduce new testimony will be overruled. In order for a successful appeal you must establish a reversible error that resulted in a unjust hearing. If this board determines that a reversible error occurred than we will decide what action to take at that time, ok? First up is …
Bishop and I shared a glance the instant she said “reversible error“. That’s the term for it I know, Bishop had taught me that much, but just hear it reaffirmed like that was a lightning bolt for me. It was like they softly lobbed it up and all I had to do was spike it home. Everything the Chairman just said was exactly what I had prepared to do.
The Chinese man was first on the Agenda and as I said, he was there to appeal his conviction of running a red light. He received the citation on westbound Spring Mtn. at the light to make a left turn onto the I-15 South on-ramp. The officer observed the alleged offense from the I-15 itself which put him at a radical elevated position, so much so that the observance of that light from that position would have been impossible. The Chinese man, in perfect English, argued his case slowly but surely and simply pointed out the fact that from the Officer’s perspective, it would not have been possible to see what he said he did. At one point Bishop whispered to me, “This is how I want you to be, you see how calm this guy is? He’s in no hurry and that’s good. Don’t be fast, be clear. ok?” That turned out to be very good advice. The Chinese driver did such a good job that the Board agreed with his analysis and next thing you knew he got his conviction overturned and the case dismissed. What’ya know? The part I didn’t understand about that was that I can’t believe that the man didn’t bring up that exact argument in his first hearing. Maybe the Judge didn’t buy it. That was interesting though.
Next up was the Somali driver who was there to appeal his conviction for long-hauling. Unfortunately the man had a terrible time trying to get his point across and was struggling mightily with the English language, repeating the same phrases time after time and Chairman Michaels just kept saying over and over again, “Sir if you have nothing to add than we will conclude this hearing.” As troubling as it was to see the guy struggling that much, the incident really served to drive home the point I made before about allowing drivers to pay for their own translators if they wish. I fail to see what the major problem with that is. Nonetheless, I had indeed learned a few things while watching the chances at redemption for the two drivers before me and now it was finally time for mine. It was time to put my all of my boy scout preparation to work. It was time to test my amateur legal theories in front of the group of individuals with the authority to actually do something about them.
Chairman Michaels called my name and asked me to come forward. Michelle gave my hand a squeeze and as I passed in front of Bishop he whispered to me again, “they’re not ready for you.” While making my way to the defendants desk I realized that the room had substantially more people in it now than it had at the onset of these proceedings. Good I thought, the more people that heard what I was about to say the better. I sat down, removed my papers from their manila folder, clicked the top of my pen and I can honestly say that I was not the slightest bit nervous…
CHAIRMAN MICHAELS: Mr. Andrew Funk, am I saying that correctly?
DRIVER FUNK: Yes your Honor.
CHAIRMAN MICHAELS: Ok good, you were convicted of interfering with traffic while loading is that correct?
DRIVER FUNK: I believe that’s correct.
CHAIRMAN MICHAELS: I see are you planning on speaking today?
DRIVER FUNK: That’s correct your Honor, I have prepared something to read from if that would be alright?
CHAIRMAN MICHAELS: That would be good thank you.
DRIVER FUNK: Members of the Board, prior to the initial hearing regarding this matter I responded to the allegation by presenting myself at the Taxicab Authority’s office. At that time I spoke to Administrative Secretary Martha and I entered my plea of not guilty…
CHAIRMAN MICHAELS: I’m sorry Mr. Funk but how many pages is your statement?
DRIVER FUNK: We are neighboring on 6 pages your Honor.
CHAIRMAN MICHAELS: Ok go ahead.
DRIVER FUNK: At the time I spoke with Martha and entered my plea I exercised a motion of discovery. Any defendant or respondent is given a opportunity to view any and all pieces of evidence that the prosecution intends to present during a trial. Not only is this practice procedurally mandated by the Federal Rules of Evidence as well as the Nevada State Rules of Evidence, it is also reiterated within the TaxiCab Authority itself. On the back of any citation issued by this administration there is a section entitled “Taxicab Administrative Hearing Procedures” and within this section the language is very clear regarding discovery, where it states specifically: “ Upon entering a plea, you are entitled to a motion of “discovery”. You may obtain copies of all reports, affidavits or documents that the prosecutor intends to present at your hearing. Your request may be written or done in person during business hours at the indicated address on the front of your citation.” It is my understanding that this procedure is in place so that I and or my counsel, not only have an opportunity to prepare any arguments against any and all pieces of evidence, but more importantly that I have an opportunity to verify the authenticity of the evidence itself.
At the time I filed my motion discovery, I was given two items from Martha. The first of which was a photocopy of the citation itself. The second was a copy of the investigators report as written by Officer Hinkle. No other documents were given to me at that time and I was then informed of my hearing date.
In looking at the transcript of that hearing, on pg. 6 line 22, Judge Winner states quote “I‘m going to ask you to come up here and show me where it was that you loaded these passengers please.” and then she goes on to say, “for the record we are reviewing the satellite image of the intersection that shows a white truck approximately onto the crosswalk.”
This satellite image was used in an attempt to prove my exact location when the alleged violation occurred and it subsequently became the sole basis for the conviction.
MEMBER JOHN G. MARUSHOK: I don’t understand Mr. Funk, in reading the transcript, the Prosecutor asked you if you stopped in a lane of traffic and you admitted to that. Did you not?
DRIVER FUNK: I’ve never disputed that fact your Honor.
MEMBER MARUSHOK: Than I would assert that everything relating to the satellite image, doesn’t matter. The Prosecutor has no further points to make, you admitted to the violation. There is a reason that we have rules and regulations that taxicab drivers are not to do pick-ups in any lanes of traffic, and I realize that some again, and I’ve been on a ride along, I realize that it’s inconvenient sometimes. There may be lots of situations where you think it would be totally reasonable to pick someone up in a lane of traffic if, for instance, there was no traffic, bet there’s a reason that that rule and regulation is in place and it’s for everyone’s safety, so for me, this is rather open and shut.
DRIVER FUNK: Your Honor I don’t believe the statute has any language in the range of prohibiting simply stopping in a lane. I haven’t read that rhetoric anywhere.
MEMBER MARUSHOK: You can’t stop in a lane, to load passengers.
DRIVER FUNK: Are you talking about a different statute because again, I don’t see that language in this one at all. It makes no mention of stopping in a lane.
CHAIRMAN MICHAELS: Can somebody look it up please?
(A few court officials began shuffling books and papers around their desk space's)
DRIVER FUNK: You Honor I have it right here if you’d just like me to read it?
CHAIRMAN MICHAELS: Yes of course.
DRIVER FUNK: “NRS 706.8845-9 While a driver is on duty he shall not; load or unload passengers or luggage at an intersection or crosswalk or at any place or in any manner what will interfere with the orderly flow of traffic.” It doesn’t say anything about simply stopping in a lane, it says I cannot interfere with traffic. My contention was that there was no traffic; therefore a violation cannot occur.
MEMBER MARUSHOK: It says, “that would interfere with traffic,” you cannot, when you are loading, predict whether you are going to interfere with traffic.
DRIVER FUNK: Your Honor it says that will interfere with traffic. Will and would are not the same thing. Would is a possibility, like what you’re describing, will on the other hand is not a possibility but an actuality. Besides if all that needs to happen for a violation to occur is for me to stop in a lane of traffic, than why can’t the statute just read like that? Wouldn’t it just be easier, and not nearly as susceptible to misinterpretation by a reasonable person such as myself, if it said “A driver shall not stop in a lane of traffic to load or unload passengers at any time.”?
CHAIRMAN MICHAELS: Yes it does say, “will”.
MEMBER MAROSHOK: If you are loading and traffic comes up behind you, you will impede it. The fact that there’s no traffic behind you currently when you are stopped really isn’t the important thing. The important thing is that traffic is coming behind you while you’re stopped and you will impede traffic at some point. You can’t predict if traffic will come.
DRIVER FUNK: You don’t have to predict, this is why your vehicle has mirrors. And I still don’t believe that it is possible to interfere with traffic if there is none. Regardless, I don’t feel that the predictability is relevant anyway. Either there was traffic or there wasn’t. The supposed inability to predict it has no bearing on it’s existence. And I think you’re trying to exaggerate the length of time it takes somebody to jump in a taxicab. It takes a couple of seconds. Flagging a cab on the street is the primary method of achieving a taxi in most every major metropolis across the globe. So I’m to believe, to Member Marushok’s point, that every other city in the world is not concerned in the least about the safety of their taxi riding public? If this is such a great safety concern, as Member Marushok stated, than why don’t other industry leaders agree with him? If you looked at the worldwide, or even domestic taxi industry as a whole, you will see that this Administrations stance on this issue is not the rule but the exception. I understand completely that this is the manner in which this statute was been enforced most likely since it’s inception, but I feel that the language does not support this and if you would allow me to continue with my statement, I plan on addressing these matters further.
CHAIRMAN MICHAELS: Yes go ahead.
First of all, just prior to Judge Winner introducing the satellite map as evidence, again on pg 6, now line 21, prosecutor Infurno stated that the prosecution had no further questions. At no point prior to that moment did the prosecution make any attempt to prove my exact whereabouts when I loaded. If my precise location as it related to the intersection or crosswalk was paramount in proving guilt it begs the question, why did the prosecution make no attempt to demonstrate this for the court? Up to this point, prior to Judge Winner introducing evidence by surprise, any reasonable person would have concluded that the prosecution had failed to prove their case beyond a preponderance of the evidence.
Officer Hinkle’s testimony was shown to be highly doubtful and as I stated, no attempt was made by the prosecution to prove my exact whereabouts when loading. Perhaps this
is why the Judge included this evidence.
Interestingly Judge Winner agrees with this assessment that the prosecution failed to make their case. How do I know this? I know this because as soon as the state rested, Judge Winner took it upon herself to take over the prosecutions case for them. If at the time I had nothing further and the prosecution rested, she had felt that there was sufficient evidence and credible testimony to prove the allegation, than why continue the proceeding at all? It should have been a finding of guilt right then and there. Furthermore, if indeed all I had to do to commit a violation was simply stop in a lane of traffic, as this board seems to contend, than why is the proceeding even continuing after I admitted to doing just that? There’s no reason for the Judge to continue the hearing at all let alone introduce evidence. So apparently Judge Winner disagrees with that assessment. Conversely, if at the time the Prosecution rested Judge Winner felt that sufficient doubt surrounded the prosecutions case than she should have dismissed the charge. Why take it upon herself to introduce evidence by surprise? Why question me and formulate arguments regarding my location as it related to it?
It is my understanding that it is a Judge’s duty to make a decision based on the testimony and evidence presented. Nothing more. Nothing less. Additionally, one of the Canons of the Judiciary is impartiality, and introducing evidence by surprise, that results in unfair prejudice to either side, could never be perceived as impartial. Particularly when said evidence becomes the sole basis for the conviction and there is no reasonable explanation as to why it was not brought forth during discovery…
CHAIRMAN MICHAELS: Mr. Funk I’m going to stop you there for a second. That may be true in an traditional court of law, but because this is an administrative proceeding, the Judge or Hearing Officer has much more latitude and are allowed to ask questions of the witnesses and engage in the process.
DRIVER FUNK: I am aware of that, but taking it as far as introducing evidence and arguing the prosecutions case is making a gigantic leap. Regardless, if you look at the backside of the backside of the citation, it describes evidentiary procedures for these hearings. It states specifically that I have a right to view any and all documents, affidavits or reports that the Prosecutor intends to present.
CHAIRMAN MICHAELS: That’s right, the issue is the Prosecutor didn’t present. You were given a copy of everything the Prosecutor presented, were you not?
DRIVER FUNK: I was. But implied in that statement is that thought that no one else would or should be introducing evidence. It’s not anyone else’s place to do so. Again, that’s not the Judge’s role. And even if we assumed it was indeed the Judges place to introduce evidence, and formulate agreements, then isn’t at that point the Judge acting as prosecutor? What’s the difference? Certain evidence I can see but others I have no right to? Who knows what else might be out there that the State or anybody else has zero obligation to inform me of? This doesn’t seem right to me.
VICE CHAIRMAN O’BRIEN: How have you been prejudiced? If you had already…the question was “did you stop in a lane of traffic?” and you said “I did”. Okay. Then later on page 6, line 24 or 25, the Judge does ask you about the Satellite image but how does that prejudice you an any way?
DRIVER FUNK: How does it prejudice me? For one I was given no opportunity to prepare for it, for two I was given no opportunity to verify it’s authenticity, and for three, the map became the sole basis of the conviction, not the admission of stopping in a lane of traffic.
VICE CHAIRMAN O’BRIEN: But what’s the connection here? How are you trying…
DRIVER FUNK: Your Honor, Judge Winner even stated on…page 7 line 4, “ There is an order in the statute which means it is a violation to load at an intersection or crosswalk and it’s your testimony that that’s exactly what you did. So regardless of all the rest of it, it’s a finding of guilt.” She’s saying that “the rest of it,” the stopping in a lane of traffic, doesn’t matter. Again, if the Judge felt that stopping in a lane of traffic was all that mattered, then why is the hearing continuing at that point? It’s obvious the Judge needed something more to justify the ruling.
MEMBER MARUSHOK: The Judge probably just wanted to show where your location was exactly.
DRIVER FUNK: Exactly. That piece of evidence was paramount in her decision. That’s the connection.
CHAIRMAN MICHAELS: Actually it’s not, because you admitted to being in a lane of traffic and stopping, so in my opinion, I would have given no map whatsoever to proceed with the determination that you impeded the flow of traffic pursuant to the statute that’s been referenced because if you admit to stopping in a lane of traffic, it doesn’t matter to me where the intersection is. If you’re halfway up the block, if you’re prior to the intersection, if you’re in a lane of traffic when you stop to pick up passengers, that’s what the issue is, not your location where it took place.
DRIVER FUNK: Are you talking about a different statute because, again, I don’t see that language anywhere in this one?
CHAIRMAN MICHAELS: No it’s the same statute.
DRIVER FUNK: Perhaps does this language show up in a different statute and we’re just getting confused here?
CHAIRMAN MICHAELS: No. The statute is sufficiently broad to encompass “stopping in a lane”.
DRIVER FUNK: Well your Honor I think that’s actually the problem is that it’s over-broad.
VICE CHAIRMAN O’BRIEN: Then you need to take that issue up with the District Court.
DRIVER FUNK: So there is no expectation for proper evidentiary procedures in this courtroom?
CHAIRMAN MICHAELS: I believe standard evidentiary procedures were followed. You were given a copy of everything that the prosecutors entered against you and your admission that you were stopped in a lane of traffic is what was used against in the finding of guilt.
DRIVER FUNK: Your Honor if indeed it is permissible for the Judge to introduce evidence by surprise, or to introduce evidence at all, that I would say that this process as a whole is inherently illusory. I was not properly informed of the forces arrayed against me, I was not informed that I would be facing two prosecutors, I was not informed of the admissibility of evidence by surprise. I was not informed that someone other than the prosecutor would be introducing evidence. I feel in the interest of a fair hearing, the respondent should be made aware of such forces and as such, this is something that needs to be brought forth. I believe the 14th Amendment speaks about this sort of behavior.
CHAIRMAN MICHAELS: It’s not evidence by surprise because it was not evidence that was used against you in the finding of guilt. Your admission that you stopped in the lane of traffic is the evidence that was relied upon in the finding of guilt. I guess that’s where the difference of interpretation as you call it comes in.
MEMBER MILLER: If I could get in here for a second Madam Chair, I agree with your assertion that stopping in a lane of traffic will impede traffic around you and therefore is a violation. But one thing struck me as odd was in using the map, the Hearing Officer asked the driver about his location and she goes on to say, “ there is an order in the statute which means it’s violation to load at an intersection or crosswalk,” and then she says that “it’s your testimony that that’s exactly what you did.” If you go back to page 6, she pointed at the Google map and asked the driver to proximate where he was, and he said he couldn’t give an exact location so there is a bit of a discrepancy whether it was at the intersection or not. I feel the Hearing Officer has overreached in the second part of her argument that the driver agreed that he was at the intersection.
DRIVER FUNK: I’m glad you brought that up your Honor I plan on addressing that further later on. Shall I continue?
CHAIRMAN MICHAELS: Go ahead.
I presume the satellite image was taken from Google Earth or Yahoo maps or equivalent, and if indeed one of those was the derivative of the map, than I would say that those maps are available for download 24hrs a day, 365 days a year. If it was a Google Earth Map, then the Prosecution and or Hearing Officer had ample time to prepare such evidence prior to my motion of discovery and therein lies the point. I’m not positive to any extent where that image was produced from, so who can verify that this evidence is what it purports to be?…
MEMBER MILLER: If I could stop you again, there is something else I want to say about these maps. It’s my understanding that these maps are being used from time and time and I feel like Mr. Funk is bringing up a good point in that there isn’t any good reason why these maps cannot be produced in advance during discovery. We’re on a slippery slope with something like this and again, there is no reason for it. We should know far in advance if a map is going to need to be used …Please continue.
DRIVER FUNK: Again this idea is substantiated by the information on the backside of the citation when it states quote “ You may obtain copies of all reports, affidavits or documents that the PROSECUTOR intends to present at your hearing” end quote. No where is it indicated in the Taxicab Administrative Hearing Procedures section that it is permissible for the Judge to introduce evidence. In fact it states, as well as implies quite the opposite. So what is the point of notifying me of specific evidentiary procedures if there is no expectation that they will be adhered to? Furthermore it says under that heading that I can be represented by an Attorney of my choosing at my own expense. If there is no expectation that standard courtroom procedures prevail within this administrations hearings than I doubt that it would be beneficial in any capacity to retain legal representation. What good would a lawyers training be if the proceedings are void of any semblance of reasonable court conduct? Furthermore, even if we can assume that it is within the scope of the Judiciary to introduce evidence as well as argue the prosecutions case, then what exactly is the prosecutors role in the hearing? It seems to me that if the Judge can play Prosecutor, Judge and for that matter Jury, than having a prosecutor present at all is as redundant as it is partial.
Taking all things into account, it becomes clear that Judge Winners’ obvious bias resulted in overreaching, which was an abuse of judicial discretion-undoubtedly requiring a finding of reversible error.
The matter as it pertains to Officer Hinkle’ testimony is no less significant. It was clear that crucial parts of his written report as well as his in-court testimony are highly suspect and as I will attempt to illustrate, clearly perjurious. This also aids in the demonstration of the degree to which the Judge took over the case for the prosecution.
I testified previously that at the scene Officer Hinkle asked me if I knew why he pulled me over, to which I responded that I did not. He then told me that I interfered with traffic while loading. My immediate response was that there was no traffic there so it was not possible to have interfered any. This initial conversation is important because Officer Hinkle knew that if I ultimately pled not guilty, which I’m sure he had a feeling I was going to, than that was a point I was going to bring up. Which of course I did, for no other reason than it’s the fact. And Officer Hinkle prepared for it., so much so that the only part of the lengthy statute he notated in the “description” column on the citation was quote “interfering with traffic when loading” end quote. Even in his written report, where ample space and time existed to cite the statute in it’s entirety, he still only quoted the section of the statute on traffic where he writes “ Funk was cited for NRS 706-8845-9, interfering with traffic when loading.” And subsequently Judge Winner reiterated this pretext when she initiated the proceeding by stating on pg. 1 line 10 quote “So you’re here on a charge of interfering with traffic while loading, is that correct?” No where in the documentation of the event does it indicate that I was being cited for being in violation of loading at an intersection or crosswalk…
CHAIRMAN MICHAELS: I just wanted to point out for the record that on page 2, lines 3, 4 & 5 it’s discussed by the officer that there was a car and 2 motorcycles behind the driver while he was loading and that they had to wait to go around him. So there is an issue that there was a potential for you to be impeding the flow of traffic even under your own interpretation of the statute. We’ve already established that under our interpretation of the statute there was an issue.
DRIVER FUNK: That is correct your Honor and I plan on addressing that point right now.
CHAIRMAN MICHAELS: Go ahead.
DRIVER FUNK: Officer Hinkle’s testimony that there was one car and two motorcycles directly behind me at the time I loaded is an outright fabrication and a blatant falsification of a police report and in conjunction with his overall abuse of his position of authority. Taken as a whole, this disrespect for his oath and the process also requires a finding of reversible error.
First of all, it was my testimony that at the time when Officer Hinkle told me that I interfered with traffic one of my four passengers interjected and said that there was no traffic there. Not surprisingly, no mention was made of this in Officer Hinkle’ report.
Officer Hinkle even took his preparation for litigation as far as to offer up an explanation as to how I could not have known that there was traffic behind me. He stated in his investigators report that quote “he could not have known about the traffic because he was talking on his cell phone.” This notion, that it would be impossible for any driver talking on a cell phone to be aware of any traffic behind them is not persuasive. Again if this were true, I’m certain the State of Nevada would have outlawed the practice of talking on the phone while driving a long time ago. My concern for his flawed logic led me to question the Officer regarding this pg. 3 line 1 I asked him quote “ Can you think of any logical reason why it would be impossible for a driver talking on his or her cell phone to look in their rear-view mirror?” to which Officer Hinkle answered no...
CHAIRMAN MICHAELS: The cell phone issue is irrelevant because you were not cited for anything relating to the cell phone. I’d like you to skip over the part.
DRIVER FUNK: Your Honor this issue speaks directly to the credibility of the witness. I feel as though it’s very relevant.
CHAIRMAN MICHAELS: I strongly disagree.
DRIVER FUNK: Your Honor I’ve almost made my point on this issue and then I will move ahead.
CHAIRMAN MICHAELS: Go ahead.
DRIVER FUNK: So if Officer Hinkle can’t think of any reason why someone on his cell phone couldn’t monitor their mirrors, than why state that as a reason for my not being able to know about the alleged traffic behind me? It’s clear on this point that Officer Hinkle’s written and verbal testimonies are in direct contradiction of one another. And in realizing this it becomes obvious that my reason for not being aware of any traffic behind me was simply because there was no traffic behind me. This certainly is a far more plausible conclusion than the Officer’s illogical explanation.
The discrepancies continue if you look at the Traffic Conditions column on the citation as well as the Officer’s testimony. Again in preparation of litigation, he notated in the Traffic Conditions column of the citation a condition of Heavy. This suspect statement is not consistent with his report where he indicated that at that time and location there was quote “one vehicle and two motorcycles.” end quote. And that was reiterated during the hearing on pg. 2 line 3. Failing to understand how 3 vehicles warranted a Traffic Condition label of heavy, I asked the Officer about this on pg.4 line 27, quote “In your opinion does 3 vehicles constitute heavy traffic?” end quote to which he replied no. So if in the Officer’s opinion 3 vehicles isn’t heavy traffic, than why did he write heavy traffic on the citation? Again he is trying to paint this picture of traffic when none existed.
Furthermore I asked him on pg.4 line 25, quote “ Generally speaking, what would constitute a traffic condition moniker of heavy?” end quote. I felt that to be a simple and relevant question but the Officer’s reply is peculiar when he states on the very next line, quote “You know I’m not a traffic administrator so I really couldn’t tell you.” end quote. Not only is this reply condescending and disrespectful to the process, but we already knew that the Officer was not a traffic administrator as he had already stated his occupation for the record. And if he really can’t tell us what warrants a traffic condition label of heavy, than how is he in any way qualified to perform the task of issuing the citation itself? It’s clear that the Officer purposely dodged this question because he knew that if he gave an honest description of what heavy traffic looks like, it would contradict his testimony.
And that brings us to the issue of LANES. Officer Hinkle indicated on the citation and included in his written report that he witnessed me loading in the #3 south bound lane. This of course is simply not possible due to the fact that there are only 2 lanes of travel in that direction at that location. So I asked him to explain this discrepancy on pg. 4 line 14 quote “ How is it possible that you witnessed me loading in the #3 lane when there are only 2 lanes of travel at that intersection?” end quote. To which he replied, “ That’s incorrect, there are 3.”
Prosecutor InFurno later asks Officer Hinkle to clarify this matter when she asked him on pg. 5 line 9 quote “But on one side it’s two (lanes)?” end quote and on the next line the Officer recants and replies in the affirmative. In realizing the contradiction Judge Winner asks on pg. 5 line 11 quote “That brings a question to mind then, how do you get that the curb lane is #3 if there are 2 lanes in each direction?” to which he replied, “Yeah, I made a typo.” That certainly was a convenient excuse for the Officer but it makes zero sense if you consider that the citation is handwritten, and just minutes prior he responded orally to a direct question that there were three lanes and even went as far as to call me incorrect when I stated otherwise.
As this inaccurate testimony by Officer Hinkle is the substantive basis for the allegations against me-it is essential for me to point out this fundamental failure. The most important factor regarding the ability of a witness to testify-is that his testimony must be truthful and accurate. That is all. I believe it has been amply demonstrated that the officers testimony has failed this threshold requirement…
CHAIRMAN MICHAELS: I’m going to stop you there sir. You are making a lot of inflammatory remarks about the Officer, the Hearing Officer and the process and I’ll caution you because you are definitely overreaching with your comments. It’s a difference of a opinion and that’s the whole part of the adversarial processes is he said versus she said. But just because someone doesn’t agree with you doesn’t mean that they were lying on the record and all these assertions that you are making in your statement.
DRIVER FUNK: Your Honor it is not my wish to be inflammatory here today. I’ve tried to respect this procedure since it’s begun and I’ve been sworn to tell the truth and I believe that is what I am doing. I witnessed the event personally and have studied it extensively for some time and if the Officer is confused or incorrect or inconsistent about the events in question than I can’t shy away from bringing this to your attention. I will try to choose my words more carefully your Honor.
VICE CHAIR O’BRIEN: You need to point to evidence that supports your allegations.
DRIVER FUNK: That’s what I’m trying to do here.
VICE CHAIR O’BRIEN: Ok.
DRIVER FUNK: In summary, the number of errors within Officer Hinkle’s testimony are rather daunting. His testimony that I interfered with one vehicle and two motor cycles is an highly questionable. He strangely omitted a relevant observation from an independent witness. His testimony regarding my not being able to know about the alleged traffic is foolish and contradictory. His entry under traffic conditions wasn’t accurate and he perjured himself again when he said he made a typographical error. He was incorrect in observing my loading in the #3 lane. He was incorrect in observing my turning off of Ogden. How many issues does a witness need to testify inaccurately on before his testimony is deemed non-probative and irretrievably suspect? I believe any reasonable person would have concluded that the Officer passed that threshold long ago.
This brings us back to Judge Winner. The entire proceeding hinged on the issue of traffic. Officer Hinkle saw to that in the way he prepared the pertinent documents in preparation of litigation. However, even if we can assume the Officers testimony were accurate and credible, the prosecutor did not successfully present her case. I believe that is why the Judge impermissibly took over the States burden for the prosecutor. Once Judge Winner took over the case for the prosecution it was no longer about traffic or stopping in a lane whatsoever, it was about an intersection and about a piece of evidence that I had never seen or heard about prior to that moment. It’s hard to imagine a more obvious example of trial by surprise and this board has now been given an opportunity and has an obligation, to remedy the injustice of the previous courts strained analysis.
As troubling as the abuse of Judicial Discretion exercised by Judge Winner as well as the questionable testimony of Officer Hinkle are, they both serve to illuminate a larger issue.
On a fundamental level, procedural due process has it’s roots in fairness. If an individual is facing deprivation of life, liberty or property than there are entitlements granted to him by the Bill of Rights and the 14th Amendment as a means of guarantying a fair proceeding. At the core of these entitlements are three static ideas which include-that the appellant be given adequate notification of the charges, that he be given an opportunity to be heard, and that the person or panel charged with making the decision must remain neutral.
As I have reiterated, it is the charge of any Judiciary to make a decision based on the evidence presented. It is not the Judiciary’s role to introduce evidence and certainly not their role to adopt the States burden. This is exactly the type of behavior that the 14th Amendment contemplated. I acknowledge and concede that I was given proper notification of the charge. I acknowledge and concede that I was given an opportunity to be heard. However, it is the third core value of procedural due process of judicial neutrality that was obviously not adhered to and thus is a clear violation of not only the 14th Amendment, but is also in direct contradiction of the Administrative Hearing Procedures as indicated within this Administrations own documents.
Even if the condition exists within this administrations hearings where this type of Judicial, or Hearing Officer conduct is deemed permissible, than this process as a whole is inherently illusory when compared to standard courtroom procedures as well as this administrations’ own procedural guidelines as laid out on the citation. Furthermore, an obligation exists to adequately notify the appellant of the forces arrayed against him as prescribed by the 14th Amendment. I was never notified that I would be facing two prosecutors and additionally I was never informed of the admissibility of evidence by surprise.
Further still, and to Member Miller’s point, upon Judge Winner introducing the map by surprise and formulating a whole new line of questioning as it related to the new evidence, she concluded on pg.7 line 4 quote “There is an order in the statute which means it is a violation to load at an intersection or crosswalk and it’s your testimony that that’s exactly what you did” end quote. This conclusion is considerably strained. In looking at the minutes of that hearing, at no point did I testify that that was exactly what I did. In fact quite the opposite is true. I viewed an image, that I had never seen before, that was potentially taken from 100,000 feet, that I was only able to look at from across the room on a small computer monitor and I responded to her line of questioning as it pertained to it with phrases like “pretty much” and “approximately” and on pg. 6 line 27 I even stated specifically quote “I do not recall if I was in the intersection or approaching it” end quote. I fail to see to how drawing conclusions of exactness from phrases such as these could be viewed as neutral and impartial.
In conclusion, throughout this process the plethora of errors, abuses of authority and lack of procedural due process have prevailed and clearly resulted in a unfair hearing. It is now
the duty of this board to reconcile the injustice. It is my prayer that this conviction be reversed and the charge be retried or considering the lack of substance, dismissed altogether.
CHAIRMAN MICHAELS: Ok, deliberations?
VICE CHAIR O’BRIEN: Pursuant to the statute, being he did admit to stopping an a lane of traffic, based on that he violated NRS 706.8845 because it states, “shall not load or unload passengers or luggage at an intersection or crosswalk or at any place or in any manner that will interfere with the orderly flow of traffic.” Just based on that, I feel it is a clear situation and I support the Hearing Officer’s determination.
MEMBER MILLER: I agree with you in supporting the determination of the Hearing Officer. That said, I feel it is inappropriate for her to introduce the Google Map…
VICE CHAIR O’BRIEN: If it went to an element of the offense I would be more inclined to agree with you but it doesn’t go to the element of the offense in this case.
CHAIRMAN MICHAELS: I agree wholeheartedly. He admitted to stopping in a lane of traffic which is a clear admission of guilt on the charge. Motion?
VICE CHAIR O’BRIEN: I motion to sustain decision of the Hearing Officer’s finding of guilt.
MEMBER MARUSHOK: I second.
CHAIRMAN MICHAELS: Vote? All those in favor say aye. Aye
MEMBER MILLER: Aye
CHAIRMAN MICHAELS: The Board is unanimously in favor of the motion. Case closed.
I gathered my scattered papers from the desk, neatly returning them to their manila envelope. After I stood up and turned around I was shocked to see the huge mass of people that now filled the room to capacity, leaving dozens without seats. I sensed the room caving in behind me while I was speaking but I couldn’t believe how many people where there and of course once again, it seemed like every one of them was staring at me. I didn’t see Michelle or Bishop anywhere so I slowly made my way out of the room, brushing shoulders with many throughout my walk of shame. Just outside the second floor courtroom is a balcony overlooking a courtyard which is where I found the two of them. Michelle gave me a big hug and Bishop offered me a smoke, both of which I quickly accepted.
“I’m sorry baby. Are you ok?” Michelle asked, still holding on to me.
“Yeah I’m alright. I can’t say I’m terribly surprised about how things went down. I thought we made a strong case, but they were having none of it.” I replied
“You one did a hell of a job, don’t sweat it to much alright?” Bishop said.
“We still lost” I said.
“You made all your points, you were calm and clear and you didn’t get rattled when they fucked with you. You didn't lose because they made a better arguments than you Andrew,” Bishop said.
“Oh yeah, then we’d we lose?”
“We lost because of bullshit,” Bishop replied.
“I knew you were going to say that.”
“It seemed like a couple of them were against you from the very beginning, I think both of the girls hated you,” Michelle said, “I’m not sure that it would have mattered what you did.”
“Yeah I kind of felt like that too. But that one guy on the left, Miller, it seemed like he was getting what I was saying,” I said.
“I thought so too,” Bishop said. “He determined that the Judge overreached in one of her conclusions, he also said that he thought the admissibility of the map is questionable and puts them on a slippery slope with that type of behavior, which of course it does. But he still votes to uphold? I’m not sure what to make of that.”
“Yeah he even brought up that I never told the Judge that I admitted to loading at the intersection. He even came up with that before I brought it up. If nothing else at least the guy did his homework,” I replied.
Apparently Board Member Miller’s ears where burning because no sooner than I said that he exited the courtroom, turned to his right and started to walk right by us. All three of us shut up but as he passed by he looked at me and said, “That was good, did you go to law school?” Bishop interrupted and answered before I could say anything, “No, did you?”
I caught up with the now annoyed Mr. Miller as he continued on and I hinted at the fact that I would appreciate the opportunity to briefly pick his brain. “I’d rather not re-hash it,” was his attempt to be gracious reply as he turned and walked away. I made my way back to the group and as soon as I returned Bishop said, “Yeah no shit he doesn’t want to re-hash it.”
“Bishop,” I said, “you crack me up dude. Let’s get the fuck out of here.”
“So what now?” Michelle asked the both of us.
“Breakfast,” I replied, “my treat, you hungry Bishop?”
“No thanks man I gotta get home and get some sleep.”
“Yeah that’s probably a good idea for you.”
I draped my arm around Michelle and the three of us made our way down the stairs and exited the building into the parking lot while the conversation returned to the trial.
“I told you were going overboard with those remarks about the officer,” Bishop said.
“Yeah you were right, and I even toned it down from where it was before. I don’t get that though, can a statement be factual and inflammatory? At the same time?” I asked.
“Yes,” Bishop replied with a chuckle, “you didn’t know that?”
“I’m not a lawyer man, I’m just a cabbie who likes to read.”