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
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The week following my numbing defeat, I vacillated back and forth on whether or not to challenge the ruling. Part of me thought that I could do even better the second time around, make an even stronger case. But what concerned me most was the idea that no matter how successfully I argued, I got the distinct impression that it wouldn’t matter. The odds were stacked against me and I believed that the TA was far more concerned with the precedent that a ruling in my favor would establish then they were about simply letting me off the hook for 60 bucks. Or maybe I am wrong. If I had gotten my first TA ticket dismissed, in theory every other cab driver that is cited for the same offense in the future, which undoubtedly would be thousands, could make the same argument I did and that court would have to take a good hard look at it. There is no question that the potential revenue that this supposed offense creates is a significant motive to be creative in their interpretations of the statute. This wasn’t one man against a traffic ticket, this was one man versus a whole administration. One man against The Authority. An authority, mind you, capable of writing, enforcing and prosecuting it’s own laws and simultaneously being strangely devoid of the traditional governmental checks in place to balance such an extent of power. The only thing remaining to correct the scale it seemed, was me.
I finally decided that if I was to proceed with the appeal, I should get a better idea of what I was getting myself into first. Be prepared right? So I spent some more time at the TA office to obtain the transcript, or “minutes” of my first hearing. I felt like reading through the text of the hearing might help me make more sense of it. While there I was also lucky enough to get the opportunity to talk with Investigator/Prosecutor Infurno as well as Sr. Investigator Henneforth separately and they both were very helpful and offered some valuable insight into the perspective of the TA. When I expressed mild concern, Sr. Investigator Henneforth also did well to quell my fear of retaliation from the TA for my antics. Calling people liars and cheats in open court can’t please too many and one could figure that Officer Hinkle wouldn’t be too keen on giving me a break if he ever pulled me over again. However I believed the Sr. Investigator when he assured me that it shouldn’t be a concern and as I write this, he proved correct. After hearing my name called I was informed by the administrative secretary that there was a fee to obtain the minutes of $55 which is supposedly compensation for the person who transcribes the audio tapes of the hearing to text. Yeah right, I want that guys job. As it turned out, this process of obtaining a copy of the minutes, along with just one other form, was all that one needed to do to actually file the appeal itself, so I went ahead and filed it. Fuck it. I can always withdraw it later if I get cold feet.
The next order of business was legal help. Cunning and reading comprehension can only get one so far so I called in a favor to an old friend of mine, Bishop. My legal eagle pal was nice enough to meet me for some coffee and smokes and to offer his opinion on my situation. We caught up for a bit and afterwards I took a few minutes and explained my situation and my analysis of all that had transpired thus far. I was very pleased when he jumped in with both feet and quickly agreed with my interpretation of the statute itself and that was crucial simply for my sanity. When he asked, I showed Bishop the transcript from my hearing and stood up and went to use the restroom so he could read in peace. After a few minutes I returned to my seat but Bishop was still reading so I watched people and waited in anticipation of his thoughts. When he finally picked his head up from the pages he said, “That Judge fucked you.”
“What do you mean?” I replied.
“Where did that map come from? Judges are introducing evidence now?” he said.
“I don’t know, they can’t do that?”
“Are you kidding?”
“Well fuck I don’t know, she did it. This isn’t regular court Bishop this is TaxiCab Authority. It’s an Administrative court, doesn’t that make any difference? Maybe they play by different rules or something?”
“Well some things are different and some rules can be a bit more relaxed but not on something like this. This is basic courtroom procedure stuff Andrew. Law 101. There are evidentiary procedures that need to be followed…”
“Wait,” I interrupted, “you said evidentiary procedures? It talks about that shit on the back of the ticket. There is a part about discovery.”
“Right. Exactly. It’s not up to the Judge to introduce evidence and argue the prosecutions case. She totally took over the prosecutors case for them. And literally, where did the map come from? You never even had a chance to inspect it before she questioned you on it. It’s called “evidence by surprise“”
“The Judge can’t ask questions?” I asked.
“Of course they can, but it’s usually just to clarify things. The Judge is supposed to be neutral and make a decision on the evidence presented, not introduce evidence and formulate arguments against you.”
“I thought that map was a little strange but what can I say about it? When I filed a discovery motion I was given no maps, just the officer statement and the ticket.”
“That’s good,” Bishop replied, “you should have objected to it and if overruled, then at least acknowledged it under protest. Regardless of that, this is your grounds for appeal right here. It’s called a “reversible error”. On appeal you’ll have to show the court that a mistake was made which resulted in a unfair proceeding. A mistake, that could be remedied if we were given a new trial. So your argument is that the Judge introduced evidence by surprised which became instrumental in the judgment against you and resulted in an unfair hearing. She justified her ruling using only arguments she brought forth and evidence she presented. I‘m not even sure why there is a prosecutor in the room.”
“I see, that makes sense. Could I have just plead the 5th to any questions she asked me regarding the map?” I asked.
“That might have done the trick. Like I said, the sole basis for the ruling came from your answers to those questions, and seemingly nothing else. If you could have avoided that you might have been alright,” Bishop replied.
“Hindsight 20/20. I was in uncharted waters there ya know? I tried to be very careful with how I answered those questions, it seemed like a tipping point even at the time, but let’s not forget that I haven’t a clue what the fuck I’m doing.”
“You could’ve fooled me. Who helped you with this anyway?”
“What do you mean?”
“Who helped you do put all this together?”
“You did this by yourself?”
“That’s right. You helped me a little bit on the other ticket I got a while back.”
“This is pretty impressive Andrew.”
“Some of these questions are pretty good, this is what they teach you to do in law school.”
“Really? I just seemed like a logical approach to me so I ran with it.”
“Yeah, I especially liked the part where you asked him how long he’d been a cab driver, that was good.”
“You liked that one huh? I liked that question too. I was just playing Possum, trying to make him think I was an idiot I guess,” I said.
“I like it because it makes him answer in the negative, makes him think that you know something he doesn’t.”
“Huh. That’s interesting. I never thought about it that way.”
“You ever think about going to law school?”
“Nah, that shit’s not for me. I’m just a cabbie who likes to read. I’m still not even sure whether I’m going to go through with the appeal or not.”
“What? Why not? I think you have a very strong case Andrew. Any Judge worth a sack should overturn this quickly. You should get a new trial or get the charge dismissed pretty easily I think.”
“Well to be perfectly honest, I’m still a little concerned about future backlash from the TA. Also, the appeal is not in front of another Judge, it’s in front of the entire board of directors of the TA. All of the TA Brass will be there and it’s making me a little nervous. I’ve already dragged the officer’s name through the mud. I shouted from the rooftops that he was a lying piece of shit and now you’re telling me that I should go back in there, this time in front of every important person at the TA, the administration who controls all in my professional industry, and announce that the Judge is full of shit too? It just doesn’t seem so smart. I talked to one of the Sr. Officers down there and he assures me that that won’t be a problem, providing I am telling the truth as I know it of course. But I’m not totally convinced. I’m unwilling to put that much past these people, you know?”
“I wouldn’t worry about that. It’s probably a good thing that the board will be there, I think they are the ones that need to hear what you have to say. If nothing else, you need to do it for all of those other cabbies that can’t do it.”
“What do you mean,” I asked.
“It’s obvious you have an affinity for this kind of stuff Andrew, logical thinking, the writing word, you know I love your blog, that’s why it’s up to you to change the system. Because you’re the one with the ability to do so. You owe that to those who can’t speak for themselves and if nothing else, you get to air your complaint. There are some legitimate issues going on here and somebody needs to get it on the record. If nothing else, win or lose, that could be the catalyst for change.”
That was one of the last things that Bishop said to me, and of all of the excellent advice he gave me, that part really hit home. Partly because I had never thought about that, but mostly because I think he just might be right. I won’t go as far as to say I’m obligated to fight the power, because the last thing I want to do is put a bulls-eye on my back. I’ve said this much before. However I did concur that it was up to me to do it. I had brought the flag this far and it was up to me to pick it back up and carry it the rest of the way.
Since I had learned previously that I would not have an opportunity to question Officer Hinkle again at the appeal, there was only one thing left to do; prepare my statement to read for the Board of Directors. At Bishop’s urging, I did some research online regarding due process and evidentiary procedures and found droves of information that I wished that I’d found before. Speaking of information I wished I’d had before, I also made contact with the Nevada Department of Transportation who was surprisingly swift in helping me locate documents that proved the Casino Center exit ramp was in fact closed at the time and date that I said that it was. Any time there is to be a road closure on a public byway, the contractor or people responsible for the closure, must notify the State DOT who must not only approve of the closure, but also issue the public notice of it. I’m sure a multitude of reasons exist to justify this procedure but I would imagine the chief concern is that emergency service vehicles need to always be made aware of any road condition situations that may interfere with their duties. Once I had those documents in hand, they served to prove one part of my testimony and substantially corroborate other parts of it regarding the matter of my allegedly turning onto Las Vegas Blvd off of Ogden. Since I was coming off of the Highway, and the Casino Center exit was closed, it would not have been possible to be coming that direction on Ogden as the Officer testified. Furthermore, it would not have been reasonably possible for me to know about that exit’s closure in the first place, unless I had indeed been on the Highway and witnessed it just as I had testified. Again, since Officer Hinkle was wrong in that observation, and I now had the documents to prove it, his other observations must be called into question also. I have to tip my hat to my older brother Scott, a longtime highway construction superintendent, for enlightening me about the existence of this information. These documents could have been extremely useful had I obtained them prior to my first hearing, but I never thought it would get to the point that I would need them. However it would have been fun to drill the Officer on the point, let him walk into the trap and then explain how it’s not possible that he could be correct, just like I did previously regarding the issue of lanes. Even more unfortunately, during my preparation I also learned that standard protocol in appeal hearings is that one may not introduce any new testimony or evidence. All you can do is talk about things that happened in or about the first hearing and considering my new DOT documents have no nexus to that hearing, they would undoubtedly be ruled inadmissible in appeal.
In the days leading up to my big day, I went back to the TA office and Sr. Investigator Henneforth was once again gracious enough to give me another meeting, most of which was spent with me talking his ear off. Basically I just wanted to run past him all of my ideas about what I intended to say to the Board, and do you know what the funny thing about that was? I don’t recall him disagreeing with a single thing that I said that day. In taking Judge Winner’s advice, I also discussed with the Sr. Investigator the possibility of filing a formal complaint against Officer Hinkle, which the TA would be required by statute to follow up on. Ultimately however, without any witnesses to corroborate my statement on the matter, there isn’t a whole lot of investigating to do. Besides I had already laid out his errors for the record previously in TA court. The Sr. Investigator reminded me again that Officer Hinkle would not be present at the appeal hearing. Only me, Administrator Walker and about a half-dozen other lawyers. Perfect.
Bishop was good enough to call me a few times to see how things were progressing. I never hesitated to bounce as many ideas off of him as I had, even reading to him passages from drafts of my statement. I believe at every turn Bishop agreed that I was on the right track. Some of his best advice included telling me to put my strongest arguments first, which is most decidedly counterintuitive to a storyteller. And we both agreed that our strongest argument, are best chance to convince the Board to overturn the judgment, was the Judge admitting evidence by surprise issue. Taking it all into account, once I was armed with the right information, it became much more clear just how questionable some of Judge Winner’s behavior really was. Even though that is meaningless with regards to my main argument, that the statute itself is vague and poorly written, it was my best chance at victory. Remember the two hours of waiting? The Prison-DMV with the two way speaker boxes? The butch Bailiff? The two snotty ADA’s? The traffic jam? The questionable TA Officer? If I have to pull an OJ and win on a technicality I’m all for it because let‘s never forget, we’re in it to win it baby!
As my statement was starting to take shape and neared completion, I started to become very concerned about the length of it. There was so many good arguments against this injustice that I wanted to make that my draft was nearing 6 pages. Bishop assured me that the length wasn’t an issue, as long as I was making relevant arguments they would have to listen to me. But this is also why you put your strongest arguement first because you never know what will happen or what they feel is relevant. In that vein, Bishop also informed me that I should be prepared to get interrupted. Even though the floor would be mine, it should be expected that at any point during my reading, the Board can interrupt me. They may want clarify something I’m arguing or explain and justify the previous courts decisions on an issue, or perhaps they could simply take issue with something I said. For a multitude of reasons they can interrupt my flow so I needed to be prepared for that and have something to say in response.
Regardless of what would become of my efforts, in total dozens and dozens, maybe even hundreds of hours of work, I knew at this point that I had done everything I could do to be prepared. I’d been a good boy scout. This was possible in no small part to Sr. Investigator Henneforth’s and Bishop’s expertise and guidance. I am indebted to them for their time as well as encouragement. The night before my big day, my 3rd big day actually, Bishop called me for one final briefing/pep talk and the last thing he said to me I’ll never forget,
“Anytime you end up in court it‘s a crapshoot. You never know what‘s going to happen which is why lawyers avoid it at all costs. But one thing is for certain man, they‘re not going to be ready for you.”
To be continued…Part IX