So, last Friday, when I showed up promptly for my 2pm hearing in Superior Court, and walked into the Department 1 courtroom, there was almost no one in the room, and you could have heard a pin drop. I saw two women in their 30s standing, huddled over a ledger, and I surmised they were courtroom staff. One of them asked me for my appellate court case number, and after she confirmed I was on the docket, I took a seat. Another male, about my same age, soon walked in, and apparently he was also there as a defendant for an appellate hearing. We four, the only ones in the court room, were soon joined by another woman, who also appeared to be courthouse staff, and who told me she would speak with the judge, as there was apparently a mix-up, as I was listed on the docket as not wanting to give an oral argument, even though I had expressly requested in writing that I wanted to speak at my hearing. This woman, who seemed to have the ear of the judges, left the room, then reappeared and confirmed that I would be on the docket for oral argument. Soon the appeals panel appeared, and we all stood for Justices Jon Tigar (presiding judge) and Gloria Rhynes. Normally, there are 3 judges on the panel, but one justice, Jacob Blea III, was absent that day. The entire proceeding lasted at most 15 minutes. Judge Tigar, who spoke on behalf of the appeals court panel, first called the other defendant's case, which I had overheard the women say was also a traffic matter, and Judge Tigar said that charges would be dismissed. He then called my name, and I walked up to the table and stood. Before I was able to utter a word of my prepared oral argument, the judge said that they had reviewed my case, and the charges against me would be dismissed, because hearsay was introduced as evidence. The judge asked me if that was alright, to which I replied, "Oh, very much alright, your honor." That was that, and I left right after.
Today, I received in the mail the following letter:
People of the State of California vs Thuon ChenIf you decide to fight your ticket, you will find that your experience in appeals court is a marked contrast to traffic court, which is much more crowded, especially at arraignment. Lots of people are there to tell their stories, when the judge (or more likely a commissioner, which Len Tillem likes to say is usually a lawyer who likes to wear a robe and hear people address him as "your honor") really only wants to hear how you plead. Your traffic court trial is where you can sit in on other people as they face the judge and the police officer. Most of the defendants at trial are not prepared and are hoping and betting on an officer not showing up to testify against them. The probability is high that a police officer will be present at your traffic court trial, because the police get paid to be there. What's funny (I'm sure it gets old for the presiding judge very quickly) is that when the police do show up, very often the defendant makes weak, anecdotal arguments, essentially pitting the defendant's testimony against the testimony of a sworn officer of the law. The judge is much more likely to believe what a police officer has to say. While doing research for my case, I got the sense that traffic court judges are like the hanging judges, that is, the police write the tickets and the judges collect. It's not until you, as the defendant, appeal your traffic case to Superior Court that you have a chance to make an argument before a receptive audience of jurists.
The judgment of the trial court is reversed 3-0. Similar to the affidavits held inadmissible in Melendez-Diaz v. Massachusetts (2009) 129 S.Ct. 2527, there was no live testimony by any person involved in the production of the Redflex Traffic Systems court Evidence Package (the "Redflex Packet"). Because the defense was not able to freely and adequately cross-examine the testifying witness on any of these issues, and because the absence of witness who could have testified as to the facts underlying the Redflex packet, Appellant's Sixth Amendment rights were violated, and the judgment of the trial court below must be reversed.
Remittitur to issue.
Here are the step by step instructions on how to fight your ticket and win. If a police officer actually saw you run a red light, you may be out of luck (unless s/he doesn't appear at your trial, which is unlikely). These steps apply to any traffic case where the only evidence used to charge you with a crime are recordings made by cameras operated by a for-profit corporation. Many municipalities, in addition to red light cameras, may also use traffic camera systems to collect evidence to charge people with exceeding the posted speed limit, or not coming to a complete stop at a stop sign:
- Ask yourself if you have the wherewithal, the time, and the motivation, to make numerous appearances in court. If you don't want to pay the ticket, you either have to hire a lawyer, or invest a lot of time learning how to do this on your own. You will need to set aside hours to do research, collect your arguments, and put together the documents you need to jump through the hoops in traffic court. This means going to your arraignment, and asking the judge to schedule a motion hearing; in the event your arraignment judge does schedule a motion hearing, you will need to attend that hearing, with a copy of your motion in your hand, as well as a prepared oral argument; and of course, you will need to attend and argue at your trial.
- Given that many towns, cities and states are in poor financial shape, the arraignment judge is not likely to honor your request and schedule a motion hearing. But if s/he does, you want to request that the municipality where you are alleged to have violated the law give you the best representation of the evidence that will be used against you, which are the full resolution photos and video. In a previous blog post, I detail my exploits in traffic court, how I asked the traffic court commissioner numerous times, in a total of three arraignment appearances, to schedule a motion hearing for me, to no avail; how the commissioner got so exasperated with my asking for a motion hearing at arraignment that he demanded I enter a plea, to which I replied "not guilty", and so the matter was set for trial.
- If you attend all of your scheduled appearances at arraignment, the judge may release you on your own recognizance, i.e., not require you to pay bail in the amount of the fine. To my surprise, at my traffic court trial, Redflex Traffic Systems even sent their co-custodian of records, Sarah Rutherford, as a witness to testify against me. However, you are allowed to cross-examine even surprise witnesses, and her answers, or lack of answers, to your prepared questions can be used in your appeal. These are the questions I asked of the two people who testified against me during my trial (The first witness was the police service technician, and the last two questions were directed by me only to the Redflex co-custodian of records, in an effort to show that she is not an agent of the government, and because she is an employee of a for-profit corporation, her testimony in your trial does not hold the same weight as the testimony of a police officer):
- How many technicians at Redflex were assigned to process Emeryville cases?
- Who were the technicians who created the system for Emeryville, and who installed it?
- Who were the technicians who reviewed this particular violation?
- With regard to my case, was the photographic and video evidence recorded by Redflex originally in digital or analog form?
- If the evidence was recorded digitally, what are the typical sizes of the photos and video please, in bytes and in resolution?
- Have you had any federal, state or local police training?
- What is the physical location of the computers that store the high resolution photos and video that are being used as evidence against me in my trial?
- After you are found guilty, the judge will order you to pay your fine. In a previous blog post, I instruct you on how to ask for a stay of judgment after you've been found guilty, so that, while you appeal your conviction, you don't have to pay the fine.
- You will have to develop a thick skin, because the judge who was present during your arraignment may be present at your trial, and may very well be dismissive of your arguments. S/he may even not-so-secretly hate you for wasting her time, when she has the photos and video showing someone, who looks a lot like you, appearing to violate the law.
- In a previous blog post, I instruct you on how to appeal your red light camera case after you've been found guilty.
- the motion to compel a municipality to either provide me with the best evidence, or else preclude the evidence that would be used against me during trial
- the motion to stay the judgment
Update: After you prevail in your lengthy court case fight, you may still notice an increase in your automobile insurance premiums when it's time to renew, based on the state DMV records your insurance company receives showing you were found guilty in traffic court because of traffic camera system evidence. This is despite the fact you fought long and hard to get the original traffic court conviction overturned on appeal. What your insurance company needs from you is proof from the DMV that the traffic court conviction was dismissed. This is a two step process:
- Bring the proof your conviction was overturned in appeals court to your local traffic court clerk, and ask that this information be sent to the state DMV headquarters (in California, DMV headquarters is in Sacramento). My local traffic court clerk then went into the back, presumably spoke to someone or perhaps she herself had access to the court computer that talks to the DMV computer, and she came back and told me the dismissal had been sent to the DMV and my record had been cleared.
- Your insurance company will want an updated copy of your driver record (some call it a "DMV abstract") faxed or mailed to them. In California, you can get a copy online for $2 by printing it out from your web browser at
Or, time permitting, you can schedule an in-person appointment to confirm with the DMV representative that the conviction has been removed, then ask to get a copy of your driver record as a DMV printout that comes with an official seal. This cost me $5.