Ming Dooley

Criminal Law Midterm Part B

April 22, 2015
Law can be defined in many ways. However, I think a nice definition is the one
that Lawrence Friedman put forth, in his book Law in America, A Short History. The
definition which follows, is according to Friedman, a simple, broad and workable
definition to what he describes as an elusive term.
Law is, above all, collective action: action through and by a government.1
I think Friedman is correct in his definition and I have to agree with his analysis and
assessment of law. Friedman later elaborates on his definition and describes that, in
actuality, it is referring to the legal system.
Taking it a step further, Raymond Wacks, in his book, Law, A Very Short
Introduction, gives this eloquent description of law and its impact on society.
The law is an imperfect yet indispensable vehicle by which both to conform and
transform society. It would be rash to undervalue the certainty, generality and
predictability that an effective legal system can provide. Few societies achieve
genuine harmony and accord; yet in the absence of law a descent into chaos
and conflict would surely be an inevitable consequence for our increasingly
polarized planet.2
While this is certainly true, and law is an indispensable vehicle to both conform and
transform society, in my opinion, society also conforms and transforms the law. I see
them like the symbol of the yin and the yang. One flowing into the other, and the other
flowing back into the first, yet both contained within each other. At the same time, they
are always in a state of movement, never standing still. Sometimes the movement is
slow, and sometimes the movement is fast, but always there is movement. Things are
never static within the field of law, especially in the common law system, where
judgements may be overturned on appeal. It is in a constant state of evolution.
Lawrence Friedman provides an elegant parable which brings this idea to light.
Imagine a community that lives on the banks of a swift and deep river. The only
way across is by ferry, slow and cumbersome. The community demands a
bridge; the citizens sign petitions, lobby, and put pressure on their government.
Finally, the government yields, money is appropriated, and the bridge gets built.
Once the bridge is in place, traffic moves swiftly back and forth across the
bridge. The nature of the community changes. Now people can and do split their
lives between the two sides of the river. Some live on one side and shop and
work on the other; and vice versa. Many people cross the bridge every day.
1Friedman,

Lawrence M. (2002-07-30). Law in America: A Short History (Modern Library

Chronicles Series Book 10) (Kindle Locations 57-58). Random House Publishing Group. Kindle
Edition.
2

Wacks, Raymond (2008-03-27). Law: A Very Short Introduction (Very Short Introductions)
(Kindle Locations 234-237). Oxford University Press. Kindle Edition.

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Ming Dooley
Criminal Law Midterm Part B
April 22, 2015
People come to think of the bridge as natural, inevitableeven as something
they have a kind of right to have. The bridge affects their behavior, their way of
thinking, their expectations, their way of life. The legal system is something like
the bridge. The bridge itself was not autonomous; it was entirely the product of
a social demand. But once in place, it began to exert an influence on behavior
and on attitudes. It became part of the world of the people who lived in that
community. They ordered their lives in reference to the bridge. The bridge
entered into their very thought processes. American law is very much of this
nature: it is one of societys bridges.3
And here are some of my personal experiences of walking across the bridge and
my participation in the collective action of criminal law, albeit, at the infraction/
misdemeanor level. However, one of the topics of my experience was the topic of a
California Supreme Court decision last year, so I think there is some relevance.
In Dec. of 2009, while I was overseas in India, my husband told me over the
phone, Honey, you got on of those picture tickets. I said Really? I vaguely recalled
running a red light on the way home one day and I figured that there must have been a
camera at that intersection and I didnt know it. He told me the due date for the ticket
was after I returned from overseas, so I told him Id take care of it when I got back.
You can imagine how surprised I was when I returned home and looked at the
citation. I had no recollection of running a red light at this intersection. Yet, it was my
car and my picture in the photos and in the online video I was given a link to watch.
It was $446. After paying for traffic school and the administrative fee for traffic
school, it would bring it to over $500! It was possible that I would be ineligible for traffic
school because I had gone for a previous infraction in the past 18 months. Mentally
disturbed, I did what everyone does nowadays. I went to google.
This was the first time I came across the lawyers aphorism, If the facts are
against you, argue the law. If the law is against you, argue the facts. And certainly, the
facts were against me in this case. There was no doubt that it was car and my picture
on the citation, and my picture in the video that I could view online. Not only that, I WAS
guilty of the infraction!! In my searching, I came across two very useful websites, http://
highwayrobbery.net and http://www.helpigotaticket.com/. The latter site is written and
maintained by Geo McClip.
According to his website, Geo. is doing this web site because his experience
has shown him that most tickets are defensible, but most people do not know how to
fight a ticket. While not an attorney, Geo. McCalip will put his record on traffic tickets up
against any lawyer in California. Over the last three decades he has won, or helped
friends beat, scores of tickets. He has a better than 80% win rate in court, with three
successful pro per appeals on traffic cases. He has had attorneys ask him for advice on

3Friedman,

Lawrence M. (2002-07-30). Law in America: A Short History (Modern Library Chronicles

Series Book 10) (Kindle Locations 234-244). Random House Publishing Group. Kindle Edition.

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Ming Dooley
Criminal Law Midterm Part B
April 22, 2015
tickets (even one who advertised himself as a ticket specialist). Many of his friends have
asked that he write a book on the subject. He hopes this web site makes them happy.4
Accordingly, after postponing my initial plea entry as long as I could, I went for
arraignment on March 1, sat around for hours waiting for my name to be called, while at
the same time telling the police officer who was trying to get me to watch the video and
give up in exchange for negotiating a reduced fine, no thanks. My trial was set for
Apr. 13.
Geo.s approach started with an extensive discovery request, in the hopes that
the district attorneys office would not respond, as it would require a voluminous amount
of records. The discovery request ended with the statement that we will have to
interpret a failure to provide the documents requested under discovery as an exercise of
the discretion provided for in GC 26500 and a decision not to prosecute this case. The
idea being that, when they didnt respond, you could request a dismissal.
I received a letter from the City Attorneys office. Apparently the City Attorneys
office prosecutes these cases. Basically, they didnt send me any records, but told me I
could review some of the items listed on my discovery letter at their office during
business hours.
On April 13, when I went in to request dismissal based on this, the judge told me
that my letter, an informal discovery request, was unacceptable and I needed to file a
motion for discovery with the court. Accordingly, I did so. The trial was reset for June
14. About a week before the trial I received a 9 page Points and Authorities in
Opposition to Defendants Motion to Compel Discovery. In truth, I was overwhelmed. It
cited numerous cases that I didnt have the time or resources to analyze. Nor was I
completely clear on the reasoning behind requesting some of the documents I was
requesting, but I tried to fake it.
Nevertheless, I appeared in court and attempted to argue my position. I dont
recall the City Attorneys office sent anyone. I guess they felt their points would speak
for themselves. While my motion for dismissal was not accepted, neither was the Citys
Attorneys office refusal to provide items completely accepted. The City Attorney was
ordered to provide specific items in the discovery request by July 6. The trial was set for
August 5. The City Attorneys office never complied. I should note, that every
appearance had been before a different judge.
As I was doing more research online prior to the trial, I discovered a recent
judgment, People v. Khaled, from the Superior Court of California, County of Orange,
dated May 21, which appeared to have been dismissed based on the same argument I
was putting forth. I was delighted, feeling certain that my ticket would be dismissed with
this additional support. I also discovered another useful website, www.motorist.org.
While I have been in court many times over the years, so the venue was not
unfamiliar to me, true to my nature, despite being well-prepared with what I thought I
was going to do, my nerves got the best of me. This happens to me even when I am
not going before a judge! It will take me a lot of practice if I ever want to be a

4http://www.helpigotaticket.com/geo.html

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Ming Dooley
Criminal Law Midterm Part B
April 22, 2015
successful trial attorney, but that can easily be gained somewhere where the stakes are
not so high.
This particularly hearing was held in a mobile building behind the main
courthouse building. It was small, and not as intimidating as the regular courtrooms,
perhaps only room for 6 people in the audience. There were 3 others in that particular
room besides me. I patiently waited my turn as a couple others went before. This was
helpful as I could familiarize myself a bit more with the procedure. I had heard that
someone from the city attorneys office was going to show up to prosecute me, but,
much to my relief, that did not happen.
I had my list of questions all prepared, but I had been hoping that if the City
Attorneys office did not send anyone, it would be dismissed. But an officer was there,
and the judge used some wording to the effect that she would act as prosecutor, yet she
wouldnt be actually prosecuting.
The officer presented their case and asked that the evidence be entered into the
record. I took notes, but I was so busy taking down the notes, but the meaning was
going in one ear and on to the paper and I had no comprehension. I objected that that
was a part of my case. I think I was successful, but I cant remember! I had made a
copy of the judgment for the People v. Khaled case, but she said she didnt need it
because she was familiar with the case. This was relief for me, as I did not have to wait
for her to read it. However, I had not realized until she told me, that it was not legally
binding because it was not an appellate court case. Then, somehow I bumbled through
my questions. There were some questions that I really wasnt sure why I was asking
about them, so I just did the best I could and kept going back to violation of the 6th
Amendment confrontation clause. I didnt feel like I made a strong clear argument. It
was like I was painting a very blurry picture. But, I did the best I could.
I guess somehow, the points I made came across. Shortly thereafter, I received
a letter with her Memorandum of Decision. I never ever spent the time to completely
analyze the decision, I was just delighted that I had been found not guilty after all the
time and energy I had put into my effort.
In retrospect, would I do it again? It would be a hard call. If someone had told
me it would take 4 court appearances that entailed me being in court for 2 hours each
time, primarily just waiting, what to speak of getting there and being so emotionally
drained that the rest of my day was useless, I dont know that I would have done it.
That doesnt account for the numerous hours I spent researching, preparing documents
and preparing for court appearances. But I am still left with a self-satisfied feeling, and
lets face it, for me, parting with over $500 for running a red light at an empty
intersection at 29 mph, is not easy! Had it been $100 or so, I would have
unquestionably just paid it. Nevertheless, I have a certain amount of pride and brag
rights in being able to share that I beat a photo-enforced red light ticket. In Feb. 2013,
San Diego removed all its photo-enforced red light cameras. I like to think in some way,
I may have helped bring this about.
I took look at developments in legal cases regarding red light cameras since my
successful defense, the California Supreme Court ruled in June of 2014 on an appeal of
another case, People v. Goldsmith, in regards to this question. Based on the information
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Ming Dooley
Criminal Law Midterm Part B
April 22, 2015
I read, the questions the California Supreme Court reviewed were What testimony, if
any, regarding the accuracy and reliability of the automated traffic enforcement system
(ATES) is required as a prerequisite to admission of the ATES-generated evidence?;
and Is the ATES evidence hearsay and, if so, do any exceptions apply?5 Goldsmiths
attorneys argued:
Here the ATES evidence was offered to show what occurred at a particular
intersection in Inglewood on a particular date and time when the traffic signal at
the intersection was in its red phase. The ATES evidence was offered as
substantive proof of defendants violation, not as demonstrative evidence
supporting the testimony of a percipient witness to her alleged violation. We
have long approved the substantive use of photographs as essentially a "silent
witness" to the content of the photographs.6
and the court responded:
The ATES-generated photographs and video introduced here as substantive
evidence of defendant's infraction are not statements of a person as defined by
the Evidence Code. ( 175, 225.) Therefore, they do not constitute hearsay as
statutorily defined. ( 1200, subd. (a).) Because the computer controlling the
ATES digital camera automatically generates and imprints data information on
the photographic image, there is similarly no statement being made by a person
regarding the data information so recorded. Simply put, [t]he Evidence Code
does not contemplate that a machine can make a statement.7
The US Supreme Court denied their a writ of certiorari.
However, reviewing my judgment, this is is also part of the finding in my judgment
and not the basis for the ruling I received. The legal basis for judgment appears to me to
be based on Violation of the 6th Amendment Confrontation Clause, which was not
addressed by the California Supreme Court. However, I suspect my case would not
have been so easily dismissed in light of this California Supreme Court Decision, and I
would have had to have been more persuasive in my presentation, in connecting the
facts that I brought to light with the relevant law. Perhaps a more detailed analysis of
the legal basis for my judgment and a comparison with the California Supreme Court
decision will be a topic for my Evidence midterms, if a similar assignment is required. I
am attaching a copy of the Memorandum of Decision.
This would not be the first time that I would successfully beat a traffic infraction
based on the law. In the spring of 2011 I received a speeding ticket. It was in Winslow,
5Kenneth

Ofgang, Supreme Court to Rule on Evidence in Red Light Camera Cases, Metropolitan NewsEnterprise Online, May 10, 2012 http://www.metnews.com/articles/2012/conf051012.htm
6

LexisAdvance: People v. Goldsmith, 59 Cal. 4th 258 (2014)

LexisAdvance: People v. Goldsmith, 59 Cal. 4th 258 (2014)

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Ming Dooley
Criminal Law Midterm Part B
April 22, 2015
Arizona on a two lane county highway, outside the city limits. I had been going 60 in a
50 mph speed zone. I had been unaware of the speed limit and the sheriff had me cold,
despite the fact that I had been driving down this road for over 10 years to my second
home, an off-the-grid self-built geodesic dome on 40 acres out in the middle of nowhere,
next to Clear Creek Canyon. Much to my chagrin, I had left my wallet at home with my
drivers license. But I knew my license number, and the sheriff accepted that.
Naturally, being a small town, it was not unusual that the sheriff knew some of my
neighbors on neighboring 40 acre parcels, who were full-time residents and we chitchatted about some of them as he checked my car and ID. I had hoped he would not
write me a ticket, but he did. I was grateful that it did not include a citation for driving
without my license in my possession.
Fighting this ticket was a bit more challenging as I was out of the state much of
the time, and unable to appear by the required date. Furthermore, traffic school in
Arizona was much more expensive than California and it was more work, as they
required you to be logged into the site for the specified number of hours vs.
documentation that you learned the required material through passing a test. At that
point, as I referred to my online resources for possible defenses suddenly I realized that
the officer had written the ticket for the wrong date! It was a cut and dry case. I called a
local attorney about options. I explained the situation, he told me he could represent
me, but with his fees, it would be cheaper to pay the ticket and do traffic school! He
then reduced his fees, stating it was an interesting case, so I agreed. The attorney
appeared on my behalf and then set a date that worked for me to appear for trial.
I had been out of town on the date that he had issued the citation for, and my son
had been with me on the trip. In addition, my husband and my two daughters could also
be witnesses for me that I had been driving from Santa Barbara to Barstow on the date
of the citation. As I homeschooled my three children, I figured a visit to traffic court
would be educational for them all.
We appeared at the courthouse. Interestingly, this time it was the officer who
was overly nervous. He could barely talk, and he was extremely upset, because we
both knew that I had been speeding, yet I was vehemently denying that on that day,
those events had not happened. At some point he realized the error. In fact, he may
have checked the record by at the office, but it was too late.
Interestingly, my then 16-year-old son found it very difficult to testify on my
behalf. My behavior offended him, as I was getting off on a technicality and he felt it
was an ethical violation. The female judge certainly didnt have the same feelings as
she smugly lectured the quaking deputy about the importance of adequate
documentation and proper procedure, as she dismissed the ticket. But, a discussion of
ethics, technicalities and the law are a topic for another time.
If the facts are against you, argue the law. And some continue it, If the law is
against you, argue the facts. If the law and the facts are against you, pound the table
and yell like hell. I think this maxim will stick with me until the day I die.

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Ming Dooley
Criminal Law Midterm Part B
April 22, 2015

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