Judge doesn’t trust Wile E. Coyote on road runners and doesn’t trust cops on criminals

A Maryland appellate court issued an opinion this week upholding the conviction of a man caught on multiple felony charges related to intent to sell fentanyl and cocaine. For the most part, the case is fairly straightforward, but there was one issue that came up on appeal that inspired Meep Meep to agree.

At trial, prosecutors called the sheriff’s deputy an expert in “the identification, packaging and distribution of controlled dangerous substances, including quantities, uses, values, packaging, modus operandi, techniques, activities and patterns used by drug traffickers” in a one-week course and five years of work with drugs. Ultimately, this was a bridge too far for the trial court, which limited its testimony to “slang or street terminology and/or street value.”

Although the court determined that the judge did not err in crediting the deputy with limited testimony, Judge Friedman issued a statement emphasizing how close this whole assignment is. And, as Joe Dudek noted, he summed up the problem with using cops to explain what alleged criminals are thinking:

As I explained in my concurrence in Ingersoll v. State, I am very skeptical of the state’s use of law enforcement officers as experts in the sociology of the criminals they are trying to arrest…. Wile E. Coyote is simply not an expert in the sociology of road runners.

Despite being a “genius”, Wile E. Coyote is not an expert in anything other than comedy. However, the judge’s argument goes deeper than just asking a starving predator to describe the object of his constant pursuit. The policeman’s “expert testimony” on this subject comes dangerously and unacceptable close to a set of prejudices.

In the first example, Deputy Nolan was shown State’s Exhibit 5. This is a test photo (sic…SMS) message in which someone asks Lewis, “How much did you say for 50?” Lewis replies “325.” Deputy Nolan gave his expert opinion that “in this case, 50 is the quantity or amount of some drug and 325 is the answer, which is the dollar amount.” ID. Without Deputy Nolan’s assumption that Lewis is a drug dealer, nothing in this exchange of tests identifies it as a drug transaction. The buyer asks for a price for 50 units, and the seller quotes $325 (or $6.50 per unit). These can be tomatoes or turnips. Or it could be heroin. But Deputy Nolan – expert or not – has no way of knowing what it is.

See how “it’s about drugs” just got shoved in there? Prosecutors will argue that expert testimony shows that drug dealers actually use this type of standard market jargon. But this isn’t deciphering gang numerology, it’s just plain selling. This is a step towards obtaining expert testimony because “all drug dealers use the word ‘the’, this person used the word ‘the’, therefore this person is a drug dealer.”

It’s actually not a big step…

The second example is even worse:

State’s Attorney: Deputy, do you see any slang or coded language in this exchange?
Deputy Nolan: I don’t see any slang. I just see who – the person who sent it is asking, “Hey, are you okay?”
State Attorney: Have you seen this phrase before…
Deputy Nolan: Yes.
State Attorney: — in the context of drug transactions?
Deputy Nolan: Yes. It’s just – it looks like someone who sells drugs checking the person they’re selling them to to see if they need more of them.

(emphasis added). I don’t think this is expert testimony at all. The text could mean exactly what it said; one person asks if the other is feeling okay. I probably have a similar message on my phone. Deputy Nolan’s testimony rests on the assumption that he and the state were trying to prove that Lewis was a drug dealer.

The defendant objected to the court’s recognition of the policeman as an expert, but not to the specific questions and answers in this case, so Judge Friedman had no choice but to affirm it, but the coincidence points to a rather large tunnel-sized stain painted on the side of a car at the top of the criminal justice system .

So to say.

(Opinion on the next page…)

How Wile E. Coyote Explains the World (Deadspin)