The One Who Checks

A cop is on the witness stand and I'm asking him to define a lazy eye.

He can't. He's the State's expert on my client's eyes. He spent forty minutes telling six people that the way her eyes moved on the side of the road proved she was impaired. And he cannot tell me what a lazy eye is, which matters quite a bit, because my client has one.

I'll come back to that. I want to tell you how I ended up standing there, because it's a stranger road than you'd guess, and because the whole thing turns on one idea that took me about a decade to see.

I'm Rory Safir, and this is Reasonably Safir. Most weeks I'll walk you through what Florida's appellate courts handed down. This first one is just my story, and then next week we get into the science.

Start here. A small plane, low over the Australian Outback, in heat you can feel through the floor. There's a judge on board, a couple of lawyers, and a day's worth of cases waiting at the other end. We're flying out to a remote Aboriginal village to hold court, because out there the court comes to you. Some days you hold it out of a trailer. I'm in my twenties. I have not taken a bar exam. I'm not even sure I'm going to.

How I got on that plane is a series of people telling me I was making a mistake.

After my first year of law school everybody said get a sensible summer job. I flew to The Hague instead and spent the summer at a war crimes tribunal, prosecuting terrorists. A place built for one purpose, which is holding the most powerful people on earth accountable to ordinary ones. They still told me international law wasn't a real career. What I actually got out of that summer was a friend named Kelsey Argue, which I am telling you as a professional is the greatest name any lawyer has ever had. She is also one of the best lawyers I have ever watched work. And she is the reason for every single thing that comes next.

Kelsey became a prosecutor in the Outback. Through her I ended up clerking for a judge at the Local Court in Alice Springs, in the red center of the continent, and that clerkship is how I got hired at a firm out there called Ward Keller. Follow that chain for a second. A summer job nobody thought was a real career got me a friend, and the friend got me the Outback, and the Outback got me the firm. So: another one way ticket, and that plane. I spent a year out there.

Alice Springs is a town of about thirty thousand people sitting in the middle of a continent. It freezes at night and then cooks you by lunch. There is a fly out there, the bush fly, that comes straight for the sweat on your face and will not quit, and Australians have an actual gesture for waving them off. They call it the Aussie salute. Everything else that lives out there seems engineered to kill you. Snakes. Spiders. And I spent an genuinely absurd amount of time out there hunting for a drip coffee maker, which is not a thing Australians really do, which meant driving out to the middle of nowhere from a town that was already the middle of nowhere. I need my coffee. I'm a lawyer. I loved it there.

I worked out there for a lawyer named Tony Whitelum, who wore a leather jacket and cowboy boots to court, handled criminal defense and serious injury cases side by side, and in his time off sailed around the world with his son. He made being a trial lawyer look like the best job on earth. He also sounded exactly like the Crocodile Hunter and talked almost entirely in animal analogies, which meant a solid third of the time I had no idea what he had just assigned me. I'd nod, walk out, and go figure it out. A good part of why I do this is that I wanted to feel the way he made it look, and I didn't notice at the time that I was looking at a blueprint of the practice I'd build years later and half a world away.

But the thing that actually changed me out there wasn't Tony. It was watching who came before that court.

It's a Commonwealth system out there, so the lawyers turn up in the wigs, which I never fully got over watching. But underneath the costume it was startlingly close to ours. Same bones. Same problems.

The best thing I ever saw in that courtroom was one moment. A bald public defender arguing a motion in a cheap wig that kept slowly rotating on his head, until it was very nearly backwards and he reached up and spun it back around without breaking stride. And afterward the judge told me he had made up his mind about five minutes in. He'd let that man keep going, passionately, wig turning, for a long while after that.

It was my first real look at how judges actually think, and it's the same lesson I keep running into everywhere since. The decision tends to get made early. Everything that comes after it is the story people tell about the decision.

I watched Aboriginal people move through a criminal justice system a lot like ours. One they'd never agreed to. One they struggled to navigate, often in a language that wasn't their own. And what I remember most is how quiet they got. They would stand in that courtroom so nervous, so plainly terrified, that they could barely get a word out. Not because they had nothing to say. Because the room did not belong to them.

Everybody in there was running on a set of assumptions nobody in there had ever checked. And the person all of those assumptions landed on was the one person in the room with the least power to question a single one of them.

And I watched Australia's version of public defenders stand next to them and argue anyway. I should be honest about where my head was by then. I had mostly fallen out of love with the law. Law school did that. Three years of reading cases from the seventeen hundreds will do it. That's part of why I was on the other side of the planet with no plan. Standing in that courtroom, I got it back. That's the job, I thought. That's the whole job. Somebody has to be the one who checks.

I came close to staying for good. There was a path to transfer my degree and practice there permanently, and I thought about it hard. All told I was out in the world about three or four years, and Australians became my favorite people on it. I'm an introvert. Whenever I landed somewhere new I'd go find the Aussies, because they pull you into the group without making you ask, and they've usually been everywhere themselves. I loved Australia. I just missed my family.

So I had a full set of bar exam books shipped to the middle of the Outback. I am almost certainly the only person who has ever done that. I studied them out there on the red dirt, flew home, passed the Florida bar, and walked straight into the public defender's office in Tampa.

The public defender's office is where I actually learned this job, and I want to say that plainly, because I owe them. Law school taught me almost nothing about how to try a case. That office taught me everything. I started in intake. I did Baker Acts. Then they moved me up, skipped me past juvenile straight into misdemeanor, and eventually into felony, and that's where I stayed until I left.

It's a trial by fire. You carry a staggering number of cases. You learn the courtrooms, the prosecutors, and the judges fast, because you're standing in them every single day. And you learn what it feels like to be the only thing between an ordinary person and the entire machinery of the government. There was a lawyer there named Joe Koos who taught me attention to detail, and taught me how to actually do mitigation and get a real result for somebody. I learned an enormous amount from him. I'm grateful to those people in a way I'm not sure I've ever said out loud.

My first jury trial, the government's proof that my client was impaired included his slurred speech. That's what the officer wrote. Slurred. Now, my client spoke a Mexican dialect, which is about as clean and clearly enunciated as Spanish gets. Every syllable lands. The officer was Cuban American, out of Miami, and that's a coastal dialect that drops syllables all over the place. You don't say es-toy. You say eh-toy.

So I crossed her on dipthongs. A dipthong is two vowel sounds sharing a single syllable. Spanish runs on them, and Spanish grammar carries a whole set of written accent rules that exist for nothing but marking when two vowels ride together in one syllable and when they split into two. That is textbook Spanish. Correct Spanish. She didn't know it. She was on the stand testifying about the way a man talked, and she did not know the rules of the language he was talking in. What she wrote down as slurring was a man speaking his own language properly.

What the report called slurring was a man speaking his own Spanish, carefully, to somebody whose ear was trained on a dialect that leaves half the sounds out. Nobody had checked. It went in the report, the report went to the prosecutor, and it was going to go to a jury as a fact.

Here's the part I still think about. During jury selection I'd talked with a few of the Spanish speakers in that room about exactly this, about how much the same language changes depending on where you learned it. One of them ended up as the foreman. They came back not guilty. And that verdict carried more than a verdict usually does, because my client was facing deportation. A conviction wasn't going to cost him a case. It was going to cost him the country.

It happened again on a Baker Act. I represented a woman who had come up through a traveling circus. She was theatrical. A diva, and she'd tell you so. She talked with her hands and her whole body. And they wanted to commit her and appoint a guardian advocate to put her on antipsychotic medication. I sat with her and what I saw was not a woman in crisis. It was a Latina performer being read as sick by people who had no idea what they were looking at. We beat it, and she went home to Cuba.

That's the pattern, and once you see it you can't stop seeing it.

I left the public defender's office eventually, the way most of us do, and then I spent a couple of years finding out exactly what I did not want. A white collar firm first. Then a firm defending insurance companies. And one afternoon I found myself taking the deposition of a woman whose father had died in a nursing home. My job, the thing I was being paid to do that day, was to catch her in a lie. To find some way to discredit her, so that my client, a large insurer, would not have to pay. I lasted about six months. Then I quit, and I went back to the only side of the room that ever made sense to me.

Here's where it got serious for me. In DUI cases the most powerful thing in the room is the number. The number off the machine. And almost nobody was checking the number either. Prosecutors trusted it because it came printed on official letterhead. Defense lawyers mostly didn't challenge it, because they didn't really understand it, and it is very hard to cross examine something you don't understand.

Official and correct are two different words that happen to look alike.

That bothered me enough to do something about it. Most lawyers who challenge a breath or a blood test are challenging something they can't actually explain. They read a summary, they hire an expert, and they hope. I didn't want to hope. I wanted to know.

So I went to Chicago and did the hands-on forensic program at Axion Analytical Labs. That meant standing at a bench in a lab coat running gas chromatographs myself, preparing and injecting real samples, reading the raw data as it came off the instrument. Not watching somebody do it. Doing it. That's where the Forensic Lawyer Scientist designation comes from, through the Chemistry and the Law Division of the American Chemical Society.

Then I went and took the officer's training too, because a DUI case doesn't start in a lab, it starts on the shoulder of a road. I did the NHTSA field sobriety courses. Both of them. The practitioner course, which is what qualifies an officer to give the roadside exercises, and the instructor course, which means NHTSA recognizes me to teach it to them.

Which brings me back to that courtroom.

She was facing her second DUI in five years, and in Florida that puts real jail on the table. She'd refused the breath test, so there was no number to wave at anybody. What the prosecution had was an officer, and that officer's best evidence was her eyes. Nystagmus. The small involuntary jerking that the prosecution likes to call a sign of impairment.

Now, there are dozens of ordinary reasons for that jerking that have nothing to do with drinking. And my client had a lazy eye. Her eyes did not track together. That is the exact condition an officer is trained to screen for before he ever gives that test, because if the eyes don't track together the test doesn't mean what he thinks it means.

So I asked him to define it. He couldn't. I asked if he was an ophthalmologist. He wasn't. A doctor of any kind. No. I asked whether he could rule out, medically, that the jerking came from anything other than alcohol.

He could not.

As it happened, there was an emergency room surgeon sitting on that jury. A man who knows exactly how an eye works. The jury was out less than twenty minutes.

I don't tell you that to promise anybody the same ending. Most cases don't end that way. I tell it because nothing magic happened in that room. No brilliant speech. The case turned on one person having gone and learned what that eye movement actually is, so that when the government's own witness said it proved impairment, somebody could ask him how he knew.

That's the whole thing. That's the plane, and the red dirt, and the bar books, and the lab coat, and the guy on the stand who couldn't define a lazy eye. It's all one idea. Somebody in the room has to be the one who checks, and if you don't do it, there's a decent chance nobody will.

And I owe a lot of people for all of it. Kelsey, who got me on that plane. Tony, the leather jacket and the cowboy boots and the animal analogies. Joe Koos, who taught me what attention to detail actually looks like when somebody's life is sitting on it. And a lot more people than that, who you'll hear about as we go, because none of this was done alone.

And I'll tell you what actually made me able to do it, because it isn't the credentials. I started out an introverted nerd. The travel forced me out of my shell. Years of it, living out of a backpack, landing somewhere I didn't know anybody, learning how to talk to people from every walk of life there is. That's the whole skill. It's why I could hear a dialect instead of a slur. It's why I could see a performer instead of a patient. You can't check the official story about somebody until you know enough about them to notice it's wrong. Gerry Spence said it long before I could have. You have to be able to put yourself in your client's shoes. You have to keep it real and stay who you actually are, because trial work runs entirely on credibility, with a jury and with the person sitting next to you, and nobody can fake that for very long. That's what made me the lawyer I am.

And this is nowhere close to all of it. I've got a lot more stories from those years and from everything after, and I'll be telling them here as we go. But next week we take the eyes apart properly. Horizontal gaze nystagmus, argued both directions, as hard as I can argue each one, because it's a much better fight than either side usually admits.

I'm Rory Safir. Take care of yourself, and take care of your clients.