F. Inside Stories Of “Chun” Litigation (F1-F7)

F-1. My participation increased the morale of defense team: the defense felt as if “they can win”.

I became involved in this “Chun” litigation in March, 2006. Before I participated, I encountered a defense attorney in court who was involved in the litigation. I asked him, “How is Chun going?” He said, “Oh, we have been getting killed by the State! We do not know what to do. I just hope that we will not be too embarrassed about the results.” Defense counsel who were in the litigation were overwhelmed by the amount of discovery and technical complexity of the information. As soon as I entered this litigation, they felt like “they can win”. Soon after I received all the discovery, I consulted a statistical consultant. The statistician started looking into both paper and digital discovery. The statistician looked into the digital format of defendants’ data and immediately raised issues. She prepared me to formulate the legal documents that helped this litigation so much. My decision to employ her professional skills and knowledge was one of the keys to this successful outcome. My presentation prepared by statistical consultant’s work changed the entire atmosphere of this litigation as mentioned below.

F-2. I changed the dynamic of the direction of the litigation.

Between the last two management conferences in which I participated, I totally changed the dynamics of this litigation. I prepared a lot of legal documents to inquire of the State about complex but essential information in discovery. The discovery format of an Alcotest 7110 is a lot different than that of a Breathalyzer. Not only does it look different on paper, the contents and the information can be substantially different. For example, an Alcotest 7110 has a capability of storing defendants’ data in the Microsoft Excel format. These data sometimes give you more insights and information than the hardcopies. My statistical consultant, Ms. Kambara, assisted me to interpret this new type of data and prepare additional discovery requests. I was successful at this in these two management conferences. During the conferences, defense counsel were supporting my argument, and the State’s attorneys started admitting things that were not revealed before. Counsel patted my back and, said “Good Job!” and gave me a sign of thumbs up. I changed the dynamics of this litigation right before the hearings started.

F-3. I formulated the “brilliant” defense strategy.

Soon after the last management conference, defense counsel had a meeting. All of them admired and appreciated what I did in the management conference. One counsel said, “You know, now I feel like we can win.” As an attorney who does a lot of DWI defense cases, I was thinking about why the previous landmark DWI cases in New Jersey such as State v. Downie and State v. Foley did not yield very good results. That is when my idea came out. I shared my defense strategy with other defense counsel. After they heard my planned strategy, a few counsel said, “That’s brilliant!” Since then, all the defense counsel went along with my strategy. That’s why State v. Chun, et al. yielded such remarkable results that were not seen before in DWI legal history in New Jersey.

You can see my great contribution on the record. From a transcript of the Court’s record of a summation at the close of the hearings (68T, 1/9/07 AM):

“The architect of the actual plan in this case was Mr. Baffuto. He deserves enormous credit for that.”

F-4. I volunteered to lead the cross-examination of the State’s most formidable witness, a bio-statistician.

It was after I cross-examined a State’s expert witness, a bio-statistician, that the tide began to turn in the expert witness hearings. Before the hearings started, no other defense counsel wanted to cross-examine this statistician. Attorneys usually do not have a good background in statistics, and cross-examining such an expert can be intimidating. All defense counsel said, “Sure, Bart. You take the statistician, no problem!” I prepared my questions with my statistical consultant, Ms. Kambara, and she did superbly in preparing me to attack his statistical methodology. The State’s statistician did not expect such high level questions and such an attack from a DWI attorney. He looked worried, tired, and then exhausted when I was asking him questions. I did so well that the State’s statistician started giving us information that was not revealed before which was crucial to this litigation. From my cross-examining him, the defense hit its stride and later State’s experts were more compliant. Typically, other defense counsel who were not eager before to question a statistician suddenly wanted their turn after they saw how well I did on him!!!

I cross-examined all of the State’s witnesses, and developed key evidence against the State’s unsupported claims for the Alcotest 7110.

F-5. I convinced the Court to recognize that the alcohol detection machine was designed only for law enforcement purposes in a closing summation. I also clarified some scientific issues and convinced the Court of the importance of having a feature of breath temperature measurement for more accuracy.

This is my argument in the closing summation:

MR. BAFFUTO: “… The State has no business and the State doesn’t care if alcohol’s in the legs. They don’t care if it’s in the lungs. The State’s public interest—the statute is directed at the evil of alcohol that’s affecting the brain, and then of course, all the controversy and the herein complexities of breath testing comes down to how do we best approximate that in a scientific way and in a way that’s consistent with due process and the State’s burden of proof? As to breath temperature, the problem is that for a subject with a higher breath temperature or for the average person who is almost at 35 degrees Celsius in terms of their end breath temperature where 34 is assumed and the machine is calibrated with the assumption of the 34 degrees for the average person’s breath temperature, the increased pressure from the extra heat, the extra degree, is forcing out more ethanol, but that—so it’s giving the machine more to read, but there isn’t any more in the body. There isn’t extra alcohol to be affecting the brain, but there is extra alcohol for the machine to read and that creates an inherent inaccuracy… ”
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MR. BAFFUTO: “… I agree, Judge, these machines were created only for law enforcement, but that’s not what they claim. They claim that they’re scientific.”

THE COURT: “Oh, I see, yes.”

(Transcripts: 69T, 1/9/07 PM)

F-6. The intensive fight lasted almost four months

The length and intensity of the litigation is unprecedented in the area of DWI.
Before the hearings started, the State of New Jersey probably did not expect that the defense would fight so hard for such a long time. The hearings started September 18, 2006 and lasted for about 14 weeks. Most weeks we participated in hearings from Monday to Thursday between 9:00 a.m. and to after 4:00 p.m. every day. The hearings were originally projected to be completed by Thanksgiving week of 2006. The defense, however, did not give in easily. The defense fought a month longer than originally scheduled: the last day of expert’s testimony was on December 19, 2006. The closing arguments were completed on January 10, 2007. Since the hearings started, the defense fought almost four months at the Camden County Courthouse. The number of transcripts is over 8,000 pages. We all had to prepare highly technical and complex issues in order to cross-examine the State’s experts effectively and efficiently. There were occasions that discovery (State’s evidence) was not provided in advance as required. We stayed up late at night to go through as much paper as possible to prepare for the following day. The defense team often got together for the defense strategy after the end of the day. The defense attorneys had to try to maintain their day to day practices, which made life very difficult. All the defense attorneys, however, did not give up for a single moment no matter how much they were pressured. It was a long and exhausting fight but none of the defense attorneys gave up. Most of them including myself suffered significant income loss due to this litigation. Our work got so behind because we were in Camden Monday through Thursday, trying to appear in other courts on Friday. Many courts asked me to accommodate their cases on Friday, taking up almost all day on Friday. So I needed to catch up with my other work while I prepared for the “Chun” case on Saturdays and Sundays. Since the hearings started in September 2006, I had almost no weekends for myself. Needless to say, this involvement is absolutely free of charge: I did not get paid for engaging in this case. I am proud that I did this for the public to lead the strategy for a top-level defense effort to ensure truth and fairness in New Jersey DWI prosecutions.

F-7. Resource Difference Between the State and the Defense Was Evident.

Let us look at how many experts were involved in this case. Eleven experts were produced at the hearings by the State of New Jersey and only two experts testified in the Defense case. As indicated by the great difference in the number of experts, one of the biggest obstacles for the Defense throughout this litigation was the resource issue. It costs money to hire experts, and the defense, which consists of ordinary defendants charged with DWI, do not have the financial resources to retain top level experts to defend their case. Further, making a decision to hire which expert can be another difficulty when seven defense attorneys have different opinions and preferences. Unlike the Defense, however, the State had financial resources enough to retain eleven experts to testify at court.

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