Monday, January 24, 2011

Liquored-up Lawyer Leaves and Later Lies: Court Clears Conviction for Clone-like Charge

State v. Neisner, 2010 VT 112


A hit-and-run accident, a jury trial, convictions for “grossly negligent operation of a motor vehicle, leaving the scene of an accident, giving false information to a law enforcement authority, and impeding a public officer . . . .” Sound familiar? Faithful readers will note that the defendant here is the same person as the attorney-respondent in another recent case.

So let me begin by saying that alcoholism is a very serious problem. Substance abuse plagues our profession. It is not funny. Please also keep in mind that the respondent here—aside from this incident—has made very significant contributions in his community. Now that I’ve said that, let me proceed to make light of this very serious situation. As Don Williams, Jr. once said, “What I lack in decorum, I make up for with an absence of tact.”


“Ironic” is a good word to describe what happened to Melvin B. Neisner, Jr. the evening of September 22, 2007. Defendant was a Rutland-area attorney who also served as an acting traffic-court judge on occasion. That evening, he was driving alone from his home to his office, when he found himself behind two motorcycles on the Killington Access Road. Apparently, the motorcycles were not traveling fast enough and were hogging the road, so defendant passed them, possibly coming within eighteen inches of one of the motorcyclists. About ten seconds later, with no clear provocation, defendant braked. There was an impact, but it didn’t seem that hard (at least not to Neisner), so defendant continued on his merry way. 

The other motorcyclist—the one who didn’t have a close encounter of the painful kind with defendant’s vehicle—followed defendant and managed to get his license plate number. A few minutes later, defendant drove back past the scene, in the opposite direction. He did not stop. 

A Killington constable interviewed the motorcyclists, and the constable recognized the defendant’s license plate number. The constable waited until the assigned state trooper arrived at the scene and then went to defendant’s home. There, the constable met defendant and defendant’s wife. Defendant “looked nervous and disheveled.” Defendant’s car was damaged, and at one point, defendant’s wife told the constable, “‘I swear to God I wasn’t driving.’” The constable stepped outside to wait for the trooper. 

When the trooper arrived, defendant  told a fairy tale about his wife’s driving and tapping the brakes to deal with the two motorcycles tailgaiting them whilst defendant sat in the passenger seat. He remembered to look over his left shoulder while telling the officer that he couldn’t see how close the motorcyclists were when he looked behind. Defendant said that he had told his wife to leave, and he declined to swear to the truth of what he had told the trooper. Defendant and his wife took preliminary breath tests. Defendant blew a .123 and his wife blew zeros.

Though it seems the trooper smelled bovine excrement in defendant’s story—an eyewitness identified the driver as a man, and defendant was acting flaky—he nonetheless had to arrest and process defendant’s wife for leaving the scene of an accident.

Two days before an inquest (for which the respondent, his wife, and their two children were subpoenaed), respondent, along with his attorney, met with the state trooper and confessed that he had been, in my fiancĂ©e’s words, “the worst husband ever.” He admitted that he was driving and submitted a written statement.

Defendant was charged with multiple offenses. A jury convicted him of “grossly negligent operation of a motor vehicle, leaving the scene of an accident, giving false information to a law enforcement authority, and impeding a public officer.”

He appealed on several grounds, claiming that: (1) charging him with both false information to a law enforcement authority and impeding a public officer violates double jeopardy under Blockburger; (2) the sentence for the false information charge violated his constitutional right to remain silent; (3) there was insufficient evidence to support the impeding-an-officer charge; (4) the evidence supported a showing of only negligence, not gross negligence; and (5) the information was incomplete and vague, and omitted an essential element—leaving the scene of an accident.  The SCOV agreed on the first point, holding that the false-information and impeding charges were duplicative. The SCOV rejected defendant’s remaining contentions.

Joining us today is Yosemite Sam, noted legal scholar and adjunct professor of law here at SCOV Law School. Sam will be providing his unique brand of legal analysis and commentary for your edification.

Defendant’s first argument on appeal was the trial court erred in denying his pretrial motion to dismiss the false information charge‑—that the false information to a police officer and the impeding a public officer charge were comprised of the same essential elements, and that defendant was thus punished twice for the same offense. The SCOV agreed with defendant, reasoning that the act for which defendant was prosecuted—implicating his wife in the hit-and-run—was the same for both charges. Sam clarifies, “It’s like the gubmint saying a critter stole vegetables twice when the poor critter was gnawin’ on the same head of cabbage.” Sam further explains, “The SCOV said the critter already paid once for the head of cabbage. Blockburger ain’t some big cube of tasty critter meat. It’s the original cabbage-eating-critter case.”  

The SCOV vacated defendant’s conviction for giving false information to a police officer. Because defendant specifically appealed the non-dismissal of the false information charge, and because his next contention  attacked the sentence imposed, the SCOV moved on to defendant’s remaining contentions. “The sentence was udders on a bull at that point,” says Sam.

At the close of evidence, defendant moved for acquittal on the charges of grossly negligent operation, impeding an officer, and leaving the scene of an accident. Defendant argued that the evidence did not support a finding that he impeded an officer, and that the evidence did not support a finding of gross negligence.

“Trying to convince the SCOV there was insufficient evidence for a conviction is like trying to teach a pig to sing,” says Sam. “Just gonna frustrate you and annoy the critter.” The SCOV reasoned that defendant’s position—that the trooper should have known defendant was lying—was, you guessed it, slightly absurd. After all, the trooper arrested defendant’s wife. Defendant’s line of reasoning was that the investigation proceeded much as it would have absent his implication of his wife. “The SCOV warn’t buyin’ what he was sellin’,” explains Sam. 

The SCOV also reasoned that doing a brake-job on motorcyclists he had just passed was enough for a jury to find that defendant was grossly negligent. “And ya’ don’t need seven years of college to figger that one out,” says Sam.

Defendant’s final argument was that the information was semantically deficient. Specifically, defendant’s argument was that because the information omitted the word “immediately” (which appears in the statute under which defendant was charged) that there was ambiguity about what act supported the leaving-the-scene charge and that that ambiguity rendered the information invalid. The SCOV was not as confused as defendant. The SCOV noted that there was no honest ambiguity or confusion when the charge was read with the accompanying affidavit. The SCOV also noted that there was no real hindrance to the defendant’s preparation of his case. “That’s an argument only a gol-danged lawyer would make,” says Sam. “I’m too pathetic a critter to understand what they were sayin’ I done, but I’m wily enough to challenge it on appeal.”

My guess is that defendant will be sleeping on the couch for the foreseeable future. 

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