Monday, March 22

People Versus Bates

This is my best recollection of the Ennis Municipal Court trial of Reed Bates on three counts of impeding traffic in the evening of February 16, 2010. Specifically, the three counts relate to his travel along Highway 287. On this post, I request that comments be limited to asking for clarification or about events of that night that I have not related in this account. I will either respond to those comments, or update this post to make it as complete as possible, since this is a subject of interest to at least a few beyond my normal readership and because there was no formal record kept of the proceedings by the court.

COURT CONVENES
The participants and spectators were conducted into the courtroom shortly after 6PM, with the judge entering shortly afterwards. There were 12 candidate jurors to fill out the jury of six. The jurors were questioned to ensure none of them knew the defendant or any of the officers. No objections were made to the six selected and no particular motions about the trial were made by either prosecution or defense, nor did either party object to combining the three cases at hand. They were instructed that the prosecution needed to show guilt beyond a reasonable doubt and they were duly sworn in. The prosecution indicated they had four witnesses, and the defense indicated he had an expert witness. The witnesses were sworn in and left the courtroom except when each was later testifying. The defendant was charged with three counts of violating Texas Transportation Code Sec. 545.363. MINIMUM SPEED REGULATIONS. (a) An operator may not drive so slowly as to impede the normal and reasonable movement of traffic, except when reduced speed is necessary for safe operation or in compliance with law.

STEVE'S NOTE - To the best of my knowledge, the only observers were myself and the Ennis Police Chief. The courtroom was also the City Council Chamber.

OPENING STATEMENTS
The prosecutor stated that the defendant was guilty of impeding traffic; creating a hazard to himself and others that compelled police action. The defendant thanked everyone for coming and stated that he was riding safely and legally in accordance with law.

OFFICER WATSON TESTIFIES FOR THE PROSECUTION
Officer Watson testified as the arresting officer in the first and third count. In the case of the first count, a dashcam video without sound was shown. Officer Watson testified that he observed the defendant riding his bike in the right lane of Business 287 well before the traffic stop. He further testified that he felt it necessary to make contact with the defendant when a shoulder appeared, at which point, impedance had occurred.

The defendant questioned Officer Watson extensively, and Officer Watson indicated he had little familiarity with bicycle law or bicycling. He estimated that the defendant was travelling 5-8mph at the time of the stop.

STEVE'S NOTE - I was surprised to hear the officer quote from an obsolete version of the law prior to the 14 foot narrow lane exception. The defendant had him read from the current version and the officer indicated the two did not match. The defendant appeared to me to be very surprised to hear the officer claim that impedance occurred when the shoulder appreared and he did not take it, and attempted to get the officer to admit that the law does not require shoulder use by a cyclist. The jury was left to their own devices by the judge as to what to make of all this. BTW, the defendant was going roughly 12-15mph before the stop in my own estimation. He definitely was NOT proceeding at 5-8mph.

Then Officer Watson testified about the third count. Another dashcam video was shown. In the second video, it was raining and it was difficult to see what was actually going on before the cyclists pulled over, other than an 18 wheeler passed him. In this case, Officer Watson indicated that the defendant needed to be taken to jail to keep him from reoffending.

The defendant continued the line of questioning on the third count. The officer repeatedly stated he had little familiarity with cycling but that the defendant was creating a hazard.

STEVE'S NOTE - I felt the judge and jury were starting to get impatient after the discussion about the first count. It was difficult to see the cyclist in the video and I completely failed to notice a pickup with flashers I was told was in the video. Also, upon recollection, I grow foggy as to whether the rain and 18 wheeler were in the second video that Officer Watson testified about or in the third video (second count) that Officer Hudson testified about below. Either way, both the second and third count were on the higher speed portion of Highway 287.

OFFICER HUDSON TESTIFIES FOR THE PROSECUTION
After the conclusion of Officer Watson's testimony, Officer Hudson testified about the second count. In it, he indicated they'd received calls and that he saw the defendant as he departed Ennis, bound for Waxahachie. The stop was made on his return from Waxahachie. In the dashcam video shown to the jury, the defendant is suffering from cramps after he pulled over and Officer Hudson is clearly concerned.

In questioning, Officer Hudson expressed his concern for the defendant's safety and indicated he had a friend that cycled on the highway but on the shoulder. Officer Hudson also indicated he didn't deal with cyclist law or cycling citations other than infrequently.

After the close of questioning of Officer Hudson, the prosecutor requested release of Sgt Pillow as a witness and she was excused. At this point, the prosecution rested.

STEVE'S NOTE - I felt that the sympathetic nature of Officer Hudson badly hurt the defense and greatly enhanced his credibility. It further hurt, since he was the final witness for the prosecution.


PM SUMMER TESTIFIES FOR THE DEFENSE
The Expert Witness for the Defense, Mr PM Summer, Sans Hat
In response to questions, PM related his qualifications and why the impedance statute shouldn't apply in the case at hand. He also discussed the relative safety of riding in the lane versus on the shoulder. A question that mentioned Oregon in an attempt to establish the uniformity of traffic law was met with objections on grounds of relevance by the prosecutor since this case was being tried in Texas and not Oregon. The objection was upheld.

The prosecutor focused primarily on the impedance, attempting to get PM to admit that cyclists could impede motorists on a four lane road. The prosecutor used some terms such as "swerving around" in his questioning.

STEVE'S NOTE - I felt PM did a very good job, but also that his testimony went in one ear and out the other of each of the jurors. The prosecutor almost elicited sympathy from the jury for the defendant when he went after PM on the impedance, but I think he realized it and abruptly stopped after coming up with an example of a cyclist riding on the dashed line between lanes. Personally, I found PM's testimony compelling and fascinating. I'd not heard about cyclists mostly getting sideswiped on the highway shoulder, though it makes perfect sense. OTOH, I wasn't on the jury.

With respect to the "swerving," I saw no swerving in any of the three dashcam videos. I did see one SUV hit his brakes before changing lanes to pass the defendant in the first video. The place where the brake application took place was prior to the appearance of the shoulder in a 30mph zone and was not mentioned as a contributory factor to the stop by Officer Watson.

DEFENSE VIDEO SHOWN
The defendant asked to show the Keri Caffrey highway riding video. The prosecutor objected to admitting a video made outside Texas. After some discussion, the defendant was allowed to show part of the video, and the jury was instructed that the video represented how another jurisdiction viewed things, and that they could consider and weigh it in that light. The portion of the video was that where the cyclist was passed while riding in the lane. The shoulder riding portion of the video was not shown.

Defense Video, Shot by CommuteOrlando. The Shoulder Riding Portion was not Shown at Trial

STEVE'S NOTE - I was shocked at how different the video looked in the courtroom than when viewed online on a computer monitor. The cyclist looked like a tiny speck and was difficult to see when viewed from the windshield perspective. I suspect the jury mostly wondered why this was going on and probably did not consider it in any way. It was clear by this point that any mention of any jurisdiction outside Texas would be met with vigorous objections by the prosecutor and that his objections would likely be upheld.

DEFENDANT TESTIFIES
Reed Bates reviewed why he felt he was riding in accordance with Texas law and why riding in the lane was the safest way to operate. He reviewed the applicable statutes that entitled him to do so.

Upon questioning by the prosecutor, the prosecutor appeared surprised to hear that Reed had never been cited for any cycling offense prior to these Ennis cases.

The Defendant, Reed Bates, and also the Defense Counsel
STEVE'S NOTE - It appeared to me that by this point, the judge and jury were all just waiting for this to get over. I believe that the defendant also sensed impatience by the court and apologized for taking time.

CLOSING STATEMENTS
The prosecutor stated that the citations were made because the defendant was impeding traffic and endangering himself and others. The defendant stated he was riding safely and legally.

CASE GOES TO THE JURY
The judge instructed the jury that they were there to answer the question of whether the defendant committed the following offense:
An operator of a bicycle commits the offense of FAILURE TO OBEY MINIMUM
SPEED REGULATIONS (IMPEDING TRAFFIC) if the operator of a bicycle drives so slowly
on a public road as to impede the normal and reasonable movement of traffic.

He also instructed them that, if they found the defendant guilty, that they were to assess the fine, not to exceed $200. The jury went to the jury room shortly after 8PM.

VERDICT AND WRAPUP
Another Slow Moving Vehicle, from Wikipedia
After deliberation of about a half hour, the jury returned a verdict. They found the defendant guilty of the first count and assessed a $25 fine. They found the defendant guilty of the second count and assessed a $100 fine. They found the defendant guilty of the third count and assessed a $200 fine.

The judge informed the defendant of what he had to do in order to appeal and also indicated that arrangements could be made to pay costs depending on his circumstances.

About a week after the case concluded, it was found that the trial was not a "court of record." As I understand it, it not being a court of record, the process for appeal involves a complete rehearing of the case. Also, as I understand it, this will take place in the County Seat of Waxahachie, rather than in the Ennis Court.

STEVE'S NOTE - In various forums and such, I have seen assertions about the conditions and such of the trial. I feel it is somewhat misleading to claim that Reed did not assert that slow vehicles should have a right to the road by virtue of the law. He did, but it was one of many claims made by the defense and may have been missed by the jury. It is also misleading to talk about the width of the improved shoulder or road as a factor. No witness for the prosecution claimed any particular width for the shoulder, nor that any particular width or condition made the failure to use the shoulder a criminal offense. The only assertion about road width came during defense questioning of Officer Watson, who declined to estimate the lane width in the first traffic stop. He did admit, however, that he would not argue with an estimate that the lane width was less than 14 feet. In my estimation, the right-hand traffic lane in each stop was roughly 12 feet. I do know that Mr Bates states he has since requested an official lane width in each count from the Ennis City Engineer. I do not have a copy of that document, but have no reason to believe it indicates that any of the lanes were 14 feet or wider.

On the day of the trial, I drove Highway 287 from Waxahachie to Ennis. I drove the speed limit. During that fourteen mile distance, I passed two cars and was passed by eleven motor vehicles. For most of the distance, the shoulder was typical of such a rural highway, with a moderate amount of debris, and an occasional left turn, driveway, or motor vehicle stopped on the shoulder. Sight distance along the road was uniformly excellent, and the speed limit was 65mph for most of the distance. When I exited to drive to the Ennis Municipal Building, the speed limit dropped as I drove along Business 287. I did not keep track of passing statistics while in Ennis, nor note exactly where and how the speed limit dropped. At that point, I was looking for Reed, noting the library which represents his current source of Internet access, and a few cycling scofflaws riding against traffic and shooting off sidewalks.

UPDATE on Tuesday
No, there was no court reporter. There was a court clerk, but she was not busily typing away. My presumption at the time that everything was being recorded turned out not to be true. Unfortunately, my iPhone batteries were lower than optimal so I elected not to try to record things. Besides, I had no dispensation to do so.

From items I read on various forums and such:
In all three of the traffic cam videos, the defendant was riding more or less in the center of the lane. Despite Reed's claims, he was NOT riding towards the left side of the lane. Not that it would have been relevant to the charge in court, regardless of where in the lane he'd been riding. Also, I read in more than one place that he received several warnings prior to his first citation. I do NOT believe that is correct, and no witness so claimed, though I also believe it would not have mattered much. Reed is determined to ride in the way he feels is safe and legal, regardless of what might be popular. In other situations, I HAVE observed him, for example, ride in a bike lane (I really wish I'd taken a photo!). I have also heard claims about the volume of 911 calls. Reed indicated to me that he requested the 911 logs and has not received them. While I don't doubt that 911 calls about him were made, it would be presumptuous, in the absence of any actual evidence, to conclude whether there were one, two, or a thousand 911 calls made, nor to presume what the 911 dispatcher(s) might have told any callers about the rights of cyclists to ride in the roadway rather than the shoulder. Certainly I heard no specific claims about 911 calls during the trial and even the passing references do not stand out at all  in my memory.

STEVE'S NOTE - There are two practical roads to ride between Waxahachie and Ennis. One is Highway 287. The other is Farm-to-Market Road 879. The first is mostly a divided four lane road with a 65mph speed limit, excellent sight lines, and pretty smooth pavement. The second is mostly a rough two lane road (leading to "ChipSeal's" moniker) with a 55mph speed limit, sharp corners, and double yellow "no passing" lines. The first has the shoulder which, in my personal opinion, is what led to the citations. The second has no shoulder. Use Google Maps for "ennis, tx" and then go to street view. Not having ridden the roads myself, I can't say which my own preferred route would be, but the choices ARE few and none of them are without their own particular problems. If there is a third practical choice, please so indicate in the comments. I have NOT driven down FM 879, though I HAVE driven down FM 1722 and Hwy 287.

26 comments:

Rantwick said...

Hey, thanks for the nice level of detail. It was nice to get a more complete picture.

cafiend said...

Kind of scary.

Keri said...

Excellent report! Thanks!

I agree about the how the video translates from the web-embed screen to a big screen. Next time I do dash cam video I will use an HD camcorder. The VIO was inadequate in both lens degree and resolution.

Joe K said...

Steve,

Thank you for taking the time to do this and for your most helpful notes.

Chuck Davis said...

No Court reporter?

Chuck Davis
Tulsa

Steve A said...

Update on Tuesday based on comments and forums discussing the subject.

Ham said...

For clarification, where exactly was the kangaroo standing ?

Ed Sailland said...

A very helpful summary, Steve. You note that P M Summer "related his qualifications" as an expert witness before giving evidence. Can you remember what he said in this regard?

I'm also interested in Summer's testimony to the effect that "cyclists mostly [get] sideswiped on the highway shoulder." Can you recall Summer's evidence bearing on this point in greater detail (e.g., statistics, source(s) of data, and the like)?

Thanks.

Yokota Fritz said...

It seems the defense tried to appeal to the intelligence of the jury, when an emotional appeal might have worked better? Props to PM for providing his expertise for Chipseal, but it appears the jury paid no attention to it.

The video makes sense for cycling trivia nuts like you and I, but for the everyday jury of my peers it's probably completely irrelevant. Know your audience and modify the message for that audience.

Steve A said...

I would not argue with Yokota's assessment which also explains Ham's observation.

Steve A said...

Ed, after I heard PM say "Senior Transportation Planner" my next recollection was the judge wanting to get to the real questions. The witness did not go beyond his "most" statement and nobody but me seemed to want to hear more details. Since then, I've discovered there ARE more details. CDC/DOT to be specific. Assuming this storm goes away and my real Internet comes back, I'll do a post on it, probably over the weekend. What can I say, I'm an engineer and like to dig through data firsthand, without someone interpreting it to suit an agenda. Still, I WAS struck by PM's statement, because it tracks with all those URBAN new stories that show a car with a little RH damage and a bike with an undamaged rear wheel. As we all know, however, urban and rural do not always match up. Stay tuned. I'm REALLY glad that question got asked!

Steve A said...

Ed S, a question back at ya. Do you have recollections of the way club riders rode on the road 20-30 years ago compared to today?

stu42j said...

Did the judge specifically instruct the jury to ignore the "except when reduced speed is necessary for safe operation"? Or did he simply leave it out?

Steve A said...

Stu42j, he did not instruct the jury to ignore the "except" part. He left it out. The instructions were precisely as in the "case goes to the jury" paragraph. That part is word-for-word.

I do not think the jury would have concluded that Reed was proceeding at a "reduced speed" since he was going as fast for him as was possible. The ones that might (if they weren't paying attention) have to operate at reduced speed for safe operation were motorists coming up from behind. In the fact, few motorists really had to actually reduce their speed to operate safely.

I paid an UNUSUAL amount of attention to traffic interruptions, both in the right lane and on the shoulder on the way home (on I-45) that night. Invariably, both I and the other traffic moved into the left lane a half mile before we came upon the actual interruption. This was mostly true even for POTENTIAL interruptions such as on ramps. Prudent users of the road (motorized or not), take advantage of the space available in a given traffic situation to minimize risk.

Chuck Davis said...

Has an appeal been filed?

Has Bates hired an attorney yet?

Chuck Davis
Tulsa

Steve A said...

The trial will be reheld; moved to the County Seat. Appeals will depend on the outcome of that trial. Reed has an attorney.

ChipSeal said...

Hwy 879 is a two lane with 10 foot lanes and copious amounts of chip-seal as well as other hazards like parallel to traffic flow cracks. It is exactly like FM 1722, but with higher volumes of traffic. Photos of FM 1722 can be found in the early posts on my blog.

It is my opinion that Steve has sheltered me from some due criticism. I am clear on the law, amateurish when needing to make an emotional appeal. The prosecution blundered at least twice, and I failed to press my case to take advantage.

Taking caution from the Wooley case in California, and thinking it was a “court of record”, I spent time examining my accusers to get as many facts as possible into the “record”. But because the three events were combined into one trial, it was too much for the jury.

I have filed for appeal under the direction of legal counsel. The trial date has not yet been set.

I am sending out individual thank you letters to all who have so far contributed money to the cause.

danc said...

Steve A: Thanks for the account.

Chip faced three counts in courts but didn't law enforcement "change the counts" once or twice? How common is that? Dreaming up counts on the way to the judge?

Pleasantly surprised the Judge didn't throw "Mythbusters on Highway 535" out entirely. I wonder why PM didn’t consider the Dallas videos? Mythbusters is more appropriate to busting "impedance" but "Seven Fold" shows cyclist using lane control in Texas.

http://cycledallas.blogspot.com/2009/03/dallas-run-seven-fold-revelation.html

Just a thought.

Steve A said...

Danc, good to see you! I'm honored. The LEO was initially somewhat confused about what to charge Chip with. In the three Ennis counts, however, all were "Impeding Traffic" and that is what was tried in court. MOST of the confusion within Ennis was involved with the exact statutes and how they related to other laws involving cyclists. Go to

http://chipsea.blogspot.com/2009/10/nice-meeting-you-officer-watson.html

and then proceed forward through the archives for a better perspective. I'll suggest to Eliot that he do something to make this easier at the Chipseal info site.

OTOH, the (still to this date) SINGLE Ellis COUNTY charge was much more confused. That was initally listed as riding a bike on the road and then got changed at least twice afterwards. At one point, it looked like a charge that could have landed Chip in jail for up to 180 days and abandoned the traffic code entirely!

Regardless of what I might personally think of the Ennis PD, I think the objective evidence has them ahead of the Ellis County guys at the moment. It would be nice if ALL of the LE guys could get a quality briefing on bike law and what it means in the case of Chip. In the long run, it could make things simpler for everyone.

Steve A said...

Video - Mythbusters addressed the specific situation that Chip was on trial for, and it was shot WITH that situation in mind. On the other hand, if I'd have been the prosecutor, I'd have really ripped into any showing of "Seven Fold." In the first place, it didn't show a relevant high speed road with a shoulder. In the second place, review that video, particularly 1:04 into the top video. I would not choose to show cyclists blowing a stop sign in a vehicular manner in a court of law. I had to watch that portion of the video several added times because I could not believe what I was seeing!

Mythbusters, as a trial video in Texas, had two fatal flaws. One, it was not shot IN Texas, though an identical video could easily have been done anywhere in the US by someone with the same equipment. The second flaw with Mythbusters was that it did not consider how the cyclist would look to a jury sitting twelve to fourteen feet away, watching it on a 19" screen. The cyclist looked like a speck of dust on the TV screen. Keri noted that lesson and would likely prefer a different lens in order to show smaller objects more as the human eye would see them if the same video were being shot today.

Ed Sailland said...

My apologies for the tardy response, Steve. In answer to your question, I've no idea how "club riders rode…20-30 years ago [as] compared to today." There must be plenty of folks who do, though.

Changing tack now, I'm really looking forward to your summary of the CDC/DOT data. But if time presses -- and when does it not? -- I'd be happy with the source citations alone. I'd still like to know P M Summer's claim to special expertise in this area, too. Perhaps he'd be good enough to shed some light on the matter himself.

Cheers!

Ed Sailland said...

A quick follow-up to my recent note, Steve -- and more questions, I'm afraid. I'm finding Reed Bate' legal embroilments a bit hard to disentangle. I take it that he still has an outstanding charge to answer in county court. Is this correct?

I'm also puzzled by the outcome of the Municipal Court trial. Has that verdict now been set aside and a retrial in a court of record ordered? (And if so, on what basis was the original verdict nullified?) Or is the judgment of the trial court simply being appealed? (And again, if THIS is the case, what are the grounds for the appeal? A point of law presumably, since appeal courts seldom revisit trial courts' findings of fact -- but that seems at variance much of what I've read above.)

As you can see, my confusion is nearly total. Can you -- or anyone else, for that matter -- dispel the fog surrounding Bates' labyrinthine legal misadventures?

Thanks!

Steve A said...

Ed S, I can understand your confusion. I may share it to some degree, but here's what I believe is the case (no pun intended).

WRT to County Court, I believe you are correct, and Bates has posted about that in his blog for added details. As far as I know, there is not a trial date for that charge at present.

WRT Municipal Court - as I understand it, when someone wants to appeal the decision and it is NOT a court of record, the procedure is to simply rehear the case. ALSO, as I understand it, the biggest factor in whether or not a traffic case IS part of a court of record is whether a proper transcript was made. If not, an appeals court would have no way to proceed. Most traffic cases don't get appealed, so you can see that making fancy transcripts would mostly be a waste of taxpayer or defendant money. Agree with him or disagree with him, the Bates case is far different than the usual "driving 75 in a 65 zone" case. I think it is safe to presume that the rehearing will include a proper transcript. As I understand it, the rehearing will be in Waxahachie, where the facilities and support are better set up to handle such things, but I do not what date on which that hearing will occur.

I hope this clarifies things for you, and also for others that are also thinking this is wending its way up to the US Supreme Court. The first step is to get a trial in which there is a proper record. I guess I'd have to say that the verdict was not set aside, but it cannot be affirmed or reversed by the appeals process since nobody can say exactly what happened to result in that verdict. My own account is probably the closest thing to "official proceedings" that will ever exist and that's one reason I wrote it.

Please do not interpret any of the above as any dig OR kudos on Ennis or Ellis County - I've noticed that people seem to be reading all sorts of things into my words lately. The rehearing and trial move have NOTHING to do with the quality of justice IN Ennis. That's just the way things get done. It would be different if the events had taken place in Tarrant or Dallas Counties.

Steve A said...

One added point. I presume, but do not know for certain, that the results of the rehearing could then by appealed by whichever party loses, or possibly by both if there are acquittals on some charges and convictions on others.

It is entirely possible that Reed could win on all counts, and then have the result vacated on appeal from the City of Ennis. A lot of people forget that our justice system is not designed to be simple.

Ed Sailland said...

Thanks, Steve. Your time and trouble are much appreciated. The fog is lifting.

Cheers!

Chuck Davis said...

As a very general rule executions/enforcements of judgements that are appealed are stayed pending the outcome of the appeal

And again as a very general rule, the fact of an appeal being made **may** not necessarily mean as in this case that a new trial will be held

It generally is incumbent on the party winning at trial (the City in this case) to do "something", in this case maybe asking for a hearing; at the District Court level, that jurisdiction may not have any interest in trying/hearing the case

Generally, double jeopardy, would prevent the City for filing an appeal and trying Bates again on the same charge

It might be that if the City saw a real chance of loosing at the District Court level they might just "blow off" the appeal

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