The Sound of Magic

Kevin Underhill at Lowering the Bar has a knack for finding the odd, the peculiar, the humorous in the law, which I enjoy as much as the next guy.  One of his latest is the speeding case of Daniel Freitag, whose initial conviction for speeding in West Salem, Ohio, was reversed because it was based on the erroneous introduction of radar evidence.

The case was remanded, however, because the radar evidence, from a Genesis gun that only provides a valid reading when stationary, was only one basis for the ticket.  The officer, Ken Roth, had another.

“As it approached,” [Roth] testified, “I could hear the vehicle on the roadway, which based on my training and experience it is [sic] consistent with a vehicle that was in excess of the posted speed limit.”  Roth said he had learned to “audibly determine if a vehicle was speeding” as part of his field training several years before, although he did not identify the sensei who taught him this skill or how, exactly, he was trained to do it. 

Funny?  You bet.  Absurd?  Obviously.  A problem?  Well, not nearly as much as one might think.  Freitag was convicted of speeding based on this testimony, that the officer had ear training and could hear the speed of a car. 

On his second appeal, Freitag prevailed.

The weight of the evidence does not support the conclusion that Freitag was exceeding the posted speed limit, specifically because Patrolman Roth’s testimony that he audibly and visibly determined that Freitag was speeding is not credible. . . . It is simply incredible, in the absence of reliable scientific, technical, or other specialized information, to believe that one could hear an unidentified vehicle ‘speeding’ . . . . In addition, although he admitted that there was another vehicle on the roadway and traveling the same direction as Freitag’s at the time, the officer did not explain why he could hear and distinguish Freitag’s vehicle, while he could not even hear the other traffic. . . . A thorough review of the record compels this Court to conclude that the trier of fact lost its way and committed a manifest miscarriage of justice in convicting Freitag of speeding.
So justice was done, and we all get to go home happy, right?  Another ridiculous decision, eventually righted on appeal.  Mind you, the Court of Appeals for the Ninth Judicial Circuit took ten pages to reverse, with one judge dissenting. The court remanded the case. The court did not hold that the officer’s testimony that he could discern that a car was speeding based upon sound is ridiculous, absurd or outrageous, but that the prosecution failed to provide adequate evidence of the officer’s training to qualify him as an expert in the sound of speeding.

The initial appeal, like the second, resulted in remand, despite the fact that the case was tried and the evidence was on the table.  Roth had two claims in addition to the failed radar: That he could visibly tell the car was speeding by watching it in his rear view mirror as he was driving, without observing the vehicle in relation to a stationary object.  A great deal is known about visual observation of a speeding vehicle. It can be done with training and practice, but for it to be accepted as evidence, it requires that the speed of a vehicle be measured against a stationary object.  Otherwise, it’s invalid.

Roth’s second claim was the ability to hear that the car was speeding.  There was another car on the road as well, but he claimed that he couldn’t hear that car.  In addition, the car was behind him, traveling in the same direction. 

So the radar evidence was out, the visual evidence didn’t have a chance, and the prosecution was left with the audibility claim.  And on the first appeal, with all of this known, the case was remanded.  At the second trial, the judge found the officer credible as to his ability to determine speed by sound and convicted.  The appeals court again reversed, but again remanded to give the prosecution the opportunity to prove his expertise.  This isn’t funny at all.

Implicit throughout this misbegotten case is the belief that police possess some sort of magic that the rest of the world lacks.  Had Patrolman Roth given the name of his instructor and some details of his training in audible speed detection, there would be a very good chance that the conviction would have been upheld.  There may still be such a chance on the next appeal.

There is no magic.  Police officers do not possess magical powers that allow them to defy the rules of nature or physics.  No one can tell the speed of a car by sound.  No one.  This doesn’t change because they did their police training at Hogwarts.  This doesn’t change because an officer testifies that he had an instructor teach him magic, with dates and details sufficient to give his testimony the imprimatur of reliability. 

The decision of the Court of Appeals should have been one sentence: Conviction reversed as unfounded and charge dismissed.  Every claim is not entitled to be proven, and given a second or third chance to be proven.  When the claim is facially impossible, that’s enough. 

Jeff Gamso, being an Ohio appeal’s maven, notes that part of the problem with this case is that the defendant and his wife proffered hyperbolic testimony in his defense.  They testified that guilt was impossible since Daniel Freitag never speeded.  Such testimony doesn’t sit well with judges.  Accordingly, Freitag seized defeat from the jaws of victory with his incredible testimony.  But as Jeff points out, the burden is on the prosecution to prove guilt, not the defendant to prove innocence.  While this concept eludes many, it shouldn’t present that much of an issue for a judge.

What distinguishes this case from those that are merely hysterically funny and ridiculous is that the police officers ability to do the impossible was taken seriously, not once but twice.  Do the Ohio courts really believe in magic?  How many other judges will blindly believe that police officers are capable of magic as well? 

17 comments on “The Sound of Magic

  1. Jameson Johnson

    I served for a decade in the United States Navy as an Aviation Anti-Submarine Warfare Operator for a little more than a decade. The principle that the deputy was more than likely referring to is Doppler shift. When a vehicle approaches, the audible frequency and volume rises, peaking at the closest point of approach. When the vehicle passes, the frequency and volume rapidly decreases. Here is the rub, though; as far as I know, there is no accurate way to estimate Doppler shift without the use of electronic equipment that turns audible input into a visual presentation.

    I’m glad the appellate court was able to discern the baloney in all of this. The speeding ticket is the least important part of this case. The fanciful testimony of the officer, and the trial court’s willingness to eat an apple with a worm in it is the cautionary tale for anyone who works criminal defense.

  2. SHG

    The key to the Doppler Effect is that sound waves become distorted as the source of the sound passes the receiver of the sound.  Being aware of this, I tried to note that the officer determined that the Freitag car sounded as if it was speeding without having passed the officer’s car, such that there was no Doppler Effect involved. I hope that was clear in the presentation of the facts.

  3. Dan

    I’ve always found police sense of smell to be the most amazing of their super powers, as it allows them to detect the odor of marijuana from just about anywhere.

  4. SHG

    Ah, smell.  That has long been one of my favorites as well.  Another magic power that is almost univerally accepted.

  5. Dan

    We need to get the folks running the police academies into our nations public schools. Apparently, under the methods used there, you can become an expert in anything and everything in about six months.

  6. Jdog

    The appeals court again reversed, but again remanded to give the prosecution the opportunity to prove his expertise.
    That’s where my fiction writer’s reflexes failed me. When I read the case before reading your blog entry, my eyes saw those words, but my mind dismissed them as obviously wrong.

    But, nope. Which means, I guess, that the prosecutor can go back for a third bite at the apple, only, this time, they’ve got to produce some testimony as to how Roth was trained to stop an earthquake with a sheep’s bladder determine what speeding sounds like.

    I’m trying to figure why the prosecutor would want to do that. If it’s just to amuse and irritate the blawgosphere, maybe he could take up juggling while doing a Gilber Gottfried impersonation.

  7. SHG

    After reading Kevin’s and Jeff’s posts, I too was surprised by the decision.  I had the impression that this was a bad joke, finally put to bed.  Both the dissent and remand came out of the blue.

    I really can’t stand Gilbert Gottfried.  I mean, really.

  8. Jeff Gamso

    Because the court couldn’t bring itself to admit Roth was either lying or deranged, it decided that maybe mystic hearing is the province of an expert. So Roth gets to prove he is.

    I’m kind of curious how far the prosecutor wants to go with this SPEEDING TICKET fergodssake. Personally, I’d like to be there for the Daubert hearing, which I sure hope would be done right.

    I favor expert witnesses all around. Might as well admit its a circus and try it like a circus act.

  9. John Neff

    If they rejected the doppler gun reading because the officer was in an approaching vehicle they should have also rejected his perception of the frequency shift of the sound when the two cars passed each other for the same reason.

  10. SHG

    You’ve got this all screwed up. They rejected the radar because the particular gun used only works from a stationary position, not a moving vehicle.  Nothing to do with doppler. Nothing to do with an approaching vehicle. There was no approaching vehicle. There was no passing of the two cars. There is no doppler effect involved WHATSOEVER.  Nothing. Zippo.zNada. No doppler. Forget you ever read the word. Did that clarify things for you?

  11. John Neff

    The article you linked to said the car was approaching the officer. There would be a frequency shift in the sound when the cars passed caused by the doppler effect due to the relative speed of the two vehicles. You need to review what you learned when you took physics.

  12. SHG

    The article (and the decision) also say that the car was behind the patrolman and he observed its headlights in his rearview mirror.  Approaching is an inexact word, and doesn’t necessarily mean from the other direction.

    Do you really think I need to review my physics?  No pass, no doppler. Want to keep pressing the point?

  13. John Neff

    If the officer was traveling at a speed of 70 mph and the subject’s car was overtaking him at 85 mph the relative speed was 15 mph and there would still be a doppler shift.

    My point was that the ear-brain can easily detect a doppler shift corresponding to a 15 mph relative speed but it has no way of compensating for the motion of the observer and for that reason the testimony should have been disallowed.

    The frequency difference between A and A sharp corresponds to a doppler speed of 45 mph.

  14. Lisa Smith

    I am a business owner and home owner in West Salem, Ohio. I myself have experienced first hand the incredible powers of Officer Roth who pulled me over for ” looping ” around West Salem . I was taking my 7th grade daughter and her friend to the subway at 10:30 pm to get a sandwich at the time. We found they were closed and did not stop. He pulled me over told me he seen me ” looping around the square “. I told him the last time I checked there was nothing illegal about looping around the square. He then proceeded to ask me if I was drinking and ask me to step out of the car. How embarrasing to me as I was in my PJ’s. After a number of field sobriety test, walking a line, touching my nose ect. He then proceeded to tell me I failed and I was drunk. He told me I could not drive I would have to leave the car parked and call for a ride. I proceeded to tell him he was an idiot!! I hadnt drank a drop of alcohol the entire day, or in the last 6 months if that matters. He once again told me I could not drive and needed to call for a ride. I proceeded to tell him that I was driving the car I have a license and have done nothing wrong. I then also had my office call the mayor of the town as I am standing in my PJ’s outside being humilated in front of my child and her friend. The mayor informed my office to have me come and see him tomorrow.I then proceeded to tell Mr. Roth just what a great officer he was to inform me I had failed a field sobriety test, that I was drinking, that I couldn’t drive and had to have someone pick me up, all while I am driving 2 children around in my vehicle. I insisted on a breathalizer to be done. he told me he would have to call for a State Highway Patrol to bring a machine to do that. I told him call them!! Then I ask the officer what West salem does not have one? He informed me they did in fact but it was in the other patrol car. I ask where the other patrol car was he informed me it was down at the garage. I told him I was glad he had prepared properly to do his job. I must say at this point I was fuming mad I even told the officer how uneducated he wasand he was an idiot!! at which point I am surprised I was not arrested for talking to him in such a manner. The State Highway Patrol showed up, tested me and the results were 0.000 Oh my!!! At which point he said you have a nice day and returned to his car. The next day I filed an official complaint. I am not sure that ever went anywhere except maybe the trash. I did receive a visit from the Chief of Police about a month later in which he informed me he was there in regards to my complaint and ” I could stop telling the police how to do their job”.I think if he would have informed me of the super powers that officer Roth possessed maybe I could have been more understanding. My father was a police officer.I must say this is humiliating to the profession. Let me add in the past year we have seen much improvement the Keystone Cops have left the village!

  15. SHG

    I did receive a visit from the Chief of Police about a month later in which he informed me he was there in regards to my complaint and ” I could stop telling the police how to do their job”.

    It’s not like you are a citizen, a taxpayer, a subject of Officer Roth’s extraordinary policing skills.  Police are above reproach.  Just ask them.

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