Saturday, September 22, 2012

The Long, Difficult Road to Imperfect Justice

Circuit Court Order to District Court
Motorists whose right to due process is discarded by District courts may need to file expensive appeals in order to have the details of their case heard.  Here is the tail of one defendant's long, but eventually successful, struggle to get citations issued by Forest Heights and Optotraffic dismissed in circuit court and vacate an incorrect district court ruling.

Some of our frequent readers may be familiar with the saga of Will Foreman of Eastover Auto.  A fleet of vehicles owned by Eastover Auto was issued a large number of speed camera citations by the Town of Forest Heights (with multiple vehicles operated by multiple drivers over many months).  Mr Foreman alleged, using time-distance calculations from the citations themselves, that the speed measurements recorded by Optotraffic's cameras were erroneous.

Mr Foreman had successfully challenged five of the citations up until April of 2011.  Then suddenly, Eastover Auto, and everyone else we were in contact with on the matter, mysteriously stopped receiving court dates for Forest Heights Speed camera citations for months.  Then, at the same time when Prince George's county announced the beginning of their speed camera program, Mr Foreman and others who had been waiting up to a year for hearings were finally awarded court dates in August of 2011.  And every one of them was found guilty.  In this case the judge refused to hear any arguments regarding the accuracy of the cameras, and Optotraffic argued that citation images cannot be used as evidence of speed.

Foreman had become one of those leading the charge against the alleged inaccuracy of Optotraffic's cameras.  After the ruling Optotraffic and their clients(notably including College Park) launched a PR campaign, with Optotraffic issuing press releases which attacked Mr. Foreman personally and claimed the verdicts proved the accuracy of Optotraffic's cameras.

Future hearings for Forest Heights had the same outcome for most defendants. One individual who's 40,000 lb RV had been accused of speeding while towing a car was found guilty, with the same judge accepting Optotraffic's argument that images could not be used to exonerate a defendant of speeding.  In another case an elderly defendant was thrown in jail for asserting his innocence in court.  Another judge brazenly stated that she would not hear any argument other than that another person was driving and to present that driver, and that no argument that the speed reading was incorrect would be considered.

Documents later released by the town of Cheverly proved that some Optotraffic cameras had experienced "False Triggers" and incorrect speed measurements.  However a court refused to admit this evidence (Even though the government is permitted to present evidence "without authentication" in speed camera hearings, according to the wording of state law).  StopBigBrotherMD.org also obtained a record from the town of New Carrollton confirming that this jurisdiction had also experienced a 'false trigger' event (see document).  This, in our opinion, proves beyond any doubt that some errors have occurred with these devices.  Forest Heights, on the other hand, refused to provide documents pertaining to possible or alleged camera errors in response to a Maryland Public Information Act request, even though they clearly had received such complaints at the time we made our requests.

Mr Foreman appealed several of his citations to circuit court.  He was required to pay the fines in advance, plus a $23 per ticket district court cost, plus a $80 PER CITATION fee for each citation being appealed.  This shows how economically impossible it would be to appeal every $40 citation issued by a speed camera program which has a systematic problem (which the state high court has stated is the only way for defendants to contest such issues).

Foreman attempted to subpoena documents from Forest Heights for his defense, but the town refused to provide any of the requested documents in court.  He also attempted to get the SHA to authenticate documents which he wanted to admit as evidenceForeman reported to us that the Maryland Attorney General's office advised the SHA not to cooperate with his requestThis demonstrates what we believe is yet another example of how the Attorney General's office (or as I refer to them 'The Department of Helping the Government Break the Law') has actively worked to limit the public's access to due process and has helped local governments in warp the rules regarding speed cameras.

John O'Connor testified on Behalf of Optotraffic that photos cannot be used to show speed: "We do not use photos that are taken at two independent times to estimate speed.  Why? Because it's inaccurate. You can't do it." and "The photo is actually just secondary evidence that the vehicle was there and it was in motion, that it was there at the time of the occurrence."  [ O'Connor has identified himself as "Director of the Law Institute of Maryland" in his linkedin page...  an organization which we could find no information for online other than a domain name registration which was opened on September 2011 and which recently expired.  He lists himself as formerly the "Program Manager Automated Speed Enforcement Program Seat Pleasant Police Department", a town whose speed cameras are run by Optotraffic.  That linkedin page also references the Optotraffic website (snapshot from 9/21/2012).  O'Connor reportedly gave similar testimony to this effect on Optotraffic's behalf at numerous hearings.]

This testimony seems to conflict with Optotraffic's own technical document, which states that their equipment is supposed to be able to verify speed: While the primary evidence for issuing a speeding citation is the calibrated Lane Sensor, the two photos provide the secondary evidence of speeding that is presented to the citation recipient.” and “Since a stationary object is present along with the vehicle, a photographic method also determines speed, guaranteeing fairness”. 

Standards set by the National Highway Traffic Safety Administration(NHTSA)  for 'across the road' police radar standards seem to confirm that images can, and should, be used to verify speed:
"2.18.2 Unattended Operation. If the ATR device is to be considered for unattended operation, the manufacturer shall provide a secondary method for verifying that the evidential recorded image properly identifies the target vehicle and reflects this vehicle’s true speed, as described in §5.18.2. This may be accomplished by means of a second, appropriately delayed image showing the target vehicle crossing a specified reference line."
    and
"5.17.2 Unattended Operation. Repeat the tests of §5.17.1.1, supplemented by the manufacturer’s secondary method for proving that the evidential image correctly identifies the offending vehicle and its speed.
"
Both DC and Montgomery County place white stripes on the road at camera sites to facilitate measuring 'the progression' of the vehicle, in order to conform to the NHTSA standard and (as Montgomery County stated) comply with state the law.

Mr Foreman's attorney argued that if images captures by Optotraffic cameras were not evidence of speed, then citations do not meet the statutory requirement of the law.  Transportation article 21-809 states that citations contain "a signed statement by a duly authorized law enforcement officer employed by or under contract with an agency that, based on inspection of recorded images, the motor vehicle was being operated in violation of this subtitle.".

We previously noted how there were 'tick marks' on the road at the Forest Heights speed camera site in question at one point, but that these markings were blotted out after people started reporting errors.  Optotraffic also removed the explicit "Delta Time: Time b/t photos" from their citations, which had been listed on photos prior to people reporting errors.   No explanation for that change to the timestamps was ever given publicly, nor did any of the several jurisdictions we inquired of provide any response as to why that was done.

Mr Foreman's case was dismissed.   Judge Northrop wrote: "The appeals were dismissed in favor of the Defendant Eastover Auto Supply", ordering all court costs to be refunded: READ COURT ORDER.  It was a long painful route to avoiding the 'admission of speeding' which the state high court has said paying a citation is.

But it was far from perfect justice.  Even though the Circuit court ordered the district court to refund all court costs which he had been required to pay after the initial district court hearing, Foreman reports that of 9/12/12 he still has received not refund for the district court fees.  "A Circuit Judge files an order to District Court and it is ignored.  Can you imagine if the roles were reversed an I ignored his order? I would have penalties, interest and my registration would be suspended.", wrote Foreman.

To this day Optotraffic refuses to acknowledge that speed measurement errors have ever taken place, despite huge amounts of evidence that they have.  Optotraffic and Forest Heights are happily continuing to issue more citations with the same equipment, using an inspection process which likely does not include any secondary verification of speed.  Or perhaps which does, but which they cannot admit to because that would confirm the assertions of those who have claimed errors.  And of course Optotraffic, Forest Heights, College Park and Prince George's County already got their little PR kick out of the district court decision at the critical time when Optotraffi's cameras were coming under scrutiny, which is exactly what they needed to justify the county choosing a contractor who was a contributor to the county executive's campaign fund.

However in the absence of a legislative solution, which has so far been casually brushed aside by state lawmakers, defendants who receive erroneous citations face a roll of the dice in district court.  The cameras may have collected evidence which has sufficient time stamp detail to prove speed, they may not.  They may have a judge who is willing to consider 'secondary evidence' of speed and give the defendant the rightful benefit of the doubt, or they may simply hand out assembly line verdicts. That is the state of justice for Motorists in Maryland.

Forest Heights reported collecting a net $2.6million worth of speed camera fines in FY2011(divided between the town, Optotraffic, and the State of Maryland), which compares to the town's total revenue of $2.19 million from all other sources combined.... revenue which will likely be used to "buy the gun they will point to your head" in order to extract more money from the public in the future.