The scene resembled an old-time saloon yesterday, but the setting was a D.C. Superior Courtroom.
A Montgomery County physican arrested in November 1979 on a drunk driving charge was trying to prove that he had not been driving under the influence when D.C. police stopped him and that the police could not, as they contend, prove that they had smelled alcohol on his breath. His attorney, flamboyant former Superior Court judge Harry T. Alexander, gave the man several Styrofoam cups full of beer, wine, and bourbon, told him to swish the booze around in his mouth and then gargle audibly so the jury could hear him.
After the man did so, Alexander ordered him to approach the police officer testifying against him.
"Breathe on him," Alexander instructed.
The officer seemed startled. Judge Bruce S. Mencher rolled his eyes.
The jurors squirmed in their seats, chuckling with delight.
This D.C. Superior Court high spirits festival has been going on now for about three days as Alexander attempts to clear his client, Dr. Walter Manning.
Mencher's courtroom has taken on the appearance of a well-stocked liquor cabinet. Alexander has packed a brown suede briefcase full of the finest liquors and beer available, nestling each bottle between tissue paper.
In the courtroom, Alexander poured the alcoholic beverages into the cups, held the cups up befoe Mencher and the prosecutor, Assistant Corporation Counsel Sherman B. Robinson, for their inspection and then handed the cups to Lt. Robert Scanlon, one of the police officers testifying in the case.
Without disclosing the contents of each cup, Alexander asked Scanlon to take a whiff of each and tell him what the contents were.
"It has the odor of beer," Scanlon replied after smelling the first cup. This "seems like wine," he said after sniffing the second. The third cup, he said, "smells like whiskey of some sort."
Apparently successful in that endeavor, Alexander then sought to show that none of the smells could be detected on his client.Alexander asked Manning to stand next to the officer and, as the jury watched, Alexander gave each of the cups to the doctor. "Take a swish of that fluid in your mouth," Alexander said.
The doctor did as instructed; Mencher shifted uncomfortably in his seat.
"Gargle it," Alexander ordered. The doctor threw back his head. The jurors chortled.
Then, after the doctor was told to breathe heavily on police officer Scanlon's face, Alexander asked him: "Did you smell anything?"
"No, I didn't," Scanlon said. Alexander smiled and walked back to the counsel table, his strategy possibly working. It will be up to the jury to decide if swishing alcohol is a valid test of whether someone has been drinking. Scanlon later said he thought Alexander was engaging in "theatrics."
But before the court broke for lunch, there was one other matter. How could the judge be sure no one would drink the evidence while they were out of the courtroom? Should we put "a pencil mark as to the level" in each cup, Mencher asked? No, the judge decided, that would not be necessary.
The trial continues Monday.