Self-incrimination and the EIP
I had a case recently of a young lady swept up in a drug raid. She was an innocent bystander, for all intents and purposes, assuming that label can be applied to someone who sits in a room with a plateful of crack on the dresser. She was only charged with possession, though, and the prosecutor agreed to place her in the Early Intervention Progam. As most criminal lawyers know, if you enter the EIP, you have to plead guilty (which we did a couple weeks ago), but she's then placed on the equivalent of probation for a year, and if she completes it successfully, the charges are dropped; she winds up without a record.
Yesterday I got a call from the judge on her case. Seems the main defendant is on trial, and the state wants to call my client as a witness. She wanted to talk to me before she testified. The judge recessed the trial, and I went down this morning to talk to her. For a variety of reasons, she wanted to take the Fifth Amendment.
The first question is, can she do that? After all, she'd already pled guilty. Turns out that doesn't eliminate her Fifth Amendment rights; the US Supreme Court decided as much back in 1999, and the 8th District, in State v. Hobbs, cited the case and held the same way: "A defendant retains the right to invoke his Fifth Amendment privilege against compelled self-incrimination when he has pled guilty but sentence is yet to be imposed."
That's not all I learned, though. When I mentioned to the prosecutor that my client wanted to take the 5th, he told me that if she did, she could say goodbye to EIP. Seems that the program is run by the prosecutor's office, and they hold the keys: if they want to bounce someone for "failure to cooperate," they can.
There's an alternative to EIP which produces the same result -- no criminal record -- called treatment in lieu of conviction, under RC 2951.041. Check the statute: there's a few more hoops to go through, but it's not an arduous undertaking, and if you're facing a multiple-defendant case where your client may be called on to testify, it's something to keep in the back of your mind. One other thing: while EIP applies only to drug cases, the prosecutor's office also runs a diversion program for first-time offenders, which applies to a much broader range of offenses, excluding mostly only violent and sex offenses. In that program, though, the defendant has to fill out a 497-page questionnaire -- okay, that's an exaggeration, but only a slight one -- in which one of the things he does is agree to waive all his constitutional rights. This kind of situation isn't going to occur there.
This is going to be my last post for the week. The new web site is going up later this week, plus I have The Move to deal with. (I'll be without Internet service on Friday, which should be somewhat similar to heroin withdrawal.) One of the changes I'll be making in the site is what you see above: descriptive titles to the threads instead of just the date. The last five or six post titles will be linked in the sidebar, so if you stop in only a few times a week, you can click on something you find interesting without having to page down.
I'll be back next week, with some posts on whether proportionate sentencing survives Foster, why appointed defense lawyers in Cleveland are underpaid (like you need me to tell you that), and other stuff that strikes my fancy. See you then.