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Before I get into this, there's something I have to explain.  See that time-stamp at the bottom of the page, where it says "Posted by Russ Bensing at 7:32 AM"?  That doesn't mean I finished writing it at 7:31 AM.  I'm actually writing it now, which is Wednesday afternoon, at about 2:30.  The software I'm using allows me to specify when I want it to appear on the blog.  I didn't want my legions of countless fans to think that I got up at some ungodly hour in the morning just to write this.

I'm beginning to think I'm getting too old for this.  A couple months back, I got assigned to a crack pipe case.  I go up to the first pretrial, and find that this particular judge has a policy for crack pipe cases:  one year inactive probation, and out the door.  Since my client had about eight priors, all for drugs, it doesn't get any better than that.  He pled out, and sentencing is set for tomorrow.

So yesterday I got a call from the arraignment room telling me I'd been assigned to handle the new drug trafficking case he'd just been indicted on.  And this morning, I had to listen to his mother tell me about how he's a good boy and how he won't get into trouble any more because his grandfather has cancer.  Makes sense to me, and I'm sure the judge will buy it, too. 

Not ten minutes after that, I got a phone call from a client whose appeal I'm handling.  He'd broken into a car and stolen a radio and some CD's.  A couple of guys, one a fireman, saw him, chased after him, and tackled him and held him for the police.  He was charged with two counts of robbery, but the lawyer worked it down to a plea on two counts of theft.  The judge, one of the best guys on the bench, gave him a max consecutive two years, undoubtedly influenced by the fact that the defendant had 19 prior convictions, and had been to prison 9, count'em 9, previous times.

I managed to get the brief done, something about how the trial court failed to articulate its findings on the seriousness and recidivism factors in RC 2929.12, which would have been a much better argument if there weren't half a dozen Ohio Supreme Court cases saying a judge doesn't have to do that.  I tried to waive oral argument, because I wasn't thrilled with the prospect of having three appellate judges laughing at me and asking, "You want us to say what?"  Unfortunately, the prosecutor wasn't willing to agree, telling me, as he felicitously put it, that he'd rather "kick your sorry butt from one end of the courtroom to the other."  Which is a fairly accurate description of how the events unfolded.

So when my client called -- from the joint, on a 3-way with his mom -- and asked me how the oral argument went, I said, "Eh, could've been better."  I told him it was tough, since all we had was the sentencing issue.  He immediately castigated me for raising only that.  Hey, what do you want?  It's a plea.  Kinda tough to argue trial error.  What about ineffective assistance of counsel? he says.  Right; you're charged with two second-degree felonies, and your lawyer gets you two fifth-degree felonies, and she's the screwup in this scenario.  Then he starts in about how the victim wasn't there at his sentencing, but the two guys who'd chased him down were, like it would've gone better if the victim had been there, too, and when his mother started in with how the witnesses could've been lying, I decided we'd come to Life Is Too Short, Chapter 124, and gently replaced the phone receiver in the cradle.

I'm beginning to think that Mike Polensek has a point.

There are good things, though.  One was that one of the judges on my panel on Tuesday had also been on the panel I'd had on another case a month earlier.  In that one, which involved improper comment by the prosecutor in closing argument, I'd invoked my favorite line in response to the question of whether the curative instruction didn't solve that:  "As one court put it, 'You can't throw a skunk in the jury box and instruct the jurors not to smell it.'"  This judge was impressed with the line, and asked me after the argument who'd said it.  I told her that if she used it in the opinion to reverse my client's conviction, I'd be happy to tell everybody she did.  She laughed.  Not the "Gosh, that's a clever response" laugh; more the "Yes, that could conceivably happen, in a parallel universe" laugh.  I promised I'd let her know what the source was.

Well, judge, if you're reading this (and she sometimes does), here's the skinny.  There are about three or four Ohio cases which quote the line, but all attribute to its rightful source:  a 1962 case from the 5th Circuit.  Here's the money quote: 

In every case involving improper argument of counsel, we are confronted with relativity and the degree to which such conduct may have affected the substantial rights of the defendant. It is better to follow the rules than to try to undo what has been done. Otherwise stated, one 'cannot unring a bell'; 'after the thrust of the saber it is difficult to say forget the wound'; and finally, 'if you throw a skunk into the jury box, you can't instruct the jury not to smell it'.

I like that one about the saber, too.

The best part?  Dunn involved the prosecution of a mayor for income tax-invasion, and the prosecutor's remark was that all politicians take kickbacks.  The court found that remark prejudicial, and reversed.


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