Welcome to The Briefcase

Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »

×

Another day in the life

I go out to a local municipal court for the preliminary hearing on a murder case. It's scheduled for 1:30, but it looks like several other things are scheduled for that time, too. The judge's lunch for one; she's heading out the door as I'm walking in. At 3:00, a rumor makes the rounds that she's back. The bailiff assures me we'll be starting in ten minutes.

He's only off by a factor of four. At 3:40, they call the first case: a guy charged with firing a gun in the air.  It takes thirty-eight godawful minutes to try (not that I'm counting), the procedure as tedious as the verdict is predictable: guilty, and off to the slammer for 60 days.

Surely I'm next, I say; but no, now we have to hear the case of a guy who made two mistakes.  The first was going through a red light, the second was the cop who flagged him down an asshole.  (Surprisingly enough, the latter isn't a crime; under the First Amendment, speech can't be punished unless it constitutes "fighting words." I did a brief on the issue a few years back, and you'd be amazed at what you can say to a cop without crossing that line.  My personal favorite was one where the defendant had said, "Just because you've got a fucking badge you think you can fuck with people" and "Fuck you and your gun, money talks so I'll walk."  Incidentally, the defendant was a woman.)  The appellate court will have to sort it all out, if it comes to that:  another twenty-five minutes, another guilty finding.

So finally it gets time for my case, only three hours and twenty minutes after it was scheduled to start. The prosecutor calls me up to talk with me. The detective on the case is sitting there giving me the fish eye.

"You know your guy made a statement," the prosecutor tells me.

"Yeah. So what did he say?"

"Don't you know?" chimes in the detective. "He's your client. You talked to him, didn't you?"

"Yeah," I say sweetly, "but I wasn't holding a rubber hose when I did." I'm saddened by the fact that we aren't going to be friends.

He turns out to be the first witness. He testifies that the dead guy was killed by a gunshot, and that it was a homicide.

"Objection, he's not the coroner, he can't testify to that."

"He was at the autopsy," the prosecutor replies.

"And that makes him a pathologist? If he watches the Space Shuttle take off, does that make him an astronaut?"

So the prosecutor starts to have the detective testify to what the witnesses told him, but I object, and fortunately the judge never got the memo about hearsay being admissible at a preliminary hearing. I'm not exactly surprised the witnesses aren't there to tell us themselves what they saw.  According to the brief article in the paper, the dead man had been standing on a street corner with a bunch of other guys at 2:00 AM.  I don't know what they were doing, but I'll bet it wasn't collecting for UNICEF.  Which is why the cops were so anxious to have my client talk to them; otherwise, all they had was the testimony of a bunch of dopers.  And that's assuming they showed up at all.  I would've loved to have them here -- the only real benefit of a prelim is to get a free shot at cross-examining the state's witnesses -- but if I couldn't do that I sure as hell didn't want to listen to somebody else telling me what they said.

Now the prosecutor reaches deep into his quiver for his sole remaining arrow:  my client's statement.  He marks the statement and shows it to the cop.  When he gets to the part where he's going to tell us what the defendant said, I object. "Basis?" asks the judge.

So I tell her. I talk about the well-established evidentiary rule, derived from the common law, that a confession cannot be introduced unless and until there is some independent evidence of the commission of a crime. The corpus delicti, "the body of the crime," that's what the rule is called, I tell her. I recount the lack of evidence so far, I regale her with the wholesale violations of my client's rights that produced the reviled statement, I impress upon her the need to safeguard the defendant's liberties, hoping with the forcefulness of my presentation to cover my argument's only real weakness: 

It's all complete, utter bullshit. The rule has no application in a preliminary hearing, nor does the question of the constitutional validity of the statement.

But the judge doesn't know that, or at least isn't sure. So after ten minutes of argument, she decides to take a recess to research the issue.

By this time, it's 5:30. My client tells me, "You talk pretty good." I say, "Yeah, so do you.  If you'd kept your mouth shut, you'd be walking out of here right now."

Finally, the judge comes out; the prosecutor and I crowd around the bench, eagerly anticipating her ruling. Which is:

To continue the case until Monday morning.  By which time the prosecutor will have had the opportunity to get a grand jury indictment, thereby making the prelim moot.

That's why I love my job. It gives me such a sense of accomplishment.

Search

Recent Entries

  • April 20, 2017
    The Supreme Court takes a look at the trial tax
    And you thought this was the week you only had to worry about income taxes
  • April 18, 2017
    What's Up in the 8th
    Remembering Warren Zevon, and the Fourth Amendment lives
  • April 17, 2017
    Case Update
    Structural error, prejudice, and police run amok.
  • April 13, 2017
    Some arguments on sentencing
    Why oral arguments can be fun, even when they're not yours
  • April 12, 2017
    What's Up in the 8th
    Oh fun: declarations against interest v. non-hearsay. Also, the difference between not guilty and innocent, and Ohio's statute penalizing the refusal to take chemical test in a DUI case goes bye-bye
  • April 11, 2017
    Case Update
    Filibusters, and appellate cases on all the ways lawyers can screw up.
  • April 7, 2017
    Change of course
    A new approach in my client-attorney relationships
  • April 4, 2017
    What's Up in the 8th
    A true rocket docket, and Anthony Sowell pops up again
  • April 3, 2017
    Case Update
    Free merchant speech, an argument on Brady, another look at Creech
  • March 28, 2017
    What's Up in the 8th
    Pro se motions, pro se defendants, and advice for deadbeat dads