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Follow the money

Here's what I learned in school court today:  When you're doing a plea, and the prosecutor spells out the offense your client is going to plead to, and the judge says, "You mean that's a crime?", it's a pretty good sign for your client.

Contrary to what some might think, Ohio's law against criminal simulation doesn't prohibit someone from pretending he's a bank robber; instead, it bans things like selling counterfeit purses or movies.  A couple of months ago, I'd been appointed to represent a guy charged with that very crime.  According to the cops, they'd pulled into a gas station and heard my client asking a woman, "You want to buy some DVD's?"  They'd quickly found the source of the bogus loot:  a guy in a wheelchair selling them out of his car.  They arrested him and let my client go.  This was four years ago.

They indicted the guy in the wheelchair, and threw my client in as well.  He'd moved to Florida by that time, and when he returned several years later, he found the charges waiting for him.  Enter moi, stage left.  The other defendant had pled to a misdemeanor, my client tells me he'll be happy to do the same, just to get the thing over with.

Not easy.  First pretrial:  prosecutor looks at file; it's about two inches thick, he has no idea why, says why don't we schedule another pretrial and he'll look over it.

Second pretrial:  different prosecutor, has about as much idea what she's doing as my cat.  ME:  "My guy just wants a misdemeanor."  HER:  "Oh, we can't do that, we'll have to put him into diversion so he can make restitution."  ME:  "What's the restitution?"  HER:  "$391."  ME:  "That makes it a misdemeanor.  It has to be more than $500 to be a felony."  HER:  "I don't think so."  ME:  "The people who wrote the law do, though, because that's what they put in there."  She says why don't we schedule another pretrial and she'll check it out.

Third pretrial:  different prosecutor, says he'll take the file down to get it marked as soon as he gets a chance.  In the Cuyahoga County Prosecutor's office, only three people are allowed to authorize plea bargains, no matter how inconsequential the case.  It's ten-thirty; he doesn't get "a chance" until quarter to twelve.  He never comes back.  By one-fifteen I leave.

Today:  same prosecutor, he tells me he got the file marked to a misdemeanor.  Forty-five minutes later, we do the plea.  The prosecutor spells out the deal, including the possible fine, and says that there might be restitution involved, but doesn't know the amount.  "Restitution?" says the judge.  "How do you figure that out?"

"They bring in some rummy from the Motion Pictures Assocation," I tell her, "who explains why my guy is the reason Tom Cruise doesn't make more money."

That's a decidedly Marxist take on the whole thing, and may not show the proper respect for intellectual property laws.  On the other hand, there's a legitimate argument that the criminal laws should reflect a balancing of society's finite resources and the harm that a particular crime does to society.  It should also reflect whether prevention of the "crime" can be achieved by other means.  The Motion Pictures Association of America, like the Recording Industry Association of America, hasn't exactly been reticent about suing websites which allow users to download movie or music files, nor about suing the users themselves.  RIAA alone has sued over 20,000 users since 2004. 

Of course, there have been problems with that strategy.  Sometimes the devil's in the details, as indicated by this story about the RIAA's attempt to serve a lawsuit on a homeless man.  It also relies on the defendants, rarely people of sufficient means to afford expensive litigation, to quickly cave and settle for a few thousand dollars.  Only one defendant has taken a case to trial so far, and she was hammered for $220,000 by a Minnesota jury.  The bad news for the industry is that the judge is now considering declaring a mistrial because he thinks he may have erred in not instructing the jury that the RIAA had to prove the defendant actually shared music files, not that she simply made them available for sharing.  If he does, that could create an insurmountable problem for plaintiffs in downloading cases:  with current technology, it's impossible to show that a file was actually downloaded from one computer to another. 

But it seems to me that's where the whole thing should be fought out.  I've seen cases which are essentially civil disputes, but where the party claiming injury decides to enlist the police and prosecutors as debt collectors.  This is one of them.

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