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 »

×

A Christmas Story

'Twas the week before Christmas, and all through the courthouse, not a creature was stirring, except for the people in Courtroom 21-A, who were listening to the judge finish up his instructions to the jury an hour after the building had been officially closed.

I was one of them.  The trial against my client, who I'll call Elizabeth, had started first thing on Monday morning.  The judge, a former prosecutor, is Old School, and doesn't cut much slack as far as scheduling goes.  Defense attorneys mostly don't like that; we'd just as soon kick the case as far down the road as we can.  Still, there's something to be said for a courtroom where a 9:00 trial time means the trial will actually start pretty close to then.  The real killer is where you're given the 9:00 time, the judge strolls in an hour after that, does a bunch of pleas and sentencings and civil pretrials, then tells you to come back at 1:30 to pick the jury.

I didn't want to try the case at all.  Elizabeth was a home health care aide, charged with stealing about $1,600 from one of her patients, a mentally retarded man with cerebral palsy.  Not a lot of jury appeal in that one.  I thought we'd worked out a deal for diversion, but that blew up when the victim's mother objected.  I tried mightily to persuade Elizabeth to take a misdemeanor; going to trial in front of this judge meant that a conviction would most likely result in a prison sentence.  A plea to anything would mean her job, though, and she wasn't willing to give that up.

The prosecutor was a young kid, name of Joe, late 20's; pretty cocky, but he had reason to be.  As if the victim wasn't bad enough, the evidence was worse:  Elizabeth had written out two checks for her car payment and one for her cell phone from the victim's checking account, then had him sign the checks.  He told me the morning of trial that the misdemeanor was off the table, so off we went.

Joe didn't use any of his peremptories during jury selection; on this kind of case, he would have been satisfied with anyone this side of Jack Kevorkian.  I used all four of mine.  A pediatric nurse was first to go, then a guy I noticed was giving Elizabeth the fish eye.  I always watch for that sort of thing.  That's what peremptories are for:  every now and then you'll come across a juror who just doesn't click for either you or your client, and you get them out of there.  Made the mistake of leaving someone like that on a jury once, and never made it again.

We finally wound up with a jury that, to my surprise, didn't include anyone with any family members in nursing homes or under the care of a home health aide.  After opening statements, the victim was wheeled in.  Gee, that's a nice phrase for a defense attorney to hear, huh?

Actually, it went a lot better than I thought it would.  I'd imagined the poor guy being some combo of Steven Hawking and Seinfeld's Bubble Boy, but he really didn't look that unusual, and he didn't hurt Elizabeth very much.  He admitted that she'd taken real good care of him, and really didn't remember these particular transactions.  The mother was up next, and while she didn't come across like Joan Crawford in "Mommie Dearest," she didn't kill me, acknowledging that her son trusted Elizabeth more than he trusted her.  She didn't exactly endear herself to the jury, either, when the prosecutor asked her about how she wrote out her checks for her car payments, and she confessed to not having ever done it, since her husband paid cash for their cars.

We broke for the night, and the State wrapped up its case the next day with a couple cops and an investigator from the County Mental Health Board.  They made their points, but I scored some hits, too, and during the break after the State rested Joe admitted that this wasn't going as easily as he thought it would.  "Relax," I comforted him.  "Look at it this way.  If we were in Japan, and you lost a case this easy, you'd have to commit suicide to save face."

I hate putting on a defense in a criminal case.  If I've done my job as a defense lawyer, I've used the "reasonable doubt" concept to indoctrinate the jury into being skeptical, into looking for all the weaknesses in the State's case.  Problem is, if I put on a defense, they'll turn that same skepticism on my witnesses.  But Elizabeth wanted to testify, to tell her side of the story, and that's her call.  Plus, her defense was that she'd given the victim cash for the checks she'd written, and she was the only one who could testify to that.  That there wasn't any documentary evidence, and that no matter how many times she and I went over it, it never made a whole lot of sense, made her credibility critical.

And that didn't go so well.  About ten minutes into the direct, I noticed that two jurors were gazing intently at their feet.  As you might gather, when a juror won't even look at a witness, it's not a good sign.  Joe came pretty close to rescuing her on cross, though.  One thing I've found with prosecutors:  they're very good at direct examinations, but not at cross-examining, because they do so little of it.  Most defense attorneys feel the same way I do about putting on a defense.

The key to cross, for the most part, is to make your points and get out.  Not always.  Most people aren't used to thinking on their feet, and aren't very good at it.  Sometimes, if you keep a witness on the stand for a long time, an hour or two, sometimes even less, they'll mentally break, and then you can get them to say pretty much whatever you want.  But that's not a common situation, and you stand a good chance of losing the jury along the way.  Joe wandered aimlessly from point to point, and when he finally sat down, he wasn't in any better shape than when he'd stood up.

We came back Wednesday morning for closing arguments and jury instructions, only to find that one of the city's water mains had burst, flooding an area forty blocks away with twenty million gallons of water, and leaving most of the downtown buildings without any.  Including the Justice Center.  Word was that the Center would be closed at 10:30, and that turned out to be true, but irrelevant to us.  The judge plowed ahead, and after finishing the charge, told the jury that a hotel across the street had water, so they could use the bathrooms there and come back to deliberate.  Good thing about the hotel; otherwise, I think he might have had them drink their own urine.

They deliberated until about 4 that day, then came back and continued at 9 the next.  About 2 that afternoon, they came back with the obligatory question about "can we have the transcript of the testimony of..."  The judge told them no, and I figured that would finally break the logjam.  It didn't; at 4:30, I got a call that the jury had gone home for the day.  I'd been appointed on the case, and maxed out the $400 cap before trial even began; the thought of a hung jury and having to try it again nearly made me weep.

Didn't happen.  The jury finally came back about 10:30 Friday morning.  The jury verdict form was three pages long; the second and third pages were for findings for whether the victim was disabled and that the amount of the theft was more than $500.  Of course, if the jury found Elizabeth not guilty, they didn't have to fill out the last two pages.

The judge took the verdict forms, and read over the first page to make sure it had been filled out and properly signed.  Then he did the same with the second and third page, and that was that.  I'd told Elizabeth not to show any emotion when the verdict was read, and she didn't.

The judge referred her for a presentence report and continued her bond.  In the hallway, he made a point to tell me that he wasn't going to ship her.  "She just got a little carried away," he said.

Joe was openly relieved, but the head room prosecutor was upset that the judge hadn't sent her to prison right there.  "If you're going to go to trial, you have to pay the penalty if you lose."

This is why I could never be a prosecutor.

"My God," I said, "The woman made full restitution, because that was a condition of considering her for diversion.  She's forty-two years old, never had so much as a traffic ticket."

He shrugged.  "She committed a crime." 

I wish I lived in his world, where everything was black and white, where people committed crimes because they were evil, and there wasn't anything more to it than that.  I'd talked to Elizabeth's employer, and they loved her:  in the decade she'd worked for them, doing a job that they couldn't pay your or me enough to do, they'd never had a single complaint about her care.  That was something for that profession, they said.  Well, yeah, I guess.  If I was in a wheelchair all day, dependent on someone else to push me around and cook my meals and bathe me and attend to my most personal bodily functions, I probably wouldn't be Mr. Jolly, either, and wouldn't have to go too far to find some fault with the person who did that.  The only thing Elizabeth said to me during the victim's testimony was, "Boy, I miss him."

There are evil people in the world, but there are people who are weak and use bad judgment and just do a dumb thing, too.  Elizabeth is going to be out of a job in a month, when she gets sentenced, if she's not out of one now.  You can probably come down on either side of whether that's a good thing, but that seems to be enough of a pound of flesh to satisfy me.

Merry Christmas, and I'll see you here in the New Year.

Search

Recent Entries

  • July 21, 2017
    Friday Roundup
    Computers and sex offenders, civil forfeiture, and phrases that should be put out to pasture
  • July 20, 2017
    Case Update
    A look at the Ohio Supreme Court's decision in State v. Oles, and did you know that Justice Ginsburg has a .311 batting average with runners in scoring position? Oh, wait...
  • July 18, 2017
    What's Up in the 8th
    Judicial bias, RVO specs, 26(B) stuff, waivers of counsel... And more!
  • July 17, 2017
    No more Anders Briefs?
    I have a case now in the 8th District where I came close to filing an Anders brief the other week. It's an appeal from a plea and sentence. The plea hearing was flawless. The judge imposed consecutive sentences, and...
  • July 13, 2017
    Sex offenders and the First Amendment
    Analysis of the Supreme Court's decision in Packingham v. North Carolina
  • July 12, 2017
    Removing a retained attorney
    What does a judge do if he thinks a retained attorney in a criminal case isn't competent?
  • July 11, 2017
    What's Up in the 8th
    The court does good work on a juvenile bindover case, and the State finally figures out that it should have indicted someone in the first place
  • July 10, 2017
    Case Update
    SCOTUS ends its term; the Ohio Supreme Court issues another opinion, and likely the last one, on the trial tax
  • June 28, 2017
    Plea Bargaining -- The defendant's view
    A look at the Supreme Court's decision last week in Lee v. United States
  • June 27, 2017
    What's Up in the 8th
    A worrisome decision on expert funding, and, mirabile dictu, a court's dismissal of a case for a discovery violation is upheld