There comes a point in just about every attorney’s career when you realize you’re in over your head.  Most of the time, it’s because you’re spread too thin.  You’ve just got too much going on, and it’s gotten to the point where stuff’s falling through the cracks:  you’re missing deadlines, you’re not keeping track of pretrials, you’re walking into trials without adequately preparing for them.  That’s bad enough.

But there’s nothing to compare with the gut clench that comes when you’re lying awake at three o’clock in the morning thinking about that case that you’ve got, the one you never should have taken, the one you have no idea what to do with, the one that you know you’re going to lose simply because you don’t know what you’re doing, and there’s not anything you can do about it. (keep reading…)

The court spent the week, for the most part, tying up some loose ends, at least in the criminal area.  (keep reading…)

Last week in Washington, the Supreme Court heard argument in the Phillip Morris case, which stems from an Oregon judgment for $80 million in punitive damages in a smoking case.  The Court has reversed the judgment twice, only to have the Oregon Supreme Court reinstate it on different grounds.  A not entirely unbiased, but entertaining, article about the oral argument can be found here.  This week, the Court will have argument in Arizona v. Johnson, which presents the question of whether police can frisk a passenger of a vehicle they’ve stopped if they believe he’s armed and dangerous, even if they don’t have any reason to believe he’s committed any crime.  I’ll have a post on that later this week.

I’ll also do a post on the Ohio Supreme Court’s disciplinary decisions, because there were ten, count ‘em, ten of those last week.  Sprinkled among them was Patterson v. APA, where the court upheld the dismissal of a habeas petition alleging failure of the trial judge to properly impose post-release controls at sentencing, because the defendant had an adequate remedy at law to challenge that on appeal. 

And in the courts of appeals… (keep reading…)

Guess he’ll learn what a tight end really is.  Seems that Giants wide receiver Plaxico Burress’ biggest problem isn’t that he (a) shot himself in the leg, thus (b) getting a four-game suspension which will cost him over a million dollars, and (c) putting in jeopardy the $35 million contract he signed at the start of the season, under which he’s still due $27 million.  No, the correct answer is: (d) he looking at 3 1/2 years in prison.  As this article notes, last year, at the urging of New York Mayor Mike Bloomberg, the state legislature passed a law making that the minimum mandatory penalty for illegal possession of a loaded weapon.  (keep reading…)

On August 26, 1998, Jeremy Gross robbed a convenience store.  He had worked there part time, and knew the clerk, 24-year-old Christopher Beers.  There was little finesse to the robbery.  Gross and an accomplice marched into the store, and Gross shot Beers in the chest and stomach, then followed him into the back office and shot him in the face as Beers pleaded, “Why, Jeremy, why?”  Gross told him to shut up.  After the two robbers fled, Beers managed to stand up and shuffle over to a pay phone, where he collapsed and died. 

All of this was captured by the store’s surveillance cameras, and after viewing it, the prosecutor announced that “there isn’t a jury in the world” who wouldn’t impose the death penalty for the crime. (keep reading…)

I have a preliminary hearing for Bobby.  According to him, he and his pals are standing outside a store when the police pull up and, for no reason, frisk him and find drugs.  No reason?  No reason, he assures me.

The arresting officer is the only one to testify at the hearing.  He tells us that Vice had sent an undercover cop in to make a buy, using a marked $20 bill.  The cop had then flagged backup, which had taken down Bobby.  The nice thing about a prelim is that there’s no jury, so I can ask whatever I want.  In this case, it’s, “Officer, did you find the marked $20 bill?”

“Yes, we did,” he says.

“And where did you find it?” I ask, pretty sure of the answer.

“On your client.”

At which point Bobby leans over and whispers, in the anguished tone of someone who’s been truly deceived, “They didn’t tell me it was marked!” 

Three months later we’re at the sentencing.  “Bobby,” the judge says, “I’ll give you a choice.  You can do six months in prison, and when you get out, you’re done.”  (This was before the SB2 reforms, when they had determinate sentences with no parole.)  “Or I can give you probation, but if you violate, you’ll do a year.”

Bobby didn’t hesitate.  “I’ll take some of that probation.”  Exact words.

He gave a dirty urine the first time he was tested.

* * * * *

Robert’s got some ‘tude.  The first time I go visit him in jail, he asks me what the unit dose for cocaine is.  I tell him there isn’t one; either you’ve got less than five grams, or you’ve got more.  He tells me I’m wrong.  Also tells me that they just found residue in the crack pipe he had, and you can’t be convicted for just residue.  I tell him that’s not true, and he tells me again that I’m wrong.  I’ve been doing this for 33 years, I’m with someone who’s been to the joint four times, and he’s the bright guy in the room.  He wants a trial.

He bonds out after a month or so, and the day before trial I go see the judge.  She’s a sweetheart.  Won’t put him on probation, because he’s screwed up the three other times a judge has done that, but checks and sees that he’s done forty-five days in county, so she’ll give him time served:  find him guilty, sentence him to the forty-five days in jail he’s already done, no probation, no costs, no fine, out the door.

He comes to court the day of trial, and I explain it to him.  “But we didn’t have the drugs tested,” he tells me.  “I’m entitled to have the drugs tested.”

“You sure are,” I acknowledge.  “And I can go in and tell the judge we want to do that, and she’ll kick the case for three weeks and we can find out if it was really cocaine residue.  If it turns out it is, you do six months or a year.”

“And I don’t think the cops had the right to stop me.”

“You know what, I don’t think so either.  At least from what the prosecutor told me.  So we can do a hearing on the motion to suppress I filed and find out what the cop really says.  And if the search is bad, you go home, just like you’re going to do anyway.  But if it isn’t, then you’ll have to do some time.”

It takes me twenty minutes to talk him into it.  Well, not really talk him into it.  I just keep saying, “Hey, you’re right, let’s try the case, find out what happens.  I mean, I get to leave here today.  Let’s roll the dice and see if you get to leave, too.”

So we’re doing the plea, and the judge gets to the part where she asks Robert if he’s satisfied with his lawyer.

Robert has to think about it. 

He stares down at the floor pensively for a moment or two.  The judge says, “Hey, he got you a pretty good deal, don’t you think?”

Robert shrugs.  “Yeah, I guess,” he says after another minute.

While I’m waiting at the elevator, Robert comes over.  “You do probate?” he asks me.  “I need a probate lawyer.”

If you’re a judge, here’s the trick about dealing with a defendant who’s not a citizen:  just read the language contained in RC 2943.031(A).  If you do, end of story.  If you don’t, well… that’s when we get into “substantial compliance.” (keep reading…)

As might be expected, the Supreme Court Nine found it more fitting to engage in the traditional holiday gluttony than to provide me with cases to write about.  The cholesterol-laden Court will have oral argument this week in the Phillip Morris case out of Oregon (previous discussions on this blog here).  The Court has vacated the $79.5 million punitive damages award against the tobacco company twice before, but each time it’s been reinstated by the Oregon courts. 

Speaking of the Supreme Court, the LA Times ventures some guesses on whom President Obama might pick for the Supreme Court, and another commentator suggests that Obama might break with recent tradition and select a non-judge for the Court.

Nothing from the Ohio Supreme Court last week either, so let’s get to the courts of appeals…

(keep reading…)