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From the mailbag; shutting up

Ask the Briefcase.  Well, actually, not from the mailbag.  My buddy Paul is in trial this week.  Normally, about 30% of our conversations start out with the phrase, "Hey, Russ, can you find a case that says..."  When he's in trial, the percentage approaches 80. 

But he's a shaprp guy, and he picked up something I hadn't.  It's a drug trafficking case, and he's got to put his client on the stand, a prospect freighted with risk by virtue of his client's 2000 conviction for a 5th degree felony of -- gulp -- drug trafficking.  He tells me to take a look at Evidence Rule 609, which deals with impeachment through use of prior convictions "if the crime was punishable by death or imprisonment in excess of one year pursuant to the law under which the accused was convicted."  So Paul asks me:  can his client's prior be used for impeachment purposes?

I look at it, and I don't think it can; the maximum punishment for a 5th degree felony is one year in prison, and the rule requires that the crime be one involving punishment of imprisonment for more than one year.  In fact, I run the situation through my BFF Lexis, and it spits out this 11th District decision saying that exact thing. 

So, snaps to my buddy Paul.

Discretion is the better part of valor.   Had an oral argument in the court of appeals the other day, and suffice it to say that I don't think I'll be spending a lot of time figuring out how to write the post announcing my big victory.  Like the man says, if it was a fight, they would've stopped it. 

The case before mine was rather interesting, though.  The defendant had been charged with drug trafficking and a Major Drug Offender specification, based on the cops finding 44 pounds of marijuana in her house.  There were some other people involved, though, and her attorney convinced the prosecutor's office that she was a bit player.  They let her plead to a fourth degree felony, she got two years of paper, and that was that. 

So what's she doing up in the court of appeals?  She'd hired a lawyer who'd filed a petition for post-conviction relief, claiming that the her trial counsel was ineffective for not pursuing a motion to suppress.  Apparently, the police had busted a guy in a car who told them there was more stuff in the house, so a couple of cops went to get a warrant.  When they'd obtained one, they called the officers on the scene, who went ahead with the search -- before the warrant actually got there.

That raises the question of whether a search is valid if the warrant has been obtained, but the cops on the scene don't actually have it yet.  Oddly, nobody seemed to know the answer to that question; since it was the only real issue in the case, it seems somebody would have looked it up.  If they had, they would've found cases going both ways, although I think the better argument is that the search is valid.

But that's not the point.  The Cuyahoga County Prosecutor's office has a simple policy:  if you go forward with a motion to suppress, all plea offers are withdrawn.  If you lose, you go to trial or you plead guilty to the indictment.  You can argue about whether that policy is fair, but you can't pretend it doesn't exist, or that it won't be applied in your case. 

Needless to say, I read a lot of cases, and there are some where a court throws out a search, even if the cops got a warrant.  I discussed just such a case a couple of days ago.  But it's not common.  In an absolute best case scenario for this case -- with the right judge and the right panel on the court of appeals -- your chances might be a little better than 50%. 

Having a felony drug conviction on your record certainly isn't helpful, especially in today's economy, but it beats doing a minimum ten years in prison, which is what you get with an MDO specification.  Yes, even if you lose the motion to suppress, you might get a jury who'll sympathize with the woman, or figure that it's only marijuana, and might decide to acquit.  (From what I gathered, she couldn't argue that she didn't know the stuff was there, just that it wasn't hers, an argument largely foreclosed by the constructive possession theory.) 

I don't know whether the trial lawyer explained any of this to the woman.  I know the lawyer, so I'd be surprised if he hadn't.  I certainly would have, but I would have strongly recommended that she plead rather than pursue the motion to suppress.  The attorney at the oral argument -- whom I also know, and who is also an excellent attorney -- argued that trial counsel has a duty to vindicate the client's constitutional rights.  Well, yeah, but sometimes, the most important thing a lawyer can do for his client is know when to shut the hell up about stuff like that, and work out the deal that's in his client's best interests.


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