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Know when to hold 'em

When the judge takes the time to inform your client of all his rights, just like he was making a plea, it's a pretty good hint that she thinks your client should make the plea.  While she was doing it, I couldn't help wondering if she was right.

We were about to start a hearing on a motion to suppress, and the prosecutor's office here has long had a  rule that once such a hearing starts, all deals are off the table; if you lose, it's plead to the indictment or go to trial.  Up until that morning, spurning the deal wasn't a problem:  my client Brendan was found with nineteen bags of weed and a gun in his car, and Marian, the prosecutor, had informed me that her supervisor wasn't willing to drop the firearm spec from the trafficking, which would have meant a year and a half in prison for Brendan.

Marian and I go back a ways, though, and while she's a good prosecutor, she's a better person.  The morning of the hearing, she told me she didn't feel comfortable with the deal.  She'd reviewed the tape of Brendan's interrogation by the cops, and in light of his record -- he'd only had a couple misdemeanors -- she was willing to go back and see if her supervisor would take out the gun.

It was pretty tempting.  A lot of times in criminal cases you're simply doing damage control:  trying to minimize the consequences to your client.  Prison is a pretty big consequence, and if you can avoid that, well, that's a big deal.  I had what I thought was a good issue, but I was dealing with a judge who wasn't renowned for granting suppression motions.  I probably could have talked Brendan into a plea, but I decided to leave it up to him.  He mulled it over, then finally said, "You ever try to get a job when you got a number?  Might as well be in prison."  So off we went. 

The facts surrounding Brendan's case were simple.  A young woman was walking her two kids across the street one afternoon in a Cleveland suburb.  Her two-year-old fell a bit behind her, and a bunch of guys hanging out around a convenient store yelled out, "Hey, bitch, get your kid out of the street or we'll beat your ass."  She called the cops, who arrived a few minutes later, just in time to see Brendan get into his SUV in front of the store and leave.  The woman indicated he was one of the people who yelled at her, so the cop followed his car and stopped him.  He had a suspended license, so an arrest for that led to an inventory search of the car and discovery of the marijuana and the gun.

But while the facts were simple, the law wasn't.  What was the basis for the stop?  The police report clearly indicated that the cop didn't find out about the suspended license until after the stop, so that wouldn't do it.  That left the basis as an investigation of the shouting at the woman, but I'd had a brainstorm here.  The "crime" that had been committed was at best a misdemeanor, either menacing or disorderly conduct.  In Ohio, a police officer can't make a warrantless arrest for a misdemeanor that's not committed in his presence.  Could a police officer make an investigative stop for a misdemeanor not committed in his presence?  I lucked out:  I found only two cases, one from the 12th District and one from the 4th, which even addressed the question, and both of them said no. 

The cop was a nice lady, and she had no idea where I was coming from.  I got her to concede that the victim hadn't really felt threatened, but was upset with being called a bitch.  If that were a crime, of course, 75% of Cleveland's population, and 100% of "urban contemporary" recording artists, would be in jail.  We danced around that for a little while, and I ended my cross by asking her if she had any reasonable suspicion Brendan was engaged in any criminal activity at the time she stopped his car.  She hesitated, then answered, "No."  That's as good as it gets.

Marian made a valiant effort to rehabilitate her in re-direct, but I de-rehabilitated her in re-cross, asking the same question and getting the same answer.  That's when the judge suggested we come back to chambers.

We sat down, she turned to me, and said, "You're not going to like what I have to say.  To me, the case turned on the fact that when the officer showed up, your client left the scene."

It was a Thursday, when the 8th District decisions come down.  I had a couple cases pending, and over the lunch break I'd gone back to my office to see if they'd been ruled on.  They hadn't, but I'd had time to read a couple of decisions, which allowed me to say, "Well, judge, it's interesting, because just a couple hours ago the court of appeals handed down a decision on that precise point, where the cops had claimed that the fact the defendant walked away when they pulled up provided a basis for stopping him.  And the court threw out the search."  It doesn't get much better than that, either.  Two minutes later, her staff attorney had printed out the case and handed it to her.  The judge skimmed over it, then looked up at Marian.  "You know, your witness wasn't very good."

Marian went back down to talk to her supervisor, and a half hour later, she came back with a new plea offer:  they'd drop the trafficking charge (and the gun spec with it), and let Brendan plead to a misdemeanor charge of  carrying a concealed weapon. 

And it wasn't going to get any better than that.  Brendan took the deal.  It's one thing to take a chance.  It's another to be stupid.

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