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 »


Preparation, preparation, preparation

Napoleon is supposed to have said that he preferred lucky generals to good ones.  He would've liked me.

My client Barry has a big problem.  Oddly enough, it's not the case I'm representing him on, which involves a few rocks of crack that the police had found on him after they'd stopped his car for a broken windshield and arrested him for driving on a suspended license.  But even with the fact that he had a prior record, nobody gets real excited about a few rocks of crack anymore, especially the judge I was in front of.  There was no way he'd go to prison for something like that.

But he'd been before the same judge two years earlier, for drug trafficking, failure to comply, weapons under disability, and sundry other offenses.  The judge had given him three years probation, but had left a prison sentence of between 11 and 17½ years hanging over his head in the event of a violation.  I didn't see this judge imposing that sentence for a violation, but neither did I see him giving Barry a pat on the back and sending him on his way; some time was in the offing. 

What I would have liked to do is sit down with everybody and make a package deal; figure out what we'd do with the current offense and the probation violation.  That wasn't going to happen, though.  As I've mentioned before, different judges have different approaches to plea bargaining.  Some will tell you exactly what they will do on a plea.  Some will give you wink and a nod, using code words like "I think you're client's a good candidate for probation."  Some won't tell you what they'll do.  And some won't even talk to you about it.  This judge was in the latter category.

So I figured I'd take care of this case and worry about the violation hearing later.  And there wasn't much to do with this case.  Sure, I'd filed a motion to suppress, but I didn't see any chance of winning it, and even if I did, it wouldn't mean anything:  regardless of the validity of the search, there was no question Barry possessed the crack, and that was a probation violation in itself.

So on Tuesday we went over for the hearing on the motion.  I spent an hour standing around, only to find that the judge had a bunch of other stuff and wanted us to come back the next morning at 9.

I've been doing this for a long time, and I know the judges, and I'm not an idiot, so about 9:10 the next morning I called the bailiff and asked him what would be a good time to come over.  Translation:  when's the judge going to show up?  He said to get over in another ten or fifteen minutes.  Well, it turns out I am an idiot, because I listened to him, and two hours after I get there the hearing still hasn't started.

A couple months back, I decided it'd be nice if I could do some work over in court instead of just sitting around doing nothing, so I got a little netbook computer to take along with me.  And that's what I was doing when the judge finally did take the bench:  sitting at the defense table surfing the web on the netbook, discovering all sorts of useful information, like the fact that Travis Hafner, to whom the Indians owe $30 million over this year and the next two, had finally gotten his average above .200.  (Tribe Fan Note of the Day:  If you look up "sunk costs" in the dictionary, you'll find a picture of Travis.) 

The hearing started, the cop took the stand, and after a few preliminary questions, the prosecutor elicited that the officer had made the stop pursuant to Cleveland City Ordinance 431.25, which prohibited driving with an obstructed view.

At this point I got an idea.  Hey, Russ, for grins and giggles, why don't you check out what the ordinance actually says?  I mean, sure, any conscientious lawyer would have done that well before the hearing, but that's why you got that nifty netbook, isn't it?  So you could just wing it right there in the courtroom.

So I went over to the web site where the ordinances are, and got to 431.25 just as the cop was concluding his testimony.  "Officer," I said, "That ordinance about driving with an obstructed view; do you happen to have a copy of that with you?  No?  Well, I'm looking at it now, and it doesn't say anything about cracked windshields.  In fact, it's entitled, 'Driver's View and Control to be Unobstructed by Load or Persons.'" 

And as you can see if you page down, that's exactly what it prohibits:  driving a vehicle "when it is so loaded, or when there is in the front seat such number of persons, as to obstruct the view of the driver to the front or sides of the vehicle or to interfere with the driver's control over the driving mechanism of the vehicle."  Nothing about cracked windshields.

We fenced around as to whether the crack would have really obstructed Barry's view, but in the end it didn't matter.  Oh, sure, the hearing took another half hour, and then the judge left for lunch saying he'd give us the decision at 2:00, and 2:00 turned into 3:30, so there's another hour and a half of my life that I'll never get back, but he bought my argument completely:  Driving with a cracked windshield wasn't prohibited by the ordinance, that was the reason the cop stopped Barry, thus the stop was invalid and everything that flowed from the stop -- the arrest, the discovery of the crack -- went out the window.  What's more, the judge dismissed the case; no mention of a probation violation hearing.

There's a line from Tom Wolfe's book Bonfire of the Vanities, where a criminal defense lawyer tells his client, "Jack, I'm not going to be your friend.  I'm going to be more than a friend to you, because what I'm going to do for you your friends can't do."  I've always liked that line, because it summarizes one of the key satisfactions we get from practicing law.  We've got a specialized set of skills, and when we do something -- get an acquittal, get evidence thrown out, win an appeal -- we sometimes get rewarded by a look in our client's eyes that they know that we did something for them nobody else could've done. 

Barry had that look when we left the courtroom.  He thought he had a good lawyer.  And sometimes lucky is the same thing.


Recent Entries

  • January 19, 2018
    The search for data
    I know more about how Aaron Judge does than what sentences are being handed down in criminal cases, and why that's a problem.
  • January 17, 2018
    What's Up in the 8th
    When not to decide cases on allied offenses and pre-indictment delay
  • January 11, 2018
    Case Update
    Three new decisions from the Ohio Supreme Court
  • January 10, 2018
    To the barricades!
    Why I'm a threat to the Ohio state government
  • January 5, 2018
    Search and seizure in the digital age
    Do the cops need a warrant to get cell phone data?
  • January 3, 2018
    What's Up in the 8th
    We talk about me a lot, but there's some other stuff, too
  • January 2, 2018
    He's baaaack
    So I thought I'd start my first post in six weeks by explaining why it's my first post in six weeks. Ever run into somebody and ask the obligatory question, "How are you doing?" And they proceed to tell you...
  • November 15, 2017
    What's Up in the 8th
    Plea withdrawals (again), sexual predator hearings, and an appellate law question
  • November 7, 2017
    What's Up in the 8th
    Don't listen to prosecutors about the law, good new/bad news jokes on appeal, and the Byzantine course of a death penalty case
  • October 24, 2017
    What's Up in the 8th
    Trying to change the past