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 »


Friday Roundup

Not too many people get arrested for being illegally parked, but Jeanne did.  The main reason was that she didn't bow and scrape to the two police officers who ticketed her car.  Not that they deserved much bowing and scraping; one was a drunk who was later kicked off the force, and the other wasn't much better.  Part of it was a racial thing, too:  they were black, and she was a black woman, and she wasn't paying them the proper respect, so they took her in. 

On the way to the station, they made fun of her weight.  When she got to the station, one tried to grab her purse while she was being booked, and she instinctively grabbed at it.  They knocked her down, kicked and punched her a few times, and when she got to her to her feet, she finally told them what she did for a a living:  she was a state parole officer. 

She told me that the place cleared out pretty quick after that.

That's the only civil rights case I ever handled.  Jeanne didn't have much in the way of physical injuries, but I'd known her before all this, and she was never the same afterwards.  I brought in a psychiatrist who explained it all, that Jeanne had always thought of herself as part of the law enforcement team, and that this had turned her world upside down.  It's sort of like the happily married woman who finds out that her husband is a pedophile; it's hard to keep it together when the entire foundation of your life comes crashing down.

The cops were terrible witnesses -- I never had so much fun with my pants on as I did in that trial -- and the judge gave Jeanne over $85,000, $75,000 of that for compensatory damages for psychological injuries.  The city appealed it, and a 6th Circuit panel cut the damages in half.  During the oral argument, one of the judges asked me to justify the award.  This was a long, long time ago, and if I'd been smart I would have talked about how the court should defer to the trial judge, who had a superior opportunity to gauge the credibility of the plaintiff and her doctor on that point.  Instead, I talked about how there are very few events that change your life, and this one had changed hers, and not for the better.  I'll never forget the sneer on one of the other judge's faces as he said, "So you think she should get $75,000 for... psychic injuries?"

And I said, "You miserable sonofabitch.  How do you think you'd react if a couple of cops busted for you bullshit, dragged you down to the police station, and used you as a punching bag?  What do you think that would be worth to you?  Of course, that's never going to happen, because the chances of the cops doing that to an older white guy driving a nice car are nil.  That sort of thing doesn't happen to people like you."

I didn't say any of that, of course, as the fact that I still have a law license attests.  But I thought about it yesterday, when I was writing the post about the 9th Circuit's decision in the GPS case, and especially their holding that, by parking his car in the driveway next to his trailer, the defendant didn't have a reasonable expectation of privacy; if people could walk up to his car, then so could the police.  This was from Judge Kozinski's dissent from the denial of en banc review:   

There's been much talk about diversity on the bench, but there's one kind of diversity that doesn't exist:  No truly poor people are appointed as federal judges, or as state judges for that matter. Judges, regardless of race, ethnicity or sex, are selected from a class of people who don't live in trailers or urban ghettos.  The everyday problems of people who live in poverty are not close to the hearts and minds because that's not how we and our friends live. Yet poor people are entitled to privacy even if they can't afford all the gadgets of the wealthy for ensuring it.  Whatever else one may say about Pineda-Moreno, it's perfectly clear that he did not expect--and certainly did not consent -- to have strangers prowl his property in the middle of the night and attach electronic tracking devices to the underside of his car.  No one does.

When you glide your BMW into your underground garage or behind an electric gate, you don't need to worry that somebody might attach a tracking devise to it while you sleep.  But the Constitution doesn't prefer the rich over the poor; the man who parks his car next to his trailer is entitled to the same privacy and peace of mind as the man whose urban fortress is guarded by the Bel Air Patrol.  The panel's breezy opinion is troubling on a number of grounds, not least among them its unselfconscious cultural elitism.

There's less diversity as you go up the ladder of the court system.  Every current Supreme Court Justice went to either Harvard or Yale law school, and whatever hard-scrabble beginnings a few of them might have had are not even in the rear-view mirror any more.  That's what allowed them to come up with probably the worst 4th Amendment decision of all time, Whren v. US, which held that so long as you've committed a traffic violation, the cops have the right to stop you, even if the traffic violation is a pretext.  If a few more justices had been in the "target group" for such stops -- blacks, minorities, the poor -- the Bullshit Traffic Stop of the Week™ wouldn't be a regular feature of this blog.

That doesn't mean there's a lot of diversity at the bottom of the ladder, though.  I know a lot of judges, and while a few of them had privileged backgrounds, most didn't.  Then again, I don't know of any who live in trailers, or who go home at night to the projects, or who are likely to be stopped by the cops if they forget to put the turn signal on before changing lanes. 

You know what, though?  And it's something I just thought of as I was writing this:

I don't know any lawyers who do that, either.


Recent Entries

  • September 12, 2017
    What's Up in the 8th
    Prior consistent statements, whether State v. Hand is applied retroactively, and a big Coming Attraction
  • September 11, 2017
    Case Update
    Looking back at Melendez-Diaz, and the 8th goes 0 for 2 in the Supreme Court
  • September 8, 2017
    Friday Roundup
    Pro bono work, screwed-up appeals, and is Subway shorting their customers?
  • September 5, 2017
    What's Up in the 8th
    The barriers to expungement, jury verdict forms, and hybrid representation
  • August 31, 2017
    Constructive possession
    Constructive possession is 9/10ths of the law
  • August 29, 2017
    What's Up in the 8th
    A traffic stop found Samson Primm in possession of a few grams of marijuana, but he hires a lawyer and files a motion to suppress the stop. On the day of trial, the City asks to dismiss the case. Primm...
  • August 28, 2017
    Truth in plea bargaining
    So I got a brochure last week from Judge Donnelly over at the Common Pleas court. As you can see, it's a panel discussion on plea bargaining. The judge asked me to get out the word, so I just sort...
  • August 15, 2017
    Summer Break
    Got a bunch of stuff to do over the next couple weeks, and with the slowdown in the courts, it's a good time to take a break. I'll be back here on August 28. See you then....
  • August 11, 2017
    Friday Musings
    Drug trafficking, ADA lawsuit abuse, and e-filing
  • August 10, 2017
    Case Update
    Waiting on SCOTUS; two Ohio Supreme Court decisions