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

  • May 25, 2017
    "Clarifying" post-release controls
    A look at the Supreme Court's decision in State v. Grimes
  • May 23, 2017
    What's Up in the 8th
    Allied offenses, and two search cases
  • May 23, 2017
    What's Up in the 8th
    Allied offenses, and two search cases
  • May 22, 2017
    Case Update
    Is SCOTUS looking for a forfeiture case? Plus, appellate decisions on expungement and restitution, plain error, and what a judge has to tell a defendant about sex registration
  • May 19, 2017
    What's Up in the 8th - Part II
    Decisions on lineups and prior calculation and design, and two out of eight (eight!) pro se defendants come up winners,
  • May 17, 2017
    What's Up in the 8th - Part I
    Taking a first look at some of the 8th District's decisions over the past two weeks
  • May 16, 2017
    Case Update
    Stock tips, Federal sentencing reform goes dormant, schoolbag searches, and the retroactivity of State v. Hand
  • May 8, 2017
    Case Update
    Death in Arkansas, a worrisome disciplinary decision, and appellate cases on speedy trial, arson registration, use of prior testimony, and the futility of post-conviction relief
  • May 2, 2017
    What's Up in the 8th
    Nothing but sex
  • May 1, 2017
    Case Update
    SCOTUS closes out oral argument for the Term, the Ohio Supreme Court has seven of them this week, and we report on a decision where you'll probably want to play Paul Simon's "Still Crazy After All These Years" in the background while you read about it