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War Stories V

I've commented before that much of the defense bar's protestation of the denial of their clients' right to speedy trial is so much bluster.  Unless the defendant is in jail, he almost invariably benefits from delay:  witnesses die, move, or forget, and that makes it harder to prove the case against him.  There's one problem with that analysis:  delay also gives him more time to screw up.

My friend Dave calls me up and asks me if I'd like to handle a motion to suppress for him in a major drug case.  I ask the key question:  is he appointed or retained?  "Retained," he says, "I can get you a thousand bucks for doing the hearing."  An hour of prep, a couple hours in a hearing...  I check the office lobby and find no one sitting there anxious to give me a grand, so I tell Dave that I'll be happy to handle the hearing.

It's an interesting case.  Derrick, the defendant, was playing video games at a neighbor's house when the police came in and announced that they'd gotten a call from a victim from a robbery a week ago that he'd seen the robber entering the house, and Derrick matched the description.  They took him outside for a cold stand, and before putting him in the police cruiser to take him to the victim's house a few blocks down, they frisked him and found a gun.  A full search found Derrick to be carrying over 100 grams of crack, resulting in Derrick looking at  a 10-20 year stretch for trafficking with a major drug offender specification.

I knock off a quick supplemental brief for the motion to suppress and go over to the hearing the next day to earn my money.  Well, no.  The prosecutor's a young kid named Sarah, and she wants to file a responsive brief, so we kick the hearing for a week.  We do talk to the judge, though, a former prosecutor who just got elected a couple years ago, and she tells us that this might be the first motion to suppress she grants, because she has some real problems with the state's case.  Hooray for us.  I leave, thinking I'll be putting another notch on my belt in a week.

Well, no.  The case gets kicked once because the court's in trial, and another time because the cop has to leave early, and another time because Sarah has to get approval from her supervisor and her supervisor's on vacation, and yet again because the supervisor was supposed to be back but isn't.  I acquiesce in the latter three continuances because <pick one>:  (A) I'm a nice guy and want to accomodate opposing counsel (B) The judge is going to grant the continuances anyway, so I might as well earn brownie points by pretending to be a nice guy.

We finally have the hearing, and it's a blast.  The two cops involved were female.  I pride myself on being a pro-feminist sort of guy; hell, I'm so sensitive I make Alan Alda look like Vlad the Impaler.  I've met a goodly number of very competent female police officers.  Not these two.  It was like Bridget and Gidget joined the police force.  They insisted that they'd gotten the homeowner's consent before entering the house, and that Derrick had willingly accompanied them outside, to the point where they allowed him, a robbery suspect, to follow them.  "That's really in violation of our training, to turn your back on a suspect," the one acknowledged on direct.  "You really don't need training to know that, do you?" I asked on cross.  "Watching a couple episodes of Law and Order should tell you that much."  I got both cops to admit that Derrick hadn't been told that he'd be put in the police cruiser until they got to the car, and put the homeowner on to testify that the cops just walked into the house without asking for permission to enter.

The thing is, everybody liked my case a lot better than I did.  The consent issue was bogus; as a visitor in the house, Derrick didn't have standing to raise the issue.  The cops had built their case on the idea that this was a consensual encounter, but that was completely unnecessary; despite some discrepancies in the identification -- the victim had initially described the robber as heavyset, which Derrick wasn't -- there was certainly enough similarity to create a reasonable suspicion, and that's measured objectively, not subjectively:  if the cops do have reasonable suspicion, it doesn't matter that they think they don't.  The law is that the police can't put somebody in a police cruiser merely for their own convenience, and I got the officers to testify to that effect simply by asking them, "You put the defendant in the cruiser for your own convenience, right?", reinforcing my view that Cleveland cops are so untrained in the 4th Amendment that they don't even know how to lie.  Still, a court could find that it was reasonable for the officers to place Derrick in the cruiser, rather than have a robbery suspect standing there while people from the neighborhood are milling around.

Still, I had high hopes.  The judge, who was married to a detective, told us she thought the officers' testimony was terrible.  Sarah was pushing the consensual encounter theory, but the gun (and drugs) weren't discovered until the cops put Derrick in the cruiser, and it's real hard to argue that that was consensual.  At the end of the hearing, the judge pointedly asked Sarah if she had any law to support the idea that telling somebody he had to get into a police car wasn't a detention.

So the judge grants my motion, right?  Well, no.  Sarah asked for permission to file a brief, which means I've got to file one, too.  By Thurday of the next week all that stuff's submitted, and the judge tells us that she's going to announce her decision the following Wednesday.  At this point, I've got about ten hours into what I thought would be a three-hour case, but I figure I'll make it up handling the state's appeal from the grant of the motion to suppress. 

I call Dave and tell him to make sure Derrick's in court the following week.  "That shouldn't be a problem," he tells me.  "He just got picked up on a gun charge last night."

We go over the next Wednesday, and the judge tells us she still hasn't made her decision.  Translation:  she's not sure her decision is the same one she made before Derrick got picked up on the new charge.  A couple hours later she calls Dave and almost apologetically informs him that she's overruling the motion.

Of course, if I hadn't agreed to all the continuances and pushed the case harder, not only would I not have spent so much time on it, but Derrick wouldn't have had the time to go and pick up another case.  Oh, well, I figure, I'll still make money on the appeal, although this one will be ours, not the state's.

Well, no.  Dave called me last week and tells me Derrick pled out to two years agreed time in return for waiving his right to appeal. 

Good deal for him. 

For me, not so much.

See you on Monday.


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