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 »


Who's in charge?

I had a seminar last Friday, which included an hour of ethics.  It was one of those "interactive" seminars, where instead of droning on, the lecturer posed hypotheticals for the audience to respond to.  That can prove disastrous in certain situations, but this wasn't one of them. The audience was engaged, the speaker was very good, and the hypotheticals were quite interesting.  One involved doing post-conviction relief on a death penalty case, digging into whether the trial lawyers competently examined and presented mitigating evidence, and your client tells you under no circumstances do you talk to his mother.  That's a no-brainer; death penalty work is a whole 'nuther animal, and you leave no stone unturned, regardless of what your client wants.  (It might have been more interesting if the hypothetical had been that you're the trial lawyer, you think the mother might have evidence relating to an alibi, and your client forbids you to talk to her.)

The last hypothetical, though, was what you do if you think you can get an instruction on a lesser-included offense, and your client doesn't want you to pursue that.  The answer to that, it became clear, depends on what you envision is your role as a defense attorney.

One way of looking at it is that there's the Big Three, and there's everything else.  Under the disciplinary rules, a client has sole authority to determine whether to plead, whether to try the case to a judge or a jury, and whether to testify.  You can implore, cajole, even intimidate, and it's still your client's call.  Everything else is in your bailiwick.  You're not going to pay any more attention to your client's opinions on whether to ask for a charge-down to a lesser included than you would ask for his opinions on how to handle voir dire or closing argument.

Several lawyers there were strong advocates of the Big Three, Then Me philosophy.  "If he wants to go law school for three years, that's fine, but until then, I'm going to make that call," said one.  Another opined that the real issue was "client control."  "Judges know the lawyers who can control their clients," he said.  The speaker rightly rejected this as an attempt at evading the issue:  of course you don't have these kinds of problems if you assume that you always get your client to agree with you.

I'm not a big believer in the philosophy that I'm in control of everything but the Big Three.  Sure, when it gets down to trial tactics, and even strategy, I'm not going to be asking for his input on how I'm going to cross-examine a particular witness, or what my theory of the case is going to be.  But I've always regarded my role on the major issues to be an informational one:  My job is to provide my client with as much information as I can, so he can make an intelligent choice among his options.

Of course, that doesn't always work.  There are some people who simply are very poor at making good decisions in life, and criminal defendants are vastly over-represented in that group.  Any criminal defense lawyer can tell you about cases that never should have gone to trial, but did because of the client's bull-headedness.  The results of that usually aren't pretty.  I got assigned an appeal just last week of a client who had withdrawn her plea to a third degree felony, and then gone to trial.  She got convicted of aggravated robbery with a three-year gun spec, and is doing thirteen years.

Still, I remember overhearing a lawyer trying to sell a plea bargain years ago over at the Justice Center.  "It's a great deal," he told his client.  "Yeah?" said the defendant, unimpressed.  "If it's such a great deal, why don't you do the time?"

That's something we sometimes forget:  regardless of our investment of time, effort, and even emotion in a case, it's the client who still has to deal with the consequences.  Regardless of what happens, I get to walk back to my office when the case is over.  I thought about that when I read the 8th District's cases last week, and came across Joanne Schneider's.  As I explained yesterday, Schneider had bilked 1700 people out of about $60 million dollars, the second biggest securities fraud case in Ohio history.  Her three-year sentence got reversed last year when the everyone belatedly realized that she'd pled to an offense that carried a mandatory ten years, and last week the 8th reversed again because the new trial judge had refused to let Schneider withdraw her plea on remand.  There were some defense attorneys I know who argued that withdrawing the plea wasn't a good idea, since Schneider was now in front of a judge who could easily give her consecutive sentences totaling substantially more than ten years if she went to trial.  But for some clients, a sentence isn't simply a linear spectrum from zero to whatever; for some, going to prison at all is what's to be avoided, and if that can't be accomplished, it doesn't much matter whether it's two years or five.  To Schneider, who's 69, there's probably not much difference between getting out of prison in ten years and never getting out at all.

So what do I tell my client about the lesser included?  Yeah, you have to go to law school for three years to decide whether you're entitled to a charge on one, but you don't need law school to figure out how it will affect you.  Maybe it's simple:  you've got a 50-50 chance of acquittal.  If it comes up tails, you lose, you'll do ten years.  If the jury gets a charge on a lesser-included, your chances of getting convicted of the greater offense go down to near zero, but you've got a 70% chance of being convicted of the lesser, in which case you'll do three years.  Sometimes -- usually -- it's not that cut-and-dried, and I may lean, and lean hard, one way or the other.  But ultimately, it's the client's call.

Oh, one more thing:  if a judge tells you that he thinks you've got "good client control," don't take it as a compliment.  What he means is that he can count on you to always get your client to plead out.


Recent Entries

  • 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
  • April 26, 2017
    Like Mark Twain, rumors of my demise have been greatly exaggerated. Except I am pretty sure he's actually dead, while I am not, and for that matter, nobody's spreading rumors that I am. Great lead, huh? The nice thing about...
  • April 20, 2017
    The Supreme Court takes a look at the trial tax
    And you thought this was the week you only had to worry about income taxes
  • April 18, 2017
    What's Up in the 8th
    Remembering Warren Zevon, and the Fourth Amendment lives