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

Here's an old joke popular among criminal defense lawyers.  What do you say to a lawyer who's been fired from an assigned case?

"Congratulations."

Dealing with clients, especially those charged with crimes, is a tricky part of the lawyer's job.  As I've explained before, I regard my role as making sure they fully understand what all their options are.  I might give them a gentle nudge in one direction or another, but for the most part, I leave the decisions up to them, because they're the ones who are going to have to live with the consequences.  As you might gather, explaining the law to clients is one of the things I enjoy, and I'm pretty good at it.  I was in Columbus yesterday giving a presentation on Crawford at the annual death penalty seminar, and before my session I went down and saw one of my clients at Ross Correctional.  He'd been convicted of felony murder and aggravated robbery, and I'd gotten the 4th District to agree that those are allied offenses.  We're waiting to see whether the Supreme Court's going to take the case, so I walked him through the various scenarios of what could happen.  After I was done, he said, "I always have all these questions for you when I'm sitting on my cell, but then I come in here to see you, and you answer all of them before I can ask them."  That made me feel good.

Some of the clients, though, do bring out the latent misanthrope in all of us.  I had one guy recently we'll call Fred, who got caught selling crack near a school.  It was July, and the school was closed, but that doesn't matter under the law.  He didn't have any prior record, and he didn't seem like a bad kid -- he was taking classes at the local community college --so I wanted to see if I could avoid him getting a felony conviction by getting him into treatment in lieu of conviction.  Under the new law, that's available for a 5th degree felony trafficking.  That meant getting the State to drop the school spec, and I had a tough time with the prosecutor on that.  She finally relented, but the judge balked:  she didn't feel that she could in good conscience give ILC to someone who was selling crack near schools.  I disagreed with her on that, but I can respect that view.

Fred, not so much.  He was incensed, telling me that he knew plenty of other people who'd gotten breaks.  Yeah, I told him, and they had different judges.  You had the bad luck to draw a judge who wouldn't give you one.  I thought about it later, and I realized it wasn't a question of luck.  Second chances are nice, but there's nothing in life that says you're automatically entitled to one.

Another client, we'll call Andrew, was even more upset.  He'd pled guilty to 5th degree felony trafficking, and this after he'd just gotten out of a two-year prison stint for robbery.  And he tested dirty, for marijuana fortunately, at the time of the plea.  He told the judge at the sentencing that he used marijuana because he was under "stress."  "I'm under a lot of stress, too," said the judge.  "Do you think I should use it?"  Nonetheless, the judge gave him a year's probation, 75 hours of community work service, and told him to attend two Narcotics Anonymous meetings a week.

Doesn't sound like a bad outcome, but it cheesed Andrew off something fierce, as he let me know on our way down to the probation department, in a conversation that bordered on the surreal.  "How does he expect me to work if I've got to do this community work service?"

"Andrew," I reminded him, "You don't have a job."

"Yeah, but how am I supposed to find one?  Seventy-five hours, man..."

"You have a year to do that.  It works out to about an hour and a half a week.  I think you'll be able to fit that into your schedule."

"And these two meetings a week.  How am I supposed to even get to them?"

"Well, considering that there's probably one on every other block in this city, you can walk to it."  But then I saw his point.  "You know, you're right," I said.  "This is just unfair.  We're going to walk right back up there and I'm going to tell the judge that this is bullshit, and you're not going to accept probation if you have to do 75 hours of community work service and attend two meetings a week.  And we'll see what he does."

He didn't take me up on it.

And then there was Lanell, the guy who fired me.  It was a child support case, and I'd been kicking it down the road since June, trying to buy him time to come up with half of the amount due so that he could get a misdemeanor.  That blew up, and the matter was set for trial this past Monday.  The week before I found out that Lanell had filed a motion to discharge me, claiming that I refused to explain things to him.  Go figure.  The morning of trial, he decided he wanted to be his own lawyer, and the judge granted his wish, discharging me.  I got out of the courtroom before anybody could change their mind.  Here in Cuyahoga County, assigned counsel fees for a 4th or 5th degree felony are capped at $500, and even at the ludicrously low hourly rates of $60 an hour for in-court time and $50 for out-of-court time, I'd maxed out my fees sometime in mid-August.  On the list of Things I'd Like to Do, spending two days in trial on a child-support case just edges out stabbing myself in the head.

I hope self-representation turns out to be a better journey for Lanell than it did for this guy.  One of the things they teach you in law school is never ask a question in cross-examination unless you know what the answer will be, or don't care.  Philome Cesar didn't know that because he didn't go to law school, so during trial in the robbery cases he was charged with, Cesar asked one of the victims, "What did the robber sound like?"  And, of course, the victim answered, "He sounded like you."

Pretty hard to explain that way, no matter how good you are.

Search

Recent Entries

  • March 20, 2017
    Taking time off
    I'm taking the week off. Have a major brief due on Thursday, plus a trial in Federal court starting next Monday. Plus, I'm pretty sure that Obama wiretapped me, too, so I'm working on getting to the bottom of that....
  • March 17, 2017
    What's Up with the 8th?
    The 8th District cases come out every Thursday. By about ten o'clock in the morning, the court will have posted the "weekly decision list" on its web site. It will give a summary of the case, usually in a sentence...
  • March 14, 2017
    Rippo and Pena-Rodriguez
    SCOTUS issues decisions on judicial recusal and biased jurors
  • March 13, 2017
    Case Update
    A SCOTUS decision on career offenders, and appellate cases on what a judge can consider in sentencing, and untimely motions to suppress
  • March 9, 2017
    A switch in time
    The court reverses itself in Gonzalez
  • March 8, 2017
    What's Up in the 8th
    More sentencing stories, and the right way to handle an Anders brief
  • March 7, 2017
    Case Update
    Knock and announce and the Ohio Constitution, and Anders briefs.
  • March 6, 2017
    Never mind
    The Ohio Supreme Court reverses Gonzalez.
  • March 2, 2017
    Of bright lines and bookbags
    Oral argument in State v. Oles and State v. Polk
  • February 28, 2017
    What's Up in the 8th
    A good outcome in a search case, probably a good outcome (to be) in a drug case, and a very bad outcome in a child rape case