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 »


My rewards program

The short version of the boyfriend's story was that Shelly had stabbed him for no reason.  The short version of Shelly's story was that he had been on top of her, beating her because she wouldn't have sex with him, when she reached under the bed and found a knife that had been conveniently left there, and stabbed him with it in an effort to rebuff his attack.

There was a long version to Shelly's story.  Boy, was there a long version.  Some of my clients are apparently confused as to my precise role in the criminal justice system; they suffer from the belief that my job is not only to represent them, but to be their biographer, and thus want to regale me with every grim detail of their lives from the moment they were first yanked from the womb until the present.  Usually, some gentle nudging that I am more interested in the events of the current century than those of the last will be sufficient.  Sometimes not.

Shelley, not.  Shortly after I was assigned to represent her, she came to my office to discuss her case.  For three hours.  This resulted in the my formulation of Operation Rescue:  my receptionist, Jennifer, was given strict orders that, henceforth, if a client was in my office for more than an hour, Jennifer was to buzz me and announce over the intercom that Judge So-and-So was demanding my immediate presence in his courtroom.  "Jeez, love to keep chatting, but I gotta go."  It's been a lifesaver.

I had to put Operation Rescue in abeyance last Tuesday, when Shelley came in to prepare for her trial.  Shelley was charged with felonious assault, a second degree felony.  At the first pretrial, I told the prosecutor that Shelley would plead to misdemeanor assault.  She laughed, and said once I sobered up and made her a reasonable request she'd be happy to take it down to her supervisor.  Later, she confirmed what I'd figured:  the most they were willing to do was come down to aggravated assault, a fourth-degree felony.

I couldn't say that I blamed her, but I didn't blame me, either.  The boyfriend was no prize; he had a thirty-year-old murder conviction, which I couldn't use, but even in his late 50's, he'd gotten into a couple scuffles with the law, including a domestic violence conviction involving Shelley a couple of years earlier.  Not to say that Shelley didn't have some baggage, too; she pled to aggravated assault eight years earlier for an incident in which she had... ahem... stabbed somebody.  "You know, Russ, I took a look at your client's record," the bailiff told me at one of the pretrials.  "Seems she has a habit of stabbing people."

"Well, John," I shrugged.  "Some people just need stabbing."

Still, the way I figured it, the Bell curve of possible outcomes in this case showed a huge hump in the middle for the judge -- this was going to be a bench trial -- concluding that sufficient provocation had been shown to drop it to aggravated assault, with a small chance on one side of acquittal on grounds of self-defense and on the other of conviction of the felonious assault.  Even with the presumption of incarceration for that offense, though, I figured the judge wasn't likely to send a 44-year-old woman with obvious emotional and mental problems to prison.  In my mind, with only an offer to plead to what was the most likely outcome at trial, there was little downside to trying the case.

Explaining the fine calibrations of my thinking to Shelley was a non-starter, of course.  She was not, shall we say, reserved, and spent most of the two hours in my office last Tuesday in emotional rants about the perfidy of her boyfriend.  At one point, she showed me the death certificate of one of his previous wives.  "So?" I asked, non-plussed.  "This says she died of lymphoma."  "But the other one" -- the one for whom she apparently did not have a death certificate -- "was shot in the head, and I think he did it!"  I briefly contemplated how I would attempt to prove that he had killed his previous wife with this evidence, and then tried to figure out on what planet that would have been admissible in any event.

And on and on it went, with great wailing and gnashing of teeth, and more drama than you're going to see in a Mexican soap opera.  At one point, she suggested that I wasn't sufficiently committed to her cause.  "Look at how much time I've spent with you," I protested.  "You have any idea what I'm getting paid for this?"

She looked at me and said, "Your reward will be in heaven."  I am not making this up.

I told her that Giant Eagle insists I pay for my groceries in cash, rather than in anticipated heavenly rewards.  I didn't mention that this case had probably hastened my receipt of heavenly awards by a good two years.

So off we went to trial.  After the first couple of witnesses, the judge called us up to the bench.  "Can't you guys work this out?" she said.  The prosecutor said she'd try, and she sure did:  after a half hour discussion with her supervisor and the victim, she came back with an offer to a misdemeanor.

This was a no-brainer.  A brief discourse on the law:   Self-defense requires one using deadly force to be in reasonable fear of death or great bodily harm.  Shelley had brought a knife to a slap-fest.  The most Shelley had was some contusions; without some showing of broken bones or bleeding or the like, self-defense was a steep uphill climb.

But Shelley was having none of it.  After much further wailing and gnashing of teeth, it was my sad duty to walk back into the courtroom and tell the judge, after she'd heard the prosecutor say they were offering a misdemeanor, that we were going to proceed with the trial.  The judge looked at us, and if the court reporter were telepathic and could transcribe thoughts, the record at that point would have read

THE COURT:  Are you out of your fucking mind?

After some more discussion and wailing and gnashing of teeth, cooler heads prevailed, and Shelley pled to the misdemeanor.  She concluded her rambling allocution with a tearful protest that "the only thing I'm guilty of is loving him too much."

I am not making this up, either.

While Shelley waited outside the courtroom for the bailiff to complete the journal entry sending her down to probation, the court reporter wondered what degree of felony "loving someone too much" was.  I chimed in that "liking" someone too much was probably a lesser included, and we contemplated how the plea colloquy might go:  "Your honor, at this time the prosecution moves to amend the indictment by deleting the word 'love' in the first count and inserting the word 'like.'"

I took Shelley into an empty courtroom to have her sign my fee bill.  "So how much do you get for this?" she asked.  "Seven hundred and fifty bucks," I said.  She nodded.  "That's not too bad."

Ah, but it pales in comparison to the heavenly rewards I'll be getting, even if Giant Eagle doesn't care.


Recent Entries

  • 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
  • April 17, 2017
    Case Update
    Structural error, prejudice, and police run amok.
  • April 13, 2017
    Some arguments on sentencing
    Why oral arguments can be fun, even when they're not yours
  • April 12, 2017
    What's Up in the 8th
    Oh fun: declarations against interest v. non-hearsay. Also, the difference between not guilty and innocent, and Ohio's statute penalizing the refusal to take chemical test in a DUI case goes bye-bye
  • April 11, 2017
    Case Update
    Filibusters, and appellate cases on all the ways lawyers can screw up.
  • April 7, 2017
    Change of course
    A new approach in my client-attorney relationships
  • April 4, 2017
    What's Up in the 8th
    A true rocket docket, and Anthony Sowell pops up again
  • April 3, 2017
    Case Update
    Free merchant speech, an argument on Brady, another look at Creech