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 »


Getting Fired

I wasn't exactly heartbroken when I came back from a day in trial and found a voicemail message from a lawyer telling me that he'd been retained by Karen's family to represent her from here on in. I'd been appointed to represent Karen, and I'd already maxed out my fees, so the prospect of spending more time on the case for free wasn't very appealing. If I'm assigned to a case and the client wants to retain a lawyer, God bless.

Still, this one bothered me a bit. Every lawyer who takes assigned cases likes to think that he does just as good a job on those as he does for retained clients. In this case, I knew I hadn't.

Not that Karen had done a good job for herself. She was arrested for obstructing justice -- trying to cover for her boyfriend -- and when they took her to jail, they found some drugs in her purse, which bought her a charge of conveying narcotics into a detention facility, a third-degree felony. She was originally put into the county's early disposition program, which attempts to resolve low-level felonies with a quick plea to an information. That didn't happen; instead, we spent several pretrials before we even got the point of figuring out what she was going to be charged with.

Figuring out what to do with her was another matter. Karen presented well: she was attractive, in her 30's, with a couple kids and a job. And a heroin problem. Drug Court was willing to accept her, but only if she went into inpatient treatment, and for various reasons, that wasn't an option. So at the first real pretrial, after she was indicted, I had the judge refer her for treatment in lieu of conviction. She was on court-supervised release already, and after the pretrial she asked me if she should go over and see her probation officer. I told her to do that.

Later that afternoon, I got a call from her brother, asking if I knew what parking lot her car was in. Huh? It turns out Karen had indeed gone over to see her probation officer, which meant submitting to a drug test. When she went down to take it, they found she'd brought along a jar of somebody else's urine -- eeeeewwwww -- to submit. Of course, she tested positive, and was remanded.

Over the next couple of weeks, I spent time on the phone, at the jail, and over in court talking with Karen, her father, brother, and mother, with the people in drug court (who no longer wanted her), with the probation officer, who was trying to find a residential program for her, and with the judge, trying to convince him to let her out until they did. I talked him into doing that, but he called me late in the afternoon and told me that after checking with the probation officer, he'd changed his mind: she had to stay there until they found a place for her.

And that was it. The family called me several times while I was in trial, but I didn't call them back. And then I got word that the new lawyer had gotten her into a facility, and was taking over the case.

At first I figured that while I have a number of jobs as an attorney, getting a client into a treatment bed isn't one of them. On the other hand, the other lawyer had made it his job to do that. On the third hand, that's what he'd gotten paid to do, which is where we get into the trouble area. As you may have guessed, it's not like I spend large amounts of my time playing Scrabble on my iPhone. I'm also a sole practitioner, with nothing other than a receptionist to answer my phone; I can't pawn off the job of checking with various drug treatment facilities on my associate, paralegal, or even secretary. There's a lot of scutwork to be done in practicing law, and the problem with practicing law like a lot of solo practitioners do is that if you don't do it, it doesn't get done.

If that sounds like rationalization, it is and it isn't. Criminal law, in both its trial and appellate varieties, is about as deadline-driven as any job you'll find, and you develop a system of triage: what's most important gets done first. At the same time I could have been trying to find a treatment bed for Karen, I was writing one brief trying to keep a 24-year-old woman from being deported and permanently separated from her husband and 3-year-old son, another brief trying to get a client's rape conviction reversed, and preparing for trial in another rape case where the client -- the same one as in the appeal, but that's another story -- was looking at a 10-to-life sentence. The last two were both appointed cases -- see "Another story," supra -- where my eventual rate of compensation will work out to something along the lines of $30 an hour. If I'm lucky. And just to show that I'm not a complete slug when it comes to appointed case, the appellate brief was 25 pages with 49 -- count'em 49 -- case cites, and one of the best I've done, and when I walked into the trial I had a file with every document of interest separately tabbed and a notebook containing the outline of my anticipated cross for each of the State's key witnesses.

But you know what? If somebody had walked in during that time and said, "My daughter just got locked up for dropping a dirty urine, and I need you to get her into a treatment program so she doesn't sit in jail," and plunked 25 Benjamins down on my desk, I would've found the time to do it.

That's what bothers me. Not a lot, mind you. But it bothers me.


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