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 »


A bad deal?

Thumbnail image for books.jpg

Child sex cases are always the worst.

There are two approaches to plea bargaining. One is to simply lay out the options a client faces; the other is to nudge him, sometimes forcefully, toward taking a plea. (I don't know of any lawyer who will try to dissuade his client from pleading and instead take the case to trial, for reasons which you should be able to figure out.) Just about any attorney will use a combination of both approaches, going with the latter if the deal is particularly favorable, or if a guilty verdict at trial is a foregone conclusion.

That brings us to child sex cases, and my client Gene.  He'd been caught in flagrante delicto by his wife:  her eleven-year-old daughter bent over the bed, with Gene standing behind her, his penis out.  She chased him out of the house, and he sped off in his car.  He phoned her twenty minutes later, telling her "you caught me" and "I got no defense."  Unbeknownst to Gene, the wife put him on speakerphone so that the cops, who'd arrived by that time, could hear it.

Gene had an innocent explanation for this, but let's just say it wasn't a good one, and in order to present it at trial I'd have had to put Gene on the stand, at which point the jury would learn that he'd spent fifteen years in prison for attempted rape.  But this is why child sex cases are the worst:  no matter how damning the evidence, how futile the prospects of trial, the defendant will never admit to doing anything.  They'll insist they're innocent, that what the victim says didn't really happen.  You'll explain until you're blue in the face how what really happened doesn't mean squat:  it's what a jury will believe happened, and juries are very prone to believe children who are alleged to be victims of sexual predators, and very unlikely to believe people who are accused of being sexual predators.  Try as I might, Gene didn't want to hear about the deal I'd gotten him.

I didn't much blame him, because it was a lousy deal.  Gene was charged with gross sexual imposition -- things hadn't gotten that far -- and kidnapping, the kidnapping with a sexual motivation spec and both with sexually violent predator specs.  The latter meant that Gene was looking at 10 to life.  I'd tried to get the prosecutor to agree on a six or seven year sentence, but she was having none of it:  she wouldn't budge from ten years.

To be sure, there's a big difference between 10 to life and 10 years flat.  With the life sentence, it's 10 years until you hit the parole board.  But every lawyer in Ohio knows that the board's not going to grant parole to a sex offender the first time out; generally, a sex offender, especially where the offense involves children, is going to do 20+ years.  With Gene's prior record, it was likely that life meant life.

Especially in his case, because here's the other thing:  Gene was 53, and not in particularly good health.  Being in prison takes about 15 years off your life expectancy, and there was no way Gene was going to make 20 years.  In fact, I wasn't sure he was going to make the 10 years flat.

But sometimes possibility is all you can shoot for, and so we did our dance, with him telling me how he didn't do it, and me telling him that the only real question was whether he was going to have a chance to breathe air as a free man sometime in the future.  As is so often the case, when we got to the day of trial, he caved, copping to the plea deal.

And almost immediately regretted it.  There's the part in the plea colloquy where the judge asks the defendant if he's satisfied with his attorney, and I knew what was coming.  I wasn't disappointed.  I wasn't upset; hell, I wasn't satisfied with my performance as his attorney.  Lawyers tend to think about criminal cases as a game, but it's one that no one would play unless they had to, because the house odds make the slot machines out at the Vegas airport look like easy money.  Sometimes, the best deal you can get just isn't very good.  The judge shrugged it off, telling Gene that after all I had gotten the specs dismissed.  Well, there's that...

eedless to say, Gene tried to withdraw his plea at the sentencing two days later.  The judge shrugged that off, too, and gave him the ten years flat that everybody had agreed to.

A couple of weeks later, the judge got a letter from the Department of Rehabilitation and Corrections, pointing out that while the journal entry said ten years flat, the actual convictions as listed in the entry would result in a ten to life sentence.  We thought this was just a problem with the journal entry, but then I took a look at the plea transcript, and found we'd screwed up:  the reference to the child's age should have been deleted.  Of course, that meant that it wasn't the judgment entry that had to be corrected, the whole plea had to be vacated.  They had Gene appearing by video conferencing, and I wasn't about to try to explain what was going on through that.  Besides which, to correct it meant that Gene would have to re-enter the plea, and if I had to hazard a guess as to how that was going to come out, it wasn't going to come out well.  I told the judge I'd file a motion to vacate the plea, and she set it for hearing.

A couple of days before the hearing, I got an email from the prosecutor, asking if Gene had died.  She said she'd been checking the obituaries (the "Irish sports pages," she called them), and had seen someone with that name.  I checked the offender search on the DRC website for his name, and came up with nothing.  Then I checked the Plain Dealer obituary pages on line, and there was somebody with that name who looked sort of like Gene, although in much better days.  I told the prosecutor to call the wife, and sure enough, Gene had dropped over dead the day after Christmas.

What was really weird was the the Plain Dealer site has a "guestbook," where people can write notes commiserating with the dearly departed's next of kin.  There were a couple of notes to the wife, telling her to buck up through this ordeal and try to concentrate on "all the wonderful memories" she had of Gene.  

I'm guessing she'll be able to cope.


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