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

There's gratitude for you.  So you've got a client who was convicted of rape, along with four counts of unlawful sexual conduct with a minor, and got sentenced to 25 years in prison.  Then he caught a break:  the appellate court found the evidence insufficient for the sexual conduct charges and vacated them, and also reversed the rape conviction because of improper admission of other acts testimony, so the whole thing comes back.  You get appointed to represent him, and you work out a sweetheart of a deal:  the rape charge is reduced to one count of gross sexual imposition, a fourth degree felony, and since he's already done three years, he's released.

So what does the client do?  He files an appeal, claiming you rendered ineffective assistance of counsel.  

That was the claim presented in State v. Wright, a decision handed down by the 8th District a couple weeks back.  The panel makes short shrift of it, noting that a guilty plea waives any claim of ineffective assistance except to the extent that the attorney's deficient performance induced the plea, and here the sole claim of deficient performance is that Wright would've been acquitted of the rape charges if he'd gone to trial.  Since he was convicted the first time around, that doesn't have a lot of legs.

But still, is that trip even necessary?  When an attorney's efforts result in a guy going from spending over half his adult life in prison to walking out the door as a free man, is the issue of whether the attorney did a good job even debatable?

I've commented before on the promiscuous use of ineffective assistance claims; sometimes I come away from reading the week's 8th District decisions with the belief that, at least according to the defendants' appellate briefs, half the criminal attorneys in town are drooling idiots.   It's quite likely that Wright was the one who came up with the idea of claiming his attorney was ineffective; his first two attorneys in the trial court withdrew, and he filed a supplemental pro se brief in his first appeal.  Still, this was one assignment of error that probably should've been left on the cutting room floor.

Mind your manners.  Gosh, and here I thought it was okay to show up for court in Levis, refer to opposing counsel as a "sniveling jackal," and shout "that's bullshit!" as a method of lodging an objection to a question.  Guess I was wrong, at least according to the Supreme Court's Commission on Professionalism, which recently issued a list of Dos and Don'ts for "professionalism in the courtroom."

Most are things you should've learned by third grade -- about half of them can be summarized as "play nice" -- and there are some that should be self-evident to anyone who didn't flatline his last EEG.  ("Speak clearly and enunciate when addressing the judge or a witness."  Who knew?)  There are a few weird ones; I've never begun a voir dire, opening statement, or closing argument by saying "may it please the court," and despite the admonitions of the Commission on Professionalism, I have no intentions of doing so in the future.  A little too formal for my tastes.

The list could easily have been written 50 years ago (and probably was), with one exception that falls into the category of Sign o' the Times:  "During final argument, be circumspect when summarizing testimony that contains profane language."  Don't remember Perry Mason having to do that. 

Onward, onward, ever onward.  Back in 1979, Pearl Bailey and Cluster Daniels filed a civil rights class action lawsuit in Federal court alleging that Tennessee's Medicaid program violated various statutory requirements, and also constituted a Due Process violation.  What's the significance of that?  The case is still going on!  Sure, some parties have been substituted (Bailey died way back in 1984), and various consent decrees resolving parts of the case have been issued and reissued, but the case has become an Energizer Bunny, motoring across the legal landscape. 

The latest news from the front comes via the 6th Circuit's decision last week, a 45-page opus which addresses who gets paid for all this, and how much.  (Among other things; it gives a procedural history of the litigation that is positively mind-numbing.)  Well, we know how the defendants' lawyers get paid:  they're on the public dime.  So are the plaintiff's lawyers, in a sense, because civil rights litigation is one of the exceptions to the American rule that each party is responsible for paying their own attorney fees. 

The opinion's probably a good read if you're doing a lot of civil rights actions and want to know what a "prevailing party" is and stuff about the "lodestar" rate and so on.  Fortunately, I was spared having to read all that, since those subjects have about as much relevance to me as how Hot Pockets are made.  (Slightly more interesting is the question of why anyone would ever eat one.)  The payoff actually comes in the first paragraph, where the court notes that the original petition for fees "yielded requests for dry cleaning bills, mini blinds, and health insurance."

Those were challenged, and dropped.  Presumably, all the attorneys were polite and professional in doing so. 


Recent Entries

  • August 15, 2017
    Summer Break
    Got a bunch of stuff to do over the next couple weeks, and with the slowdown in the courts, it's a good time to take a break. I'll be back here on August 28. See you then....
  • August 11, 2017
    Friday Musings
    Drug trafficking, ADA lawsuit abuse, and e-filing
  • August 10, 2017
    Case Update
    Waiting on SCOTUS; two Ohio Supreme Court decisions
  • August 7, 2017
    Two on allied offenses
    A look at the 8th District's latest decisions on allied offenses
  • August 3, 2017
    Thursday Ruminations
    Computerized sentencing, lawyer ads, and songs from the past
  • August 1, 2017
    8th District Roundup
    One thing that doing this blog has taught me is how much the law changes. The US Supreme Court's decisions in Blakely v. Washington and Crawford v. Washington have dramatically altered the right to jury trial and confrontation, respectively. The...
  • July 28, 2017
    Friday Roundup
    The better part of discretion
  • July 26, 2017
    Supreme Court Recap - 2016 Term
    My annual review of the Supreme Court decisions from the past term
  • July 24, 2017
    What's Up in the 8th
    Some things we knew, some things we didn't
  • July 21, 2017
    Friday Roundup
    Computers and sex offenders, civil forfeiture, and phrases that should be put out to pasture