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 »


Four conversations

They've got a bunch of new prosecutors, and this one I hadn't met before.  My client Charlie and a friend had walked out of Macy's with merchandise worth $1,020, so I wanted a misdemeanor, a quest complicated by the 60 cycles on his rap sheet.  But then all that stood between him and that was a Jefferson, so when the discovery listed the items that were supposedly stolen, and each "price" was in round numbers -- $120, $300, $360 -- my suspicions were aroused.  I went up to Macy's and confirmed what any woman reading this post already knows:   In a store like Macy's, the price tag will always give the list price, and the list price will never be the price you pay for it; it exists only to persuade gullible customers that they're getting a really big deal by paying the "sale" price.  And I'd checked the statute before, and it describes value of retail or wholesale items as being the price the item is offered for sale.

So I was loaded for the bear for the pretrial:  had the pictures of the price tags on the stuff at Macy's, and a copy of the statute.  I sat down with the new prosecutor, prepared to regale her with why she needed to go back to her supervisor and tell him to give me the misdemeanor plea, because he'd never win the case at trial.  Our conversation was mercifully brief.  Before I could say a word, she said, "The file's been marked to a misdemeanor."

Charlie was sentenced on Monday to time served -- the two months in jail -- and I put in my fee bill right away.  I'd visited Charlie three times in the jail, I'd gone to four pretrials, and the trip to Macy's definitely put me over the cap of $500.

Mark is an excellent attorney.  If you're charged with a crime and have fifty grand or more to spend, his firm is going to be on the short list of lawyers to hire.  I ran into him over in court and somehow we got to talking about the dismal quality of attorneys on the assigned counsel list.  Rather, he got to talking about it.  And was very vehement on the subject.

"Mark," I finally said.  "Why don't you take assigned criminal cases?" 

He doesn't because he has clients are willing to pay him more than the $38.73 an hour that assigned counsel made on average in Cuyahoga County last year.  And I respect that.  But don't put down people who do take those cases.  No, they're not going to provide a defendant with a Cadillac defense, because that requires resources, and indigents don't have them.  (I talked to a lawyer last week who was paying $7,500 a day for a jury consultant.  After four days of voir dire, the prosecutor said something stupid, and the judge declared a mistrial.  So much for $30,000.  Try asking for money for a jury consultant in an assigned case.)  But a defendant's going to get a Taurus defense, and the county's only paying for a Kia.

*   *   *   *   *

I'd heard that Tom's case got 29'd, so I congratulated him when I'd run into him at the Justice Center.  Tom probably gets half his income or more from assigned cases.  He's a good lawyer, with excellent people skills, and he's sharper than some people give him credit for.  His client had been caught in a scheme to forge Cleveland Browns tickets.  Everything had taken place in Canton, but the State indicted him in Cleveland, because that's where the Browns headquarters are.  As Tom put it, "Does that mean if I steal a Camaro, they can indict me in Detroit?"  The judge threw out the charges at the end of the State's case.

Losing a case over venue isn't something that usually happens to a prosecutor, and there were some who were upset that Tom didn't tell them about it in advance.  That would have been unethical:  you can't throw your client under the bus to make nice with the prosecutor.  "I tried to tell them they had a problem with the case," Tom told me.  "I asked them to get me a misdemeanor, but they kept saying, 'what's the problem,' and I couldn't tell them."  He shrugged.  "Spent three days in trial for five hundred bucks, but next time I tell them they got a  problem, maybe they'll pay attention."

*   *   *   *   *

They've got a bunch of new prosecutors, and this one I hadn't met before.  He looked across at me as I sat down.  "Are you assigned or retained?" he asked.


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