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

  • January 17, 2018
    What's Up in the 8th
    When not to decide cases on allied offenses and pre-indictment delay
  • January 11, 2018
    Case Update
    Three new decisions from the Ohio Supreme Court
  • January 10, 2018
    To the barricades!
    Why I'm a threat to the Ohio state government
  • January 5, 2018
    Search and seizure in the digital age
    Do the cops need a warrant to get cell phone data?
  • January 3, 2018
    What's Up in the 8th
    We talk about me a lot, but there's some other stuff, too
  • January 2, 2018
    He's baaaack
    So I thought I'd start my first post in six weeks by explaining why it's my first post in six weeks. Ever run into somebody and ask the obligatory question, "How are you doing?" And they proceed to tell you...
  • November 15, 2017
    What's Up in the 8th
    Plea withdrawals (again), sexual predator hearings, and an appellate law question
  • November 7, 2017
    What's Up in the 8th
    Don't listen to prosecutors about the law, good new/bad news jokes on appeal, and the Byzantine course of a death penalty case
  • October 24, 2017
    What's Up in the 8th
    Trying to change the past
  • October 16, 2017
    En banc on sentencing
    The 8th District takes a look at what State v. Marcum means