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 »

×

The Big Picture

I do a lot of appeals -- 170, my BFF Lexis tells me -- and I'm constantly amazed at how much I still learn.  I've had two recent epiphanies.  The first is that the best time to start practicing for oral argument is just before you write your brief.  The second is what an advantage it is to be the appellant.

I talked yesterday about the rape case I tried a couple weeks back, and the contrasting stories by the prosecution and the defense.  There's also a story in every appeal, and unlike the myriad stories that can emerge at trial, on appeal there's really only two:  the result below wasn't correct, or the process used to arrive at that result wasn't fair.  In layman's language, your client got jobbed, or he got railroaded. 

Preferably both.  There's a relationship between the two.  The court has to have some doubt about the result, or any problem with the process is going to be swept under that huge rug called Harmless Error.  In most of my appeals from trials, I write an assignment of error on manifest weight.  I often don't include it, but it at least gives me a sense of the flow of the trial, and how any errors might have impacted it.

That's important.  One of the things I've preached is avoiding the natural tendency of lawyers to deconstruct cases.  That's how we were trained in law school:  we'd be given a case, and we'd break it down, charting the key points, the key arguments.  We spend our careers doing that.  We break down the divorce case into who gets the house, who gets the retirement accounts, who gets the kids.  The contract lawyer looks for whether there's consideration, what the terms are -- length, revocation, warranties, indemnification, and on and on.  The prosecutor has his checklist of the elements he has to prove.  The defense lawyer focuses on where he can poke holes in the state's case.

By doing that, we sometimes lose sight of the big picture, of the story of the case.  That's where my first (latest) epiphany comes in.  Before you write your appeals brief, walk around the kitchen or stand in front of the bathroom mirror and practice your oral argument:  tell your story.  Tell the judges why you should win.  That might not be anything close to the actual oral argument you give; a lot of the first one should work its way into your brief, and you may need to come up with something else when you're standing there in front of three or seven or nine people in black robes.  But it goes a long way to getting your story out there.

Which brings us to my second (latest) epiphany.  Being an appellant has a major disadvantage:  the panel knows that somebody already heard your case, and you lost.  But you have a major advantage, too:  you get to tell your story first.  And not the way a prosecutor does at trial.  Yes, he gets to go first, but you're always there to respond:  you get to schmaltz the jurors in voir dire, you get to make an opening statement, too, you get to cross-examine his witnesses.

In an appeal, the first thing a judge is going to read is your brief.  You get to tell your story, you get to frame the issues.  Being the appellant is like being the prosecutor, if he could put his entire case on without you saying a word, and then let you attack it. 

I just did a brief on a case where the prosecutor introduced substantial evidence of the defendant's use of K2, a form of synthetic marijuana, and argued that's what prompted the defendant to sexually molest three children.  (And yes, I know it sounds like something out of Reefer Madness.)  I talked to one of the participants in the trial, who insisted that the K2 use had been a non-factor. 

Well, by the time I got done with it, it sure as hell was.  And thanks to the marvels of modern technology, which now gives us a searchable electronic transcript, I was able to write a line like this:  "The word 'K2' appears 88 times in the transcript, over three times more often than the word 'rape,' the charge for which Mr. Mims was ostensibly on trial." 

I like that story.

Search

Recent Entries

  • February 15, 2017
    The trial tax debate
    Oral argument in State v. Rahab
  • February 14, 2017
    What's Up in the 8th
    Corroboration for gross sexual imposition, standards for incompetency of the defendant, and the court provides a safety reminder
  • February 13, 2017
    Case Update
    Judicial independence, and appellate cases on hearsay, "mandatory probation," and withdrawing pleas, and my screed about Anders briefs continues
  • February 7, 2017
    What's Up in the 8th
    Jury waivers, allied offenses, and the proper standard of review for abuse of discretion
  • February 6, 2017
    Case Update
    The State tries to get Hand into SCOTUS, upcoming oral arguments in the Ohio Supreme Court, and when you can get the State to pay for an expert even if you've got retained counsel
  • February 1, 2017
    A tale of two cases
    The 8th tackles pre-indictment delay again.
  • January 31, 2017
    What's Up in the 8th
    Coerced plea deals, who's likely to be present, and the gang impact unit strikes again
  • January 30, 2017
    Case Update
    Trump's potential nominees for the Supreme Court, Ohio's death penalty hits a speed bump, and appellate decisions on blackouts and cocaine weight
  • January 26, 2017
    Victim's rights
    Could a new ballot initiative granting rights to victims of crimes affect the rights of defendants?
  • January 24, 2017
    What's Up in the 8th
    Some nice tries, but no wins for the defendants, and one defense attorney takes a bruising