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Beating the mark

I was commiserating the other day with Dave, the lawyer who tried the case of an appeal I'm handling.  I couldn't find anything besides the possibility of an allied offense error, and the thrill of that discovery was substantially diluted by the fact that the sentences were run concurrently.  Dave didn't have much luck with the case, either.  The guy had beaten his girlfriend with a pipe, and his defense consisted of believing that she wasn't going to show up for trial.  He turned down a misdemeanor, but the judge issued a bench warrant for her, and sure enough, she was locked up by the time of trial.  It was downhill from there, and the client went off to do his six years.  "I did keep the jury out for a couple hours," Dave said with a smile.

Ah, moral victories.

There are few things better than sitting at the defense table while the judge reads the verdict and hearing the words, "not guilty."  (Or so I've been told.)  But sometimes, a moral victory is all you get.  Keeping the jury out for a while on an open-and-shut case is one of them.  Beating the mark is the other.

Bobby and his friend Larry were junkies, and they decided to break into Larry's uncle's house and steal some stuff.  Their plan for accomplishing this was no more sophisticated than going to the uncle's house in the morning after he'd left for work, pulling out an air conditioner and climbing through the window.  This unsurprisingly aroused the neighbors' attention, and the police were there in minutes.  Bobby ran out of the house, and was quickly apprehended.  Larry came out a few minutes later.  The uncle came home right after that, and noticed that two guns he owned had been placed in a duffel bag and moved from the bedroom closet to the pantry closet.

This resulted in a count of second-degree burglary, theft, and weapons under disability, with one-year gun specs on the burglary and theft charges.  What weapons, you say?  The ones that were moved in the house.

Overkill much?  That's what I said to Felicia, the prosecutor, at the first pretrial.  "Charging a guy with gun specs because he finds them in the house he's burglarizing?  That's not the America I know and love."  She was unmoved. 

In Cuyahoga County, supervisors have to approve any plea offer.  It's a process called "marking" the file:  the prosecutor will take the file to the supervisor and discuss it with him, and he'll write on the file the acceptable plea.  By the third pretrial, Felicia had gotten the file marked:  Bobby could plead to the second degree burglary with a gun spec, plus the weapons under disability.  "Why would I do that?" I asked her.  "I've got a decent judge, and I'll bench it to her and she'll throw out the gun charges and find him guilty of a third degree burglary."

Which is exactly what happened on Tuesday.

I wasn't terribly worried about the gun specs.  Even if Bobby had been the only burglar, I'm not sure the judge would've convicted him of possessing a gun during a crime for moving one from Point A to Point B in the house.  But Larry had been in the house, too, and was in the house after Bobby hoofed it, and there was nothing to indicate that Bobby was the one who'd moved them, or even knew they'd been moved.

The burglary charge was a different story.  The difference between a second degree felony burglary charge and a third degree is that with the former the State has to prove that someone was "present or likely to be present."  And the case law on that, especially from the 8th District, is pretty good.  The most recent case is State v. Richardson, which holds that when a person is at work, unless he occasionally goes home during his working hours, he's not "likely to be present" for a burglary.  (To show that the key to successful trial work is preparation, I'd found the case ten minutes before I walked over to court.)  Felicia was aware of this, because she asked the uncle, who was a bus driver, about coming home for lunch.  Alas, the burglary happened in the summer months, when his duties consisted of maintenance, and he stayed at work all day.

After the judge announced her verdict, I walked out of the courtroom with Felicia, consoling her that the emotional scars from the beatdown she'd just suffered would heal in time, the kind of flippant remark that so many people find somewhat less than endearing about me.  She went off on me, telling me that this interpretation of the burglary statute penalizes people who work.  I told her that it was rewarding people who have the good grace to wait until nobody's in the house to burglarize it.  Actually, I don't think it does either.  I'm fairly certain that Bobby and Larry's motivation for not burglarizing the house while the uncle was in it was the knowledge that he had three guns, not that they'd be convicted of a lesser felony if they were caught.

So Bobby will be sentence in a month, and he'll likely do time; he's a druggie, and although he's spent the last five months in jail trying to get a handle on that -- doing NA meetings and drug treatment -- he's got a bad record.

But at least I beat the mark.

*   *   *   *   *

 As usual, since nothing's going to be happening over the next couple of weeks, I'm going to take a break from blogging.  I'll be back here on January 5, to tell you all about what's happened in the previous couple of weeks.

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