Every defense lawyer has his "deadly weapon" story: the indictment for felonious assault, alleging that defendant "caused or attempted to cause serious physical harm by use of a deadly weapon, to-wit:" followed by some object which no one would ordinarily think of as a deadly weapon. My second favorite case involved an indictment which alleged, "deadly weapon, to-wit: a pencil." In first place was the case where that ended with "to-wit: a toy gun." The "weapon" in question was indeed a plastic toy gun. (They'd even charged my client with a firearm spec; as the prosecutor said, "I guess they missed that one in the grand jury.")
He argued nonetheless that it was a deadly weapon because it could have been used as a bludgeon, and in a sense he was right. My client had pulled it out during a small party in an attempt to rob the other people there. They took it away from him and beat him over the head with it. The police found shards of plastic strewn around the apartment.
The "bludgeon" theory took a major hit this week with the Supreme Court's decision in In re J.T. It wasn't a felonious assault case; the police had stopped a group of juveniles, an officer spotted a large bulge in J.T.'s waistband, and discovered the gun when he patted J.T. down. J.T. was originally charged with carrying a concealed weapon as a 4th degree felony, but when it was determined that the gun was inoperable, the charge was reduced to a first degree misdemeanor. The magistrate nonetheless found J.T. delinquent, stating that despite the gun's inoperability, it retained its quality as a deadly weapon because it could be used as a bludgeon. The 1st District concurred, concluding that
It is beyond cavil that the pistol had been designed as a weapon. And the arresting police officer testified that the pistol was a heavy, blunt object - evidence that the pistol was capable of inflicting deadly harm.
O'Neill's opinion for the majority - Pfeifer dissented because he thought the appeal should be dismissed as having been improvidently allowed, and O'Donnell and Kennedy concurred only in judgment - begins by announcing the application of "a common-sense reality check" to the case. (Hey, there's a concept, huh?) He notes that the gun was designed as a deadly weapon because it could fire bullets, and when it stopped being capable of firing bullets, "its essence as a deadly weapon ended." It could be used as a bludgeon, the same as a stone or a brick, but wasn't.
Just as it would be improper to convict someone of carrying a concealed weapon simply because he had a stone in his pocket, it is also improper to convict someone of that crime simply for having an inoperable pistol tucked into his waistband... It was no more of a deadly weapon than is a laptop computer or a briefcase, yet attorneys are not routinely arrested for carrying concealed weapons as they enter our courthouses.
Not wanting to give anybody any ideas... At any rate, this might reduce the number of "deadly weapon" indictments. Even with regard to plastic guns.
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The OACDL is doing a seminar next Friday in Columbus called Tools for the Criminal Defense Toolbox. I'm going to be doing a session on Spotting Issues for Appeal - it's not too late for my fans to charter a bus to go down there, I suppose - and there's some other helpful topics on the agenda, like allied offenses and motion practice. The OACDL does a number of excellent seminars during the year, on a number of topics that are very helpful to the criminal defense practitioner. And the Ohio Public Defender Commission is considering a change to the qualifications for assigned counsel which would require attorneys to have at least six hours of CLE credit in criminal practice every year. That shouldn't be difficult to find; other organizations, like the OSBA, also do seminars on various criminal law subjects.
But you know what nobody does seminars on? Plea bargaining. The OSBA used to do a seminar on criminal advocacy which included plea bargaining as a topic, but that was on the law concerning plea bargaining. I'm talking about the practice. Justice Kennedy, in Lafler v. Cooper, recognized what every criminal defense lawyer has known for years: our system of criminal justice is a system of pleas. Over 95% of criminal cases end not in trials, but in a plea bargain. You have any number of seminars on the nuts and bolts of criminal trial practice - how to do pick a jury, cross-examination techniques, the law of evidence - but I've yet to see a single seminar anywhere on negotiation techniques for plea bargaining.
Can this be done? Of course it can. Formalistic negotiation training is routinely taught in business schools, and is often provided in seminars for personal injury lawyers or divorce attorneys. You can certainly make the argument that it's more art than science, but that doesn't mean it can't be taught. And considering its importance in the practice of criminal law, it should be.
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I'm going to be taking a break from blogging for a couple of weeks. I've got a trial next week, and we're moving our offices the week after that. The trial I'm sort of looking forward to; I haven't done one in a while, and I always enjoy doing them. The move? It's necessitated by the fact that our office building, which is right across from the Justice Center, is going condo. Apparently, the owners think that young people will be thrilled with the downtown Cleveland atmosphere, the view of the county jail from their window, and the possibility of being accosted by someone just released from there who's begging for bus money. The move I'm looking forward to with the eager anticipation normally reserved for a colonoscopy.
I'll let you know how it all turned out when I get back here on the 28th.