True remorse. The State offers a defendant a plea deal before trial, a pretty good one, it looks like. The defendant decides to take his chances at trial, with an unfortunate outcome. At sentencing, the judge says, "You were offered the opportunity to accept responsibility in this matter, but you chose not to do so," and gives him a sentence a bit north of three times what the plea offer was. You write the appeal, arguing that the judge punished the defendant for going to trial. The panel sloughs it off, concluding that the judge did no more than take into consideration the defendant's lack of remorse, which is a perfectly proper consideration under RC 2929.12(D) and (E).
If this has happened to you, you might be entitled to a cash award. Whoops! Been listening to too many ads for lawyers. Of course it's happened to you, and just about every appellate lawyer who's made that argument in a sentencing case.
There's certainly something to be said for the argument. After all, the statute is merely the codification of the age-old tenet that rehabilitation is a penal goal, and rehabilitation depends upon the defendant's acceptance of responsibility for the wrongfulness of his actions.
On the other hand, there is a lot of law holding that a defendant cannot be punished merely for exercising his constitutional rights. That takes some force from the Supreme Court's decision in North Carolina v. Pearce, which held that a judge's stiffer sentence after a successful appeal was vindictive. Pearce has been severely undercut since then (here's a post I did on the subject nine years ago), but there's no question that a case is coming back if a judge told a defendant, "I'm giving you more time because you turned down the State's plea offer and went to trial."
Not that judges don't do that on a regular basis; most of them are smart enough not to say it. Still, if the only thing in the record concerning the defendant's supposed "lack of remorse" is the fact that he went to trial, well, that's his constitutional right, and he shouldn't be punished for exercising it. It's a fine line, maybe, but it's a line that needs to be drawn. We need to start trying to draw it.
Poetic justice. I did a post on the Supreme Court cases from the past term on Tuesday, and sent it out to the listservs of the OACDL and the CCDLA, the state and local criminal bar associations. Somebody sent me a link to the Supreme Court Haiku Blog, where various people, presumably lawyers, try their hand at reducing decisions (or justices) to seventeen syllables. As I said, they're presumably lawyers, because the result is often somewhat tedious; e.g., about the abortion rights decision:
Both undue burdens
The best one I found was on Fisher v. University of Texas, Fisher's umpteenth attempt to void UT's affirmative action plan:
Oh, it's you again.
UT's plan passes muster.
Again. We mean it
But the best one came from a lawyer on the listserv, regarding the dreadful decision in Utah v. Strief, where Thomas, writing for the majority, decided that even if a stop is unlawful, anything found is admissible if the defendant had an outstanding arrest warrant, even for a minor traffic matter:
Is there a warrant?
An illegal stop is fine.
Thomas is an ass.
Phone calls. One of the sidelights of writing a legal blog is that I become sort of the Answer Grape for all manner of legal questions. One came from a lawyer, who handled an assigned case in Geauga County, handed in his fee bill, and was told several months later by his client that the clerk of courts was trying to hit her up for the $1,500 in assigned counsel fees. Can they do this?
"Of course not!" I thundered. Well, I didn't say that (and I don't thunder); I've been doing this long enough to look up the law if I'm the least bit uncertain. Turns out there's a Supreme Court case, Fuller v. Oregon, which held that a statute allowing this didn't violate the Equal Protection Clause. And arguments that it chills the 6th Amendment right to counsel haven't gone anywhere either.
But while the constitutional argument presents a hard road, the statutory argument doesn't. RC 2941.51(D) says this:
The fees and expenses [for court-appointed counsel and investigators] approved by the court under this section shall not be taxed as part of the costs and shall be paid by the county. However, if the person represented has, or reasonably may be expected to have, the means to meet some part of the cost of the services rendered to the person, the person shall pay the county an amount that the person reasonably can be expected to pay.
According to this case, the defendant can be ordered to pay his attorneys' fees, but only "where the trial court has made some determination, on the record, that the defendant has, or reasonably may be expected to have, the means to contribute to all or some part of the costs of the legal services rendered to him." In other words, it can't simply be ordered as costs.