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Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »


Change of course

It started out because I just got tired.

Here's what I got tired of.  I'd take what I thought was a realistic look at the facts of the case.  I'd research the applicable law carefully.  I'd talk with the prosecutor, and negotiate the best deal I could.  I'd take it to the client, and explain to him why I thought it was one he should accept.

At which point, he'd accuse me of selling him out.

Has that happened to you?  I mean, this week? 

So I adopted a different method.  Although I might gear the presentation toward highlighting the benefits of a particular plea if I thought it warranted, I wouldn't make an express recommendation.  Actually, that made sense.  From the (usually young black) defendant's perspective, he's got a (usually older white) lawyer, who's getting paid by the people who are prosecuting him, telling him that he ought to take a deal where he's going to do time.  Developing a good lawyer-client rapport is essential, and it's often difficult.  There's no reason that persuasion has to be overt; a more nuanced approach is more likely to be successful. 

But then I got full of myself.  My mission, I decided, was not to make decisions for my clients, especially in that regard.  The Code of Professional Conduct reserves three decisions to a criminal defendant:  whether to try the case to a judge or jury, whether to testify, and most significantly, whether to plead.  So my job was to fully inform them of all the factors that should be considered them making that decision, and that's it.

Which was stupid, for a couple of reasons.

First, I'm not a computer.  I've been doing this for over 40 years now, and I've acquired a great deal of experience.  I know the judges and the prosecutors well enough to know what they're likely to do, I 'm very good at analyzing the strengths and weaknesses of a case.  That experience places me in a very good position to advise my client -- not to decide for him, but to advise him -- of what I perceive to be in his best interests.  He may not agree with it; that's up to him.  But part of my job is to give advice, and if I don't, I'm not doing my job.

The second problem is that this approach conflicted with another one of my long-held beliefs.  That belief is that there are people who go through life making one bad decision after another, and criminal defendants are vastly overrepresented in this subset of the population.  They act impulsively, they hang out with the wrong people, they decide to rob banks while sporting an easily-identifiable tattoo of a gun on their face...  So by limiting my input to just the facts, ma'am, all I was doing was providing them with all the necessary information for them to make one more bad decision.

So no more.  From here on out, I'm taking a more pro-active role.

Sure, there are going to be problems.  I've got an assigned case now, where I've been suggesting that it might be wise for the client to plead to the 5th degree felony he's been offered.  The other night his mother blew up my phone, claiming that her son had been charged twice for the same crime.  I checked, and it turned out that he'd been initially charged with misdemeanor domestic violence, but they upped it to a felony when they learned he'd had a prior DV conviction.

"Sounds like double jeopardy to me," she said.

"It's not."

"Well, we don't think you're doing a good job of representing Carl.  We've been talking about getting another lawyer."

Gosh, whatever will I do?

Actually, one of the pleasures of this job is learning the law my clients are so willing to teach me.  My all-time favorite was a client who was charged with failure to comply-- the old fleeing and eluding statute.  He told me he'd researched the law, and in order to convict him, the State had to prove that the chase was at least four miles long.  And no, I have no idea how he came up with that.

Then there was the client I was talking to over at the jail who was charged with cocaine possession because they'd found a tiny bit of it in the pipe he had on him.  He informed me that he couldn't be convicted for residue.  It was my sad duty to inform him that there was an Ohio Supreme Court case that said he could.  He insisted I was wrong.

"Let me see if I understand this," I finally said.  "You're wearing an orange jumpsuit, and you're the smart guy in the room?"

I figured that's pro-active enough.


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