Friday Roundup
Trial practice. My self-esteem, which suffered a near-mortal blow when I lost a child rape trial a couple weeks ago -- let's face it, no competent attorney loses those -- recovered somewhat when I won a rape trial last week. That gave me two trials in three weeks. That's a bear; while I enjoy being in trial, what it does to the rest of my practice is another matter. I'm a sole practitioner, so if I'm in a courtroom there's no one writing briefs or taking my phone calls or doing anything else.
That also gave me two trials this year, not exactly a frenetic pace. But not an unusual one, either. I do an annual presentation at the OACDL Death Penalty Seminar every November, and a few years back I asked those in attendance to raise their hands if they'd tried ten or more cases that year. Maybe five hands, out of around 300 people, went up. I asked how many had tried five to nine cases, and maybe one-third of them responded. And this from people who handle death penalty cases.
There just aren't that many trials anymore. My opponent in the last rape trial, who handles murders and rapes - neither of which appear to be in any shortage in Cleveland - told me he'd had only four trials before this one.
One of the reasons for this, I learned, is that there are so many fewer criminal cases than there used to be. In 2007, there were 19,236 criminal cases resolved in Cuyahoga County. Five years later, that number had dropped to 14,837, and by last year it had fallen to 13,250, a decline of nearly one-third from a decade ago.
It's not just criminal cases; the number of civil case terminations fell by half, to a little over 6,000, in the same time frame.
People have begun to note that Franklin County, which has virtually the same population as Cuyahoga County, has half as many (17) judges in the general division of the Common Pleas Court. There was some talk that the legislature might reduce the number of judges here, especially with four of them being aged out this year, but that didn't happen. Don't bet that it won't if the numbers keep going in the same direction.
Appellate strategy. The Ohio Supreme Court accepts maybe 5% of the appeals it's asked to hear. One of the considerations in seeking review in that court is how likely you are to prevail. Because if you get in, and you lose, you'll probably make some bad law for your side.
Defense attorneys don't have the luxury of choice here. Our duty is to our client, not to the general population of real and potential defendants. In fact, it may be that you'll actually work the argument in such a way that defendants won't benefit from a decision favorable to you.
Prosecutors do have the luxury of choice. There may be a time when they'll believe the appellate court wrongly decided the case, but will conclude that the case has such bad facts for them that their chances of losing in the Supreme Court are heightened.
Sentencing law in Ohio is badly muddled, and in State v. Jones, the prosecutors' office here thought they had to ideal vehicle to take to the Supreme Court on that issue. Randy and Clarissa Jones had been convicted of involuntary manslaughter for not seeking medical treatment for their daughter. The judge gave them each ten years, but the appellate panel found that was too much.
From the standpoint of a trial judge, that was debatable. As the dissent in Jones points out, by the time she died, the 12-year-old daughter had over eighty marks, scars, bruises, cuts, deep wounds, and foot blisters; the odor from her rotting tissue was so pervasive that the doctor and detective noted it when they entered the room. From the standpoint of the appellate court, its decision that the sentence was "clearly and convincingly unsupported by the record" seems a real stretch.
And so the State appealed, and sure enough, the Supreme Court accepted the appeal. But they also accepted a sentencing appeal out of Delaware County, State v. Gwynne. I discussed that one a couple weeks back; basically, the judge imposed a 65-year sentence on a woman who had posed as a nurse for about a decade and stole money and personal items from residents of nursing homes and assisted living facilities. The 5th District decided that 15 years was more appropriate.
Here's the kicker: the Supreme Court is holding Jones until they resolve Gwynne.
Now, which do you think is the better case for the State? Frankly, I don't understand why the prosecutors even appealed Gwynne. Nobody, but nobody, believes a 65-year sentence is reasonable. In fact, the prosecutors didn't: they asked for a sentence of 43 years, and would have been happy with one-third of that. I've run the factual scenario past about a dozen prosecutors up here, and asked what sentence they believed was appropriate. Only two got into double figures, and low double figures at that.
What's quite possible is that the Supreme Court will affirm Gwynne, and remand Jones back for reconsideration in light of Gwynne, at which point the panel will affirm their earlier decision. It didn't have to happen that way.
Reason No. 437 I don't handle civil cases. Practice in civil cases is apparently more brutal than in criminal cases. I had a civil case a few years back with a lawyer from a big firm, who told me that her last deposition resulted in her having to call building security to escort the opposing lawyer out of the office.
That sort of incivility is the focus of a post over on Lowering the Bar. The very short version is that the plaintiffs filed a motion to compel discovery, which resulted in a pleading war that produced not only eight separate briefs, the last entitled "Motion for Leave to File a Surreply to the Reply to the Response to Defendant's Motion to File a Surreply to Plaintiff's Reply to Defendant's Response to the Motion to Compel," but also some one thousand pages of exhibits.
Somebody was getting paid by the hour.
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