Sunday, December 20, 2015

Abbot & Costello Meet Findlay Municipal Court

This is the story of Fengxiao Tao, who was not driving the car in Findlay, Ohio that September day in 2012.* It's the story of Fengxian Tao who was not charged with operating under the influence.  And it's the story of Fengxian Tao who did not plead no contest.

This is the story of Fengxiao Tao who wished no longer to stand convicted of the crime he did not commit and was not charged with and to which he did not enter a plea of no contest.

This is the story of Fengxian Tao who, although he did not drive the car, was not charged with the crime, and did not plead no contest was also not allowed to withdraw the plea.  This is the story of the man who was innocent, the judge said.  And who the judge also said should remain convicted.  

Unless, of course, the actual person who drove the car and was charged with the crime came forward and entered a plea to the crime.  Because, the judge said, it would be unjust for two people to be convicted of the offense when only one of them could have committed it.  It was, though, apparently, not unjust for one man to be convicted of the offense that the other committed.  

It was September 19, 2012 when Jing Lu was stopped while driving in Findlay.  He was charged with operating under the influence and an inattentive lane change.  On January 2, 2013, he entered a no contest plea to the OVI charge.  The lane change charge was dismissed.  He was sentenced to 30 days (23 suspended), a one-year license suspension, and was required to attend several programs before he could get his license back.

Except that it wasn't his license.

Because when he was stopped, when he was arrested, when he entered his plea, he did it all in the name (and with the license) of his brother-in-law.  You know, Fengxiao Tao.**

Let's recap.

Lu gets stopped, pretends to be Tao, gets arrested while pretending to be Tao, pleads no contest while pretending to be Tao, is found guilty and sentenced while pretending to be Tao.  Tao tries to clear his name, to withdraw the plea he didn't enter to the crime he didn't commit.  The judge says
Because, well, Tao should have come forward earlier.  Should have told the court that his brother-in-law was stealing his identity.  And since Tao committed a fraud on the court, he should stay guilty of drunk driving.  

Unless, of course, Lu admitted to the drunk driving.  

I have, on a number of occasions, quoted Dickens.
"If the law supposes that," said Mr. Bumble, squeezing his hat emphatically in both hands, "the law is a ass - a idiot."

On Friday, more than 3 years after Jing Lu broke the law and stole Fengxiao Tao's identity, the court of appeals ordered the trial court to let Tao withdraw the appeal he didn't enter.  The reason is not that he's innocent.  He's allowed to withdraw the plea because he didn't enter it knowingly, intelligently, and voluntarily.

Well, yeah.  Of course he didn't.  He didn't fucking enter it at all.

He didn't, you see, understand and voluntarily plead no contest when he didn't plead it at all.   So he can withdraw the plea he never made.

Good, finally, for Mr. Tao who's been fighting to clear himself of his brother-in-law's crimes since 2013. (This was his second trip to the court of appeals.)  But don't take too much solace.  The court was careful to say that their decision is not to be considered "legal authority."

There's a lesson in all of this, I think.  

h/t Andrew Schuman

Heading into Findlay on I-75
* Findlay proudly proclaims itself "Flag City USA," a fact that has nothing whatever to do with this post.

** I don't have any idea how Lu happened to have Tao's license on him.

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