Let There Be Peace in the Valley

Scott Greenfield has an important post this morning about drug courts and, in particular, the one in Greenburgh that operates (well, operated since apparently it's been effectively shut down by New York's Office of Court Administration).

The Greenburgh drug court took a team approach. That is, there was a team that ran it: a couple of judges, a prosecutor, and an authorized lawyer or two. They did everything by majority vote - including decide whether other lawyers could practice there. John Caher in the New York Law Journal tells the whole story and gives the example, which seems to be what got the OCA's attention of what happened to Peter Tilem's client, Brooke Ahern. (Greenfield quotes the story, too - maybe it will go viral).

Mr. Tilem's client, Brooke Ahern, had pleaded guilty before Justice Friedman to petit larceny in August 2010 and was diverted to Greenburgh drug court. In October 2011, pursuant to a bench warrant, Ms. Ahern turned herself in and was remanded without a hearing by Justice Friedman to the Westchester County Jail, records show.

Several days later, Ms. Ahern appeared with Mr. Tilem in Greenburgh drug court, where Justices Forster and Friedman were presiding simultaneously, with one on the bench and the other in the jury box, according to court records.

Mr. Tilem said in an affirmation, supported by a verified petition from his client, that he was told by Justice Forster that he was not admitted to practice in the Greenburg drug court and the matter was adjourned for nearly a month while Ms. Ahern was in jail. Ultimately, a "team" that included the judges and two attorneys, Bernard Bacharach, the primary drug court attorney, and Alan J. Tomaselli, the alternate drug court attorney, voted to permit Mr. Tilem to represent his client, according to court records.

The records show that without a hearing, the team, along with Mr. Tilem, deadlocked 3-3 on whether Ms. Ahern should be immediately sentenced to a year in jail. Mr. Tilem said he voted against putting his client in jail, resulting in a 3-3 tie.

However, he said he was then asked to leave the room, and when he returned learned that his client was to be sentenced immediately.

"Presumably, with me out of the courtroom the vote was 3-2," Mr. Tilem said in his affirmation.

It's not unusual for folks like me to point out cases where courts and such "officers of the court" as prosecutors freely trample on the rights of the people.  And what was going on in Greenburgh is really just another instance.  More bizarre than some, less than others.  It's the Law of Rule rather than the Rule of Law. Of course, there are plenty of courts that don't operate in such lawless (or in some cases openly lawless) a fashion.  But in far too many cases, constitutional rights, like the Constitution itself, are considered (when they're considered at all) an impediment to be got around rather than a sacred obligation of our system.

Greenfield's point is that while the Greenburgh drug court may be an outlier, every drug court operates on the principle that while the goal is rehabilitation, the requirement is that constitutional rights must be surrendered.  There are variations, but the general pattern is that you plead guilty to the charges and then everything is held in abeyance while you do court or probation ordered counseling and penance and agree to lots of Fourth Amendment violations and if you don't screw up for the requisite period of time the plea goes away.  But if you aren't perfect (or sufficiently perfect), well, you had your chance.  As he concludes,

[I]t's still a trade-off of constitutional rights for drug treatment.

I understand that the first step to recovery, they say, is acknowledging a problem.  And I understand that the drug courts are, well, courts.  Despite good intentions about rehabilitation, they operate in the midst of the criminal justice system (and of course as part of the war on drugs) where the first order of business is to convict and where the assumption is that rehabilitation is at best ephemeral.

And again, there's nothing new here.

Except that they got caught.

After exacting how much damage on how many people over how long a period of time, we'll likely never know.  And mostly won't care.

Because, after all, Peter Tilem went from Greenburgh to the Office of Court Administration with a complaint.  And OCA did its thing and pulled the plug on Greenburgh.

Problem solved.

The Constitution saved.

And the lion did lie down with the lamb.

 

Let's Look at the Data

Maybe 10 years ago I was looking over some Ohio statistical reports and learned that when criminal cases were tried in common pleas court in Lucas County (that's felony court in Toledo, for you folks from out of the area), something like 67% ended with a guilty verdict.  The numbers statewide were a bit higher, somewhere around 73%. (I don't have access to those reports right now, or to newer ones, so I'm working from memory, but those numbers are about right, and more than close enough for my purposes here.)

The Lucas County numbers struck me, intuitively, as too low.  Prosecutors simply shouldn't, I thought, be completely losing such a high percentage of cases.  (The statewide numbers seemed about the minimum I'd expect from competent prosecutors.)  There were, it seemed to me then and seems to me now, three plausible explanations.

1. They were indicting cases they shouldn't have brought.
2. They weren't offering deals they should have or otherwise disposing of cases that maybe should have been brought but shouldn't have been tried.
3. They were losing cases they should have won.

All three are probably right.

The first two indicate something about the judgment of the people responsible for making decisions in the office.  Whether to bring charges and what charges to bring and how to pursue them are left, wisely because there's really no good alternative (we can talk about bad alternatives another time), to the discretion of the prosecutor.  If the prosecutor is charging too many people with crimes that can't be proved, or is pursing too many of them too avidly, the prosecutor's discretion sucks.

The third is different.  It suggests that prosecutors are outclassed by defense counsel.  Maybe they don't prepare properly.  Maybe they just aren't as good.  Oh, juries and judges will get it wrong occasionally no matter what, but if it happens a lot, the problem isn't with the juries, it's with the people who put the cases before them.

What got me thinking about this was a post by Scott Henson who'd been poring through the summary to this year's  Annual Report for the Texas Judiciary and discovered this frankly astounding nugget.

Overall, 97.8% of convictions resulted from a guilty or nolo contendre plea, and less than 2% of criminal cases go to trial. That said, of the 4,060 cases taken all the way through trial to a verdict in 2010 (whether before a judge or a jury), 51.7% resulted in acquittals (see the chart, p. 45). According to the same report (pdf, p. 41) from last year, just 27.9% of tried cases resulted in acquittals in FY 2009.

Think about that for a minute.  In 2010, if you'd been charged with a crime in Texas, couldn't get the charges dismissed before trial, and either weren't offered a deal or refused what you were offered, you'd mostly get to go home a free man after trial.

Since 2010 was a dramatic change from 2009, you have to wonder about which is the outlier.  (You also have to wonder whether we all ought to be moving to Texas, but that's a different question.)  And you damn well want to keep an eye on the numbers for 2011.

Anyway, we have Toledo near the turn of the century and Texas this year, which got me to wondering just how the feds do.  You know, the typical thought is that the feds never lose, at least, not completely.

Yeah, I know.  Our local sheriff, James A. Telb, Ph.D. as he likes to refer to himself and three of his deputies just beat most of the charges after trial in federal court in Toledo.  Telb and one of the deputies were fully acquitted; the other two deputies were found not guilty on some of the charges.  But that seems an aberration.

Anyhow, thanks to the datamongers at the Bureau of Justice Statistics, I looked at the numbers. The latest seem to be for the period from October 1, 2007 to September 30, 2008.  During that year, the feds charged 91,728 people and businesses with crimes.  90.3% were convicted.  Odds at trial?  81.47% were convicted. Of something.  That's a lot.  But it means that the feds do lose.  Federal trials are not guaranteed.  1 in 5 walk.

Still, there's more in the numbers.  Because when there's a bench trial the acquittal rate is 61.53%.  Not Texas in 2010, but not bad odds.

Sure, there are all sorts of ways of parsing all these numbers.  There are questions about who goes to trial and when, there are likely regional variations.  Bench trials are chosen for a reason (though unlike Ohio courts, in the federal system the defendant can't waive a jury without the consent of the prosecutor and the approval of the judge).

Still it behooves us to know.

Anyhow, from conviction and acquittal rates, it's but a short step to talking about innocence.  (No, I'm not heading back to Sheriff Telb and the deputies.)  

I've said before that innocence (like guilt) is kind of messy to talk about.  I mean, you really have to define your terms.  I wrote this about 16 months ago.

There's legal innocence, but that's simply a failure of the state to prove guilt beyond a reasonable doubt or the success of an affirmative defense. You know, Mary did stab Elmo with the ice pick, but it was self-defense so she's legally innocent. Lots of people who do things that are ordinarily criminal are found not guilty (i.e., legally innocent) either because the jury got it wrong or the state screwed up or there was some legally acceptable defense. But that doesn't mean you want to have them over for dinner.

There's presumptive innocence, which comes at an earlier stage, has only to do with trials, and says that the accused will be presumed innocent unless and until the state proves guilt beyond a reasonable doubt. Even the guiltiest folks (whatever that means and whoever they are) are presumed innocent before there's a finding of guilt made.

There's moral innocence, but outside newborns and perhaps Jesus or the Dalai Lama, that's a pretty limited group of people - and not who we're after.

We usually mean something like factual innocence. It wasn't self-defense because Mary did not, in fact, take an ice pick to Elmo. But what if Mary handed Steve the ice pick? Is she factually innocent? Might depend on the charge and the local law. 

All those not guilty verdicts I've been talking about are instances of what I called "legal innocence" in that post.  And legal innocence is what Emily Hughes, professor at Washington University School of Law, is concerned about in "Innocence Unmodified," a paper in the Legal Studies Research Paper Series.  This is the abstract.

The Innocence Movement has unwittingly participated in the construction of a binary between “actual” and “legal” innocence. Because the Innocence Movement has focused on defendants who did not commit the actions underlying their convictions, courts, lawyers, and the larger society have come to believe that a person is wrongly convicted of a crime only if the person is “actually” innocent. This perception overlooks the fact that a person can be wrongly convicted if their constitutional rights were violated in the process of obtaining the conviction. As such, the Innocence Movement devalues “legal” innocence and the constitutional values that underlie a broader conception of innocence. In order to affirm the importance of those constitutional values, this Article argues for the need to reclaim an understanding of innocence unmodified by qualifiers such as “actual” or “legal.” Part I explains how the concept of “actual” innocence has played a pivotal role in the development of the Innocence Movement. Part II examines innocence unmodified in the context of trials. It explains that one reason to protect innocence unmodified is because the Supreme Court has not yet held that “actual” innocence alone is enough to reverse a wrongful conviction; constitutional claims underlying an “actual” innocence claim, working together, are necessary to achieve justice. Part III explores innocence unmodified in the context of guilty pleas. It reveals the degree to which the Court has itself reduced innocence to a binary—prioritizing “actual” innocence over fundamental constitutional
protections for all people, including people who might be wrongly convicted if the courts do not safeguard their constitutional rights. The Article concludes that a modified conception of innocence dilutes the constitutional core that protects us all—innocent or guilty alike.

That's a mouthful, so let me try to abstract the abstract.

The focus on factual innocence by activists leads the courts and society to ignore all other sorts of misconduct that leads to criminal convictions.  Not stopping government misconduct weakens constitutional protections across the board, and that's bad for everyone.

She's right, of course, when she claims that allowing all sorts of government misconduct is bad for everyone.  And it's probably true that too many activists have put their eggs in the picnic basket of innocence.  (Sorry for the horrible metaphor.)  But there's the reality that faced with a choice between arguing that a conviction should be overturned because the defendant didn't do the crime and arguing that it should be overturned because the police exceeded the scope of their search warrant, my argument will largely be a function of my audience.  

In the court of judges, I'll make the factual argument to be sure the court knows the importance of letting me win on the legal basis.  In the court of public opinion, I'll push the factual innocence argument. I know something about what resonates.

So sure, legal innocence matters.  And all wrongful convictions really matter regardless of why this or that one is wrongful.  But if I want to make points with the public, give me the factually innocent guy every time.

And yet, and yet, and returning briefly to verdicts, there's this from Grits.

This year, "Juries condemned eight new individuals to death in Texas in 2010, which is the lowest number of new death sentences since the U.S. Supreme Court upheld Texas' revised death penalty statute in 1976. These new sentences occurred in six counties: Brazos; Dallas; Harris; Nueces; Rusk; and Travis." In FY 2010, according to the Office of Court Administration, just 3% of capital juries gave defendants a death sentence, down from 24% just a few years ago. 

I've been saying for a while now that no matter what Gallup and the other pollsters find, the polls in the jury room reveal a growing discomfort with the death penalty.  Innocent of death.  That's a kind of factual/legal innocence.  

And it's a bit of data that doesn't show up in the numbers of how often judges or juries say "guilty" or "not."

h/t Doug Berman for the link to "Innocence Unmodified."

From Geneva to Austin (corrected to fix a broken sentence and confused link)

In a better world, I'd have had the money and time to go to Geneva this week.

That's where the 4th World Conference Against the Death Penalty is being held beginning in a couple of hours. The idea is that over 1,000 people from around the world will attend plenary sessions, roundtables, and workshops. There will be exhibits and films and theater, voices of the exonerated and innocent condemned, a special bookstore. Government officials and activists and artists.

According to the organizers,

The World Congress Against the Death Penalty is a triennial opportunity to bringtogether abolitionist groups, strengthen the international dimension of the fight againstthe death penalty and draw up common strategies with a view to universal abolition. More specifically, the 4th Congress will pursue the following goals:

• To strengthen ties between civil society, international and intergovernmental institutions and organisations (NGOs, the Arab League, the OIF, the OSCE,the Council of Europe, the OAS, the African Union, etc.) as well as national and local entities in support of the abolitionist movement;
• To involve players of retentionnist States from so-called Southern regions in the defining and the defining and the leading of abolitionist strategies;
• To increase the political, diplomatic, religious, social and cultural impact on retentionnist States;
• To enlarge the World Coalition Against the Death Penalty and to encourage the building of National and Regional Coalitions;
• To raise global awareness among the public, in favor of the urgent need for global abolition.

This is no small thing.

They begin at the United Nations, which is fitting as the death penalty pretty clearly violates currently understood norms of international law.

Still, some 30 % of the world's nations employ the death penalty.

**********

We don't live in that better world, though. We live in the world where Charles Hood sits on death row in Texas, condemned after a trial presided over by a judge who had an affair with the prosecutor.

The Texas Courts took a dim view, not of what the judge and prosecutor did but of Hood for taking so damn long to complain about it. In a 6-3 decision the Court of Criminal Appeals said, in essence, that Hood waited too long to complain. The majority did not address the question of whether the fact that judge and prosecutor had been lovers created a conflict of interest.

Nor did the dissenters. They would have sent the case back to the lower courts in an effort to answer that question. But they were dissenters. The lower court will have to wait. Perhaps forever.

Meanwhile, Hood has asked the Supreme Court to step in. And he's not alone. As Adam Liptak points out, a group of 21 former judges and prosecutors and judges filed an amicus brief with the Court on Hood's behalf. Another was filed by 30 experts in legal ethics. Sarah, that ranting public defender, says that she's never seen anything like it.

If that many prosecutors will publicly ask the United States Supreme Court to overturn a conviction, well then there's probably something seriously, and obviously, wrong with the conviction.

Really, it's pretty simple. Scott Greenfield calls it "one of the most embarrassing failures of the law in years." As Liptak observes, the ethics experts say in their brief that a judge in such a case must recuse herself. It's an open question, it seems, only in the Lone Star State.

Of all the courts to have considered the issue, only the Texas Court of Criminal Appeals in this case failed to recognize this imperative.

Rick Horowitz is driven to near profanity in his anger over the story, saving himself only by the substitution of asterisks for the "uc" in "fuck." (Regular readers of this blawg, all three of you, know that I'm less restrained than Rick and am willing on occasion to risk a terms of service violation with the odd word you can't say on television.)

It really is outrageous that Texas courts have, er, blown Hood off. But really, as the dissenters noted, it was just a little affair.

Based upon the sworn testimony of both of the participants, theirs was hardly the torrid relationship of romance novels. It might more fairly be characterized as a close personal relationship that, on a few rare occasions, dipped into intimacy. No one disagrees that those occasions ended in 1987, some three years before applicant's trial. It was, nonetheless, a personal relationship that went much further than the social relationship that one normally finds between professional colleagues.

No big deal. Just the occasional dip into intimacy.

More to the point, we excuse what prosecutors and judges do. Their hypocrisy and conflicts are, at least often, things we can comfortably ignore. After all, the alternative is that the Charles Hoods of the world might not get killed.

Do we care? Should we? Do we value doing it right and obeying the rules? Or are we just out for blood?

******************

As I said, in a better world, I'd have had the money and time to go to Geneva this week.

In a much better world, there wouldn't be any reason to go.

Uglier and Uglier

So much to talk about, I'm not sure where to begin. And I'll have to board my plane in a few minutes. So here's two stories, quick and dirty. With links.

Maricopa County

Right now, there may be no more openly lawless place in the country. Let me be clear about that. The law there is lawless, and the law is just fine with that. Here's the video.

You see Sheriffs Deputy Adam Stoddard decide to invade the attorney-client privilege. He pulls a paper out of defense counsel's file. He reads it, gives it to another deputy to copy. That's a theft offense. He gets caught.



Defense counsel points it out to the judge, who was willfully blind. Good for counsel, but when the judge tells her to calm down, she does. Bad for counsel. What just happened calls for force and continuted outrage. The prosecutors were no more than four feet away. Like the judge, and in the inimitable words of Sergeant Schultz, they "saw nothing." They are, of course, the forces of legal law and order. They are mute.

The follow up comes from Heat City. (Actually, all of this comes from Heat City.) There was a hearing before the presiding judge. Stoddard lied, repeatedly, in court. Then the lawyer who represented Stoddard apparently contradicted his client. Then the judge declared that he would do nothing about the invasion of attorney-client privilege unless the client agreed to waive the privilege.

More outrage over this at Defending People and Simple Justice.

Ohio Supreme Court

It's come to pass. The Ohio Supremes today scheduled two more executions. Michael Beuke is now scheduled to be killed on May 13. Richard Nields is scheduled for June 10.

Of course, right now, and as a continuing consequence of the failed execution of Romell Broom, Ohio doesn't actually have an execution protocol. But it has hearings scheduled in federal court in July to decide how to kill. So what happens in May and June? Or to Mahdi in January, Brown in February, Reynolds in March, or Durr in April?

Perhaps we'll torture them to death. Maybe not. The Supreme Court is, it would seem, just interested in keeping the machinery moving.

Oh, and in that same stack of orders that included the dates for killing Beuke and Nields, the court refused to reconsider its decision that Broom can't use the information that was originally and unconstitutionally hidden from his lawyers to try and prove that he shouldn't have been convicted and shouldn't be executed.

There's a whole lot of bad to go around.

Making it up as you go along

Forget what you see on TV and in the movies. The practice of law is mostly boring. (So is law school, but that's a whole different subject since law school bears only an occasional and coincidental relationship to the practice of law.)

Trials, in particular, tend to be tedious. Witnesses don't tell gripping stories. Fact witnesses (that's the ones who say what they saw or heard or did) give mostly halting, not terribly articulate reports in little snippets interrupted by questions. Oh, there's sometimes the odd dramatic or gripping moment. But more typically, this is what juries hear.

Q: Were there any street lights that night?
A: You mean on the corner?
Q: Was the area lit?
A: There was a light on the porch.
Q: Could you see clearly?
A: Oh, yes.
Q: And did you see the man?
OBJECTION: Not specific. What man is counsel asking about.
Q: I'll rephrase the question. Did you see a man holding a knife?
OBJECTION: Leading.
COURT: Overruled, you may answer.
A: He was there.
Q: Did you see him arrive?
A: I'm not really sure, but he was there.

This can take the better part of an hour.

But when lawyers try to speed it up, they get answers that ramble, filled with all sorts of inadmissible material.

Q: Just tell us what you saw.
A: It was very dark except for the lights and I was coming back from the store with a quart of milk when that monster was over there with the poor old man and the man was scared and he was just doing what he always did and the next thing I knew he was running away like before.

So testimony has that slow, muddled, mechanical pace for a reason. As for opening statements and closing arguments, well, few lawyers are spellbinding orators, and frankly they need to convince the jury, not sell CDs of their performance.

And then there are the judges. We're not talking balls and strikes here. The jury doesn't know whether the objection was properly sustained or overruled. Half the time neither the parties nor the judge really knows. It's all quick and from the gut. Juries typically hear such exciting lines as

You may call your next witness.

Any redirect, counsel?

We'll take a ten minute recess. Jurors are reminded not to speak about this case and not to let anyone else speak about this case during the break. Be back in your seats at 2:45.

But judges in the trial process do have a singular role where they get to speak a lot, interminably it often seems. That's when they charge the jury. The jury charge is the explanation to the jury of how they're supposed to do their job. How do they weigh the evidence? What do they consider? What is evidence, anyway? What burden of proof is there and on whom? What questions are the jurors supposed to answer? To do that, what particular things must the jurors agree are true or not true.

Jury charges these days are typically patterned. That is, there's a more-or-less standardized set for the jurisdiction on all the things that judges typically have to say and they choose the relevant sections. (Lawyers may, of course, argue about just what should be in the charge, especially if the case has some unusual twists.) Then this document that consists of portions of other documents, all originally drafted by committees, is read aloud to the jury in a monotone (so that nothing will get undue emphasis).

It may take 20 minutes. It may take an hour or more. Nobody understands a word of it.

There are regular efforts to simplify jury instructions, to write them in plain English. None are particularly satisfying because they have to satisfy the demands of a confused legal precision.

Once in a while, a judge tries to be creative and simplify. When he does, you get People v. Garrett, a case decided by the Michigan Court of Appeals on Tuesday. Here's the plot:

This case arises out of the death of seventy-three year old Mayrose Hall, who lived by herself in a home in the City of Detroit. The prosecutor’s theory of the case was that, on February 4, 1997, defendant broke into Hall’s home, intending to commit a larceny, and was surprised to find Hall at home. Defendant then inflicted several blunt force injuries to Hall’s head, and left.

During jury selection the judge was explaining just what they'd be facing. This isn't plain old murder, she said, This is felony murder, and "[f]elony murder is different. What you look at is the intent to do an underlying crime.” The judge talked about armed robbery and said that if a person “. . . did not have the intent to kill that person, the fact of the matter is that when they died during this robbery its called felony murder.” The judge continued:

THE COURT: Okay, juror number three, you grab my necklace, and smack me, and I fall down and hit my head on a rock. “Well, I didn’t push her down, she fell, her heels were too high.” Does it make a difference juror number three?
JUROR THREE: It doesn’t make a difference.
THE COURT: Huh?
JUROR THREE: It doesn’t make a difference.
THE COURT: Because when you grabbed my necklace, and you smacked me, even though I slipped and fell, it was during the course of what?
JUROR THREE: You grabbing the necklace.
THE COURT: Which is?
JUROR THREE: A robbery.
THE COURT: A robbery, do you understand juror number two?
JUROR TWO: Yes.
THE COURT: But I didn’t mean to kill her, all I wanted to do is just get that
necklace. Does it make a difference, juror number two?
JUROR TWO: No.
THE COURT: That’s felony murder. See, you all learned all of this, and people go to law school forever.

So the jurors got it. Good teaching. Good for the judge.

Well, no. The jurors actually got it wrong. So did the judge. Bad teaching. Bad class. Bad judge.

Felony murder under Michigan law does involve a killing in the course of committing another felony, but as the Michigan Supreme Court had explained back in 1999, intent does matter. It's only felony murder if the killer acted

with the intent to kill, to do great bodily harm, or to create a very high risk of death or great bodily harm with knowledge that death or great bodily harm was the probable result.

When the judge decided to be creative, she blew it. (The prosecutor admitted as much in the court of appeals.)

I remember sitting in the back of the courtroom one day watching closing arguments and then the jury instructions in a death penalty case. Counsel for the defendant and the prosecutor were all experienced death penalty lawyers. They knew the law well. They knew what was supposed to happen. The trial judge had been down this road a number of times. So had the court staff. Even the defendant had been here before, since it was his second capital trial in the case. (I'd gotten him a new trial on appeal after he was first sentenced to die.)

So I was listening to the judge drone on with the jury instructions, only half paying attention because I knew the drill, knew what was supposed to be there, and again it wasn't my case. At the end of the instructions, the jury reads the verdict forms to the jury and explains to them how to fill in the blanks which, in this case, determine the sentence - life or death. And as I'm nodding off, I realize that the judge just said something wrong. The verdict form screwed up the burden of proof.

As soon as the jury was sent off to deliberate, I got the attention of the lawyers and then the judge and the error was corrected. But it shouldn't have taken me.

Jury instructions need, desperately, to be simplified. Probably someone who writes good non-fiction for the 12-14 year old set should be hired to lead the rewriting effort. But the simplification can't be done on the fly or blown off.

Trials, ultimately, are boring for a reason - the rules and the details count. They can be better done, sure. But seriously practical limits.

There's a moral in all this about smart ass trial judges who think they know better: Just do the damn job. And there's a moral for lawyers: Don't nod off and just trust the judge; pay attention.

This was actually Garrett's third trial for killing Hall. The first time there was a hung jury which effectively means a do-over. The second time Garrett was convicted but received a new trial because his lawyer screwed up so badly.

Fourth trial coming up.

Selling out the client - Part III

Here's the question (and I'm deliberately fuzzing it up) that's been the subject of fairly heated debate among Ohio criminal defense lawyers this afternoon:

The judge screws up the written entry (which in Ohio is what counts) and gives the client less time than everyone expected and less, almost surely, than the judge intended. Apparently, the only one who notices is defense counsel. What's counsel's obligation?

Maybe you'd think that would be an easy one? And it seems as if everyone thinks it is. Except that there are two dramatically different answers coming from members of the bar.

So let's step back for a minute and try to see what's going on.

First there's the law. Back in 1997, in Cincinnati Bar Assn. v. Nienaber, the Ohio Supreme Court said that lawyers could never lie to the court either explicitly or implicitly. Nienaber, the court said, "not only made affirmative representations to the courts which were untrue, but by his silence he allowed each court to make unwarranted inferences."

In reaching that conclusion, the rejected Nienaber's defense that he'd given precisely correct, albeit incomplete and misleading (that "albeit" is mine; it's not clear Nienaber conceded as much) answers to the courts' questions. Not good enough, the court said. He intentionally misled. Then came the kicker. Quoting the Nebraska Supreme Court from 1937, the court said:

We require complete candor with courts. We agree with the Supreme Court of Nebraska, which sixty years ago said, “An attorney owes his first duty to the court. He assumed his obligations toward it before he ever had a client. His oath requires him to be absolutely honest even though his client's interests may seem to require a contrary course. The [lawyer] cannot serve two masters; and the one [he has] undertaken to serve primarily is the court.”

So there you have it. In a contest between the client and the court, the lawyer is supposed to be on the court's side.

But that assumes there's a contest.

Lawyers are also supposed to represent their clients, er, just how? Not zealously, as I explained in an earlier post Ohio has abandoned that requirement which it never really meant. Instead, well, to quote the court itself,

[V]igorous and effective representation of a client is the responsibility of all attorneys.

With the caveat, of course, that the court comes first.

OK, that's all part of the same rule. You can't lie to the court directly by what you say or indirectly by what you omit. But it doesn't really say what you can do.

Along with the legal/ethical rules, there's the doing business problem. If you don't point out the probable mistake, you "risk your good name and reputation" with prosecutor and judge. If you do, you earn "brownie points" or "street cred." with them. (I'm quoting lawyers who staked out positions on this today). So, if you speak up, you might earn some favoritism in the future. And really, what's the harm since the client will end up with what the client expected.

OK, there's the problem and the issues.

Here's my answer.

We represent the client. We can't lie to the court by commission or omission. But we're under no obligation to volunteer information that will hurt our clients. In fact, we're under an obligation precisely not to do that.

If the court made a mistake that helps our client, so be it. Not our job to point it out.

And while it never hurts to be liked (even favored) by judges and prosecutors, we must never trade the obligation to this client for the possibility that not advocating forcefully today will redound to the benefit of others tomorrow. And certainly not for a pat on the head or a scratch behind the ears.

You know, it is an easy call. I just don't get why some people don't get it.


It's an easy call. But too many lawyers don't get it.

Ooops

This is a tale of a typographical error.

In Ohio, possession of crack cocaine is a fifth degree felony unless you have a lot of it. If, say, you have more than 100 grams, then it's a first degree felony. The difference is between a chance of community control or up to a year in prison for the F-5 and a mandatory prison term of 10 years with another 10 at the discretion of the judge for the F-1.

Calvin Wells was charged with the F-1. The jury found him guilty, and the judge sentenced him to that mandatory 10 years in prison.

Except, except . . . . Well, the court of appeals said the judge couldn't do that.

Here's why. The jury verdict form said,

We, the Jury, find the Defendant Guilty of the offense of POSSESSION OF CRACK COCAINE . . . . We the jury, further find that the amount of crack cocaine was in the amount exceeding ten one hundred (100) grams as charged in the indictment.

You know, I know, the judge and jury knew, and surely the court of appeals knew that when the jury found that there was an "amount exceeding ten one hundred (100) grams as charged in the indictment," that meant that the jury found there was more than 100 grams. (I'm assuming the state actually had a witness say something like, "I weighed the substance and it weighed 138 [or whatever the number was] grams," but it's a pretty safe assumption.)

But, you see, the law doesn't allow us to make that guess. an amount greater than "ten one hundred (100) grams" could mean almost anything including, as the court of appeals pointed out, less than a gram. We're talking bare possibility here, but in this case, that's enough.

You see, back in 2007, in a case called State v. Pelfrey, The Ohio Supreme Court, had one of those epiphanies it gets from time to time and decided that the law really means what it says. Specifically, according to the court,

Pursuant to the clear language of R.C. 2945.75, a verdict form signed by a jury
must include either the degree of the offense of which the defendant is
convicted or a statement that an aggravating element has been found to
justify convicting a defendant of a greater degree of a criminal offense.

That business about more than 100 grams to elevate the possession from an F-5 to and F-1 is just that sort of "aggravating element." And since the verdict form didn't say that clearly, and since it didn't state the degree of offense, well, then the aggravating element doesn't count.

More, the court of appeals noted that even though Wells didn't object at trial, that's OK, because Pelfrey didn't object either and, more to the point, the court had previously decided that

“[i]t is the [S]tate's responsibility, and not the defendant's, to call to the court's attention errors which prejudice the [S]tate.”

OK, that last seems self-evidently right, though there are some cases that suggest it may not be correct. Still, it's a perfectly sensible rule. And when you apply all this, Wells gets a break. His conviction goes from that F-1 all the way to the F-5. And his mandatory 10 just became anything from community control up to a single year.

Let's recap. The court made a typographical error in the verdict form. Nobody noticed (or at least, nobody complained) until the case was on appeal. The typo left a technical ambiguity. The remedy for the amibiguity is that Wells gets a big break.

Three lessons from this:

1. Appellate counsel need to be careful to scrutinize jury verdict forms.
2. Prosecutors need to pay attention.
3. Details matter.