Read Kate Pruchnicki’s article “Your Honor…I Cannot and Will Not Proceed”, the story of Attorney K. Ronald Bailey, a criminal defense attorney from Sandusky, Ohio, who spent thirty days in the county jail after being held in contempt of court by Judge Roger Binette.
On July 4, 2013, Anna Louise Rooney was riding a bicycle to her Chillicothe, Ohio home when she was struck and killed by a drunk driver. The woman who killed her had a blood alcohol content of over two times the legal limit when she struck Annie. She also had at least three prior OVI charges on her record.
After her death, Annie’s parents – with the assistance of several state legislators – began a fight to toughen Ohio’s OVI laws. The result: “Annie’s Law,” signed into law by the governor on January 5, 2017 and effective as of April 6, 2017.
Annie’s Law changed the way Ohio handles OVI convictions in multiple ways. Prior to Annie’s Law, an individual with an OVI conviction (or equivalent offense) within the previous six years faced harsher consequences if convicted of a “second OVI in six.” Annie’s Law changed this “look-back period” to ten years – now, if you are charged with OVI and have a prior equivalent conviction within the previous ten years, you face a mandatory jail sentence and your options to obtain limited driving privileges are severely hindered.
This increase in the look-back period means more individuals convicted of OVI offenses will face more severe consequences, and more individuals will face felony OVI charges – as the severity increases, so does the penalty. Having an attorney who understands the law is crucial.
The Milano law firm is considered among the best in Cleveland, Ohio and surrounding counties. We understand the importance of your personal and professional reputation, and we know how an OVI can affect it. Call us – we will fight for you, defend you, and work through the problem together.
Under Ohio law, OVIs range from first-degree misdemeanors (the most serious misdemeanor) to third-degree felony offenses. The most serious misdemeanor-level OVI is followed by a mandatory sixty days in jail, and the most serious felony OVI is followed by up to five years of prison.
These penalties are not as straight forward as they may sound, however – in certain circumstances, the penalty can increase by an additional four months in prison for certain felony OVIs. And the mandatory sixty days of jail time for an unclassified misdemeanor OVI can be decreased to thirty days in exchange for 110 days of “alcohol monitoring” – typically an ankle bracelet that constantly monitors your blood alcohol content.
The severity of an OVI charge can depend on a variety of factors – blood alcohol content level, the number of prior equivalent convictions, and refusal to test, among others. But even the lowest level OVI – a first-degree misdemeanor – is a serious offense with serious consequences. A first-in-ten OVI conviction is followed by between three days and six months in jail, and a mandatory license suspension of between one and three years – we can explain options that mitigate these penalties, such as attending a Driver’s Intervention Program in lieu of serving jail time, and obtaining limited driving privileges for the duration of your suspension.
The Milano law firm is considered among the best in Cleveland, Ohio and surrounding counties. We represent clients in various municipal courts in Lorain and Cuyahoga counties, among others.
Whether you are faced with an OVI charge for the first time or the fourth– whether you are charged with a misdemeanor or a felony OVI – we can help. We will assess your situation, explain your options, develop a plan, and work through it together. If you need help, call us.
Ohio’s sex offender risk-based registration scheme was enacted in 1997. Since then, Ohio sex offender laws have dramatically evolved into their current existence: three levels of sex offender classification determined solely based upon the offense of conviction, and for those deemed Tier III offenders – the most severe – no opportunity to challenge that classification.
Rather, Tier III sex offenders must register with the sheriff in the county in which they reside every ninety days until death, and no court can decide otherwise. In addition to their new persona, Tier III sex offenders are subject to community notification, residential housing restrictions, and are required to report any change to their name, address, employment, schooling, license plate, and email address, among others.
An Order issued in August of 2017 by the United States District Court for the Southern District of Ohio could be the beginning of the next evolution in the life of Ohio’s sex offender scheme: an opportunity for offenders convicted and sentenced under former Chapter 2950 of the Ohio Revised Code, or “Megan’s Law,” to be brought before a court and potentially re-classified if the court finds the offender is unlikely to commit another sex offense.
The Evolution of Ohio’s Sex Offender Scheme
In October of 2012, Jane Doe, through her attorneys with the Ohio Justice & Policy Center in Cincinnati, Ohio, filed a complaint under 42 U.S.C. § 1983 alleging her constitutional rights to procedural and substantive due process were being violated; Jane was convicted of unlawful sexual conduct with a minor in 2006 and classified as a “sexual predator” by the sentencing court – under Ohio’s former sex offender scheme, state trial judges classified individuals convicted of sex crimes following a hearing based on a case-by-case analysis of statutory factors of “dangerousness.”
As Jane’s complaint details, former Ohio Revised Code § 2950.09(D)(1) entitled offenders classified as “sexual predators” to a hearing either one year before release from prison or one year after the conviction if he or she was not sentenced to prison time. If reclassification was denied at that time, the offender could request a new hearing after five years. After the 2003 amendments, Ohio Revised Code § 2950.07(B)(1) provided that, “[i]n no case shall the lifetime duty to comply… be removed or terminated” and § 2950.09(D)(2) read “the classification or adjudication of the offender as a sexual predator is permanent and continues in effect until the offender’s death…”
In 2007, Megan’s Law was replaced by the federally-mandated Adam Walsh Act (“AWA”), which completely eliminated the judicially-determined classification scheme and mandated Tier I, II, and III sex offender classifications based solely upon the offense of conviction. As originally enacted, the AWA required offenders convicted and classified under Megan’s Law to be re-classified as either Tier I, II, or III sex offenders, but the Ohio Supreme Court struck down that requirement as unconstitutional in State v. Bodyke, 126 Ohio St.3d 266 (2010). Thus, individuals classified as “sexual predators” pursuant to pre-2007 Megan’s Law, like Jane, remain classified as such today.
Jane Doe v. Mike DeWine, Attorney General, et al.
Jane did not pray for compensatory or punitive damages; she prayed for declaratory relief and a hearing to allow the sentencing court to revisit their determination as to her “dangerousness.” She sought the opportunity to be heard.
According to her complaint, after Jane was convicted in 2006, she completed sex offender treatment and counseling, and was assessed by two separate sex offender treatment professionals who concluded she was low-risk to reoffend. Jane therefore alleged that her continuing classification as a “sexual predator” was a dissemination of false information, and Ohio’s failure to allow her a hearing was a violation of her procedural and substantive due process rights under the federal Constitution. Among various other liberty interests, Jane alleged her status as a predator unconstitutionally precluded her from living in federally-subsidized housing – because of this, Jane was having difficulty securing a home for herself and her four children. She pleaded that, given the opportunity to be heard, she could prove she should not be classified as a “sexual predator” and the court would re-classify her as a “sexually oriented offender,” which would mean her registration requirements would end in 2016, rather than continuing until her death.
The named defendants – three state actors responsible for maintaining Ohio’s Sex Offender Registration and Notification system – immediately moved to have Jane’s lawsuit dismissed against them. They claimed that, in part, they were “arms of the state” and thus immune from liability, and that Jane’s claims are barred and should have been raised at the trial court level when she was convicted in 2006. The court disagreed. Jane’s lawsuit remained alive.
Not much occurred between the denial of the defendants’ Motions to Dismiss and the filing of their Motions for Summary Judgment a mere six months later. Most of the defendants’ arguments on summary judgment were the same alleged as their original basis to dismiss. The court’s 32-page opinion carefully reviewed the applicable facts and law before finding that Jane’s constitutional rights to procedural due process were being violated – her inability to secure federally-subsidized housing was sufficient to trigger constitutional protection.
The court’s August 8, 2017 Order read, in part: “The Court STRIKES DOWN AS UNCONSTITUTIONAL Ohio Revised Code §§ 2950.09(D)(2) (2005) (effective 4-29-2005) and 2950.07(B)(1) (2007) (effective 7-31-2003) to the extent they forever prohibit the removal or termination of a ‘sexual predator’ classification with its requirements and duties.”
This is no small victory. Ohio’s sex offender laws have withstood the vast majority of challenges to their constitutionality. However, in the last year, there has a been a push for reform to Ohio’s sex offender registration scheme; in June of this year, the Ohio Criminal Justice Recodification Committee issued its recommended changes to the Senate. The Committee recommended a new system that allows Ohio judges to determine whether Tier I and II offenders (the least serious tiers) should be required to register. Tier I offenders would only be required to register if deemed to be a danger to the community or likely to reoffend. Download the Committee’s entire comprehensive plan in bill form.
The Committee did not recommend changes to Ohio’s scheme as to Tier III (or lifetime) sex offenders, but did recommend certain Tier III offenses result in classification of a lower tier. If these recommendations become law, the crime of unlawful sexual conduct with a minor, of which Jane was convicted, would result in Tier I sex offender registration – this means an individual convicted of the same offense as Jane would only be required to register as a sex offender for fifteen years, and no community notifications would be required.
Jane’s future, however, is still a question mark.
The August 2017 Order is currently pending appeal in the Sixth Circuit.
Call the Milano law firm if you have been charged, or need help with, the following sex crimes:
Lawyers are- In Trial… On Trial… Trying a Case… Going to Trial, Preparing for Trial, In the Middle of a Trial, Just Coming Off a Trial– or working very hard to assure that their clients never undergo such a painful experience.
Trial is, in the mind of the populace, what lawyers do. But most lawyers will never enter a courtroom.
What all lawyers must do, regardless of their specialty, is protect their clients from the danger of trial, while laying the groundwork for success should that endgame become necessary. Our common principles; integrity, the professional effort, applying law to fact, mean just as much to the transactional lawyer as they do to the litigator.
Cases are disputes that end up in a lawyer’s office. Usually they arise from conduct never touched by lawyers. Sometimes they arise despite the best efforts of a lawyer to avoid the conflict. No lawyer wants his/her client to end up with a case.
Trial is the end game of all cases. It is the application of evidence to law. It is the crucible where evidence and law and skill and personality are mixed and burnt down to yield a verdict- a judgment.
This article is not intended to be treatise on how to conduct a trial. It is written, rather, with the hope it will provide a framework on how to approach the task.
You are not a shark, or a tiger, or a wolverine.
You are a teacher-at every turn.
It is your job to make people understand. You need to insure that your client understands why his case is different than his story, his chances of success and what the world of trials will be like for him.
It is your job to teach the judge, at your first opportunity and at every opportunity that you are right about your case. He or she will make decisions based upon conclusions drawn, whether realized or not. Right from the first contact with the Judge or the staff attorney, you need to load in the quality of your case and your competence as Counsel.
It is your job to teach your opponent. Don’t be overly concerned about a strategy of secrecy. Convince your opponent that they will lose and you will win the case – more likely on the safer ground of mediation or a settlement conference.
And then you need to teach the jury.
It is a case, not a story
There are books written about the use of story telling in trial. It is, after all, the way we communicate and pass on history. It is an important tool, but it is death if you overly rely on it as a trial tactic. ‘My story against yours,’ allows for too many extraneous factors; like emotion and prejudice and inherent power, to taint the result. Contrary to popular myth, all but lawyers with the most powerful clients want intelligent juries. They want juries willing to do hard examination of fact and law, self examining of their prejudices, and then make the difficult decisions necessary to render just verdicts.
Clients come in and tell their story. They ask you, “Do I have a case?” The lawyer’s question should be, “Can we win at trial?” expanded to, “What will the admissible evidence be?” and to “What is the law that applies?”
That method of analysis is issue based, rather than story based. It needs to be done as a threshold in every case.
In every case, do an issue-based analysis.
Do a complete exploration of your client’s version, exhausting every possible fact or explanation or witness. Your questions are, What else? Who else?, until there are no more answers left. Ask each client, and each potential witness: “What will the other players in the case say good about you- say bad about you- tell me about the situation?”
You also need to prepare a timeline-immediately. People are not that smart and it is difficult to follow a complex presentation. However, they do respond to a framework. The chronological framework gives them a tool to organize their thinking.
(Remember, sadly, that the most common motivation left in America is self-interest. As a result we have trained ourselves to believe that it is OK to lie to forward our interests. And beware of a new and viral strain of this virus, the person who will make up any lie to fit a nugget of fact. They have no compunction to lie on such an outrageous level that they achieve Orwellian credibility because no one believes that they could make that stuff up.)
The next thing you need to do is understand the law of the case. That is easier than you would think. Trial is the end game. The jury finds the facts based upon the presentation of evidence and applies them to the law. They are the ones you have to convince. Where do they get their law? They get in through the jury instructions. A plain English recitation of all of the elements of the trial, from what the cause of action is to what rules the jury uses to reach a verdict.
Read the general jury instruction on such issues as credibility and burden of proof until you can recite them by rote. Read the case-specific jury instructions at the onset of each case and read them again until you thoroughly understand what you have to prove.
Determine what may or may not be admissible, and then apply that evidence to the law.
Make a determination about whether you can win at trial. Repeat the process on a regular bases as the case progresses over time. Cases are fluid and often do not end up where they began.
Integrity Wins Cases
Cases are settled favorably (or won at trial) because you have shown the Judge and the opposition (and the Jury) that your case is real. You should win. They will only believe you, however, if you present yourself and your case with integrity.
Integrity, in this context, means that you will stake out the furthest reasonable position for your client. You will make the professional effort to be fully prepared on each issue. If you say it, regarding law or fact, you say it because you believe it to be true.
People watch and listen. A lawyer might get away with a stretch here or an outright falsehood there (lawyers do lie). But over time, people will watch what you do. You will either build a reputation for integrity or not. In my opinion, you will win more cases based upon a well-earned reputation for credibility and reasonableness than you will on good facts.
How do I prepare?
One way to look at a human being’s level of intelligence is to consider on how many levels of abstraction they can think ahead. Chess players think 64 moves or levels ahead. Composer writes symphonies blending levels of instruments and rhythms and tones. Most of us cannot think past lunch.
Young lawyers watch old lawyers operate smoothly in any situation and wonder how. Experience is an equal to intelligence as it allows you a higher point to jump off. You have seen the first 15 steps before, so it is easier to see the next.
So how does a lawyer overcome a lack of intelligence or experience? Through layered preparation. Do the analysis, set it aside and do it again. Do it with others. Each time you do it you will see more, understand more and your arguments and presentations will be more complete.
Has this ever worked in the real world?
I tried a murder case, by myself in Akron.
The allegation was that a young man murdered his girlfriend’s 2-year-old child by punching him in the stomach. The case was based upon expert testimony regarding the timing of the blow. If it was delivered the night before the baby died, the client was guilty.
I contacted James Patrick MD, the elected coroner from Toledo. He is a large, charismatic fellow, from Harvard Undergrad and Yale Med School (or Vice Versa).
We met 7 or 8 times as he taught me the science of immune cells and how they could be used to time insults to the body. He was convinced that the baby was injured days before. The client was not guilty.
My theory on direct examination, especially with experts is that it is a dance. The lawyer only leads imperceptibly, while the expert teaches the jury.
So we went to trial and it was a big deal. Packed courtroom. The elected County Coroner of Summit County testified for the state. Our current Chief Justice, then the elected prosecutor, presented for the state.
Dr. Patrick took the stand and I attempted to teach through him by gently leading through his presentation. Except to each of my questions he answered only yes or no. I tried to dance. He stood firm and I began to sweat. In desperation I said, “Dr., what do you want to tell the jury.” He got up, set up his presentation equipment and taught the jury, uninterrupted by anyone for more than an hour, exactly how and why the baby died. The client was acquitted on the first ballot and I had nothing to do with it.
But I did learn that while people might root for a fighter, they will listen to and believe a teacher.
Jay Milano ﬁrst spoke in court during a murder trial and has practiced at that level of intensity for over 30 years. His clients include Snoop Dogg, Hell’s Angels, sports ﬁgures, doctors, judges, lawyers, and executives, as well as countless people who just needed help. He has tried to not-guilty verdicts cases involving death penalty, multiple homicides, and the “shaken baby” syndrome. He is nationally known as a defender of those falsely accused of sexual assault on children.
Mr. Milano led the exposure of sexual assaults and the cover-up by the Catholic Church and was featured on the Emmy-winning 60 Minutes report, “The Church on Trial.”
As his practice progressed, Mr. Milano became more focused on complex litigation, white-collar crime, and cases where law and science intersect. His method: fearless, aggressive and personal lawyering remains constant – regardless of whether a trial is called civil or criminal. His practice now includes signiﬁcant malpractice, injury and defamation cases, many with Judgments exceeding $1 million.
He regularly represents professionals; doctors, dentists, nurses, lawyers or judges on issues of professional conduct.
He has taught Trial Tactics at Cases Western Reserve School of Law for 20 years and teaches advanced tactics to practicing attorneys several times a year.
“No person shall operate any vehicle… under the influence of alcohol, a drug of abuse, or a combination of them.”
Whether you call it OVI, DUI or just drunk driving, those words from the Ohio Revised Code put fear into the hearts of thousands of drivers throughout the State of Ohio who are accused of drunk driving every year. With mandatory jail sentences and fines that can be attached to drivers who previously had spotless records, drunk driving arrests have become a major issue throughout the state. It’s not just for driver’s who are completely intoxicated either. Just a few drinks can push you past the 0.08 blood alcohol limit in Ohio and before you know it an evening with friends can end up as a weekend in jail.
Throughout Cleveland and the surrounding communities police use a variety of methods to track down drunk drivers and then use several tests on the driver to determine if they are impaired. The primary method that officers use when they first pull someone over is the traditional slate of field sobriety tests. These tests measure a person’s coordination, balance and dexterity in an attempt to determine if the person is impaired.
Officers also use breathalyzer’s in the field and after arrests are made to determine how much someone has been drinking. Drivers in Ohio can refuse these tests, however, a refusal will automatically result in a license suspension by the Ohio Bureau of Motor Vehicles.
The results from the field sobriety tests and the breathalyzer can all be challenged, however, and that’s why it is so important for defendants in OVI cases to seek out an attorney. Specifically, the results from breathalyzers need to be reviewed to determine if they are accurate and if proper guidelines were followed when the test was administered. The breathalyzers commonly used in Ohio have come under a massive wave of scrutiny over the last year and it is important to know how to use that scrutiny in each case.
With potential penalties that can include multiple months in jail and thousands of dollars in fines, defendants have to seek out every possible way to challenge the allegations against them. If you or anyone you know has been charged with a driving under the influence call us and let’s figure out what we can do to help.
Dear Friends and Colleagues,
This is an important election coming for Cleveland and Cuyahoga County. We will be conducting a contested election for a new county prosecutor for the first time in our lifetimes. Given all that we have seen in the past two years, unfathomable corruption, and a justice system so inbred that it has mutated beyond recognition, we need to pay very close attention. So, given that I have spent my whole life in that system, please allow me to impose upon you my opinion of who is best qualified to be our next prosecutor.
In my opinion,
In order to understand how justice works in our county, you need to understand our history.
Our entire county, not just the courts, was dominated from the 1950's until the 1980's by John T. Corrigan. He was not always right, and his office got out of control as he got older, but he was a good man.
Ironically, he and my father fought cases with mutual respect for years and ended up in the Sandusky Veteran's home together, both enduring Alzheimer's, neither able to recognize the other.
During that time judges routinely came from the prosecutor's office. It was a strategy. If any judge fell into disfavor, an assistant was there to contest the election. We also began the bizarre custom of electing Judges by last name (usually Irish, not that there is anything wrong with that) rather than an examination of their qualifications. John T loomed over it all.
Stephanie Tubbs Jones followed John T and the Justice Center lived in the Pax Stephanie. It was a time of reasoned and reasonable conflict.
Draw your own conclusions about Mr. Mason and what has happened to the County in recent years. But, in my opinion, we should all be ashamed of the job we let him do. It was almost like a Saturday Night Live Skit, with county cronies carrying out the furniture while the elected county prosecutor gave press conferences talking about how tough he was on crime.
What is most true to me about Cuyahoga County Criminal Justice is that it has evolved so far into its own world, it has become so ingrown, that it is a system in need of complete overhaul. We need a thoughtful approach to problem solving unencumbered by the past.
Now we have five Democrat candidates. Whoever wins the upcoming primary will no doubt be the next prosecutor. This is Cuyahoga County and the chance of a Republican taking this position is so slim that none have yet filed.
So, in my opinion-
Subodh Chandra is the most thoughtful, and the best prepared of these candidates. He is well educated (Stanford, Yale Law), a former Law Director of the City of Cleveland, and a former assistant US attorney. His experience matches or exceeds all of the others. He is also a Justice Center outsider. Most important to me about his experience is the US attorney component. The Justice Department operates under strict rules for its prosecutors, built with checks and balances. On the other hand, in Cuyahoga County we have operated in a system so loose that almost anyone could have jumped on and taken it for a ride. The Tiki Hut and Hooker trial that will go on until after this election provides a clear view of how the county has operated. The only misleading aspect is that it appears what Dimora did was "small potatoes" compared to Russo looting the county property taxes for the benefit of his friends.
It is time for us, we here in Cuyahoga County, to look hard for an exceptional candidate to fill a difficult and complex job. To my mind, Subodh Chandra gives us the best chance to rebuild Criminal Justice in Cuyahoga County. That is surely something we need to do.
* Unless he thinks you are guilty.
“I am not a criminal-so what am I doing sitting here waiting for a criminal defense lawyer- Jay Milano?”
There sat the client and his wife on a bench outside of a courtroom.
They were young, good looking, hard working and had been trouble free. They were about to start their family. They had just received the news that she was pregnant. They looked much like they would have looked sitting and waiting for her OB/GYN- except they were surrounded by the usual suspects that haunt criminal courts.
They were frightened. They were also confused.
There had been an accident. A man had died. There had been two independent witnesses. Both had a clear view. Both said it was not the client’s fault.
Nevertheless, there they sat. He had been indicted for Vehicular Homicide. Vehicular Homicide means you killed a man with your car. It was your fault and the result of you breaking the law. The allegation alone changes your life.
This client was driving down a straight road in Lorain County. It was a sunny Saturday afternoon. No drinking, no drugs. He was traveling within the speed limit, following a car but not tailgating. Traffic was average.
The road was a bit confusing because there was a cross road, but it did not pass straight through. It came in on his right and dead-ended. The left turn was a few hundred feet further on the left.
As they came to the road on the right, the car in front of him slowed down. It looked like it was trying to turn left, but had nowhere to go. It moved forward a bit, started to turn left, hesitated and then started to turn again.
Like a video game the scene in front of the client exploded. The turning car was struck head on and started to spin. The client tried to avoid it but was struck and ended up in a ditch.
Everyone seemed all right. The old man in the left turning car did not appear to be injured. As a matter of caution, he was taken to the hospital. The highway patrol came and took pictures and interviewed everyone. They exchanged insurance information. Bad day, but things happen.
The old man died at the hospital.
The client learned of the death when a highway patrol officer came to interview him. The client reported that it all happened very quickly. It appeared the car in front tried to turn, hesitated and was struck by an oncoming car. It began to spin. The client tried to avoid the car as it spun, but he hit it and went off the road. “Weren’t there witnesses?” he asked. He felt terrible, but it was not his fault.
That was it, he thought. It was over.
In a few days he got a letter from a lawyer for the deceased’s family telling him to notify his insurance company, that he had caused the death. The insurance company informed him that he might be charged in the accident. They told him they would defend him in a civil case, but not a criminal case. They sent him the complete police report.
It was not over.
At this point, like most people, he thought that this would resolve itself. The police report had statements from two witnesses. They saw the accident exactly as he had seen it. The car tried to turn and was struck head on. The criminal part, he thought, would never happen. His insurance company would take care of the rest.
But he called and made an appointment. He thought it prudent to talk to a criminal defense lawyer since he was told he might be charged.
He came in with his wife. I reviewed the reports, told him that I would contact the Prosecutor’s Office and the Highway Patrol-just to make sure. I did. I got no answers except that the case was under investigation and they would let us know.
Three months passed, along with phone calls from the client and unanswered inquiries. Then he was indicted. He was charged with Vehicular Homicide. He was charged with causing the man’s death. It made no sense.
So there they were on a bench, in the hallway of the courthouse- him scared, her scared and pregnant.
Cases start with the Prosecutor and Defense Lawyer meeting to exchange information. I went, assuming that a close look at the witness statements would cause the Prosecutor to come to his senses.
The Prosecutor gave me the police reports to look over. There was a problem. There were pages missing. The only pages missing were the independent witness statements. The exact statements that exonerated the client were not there. They had not been presented to the grand jury that charged the client with a crime. They were not given to the Prosecutor.
There was no logical explanation that I could see. I believe to this day that the Policeman had taken sides. It is my opinion that someone deliberately withheld the witness statements.
Right or wrong or a coincidence, the only two independent witnesses were gone. If the client had not gotten the original police reports, then chances are no one would ever have known about them. They would have ceased to exist.
I pointed out to the Prosecutor that there were missing pages- very important pages. I showed them to him. He shrugged it off and said he would look into it. We were postponed a month. The clients were disappointed.
A month layer, same hallway, same bench, same scared client and his wife, her a little more pregnant.
The Prosecutor had no explanation. He had taken no action. He said that he and his colleagues would “round table” this case and likely dismiss it.
Hope. They were going to be reasonable. Despair, another delay. Being charged with a crime weighs more on you every day. You wake up in the middle of the night, and stay awake, thinking about nothing else.
A month later, same hallway, same bench, same scared client and his wife, her a little more pregnant.
This time we had a new Prosecutor. The Highway patrolman was also there. He sat down to explain to us how he knew what happened. He went through his version of the events and never mentioned the witnesses. The ones who said he was wrong. The ones who said the client was innocent. He walked out, cock sure that since he was a policemen, all would believe him.
The new prosecutor said she was concerned about the statements, but she had to look into it. Amazingly, she called to tell me that they were going to have an expert from the highway patrol examine the accident to see who was right. The argument became heated. She did not need an expert, that there were two eyewitnesses. The statements had been concealed. I did not dissuade her.
Two dynamics of criminal justice were at work here. First, once a charge is filed, it carries weight. It is very difficult to undo. A victim has been named. His family has rights and a very loud voice in court. To dismiss the case dishonors his death. Second, police and prosecutors work together every day. Prosecutors will do everything reasonably (and sometimes unreasonably) possible to protect their policemen.
A month later, same hallway, same bench, same scared client and his wife, her a little more pregnant.
This time a young highway patrolman came in and declared, without any hesitation, that he knew who had caused the accident. It was the client. He could tell by marks on the road that the witnesses were wrong. He was sure. It was astonishing that he dismissed the witnesses with such clarity. He had no real evidence. This young highway patrolman fully expected me to say “Yes, sir” and go out and tell the client that he and the witnesses were had met a greater force. He must surrender. He had better pled guilty.
Put it in writing, I said. Let us have an accident expert test your theory.
It is my opinion that this young highway patrolman who called himself an expert was willing to stretch his expertise (read the truth) to accommodate his friend (who, by this point, knew he had a major problem with hiding evidence).
Now we were set for Trial two months out. The wife would be seven months pregnant by then.
The Judge ordered the prosecutors to produce the young highway patrolman’s report. They never did. We let the Judge know two weeks before the trial that the State had not done what he told them to do.
Two days later, I got a phone call from the Prosecutor. The young highway patrolman would not put his opinion in writing. They would dismiss the case.
Three days later, as if another insult was necessary, we went back to Court. The clients sitting on the bench as they had done seven months before, she very pregnant, both of them very relieved.
The case was dismissed. It had been a year since it started.
My opinion: the original highway patrolmen took sides. He decided that it was the client’s fault and then, rather than investigating, just built a case. He did so even to the point of hiding evidence. His young buddy covered his ass as best he could, but in the end would not put himself on the line by joining in the lie.
People take criminal justice for granted. They assume the police are out to help them. If they just explain what happened, it will all be fine. Regularly people come to us in serious trouble, after having trusted their instincts or the policemen or an inexperienced or ineffective lawyer to “Straighten it out.”
Right now we represent a professional woman who thought she could explain away sloppy paperwork. She got charged with 6 felonies. A friend walked into our house, unannounced, a few weeks ago, desperate for information because her son’s lawyer would not talk to her. Had he done his job, the young man may never have been charged.
Criminal justice is hard. And it is counter-intuitive. It is not something you can do yourself.
PS The baby will soon be born. I will keep you apprised.
If anything comes up, for you or someone close to you, anything for which you might need a lawyer, just call. If it is not a problem, I’ll tell you. I am not in the business of scaring people. If there is a real problem, we will put it behind you.
Jay Milano, criminal defense, malpractice, and personal injury lawyer and law professor in Cleveland, Ohio teaches how to win cases.
Unless there is a vigorous objection, this is the first of a series of columns on trial practice. They will all be by me. In fact, we are already looking for authors qualified on the topic (read, willing to write).
Jimmy Buffet introduces one of his songs as a “love song from a different point of view.” This will be trial tactics from a different point of view, an attempt to cover ground not well trod. (The fact that the song is entitled “Why Don’t We Get Drunk and Screw” should not be held against the County Bar).
Any analysis should start with a baseline. In this case we should look at the core principals of effective trial work. They are, I believe:
- Creativity, and
Before you dismiss this assessment as too basic, stop and think of how many lawyers you know who don’t hit 2 of the 5 on a daily basis.
Each year I have at least one law student tell me that it is okay to assist the client in manufacturing a story that will help them to win. Too often we see practicing lawyers who follow that creed. We live in a country where “plausible deniability” and “spin” are considered art forms. Try to practice that way and you will kill your clients and kill your practice.
There is nothing, nothing, nothing more important to the success of your practice. The Justice Center and the Federal Building are very small towns. You get caught hedging even once and people will know. One way to think of credibility is as your duty to tomorrow’s client.
Credibility is also bound up with the concept of how you present your claims. We have all seen lawyers who make outrageous demands in an effort to bluster their way to victory. It is a very shortsighted strategy. Stake out the furthest reasonable position and hold it.
Integrity is close in concept to credibility, but the difference is operative. For this purpose, integrity means the willingness to do the work necessary to complete the task. No one is going to do you any favors, certainly not someone in a more powerful position than you. The only way that you will succeed over time is to do the work on each case. That means digging in and reading the statutes and rules before all else. As an aside, if you want to understand a new concept, look at the jury instructions.
We must stop considering ourselves as warriors and start to look at ourselves as teachers. It is the job of the trial lawyer to educate: first ourselves, then our clients, then our opponents, then the judge, and finally the jury. Do not expect anyone to understand your case. Take the time to explain. Pretrials are for educating the judge as to your point of view. Settlement conferences are for educating your opponents. Office meetings are for educating your clients. Educating ourselves is a continuous process.
Here comes the first internal contradiction. To be a good trial lawyer, you need to be a teacher. Control is about the wars we fight.
You need to control yourself. First, look at the practice as an intellectual exercise. A lawyer cannot afford the luxury of recreational anger. (I did not make that up, but cannot remember the name of the lawyer from whom I heard it many years ago.) If you are dealing with a jerk of an opponent, play above or below him. Do not engage, as you will lose focus.
You need to control the situation. Form the issues in discussions. Be the person in the courtroom to whom the jury looks for the right answer. Be the person to whom the judge looks for guidance. Do that by being prepared for the questions. Read the rules and statutes and the cases. If there is one common complaint among judges, it is unprepared lawyers. Knowledge is control.
The finest compliment you can hear is: “We have never done it that way, but it sounds fair, let’s do it.”
Do not copy and here is why. You need to understand why you are doing something before you can learn it. Why am I asking this question? Why do these facts fit my case? Why did the court rule the way it did? What is the logic? We spend too much time calling each other to ask for a copy of a complaint or interrogatories or a motion. You do not need to reinvent each time you undertake a task, but you do need to know what you are trying to do before you blindly follow.
In many ways this is the most important principal. What if the way to measure intelligence is to determine at how many levels of abstraction a person can think. Chess players think many moves ahead, contemplating all of the possibilities. Most of us cannot think past lunch. Jurors may be smarter than lawyers, but in the context of a trial, will hold to the most basic and easily understood principals. Do not get lost in the upper tiers of argument.
We have set the baseline. Nowhere to go from here, but up. See you in the next issue.
Law and Fact
The Journal of the Cuyahoga County Bar Association