Ohio

Let’s make a deal

The guy on the elevator shook his head.  “Got to get me a new lawyer,” he said to no one in particular.  “All this one talks about is doin’ a plea.”

I could relate.  I’d worked out what I thought was a good deal in Harry’s machete case, but he wanted no part of it.

Getting assigned a case and picking up a copy of the indictment to find that it reads, “did cause or attempt to cause physical harm with a deadly weapon, TO-WIT:  a machete” can give you pause, but it turned out not be as bad as it seemed.  Harry found out that his woman had an interest in the guy across the street, and the upshot was that girlfriend and her new suitor were standing at the door to Harry’s apartment, and the guy was really big, and Harry didn’t know what the guy was going to do, so he grabbed the nearest thing he had to defend himself.  Which turned out to be a machete.  Cocking it behind his neck as if to swing it was sufficient to dissuade New Boyfriend — or just about any of the higher primates — from pursuing the matter further.

That was Harry’s story, anyway.  I talked with the witnesses, and they had a slightly different version, in which the woman, accompanied by the other guy, had gone to Harry’s apartment to take him back his phone charger, when all of a sudden Harry leaps into the hall and starts swinging the machete. 

Still, there are some arguments I can make, chiefly, that Harry was trying to scare them, not hurt them:  if someone’s swinging a machete around in earnest in a confined space, there will be blood, as Daniel Day Lewis would say.  I go over to the jail to talk to Harry about working out a deal, and he tells me to see what I can do.  I talk to the prosecutor, and he gets a decent mark:  one count of attempted felonious assault, a third degree felony.

When I go back to see Harry, though, he’s talked to his family, and by an amazing coincidence, all of them apparently have law degrees just like I do, and they tell him he shouldn’t plead, especially, as Harry insists, to something he didn’t do.  I mention that the police report says that Harry told the cops he swung the machete, and told them that if he’d had a gun, he would’ve used that.  No matter.  Harry wants a trial.

The trial was supposed to be on Monday, and before we start I ask the bailiff if we could go in and talk to the judge about what he might do on a plea.  We’ve got 34 judges here, and each will follow one of three policies on that:  they won’t talk to you at all about it, they’ll talk to you but won’t tell you what they’ll do, or they’ll tell you. 

I respect any choice the judge makes in this regard; as I mentioned in a post a couple years back, judges have been chastised by appellate courts for getting too involved in plea bargaining.  And if you’ve been around long enough, you get a pretty good idea of what judges are going to do, even if they don’t tell you.  This judge is pretty upfront, though.  He goes through Harry’s record — Harry’s 43, and while he had some stuff in his younger days, his only felony since ‘92 is a crackpipe case from last year — makes sure that no one was hurt, and says that Harry seems to be “a good candidate for community control sanctions.”  Wink wink, nod nod. 

I go back and lay it out for Harry.  He’s no dummy.  “Looks like we gotta roll with that,” he says approvingly.  And so we do. 

It took me a long time to learn how to handle this sort of thing, talking to a client about a plea bargain.  There’s lots of bad stuff that can happen to you in life, but getting charged with a crime is in the top five.  You’ve got a lot of power coming down on you:  a big prosecutor’s office, a big police department, crime labs, the works.  So when your lawyer starts pressing you hard to take a plea, it’s not unusual for a you to start wondering which side your lawyer’s really on.  Especially if, like most defendants, you’ve gone through life with not many people on your side to begin with.

I’ll get in a client’s face if he wants to make a stupid decision about the other two items over which it’s completely his call — whether to try the case to a judge or jury, and whether to testify — but I won’t argue with a client about whether to plead.  I’ll lay it all out, and I’ll make a recommendation in some cases, but I’ll leave it there. 

It’s his call.  I’m not the one who has to do the time.

Full post as published by The Briefcase on July 15, 2009 (boomark / email).