Edwards Will Not Be Charged

The Enquirer reports that Hamilton County Prosecuting Attorney Joe Deters announced tonight that he will not seek an indictment against Jodie Edwards, whose infant daughter died when left in an SUV for several hours.  The flood of comments attached to the Enquirer's story serves both as a compelling argument for why newspapers should be newspapers rather than blogs (and not permit comments on news stories) and a reflection of lots of confusion over why this case turned out as it did.

First, let me express some sympathy for Joe Deters (who, I'm quite sure, doesn't need me to defend him).  Nine times out of ten, I'd tell you that a defense attorney's job is much harder than a prosecutor's.  After all, a prosecutor has, theoretically, the resources of the entire State of Ohio at his disposal.  When cases go to trial, his principal witnesses are often uniformed police officers, which translates to instant credibility with a jury.  I spend most of my voir dire just persuading potential jurors that the mere fact that my client's been charged with a crime and sitting behind a placard that says "Defendant" doesn't mean he did anything wrong.

But the Edwards case represents the rare instance when you couldn't pay me enough to be a prosecutor.  My decision on whether to represent a client in a criminal case is easy:  either a judge appoints me or a client shows up in my office wishing to retain me.  But deciding whether to charge a person with a crime, particularly in this instance, is much more complex.  How does one weigh the shock and outrage over what happened to a defenseless child with compassion for a grieving mother, all while trying to fairly apply the applicable law to the provable facts?  I doubt Deters made this decision alone.  He no doubt consulted with the attorney responsible for presenting cases to the grand jury (to assess whether an indictment would be issued if the case were presented), some of his senior trial attorneys (to determine whether a jury would convict), and attorneys in the appellate division (to be sure a conviction would be defensible on appeal).  I know a lot of people don't like Joe Deters, but this had to be an agonizing decision.  And it's a decision with no political benefit on either side.  Either choice he made would have pissed off some very vocal, emotional people.

Second, some have accused Joe Deters of inconsistency when it comes to child endangering charges.  I don't think that's fair.  There may be some systemic unfairness, but the blame for that does not lay at Deters's feet.  Much of the inconsistency is because of the way various types of crimes are handled in Hamilton County.  Here's why.

A misdemeanor offense is initiated by the filing of a complaint.  All that's needed is for an officer to sign a complaint, warrant, and affidavit.  After an initial appearance where bond is set, the case will then be set for trial.  Prosecutors don't get involved (at least in 99.9% of cases) in charging decisions regarding misdemeanors.  Felonies, though, are different.  For those cases to proceed before a judge, a grand jury has to return an indictment.  Often, police officers will file charges and wait to see what happens in the grand jury.  But any time a death occurs, the police will consult with the Prosecutor's office prior to filing anything, and those cases will often involve "direct indictments," meaning that a complaint is never filed.  So while Deters had to make a decision in the Edwards case, he would not do so in a child endangering case that did not result in physical harm (such as a "dirty house" case or a case in which a child was left in a car for a few minutes).  Edwards would have been charged with a felony; the latter examples are misdemeanor offenses.

I've also been hearing a lot of talk about mothers charged with endangering for falling asleep or briefly leaving their kids alone.  I won't pass on the merits of those cases (suffice it to say that I believe we are over-using the endangering statute).  If the offense occurred inside the City of Cincinnati, then Deters's office never touches the case:  misdemeanors within city limits are prosecuted by the Cincinnati Prosecuting Attorney (really, the City Solicitor).  The HamCo Prosecutor has no authority or control over those cases.  

Maybe we should have some serious discussion about the way the system works.  Should we really permit charges to be initiated just on the signature of a police officer (or much worse, by "referral"--an officer giving a form to a citizen to permit the filing of a criminal charge, which means the officer won't be involved in the case at all, generally)? Edwards may have benefitted because she could afford to retain counsel early in the process.  An indigent defendant wouldn't be entitled to counsel until charges were filed.  Maybe we need to make counsel available at pre-filing stages.  But people who are complaining about unfairness and injustice are noticing symptoms of systemic problems, and shouldn't single out Deters as a scapegoat in this instance.

McCain's Strategery

A few days ago, the McCain campaign acknowledged that as far is it was concerned, the 2008 presidential election wasn't about issues; it's about personality.  Yesterday and today, we've seen how this philosophy will guide their campaign:  any time Obama or Biden attempt to engage on the issues, the Rove-advised McCain campaign will assert that they've attacked McCain or (more likely) Palin personally.

Yesterday, Obama repeated an old phrase he's often used in declaring the McCain, who's been in Washington for decades, can't seriously be considered a change candidate, saying "You can put lipstick on a pig, but it's still a pig."  McCain's campaign accused Obama of calling Palin a pig.  What?

At nearly the same time, Biden pointed out a potential inconsistency in Palin policy positions.  While she's promised to be an advocate for children with special needs, she opposes stem cell research.  Biden argued that one cannot be seriously committed to both positions.  While Biden's position is certainly subject to attack on its merits, the McCain campaign didn't do that; instead, it accused Biden of personally attacking Palin's family.

Obama has responded to the "phony controversy."  In part, he says:

I don't care what they say about me. But I love this country too much to let them take over another election with lies and phony outrage and swift boat politics. Enough is enough.

His full response, below, is well worth a couple minutes of your time.

concert:nova Season 2

The fresh chamber music ensemble concert:nova has announced their 2008-2009 season:

October: Where the Wild Things Are

December: Waiting for the End of Time: Messiaen's Quartet for the End of Time and abstracts from Beckett's Waiting for Godot

February: Concert in the Dark

March: Demystifying Arnold Schoenberg

May: concert:nova and Beyond Ballet

June: The Mirror Project

Details are forthcoming, so keep checking out www.concertnova.com for updates.

I'm No Journalism Expert, But . . .

The online Enquirer notes the arrest of 30 individuals accused of drug trafficking. This is the lede:

The Cincinnati Police Department is working hard to get trash off the street corners, especially when it’s the kind that sells drugs.

Really? This is considered acceptable news reporting--referring to people as "trash"? I'd understand this in an editorial or column, but a "news" article? And about people who aren't even indicted yet?

Judging from the grammatical errors in the body of the article, it appears the Enquirer had the second string editorial staff review this one. One more reason to miss the Post.

Mmm, Crepes

A few days ago, Julie blogged about the new place on Court Street, It's Just Crepes. Julie hasn't been able to make it since it's only open during the week (though that changes as of September 20th), but not having that problem, I had lunch there with a colleague today. It's in the space formerly occupied by Javier's, between Avril-Bleh and Servatii.

Yummy. (No pictures: real reviews are Julie's job; I just give my gut impression of places I like.) The waitstaff was extremely friendly and had our meals to us pretty quickly, even at the lunch rush. And their prices were very reasonable (you can check out the menu online at their website). I enjoyed watching them make the crepes, on large, circular, wall-less griddles designed just for that purpose.

I had the Hawaiian--ham, pineapple, cheese, soy sauce, and brown sugar--and my friend had the Santa Fe--chicken, swiss, mushroom, and salsa. The crepes were tasty, and the combinations that make up the fillings were good. There'll definitely be return trips for more lunch. I'm afraid to start eating the sweet crepes, though, for fear I'll never stop. So for now, I'll stick to the "savory" crepes.

Finally, let me give a "shout-out" to the Image Art Company, who apparently designed It's Just Crepes's in-store graphics and website. After visiting the restaurant, I was convinced that it must must be a locally-owned franchise of a national chain, based on how professional the menu board, window sign, and logo looked. So I Googled them. Turns out I was wrong: they were produced by Image Art Company, a local branding firm. I may have to give them a call to talk about a remake of my own firm's website and letterhead . . .

Oktoberfest Zinzinnati

Get out your lederhousen and clean out the mold from your bier stein. Oktoberfest Zinzinnati is less than 2 weeks away. September 20-21 on 5th Street in Downtown Cincinnati.

On The Flannery Five

Warning:  Long post ahead.  Sorry.  This one's been building for a bit.  And I'm bending my rule on not blogging regarding courthouse news.

I'm about to rant about Streetvibes editor Greg Flannery and the four others convicted of trespassing in Steve Chabot's office a couple years ago.  (Here's the Enquirer coverage.  I refer to them as "five" because two were juveniles, and I'm not sure how their cases were resolved.)  But I've been taught that if you're going to criticize someone, you should begin with some praise.  So let's do that first (I've been meaning to make the point anyhow.)

The praise:  For a long time, I've bought Streetvibes each month.  I've always thought that the one-dollar contribution was a terrific way to help the homeless.  But the last few months, I've been buying the newspaper for another reason:  to read it.  The writing and reporting has been excellent--often, better than its weekly alternative counterpart, Citybeat.  So if you've not bought Streetvibes in a while, pull out a buck the next time you see a vendor.  And then read.

Now, for the meat of the post.

Back in 2006, Greg Flannery and four others were arrested for trespassing in the office of Congressman Steve Chabot.  Essentially, they staged a sit-in to protest the war in Iraq.  At the time, Flannery acknowledged the group was "repeatedly invited to leave" and stayed two hours past closing.  As is their right, four of the five, including Flannery, demanded a jury trial.  They were convicted.  They appealed.  They lost.  They filed a petition for review in the Ohio Supreme Court.  It was denied.  And they were sentenced to perform 20 hours of community service.  One of the group's members, Barbara Wolf, apparently told the court she wouldn't complete her sentence, and was sentenced to 10 days in jail instead.

I oppose the Iraq war.  In my younger, badder days, I could see myself being part of their civil disobedience.  In fact, one of my fondest memories of my teenage years is marching on Washington, DC, with my dad in 1991 to protest the Gulf War.  I also proudly addressed, on behalf of a Pittsburgh coalition of high school students, a peace protest.  So I applaud the sit-in and the Flannery Five's intentions.

So what's my problem?

The current issue of Streetvibes has two pieces that stand in ironic juxtaposition.  The first, a front-page story written by Flannery called "All The Justice You Can Afford," recounts the findings of the NLADA study of the Hamilton County Public Defender.  The second, on page two, is Flannery's page-long story of his arrest.

One of the criticisms of the Public Defender that Flannery echoes is an allegation that incarcerated, indigent defendants spend more time than necessary in jail because public defenders don't have the time to go visit them in jail before their court dates.  We'll leave aside, for a moment, whether that's actually true.

Flannery's piece on his trespassing conviction brags that his trial lasted six days.  Six days.  For a fourth degree misdemeanor.  In municipal court.

I wonder if anyone was forced to spend extra time in jail because of the trial.

I didn't attend the trial.  But from Flannery's account, it doesn't appear that the group's lawyers argued that they were factually innocent of a trespass.  Instead, it seems like they were hopeful that at least one of the eight jurors would decide to nullify the law.  He writes that "we tried to convince the jury to convict the war instead of us."  He brags of the "inconvenience" caused by the "long legal struggle."  (I suspect that the defense attorneys never openly argued for nullification; they wouldn't be permitted to.  My best guess is that they couched their efforts in terms of a "necessity" defense, arguing that the sit-in was necessary to prevent the imminent deaths of people in Iraq.)

But who was inconvenienced?  The judge and his or her staff?  Nope, they're there every day, whether there's a jury trial or not.  The prosecutor?  Nope, same thing.  But how about the other litigants who had appearances scheduled during the six-day trial?  Yep, probably.  You see, once a jury trial begins, it takes precedence over everything else until it's finished.  Judges will get through the rest of their docket as quickly as possible, usually handling only guilty and no-contest pleas; everything else will typically be continued, possibly weeks into the future.

Most people know that defendants have a right to a speedy trial.  For a misdemeanor, someone who's held in jail has to be brought to trial within thirty days of his or her arrest.  But there are things that can stop, or "toll," the speedy trial clock.  One of these is the unavailability of the court.  So guess what?  If you were poor, locked up, your case was assigned to the same judge as was Flannery's, and you had a trial scheduled during the Flannery trial, your case was continued.  Your speedy trial time tolled until the next court appearance.  And you stayed in jail.

Flannery and his co-defendants are fortunate.  They could afford to take six days off of work for a trial.  But what about defendants (and witnesses and victims) who were scheduled the second, third, fourth, fifth, or sixth day of the Flannery trial and who had to come back another time who work low-paying, hourly jobs?

I guess the issue really is one of how much justice a person can afford.

The Hamilton County Municipal Court is charged with determining whether people are proven guilty of misdemeanor offenses, and then settling on a sentence for those who are.  Whether it's good at that job is a determination for others to make (most days, I'm too busy hacking at trees to see the forest).  It is not, however, well-suited to determining whether a particular military intervention is justified.

The judges and prosecutors (and we defense attorneys) are at our best when we have the time to discuss, whether on the record, in chambers, or at side-bar, the appropriate resolutions to cases.  When a judge is trying to get a jury back in the box for a trial in progress, that time doesn't always exist.  Reading Flannery's article, I was thinking about some of the people I've represented in municipal court the last few months:

• A woman in an abusive relationship, whose romantic partner figured out things might go better for him when she calls the police if he says that she assaulted him, too.  (We got the right result:  he was convicted, the case against her was dismissed.)
• A man with no criminal record but a history of mental illness who, unable to afford his psych meds, committed a non-violent though serious offense due to his mental illness.
• A young woman, initially convicted of a drug-related offense, who relapsed while on probation.
  

In each of these cases, the judges made (I think) the right call and declined to send my client to jail.  But I wonder:  if any of the cases had been called on a day when a judge was trying to get to a jury trial and was speeding through the docket, would s/he have been able to give the case enough thought to reach the same result?  I'd like to think so, but I just don't know.  It's a lot easier--and quicker--to impose a jail sentence than it is to fashion an appropriate remedy involving treatment and social services.

Greg Flannery and his co-defendants, aided and abetted by some of the best legal minds in Ohio, staged a six-day sit-in in municipal court.  Should we have launched a war in Iraq?  Probably  not.  Is a municipal courtroom the appropriate forum to litigate that issue?  Certainly not.  And doing so likely hurt only the people Flannery is usually busy standing up for.

Greg Flannery got all the justice he could afford.  How much did it cost those in the community who can't afford as much justice?