Ohio Criminal Appeals Lawyer Blog

Ohio Appellate Rule 13(D) states:

"Documents presented for filing shall contain an acknowledgment of service by the person served or proof of service in the form of a statement of the date and manner of service and of the names of the persons served, certified by the person who made service. Documents filed with the court shall not be considered until proof of service is endorsed on the documents or separately filed."

From my experience, lots of Ohio lawyers do not follow this rule. Nothing is ever done about it, but you would think lawyers could follow rules of procedure. Think again.

Most of the time I am served with a document filed by the State, I am always served with a file-stamped copy. Service with a file-stamped copy is prima facie evidence that Rule 13(D) was violated. Rule 13(D) indicates the "proof of service" is supposed to be "certified by the person who MADE service" and include the name of the "persons SERVED" (as in past tense). And this makes sense. The "proof of service" is not a "promise of service." It is supposed to make lawyers play fair.

But would prosecutors violate rules? Say it ain't so. Recently I received in the mail an Answer Brief that was filed four days earlier. The post-mark is three days after the filed date. The "Certificate of Service" claims that a copy was sent to me before the brief was filed. And it was signed by a prosecutor. How could the prosecutor certify to the court that they mailed me something when it was not mailed until three days later?

This gives the State a slight advantage. Appellate Rule 18(A) states that my Reply Brief must be filed ten days after service of the State's Answer Brief. And Appellate Rule 14(C) states that three days shall be added to the prescribed period when service is done by mail. So normally I would have thirteen days from the date the State files its Answer Brief to file the Reply Brief. But if the State files the Answer Brief and then holds on to it for a few days before mailing it, I have less time to complete the Reply Brief than I would have if the State followed the rules and actually mailed a copy to me before they filed their Answer Brief (as they certified they did).

Sure I can still get the Reply Brief done and of course I would have solid ground to request an extension of time to file the Reply Brief if I needed one. But it is amazing how many Ohio lawyers are unable or unwilling to follow the rules.

The title "Criminal Defense Attorney" or "Criminal Defense Lawyer" is a misnomer and is sometimes used as a weapon against those who represent the legal interests of the accused. Have you ever heard "how can that lawyer defend him?" or "as a criminal defense lawyer, I could not defend her." Or how about "how can those criminal defense lawyers sleep at night defending those people?"

Well, as a criminal defense lawyer representing the legal interests of criminal defendants on appeal, I have never defended the actions of any of my clients. I am not in favor of and I do not "defend" rape, murder, child molestation, burglary or even shoplifting or jaywalking. I have never claimed on appeal that the crime for which the person was convicted should not be a crime.

But those who could never see themselves as criminal defense lawyers best understand that what "criminal defense lawyers" do is vital to our justice system. The Constitution of the United States requires that the criminally accused receive the effective assistance of counsel. And so does the Ohio Constitution. So if you want to lock someone up for the rest of their lives or "fry" them (for those in favor of the death penalty), you better hope the accused has the effective assistance of counsel or the conviction and/or sentence will not stand up to scrutiny by reviewing courts.

I do not see myself as defending criminals or crimes. What I do as the lawyer for the accused is aggressively assert the legal rights of the accused (be they innocent or guilty). I challenge the State's case. The State builds a wall (their case) and the counsel for the accused tries with all their might to knock it down. Only when the wall is still standing after the accused was afforded the effective assistance of counsel can we know a conviction and/or sentence is "valid."

As a lawyer representing the accused on appeal, trying to knock down walls is my job. I am not going to cop out and claim "I am just doing my job" because I chose this job. This job is an important one. If your calling is to be a prosecutor, go do that. But if your interest is in making sure our legal system is as fair as possible, join the "dark side" and become a "criminal defense lawyer," although that title is a misnomer.