Bloomsday enters the crowded, stinking lobby of the Cuyahoga County Public Defenders Office yet again to call out the name of another in the daily wave of understaffed intakes. This will be the eighth advisement in an hour, but dozens of others remain, waiting to talk to a free lawyer about their criminal case.
Occasionally, we can't represent someone. Perhaps they make too much money. Perhaps their matter is, technically, not criminal. Like cleaning ladies who "don't do windows," we at the public defenders office don't do minor misdemeanors. Disorderly conducts, speeding tickets, and possession of small amounts of marijuana carry no jail time in Clevelandia. Ergo, we don't represent. But, that doesn't mean we simply turn folks away without the wisdom of our experience.
The kid is young and small, with a strange tuft of hair on his head. He's well dressed, carrying a folder thick with documents. I lead him to a spartan intake office, hand him my card and begin my advisement as I always do:
"First, I want to make sure we both understand what's on your plate, so I'm going to look into the court systems docket so we both have a clear understanding of what you're charged with, what the charges mean, how each charge is defined under the law and what the potential consequences of a conviction could be." (I say this as I type away, seeking information tethered to their Social Security number.)
I quickly see that the kid has no other cases in the system but the one that brought him here today, and I see he's charged with a minor misdemeanor possession of weed. This fact, which renders him ineligible for our services because he can't go to jail, interrupts my standard advisement for the "good news/bad news" corollary.
"I have good news and bad news. The good news is that you can't go to jail for this. Possession of small amounts of marijuana in Clevelandia are punishable by up to 150 bucks and costs. No jail, no probation. The bad news is, we can't represent you. The Constitution provides you with Assistance of Counsel only in matters for which you could lose your liberty."
He's suddenly sad and teary.
"But wait! There's more good news! First, I want you to leave hear with a full understanding of your charges, your rights and your choices. I know you waited in our unpleasant lobby for some time for advice, and I intend on giving you some. So listen: half the time, cops don't show up on these. When you go to court, the matter will be dismissed if the cop doesn't come. If he's there, you certainly have the right to contest the charge: they have to prove it was marijuana and they have to prove it was yours. But, sometimes, in order to avoid a conviction for a drug offense (which could have ridiculous collateral consequences for your future) often times the prosecutor will change the charge to something that isn't drug related, like a disorderly conduct."
"But, what if I have a prescription?" he says, as he opens his folder to reveal a wealth of information about his lawful smoker status in the State of California. I stare at him blankly for a few moments, digesting this. He's come to our office for a pot head slam dunk in court.
"Well, you seem to suggest a defense to the charge is found in the fact that you're lawfully able to possess marijuana in another state. Are you attempting to suggest that, because your marijuana usage is lawful in one state that it should be lawful here?"
"Yes."
"Well, you can't win the argument that you have the right to smoke pot here, but there is a method to get to the same end."
"I don't understand."
"Have you ever heard of the Full Faith and Credit Clause of the United States Constitution?"
"No."
"The Full Faith and Credit Clause doesn't give an individual charged with a crime any rights. It's not like the rights of criminal defendants enumerated in the Bill of Rights. Instead, the Full Faith and Credit Clause is a judicial remedy; It a way for a court in one state to resolve a dispute with deference to the laws of another state. Ohio doesn't have to let you smoke pot because California does, but an Ohio judge could exercise discretion and apply the Full Faith and Credit Clause to resolve a case with deference to the laws of California. It's a rarely used tool in a judge's toolbox. But it's there."
"So how do I use it?"
"You mean, how do you get the judge to use it?"
"Yes."
"The short answer is, 'GO READ THE CONSTITUTION WHEN YOU'RE NOT HIGH, then try to weave a convincing argument that the judge has the power to respect the will and judgement of another state on an issue that is divided among the states."
"Do you think the judge will buy it?"
"I wouldn't put it that way. I'd ask, 'Do you think the judge might exercise a constitutional court-based remedy designed to respect the will and judgement of another state on an issue that is divided among the states?" I say. "Seriously, ask me it that way."
"Do you think the judge might exercise a constitutional court-based remedy designed to respect the will and judgement of another state on an issue that is divided among the states?" He asks.
I turn to the computer once again to find the name of the judge assigned to his case. "As a matter of fact, it's kinda crazy...but it just might work."
