A cautionary tale for gun owners and anyone who has been adjudicated as a juvenile delinquent

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Attorney David Betras
BKM Managing Partner David Betras

One of the fascinating things about trying criminal cases—and one of the things that will keep me at it until I fall over at my desk—is that you never know where the law and the facts will take you. I was reminded of that reality during a just-concluded high-profile murder trial in which the provisions of Ohio’s “Constitutional Carry” firearms statute and my client’s failure to have his juvenile record sealed and expunged converged to forge the plea deal I negotiated on his behalf.

That said, this week’s column should serve as a cautionary tale for gun owners, any who has been adjudicated as a juvenile delinquent, and parents.

Chapter One: Where you can’t carry a firearm in Ohio.

While Ohio’s recently enacted Constitutional Carry law has relaxed or removed many of the statutes related to carrying a concealed weapon, including the need to apply for a permit and undergo training, it has not turned the entire state into Dodge City. There are still places the Wyatt Earps and Doc Holidays among us may not enter if they are packing. They include:  

  • Police stations, sheriff’s offices, highway patrol posts
  • Correctional institutions or other detention facilities
  • Airport terminals or airplanes
  • Courthouses
  • Universities, unless expressly permitted
  • Places of worship, unless the place of worship permits otherwise
  • School safety zones: schools, school buildings, school premises, school activities, and school buses
  • Private businesses, including bars, restaurants, and other places that serve alcohol may prohibit the carrying of concealed weapons but must post a notice of the prohibition in a conspicuous place.

That last proved problematic for my client because he did carry a concealed weapon into a bar/restaurant that expressly prohibits doing so which is a third degree felony punishable by up to three years in prison and a fine of up to $10,000.

He shouldn’t have done that—and neither should you. Take my advice, nothing good comes of carrying a concealed weapon into a place where people are consuming alcohol—especially if one of the people is you. BKM’s rule pertaining to driving while under the influence–Don’t Do It—also applies to doing shooters and carrying a shooting iron.

Chapter Two: Carrying a weapon under disability.

And, no I’m not talking about workers’ comp or SSDI. I’m referring to the Ohio law that makes it a crime to knowingly acquire, carry, or use any firearm or dangerous weapon if you:

  • Are a fugitive from justice;
  • Are under indictment for or have been convicted of any felony offense of violence;
  • Are under indictment for or has been convicted of any felony offense involving the illegal possession, use, sale, administration, distribution, or trafficking in any drug of abuse;
  • Are drug dependent, in danger of drug dependence, or a chronic alcoholic;
  • Are under adjudication of mental incompetence, have been adjudicated as a mental defective, or have been committed to a mental institution;
  • Have been adjudicated a delinquent child for the commission of an offense that, if committed by an adult, would have been a felony offense of violence;
  • Have been adjudicated a delinquent child for the commission of an offense that, if committed by an adult, would have been a felony offense involving the illegal possession, use, sale, administration, distribution, or trafficking in any drug of abuse.

If you guessed that my client ran afoul of the juvenile adjudication thing, give yourself a gold star. Like carrying a concealed weapon into a prohibited place, possessing a firearm under disability is a third degree felony punishable by up to five years in prison and a $10,000 fine.

Again, take my advice, this is something you really should not do.

Chapter 3: Failing to seal and expunge juvenile records can haunt you well into adulthood

Because the state of Ohio believes juvenile offenses should not impact a person’s life until they day they die, the General Assembly created a process for sealing and expunging juvenile court records. If you or someone you know has been adjudicated as a juvenile delinquent, I implore you to take advantage of the opportunity to obtain the fresh start the state is offering.

The client in the case I’m discussing today did not, and, as I noted above, that left him open to the charge of possessing a firearm under disability. While not as serious, failure to seal and expunge a juvenile record can make it difficult to get a job, be admitted to college, or obtain a credit.

Here is a brief overview of what is a complicated process:

First, let’s define our terms.

Sealing a record means it still exists but is hidden from public view. A sealed record can still be seen in limited circumstances by the Courts, law enforcement, or the defendant.

Expunging a record means all physical and electronic versions of the record are destroyed. The record then no longer exists, and for all intents and purposes, it never existed. Once the record is expunged you can truthfully say that you do not have a juvenile record.

Before records can be expunged, they must be sealed. All offenses, except for aggravated murder, murder, and rape may be sealed and expunged.

Contrary to what many people believe, with few exceptions, juvenile records are not automatically sealed and expunged by the courts. You must apply. I am sure that most readers will not be surprised to learn that as this guide clearly shows, the process is complicated and laborious. The law does not require applicants to be represented by an attorney, but if you take a look at the publication referenced above, you may decide to contact a lawyer.

Chapter 4: Conclusions

What have we learned from the cautionary tale?  Don’t carry a firearm into someplace you shouldn’t, don’t carry a weapon under disability, and do take advantage of the law that allows you to seal and expunge your juvenile record.

The End.

Do Trump gag orders pass constitutional muster? Probably not.

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“Writing is easy. You only need to stare at a blank piece of paper until drops of blood form on your forehead.” Gene Fowler, American journalist

Attorney David Betras
BKM Managing Partner David Betras

Anyone whose job is or involves creative writing will agree with Gene Fowler. I’ve cranked out more than 200 of these columns over the years and I can tell you that staring at my computer monitor when the only thing on the screen is a blinking cursor—the days of paper and pen having disappeared long ago—is a frightening and frustrating experience.

Deciding what to write about is among the most difficult challenges I face. Some weeks my brain is devoid of possible topics, others my cranium is stuffed with so much flotsam and jetsam you’d need a Coast Guard icebreaker to cut through it. This week proved to be the latter because as I sat down and hovered my hands over the keyboard a number of my favorite subjects were bouncing around in my nugget: I decided to write about two of them: Donald Trump and the First Amendment.

Let’s jump in.

As most of you know, Donald Trump is embroiled in a dizzying array of  legal proceedings: a civil lawsuit in New York involving allegations the former president deceived banks, insurers and others by exaggerating the value of his assets, and four pending criminal trials related to charges that he engaged in a conspiracy to prevent the certification of Joe Biden’s victory in the 2020 presidential election, mishandled classified documents, paid hush money to coverup extramarital affairs, and violated Georgia’s anti-racketeering laws by plotting to overturn his loss in the state’s 2020 presidential contest.

All the cases are enthralling because this is the first time in history a former occupant of the Oval Office has been indicted on criminal charges, but the civil fraud and federal election interference proceeding are particularly fascinating because the judges presiding over them have issued gag orders against Mr. Trump. As my regular readers know, while I’m a huge fan of the First Amendment, I do recognize that the courts may limit free speech. For example, there is this well-known passage written by U.S. Supreme Court Justice Oliver Wendell Holmes in 1919:

The most stringent protection of free speech would not protect a man falsely shouting fire in a theatre and causing a panic… The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger…

Judges are permitted to issue gag orders if they believe there is a credible fear that jurors may be swayed by statements in the media or online, if people involved in the case could be threatened or harassed, or if confidential information could become public.

Judge Arthur Engoron, the New York State judge overseeing the civil lawsuit, told all participants in the case not to smear court personnel and warned that violations would trigger serious sanctions. Shortly after the trial began on October 2 Mr. Trump posted a photo of Allison Greenfield, the judge’s principal law clerk on Truth Social, his social media platform and said it was “disgraceful” that she was working in the courtroom. The judge reacted by slapping a gag order on the former president who has violated it twice and been fined a total of $15,000.

Given the fact the Mr. Trump’s ardent supporters have a proven record of attacking people who offend him, the judge’s reaction was at the very least prudent and met the standard of preventing or in the case of the former president attempting to prevent him from making public statements that could cause harm Ms. Greenfield.

U.S. District Judge Tanya Chutkan who is presiding over the election interference case imposed a partial gag order on Trump after special counsel Jack Smith and his prosecutors argued that the ex-president’s statements about the case risked prejudicing the trial. Mr. Trump has often railed against the judge, Smith and his staff, the jury pool in Washington, D.C where the case is being tried, and potential witnesses.

The order, which is now on hold pending an appeal by Mr. Tump’s attorneys, bars him and other parties in the case from making public statements about Smith, the defense counsel, members of the court or any of their staffers. They are also prohibited from targeting “any reasonably foreseeable witness or the substance of their testimony.”

Interestingly, the American Civil Liberties Union (ACLU) has filed a friend of the court brief in which they argue that the order is too vague, broad, and is not sufficiently justified. In a press release ACLU executive director Anthony Romero noted that “No modern-day president did more damage to civil liberties and civil rights than President Trump. “But if we allow his free speech rights to be abridged, we know that other unpopular voices — even ones we agree with — will also be silenced.” 

In their brief the ACLU said Trump has made many “patently false” statements that have “caused great harm to countless individuals,” but he “retains a First Amendment right to speak, and the rest of us retain a right to hear what he has to say.” They also assert that any restraint on the former president’s speech must be “precisely defined and narrowly tailored,” and concluded that Judge Chutkan’s order “fails that test.”

Is the ACLU right? I tend to object to prior restraint, and while Mr. Trump has in the past made troubling statements, in my opinion he has yet to cross the line in this case. Of course, there’s still plenty of time, the trial is not scheduled to begin until March 2024.

Alford Pleas: understanding why innocent people sometimes plead guilty…

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Attorney David Betras
BKM Managing Partner David Betras

In the tradition of popular TV series like Ozark, Succession, Yosemite, and Breaking Bad, last week’s column was a cliffhanger. As you may remember, as I signed off I was ensconced in bucolic Findlay, Ohio busily preparing for a jury trial in Hancock County Common Pleas Court that was scheduled to begin on Monday, October 2. I had done my due diligence, readied my defense, pored over the prosecution’s exhibits, and was geared up for voir dire which is fancy way of saying selecting a jury. Just wait, there’s more legalese to come in the column.

Anyway, I was fired up, ready to go and—now for the resolution of the cliffhanger you’ve all been sitting on the edge of your seats awaiting: the verdict. Was my client found guilty or not guilty by a jury of his peers? Well, you can sit back and relax there was no courtroom drama because my client was offered accepted a plea deal before the trial began.

To be more specific, he entered an Alford Plea which permits defendants to admit to criminal charges while maintaining their innocence. A defendant who enters an Alford Plea is, in essence, acknowledging that the prosecution has enough evidence to convict them even if they did not commit the crime. To understand why an innocent person would agree to plead guilty, it is helpful to examine the case of Henry Alford, the man for whom the Alford Plea is named.

In 1963 Mr. Alford was indicted for first degree murder in North Carolina where the death penalty was the default sentence for the offense at the time. Alford would probably have received a life sentence had he pleaded guilty, but he maintained his innocence. He subsequently agreed to plead to second degree murder for one reason and one reason only: to avoid the gas chamber. He was sentenced to 30 years in prison.

Alford appealed, arguing that he was forced into a guilty plea because he was afraid he would be sentenced to death. The North Carolina Supreme Court and a Federal District Court both found that Alford had entered the guilty plea voluntarily and denied his appeal. The Fourth Circuit Court disagreed and held that Alford’s plea was not voluntary because it was made under fear of the death penalty.

In a 6-3 decision handed down in 1970 the U.S. Supreme Court reversed the Circuit Court. Writing for the majority Justice Byron “Whizzer” White said courts may accept whatever plea a defendant chooses to enter, as long as the defendant is competently represented by counsel; the plea is intelligently chosen; and “the record before the judge contains strong evidence of actual guilt.” Faced with “grim alternatives,” the defendant’s best choice of action may be to plead guilty to the crime and the courts must accept the defendant’s choice made in his own interests.

Since then, the Alford Plea have become an important component of a criminal justice system in which more than 90% of cases are resolved with plea bargains. As I did last week, I have advised defendants to enter Alford Pleas. Why? Because although I revere the jury system, clients I knew to be innocent were convicted and received stiffer sentences than would have been imposed had they agreed to a plea deal.

Does the fact that the Hancock County case ended in a plea deal mean all the work I did to prepare for it was wasted? The answer is no. In the course of dissecting the prosecution’s case I discovered some evidence that I believed was inadmissible and should not be heard by the jury. Based on that discovery, I filed, and the judge granted what is known as a “motion in limine” which excluded the evidence in question from the case. The exclusion of that evidence significantly weakened the state’s case, substantially strengthened my bargaining position, and enabled me to secure the best possible outcome for my client.

Outcome of jury trials dependent on defense attorney’s experience, talent, skill

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Attorney David Betras
BKM Managing Partner David Betras

As I write this week’s column, I am busily preparing for a jury trial in Hancock County Common Pleas Court which is located in beautiful, downtown Findlay, Ohio. I’ve lost track of exactly how many jury trials I’ve participated in during my more than three decades as a practicing attorney, but I can say the outcomes have provided most of the highlights and lowlights of my career—and truth be told–I remember a lot more about my losses than my wins.

Why does the angst associated with guilty verdicts last longer than the euphoria that accompanies acquittals? Because the outcome of each trial is in many ways dependent on the defense attorney’s experience, talent, intelligence, rhetorical skill, knowledge, and yes—acting ability. We select the jury, we carefully study and prepare to nullify the evidence and undermine—if not destroy—the credibility of the witnesses presented by the prosecution, we build our defense and craft a compelling narrative that will convince the jurors that our client is not guilty beyond a reasonable doubt, and then we write and deliver a captivating closing argument that will enthrall the jury and win the case.

What could possibly go wrong?

Obviously, lots, which is I and many of my colleagues sit straight up in bed at 3:00 AM and reexamine every facet of a case that ended in a guilty verdict. Did I miss something in jury selectin? Was I slow to respond to an unexpected piece of evidence or testimony. Did my exhibits fall flat. Did I fail to connect with jurors?  I’ll often replay every minute of a trial in my head to identify what I did right and what I could have done better.

While the process is agonizing it is also extremely valuable because practical experience is an indispensable asset to a trial lawyer. That is because although they teach basic trial tactics and the rules of civil and criminal procedure in law school, there is no substitute for preparing and trying cases on behalf of clients who place their freedom, their future, and in some instances their very lives in your hands. Take it from me, courtrooms, not classrooms, are the only places attorneys like me learn to ply our trade.

Yet, despite all the preparation and trepidation involved, I love jury trials and the jury system. And I’m not alone. Throughout history the jury system has been a foundational pillar of civilized societies. Nearly 3,000 years ago bodies known as dikastai composed of as many 1,501 citizens rendered verdicts by majority rule in cases ranging from mundane matters to those involving death, exile, and seizure of property.

The Roman Empire also featured a precursor of modern juries in which capital trials were conducted before thousands of citizens. Interestingly, high government officials and their relatives, people who had been convicted of felonies, gladiators for hire, and men younger than 30 or older than 60 were barred from jury service.  

The system continued to evolve though the centuries and began to resemble the process and configuration that exists today in the late 900s when King Etheired the Unready of England instituted the Wantage Code which required the 12 leading minor nobles in small districts to investigate crimes. These juries differed from modern ones because there were no trials—the jurors were responsible for investigating cases and rendering verdicts on their own.

Juries took a major leap forward during the Reign of King Henry II in the mid 1100s. He established both a process in which a jury of 12 free men arbitrated property disputes and formed grand juries whose members were to report any crimes they knew of to a judge who would then conduct a trial by ordeal. As you might imagine, the guilt or innocence of the defendant was determined by subjecting them to one or more painful experiences. This system was based on the premise that God would help the innocent by performing a miracle on their behalf. Trial by ordeal fell out of favor when Pope Innocent III prohibited priests from participating in trials by fire and water. I can say this, if they were still around, I would have found a different occupation.

The right to trial by jury, along with the entirety of British Common Law, continued to advance and served as both one of reasons for the American Revolution and the basis for the judicial system America’s Founding Fathers enshrined in the Fifth, Sixth, and Seventh Amendments to our Constitution. Thomas Jefferson specifically cited King George’s decision to deprive colonists of trial by jury as a grievance in the Declaration of Independence and John Adams wrote that “…representative government and trial by jury are the heart and lungs of liberty.  Without them we have no fortification against being ridden like horses, fleeced like sheep, worked like cattle, and fed and clothed like swine and hogs.”

I am 100 percent in agreement with Adams, which explains why I believe we all have a civic duty to vote and serve as jurors—and why I refuse to help anyone skirt jury duty. Under Ohio there are very few reasons people may be exempt from service and even those who qualify must be excused by a judge. In the interest of full disclosure, I’ve received a jury summons and duly reported for duty. Unfortunately, I was excused and denied the opportunity to get a very close look at the dynamic that takes place during deliberations. That is an experience I would have relished and used for the remainder of my career.