David Betras: more traffic stops, arrest are behind push for tougher seat belt law

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Why did Governor Mike DeWine ask the members of the Ohio General Assembly to make driving without a seatbelt a primary rather an a secondary offense?

BK Managing Shareholder David Betras answered that question and provided important information about what drivers should and shouldn’t do during a traffic stop in this edition of Legally Speaking on WFMJ Today. Watch the sement here.

At the outset, David reminded because driving without a seat belt is currently a secondary offense you can only be ticketed for it if you are stopped for another reason, i.e. speeding, running a red light, driving erratically, etc.

Before I offer my opinion on why the Governor wants to change the law, I want to remind everyone that as a general rule, the Fourth Amendment to the United States Constitution, requires law enforcement to obtain a  warrant before they can search persons, places, personal belongings –just about anything.

But the U.S. Supreme Court has carved out exceptions to the protections afforded citizens by the Fourth Amendment.

For example, we have less constitutional protection in our cars than we do in our homes.  So, in most cases, if the police want to search your home, they’re going to need a warrant because your home is your castle.

If, however, you’re driving down the street and you commit a traffic violation, cross the line, blow a red light, speed, that gives police the reasonable, articulable suspicion they need to pull you over.

What should you do when that happens?

First, pull over right away.

Second, keep your hands on the wheel at ten and two. Keeping your hands visible is critically important because this is the most dangerous time in a traffic stop from the officer’s perspective. They don’t know if someone just hijacked the car or if it’s actually Steve Vesey behind the wheel. When they arrive at the driver’s side window, they’re going to ask for three things:   your driver’s license, vehicle registration, and proof of insurance.

Take my advice here, because I get pulled over for speeding a lot and I know how to smooth out the process for all involved. I keep my registration and my insurance card in my visor. And then when the officer says, can I see your driver’s license? I always say to him, officer, I’m going to reach into my pocket and get it. Is that okay?

They always say yes.

If the officer asks you to get out of the caryou have to get out of the car. If you don’t get out of the car, they’re going to drag you out. People think, oh, I’m going to exercise my constitutional rights and refuse.

I tell people this all the time: the side of the road is not the place to engage a police officer in a debate about the Fourth, Fifth, or Fourteenth Amendments. Bu getting out of your car is the last thing you can be compelled to do during a traffic stop.

That means you do not have to answer questions you may be asked:

Where are you going? Officer, I choose to remain silent. Where are you coming from? Officer, I choose to remain silent. Were you drinking tonight? Officer, I choose to remain silent. Do you know why I pulled you over? No, officer, I don’t. The fact is you may incriminate yourself by answering any one or a combination of those questions.

So, be courteous, be nice, and just shup up.

Here’s another vital tip: don’t get out of your car before they ask you to do so. Exiting your vehicle before they instruct you to makes them very nervous.

Whether you remain in your car or leave it, if the police ask your permission to search your care never, never, never, say yes. If they had probable cause to search your car, they wouldn’t have to ask. But if they ask and you say yes and they find an old joint or discover something else that indicates you’re breaking the law you’re punched your own ticket to an arrest.

Finally, now that Ohio is a so-called Constitutional carry state you are allowed to carry a handgun your car, if a police officer asks if you have a gun in the car you are not allowed to lie. But I suggest that you tell an officer there is a gun in the car and where it is located.

All that said, I’ll now tell you why I believe the governor wants to move not wearing a seat belt from a secondary to a primary offense. It’s not to improve safety or reduce injuries caused by car wrecks.

It’s because, and call me cynical if you wish, doing so give cops another reason to make traffic stops which creates the opportunity for them to determine if the motorist in question is committing other crimes for which they can be arrested.

It’s as simple as that: more stops equals more arrests. So, in addition to making sure that your head doesn’t go through the windshield if you are in a crash, if Governor DeWine gets his way, buckling up will help keep you out of the big house.

As always, thanks for watching Legally Speaking on WFMJ Today. If you enjoy this program and wide variety of content we create, do us a sold by mashing the “Like,” “Subscribe,” and “Share” buttons. We deeply appreciate your support.

Attorney Frank Cassese, BetrasKopp legal team secure not guilty verdict for Marquaysha Driver in heart-wrenching case

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Lead Defense Attorney Frank Cassese and Marquaysha Driver await the verdict in her trial on involuntary manslaughter and child endangerment charges related to the death of the sevey-year-old son De’Vonte Housley Jr. A Mahoning County Common Pleas jury acquitted Ms. Driver on October 23, 2025.

In one of the most emotionally charged and heart-wrenching cases to be tried in the area in decades, a Mahoning County Common Pleas Court jury found Marquaysha Driver not guilty of involuntary manslaughter and child endangerment charges that were filed against her in the wake of the Oct. 22, 2023, shooting death of her 7-year-old son, De’Vonte Housley Jr.

Attorney Frank Cassese who led Ms. Driver’s defense team, said the outcome clearly demonstrates the jury system’s capacity to render justice in extremely complicated and nuanced cases. “We were able to convince the jury to look beyond the letter of the law and grasp the fact that DeVonte’s death was not a crime, but a tragic accident that will haunt his mother, his siblings, and his entire family for the rest of their lives,” Attorney Cassese said.

“I think Marquaysha’s testimony was the ultimate factor,” he continued. “I think she was very raw, very honest, very truthful. In my opinion that was something that really tipped the scales.” This was a tough case for the state of Ohio, a tough case for the defense, there’s a lot of emotion that goes into this, so it’s never easy,”

According to Attorney Cassese, Attorney Tallie Orengia, Paralegal Gena Safarek, Daniel Leslie, and Connor Hilton, played integral roles in preparing Ms.Driver’s defense and presenting it to the jury. “This was an extremely challenging case from both a legal and purely human standpoint because we were dealing with the death of a seven-year boy, it’s impact on his family, and the possibility that his mother could be incarcerated for ten years or more,” he said. “Their hard work, expertise, and commitment to the cause of justice along with the unmatched experience and knowledge the entire BetrasKopp legal team brings to every case is directly responsible for this verdict.”

Given its unique and compelling nature, Attorney Cassese and the BetrasKopp team will prepare and share an in-depth analysis of the case, including the evolution of the defense strategy and a behind-the-scenes look at the work involved in trying a serious felony case.

Local media coverage of the case may be accessed at these links:

https://www.vindy.com/news/local-news/2025/10/mother-found-not-guilty/

https://www.wfmj.com/clip/15519496/woman-found-not-guilty-of-7-year-olds-death

https://www.wkbn.com/news/local-news/youngstown-news/tried-to-do-the-right-thing-mother-charged-after-childs-shooting-death-testifies-in-her-own-defense/

We’re also pleased to reprint WKBN TV 27’s excellent report on the case:

A jury Thursday in Mahoning County Common Pleas Court found a woman whose 7-year-old son was shot and killed with a gun in her home not guilty of all charges.

After about two hours of deliberations, jurors found Marquaysha Driver, 31, not guilty of involuntary manslaughter and four counts of child endangering for the October 22, 2023, death of her son De’Vonte Housley, Jr., 7, in her East Marmion Avenue home.

De’Vonte was killed after he and his brother found a loaded gun on a mantle above a fireplace in her home.

Driver testified on her own behalf earlier Thursday about how she woke up to every parent’s worst nightmare

“I woke up to a pop,” she said as she was sobbing. “My son came running in the room. I asked, ‘What was that?’ and he was like, ‘I shot my brother.’”

Testimony began in her case Wednesday before Judge Anthony D’Apolito after a jury was seated Tuesday.

The state rested its case Wednesday, and the defense rested its case Thursday after Driver’s testimony. She was the only witness called by the defense.

Prosecutors say Driver was reckless because she knew a loaded handgun was in her home, yet did not take steps to keep it away from her children, one of whom ended up shooting another.

The gun belonged to her brother, who she accompanied two days before De’Vonte’s death to a Boardman sporting goods store, where he bought a shotgun and a 9mm pistol. Somehow, the pistol was left at her house.

Dressed in all black and talking in a slow, at times somber voice, Driver recounted the days leading up to De’Vonte’s death under direct examination from her attorney, Frank Cassese. The gallery was full of friends and relatives, who at times provided a steady backdrop of sniffles.

Driver said she is a hairdresser and she spent all of Saturday — the day before De’Vonte’s death — from 1 p.m. to 3 a.m. Sunday, doing hair in her home. She testified that the weekend was a big one, as Chaney and East high schools both had homecoming, and Sweetest Day fell on the same weekend.

She had late clients because some women were getting their hair done to go to a “bar party.” Her last client was a friend who was celebrating her birthday that Sunday.

When she was done about 3 a.m. Sunday, she began cleaning up, and as she did, she noticed the gun her brother bought on the mantle above the fireplace. She said she decided to push the gun further back on the mantle behind a 75-inch television. Demonstrating for the jury, she stood on the points of her toes and reached out an arm, saying she stuffed it so far back she could barely reach it when she was finished.

“When I couldn’t see it anymore, I thought it was OK,” she testified.

She also said she called her brother and told him to get the gun as soon as possible.

She then took a shower and fell into bed exhausted, still wrapped in a towel. She was that way when she was awakened by the gunshot that took De’Vonte’s life.

Prosecutors said in opening statements Wednesday that De’Vonte and his brother were watching television when they couldn’t change the channel, so they looked for batteries for the remote control, which were also on the mantle.

When the boys found the batteries, they also found the gun, prosecutors said, and began playing with it until it went off and De’Vonte was killed. Driver testified she put the batteries up because her youngest child liked to chew on them, so she tried to keep them out of the child’s reach.

She went downstairs, found De’Vonte and called 911.

“I just asked them how to resuscitate my son,” she said through tears.

Jurors also saw body camera video from Youngstown police Patrolman Anthony Congemi, who was called to the scene and testified Wednesday.

As members of the gallery began choking back sobs and silently crying, jurors watched through Congemi’s camera as he ran into the house, then ran back to his cruiser, grabbed a pair of gloves and went back inside.

Officer Kenneth Garling was trying to put a chest seal on the wound, and Driver, still wrapped in a towel, was in tears and screaming.

“Keep pressure on both sides,” someone can be heard saying.

“Is he breathing?” Congemi asks.

“I don’t know,” Driver answers through tears.

Congemi asks her where the gun is, and she tells him it is back on the mantle. De’Vonte is sprawled on the floor on his back, blood visible on his chest, wearing a pair of dark shorts with a white stripe down the side.

Some jurors seemed visibly shaken after the video was played. A pair of women in the jury box sat stone-faced for several minutes while an older man in the first row took off his glasses, held them and stared straight ahead.

Driver then began crying on the witness stand.

“I’m sorry,” she said. “It just hurts.”

Cassese coaxed her back to her testimony, getting her to tell of her visit the day after De’Vonte’s death to talk to detectives without a lawyer present, a visit she made on her own, she said.

Under cross-examination from Assistant Prosecutor Jennifer Paris, Driver said she did not recall telling detectives she knew the gun was loaded. She then watched video in the judge’s chambers of her interview with police, then said when testimony resumed, she did tell them she knew the gun was loaded.

When asked by Paris if she thought anyone could get the gun, Driver said no.

But, Paris said, they did.

“I don’t know how they did,” she said.

“But you agree they could have got it?” Paris asked.

“No.”

“But they did.”

“Yes,” Driver said. “But I don’t know how.”

She denied having the gun in her purse or that the gun had been in the house for a week.

“Do you acknowledge you left a loaded handgun in your house, unattended, with several small children in your house?” Paris asked.

“I tried my best to hide it,” she answered.

Paris asked her why she didn’t unload the gun, and Driver said she did not know how. Paris asked her why she didn’t call her brother. Paris also asked her why she didn’t put the gun outside or lock it in a car or in another room in the house.

“There’s nowhere to lock the gun in my house,” she said. “I just tried to do the right thing.”

After Driver’s testimony, jurors were given a break while the attorneys went over exhibits and the judge’s instructions to the jury.

Lady justice with a colorful sky behind her

Attorney Frank Cassese secures acquittal in aggravated murder case, says verdict proves the criminal justice system works

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Attorney Frank Cassese

Attorney Frank Cassese, leader of Betras Kopp LLC’s (BK) Criminal Defense Practice Group, said today’s acquittal of Daundre Turner on charges of aggravated murder, murder, and robbery, demonstrates the value and effectiveness of the criminal justice system. A Mahoning County Common Pleas Court jury returned the not guilty verdicts after deliberating for six hours.

Mr. Turner was accused of the 2016 killing of Omar Croom on Youngstown’s Eastside. Youngstown Police detectives who investigated the crime at the time did not have sufficient evidence to recommend charges be brought against Mr.Turner. He was arrested, charged, and jailed in early 2023 when a different YPD officer reopened the cold case.

According to Attorney Cassese, the prosecution’s case was based on statements offered by Ranee Fitzgerald, Mr. Turner’s spouse who was charged with complicity to aggravated murder in Mr. Croom’s killing. She waived spousal privilege and testified against her husband during the trial. “The prosecution did a very professional, thorough job with the evidence they had, but at the end of the day, they simply could not convince the jury my client was guilty beyond a reasonable doubt.”

BK Managing Partner David Betras said the outcome of the case was determined by two factors: Attorney Cassese’s ability to identify and select jurors who would listen to the evidence with an open mind and his devastating cross examination of Fitzgerald. “Time after time, Frank pointed out inconsistencies and conflicts in her testimony that raised serious doubts about her veracity and credibility,” Atty. Betras noted.

“This verdict underscores the important role preparation, skill, knowledge, instinct, and sheer talent play in criminal trials,” he continued. “Frank spent hundreds of hours examining the evidence and statements the prosecution would offer at trial, preparing for jury selection, and crafting the questions he asked during cross examination—questions that determined the outcome of the case.”

“I’m extremely pleased by the verdict and gratified that Mr. Turner, who has been incarcerated in the Mahoning County jail while awaiting trial was set free today,” Atty. Cassese. “Along with our commitment to doing whatever is necessary to seek and secure justice for our clients, the entire BK team believes the cornerstone of the justice system is the American jury. Today, our faith in that system was validated.”

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.

What were they thinking? Why did Alex Murdaugh’s lawyers allow the now convicted killer to testilie for hours on end?

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Attorney David Betras
BKM Managing Partner David Betras

Judging by the number of people who have yelled, “Hey Betras, what the xxxx (readers are free to insert the word of their choice) is up with that Murdaugh trial?” I am not the only person who has been obsessed with the sordid saga of the once prominent South Carolina trail lawyer who was recently found guilty of murdering his wife and his son.

Okay, I wasn’t “obsessed” with it, I was consumed by it. I watched every moment of the trial, hours of analysis of each day’s proceedings offered by “expert” criminal lawyers, as well as all of the documentaries, docudramas, and special reports that streamed into my smart TV, smart phone, and laptop.

The discussion and speculation that raged during the trial continues today—much of it focused on Murdaugh’s decision to take the stand. In the immediate wake of his testimony, in which he basically admitted to being a pathological liar who couldn’t tell the truth if his life depended on it, which it did, a number of talking head criminal lawyers told the media the defense team had to allow the accused killer to look the jurors in their collective eyes and refute the charges. One of the pundits, criminal attorney and former prosecutor Mark Eiglarsh told CNN “If you’re going to have somebody testify, having a lawyer who’s smart, who’s been in the courtroom, who’s lied for 20 years … that’s the guy you want on the stand…all it takes is one juror to connect with him emotionally.” 

To be frank, Mr. Eiglarsh and anyone else who thought it was a good idea for Murdaugh to hitch up his pants, take the stand, and admit to being a drug-crazed criminal who did everything but murder his wife and son is just plain stupid—a fact underscored by the verdict.

During my career I have represented numerous clients charged with murder and I have never put one of them on the stand, including those who have literally begged me to allow them to proclaim their innocence in open court. I have adopted this strategy for a number of reasons beginning with the fact that it is not my job to prove my client is innocent, it is the prosecutor’s job to prove they are guilty, and I refuse to do anything that will make that job easier.

And permitting a client to give up their Fifth Amendment protections against self-incrimination by testifying does exactly that.

Think of it this way: the accused takes the stand, I ask them if they committed the crime, they emphatically say no. This has absolutely no impact on jurors who fully expect defendants to say they didn’t do it. I sit down, the prosecutor stands up and immediately begins tearing my client apart limb from limb. Check the video of the Murduagh cross and you’ll see how this works—or I should say how it doesn’t work for the defense.

Clients also ask to take the stand because they fear the jury will believe they are guilty if they just sit quietly as I defend them. I point out that this is, for the most part, not true and that judges are required to instruct jurors that they may not draw any inference from the fact that a defendant does or does not testify—the presumption of innocence that is the beating heart of our judicial system stands.

Whether Murdaugh would have benefited from keeping his mouth shut is a question that will be debated in legal circles for years. One thing is certain, however, testilying for hours on end didn’t help at all.

A message from David Betras to anyone who is being questioned by the police: Shut Up!

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Attorney David Betras
BKM Managing Partner David Betras

On a number of occasions, I’ve addressed what people should do if they are stopped and questioned by the police. Here’s an excerpt from an August 2021 blog post on the topic:

“First, if you are stopped by law enforcement and questioned you are under no obligation to do anything other than provide your name and ID.
Second, remember, the police will delay placing you in custody so they can use what you say to establish probable cause for arrest.
Third, your pre-arrest statements are admissible in court.
Fourth: Shut up. What you do not say cannot be used against you.”

That’s right I said just shut up.

I raise the topic today because as New York Times columnist Faraj Manjoo points out in his most recent piece, prosecutors in New Mexico plan to charge actor Alec Baldwin with involuntary manslaughter in the death of cinematographer Halyna Hutchinson. Hutchinson was working on the set of the movie rust when Baldwin pulled the trigger of a gun that was not supposed to be loaded with live ammunition. She was struck by a bullet and died shortly thereafter.

After the shooting Baldwin agreed to be interviewed by police without his attorney present, waived his Miranda rights, and did anything but shut up: “Still, for about an hour, Baldwin not only answered detectives’ many questions about the shooting but also offered his own theories about the incident and suggested the next steps the police might pursue in their investigation.”

As Manjoo notes, “The Fifth Amendment of the Constitution allows Americans to refuse to answer questions from law enforcement. Yet despite the ritualistic incantation of the Miranda warning on every TV police procedural, silence is a right that people can find hard to accept. If you’re convinced of your innocence, aren’t you obligated to help the police solve the matter under investigation? Refusing to talk to the police seems like something people do only when they’ve got something to hide.”

I’ve lost count of how many clients I’ve defended in court because they decided to abandon their Fifth Amendment rights and “help” the police who in turned helped themselves to an arrest.

In the column Manjoo praises the work of law professor and former defense attorney James Duane, one of the nation’s leading proponents of just shutting up when questioned by law enforcement. The video of his lecture “Don’t Talk to the Police,” has been viewed millions of times on YouTube, you should make it millions plus one by watching: https://youtu.be/d-7o9xYp7eE

In his lecture Duane offers this quote from former US Attorney General Robert Jackson: “Any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to the police under any circumstances.” It’s good to know that AG Jackson, one of the most respected lawyers in the history of American jurisprudence would think I am worth my salt.

“The average American — even if they’re a highly sophisticated college graduate or a law school student — really doesn’t know an awful lot about the many different ways in which even innocent people can regret for the rest of their lives the biggest mistake of their lives, the decision to waive their Fifth Amendment right and agree to talk to the police,” Duane said.

Duane argues that a key danger is that in trying to defend yourself to the police, you may unwittingly admit some wrongdoing. Navigating around such dangers is made all the more difficult because courts have given the police wide leeway to lie to people being interrogated.

“They will lie to you about what crime they are actually investigating,” Duane writes in his book, “whether they regard you as a suspect, whether they plan to prosecute you, what evidence they have against you, whether your answers may help you, whether your statements are off the record, and whether the other witnesses have agreed to talk to them — even about what those witnesses have or have not said.”

Manjoo closes his column with this passage: “The Fifth Amendment is no mere formality. It is among the best defenses against government overreach that Americans enjoy. We should guard it vigorously. Anytime you’re asked to talk to the police about an incident you are involved in, there are just four words you need to say: “I want a lawyer.”

And then please for the love of God, shut up.

Judge dismisses felony charges against former Liberty Schools Superintendent Joe Nohra

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In a ruling handed down on Wednesday, December 30, 2021, Trumbull County Common Pleas Court Judge Ronald Rice dismissed six felony counts that had been lodged against former Liberty Local Schools Superintendent Joe Nohra earlier this year. The ruling came in response to a motion filed by Atty. David Betras arguing that the statutes under which Mr. Nohra had been indicted were unconstitutionally vague. In a well reasoned six-page decision Judge Rice agreed:

“Therefore, upon reconsideration of Defendant’s Motion to Dismiss Counts 1-6 of the Indictment for Vagueness, the Court finds by clear and convincing evidence the Defendant has presented a presently existing set of facts that make the statutes unconstitutional and void when applied to those facts. The Defendant’s Motion is well taken and the same is hereby granted.” The decision may be viewed and downloaded here: Rice dismissal of Nohra felony charges

Atty. Betras hailed the decision as a victory for Mr. Nohra and the justice system. “As we have said previously, Mr. Nohra, at the discrection of the school board, and with approval of legal counsel, took appropriate action to protect the district and the taxpayers. He should have been commended instead of prosecuted,” Betras said.

Media coverage of the dismissal may be accessed by following these links: Vindicator       WKBN     WFMJ

Atty. Betras said BKM is prepared to mount a vigorous defense against the remaining misdemeanor charges that were included in the indictment.

When Mr. Nohra was indicted Atty. Betras pledges that the BKM legal team would aggressively defend Mr. Nohra in court and in the court of public opinion. “We simply won’t allow the people we represent to be smeared or damaged by rumors and innuendo,” he said. The firm also released the following statement on Mr. Nohra’s behalf:

“Mr. Nohra emphatically and categorically denies the baseless allegations contained in the indictment handed down yesterday by the Trumbull County Grand Jury.

After being presented with credible evidence that an employee of the Liberty Local Schools was engaged in activities that constituted theft in office, Mr. Nohra, with the knowledge and approval of the members of the Liberty Local Schools Board of Education and the Board’s legal counsel, initiated an investigation that resulted in the suspect employee’s resignation from the school system.

The actions described in the indictment were conducted in conjunction with and for the sole purpose of facilitating the above-referenced investigation. The members of the Board of Education and the Board’s legal counsel approved the use of surveillance equipment before it was installed. In addition, written Board policy authorizes the superintendent to utilize surveillance equipment when necessary and with approval of the Board which Mr. Nohra sought and received.

Mr. Nohra ensured that the Board members and their legal counsel were kept fully informed during each step of the investigation, were apprised of the evidence of wrongdoing that was gathered and were aware of its outcome. 

My client is both bewildered and astounded that he now faces criminal charges for taking decisive steps to protect the taxpayers and looks forward to defending himself against these ludicrous accusations.”