Attorneys to argue third case in six months before Ohio Supreme Court

by Erica Peterson

Most lawyers go their entire careers without arguing a case before their state’s supreme court.

On Feb. 26, Broadview Heights criminal justice attorney James Kocka and his colleague Patrick Milligan will argue their third case before the Ohio Supreme Court in six months.

“This may never happen again in our careers,” Kocka said.

He and Milligan have separate law practices, but the friends often collaborate on projects. The two graduated from Cleveland Marshall College of Law in 2004, and both are directors on the board of the Parma Bar Association. Kocka is the association’s incoming president for 2020.

Kocka, of North Royalton, is a 1997 graduate of Brecksville-Broadview Heights High School. His practice is at 100 W. Wallings Road, Suite A, in Broadview Heights.

Milligan, who graduated in 1997 from St. Ignatius, works in Lakewood. He lives in Independence with his wife Dayna, also a lawyer, and sons Patrick and Daniel.

The pair became involved in the three cases during the appeals processes.

The high court doesn’t rule on evidence, Kocka said. Rather, they consider issues of precedent or other trial technicalities.

In October, the two argued before the Ohio Supreme Court concerning an intercept warrant, or a warrant that allows authorities to listen in to a criminal suspect’s phone calls.

The case involves the conviction of a drug trafficker, Kocka said. “The conviction was primarily based on testimony and information police obtained from a wiretap,” he said. “No drugs or money were found.”

The suspect was in Sandusky County, and the authorities investigating the case were in Lucas County. The warrant was issued by a Sandusky County court.

Milligan and Kocka argued on appeal that the warrant must be issued in the county where the interception occurred, in this case the listening post in Lucas County, so the warrant was invalid.

“The appellate court did not agree with us, we went to the Supreme Court,” Kocka said. “They took jurisdiction over the intercept warrant question.”

The court has yet to rule.

That case was argued while the high court was visiting William County in northwest Ohio. The court travels twice a year, once in the spring and once in the fall, Kocka said.

“We were finally in front of the Supreme Court, and we’re arguing in a high school,” he laughed.

Kocka and Milligan presented arguments in the authentic Ohio Supreme Court building in December. That case involves Criminal Rule 11, which requires that defendants understand that when they plead guilty to a felony, they are waiving certain constitutional rights.

In the trial, the defendant pleaded guilty to three charges. “The judge went over his rights but never asked him whether he understood that by pleading guilty, he was waiving his trial rights,” Kocka said.

They argued on appeal that circumstance violated Rule 11, and the Eighth District Court of Appeals agreed. The state appealed the ruling, which brought the case before the Supreme Court. The court has not yet ruled on this issue either.

The two attorneys are scheduled to go before the Ohio Supreme Court again on Feb. 26 for a third case. That involves a defendant who refused to use a lawyer at his trial.

“The court tends to give you a standby attorney as a resource anyway, even if you don’t want one,” Kocka said.

In this case, the defendant did get a lawyer, but the attorney was not available during voir dire, when potential jurors are interviewed.

“Some argue that is the most important part of a case,” said Kocka. They will argue the defendant’s rights were violated.

Kocka tipped his hat to Milligan for his work with all three cases.

“My colleague is a brilliant brief writer,” he said.

He said the whole experience is a bit surreal. “It’s kind of like Forrest Gump seeing the presidents; ‘I’m going to the Ohio Supreme Court again,’” Kocka joked.

Feature image photo caption: Attorneys James Kocka (l) and Patrick Milligan argued their second case before the Ohio Supreme Court in December. Photo courtesy of James Kocka