Prosecutors hate quiet defendants. In fact they will go to great lengths to get them to talk, especially to confess. In New York City over the past few years, Assistant District Attorney's will go into the holding pens known as Central Booking and actually interview these arrested folks, telling them that this is their only chance to talk to a prosecutor before arraignment and that it may result (during a blue moon)in a dismissal of their case. Certainly the Prosecutor will check out anything they tell them (like their alibi which really means he will send a detective down to take partial statements from alibi witnesses and screw up a defendants alibi allowing them to convict many more innocent people.)
The way these interviews begin is for the prosecutor to tell their spiel to the defendants BEFORE THE DEFENDENTS ARE GIVEN THEIR "MIRANDA" RIGHTS.(Miranda warnings give a defendant their right to remain silent and their right to an attorney.) After they have promised them to listen to their stories then give Prosecutors read in the rights. It is a "Bull Shit" way to use gentle coercion to get a confession or admission. (Pardon the language but really can you think of a more blunt way to say it??)
What do I mean? Well, the ADAs are promising to listen to them, but in reality, the ADAs want to convict them (I know DA Brown will say that isn't true but if that were the case, why not let them speak to their own attorneys first and then let the lawyer decide if is in the best interest of the client to speak to the prosecutor. After all that is how they show it on Law and Order.)These ADAs are overcoming arrestee's will to assert their rights by promising something may happen for them if they do not assert their rights.
Remember where these people are when this is done. They are completely at the hands of the government. They have no advocate of their own there and are not entitled to one. If they don't speak to the prosecutor they don't have to, but they aren't going to see a judge until they have gone through this little ritual.
Holding pens in NYC hold defendants for 24 hours or more. After a few hours smashed in with 20 other people, with nowhere to sit without access to family or lawyers, these folks will do anything if they think it will get them out faster.
One Queens judge has threatened to look into the ethics of this behavior. The Honorable Joel Blumenfeld has a decision coming that may discuss among other things the legal ethics of a prosecutor saying and doing the things that the prosecutor says in Queens County NY. Now Courts look at ethical issues all the time, but DA Brown doesn't want Joel Blumenfeld, a former criminal DEFENSE Attorney to rule on that issue. So DA Brown has brought an order to show cause against the good judge to stop him from discussing the ethics behind the activity IN HIS JUDICIAL DECISION!!!
Unbelievable. Absurd. Legal ethics and violations thereof are perfectly good reasons to suppress evidence. (For example if a defense attorney "Friends" a victim on Facebook by pretending to be someone other than himself, the evidence he gets from that is not usable in the case. That isn't because it isn't good evidence, it is because such behavior is unethical for lawyers to engage in.)
On the up side, it is unlikely a fellow jurist will tell Blumenfeld he can't write his opinion the way he wants. It is supposed to be an INDEPENDENT JUDICIARY!
Oh did I forget to mention, DA Brown USED to be an Appellate Division Judge. I wonder how he would have taken to being told he couldn't discuss an ethical issue in a decision.
As for you readers out there I cannot point out how important it is to get a lawyer for your friends who are arrested or if you are arrested how important it is not to speak to ANYONE without first speaking to your OWN lawyer. Most of the people who give statements give them because they are waiting for LEgal Aid or an 18b lawyer (free lawyer from the court) to be appointed. DO NOT WAIT!! Get yourself a good lawyer right away and have him notify the prosecutor that you or your friend is represented by counsel and may not be spoken to by them without that lawyer being present.
IF you need a lawyer even in the middle of the night, I will take this opportunity to remind you that you can call my office 24/7/365 and speak to a lawyer if you or a friend or loved one has been arrested and is awaiting arraignment. You can reach us at 516-741-3400. DAY OR NIGHT. Weekday or weekend, holidays too!!
Hat Tip: The NY TImes
Showing posts with label Sixth Amendment. Show all posts
Showing posts with label Sixth Amendment. Show all posts
Monday, November 01, 2010
Monday, November 30, 2009
Does Anybody Out There Ever Read The US Constitution (besides lawyers I mean): Why Tiger Doesn't Talk
Short post:
Everybody has a theory on why Tiger Woods is not being given the "third degree" by Florida Police.I have heard his money is buying him out of it, that he has important politicians on his side, that he has a bad attitude and a lot of other things mostly not complementary to either Mr. Woods or the Police. People think he was running from his wife, that he was drunk, that he was high, that he was sneaking out to see a girl and his wife was waiting 5 Iron in hand. I have heard the old tried and true "if he has nothing to hide, why hide???" God If gossip reporters were not bad enough, now we have sport reporters who think they are owed an explanation. It should be required that before one gets a press pass they pass a test on basic constitutional law. If you want to read some weird stuff look here and here and this video from Wanda Sykes which at least was funny.
Here is the reason Tiger Woods is not speaking to Florida Police and why they haven't hauled his rear end down to sweat him for a confession:
DRUM ROLL PLEASE
The Fifth amendment of the United States Constitution gives a person the RIGHT TO REMAIN SILENT. HE is exercising the right and there is nothing that police or Mike Lupica can do about it. (no I am not linking you to Lupica, he gets enough publicity all by himself)
Moreover it is the smart thing to do. There is no upside to him saying more. It was a one car accident. He will probably get another car tomorrow from Cadillac, his sponsor, and he will at least keep his privacy. Once he speaks, whatever he says is now food for the fodder. He can't stop speculation but he needn't add to it either. Anything he says will not be believed by some portion of the public and finally, the police do not need to know what precipitated the crash as there is no damage to anyone but Tiger and what they don't know or what they don't write in a report can't hurt anybody.
So Woods did the smart thing. I wish more clients and their families would follow suite and STOP talking to police. It isn't that I want to make the jobs of law enforcement harder, it is just that I do not have the obligation to make it any easier. Usually when clients speak to police without an attorney being present, they make if far worse for themselves even when "they speak the truth and have nothing to hide."
Okay so there you have it. Mr. Wood's lawyer has a smart client. Mr. Woods has a good lawyer, and the gossips of the world will be able to join the conspiracy theorists and debate what happened until OJ Simpson finds the person who killed his ex-wife.
Everybody has a theory on why Tiger Woods is not being given the "third degree" by Florida Police.I have heard his money is buying him out of it, that he has important politicians on his side, that he has a bad attitude and a lot of other things mostly not complementary to either Mr. Woods or the Police. People think he was running from his wife, that he was drunk, that he was high, that he was sneaking out to see a girl and his wife was waiting 5 Iron in hand. I have heard the old tried and true "if he has nothing to hide, why hide???" God If gossip reporters were not bad enough, now we have sport reporters who think they are owed an explanation. It should be required that before one gets a press pass they pass a test on basic constitutional law. If you want to read some weird stuff look here and here and this video from Wanda Sykes which at least was funny.
Here is the reason Tiger Woods is not speaking to Florida Police and why they haven't hauled his rear end down to sweat him for a confession:
DRUM ROLL PLEASE
The Fifth amendment of the United States Constitution gives a person the RIGHT TO REMAIN SILENT. HE is exercising the right and there is nothing that police or Mike Lupica can do about it. (no I am not linking you to Lupica, he gets enough publicity all by himself)
Moreover it is the smart thing to do. There is no upside to him saying more. It was a one car accident. He will probably get another car tomorrow from Cadillac, his sponsor, and he will at least keep his privacy. Once he speaks, whatever he says is now food for the fodder. He can't stop speculation but he needn't add to it either. Anything he says will not be believed by some portion of the public and finally, the police do not need to know what precipitated the crash as there is no damage to anyone but Tiger and what they don't know or what they don't write in a report can't hurt anybody.
So Woods did the smart thing. I wish more clients and their families would follow suite and STOP talking to police. It isn't that I want to make the jobs of law enforcement harder, it is just that I do not have the obligation to make it any easier. Usually when clients speak to police without an attorney being present, they make if far worse for themselves even when "they speak the truth and have nothing to hide."
Okay so there you have it. Mr. Wood's lawyer has a smart client. Mr. Woods has a good lawyer, and the gossips of the world will be able to join the conspiracy theorists and debate what happened until OJ Simpson finds the person who killed his ex-wife.
Sunday, December 28, 2008
Let's Stop Lying to the Jury: The Case for Warning Jurors About Acquitted Conduct
Earlier this year US District Court Judge Jack Weinstein of the Eastern District of NY, one of the most reviled and respected judges on the US District Court Bench, issued a Magnum Opus of a decision. The 288 page tome has been roundly criticized by academics, politicians and prosecutors (as if there was really a difference) as a waste of judicial assets and paper. The case, United States v. Polizzi, 06 CR 22 (JBW), 2008 WL 1886006 (E.D.N.Y. April 1, 2008) held that Judge Weinstein erred when he failed to tell the jury of the potential effects of a guilty verdict in a case of possession of child pornography under the US Sentencing Guidelines. Weinstein reasoned that a jury in colonial times would have known what the potential sentences would have been, and an originalist view of the US Constitution would permit that jury to ignore the law and manipulated the verdict if it felt the law did not reflect the view of society as reflected by the jury. (Today we call that Jury Nullification See the John Peter Zanger verdict)
Many so called conservative (but I note not libertarian) bloggers were unhappy with the decision. Many think that the case will be overturned in the Second Circuit. Weinstein however makes a point however; juries do play with verdicts.
This "playfulness" comes in two forms, the aforementioned Jury Nullification (which is uncommon but works in favor of an accused) and the more common "Jury Compromise" (where the jury is otherwise deadlocked between guilt and not guilty so to appease one side or the other the jury "compromises" and convicts of something less than charged. This usually although doesn't always work against the accused), but it is still however a conviction on less than a reasonable doubt standard. An accused is owed the benefit of a doubt, not a compromise.
Now prosecutors and other "law and order" types hate Jury nullification. Yet somehow these clarions of justice find it just fine for the jury to act on less than proof beyond a reasonable doubt in convicting an accused.
On the other hand, it is wrong to mislead the jury as to facts. In other words, if a lawyer knows a fact to be untrue, he is forbidden to argue it to a jury. Hence recently a lawyer was sanctioned very severely for telling a jury that her client was "mild mannered" when in fact she had kept his actual violent behavior out of the case through a Motion in Limine.
Notwithstanding that, Judges in Federal cases mislead jurors all the time (see the Bazelton dissent) by not telling them about their power to nullify. Not telling a jury that their failure to acquit a defendant of all related conduct exposes the defendant to having the conduct for which he was acquitted used against him to enhance his sentence. In fact, the judge can use the acquitted conduct to enhance the sentence so much, that the resulting sentence can be high enough to render the acquittal a nullity. In other words, we are not telling jurors that their decision to acquit doesn't count for sh.... well you can rhyme it yourself.
We tell jurors that serving on a jury is an important and that their voice counts, but we yet through the use of acquitted conduct, we lie to them. Dress it up any way you want to, when jurors find out that defendants are sentenced to far more time in jail than they thought was appropriate for the crime the accused was actually convicted, they feel like their work didn't matter. To them it doesn't matter how we lawyer types word it, they were ignored.(My colleague and "blog as marketing" sparring partner Scott Greenfield has a great step by step explanation of how we lawyer types "explain" such nonsense)
Continued use of acquitted conduct hurts jurors even more when a jury works hard to come to a decision. If it is deadlocked, we demand it return to come to a decision. If it then decides to compromise, an activity we know they partake in, only to find that their compromise meant nothing and they were better off to just hang their verdict they feel cheated (almost as much as the accused does).
We have been at this charade for better than 20 years. Acquitted conduct is part of the USSG but the advent of the Internet makes this kind of behavior really well known. How long before jurors refuse to sit, or catch on and lose all respect for the criminal justice system altogether?
One way to handle this, is to explain to the jury, that compromise verdicts are not legal.Compromises that are based on less than every juror believing that every element of every charge was proven beyond a reasonable doubt is cheating the parties of a fair trial. Tell them that a conviction on any related count will result in the court being allowed to use the acquitted related behavior to enhance the sentence of an accused to what it would have been if the accused had been convicted of the higher charges in the first place. And let's add to the Allen charge the following: a compromise verdict is not what we seek. We would rather you return as a hung jury, than reach a compromise that left anyone unconvinced beyond a reasonable doubt that a charge was proven.
To do anything less than tell that to a jury, cheapens the work that they do, and frankly cheapens the verdict they render.
Friday, November 28, 2008
Nassau DWI Arrests Spike on Thanksgiving Eve: Some Thoughts From That Lawyer Dude
Nassau County Police announced that their DWI arrests spiked by 300 percent. Nassau Police usually average about 10 arrests a night however on November 25th police arrested 35 people in Nassau County alone. Suffolk County numbers are not available.
Nassau Police are targeting bars and restaurants in Nassau over the Thanksgiving Holiday season. They have increased patrols and are "sitting" on bars waiting for patrons to stop.
Attorneys in Nassau have told me, (and I have heard from prospective clients) that Nassau police are stopping cars as they leave these bars and restaurants frequented by students. After the stop, if they do not suspect a DWI they let the drivers go.
What is the probable cause for these other stops?? While it may be important to keep drunk drivers off the road, it should not be done at the cost of liberty for those that are not drunk. It is often said that DWI appears to be an exception to the US Constitution for police and prosecutors.
If you are stopped for at either a DWI Checkpoint or by a police officer "sitting" on a bar or restaurant whether you have been drinking or not, I tell my clients:
1. Be polite. Sit in your car and roll down your window. Allow the officer to speak and if asked be ready to produce your License and Registration quickly. Police take fumbling as a sign of intoxication.
2. If asked if you have been drinking, and if you have been drinking, ask if you are under arrest. If the answer is no, then ask if you may leave. If the answer is no then refuse to answer the "have you been drinking" question without first speaking to a lawyer. (Invoking your 6th amendment right to counsel.)Whatever you do, DO NOT SAY HOW MUCH YOU HAVE BEEN DRINKING. Remember it is not illegal to drink and drive (unless you are under 21 years old). It is however illegal to drink and drive drunk. DO not offer to give any amount of drinks. It will not help and always ALWAYS hurts.
3. If asked to get out of the vehicle to perform Standardized Field Sobriety Tests (SFST), again ask if you are under arrest. If the answer is no, then politely tell the officer you do not want to participate in those tests. If you are told that the officer is conducting an investigation, you should again tell the officer you do not wish to participate in these tests as a violation of your 5th amendment right to remain silent.
4. If you do take the SFST listen to the instructions carefully. An SFST is a series of tests. So even if you do well on one or two you can still "fail" the test. Also Remember: You will fail the test even if you do everything the officer said to do, if you do not do it exactly as he says to do it. REMEMBER, YOU ARE NOT ONLY BEING JUDGED ON WHAT YOU DO, BUT ON HOW YOU DO IT. THEY WILL FAIL YOU FOR THINGS THEY DO NOT TELL YOU ABOUT.
For example, they will fail you if you use your arms to steady yourself even though they do not tell you that. They will fail you if you do anything they do not tell you specifically that you can do. In other words, even though they seem to be testing your ability to do certain tasks, they are really testing your ability to do ONLY the task the way they want you to do it. Any change in the way they tell or show you to do the test will result in your failing the test.
5. If asked to follow a pen or pencil or light, refuse the test under your fifth amendment right. You are not required to provide evidence against yourself. You do not have to participate in the Horizontal Gaze Nystagmus (HGN)exam. It is not an accurate test. Do not take the test as there is no record of how you did on it except for the police officer's recollection. This is exceptionally unfair. Do not take this test.
6. If arrested or detained, you do not have a right to refuse the actual breath test. However, do not take a portable breath test. It is so notoriously inaccurate that it is not allowed as evidence at a trial. IT IS Allowed in during a pre-trial hearing or even a bail hearing. It is better to refuse the Portable test (which is a hand held device not connected to a bigger machine)and take the actual Intoxylizer or Breathylizer test.
7. If you are in a car accident and THINK you will fail the test, . I recommend to my clients that they DO NOT TAKE IT. Yes you will not have a license for 1 year, and yes you will not get a plea offer in Nassau or Suffolk, but, if you are in an accident you will not get an offer anyway and you have a better chance of winning at trial if you do not have a Blood Alcohol Content (B.A.C.) reading above the limit which is .08 If you have been drinking and are in an accident and do not want to have a criminal record, plan on going to trial. Yes it is costly, so is having a criminal record and so is being convicted of a driving arrest. Going to trial is in the long run less expensive. You have a good chance of winning your case if you go to trial despite what the media and the "Mothers" (MADD) say.
IF you want to increase your knowledge of your BAC log on here
8. Finally, the faster you get a lawyer the better. Once you are arrested, the police will take your cellphone from you so having a lawyers number in your phone will not help. Either memorize the number or put the number in your wallet or purse. (I advise my clients to tattoo it to their feet.)JOKE!! (kinda)
9. If you do not have a lawyer and are arrested in NYC (you know, Manhattan, Booklyn, Queens Bronx or Staten Island) or on Long Island
(Nassau or Suffolk Counties) or even anywhere else in the state of New York, you are welcome to call me at 516-741-3400 I am at 180 Froehlich Farm Blvd Woodbury NY 11797 and this paragraph is a legal Advertisement.
You can follow my daily tweets on Twitter by logging into www.twitter.com/thatlawyerdude (no spaces). If you don't know what I am talking about, Find out about twitter.
Nassau Police are targeting bars and restaurants in Nassau over the Thanksgiving Holiday season. They have increased patrols and are "sitting" on bars waiting for patrons to stop.
Attorneys in Nassau have told me, (and I have heard from prospective clients) that Nassau police are stopping cars as they leave these bars and restaurants frequented by students. After the stop, if they do not suspect a DWI they let the drivers go.
What is the probable cause for these other stops?? While it may be important to keep drunk drivers off the road, it should not be done at the cost of liberty for those that are not drunk. It is often said that DWI appears to be an exception to the US Constitution for police and prosecutors.
If you are stopped for at either a DWI Checkpoint or by a police officer "sitting" on a bar or restaurant whether you have been drinking or not, I tell my clients:
1. Be polite. Sit in your car and roll down your window. Allow the officer to speak and if asked be ready to produce your License and Registration quickly. Police take fumbling as a sign of intoxication.
2. If asked if you have been drinking, and if you have been drinking, ask if you are under arrest. If the answer is no, then ask if you may leave. If the answer is no then refuse to answer the "have you been drinking" question without first speaking to a lawyer. (Invoking your 6th amendment right to counsel.)Whatever you do, DO NOT SAY HOW MUCH YOU HAVE BEEN DRINKING. Remember it is not illegal to drink and drive (unless you are under 21 years old). It is however illegal to drink and drive drunk. DO not offer to give any amount of drinks. It will not help and always ALWAYS hurts.
3. If asked to get out of the vehicle to perform Standardized Field Sobriety Tests (SFST), again ask if you are under arrest. If the answer is no, then politely tell the officer you do not want to participate in those tests. If you are told that the officer is conducting an investigation, you should again tell the officer you do not wish to participate in these tests as a violation of your 5th amendment right to remain silent.
4. If you do take the SFST listen to the instructions carefully. An SFST is a series of tests. So even if you do well on one or two you can still "fail" the test. Also Remember: You will fail the test even if you do everything the officer said to do, if you do not do it exactly as he says to do it. REMEMBER, YOU ARE NOT ONLY BEING JUDGED ON WHAT YOU DO, BUT ON HOW YOU DO IT. THEY WILL FAIL YOU FOR THINGS THEY DO NOT TELL YOU ABOUT.
For example, they will fail you if you use your arms to steady yourself even though they do not tell you that. They will fail you if you do anything they do not tell you specifically that you can do. In other words, even though they seem to be testing your ability to do certain tasks, they are really testing your ability to do ONLY the task the way they want you to do it. Any change in the way they tell or show you to do the test will result in your failing the test.
5. If asked to follow a pen or pencil or light, refuse the test under your fifth amendment right. You are not required to provide evidence against yourself. You do not have to participate in the Horizontal Gaze Nystagmus (HGN)exam. It is not an accurate test. Do not take the test as there is no record of how you did on it except for the police officer's recollection. This is exceptionally unfair. Do not take this test.
6. If arrested or detained, you do not have a right to refuse the actual breath test. However, do not take a portable breath test. It is so notoriously inaccurate that it is not allowed as evidence at a trial. IT IS Allowed in during a pre-trial hearing or even a bail hearing. It is better to refuse the Portable test (which is a hand held device not connected to a bigger machine)and take the actual Intoxylizer or Breathylizer test.
7. If you are in a car accident and THINK you will fail the test, . I recommend to my clients that they DO NOT TAKE IT. Yes you will not have a license for 1 year, and yes you will not get a plea offer in Nassau or Suffolk, but, if you are in an accident you will not get an offer anyway and you have a better chance of winning at trial if you do not have a Blood Alcohol Content (B.A.C.) reading above the limit which is .08 If you have been drinking and are in an accident and do not want to have a criminal record, plan on going to trial. Yes it is costly, so is having a criminal record and so is being convicted of a driving arrest. Going to trial is in the long run less expensive. You have a good chance of winning your case if you go to trial despite what the media and the "Mothers" (MADD) say.
IF you want to increase your knowledge of your BAC log on here
8. Finally, the faster you get a lawyer the better. Once you are arrested, the police will take your cellphone from you so having a lawyers number in your phone will not help. Either memorize the number or put the number in your wallet or purse. (I advise my clients to tattoo it to their feet.)JOKE!! (kinda)
9. If you do not have a lawyer and are arrested in NYC (you know, Manhattan, Booklyn, Queens Bronx or Staten Island) or on Long Island
(Nassau or Suffolk Counties) or even anywhere else in the state of New York, you are welcome to call me at 516-741-3400 I am at 180 Froehlich Farm Blvd Woodbury NY 11797 and this paragraph is a legal Advertisement.
You can follow my daily tweets on Twitter by logging into www.twitter.com/thatlawyerdude (no spaces). If you don't know what I am talking about, Find out about twitter.
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