We’ve all seen the cop show where the police are sweating a confession out of the accused and just as the killer is about to admit his guilt, the defense lawyer rushes in and cuts off the interrogation by shouting: “Don’t answer that! This interview is OVER!”

Apparently defense lawyers (like the Terminator) are able to barge into secure areas of the police station anytime they want. Guess what?  This NEVER happens.

When the police arrest someone and want to question them they first must read the suspect his rights as set forth in the US Supreme Court case of Miranda v. Arizona (1966). Most cops will carry a card from which the rights are read:

• Number 1 is good to know, especially when read by a police officer, who–at this particular moment–is not your friend.
• Number 2 is so blunt and honest it makes me want to cry. Read it again. Notice how “anything you say” can be used against you. So if you tell the truth, they can use that against you. And if you tell a lie–and they later find out–they will use that against you. Consider the meaning of remaining silent. It’s for the best. Just say: “I want to talk to a lawyer first.”
  
• Number 3 gets a little tricky. It seems to say that if you ask for a lawyer, they get one in for you. News flash: THEY WON’T. But they have to stop asking questions (which is the main point here).
• Number 4, like number 3, should not be misunderstood to mean that you will see a lawyer anytime soon. If it’s a Friday night, it would be a miracle if you saw the public defender before next week.
• Number 5 just says you can confess to all, part or none of the crime. You can stop confessing whenever you want.

Another thing to keep in mind about these rights is that they are the rights of the accused, not his lawyer. If your spouse has hired a lawyer and sent the lawyer straight to the jail, he will not be rushing in to stop the questioning. You will not see him or even know he is in the building until the police are finished with their questions.

That is the bottom line: no suspect is going to talk to a lawyer until the police have finished their questioning (one exception being a DWI-related case where suspect is permitted to call a lawyer, IF THEY ASK TO).

If the police are smart–and many are–they will not let a suspect talk to ANY OUTSIDER until they get everything they can from the suspect. That will happen more quickly if the suspect stops all questioning by asking to talk to a lawyer.

Once the arrest and booking is over and the person is (hopefully) bailed out of jail, the accused will need a lawyer, but the case that is eventually presented to that lawyer to defend may be very different, depending on how well the defendant listened to the Miranda warnings and asserted those rights.

The legislative season has begun with the pre-filing of new bills for the upcoming session. The hottest proposal is one that creates many new crimes that can only be committed on a river (meaning that these crimes are not crimes on dry land or, presumably, on lakes and ponds). If Senator Delbert Scott’s Senate Bill 2 becomes law, fun-loving Missourians will want to avoid:

1. The crime of possessing a “beer bong” (funnels, tubes & hoses used for rapid consumption of alcohol) ON A RIVER.
2. The crime of possession or consumption of alcohol-laced gelatin (“jello shots”) ON A RIVER.
3. The crime of possession or use any alcoholic beverage container larger than one gallon ON A RIVER.
4. The crime of distribution of bead necklaces, if such beads are intended to cause fighting, solicitation of nudity, obscene language or other lewd behavior ON A RIVER.
5. The crime of possession of styrofoam & plastic coolers ON A RIVER (unless the cooler is made for holding bait)

Having never personally committed the first four crimes myself, I don’t quite know what to what to say. As near as I can tell, most behavior that these new crimes would discourage IS ALREADY A CRIME: peace disturbance, fighting, sexual misconduct, boating while intoxicated. etc.

But new crime #5 is worthy of more scrutiny. This law would nearly outlaw drinking any cold beverage on a river. If one uses the popular recreational river vessel–the venerable canoe–this bill would outlaw carrying any food or beverage at all because Missouri law already requires–under Section 306.325–that any food and beverages carried in canoes, MUST BE KEPT IN A COOLER.

Perhaps this bill is meant to encourage the purchase of aluminum coolers. For crying out loud, if you want to outlaw alcohol on a river, WHY DON’T YOU JUST DO IT?

And is there some good reason why these are crimes can only be committed on rivers, but not on lakes? I’ll bet there are more drunken lunatics in speedboats on our lakes.

I know we must still have some lawmakers who believe in liberty; lawmakers whose first inclination is to vote NO to more regulation and criminalization of (admittedly) bad behavior; and who understand that just because we could make belching and scratching one’s backside a crime, that would not transform Missouri into a heaven on earth.

As for our more totalitarian-minded legislators, they too can vote NO on this bill because it goes way too far in criminalizing innocent conduct while doing a poor job at controlling the underlying problems.

How does a person become charged with a crime? The first way is that the prosecuting attorney can file charges with the court. If the charge is a misdemeanor, the case is set for a trial. If a felony, there is an extra step: a preliminary hearing to make sure there is probable cause to believe the defendant committed a felony. The prosecutor must publicly put on evidence in front of the judge. The defendant is present, along with his attorney. If the prosecutor makes his case the accused is “bound over” to the circuit court where the case will be set for trial.

A second way to bring charges in the circuit court is through the grand jury. The grand jury is called to serve by the presiding circuit judge, typically at the request of the prosecuting attorney. The grand jury consists of 12 citizens selected by the court from a randomly chosen master jury list.

Once the grand jury is sworn in, they meet in secret and the prosecutor presents evidence to them in the cases he wants them to consider. There is no judge present. The accused has no right to attend, no right to question the evidence, or put on his side of the case. There is no record made in most cases. The prosecutor leaves the room while the jurors decide which “indictments” they will issue. Nine jurors must agree. The result is almost always whatever the prosecutor wants.

The fairness of this process is dependent on the judgment and integrity of the prosecutor. Most of the time the grand jury gives the prosecutor what he wants. If he has a reluctant witness, he just brings in a police officer to repeat what the victim told him. Hearsay is common in front of the grand jury.

Not only can a prosecutor get an indictment in a case that would never survive a preliminary hearing, he can easily avoid an indictment in a high-profile case by presenting his case in a way that insures that the grand jury will not indict. It’s great political cover because the grand jury gets the blame but is bound by secrecy rules that prevent anyone from knowing what really happened. The familiar criticism that a prosecutor could persuade a grand jury to “indict a ham sandwich” is only a mild exaggeration.

Unfortunately, we have real life examples: the tragic 2006 indictment of innocent Duke Lacrosse players in a case that promised national publicity to a prosecutor with too little courage and too much ambition. The recent indictment of Vice-President Dick Cheney and former attorney general Alberto Gonzales  last week in Texas (whatever we think of them otherwise) seems covered with the fingerprints of a publicity-seeking prosecutor. If the news accounts of erratic prosecutorial behavior are true, (read news stories here and here) perhaps this one will end quickly.

The fairness of the criminal justice system depends on the quality of the prosecutor: experience, mature judgment and a sense of fairness. Nowhere is this more true than in the use of the grand jury.

More posts on prosecutorial power:

Something from a former prosecutor to a new prosecutor. 
Criminal Cases: A roadmap of a typical case
Missouri Prosecutors join Obama “truth squad”

Most of us grow up being told that the policeman is our friend. We are not taught that he would lie to us. Some think that the police are not allowed to lie. This is so ingrained that even drug dealers believe it. This is why police reports and surveillance audios so often reveal a drug dealer asking a customer:

Dealer: “Are you a cop?”
Buyer: “No.”
Dealer: “OK.”

Busted. Yes, it’s true, the police are usually allowed to lie to citizens when they are fighting crime.

Lying about giving a statement:

If a suspect is arrested by the police, the police must BEGIN with a little straight honest talk. They read the person his Miranda rights:

After that, they can lie to and deceive a suspect in order to get a confession. And they can go pretty far before the court will draw the line and declare such confession to be coerced or involuntary. The police might tell a suspect:

• That an accomplice implicated them in the crime.
• That eyewitnesses have identified them as committing the crime.
• That they have other evidence that they do not really have, such as fingerprints.

I’ve seen police who don’t want to lie outright, will only suggest that he has such evidence. Knowing he has no fingerprints or surveillance video, he will ask the suspect to explain how his prints or picture might turn up. Then there is the old story of the interrogator who hooks the suspect up to a copy machine. Then every time the detective pushes the button the machine prints out a “report” that says: “He’s lying.”

But they can’t lie about everything:

One thing police cannot do is mislead a suspect regarding the consequences of confessing. If an officer tells a suspect that his statement cannot be used against him or will not result in charges, one can easily see that contradicts the Miranda warning that the officer gave earlier.

Lying about getting consent to search:

Sometimes the police want to get into a suspect’s home. They want to look around, but do not have enough evidence to get a search warrant. Lying to the homeowner is one of his tools. An undercover police officer can come to the suspected drug dealer’s house, posing as a buyer. If he is allowed inside on that basis, he may seize evidence or find enough other evidence to get a search warrant. The undercover cop might get in by knocking and asking to use a phone. These deceptions have been allowed by courts to get consent to enter.

One thing the police cannot do is go beyond the actual consent to enter. The undercover cop–invited inside to buy drugs or use the phone–cannot then start nosing around in closets and drawers. They may not get into a building by claiming authority that they do not have. That would immediately destroy the voluntariness of the consent.

There is also no voluntary consent to enter when the homeowner allows a police officer to enter because the officer has falsely claimed to have a legal right to enter. The same would apply where a government agent claims a false emergency, perhaps by posing as a gas company employee.

Post-Halloween Update: Christian County arrests 18 sex offenders for not following Halloween law. Eighteen arrests. It’ll be interesting to see if the prosecutor charges these sex offenders and to see whether anybody challenges the law in these cases.

Update: Judge’s ruling complicates enforcement of new Halloween sex offender law. Part of the law ruled “ambiguous.” This still doesn’t address the issue of whether the law applies to most registered offenders.

Friday is Halloween and registered sex offenders have their marching orders under a new Missouri law.

Senate Bill 714 requires that registered offenders shall henceforth, on Halloween:

• avoid all Halloween-related contact with children
• remain inside their residences between 5 and 10:30 p.m. unless there is just cause to leave
• post a sign stating, “No candy or treats at this residence”, and
• leave all outside residential lighting off during the evening hours.

There is already a lawsuit filed challenging the law:Cape Girardeau County prosecutor responds to sex offenders’ suit over Halloween activities.

Since we haven’t yet seen a Halloween under this law, no one has yet been charged and no one knows if the federal courts will interfere.

One thing that will eventually be raised is that, when this law went into effect, it could not be enforced against anyone. This is because the Missouri Constitution prohibits what is called a “retrospective law.”  A retrospective law is one which creates a new obligation with respect to things that were done in the past. The State cannot impose a new duty on a person whose offense occurred before the duty was imposed. Doe v. Phillips, 194 S.W.3d 833 (Mo., 2006).

The new Halloween law went into effect on June 30, 2008. This would seem to make the new law unconstitutional because it claims to apply to all registered sex offenders. Under the Missouri Constitution, the new law should only apply to persons whose sex offenses occurred after that date.

Of course, that’s just my opinion.  As a practical matter, there will always be some prosecutors who will try to enforce this new sex offender law, without regard to its constitutionality. Politicians shovel this stuff out and the public eats it like ice scream.  Later on, the courts get to play the villain when they toss out the bad law.

So unless a sex offender wants to chance getting charged, he will need to hide out this halloween, just like the new law says. Until someone fights it and wins, the law is presumed to be constitutional.

A number of Missouri Public defender offices–including Jefferson City and Columbia–have began refusing to accept appointments to represent certain poor criminal defendants, because their caseloads are so heavy they cannot provide an effective defense.

This Columbia Missourian story noted that “The first types of clients to go unrepresented will likely be people accused of probation violations or those charged with certain collections and traffic crimes. Private attorneys who can take cases for free may take up some of the slack.”

So far, in Cole County, it seems the first defendants to lose public defender services are persons already convicted of a crime and now accused of probation violations.

The interesting thing is that dumping these probation cases–which often require as little as 5-10 minutes work on the part of a public defender–provides little relief to these overloaded lawyers. The thrust of this effort is therefore bureaucratic: it lowers the numbers of cases the public defender carries, but without actually providing much relief.

The bottom line is that the problem is not solved. First, there is the constitutional requirement to provide representation to persons too poor to hire a criminal lawyer. Under Missouri law, public defenders must provide legal services to poor persons who are detained or charged with a:

1. Felony, including appeals;
2. Misdemeanor which will probably result in jail time, including appeals;
3. Violation of probation or parole; [There are a few exceptions, but that's basically it]

The legislature could solve the problem in a couple ways. First, they might add some money so the public defender can add attorneys where the caseload demands. A better solution–probably impossible in this age of criminalizing every wrong and increasing punishments–would be to CUT the punishments for certain crimes.

A first offense driving while revoked has mandatory jail time. This means the public defender is flooded with these cases. They could remove the mandatory jail time. They could cut first offense DWI’s to a fine only–nobody goes to jail on the first offense anyway. Many, many misdemeanor punishments could be cut to a fine only, especially for first offenses. Let me suggest a few:

• littering
• gambling
• careless and imprudent driving
• turn signal violations
• peace disturbance
• speeding (or driving too slowly)
• sale of a motor vehicle on a Sunday
• failure to return a rented video
• cockfighting
• bear wrestling
• possession of an unregistered monkey
• impersonating a hairdresser
• entering a prohibited cave
• sticking out arms on a roller coaster
• releasing a swine
• picking flowers by the roadside, and

If you really want to cut the public defender caseload, a first offense possession of a small amount of marijuana could have a fine only (not necessarily a small one).

Another solution brought up is to have the judges order unpaid private attorneys to take up the slack. [I know, Lincoln freed the slaves, but unless you are being forced to pick cotton, our government has pretty much decided we must do what ever they tell us.]

So setting aside the slavery/involuntary servitude aspects of this solution, it’s hard to imagine most poor defendants coming out ahead on the deal.

The truth is that many Missouri lawyers never see the inside of the court room.  We are divided into specialties and only a small percentage can be said to be trial lawyers. Only a fraction of those are skilled in the practice of criminal law. To give a significant portion of the public defender caseload to the local bar would be a disservice to the client in many cases, unless only experienced criminal defense attorneys are appointed, which also raises obvious fairness issues.

In the end, I am betting my money (and it is MY money) on the legislature doing the easy thing and sending more money over to the public defender office. [Sigh.]

Who is the most dangerous when they abuse power?  Police? Prosecutors? Judges?

Police work under many rules. If they do not follow the rules they eventually get caught. They can be dangerous to some individuals, but unless the judge and prosecutor join them, the potential for abuse is limited in both time and scope.

Judges are probably the least dangerous cog in the machine. They cannot bring charges against anyone. They can only affect cases that are brought before them. If the prosecutor doesn’t like the way they do business, he can kick them off the case. If the judge does something wrong in the case, a conviction can be reviewed and overturned by an appeals court.

Now to the prosecutor.  When it comes to charging criminals with a crime he operates with few restraints and with absolute immunity. His power extends to every person who enters his jurisdiction.  He can charge anyone with any state crime if just one person is willing to make a statement that the accused probably did something that could be considered a crime. This is all it takes to put the accused behind bars, where they may–or may not–get out on bond.

Months may pass before the accused gets to see the evidence against him at his preliminary hearing. And if the charge is baseless, a judge will finally dismiss the charge. By now, the poor guy has probably lost his job, maybe his house, but hopefully not his family.

But it can still go on. If the prosecutor wants to play out the bad hand, he can bring the accused person’s enemy before a grand jury to get an indictment (instead of having a judge decide at a preliminary hearing).

There is a saying that if the government wanted to, it could indict a ham sandwich. That doesn’t mean grand juries are stupid, just that that they see and hear only what the prosecutor wants them to see and hear. They seldom indict (or refuse to indict) unless that is what the prosecutor wants.

So the prosecutor can get the accused indicted on baseless charges and the accused sits in jail for many more months. When the trial date arrives he can either dismiss the charge at the last minute or–what the heck–let an assistant prosecutor try and lose the case. They need the practice anyway.

This is why a prosecutor can be so dangerous. It’s the reason why good prosecutors are very careful about their power. And why people should be beware the prosecutor who is partisan, or even casual, about their duties. There is nothing casual about it.

Now we have the disturbing news story over the weeend that two of Missouri’s top prosecutors have joined the Barack Obama “truth squad.” St. Louis City and County prosecutors Jennifer Joyce and Bob McCullough (and others) have pledged to react swiftly to unfair attacks on Obama and to what they consider ethical violations by Obama opponents. I’m not trying offend to Democrats here, because I’d be no more surprised, and just as offended, if it were the McCain “truth squad”.

Watch the video and see what you think. Technically, they haven’t crossed any legal line. It’s kind of like offending the King: once you know what he wants, only a fool does otherwise.

Needless to say, such intimidation tactics–harmless in the mouths of bloggers–cannot be ignored when threatened by prosecutors. I consider such political involvement by prosecutors inexcusable conduct in a job that has no business involving itself in partisan politics. It’s bad enough that prosecutors must be elected in partisan contests.

I notice that the governor issued a press release condemning the “police-state tactics” of these officials.  Even so, if you are in the east end of the state, don’t look for the  governor to save you if a prosecutor decides you may have been unfair in a way that they consider criminal. The real purpose, of course, is not to prosecute opponents, but simply to shut them up.

Brooklyn Man Dies After Being Tasered By NYPD (click for story)

Stun Gun Tactic Shocks Onlookers: ‘They Could Have Just Grabbed Him’

Not to be punning

But what’s really stunning’s

This way to take somebody down.

It’s not very cunning

To use tasers for stunning

When fifteen feet off of the ground

A friend  sent me this great example of the 4th amendment in action. The article, titled: “Yo quiero a search warrant: Lawyer succeeds in suppressing evidence found in taco” was originally published in the Missouri Lawyers Weekly.

It seems that Branson police were investigating a fight and were told that someone involved in the fight had gone to the Taco Bell. Police decided it was time to make a run for the border. When they arrived, they found  Johnnie Hoover and a female companion were the only customers.  

The officer asked Hoover if he had any drugs or weapons. At this point–the officer testified–Hoover “looked furtively at a taco lying on the table in front of him”.

Thinking outside the bun, the officer immediately asked Hoover to move away from the table.  He then searched the taco, finding methamphetamine and a glass pipe pipe within.

Mr. Hoover’s lawyer explained that he was able to have the evidence thrown out on the grounds that the taco seemed unlikely to contain a deadly weapon. Nor did the officer have probable cause to search the taco on other grounds.  [See Search warrants in MIssouri, Parts 1-4]

It sounds like the judge was dead on with that decision, the key being that a “furtive look” by itself is not going to be enough for the police to get into your taco. On the other hand, if the officer had sufficient grounds for a search of the taco, he most likely would not have needed a search warrant because the taco–being so “good to go”–might otherwise disappear in the meanwhile.