The police want to talk to me. Should I talk to them?

Most of us want to talk. Some of us mistakenly think we have nothing to hide. Others think they are so smart they can talk their way out of trouble. Nine times out of ten, they are wrong. There is a saying among prosecutors and police: “We only catch the dumb ones.” It’s basically an admission that if the defendant hadn’t confessed, they’d have no case.

Even where is no confession, telling lies (and getting caught) can provide just enough extra proof needed to make the conviction stick.

By now you realize that I don’t think it’s wise to talk to police about your case, but if you LISTEN CLOSELY to the police, they will tell you the same thing.

An earlier post covered the requirement for police to read a person in custody their Miranda warnings before questioning them. Often–out of an abundance of caution–the police will read those warnings even when they do not have to.

Most law enforcement officers carry the card shown below in their pocket and read directly from it. If this happens to you, YOU SHOULD LISTEN: This may be the best advice a police officer will ever give you.

Notice the question at the very end of the warning card.

  • It says: “Do you wish to talk to us now?”
  • The answer to that question should be: “No, I want to talk to a lawyer.”

This is perfectly OK.  See WARNING NUMBER 1, above.

The reason you should not answer any questions is noted in WARNING NUMBER 2, which reads: “Anything you say can and will be used against you in a court of law.” (Did I say this was good advice or what? Could this get any clearer?)

Until you have a chance to talk to your lawyer, do not answer questions (or say anything to anyone) about your case.

Should driving while suspended in Missouri result in felony-murder charge?

You may have heard of defendant Kevin Fisher in Kansas City who is charged with felony-murder because he was in an auto accident and his passenger was killed. No Drugs or alcohol were involved. The reason he is charged with murder is that he was driving on a suspended license, normally a misdemeanor–but in his case, a felony because of his prior criminal record.

The Missouri “felony murder” statute provides that a “person commits the crime of murder in the second degree if he…commits…any felony, and, in the perpetration…of such felony…another person is killed as a result of the perpetration…of such felony. This is an area that has been developing in Missouri and other states.

Just this week another man was convicted of felony murder after he had robbed a convenience store and shot a deputy (who survived). The robber was eventually chased into the woods and captured. Forty miles away, a state trooper was on his way to assist in the search when the trooper rear-ended a tractor-trailer. The robber was charged with felony murder for the trooper’s death.

In 1997, Tom Osborne and I tried State v. Pembleton, Missouri’s first felony murder case based on felony driving while intoxicated. Pembleton ran two well-marked stop signs, sideswiped another car and killed three people in a very nasty wreck. The evidence was clear that the deaths were caused by the driving while intoxicated.

The problem with the Kansas City case is that it’s hard to see how the victim was “killed as a result of the perpetration” of the felony of driving while suspended. True, the accident would not have happened if Fisher had not been driving with a suspended license, but it does not appear that his suspended license had any connection to the accident.

In the DWI case it was clear that without the intoxication the accident simply would not have happened at all. In the Kansas City case, I cannot imagine how Fisher’s driving record could have contributed to the cause of the accident.

A just interpretation of the law requires a causal connection between the felony and the resulting death. If I rob a bank with a toy gun and the guard accidently shoots and kills a bystander while trying to stop me, I get charged with felony murder because someone was killed as a result of my felony.

  • But should the same apply if I try to forge a check at Breaktime and the clerk gets suspicious and calls the manager from the back room. On the way out the manager slips, breaks her neck and dies. All because of my forgery. Am I now to be tried a murderer?
  • What if they called the police and the officer runs over a baby on the way to investigate?

Some may argue that Mr. Fisher was a bad driver, so that puts him on a par with a drunk driver. But that is not necessarily so. One can be suspended for many reasons which have nothing to do with dangerous driving (e.g. failure to show proof of insurance or getting behind on child support).

Not only that, a person can drive while suspended without actually knowing that he is suspended. It is considered sufficient that you should have known you were suspended. That means Mr. Fisher can be guilty of murder on a standard of recklessness. Normally, a reckless killing would not be murder, but manslaughter.

Finally, remember that nobody is saying to let this guy off the hook for the felony of driving while suspended. If his criminal record is as bad as they say, he will surely go to prison, but not for murder. Whatever the court of appeals ends up saying about this, prosecutors need to use some discretion. “Because they can,” is not the end of the analysis. It needs to be fair.

Can I get a ten year old Missouri DWI erased from my record?

expungeIt’s called an expungement, and in Missouri, any qualified person can get one (but only one).

If you have a single DWI or other misdemeanor alcohol related driving offense that is ten years old, the law provides a way for most people to make that mistake disappear forever. The effect of an expungement order is to restore you to your status prior to your DWI arrest, plea or conviction–as if such event had never taken place.

Expungement requires filing a petition with the court in which you originally pled guilty or were convicted. After a criminal background check, you must prove–-in a hearing–that you have not been convicted of any alcohol-related driving offense in the prior ten years and have have no alcohol-related enforcement contacts (like a license revocation) during the preceding ten years, nor have any alcohol-related driving charges or alcohol-related enforcement actions pending. The court will then order expungement of all official records of your arrest, plea, trial, conviction and related administrative actions.

In addition to the expungement of the records, you cannot later be found guilty of perjury or otherwise giving a false statement for failure to admit to the expunged arrest, plea, trial or conviction (no matter who asks or why).

 

The police didn’t read me my rights. Will they drop the charge?

Accused persons often tell their attorney: “The cop who arrested me didn’t read me my rights. Can you get the charges thrown out?”

The short answer is maybe. The rights you are thinking of are called your Miranda rights. The purpose is to warn you that you don’t have to talk to the police if you don’t want to. The idea is that a person under arrest may not feel free to remain silent when he is questioned by the police. So the U.S. Supreme Court has declared that persons in state custody must be warned of their rights before being interrogated.

How does this work in practice?

Example 1: A police officer pulls you over for speeding and walks up to your car window. He smells alcohol coming from the window. Without reading you your rights, he asks “Do you have any illegal drugs in the car?” You answer “Just a little dope in the glove box.” You are arrested and charged with marijuana possession.

  • Result: The charge is good. The officer didn’t have to read you your rights because you weren’t in custody when he questioned you.

Example 2: A police officer pulls you over for speeding and walks up to your car window. He sees a bag of marijuana in you lap. Without reading you your rights, he arrests you and you are charged with marijuana possession.

  • Result: The charge is good. The officer didn’t have to read you your rights because he did not ask you any questions.

Example 3: A police officer pulls you over for speeding and walks up to your car window. He smells alcohol coming from the window. He gets you out of the car, but you fall down because you are too drunk to stand up. He arrests you for DWI and puts you in handcuffs. Without reading you your rights, he asks “Do you have any illegal drugs in the car?” You mumble “Just a little dope in the trunk.” The officer searches the trunk, finds the dope and you are also charged with marijuana possession.

  • Result: The marijuana charge gets thrown out because you were questioned while in police custody and had not been read your rights. Your attorney can get the marijuana evidence suppressed. Without the evidence the state has no case.

In the real world the police screw this up from time to time. They forget to read people their rights or wrongly judge that they don’t have to. Whether they do or they don’t is one thing. Whether you answer their questions is another story. I’ll save that for another post.

Missouri domestic violence bill marred by parole for murderers provision

The governor is still sitting on House Bill 583 which was passed by the legislature in May this year. Why has it not been signed? The bill has provisions increasing the rights of victims of domestic violence and sexual assault. That would seem a pretty safe bet. Wife beaters are as easy to whip on as drunk drivers when it comes to getting tough on crime. The only group more publicly reviled would be sex offenders.

So House Bill 583 should be popular. Secretary of State Robin Carnahan called it the “SAFE AT HOME” act. It gives her office a little piece of the domestic violence pie.

One section of the bill incorporates a version of HB 632, which was the subject of an earlier blog post. The gist is that a convicted killer–including first degree murderers serving life terms without parole–can be paroled after fifteen years.

Several things are required for eligibility. They must:

  • have murdered a spouse or domestic partner;
  • have no prior violent felony convictions;
  • have exhausted their legal appeals; and
  • have a history of being a victim of continual and substantial physical or sexual domestic violence that was not presented as an affirmative defense at trial or sentencing

A provision also limits eligibility to prisoners convicted before 1991. You have to wonder if this bill is just a back door pardon for the one (or at most a few) murderers who would qualify. These are the sorts of cases that can be considered for a real pardon, if appropriate.

I see a couple other problems here.

  • First, the prisoner does not have to have killed her abuser, only her husband or “domestic partner.” She is eligible no matter who her abuser was.
  • Second, a few states recognize something called a “domestic partner.” Missouri does not. There is a “domestic partnership,” but that is a type of business organization, not a way to fool around without getting married. The bill does not attempt to define the term, but certainly should have.

Anyway, it’s too bad if sloppy provisions like this are holding up an otherwise good bill.

The police want to search my car. Should I agree?

Most police officers are reasonably hard-working. They have a job to do. Their job is to catch people who break the law. The ones that work the hardest do not sit around waiting to see if someone will commit a crime right in front of them. No, they go looking for evildoers to arrest. Like I said, it’s their job.

If the police pull me over about a bad tail light, I am relieved to find that I am only getting a warning. But then the officer asks: “Say, before you go, would you mind if I search your car.”

This happens more often than you may imagine. He may want to search clothing too, or a purse. Depending on how things develop, he may even say: “How ’bout we go over and search your house?” What should I do?

I suppose if I’d lost something and wanted Officer Friendly to help me find it, I would be grateful for the help. Perhaps terrorists have taken over my back seat and this is my chance to escape.

searchOtherwise though, I’m having trouble thinking of reasons why I would agree to having a stranger nosing around in my stuff. No matter if I have anything to hide or not, it seems unlikely that having my car tossed is going to get me on my way any sooner. I’m not talking about being rude; not talking about physically resisting a search. I’m just talking about NOT AGREEING to a search.

It seems like a no-brainer when you put it that way, doesn’t it? Actually, people agree to those searches by the thousands. And criminal cases are filed all the time as a result of searches that the citizen simply agreed to.

Bottom line: I can always say no. No law requires me (or the average citizen) to agree to this invasion of my privacy. If the officer actually has legal grounds to search, he’s going to go ahead and search anyway, with or without my permission.