Cop Games, Due Process and the CPD “Black Site.”

“Sorry to disrupt, but I’m here for Mr. Innocent.”

One of my favorite things to do at this job is to show up at police stations.  If a client is inside an interrogation room, manages to wade through the coercive Reed Technique garbage and get a call out to me, I’ll drop almost anything I’m doing and try to get there if I can.  It hardly every happens, though.

Cops play all sorts of games to prevent it- despite what the Constitution says.

If I can talk to the cop directly, they’ll do everything they can to interfere. My favorite is when I ask “You’ve arrested Bob Innocent, my client…” to which the response is always, “No, sir, Mr. Innocent has not been arrested“,  Because, as you know, even though a man is handcuffed and locked in a police interrogation room, he might be arrested to you or me, but that’s not “arrested” to the cops.

So, you have to say “detained”.  That’s the magic cop word that means “arrested” to everybody else. If you don’t use their magic words, they play dumb. Continue reading “Cop Games, Due Process and the CPD “Black Site.””

“If you won’t show up on the small stuff…” – On playing Gallaga and bond hearings.

I’m working on an appeal.  The case was major- with the defendant sitting on a $950,000 bond (meaning, in Illinois, he has to post $95,000). There was a bond reduction hearing because just about nobody sitting on a $95,000 bond can pay that, and the statute says the amount should be only one to reasonably assure the defendant’s appearance at court. Continue reading ““If you won’t show up on the small stuff…” – On playing Gallaga and bond hearings.”

Three dumb things people say to the police… all the time.

So, you’re sitting in my office and you’re mad that you got a ticket or were arrested for DUI or are charged with murder. You’re going to fight this thing all the way. You’re mad.  They never read your your rights.  They never showed you the radar.  If they didn’t do that, you must be “not” guilty, right?

For whatever reason, there seem to be a large number of people who, between the time they’ve last talked to the cops and the time they walk into my door, have convinced themselves they’re not guilty.  That’s just fine.  If you want to take the best shot at winning at trial, though, there are some things you probably said to the police that you shouldn’t have.  Those things are going to make it really hard for a judge or jury to see just how not guilty you really are:

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When the police first pulled you over or started to talk to you: “Yes”.

Do you know how fast you were going? “Yes.”  Do you know why we’re at your house with this warrant looking for a dead body? “Yes.” Do you have any idea why the neighbor says you were swimming naked in his pool at night and creeping out the entire neighborhood? “Yes.”

When the police ask those initial questions, they obviously know something. They’re not going to tell you what it is, but they’re going to try to get you to talk about it. After all, you may “know things only the killer would know.”  If you answer “yes” to any of these initial questions, it’s going to start a dialogue- a dialogue that’s only going to get harder to stop.

Probably the only worse answer than “yes” would be to lie.  Like, telling an officer at a traffic stop that you were going 47 when his radar says you were going 89.  Lies are either going to frustrate the officer or (in a more serious case) make you look even more guilty when you’re busted.

A better thing might be to say, “I’d like to talk to a lawyer before I answer any of your questions.”  Nobody seems to ever believe me on that, though. It’s sort-of a free country, I suppose.  You go ahead and do what you want.

When they want to search: “Yes”

When it comes to car searches, this is almost always a follow-up to “do you have anything you shouldn’t in the car?”  Of course, if that’s what happened you must have skipped the section above and either lied (hoping he’s not smart enough to know all the drugs are “hidden” in the trunk of your Chevy Vega), or answered “yes”.

So, now he wants to take a look. He’s asking you, and you don’t want to “look guilty” so you’re going to let him search.

Look, I know it seems a bit extreme, but no police officer is ever searching my car, house, body or other property with my consent. I have nothing to hide- just like you (except for those apples you’re illegally smuggling into Canada), but my stuff is nobody’s business and I don’t care how they think that makes me look.  I’d be somewhat offended if they even asked.

Getting sucked into “not wanting to look guilty” is the best way to look absolutely guilty. Nothing says “this guy is probably guilty” like the weed the cop found in your pocket or the headless corpse in your crawl space.

If they ever ask to search, you can always tell them you’d like to talk to a lawyer about it first. Just saying.

When the police are interrogating you: “Yes”

You’re in some small room at the police station. The room is simple, without decor or anything but a small table and some chairs.  There’s one cop- maybe two.  They’ve read you your rights, and they’re asking you questions.  They want to know how long you had “beef” with the guy who was just found stuffed in the back of a burned-out AMC Gremlin down by the river.  “You’ve hated this guy since before that day at the Bieber concert, right?” They ask.
https://www.youtube.com/watch?v=5nq3FHm6DZ0

Wait a minute. You’re in custody.  They read you your rights. They just told you that you had a right to an attorney.  They told you that they’d get you one before any questioning.

Now you’e sitting there, without having talked to a lawyer, and you’re about to agree that you didn’t like some guy that they found dead?

Brilliant idea, Einstein.  Especially if you didn’t kill the guy (or if you’re going to tell your lawyer you didn’t, anyway).

Just another crazy thought, but if you’re planning to contest the charges and try to avoid spending the rest of your life in prison, it might make sense to talk to a lawyer first. Probably.

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There you have it. You’re in my office. You want to fight this to the end. You’re mad that your rights have been violated. They can’t prove this case… except, of course, for the fact that you admit you knew why they were looking at you, let them search wherever they wanted and confessed after they read you your rights.

Can’t wait for your trial.

Nobody Cares If You Used To Be a Prosecutor

I’m in law school and think I want to be a prosecutor.  It’s a noble profession, and all my friends and family approve.  Why wouldn’t they?  Too many criminals get off, and I’m feeling righteous so I’m going to do something about that.

So, before I even graduate, I’m looking to volunteer. I’m calling prosecutor’s offices all over- somebody could use some free help, right?

I work limited hours and summers for free as I finish out my schooling. I’m dedicated to my cause (and these jobs are competitive) so I go that extra mile and take criminal law classes in school. I even write my law school paper on the justice system, and how a more rigid system of penalties can fix the world’s problems.  All of them.

The hard work pays off, too. I graduate, pass the bar and get hired on as an actual paid prosecutor.  I love my job!

I start by working on traffic cases. Then I graduate to misdemeanors, and on to DUI. It’s a great job with great people, and I get to tell my friends and family how fun it is to put away all those “bad guys” that Nancy Grace talks about.  I don’t bow to defense attorneys, and nobody gets a free pass on one of my cases!

One day, I’m sitting in court prosecuting people.  All the sudden it dawns on me that even though I rock at this job and even though I’m fixing all the problems I whined about in law school, and even though my family knows I’m making the world a better place- even though there’s all of that, it’s like a switch got flipped and I want to defend people.  Like, BAM! I can’t explain it but I’m just going to do it.

I don’t have any reason, let alone any good reasons.

That makes total sense, right?  Of course it doesn’t.  You know what makes even less sense? If I pretend (and advertise to the public) that being a former prosecutor makes me better at defending people.

Because, even though I’ve spent the better part of a decade locking people up and bragging to everybody about it, being a prosecutor is magic. It prepares you for everything.  One day I was sitting in court and it just dawned on me… not only am I going to defend people for no real reason, I’m going to staff almost an entire office with people who formerly had zero interest in defending the accused.

Still makes no sense, right?  If it does, you’re missing the sarcasm. You’re not the only one.  (You can forward to about 41 seconds if you want to cut right to the part that makes me giggle).

He could have said he has a hard time sleeping knowing innocent people get convicted. Or that he doesn’t like that the system is more concerned with rules than the truth. Or, even, that the only way the system works at all is because there are people pushing back against the government.

He could have said any of that, or about a billion other things. He didn’t, though. Probably because none of that came to him.

You think former prosecutors have some awesome inside knowledge that makes them fantastic defense attorneys? Like, there is some secret handshake or prosecutor’s secret they teach you when you’re first starting out prosecuting speeding tickets?  That’s exactly how it goes down. On your first day they call you into an office for a conversation that starts with, “If you tell anybody this prosecutor’s secret the whole world will collapse, but…”

I’ve said it before and I’ll say it again: there are some absolutely fantastic defense attorneys who were once prosecutors. There are also a lot of incredible defense attorneys who never prosecuted anybody. The idea that being a former prosecutor gives you a leg up on anybody is a ludicrous marketing technique. Nothing more.

Maybe next time he should let me write his youtube video.  We can brainstorm real reasons to love this job.  And we can talk about getting rid of that horrible, fake background.

The police didn’t read me my Miranda rights! Can I have my case dismissed?

Just read me my rights, or drop my case.

T.V. is usually the best way to “learn” everything you need to know about the law.  Before law school, I used the T.V. for my legal knowledge, too.  I think that’s why everybody has a favorite legal show.  Mine was always Miami Vice.   Don’t deny that you have a favorite.  Law & Order, Dog the Bounty Hunter,  Matlock, L.A. Law… whatever.  Everybody has one.

Matt Haiduk is "Mattlock"
I put the “Matt” in “Matlock”.

Thankfully those shows are completely accurate on the law.  If they weren’t, a whole bunch of people might have the wrong idea.  By a “whole bunch” I mean all of us who watch the law shows.  No need to go to law school when you pick up everything you need from an episode of Ally McBeal, right?

One area the legal T.V. shows must not cover is what they call “Miranda” warnings. Too many people seem confused about them.  If you’re not sure what Miranda warnings are, they’re the “rights” people presume the police will read when arresting somebody.  I say “presume” because people are always saying that “the police never read me my rights,” as though the police are required to do so.  The fact that a huge number of people believe this presumption is what leads me to believe  Night Court didn’t adequately teach us about Miranda.  Let’s clear up the issue Night Court was too soft to tackle, shall we?

The first thing you need to know is that your case is not going to be dismissed because the police didn’t read you your rights.  What will happen (what the law calls “your remedy”) is that certain statements might not be allowed to come in at trial.  See, if you said things to the police that they’re trying to use against you, that’s usually called a “confession.”  And if “confessing” to a crime meant the charges would be dropped… well, that would make for a weird world.

So, before we even talk about Miranda warnings, we need to know if you talked to the police.  Did you make any statement to the police? Yes?  This isn’t going to be easy, but I’ll try to forget that you clearly haven’t been listening to me (or this guy, this guy, or this guy).  If you were listening and you didn’t make a statement, though, Miranda doesn’t really matter.  If that applies to you, I’m awarding you a gold star for following my previous posts (and that of this guy, and this guy and this guy <—– all new guys, by the way).

Ok, you talked?  Is the prosecutor going to try and use that statement against you at trial?  If not, it doesn’t really matter, either.  Since the “remedy” would be to keep the statements out of trial, consider a prosecutor’s not intending to bring them up a “mission accomplished.”  Nice work!

Now, have you been “arrested” by the police prior to making the statement?  If not, it also doesn’t really matter.  Cops are allowed to talk to you in the same situations that normal people can.  If they just happen to wander upon your stranded car, they can ask you questions.  The rights only come into play once they start acting like police investigating crimes and use their “police-ness” against you.

Finally, were your statements the result of the police asking you questions or interrogating you?  If not, Miranda doesn’t really matter.  There’s  nothing that requires the police to read you your rights when you’re happily babbling your guilt for no reason- even if it’s the 16 cans of Hamms making you talk.  And, really, think about it for a minute. If talking to the police when they’re asking you questions is a bad idea, what do you think about talking to them when they’re not even asking you questions?  It hurts me to even ponder.  It should hurt you, too.

So, you went ahead and talked to the police?  You talked to them after you were arrested, only because the police were interrogating you, and the prosecutor is going to use your words against you? Now we’re getting somewhere.

Like I said, if the police didn’t read you your rights when they should have, your statements should not come in at trial.  That doesn’t mean the prosecutor will dismiss your case.  Unless, that is, there is no evidence other than your confession– which means there would have been no evidence if you’d have just listened to me in the past (or listened to this guy, this guy or this guy <—– do you really think I can’t find 3 more links?).

So, there you have it.  If the police didn’t read you your rights… Wait.  Why did you talk to the police, again?

Matt Haiduk is a veteran criminal defense lawyer with offices in Kane and McHenry Counties, Illinois.