People ask me if I went into criminal defense because I don’t trust the police. Oddly, that couldn’t be further from the truth. I went into criminal defense for a lot of reasons- mostly because I’ve always been concerned about my rights and how to protect them. Also, because the “cool kids” always wanted to “put the bad guys away” and if the cool kids are doing one thing, I’m doing the opposite.
I like twitter. It’s fun. Not just fun because you can “interact” with Nancy Grace, but also fun because you can “interact” with Sheriff Joe Arpaio. I like to think he gets as much out of our exchanges as I do. I could be wrong, though.
Twitter can can get a little repetitious. Sometimes all you want to do is scroll through and learn if the Iron Sheik would prefer to watch “White Chicks” or “Ghandi” and people are blowing up your timeline with 65 straight tweets about #DanceMoms. Reading all of the repetitious stuff can give a man a fairly distorted view of reality– Especially if you are “subjected” (which I put in quotes because you really don’t have to follow anything on twitter you don’t want to… but I can’t help myself), to the tweets of the “justice system.”
“Justice system” means, of course, police, prosecutors, and those of the rest of them that are just trying to keep the world safe… As opposed to us who are just trying to “get all those guilty people off.” Because all that they want is for the truth to come out. We’re immoral, hired guns, doing whatever our obviously-guilty clients tell us to do. We don’t care about truth, right?
One day I’m flipping through the tweets from one of my favorite prosecutor’s offices and I noticed an unusually high number of convictions getting “tweeted” about. As a tax payer, I suppose I should be grateful for a one-billion-percent conviction rate. Call me ungrateful, then, but I couldn’t help but inquire about the hall-of-fame batting average they were putting up:
Carpentersville man who made false bomb threat pleads guilty to multiple offenses http://t.co/zLnlH56BZj — Kane County SAO (@KaneSAO) July 28, 2014
All of these press releases seem to have a common theme. “@KaneSAO: Aurora man guilty of home invasion http://t.co/d7pMyBkfcF” — Matthew J. Haiduk (@haiduklaw) July 9, 2014
They never responded because, well, I’m not worth responding to. So, I let it go. They do their thing, I do mine, and who really cares what happens on Twitter, anyway?
Then a crazy thing happened. Today, while I was doing some work, minding my business, and trying to get pumped I got a text from a friend. Turns out he was not intimidated by the prosecutor’s office lifetime undefeated streak and he went to trial. Apparently, the trial wrapped up, the jury went out and, a short time later, the jury returned a “two word” verdict (HINT: “guilty” is only one word).
Maricela Arciga of Aurora guilty of solicitation of murder and solicitation of murder for hire. Faces minimum 20-year prison sentence. — Kane County SAO (@KaneSAO) July 17, 2014
Immediately I turned to twitter. I was interested to see how their twitter account would deal with the first loss ever in the history of the office. Would there be a link to a press release? Maybe just a 140 character statement? Would they explain this inexplicable verdict? “Congrats to the defendant… the evidence wasn’t there and the system worked.” Would it be like Lou Gehrig, with absolute grace in the face of horrific news?
We’re never going to know.
It’s the unfair fight, again. Police and prosecutors frame the news. We don’t. We win something, and we walk away. We have to. Just like I said in February:
If I won a trial today and issued a press release naming names and pointing fingers, it might be fine today. Tomorrow, though? Tomorrow I’m right back at it (probably with the same prosecutor) but for a different client. What I don’t want is this client to get a bad (or no) offer because I embarrassed the prosecutor on the last case.
Thankfully I’ve still got Nancy Grace and Sheriff Joe. And, thankfully for them they’ve still got me.
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
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.
Earlier this year I took issue with one of those news reports that seemed sourced mostly from a police press release. Or, at least, a police spokesperson who wasn’t about to let the reporter ask any real questions. By this point, I’m sure you know how much I love police press releases. Because I know this is the internet and I know you’re part of the short-attention-span Mtv (or whatever channel is cool now) generation, I also know you’re not going to bother reading the other post. So, here were the highlights:
A school principal from Johnsburg was arrested for sending “offensive” letters (as though it’s illegal to be “offensive”) to parents;
Because the charges were minor and because nobody would have really known otherwise, the police decided to blab to the media about it;
Because it was a school official it made the paper;
What the press release didn’t say and what did not, therefore, make the paper was that this was a bad arrest and a bogus case. So bad, and so bogus, as a matter of fact, that anybody who has been around the criminal courts for any length of time could read right through the police babble and see it. Of course, by anybody, I even mean me. I had this to say at the time:
Folks, this is a bad case. How do I know? First clue is the description of what she wrote. Look how vague it is. Were the letters threatening? No. They were offensive? Yeah? How so? Would you have been offended by those words? Would I have? Offensive to whom?
Go ahead and Tell me what the words were. I’m a big boy. I can handle it. What were they?
Oh. You‘re not going to do that?
I hate to say “I told you so,” and I won’t. I will say that the case was dismissed within 60 days of the charges being filed, though.
Where’s the police press release on that? Where are the apologies? Where is the “we’re sorry we over-hyped a case because of the political aspect and dragged this lady through the mud on some garbage charges”?
I’ll just sit here patiently waiting for Johnsburg to apologize. I’m going to stock up on Cheetos and crossword puzzles first, though, because something tells me it could be a long wait.
Between pondering how the courthouse bathrooms were trashed within 10 minutes of the place opening, and hoping that the cooler temps mean we’ll see less than 80 people shot in the city this weekend, I managed to come across a great post on Simple Justice. The post was Mr. Greefield’s ruminations on the pervasive practice of prosecutors disclosing evidence on the eve of trial. By “eve of trial” I mean years after they were ordered to disclose it.
If you’re unfamiliar, this happens all the time. It happens with such frequency that it’s not even surprising… to the judges. By-and-large, judges may act frustrated with the practice, but nothing ever really happens about it. Greenfield’s post, titled “When the Judge Says ‘Meh'” sums it up better than I ever could:
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This would be an excellent place to point out the irony that the prosecution puts a person on trial for violating the law, while it simultaneously violates the law, but that only plays to the naïve. Reality is that we, the players in the system, both know this and live with this all the time. We have for as long as I’ve practiced law.
The prosecution holds a special place in the system, a combination of low expectations of competence and efficacy, and facile excuses for its neglect and failures. They are the systems saviors, and while any defendant or defense lawyer would be led out of the courtroom in cuffs if we did a fraction of what the prosecution does regularly, they get a free pass.
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You can spend years getting ready for a trial, develop a great theory, work towards gathering and presenting evidence and at the last second a prosecutor turns over something new (to you, of course, not them) that you’re neither expecting nor ready for.
To quote Mr. Greenfield, the judge says “Meh.” It never seems to matter.
In the past year, I’ve twice had cases set for trial and, within days of the trial date the prosecutor turned over police reports. Obviously that’s not new.
What is new is that in both of those cases the police reports had not even been written until a year after the offense. In one of the cases, the prosecutor talked to the cop and told him to write a report. Of course, the report was directed at defeating the motion to suppress arrest that was headed for an evidentiary hearing. Nothing shady about that, right?
In the other case, the prosecutor didn’t even know the cops had info they “hadn’t gotten around” to writing up in a report.
So, you’re about to go to trial, the prosecutor was ordered to get you any and all evidence he intends to use at trial over a year ago, all the decisions you and your client have made to this point are based on the evidence that you had been given, and now you are getting police reports that were written only because your client is contesting the charges against him. What happens now?
You’re outraged. You’re shocked. You’re asking for the “new” evidence to get barred. You’re asking for a continuance.
The judge, though? What’s the judge say? Mr. Greenfield nailed it.
Just how the system is supposed to work. If it isn’t, then why does it?
