UNDERDOG - Criminal/Drunk Driving Defense in Maryland, Virginia, DC

As I have said before, jazz is improvisation, spontaneity, feeling, being in the moment, tight interaction, entertainment, pushing the limits of excellence, creativity, expanding into new frontiers, fun, inspiration, and discovery. That also is what my criminal defense work is about, albeit with frustration frequently challenging the fun part. Moreover, my countless live trumpet performances with various bands helped make it more natural for me to perform before audiences in the courtroom.

Magic consistently happened with the trailblazing 1970's Return to Forever lineup of Stanley Clark, Chick Corea, Al Dimeola, and Lenny White. Magic comes again with this summer's RTF reunion tour. I already have my tickets for the August 4 concert at Maryland Merriwether Post Pavillion. If you will be at one of their concerts, please let me know about your experience. Jon Katz  

Undoubtedly, cops have legions of tricks to convince suspects to give up their Miranda right to remain silent, starting with delaying an arrest and detention so as not to need to give such rights yet, proceeding to intimidating body language (including patting the cop's handgun and handcuffs), and proceeding to leaving the suspect the choice between languishing in a depressing, decrepit, smelly, and confining lockup while waiting the weekend to see a judicial officer for a bond review or to be taken on a McDonald's field trip with unlimited Coca Colas and fries in exchange for spilling the beans. Of course, the "persuasion" methods to getting a waiver of Miranda rights can become more sinister, including police lying that Miranda rights were given and waived in the first place, threatening harm or other problems to the suspect or his or her loved ones, alternatively yelling and mollycoddling the suspect (sometimes through good cop/bad cop or a legion of them parading in and out and at times leaving the suspect alone, in suspense over what will happen next, and whether a good cop or back cop will enter next) over a sustained period of time, and proceeding to all sorts of physical discomfort that reveal no visible scars or bruises (including forcing the suspect to sit in underwear on an ice-cold steel chair or to be blindfolded with a urine-soaked cloth); ask the CIA and other interrogators of suspected terrorists for additional methods of such heavy-handed interrogation methods.

Cops should have little to no excuse for not using videocameras for interrogations to enable judges and jurors to reach their own conclusions about the extent to which a confession is voluntary. Of course, the videotape only captures what the camera and editing show, still leaving questions about what takes place before and after the camera rolls, outside of the camera's view (e.g., is a cop standing behind the camera pantomiming the slitting of the suspect's throat should s/he not "please" the cops), and in front of the camera, too (sound and picture quality always can be altered through editing or distorted by poor quality of the equipment or use of the equipment, and by dimming of lights and playing loud noise in the background).

Last Tuesday, Steve Silverman of FlexYourRights.org and I talked to a bunch of George Washington University law students  about their rights with the cops, which revealed how critical are the Busted video and such rights lists as ours. Even for law students who on the intellectual level understand the right to remain silent and to refuse searches, numerous of the students still wondered, for instance, whether refusing to talk with cops or to consent to searches (since when are police "consent searches" consensual in the first place?) will make them harass suspects all the more or even to assault them. As Steve always emphasizes, if a suspect gives up such rights with merely a fear of harassment, being beaten, or other detriment without being able to relate that fear to anything concrete done by the cops, then the suspect has given up much chance of getting evidence suppressed. When a suspect calmly and peacefully says the mantra "no" to all searches and statements, the cop is left with a peacefully annoying person and with more reason to seek out a more pliable crime suspect than to continue to have to deal with a person who incants "no" -- as peacefully as Gandhi, who hated nobody -- as if it were religious gospel.

No means no, and saying no or remaining fully silent (possibly even with a Gandhian calm smile (watch out for the cop intoning "What's S/HE smirking about?)) will help prevent the cops from finding ways to push past the no. For instance -- and this is not meant to give cops any ideas, but they probably already know the following approach -- if a suspect refuses to speak to the cops, the bad-playing cop may turn to the good-playing cop, and yell in front of the suspect: "Mr. amateur lawyer wants to play difficult. Fine, then, please write up your report, and say the suspect refused to talk or cooperate. What a stupid move; how the hell can the prosecutor give a fair shake to the suspect if we don't have his version of the story? Maybe there is an innocent explanation for all this, but the suspect's not telling us a damn thing."

When suspects deal with cops, it is like an amateur playing against a decorated pro basketball player. Saying no to cops is the only way to start leveling that playing field, which can only be fully leveled by bringing in a qualified criminal defense lawyer. However, do not put it beyond cops to try to deprive a suspect from access to a lawyer for a long time, including during the time a suspect waits to get photographed, fingerprinted, and further "processed" before waiting longer still to appear before a judicial officer to have a bond set.

Most people cannot remain silent very long. It might work for a few minutes or one or two hours for those with more fortitude. However, remaining silent becomes harder as the suspect languishes in a police car slowly taking the longest, most uncomfortable roundabout route to the destination; and often in the initial instance deprived of food and water, reading materials, and much or any telephone access. It can be excruciatingly difficult to remain silent in the back of a police car or in the police "processing room" (ostensibly for taking mugshots and fingerprints) while two cops talk in front of the suspect about how some "misguided" do-gooder group has convinced the defendant to remain silent where in the real world "that the do-gooders never see" the suspect would be better served to talk. Even for a suspect to break the silence by talking about things seemingly unrelated to the suspected crime is a bad idea. For one thing, anything a suspect says (and the suspect's demeanor) can be intentionally or unintentionally twisted around by cops to the suspect's detriment. Second, saying anything to the cops leads down a Simon-says path, which gets the suspect's tongue wagging about something (even if it is only about March Madness) and gives the cops an opening to steer the conversation back to the suspected crime (for instance: "Too bad you won't be seeing any more March Madness if you don't get out of the lockup.")

What happens when a suspect asks a cop: "What happens to me if I refuse a search, or if I refuse to talk?" I imagine the cop replying: "We cannot help you if we don't have your version of what happened, or if we cannot independently verify your explanation with a search of you or your car." The cop might also initiate the following to his or her partner in front of the suspect: "What a fool not to talk with us or to let us search. If s/he has nothing to hide, wouldn't s/he cooperate with us? If the suspect's explanation is convincing, we can let him or her go, rather than detaining further. If we find nothing through a consent search, the suspect can go, rather than our waiting a long time for the drug-sniffing dogs ("What's that you say? Our dog handler can't be here for another four hours, in this rain?) or for us to get a search warrant ("How many hours will it take us to get a judge to sign the warrant? They are all asleep now.")

Thus, we return to the power of just saying no to the cops.

Some suspects might fear keeping silent or refusing a police search, lest the suspect look guilty in front of the jury for having made such a refusal. However, invoking the right to remain silent and to refuse a search is not permissible for the jury's ears. However, the cops do not have to tell suspects that, nor do cops need even to warn suspects that they have a right to refuse a search.

What happens when a non-cop (for instance, a loss prevention officer for a bank) investigates a potential crime and the suspect refuses to speak, or does not return phone calls? Silence and non-responsiveness are too ambiguous to be permitted to be used against a criminal defendant, and this point must be driven home fully to deciding judges. Weitzel v. Maryland,  384 Md. 451, 863 A.2d 999 (2004). This Weitzel case brings us back to the title of this blog entry: "The ambiguity of silence; the silencing of ambiguity." Weitzel supports keeping out a suspect's silence as being too ambiguous as to both cops and non-cops, let alone as being inadmissible when one refuses to talk with cops. Keeping silent is the best way to eliminate ambiguity in the first place about a suspect's words. People mis-hear and mis-quote others all the time, starting with newspapers. Cops should not be expected to be any more accurate in relating a suspect's words than journalists, the best of whom are more skilled than most cops at accurately conveying what a person has said.

The cops might try to trick a suspect into writing down a statement, by saying that "This way, nobody can twist around your words." Oh no? The times must be countless and continuing that a bunch of cops surround a suspect while the suspect writes a statement, nodding to each other in agreement for each phrase with which they approve, and frowning facially and by conversation (and calling the line B.S.) at phrases that do not meet their approval. Furthermore, anything a suspect tells the cops in denying culpability can lead one to Martha Stewarts's convicted and jailed fate, should a jury deem that the suspect was lying and obstructing justice.

With the cops, no word is more valuable than "no". Jon Katz.

 Yin Yang. 

 Practicing life and law as a harmonious whole.

The best multi-day trial lawyer seminars that I know of are the National Criminal Defense College's Trial Practice Institute (also known as Macon, which I attended in 1994 for two weeks) and the Trial Lawyers College in Dubois, Wyoming, which I attended for four weeks in 1995. NCDC only accepts those practicing criminal defense, and not prosecutors. Except for its judges' seminar, the Trial Lawyers College limits attendance to lawyers mainly representing people, not prosecutors, not corporate lawyers, and not insurance defense lawyers.

For those not ready to invest so much time into the above-described lengthy seminars, both programs also sponsor long weekend seminars. Here is the 2008 schedule for NCDC programs, and here is the 2008 schedule for the Trial Lawyers College's programs. I understand that some people who even attend a long weekend Trial Lawyers College program often go through a tremendous metamorphosis, so hold onto your seat if you attend. (Suffice it to say that the 1995 Trial Lawyers College, alone, was a powerful catalyst that led within a short time to people leaving their legal employment or partnerships to start new practices, reconciliation of shaky relationships, the breakup of shaky relationships, babies conceived, numerous changes on smaller scales, and, eventually, many breakthroughs at trial and before.) If you attend or have attended programs at either place, please let me hear from you. Jon Katz.

Bill of Rights (Image from the public domain.)

Yesterday saw five of the most conservative of the Supreme Court justices refusing to require a state court system (in Texas) to let an International Court of Justice ruling cause Texas to deviate from its law that does not permit more than one state-level habeas corpus proceeding. Medellin v. Texas, __ U.S. _ (March 25, 2008). Justice Stevens concurred in the majority opinion, but found much to like, as well, in the dissent of Justice Breyer, who was joined by Justices Souter and Ginsburg.

Criminal defendant Medellin's habeas corpus action reviewed by the Supreme Court in Medellin was not a run of the mill habeas corpus action. Mr. Medellin is among the countless occupants of Texas's death row. Although living in the United States since early childhood, he is a Mexican national who was questioned by the police, spilled the beans about his involvement in the gang rape and murder of two teenage girls, and apparently was denied his right under the Vienna Convention -- a treaty passed by the United States Senate, with the Constitution including treaties among the supreme law of the land -- to be advised of his right, as a non-United States citizen, to consult with a consular representative from his country of citizenship (who presumably would have told Mr. Medellin about his right to counsel and the extent to which the Mexican government would help him pay for or find a criminal defense lawyer or give him other advice). Medellin apparently raised the consular consultation issue in his second state habeas corpus petition in the light of the Avena decision from the International Court of Justice at the Hague, which directed United States courts to review the cases of several dozen convicts who alleged they were denied advice of their right to consular consultations under the Vienna Convention.

The lengthy Medellin majority and dissenting opinions cover much ground, and require more than the one quick reading I gave to give a sufficient overview of the ruling, aside from the following key points. Such blogs as Opinio Juris and Scotus address the opinion further than do I in this blog entry. Nevertheless, this is a very important Supreme Court ruling that has implications beyond criminal proceedings to reach the effect on American courts of the rulings of all international tribunals on both criminal and non-criminal matters (including international tribunals interpreting the application of NAFTA and the World Trade Organization).

Before going into some of the key points of Medellin, the very noticeable tension between the majority and dissent appears to revolve in large part around a reluctance of the majority to see American court sovereignty handed over so easily to international tribunals without that requirement being made as clear as day in the governing treaty itself or perhaps even in clarifying federal legislation (and not in clarifying presidential orders or other presidential memoranda, because here the Supreme Court gave no effect to such a recent presidential clarification). The dissent, on the other hand, seems to say that such compromises of American court sovereignty are for American treaty makers (the president must approve the treaty, and then the necessary number of senators must approve it) to make or not to make, and that -- at least in this instance -- the treaty and Congress need say nothing more for federal and state courts to be required to give effect to the rulings of such international tribunals, to the extent that the applicable treaty gives such binding effect to the international tribunal. 

Here are some of the key points of  Medellin:

1. Apparently still alive and well is the Vienna Convention's requirement that those who are not citizens in the country where arrested be advised of their right to consular consultation. The Supreme Court seems to leave open courts' authority to enforce this provision of the Vienna Convention, but was not about to tell Texas to deviate from its prohibition against subsequent habeas corpus proceedings.

2.  If Medellin were challenging a federal versus a state prosecution at the habeas corpus level, the Supreme Court may have given effect to the ICJ's Avena decision, at least here where president Bush signed a memorandum giving effect to ICJ decisions interpreting the Vienna Convention, and where federal prosecutions are pursued to the president's executive branch.

3.  The majority seems very concerned about reaching an opposite result than it did, lest unforeseen and harmful results follow from having American courts bound by international tribunals that are not governed by safeguards of the United States Constitution.

4.  Perhaps influencing some of the justices in the majority in Medellin is an aversion to giving more review rather than less review to habeas corpus challenges involving capital cases.

5. This case is important for interpreting all treaties, including the extent to which they will be treated by courts as self-executing or not. Jon Katz 

Bill of Rights (Image from the public domain.)

Every once in awhile, the media reports on federal prosecutions for "misprision of felony". This blog entry seeks to debunk any notion that it is a crime merely to fail to report a crime, as opposed to concealing a felony cognizable by a federal court and not reporting it.

The federal misprision of felony statute is at 18 U.S.C. § 4, which provides: "Misprision of felony. Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both." Id. (emphasis added).

Consequently, absent proof beyond a reasonable doubt that the defendant took affirmative steps to conceal a felony, no conviction for misprision of felony is permitted. U.S. v. Daddano, 432 F.2d 1119, 1124 (7th Cir. 1970), cert. denied, 402 U.S. 905 (1971).

How does the federal misprision of felony statute jibe with the Fifth Amendment right against self incrimination? No misprision of felony conviction should be available (except where a guilty plea is entered to misprision of felony, thereby waiving the right to raise the Fifth Amendment defense) where reporting the felony would involve giving up one's Fifth Amendment rights as to the underlying felony (as opposed to the concealment of the felony, which concealment can be committed by a person who had nothing to do with the felony itself and whose reporting the felony would not expose the person to a conviction for the underlying felony (see the next paragraph for more on when the Fifth Amendment may be asserted in a court proceeding by one who is not a party to the criminal prosecution)) and where the defendant has not already waived his or her Fifth Amendment rights (e.g. by denying the alleged crime to investigating FBI agents, rather than asserting the right to remain silent). U.S. v. Kuh, 541 F.2d 672 (7th Cir. 1976). In this regard, "It is well settled that the Fifth Amendment privilege against self-incrimination 'must be confined to instances where the witness has reasonable cause to apprehend danger from a direct answer.' Hoffman v. United States, 341 U.S. 479 (1951)." Id. at 674.

More recently, the Supreme Court spoke further about when a non-party may refuse to testify in a criminal prosecution pursuant to the Fifth Amendment (and, therefore, by reasonable extension, when a person may avoid a misprision of felony conviction lest reporting the felony would violate one's Fifth Amendment rights as to the underlying felony):  The Fifth Amendment privilege against self incrimination "extends not only 'to answers that would in themselves support a conviction . . . but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant.' Hoffman, 341 U.S. at 486. 'It need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.' 341 U.S. at 486-87. We have held that the privilege's protection extends only to witnesses who have 'reasonable cause to apprehend danger from a direct answer.' 341 U.S. at 486.That inquiry is for the court; the witness' assertion does not by itself establish the risk of incrimination. Ibid. A danger of 'imaginary and unsubstantial character' will not suffice. Mason v. United States, 244 U.S. 362, 366 (1917). But we have never held, as the Supreme Court of Ohio did, that the privilege is unavailable to those who claim innocence. To the contrary, we have emphasized that one of the Fifth Amendment's 'basic functions . . . is to protect innocent men . . . '"who otherwise might be ensnared by ambiguous circumstances."' Grunewald v. United States, 353 U.S. 391 (1957) (quoting Slochower v. Board of Higher Ed. of New York City, 350 U.S. 551, 557-58 (1956)) (emphasis in original). In Grunewald, we recognized that truthful responses of an innocent witness, as well as those of a wrongdoer, may provide the government with incriminating evidence from the speaker's own mouth. 353 U.S. at 421-422." Ohio v. Reiner, 532 U.S. 17, 21 (2001).

Why must a defendant go through all these mental gymnastics over whether the Fifth Amendment precludes exposure to a misprision of felony conviction, which carries a sentence of up to three years? Court resources and justice (including on Fifth Amendment grounds) will be better served by striking the misprision of felony statute in the first place. Jon Katz