Daily Archives: February 7, 2007

Felony for invoking right against self-incrimination?

Montana legislators (there goes my theory) are considering legislation that would make it a felony to not report a sex offender who has not registered.

Rep. Edward Buchanan, R-Torrington, is chairman of the House Judiciary Committee. He said the bill would make it a felony for a person who knows that a convicted sex offender has failed to register with the state to withhold that information and fail to notify law enforcement.

The judiciary committee determined that a person shouldn’t have to commit an affirmative act to be convicted of this crime. Then the legislators delved into a discussion of the right to remain silent:

Rep. Floyd Esquibel, D-Cheyenne, asked whether people have the right to remain silent if a police officer asks them questions.

Buchanan
responded that people have the right to remain silent if they’re in
police custody, "and you’re already being interrogated." He said he
didn’t believe the right against self-incrimination was applicable to
the proposed legislation.

Rep. Colin Simpson, R-Cody, responded
that people have the right to remain silent so they don’t incriminate
themselves. He said this bill would make it a crime for people not to
talk and incriminate themselves.

"I just have the feeling that
we’re criminalizing victims or family members of offenders, because
they have knowledge of offenders," Simpson said.

What will this mean for lawyers? Each state’s ethics codes vary, but the ABA Model Rules of Professional Conduct Rule 1.6 states the following:

(b) A lawyer may reveal information relating to the
representation of a client to the extent the lawyer reasonably believes
necessary:

    (1) to prevent reasonably certain death or substantial bodily harm;

    (2) to prevent the client from committing a crime or
    fraud that is reasonably certain to result in substantial injury to the
    financial interests or property of another and in furtherance of which
    the client has used or is using the lawyer’s services;

    (3) to prevent, mitigate or rectify substantial
    injury to the financial interests or property of another that is
    reasonably certain to result or has resulted from the client’s
    commission of a crime or fraud in furtherance of which the client has
    used the lawyer’s services;

    (4) to secure legal advice about the lawyer’s compliance with these Rules;

    (5) to establish a claim or defense on behalf of the
    lawyer in a controversy between the lawyer and the client, to establish
    a defense to a criminal charge or civil claim against the lawyer based
    upon conduct in which the client was involved, or to respond to
    allegations in any proceeding concerning the lawyer’s representation of
    the client; or

    (6) to comply with other law or a court order.

Reporting that a client has not complied with registration requirements doesn’t fit within any of the above categories. Yet, it seems that under the broad language of the legislation, an attorney would be guilty of a felony for failing to report that a client has not registered as a sex offender. Any thoughts on this?

Defendant seeks second DNA test

Modesto Reyes, a Hartford pastor, is charged with having sex with and impregnating an 11-year old parishioner. A previous DNA test showed with 99 percent certainty that he is the father. He, however, is asserting his innocence and is asking for a second round of DNA testing. The Court wouldn’t address the issue at a pre-trial hearing and directed Reyes’ questions to his attorney. Reyes is represented by William Gerace, a reputed Hartford criminal defense attorney. What made me pause at this news story were Gerace’s comments to the press:

Defense lawyer William Gerace told [Judge] Miano he has told Reyes that it is
“inappropriate to contest DNA results” until prosecutors offer a plea
bargain.

“He insists upon his innocence,” Gerace said after the hearing.

If Reyes continues to press for additional testing, Gerace said he
anticipates the prosecutor will end pretrial negotiations and take the
case to trial. Requesting a second DNA test before trial is very
unusual, Gerace said.

“He’ll need to accept or reject the offer
prior to a new test being done. He’s in a position to know whether he
is guilty or not. I’m his lawyer, and I’ll do what he asks,” Gerace
said.

Now I understand that sometimes we may not agree with what our clients do and it is indeed our job to advise them and counsel them, but I’m not sure “He insists upon his innocence” conveys the right message. If you close your eyes, you can almost hear Gerace sighing as he says that.