Category Archives: confessions

A cop in sheep’s clothing

You’re poor. You’ve been arrested. You go to court and you can’t afford to hire a private attorney, so the court tells you to apply for a public defender. You go to their office and fill out a form and they ask you some questions. You have to tell them how much you make, how many dependents you have and how many assets you have. They thank you, give you your next court date and say that they have to complete an investigation into your finances before a final appointment is made.

That’s fine, you say. It makes sense. People shouldn’t be getting taxpayer funded services if they don’t qualify. Many states have made it a crime to lie on the application for public defender services and at least one state has held that there’s no confidentiality in the information provided in those applications.

So you go home and one day a nice man, Eric Carrizales, knocks on your door and says he’s here to investigate whether you really qualify for the public defender.

Carrizales spends a couple of hours a day at the courthouse sifting through applications and going to applicants’ homes to talk about their answers.

What a great public service. The Indigency Council that makes the appointments is tremendously happy about Carrizales’ work:

How do you solve a problem like jailhouse informants?

Every defense attorney knows that jailhouse informants are the scourge of confession cases: the defendant who is too clever by half, who refuses to talk to cops and invokes his right to a lawyer,  but brags to his cellie about how he “totally did that punk in”. Despite jailhouse informants being the cause of 15% of wrongful convictions, juries still lap that stuff up. For some reason, we as humans cannot escape the psychological pull of a confession – purported or otherwise.

Since trial lawyering is some parts art, some parts science and mostly blind dumb luck, trial lawyers have forever come up with artful ways of countering the appeal of a jailhouse informant and the defendant’s alleged confession: expert testimony, artfully crafted jury instructions and fearsome cross-examination.

But how does the science match up? Does it support any of these methods by convincing jurors to disregard the alleged confession?

Asking for a lawyer is not evidence of guilt


When the United States Supreme Court decided that horrible Salinas v. Texas – that silence is not the same as invoking your right to silence – it left many questions unanswered: primarily, if a person does invoke his right to be silent, can the prosecution still use that invocation as proof of guilt?

In Salinas, SCOTUS said that since Salinas had not properly invoked his privilege, his silence could be used against him. In a post providing commentary and analysis on that issue, Orin Kerr at Volokh asked two questions:

Finally, I have two major questions about how Salinas is supposed to work in practice. The first question is obvious: How clear an invocation of the Fifth Amendment right does it need to be?

Second, and perhaps more interestingly, it’s unclear to me what is supposed to happen when a suspect outside of custody clearly asserts his Fifth Amendment privilege.

The Second Circuit answered that second question today: the invocation is sacrosanct and cannot be used a evidence of guilt.

City wants defense lawyer to pay for wrongful imprisonment


You’re almost 18 right? No? 16? Well, let’s just pretend you said 17. Now smile for the camera while we destroy your rights1.

The lawyer for the city of Worcester acknowledges up front that his legal argument is frivolous and has no basis in the law2:

After the hearing, [the solicitor for the city of Worcester] Moore acknowledged there is no case, no precedent to cite to support the complaint against [defense attorney] Ryan.

But he’s doing it anyway, because anything to distract from the horrible violation of civil rights that his city inflicted on 18 year old Nga Truong. Truong, 16 at the time, was arrested because her son had stopped breathing earlier in the day. Police decided, as they often do, with no evidence and no basis other than they pulled it out of their collective asses, that she had killed him.

So they interrogated her3 for two hours, lying to her, threatening her and coercing her into confessing. Which she did4. Don’t kid yourself; you would have confessed too.

Her lawyer called it the worst interrogation he’s seen in 35 years, labeling it ‘psychological torture’. A judge agreed, suppressing her statement [PDF]. In that opinion:

When the judge, Janet Kenton-Walker, threw out Truong’s statements to police, she wrote that Truong “was a frightened, meek, emotionally compromised teenager who never understood the implications of her statements [to police].”

With no other evidence, the prosecutor had to drop the charges. But that didn’t stop him or the police chief from keeping their blinders on and backing their own:

Silence as guilt and the silent death of the Fifth Amendment

Consider the following scenario: you’re walking down the street to your favorite microbrewery when a police officer stops you. “Excuse me”, she says. “Do you live around here?” “Yes, yes I do.” “Have you heard seen any strange people hanging around here?” she follows up. “No, not really.” Maybe you have your hands in your pocket; maybe you’re wearing a hoodie; maybe you’re a minority. “Did you break into that apartment there and steal a TV?” she asks, accusingly.

Now, maybe you’re a smart person, or maybe you’ve read this blog or many like it, or maybe you’ve had a brush or two with the justice system before and something somewhere in the recesses of your brain says to you “Don’t answer that! You don’t have to say anything! Walk away!”.

It’s been drilled into you: “You have the right to remain silent. Anything you say can and will be used against you”. It’s a phrase that’s spawned an empire and will keep Dick Wolf’s family from having to work for about two centuries.

So you remain silent. You walk away. She doesn’t like that. She arrests you. You go to trial because you’re innocent. And then the prosecutor asks the officer about that incident. She says you went silent all of a sudden when asked the incriminating question. Maybe she says you shifted your feet, or averted your gaze. Then the prosecutor argues to the jury – the 6 people that will decide whether you keep your liberty or lose it – that only guilty people avoid answering incriminating questions.

If you have nothing to hide, you won’t hide anything.

It’s pretty clear that post-arrest silence cannot be commented on – because really, why even have the right if you’re going to allow that, but yesterday, the Supreme Court of the United States ruled that [PDF] pre-arrest silence can be equated to guilt.

That means, if you’re questioned by a police officer, before being arrested, and you refuse to answer a question, that silence is proof that you’re guilty.

Because, see, it’s not that you don’t have a right to be silent – we don’t know that for sure – but you have to explicitly invoke that right. Meaning you have to say it out loud.

“Sorry officer, but I refuse to answer your question.”

You know what I call that? A technicality. A technicality that has now erased a whole lot more of what was written into the Fifth Amendment for your protection.

So why this line? Isn’t the “Miranda” warning prophylactic, as we were just told? Isn’t that merely an “advisement” of an already existing right?

So do I have the privilege against self-incrimination or not? Does it matter if I’m arrested or not? Should it? I’m either incriminating myself or I’m not. Does my custodial status matter?

Orin Kerr, writing at Volokh, asks two questions:

Finally, I have two major questions about how Salinas is supposed to work in practice. The first question is obvious: How clear an invocation of the Fifth Amendment right does it need to be?

Second, and perhaps more interestingly, it’s unclear to me what is supposed to happen when a suspect outside of custody clearly asserts his Fifth Amendment privilege.

You really should read his entire post – and this one by fellow blawger bmaz, and this one at Cato and this one by Bobby G. F. – but I can answer that second one easily: what’s supposed to happen is that law enforcement respects the existence and invocation of those rights and stops questioning.

But that’s not going to happen. What’s going to happen is that they’re not going to advise anyone of these rights. They’re going to “manufacture” scenarios so as to elicit silences and then use those silences to form the basis for probable cause to arrest people. Can’t you just imagine that officer who says that “based on his training and experience”, “innocent people don’t make furtive gestures” and since you did and then “stared silently, with a guilty expression, at the floor”, there is probable cause to believe that you are, in fact, guilty?

I don’t trust them to not abuse this to arrest individuals they don’t have much else on, in an effort to get them into a custodial setting in a police department to further “question” them.

If silence is guilt, then is that enough for probable cause?

When a silence is as good as an admission, does it really matter how you question someone or what you ask them?

The State has already argued that it should have the authority to detain – and that’s a legal term meaning you’re not free to go – anyone on the street for no reason whatsoever. Now they can ask you questions and if you silently walk away, they get to claim you’re guilty because of that?

Do you feel the grip tightening? Do you feel trapped yet?

Perhaps it is easy for you to say – as it is for the august Justices of the Supreme Court – that only a guilty person would refuse to answer incriminating questions or speak up about their rights. But have you ever witnessed an “interrogation”? There’s a reason why false confessions is a growing area of social science study. And what of those with limited mental abilities, or language barriers?

The Constitution is not dependent upon your level of confidence or your proficiency in English. It exists, as it always has, as a document that has executed. It’s rights have been conferred and now we’re giving the exercise of those rights back to the control of the constabulary.

When those with power decide who gets what protection, eventually, no one gets any.

This is what blind deference to establishment in the name of safety has wrought.

But don’t keep silent about it; I might think you’re guilty.


The Cost of Tsarnaev: the inexorable march toward totalitarianism

I'm just a man with a bag. Blog? Blag?

I’m just a man with a bag. Blog? Blag?


No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, […]; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; […].

Fifth Amendment to the Constitution of the United States; and add to it:

The circumstances surrounding in-custody interrogation can operate very quickly to overbear the will of one merely made aware of his privilege by his interrogators. Therefore, the right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege under the system we delineate today. Our aim is to assure that the individual’s right to choose between silence and speech remains unfettered throughout the interrogation process.

If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked. If the individual states that he wants an attorney, the interrogation must cease until an attorney is present.

Miranda v. Arizona, while leads to:

We now hold that when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.

Edwards v. Arizona (why is it always Arizona?) and explain how we come to:

Tsarnaev had been responding to the interagency High Value Detainee Interrogation Group, including admitting his role in the bombing, authorities said. A senior congressional aide said Tsarnaev had asked several times for a lawyer, but that request was ignored since he was being questioned under the public safety exemption to the Miranda rule.

L.A. Times, 4/25/13.

Tsarnaev, a citizen of These United States, “asked” for a lawyer. His lawyer. His right to a lawyer under the Fifth Amendment to the Constitution of the United States of America as explained by Miranda v. Arizona and Edwards v. Arizona. Your right to a lawyer. My right to a lawyer. A right. Not a request, not a variance, not an indulgence. A Right. Fundamental Right in the Pursuit of Life, Liberty and Justice and the American Dream. An inimical right. A right that cannot be taken away without amending the Constitution by approval from 75% of these united States.

And yet. And yet. That Right was ignored. Because we don’t like the guy asserting the right. Good thing we’re all in the law’s good graces. Good thing we’ve never done anything the law didn’t like.

The putative explanation – the “public safety exemption (note how it’s no longer an exception, but an exemption) to the Miranda rule”, which as has been covered here there and everywhere, is not exactly applicable.

But even if it were applicable, as explained here, there and everywhere, it is an exception to telling someone of their rights. It cannot make that right disappear. The Quarles exception says “we don’t have to tell you of your rights”, but those rights still exist. As far as I know, there’s no 48 hour exception to the existence of the Constitution. But I’ve been wrong before.

They exist because they are there. They are in the Constitution and the the last time I checked the Constitution couldn’t be amended by Executive Fiat. And just because Eric Holder says they can be, doesn’t make it true.

The outrage emanating from every corner of this great nation should be deafening. We should be pounding down the doors of our elected representatives, demanding that they pledge never to so abuse our rights again. Because if we don’t today, tomorrow they’ll take away more. If today, it’s okay to pretend like my right to counsel doesn’t exist, then maybe tomorrow my right to free speech doesn’t exist. Maybe tomorrow the government will have license to spy on me wherever I go, without my permission; reading my text messages and my e-mails because terrorism. Maybe tomorrow a high profile, well-respected and intelligent Federal Circuit Court of Appeals judge will suggest that we give up a little more privacy for perhaps a little more security. Maybe. Oh wait. That’s not tomorrow. That’s today:

I am not suggesting that privacy laws be repealed. I don’t think that they do much harm, and they do some good, as just indicated. But I don’t think they serve the public interest as well as civil libertarians contend, and so I don’t think that such laws confer social benefits comparable to those of methods of surveillance that are effective against criminal and especially terrorist assaults.

More than effective: indispensable. How much more havoc might the two Boston Marathon bombers have wreaked had they remained unidentified for weeks? The critics of surveillance cameras invoke the specter of the telescreen, a two-way television that thus operates as a surveillance camera, which figures in George Orwell’s great novel “Nineteen Eighty-Four.”

But the critics miss two important distinctions. The first is that the telescreen is inside people’s homes — in every room, and monitored by state security personnel (“Big Brother is watching you”). The second distinction is that the nation in Orwell’s novel — “Airstrip One” (actually England) — is a Soviet-style totalitarian dictatorship. (Coincidentally, England today apparently has more surveillance cameras than any other nation, some 4 million.)

Our government is not totalitarian, and surveillance cameras, when indoors (in retail stores for example), are generally invited and controlled by the owner of the premises. The surveillance cameras installed by the government are, by and large, in public areas, mainly streets, where privacy is anyway limited by the fact that one is visible and audible to other people.

I will politely decline Judge Richard Posner’s invitation to build a Panopticon. For a man purportedly so intelligent, Judge Posner’s arguments are presented as so naive and optimistic and thus terribly dangerous. Remember, Oceania has always been at war with Eastasia. Posner, who is not to be confused with – and I was hoping more intelligent than – Eric Posner, is a famed judge who has taken to embedding pictures into his judicial opinions. But, via Glenn Greenwald, I’d like to introduce him to Thomas Paine:

“He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself.”

And of course, John Adams in his infamous defense of the British soldiers. We must be extra vigilant in times like, in the face of gentle nudges in the opposite direction by learned people like Judge Richard Posner (or even the barbaric ham fisted grunts of the ilk of Rep. Louie Gohmert).

I’ll let Greenwald close:

This is not a platitude they were invoking but an undeniable historical truth. Governments know that their best opportunity to institutionalize rights violations is when they can most easily manipulate the public into acquiescing to them by stoking public emotions of contempt against the individual target. For the reasons Paine and Adams explained, it is exactly in such cases – when public rage finds its most intense expression – when it is necessary to be most vigilant in defense of those rights.

We have already seen the cost of Quarles. What will be the cost of Tsarnaev?


Perhaps intelligence committee is a misnomer

The Constitution of The United States of America is a self-executing document. It does not need permission to grant you your rights, nor does it require a magical incantation to appear and shield you with its protections, as if it were a concoction of a fantasy universe created by a now-very-wealthy female author from England.

But people – many people – with purported intelligence and advanced degrees and those who are presumed to have a basic understanding of these simple facts continue, yet again, to exhibit why we are electing a Congress of fools.

Lawmakers in our nation’s capital – albeit mostly ones with an R next to their name – have made an abrupt about face when it comes to the inviolability of the Constitutional guarantees and have now subjected the rights to a matter of convenience.

House Intelligence Committee Chairman Mike Rogers (R., Mich.) said in an interview Thursday. “We have a long-standing tradition that the judiciary does not interfere with investigations. This sets a very dangerous precedent.”

The “this” that he is referring to, is the story that a Magistrate Judge, on Monday, advised Dzhokhar Tsarnaev of his Privilege Against Self-Incrimination at his arraignment [PDF]. We will get to Mike Rogers, who went on to make even more dangerous comments, in a minute. But first some background.

Apparently, the entire Federal Law Enforcement PolitBuro was “surprised” when a “judge and a US attorney” entered the interrogation room. By then, 16 hours had passed, and any semblance of legitimacy for the use of the “public safety exception” in Quarles. The danger of their “surprise” is that law enforcement expected to be able to “interrogate” Tsarnaev indefinitely/longer/for however long they wanted. Because the Constitution explicitly states that these Rightf are Not Enforceable Until At Leaft 48 Hourf Have Paffed And Thou Art Not A Muflim Terrorift. Wait, no it doesn’t? As my buddy Scott Greenfield writes (linked above):

If this is about the public safety exception, than the government has taken a quantum leap into the temporal abyss. But it’s not clear that this has anything to do with the public safety exception, as it’s hard to imagine anyone arguing with a straight face that they needed five hours, ten, 16, more, to find out whether this 19 year old kid, this kid who had been shot, this kid who (for all he knew) was about to disappear in some black hole the government reserves for terrorists, knew anything about another imminent attack.

Indeed one need only look to this compilation of the changing information of the dangerousness of the two Tsarnaevs to realize that law enforcement’s state goal of “public safety’ was nothing more than an excuse for extraction of information from a U.S. citizen in an extra-judicial manner.

But Rep. Rogers, a former FBI agent, apparently has no such concerns because he’s white not a Muslim.

“What I find shocking is that the judiciary proactively inserted itself into this circumstance and the Justice Department so readily acquiesced to the circumstance,” he said. “The court doing this proactively, they may have jeopardized our ability to get public-safety information.”

A sitting United States Congressman has just stated that the judiciary should not interfere with the administration of law and our rights and that determination of those rights depends entirely on the goodwill of law enforcement agents.

If this were the McCarthy era, or 1984, and I had to give up people I suspected as Communist sympathizers, the first name out of my mouth would be Rep. Mike Rogers of Michigan.

It gets worse.

The revelation about the judge’s role came late Wednesday at a briefing before the House Intelligence Committee. One lawmaker in the meeting asked FBI Deputy Director Sean Joyce why the FBI didn’t raise objections, according to another U.S. official. Mr. Joyce said in essence it wasn’t the FBI’s role to object to such a determination, the official said.

It came as a surprise to the nation’s lawmakers that it was not law enforcement’s role to intercede in the judiciary doing its job. In other words, something as basic and simple as the separation of powers, the administration of justice and due process elude these people who sit on the “Intelligence Committee”.

Let me repeat: the Constitution is self-executing. The rights exist, whether you like them or not, whether you say the magic words or not. The rights enumerated therein do not require the grace and goodwill of lawmakers like Mike Rogers of Michigan to “activate”. Do you want your Constitutional rights to be subject to the permission of Mike Rogers of Michigan?

Let Jon Stewart take it away:

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