UNDERDOG - JON KATZ, MARYLAND & VIRGINIA Criminal Defense Lawyer

 Bill of Rights. (From the public domain.) 

Earlier this month, the Fourth Circuit affirmed summary judgment for the defendants in a libel case against a radio announcer (and his company) who had brusquely uncomplimentary words about the company's actions in Iraq while on contract at Abu Ghraib for such actions as conducting interrogations on behalf of the United States government.  Caci Premier Tech., Inc. v. Rhodes, 2008 U.S. App. LEXIS 16576 (4th Cir., Aug. 5, 2008).

In affirming summary judgment, the Fourth Circuit said: "To survive summary judgment, CACI must have forecast clear and convincing evidence that Rhodes made the statement with a high degree of subjective awareness of its probable falsity. In light of the evidence suggesting CACI's involvement in other abuses at Abu Ghraib and the credible sources identifying a contractor as the perpetrator of the child rape, the record does not support a finding, by clear and convincing evidence, that Rhodes levied the accusation recklessly. It is the absence of sufficient evidence of Rhodes's state of mind, and not any testament to the actual veracity or justifiability of her statement, that makes summary judgment appropriate here."  Jon Katz.

 Bill of Rights. (From the public domain.) 

Many of my clients complain that the police never read them their rights. I wish the police always had that obligation when questioning a person, but that is not the situation. Generally, the police must advise a suspect of his or her Miranda rights if the suspect is in custody; if not, the failure to so advise is grounds for suppressing the defendant's statements to the police.

Following are a few key court opinions that address when the police do and do not need to advise suspects of their Miranda rights, and how those rights need to be asserted  

- Once Miranda rights are invoked, they remain invoked until the in-custody suspect initiates communication. Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880 (1981). This is even the situation when the suspect is a convict who demands an attorney's presence during questioning, the case goes cold, and police return to question the suspect in the same prison system from which s/he has never been released. Shatzer v. Maryland, __ Md. _ (Aug. 26, 2008).

- The trial judge in the Lee Boyd Malvo sniper prosecution initiated in Fairfax County, Virginia, ruled that the Sixth Amendment right to counsel is offense-specific, and cannot be invoked by one's attorney for future criminal charges that have not yet been filed. For that reason alone, said Virginia trial judge ruled that Mr. Malvo's Miranda rights in Virginia state court could not be asserted by his Maryland federal court-appointed lawyers. As the newspapers confirmed, Malvo wagged his tongue so much that he guaranteed himself the conviction and life without parole sentence that he received. Commonwealth of Virginia v. Malvo, 2003 Va. Cir. LEXIS 188, 63 Va. Cir. 22 (2003).

- Miranda rights need not be automatically given to those present in a house being searched pursuant to a warrant. The Ninth Circuit recently said that "several factors are relevant to whether the circumstances of [the defendant's] interrogation effected a police dominated atmosphere: (1) the number of law enforcement personnel and whether they were armed; (2) whether the suspect was at any point restrained, either by physical force or by threats; (3) whether the suspect was isolated from others; and (4) whether the suspect was informed that he was free to leave or terminate the interview, and the context in which any such statements were made." U.S. v. Craighead, __ F.3d _ (9th Cir. Aug. 21, 2008).

Craighead further observed: "If a reasonable person is interrogated inside his own home and is told he is 'free o leave,' where will he go? The library? The police station? He is already in the most constitutionally protected place on earth. An interrogation conducted within the suspect’s home is not per se custodial. See Beckwith v. United States, 425 U.S. 341, 342-43, 347 (1976). On the contrary, courts have generally been much less likely to find that an interrogation in the suspect’s home was custodial in nature. United States v. Ritchie, 35 F.3d 1477, 1485 (10th Cir. 1994); 2 Wayne R. LaFave, Criminal Procedure § 6.6(e) (3d ed. 2007)."  . U.S. v. Craighead, __ F.3d _. Thanks to Scott Greenfield for discussing this Craighead case.

- Unless a state's constitution is more protective than the federal Constitution, a police officer's questioning after a traffic violation stop generally does not, at the early stages, trigger a need to give Miranda warnings, because the stop and initial questioning, by themselves, do not put the suspect in custody that would require the Miranda  warnings. Berkemer v. McCarty, 468 U.S. 420, 104 S. Ct. 3138 (1984); McAvoy v. State, 314 Md. 509, 551 A.2d 875 (1989).

What to do with the many times courts do not require Miranda rights? For starters, how about if each of us puts slogans on our cars, t-shirts and front doors proclaiming "Say no to police questioning and police searches." No means no.

 Bill of Rights. (From the public domain.) 

Today's blogpost follows up on yesterday's entry insisting on protecting demonstrators' rights at the Democratic and Republican presidential conventions. Here are some useful links for assessing and responding to the protest issue in Denver:

- Added to my blogroll is this admittedly biased blog devoted to coverage of demonstrations and the police at the major party presidential conventions. Thanks to TalkLeft for bringing it to my attention.

- Here is a gruesome place set up for police to process arrested demonstrators. The ACLU blog discusses the detention center here.

- This YouTube page claims to show dozens of clips of recent demonstration activity and police response in Denver.

- Police public relations Groupthink gaffes often comes when they arrest reporters covering the action. Thanks to TalkLeft for covering this story.

- See Wolf Blitzer editorialize in favor of strong security while saying little to nothing about demonstrators' First Amendment and criminal defense rights, offset by his colleagues somewhat counterbalancing Blitzer, and including ominous footage from the 1968 Chicago Democratic Convention. Did 1968 failed Democratic presidential candidate Hubert Humphrey lift even a finger or a word to stop the police abuse inside and outside the Chicago convention site? If not, would he have reversed his narrow loss to Nixon had he stood up firmly, vocally, and effectively against the police abuse, thus perhaps obtaining more support from those who favored Robert Kennedy and Eugene McCarthy for president? Then again, the Vietnam War was then raging, which presented a huge challenge for him to obtain more than grudging support from strongly antiwar Democrats, while he served as Vice President under Johnson who kept the Big bloody Muddy going. Jon Katz

ADDENDUM: Scott Greenfield weighed in on the protestor matter on August 28.

 Bill of Rights. (From the public domain.) 

What should a criminal defense lawyer do when his or her client is caught with a bunch of drugs, unlawful weapons, and other contraband, but the prosecutor only files criminal charges on the drugs? On the one hand, resolving the drug case might make the other potential charges go away by keeping attention away from the other possible charges. On the other hand, the defendant might become the victim of successive indictments. A crystal ball would come in handy here.

A prosecutor is not automatically required by the Fifth Amendment's double jeopardy clause to indict all at once for crimes discovered on the same date against the same defendant arising from the same operative facts. Maryland's highest court made this clear today in reversing a trial judge's dismissal of a felony prosecution where the defendant had already been convicted on a drug charge relating to the same search that turned up the weapons that were later prosecuted in court and which became the subject of the trial court's reversal. Colonel Preston Long v. Maryland, __ Md. _ (Aug. 25, 2008).

This situation underlines the importance for criminal defense lawyers to decide whether to include or exclude uncharged criminal conduct in plea negotiations. On the one hand the uncharged conduct may go out of sight and out of mind if not mentioned. On the other hand, because the uncharged criminal conduct may not go away, the client needs to be involved in the decision whether to stay silent on the uncharged conduct in any guilty plea negotiations. Why, though, would a prosecutor remain silent about uncharged criminal conduct during guilty plea negotiations, as opposed to dangling them in front of the defense lawyer in an effort to try to persuade the defendant to enter a guilty plea?  Jon Katz

ADDENDUM: Guilty plea negotiations are part of the harsh reality of criminal defense. One side of me dislikes guilty pleas very much. However, a criminal defense lawyer is obligated to do as much good and as little harm for a client as possible, always coming from a position of strength. For instance, if I can get a misdemeanor disorderly conduct guilty plea agreement from a client caught redhanded setting a building on fire, that might just be a big defense victory.