Don’t Talk to Police

posted by Crane-Station

This week I read a disturbing ABA Journal article titled, Cops seek DNA information from Ancestry.com and 23andMe. Police are now engaging in DNA fishing expeditions that reach beyond the law enforcement DNA database, and utilize the likes of DNA information in layperson ancestry databases – to develop various hunches about potential suspects – by searching through the DNA of the suspects’ kinfolks.

According to the article, this is how a man named Micheal Usry became a suspect in a cold-case murder that he did not commit. Apparently, Mr. Usry’s father had placed his DNA into a Mormon ancestry database for personal research. The father was excluded as a match to the DNA preserved from the murder but one thing led to another, and police, connecting dots in a manner consistent with their own version of DNA math, decided that Mr. Usry’s DNA must be kinda similar to his father’s DNA, which must therefore be kinda enough similar to the DNA found at the murder scene in the cold case, for an arrest.

The cops then used a ruse to get the (factually innocent) murder suspect to 1) talk to them at length and 2) provide a DNA sample. They told Mr. Usry that they were investigating a recent hit-and-run in the area, and could he please just help them out a bit by answering some questions? Mr. Usry, having nothing to hide, agreed. In the car ride on the way to the police station, things got weird, and Mr. Usry found himself involved in a conversation about his whereabouts years prior, on the night of the murder.

Eventually, Mr. Usry was cleared of any wrongdoing. Since his consent was obtained under false pretenses, he may have enough of a basis for a lawsuit for all of his trouble, which may have involved ruining his reputation as well as his job security.

This brings me to a point that never gets old and cannot be overstated: Don’t talk to the police. Ever. If you have nothing to hide (or even if you do), don’t talk to the police. The best talk I have ever seen on this subject is by Professor James Duane in the video that follows. If you have not seen it, I recommend that you make time, and share it with others. It is packed with information about how police coerce people into talking, and how potentially devastating this can be, even for folks who have done nothing wrong and “just want to help.”

On a lighter note, “So you got a DUI…”

#Ferguson: Darren Wilson’s prearrest silence may be admissible

Saturday, August 23, 2014

Good afternoon:

BettyKath asked the following question in the comments to yesterday’s post, Grand Jury should indict Darren Wilson because his claim of self-defense is contradicted by autopsy results and all eyewitnesses.

Didn’t the Supreme Court rule that maintaining silence before the Miranda warning, i.e. before being arrested, can be interpreted as a sign of guilt?

This is an excellent question regarding the admissibility of prearrest silence and my answer is the subject of today’s blog.

Yes, prearrest silence can be interpreted as evidence of guilt unless the suspect/defendant specifically invokes his fifth amendment right to remain silent. In Jenkins v. Anderson, 447 U.S. 231 (1980), the defendant did not report the killing to the police until he turned himself in to police two weeks later. He told them that he stabbed the victim to death in self-defense. At trial, the prosecutor cross examined him regarding his failure to report the killing and to claim self-defense when it happened. He also commented on his silence in closing argument claiming that it was evidence of guilt.

The Supreme Court of the United States (SCOTUS) affirmed his conviction rejecting his argument that the comments on his prearrest silence violated his fifth amendment right to remain silent. The Court held that his silence was admissible because a defendant must expressly claim his right to remain silent for it to apply.

See also Salinas v. Texas, 133 S. Ct. 2174 (2013).

Pursuant to Jenkins and Salinas, Wilson’s failure to fill out the incident report (i.e., his silence) will be admissible against him at trial unless he expressly refused to do so citing his fifth amendment right to remain silent.

Apparently, he did not do that because the cover sheet is filled out, but the section where his narrative report should be is blank.

If he orally invoked his right to remain silent when he turned in his blank incident report, his prearrest silence will not be admissible.

In any event, the prosecutor doesn’t have to comment on Wilson’s silence to get an indictment because, as I stated yesterday, he can obtain it by merely calling the eyewitnesses and presenting the autopsy report.

Although Wilson’s prearrest silence will not be admissible at trial, assuming he expressly invoked his right to remain silent, we also have to consider whether his oral statements to others that he shot in self-defense will be admissible.

No, they are not admissible because they constitute inadmissible self-serving hearsay.

That leaves Darren Wilson between a rock and a hard place.

He must testify in order to get his ‘bum-rush’ defense into evidence and a self-defense instruction. However, if he testifies, none of the eyewitnesses saw a ‘bum rush’ and if he tells a different story, he can be confronted with his ‘bum rush’ story.

Not an enviable situation to be in even with $225,000 in donations for his defense.

If you appreciate what we do, please make a donation.

Thank you,

Fred

Michael Dunn’s sentencing must be continued to avoid constitutional error

Tuesday, March 11, 2014

Good morning:

Judge Russell Healey said yesterday that he will announce his decision on Friday, regarding the defense motion to continue Michael Dunn’s sentencing until after the retrial of the murder charge.

For the following reasons, I believe he must grant the motion to avoid constitutional error.

Briefly in review, the jury convicted Dunn of three counts of attempted second-degree murder and one count of shooting into a vehicle. It hung 9-3 in favor of convicting him for shooting and killing 17-year-old Jordan Davis.

Dunn was represented at yesterday’s hearing by his trial counsel, Cory Strolla, who is withdrawing because Dunn is out of money. He will be replaced by a public defender.

He argued that the sentencing must be continued because anything Dunn says at his sentencing can be used against him at the retrial.

The prosecution has objected to the continuance on the ground that Dunn has waived his right to remain silent by testifying at trial.

Although the answer is relatively simple, Judge Healey appears to be struggling a bit with this motion.

Let’s break it down :

The Fifth Amendment states in pertinent part,

No person . . . shall be compelled in any criminal case to be a witness against himself.

First, as long as Dunn remains in legal jeopardy of conviction on the murder charge, he can assert his right to remain silent, even if he has previously testified.

Second, Dunn also has a right to allocution, which means he has a right to be heard before the court imposes the sentence.

Third, if he exercises his right to allocution, he sacrifices his right to remain silent. He cannot be compelled to make that choice and that is the precise problem he faces.

Therefore, Judge Healey should grant the defense motion.

I am surprised that the prosecution has failed to see this issue.

My question for Angela Corey is why build constitutional error into the record at this point? Dunn is not going anywhere.

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This is our 928th post and donations are lagging. We work hard to keep you informed by filling in the blanks between the lines. After 30 years in the trenches, I am familiar with all of the rules and strategies prosecutors and defense counsel utilize. Experience counts and most of my predictions have been accurate.

Adjusting and fine tuning to dial in the white fear and racist corruption frequencies in the Florida courts took some doing, but I am on track now.

If you appreciate what we do, please make a donation.

We cannot pay our bills without your support.

Fred

Dzhokhar Tsarnaev should be Mirandized

Sunday, April 21, 2013

I write today to defend a fellow citizen’s Fifth Amendment right to remain silent during a custodial interrogation and his Sixth Amendment right to consult with counsel and have counsel present during a custodial interrogation. He has not been questioned yet due to his medical condition.

Dzhokhar Tsarnaev is a naturalized United States citizen in custody for his suspected participation in a scheme that detonated two bombs killing 3 people and injuring many more along the Boston Marathon race course on April 15, 2013. He is also a suspect in the murder of a law enforcement officer on the campus at the Massachusetts Institute of Technology after the bombing.

He is not an enemy combatant who attacked United States military personnel on foreign soil.

Dzhokhar Tsarnaev should be advised that he has those rights before law enforcement agents attempt to question him and no interrogation should take place, unless he voluntarily waives those rights and agrees to answer questions. No less is required by the SCOTUS decision in Miranda v. Arizona, 384 US 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

If an interrogation proceeds without the advice of rights and voluntary waiver of those rights required by Miranda, then anything he says should be suppressed and cannot be used against him in a court of law.

He has the right to be charged and prosecuted in the United States criminal justice system, rather than before a military tribunal, and accorded all of the rights that would be accorded to any other defendant charged with a crime.

The United States Department of Justice has announced that he will be prosecuted in the civilian criminal justice system and that is a proper decision.

However, despite an acknowledged lack of any evidence or reason to believe that Tsarnaev is part of a larger plot with plans to commit other terrorist acts, the Justice Department has announced that it intends to interrogate him without Mirandizing him.

This decision is an intentional violation of Miranda that not only violates the suspect’s rights, it potentially jeopardizes the prosecution.

There is no reason ever to sacrifice due process of law and this casecertainly provides no compelling reason to consider making an exception.

For more information, read this informative article by Josh Gerstein at Politico.

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Writing articles every day and maintaining the integrity and safety of this site from people who would like nothing better than to silence us forever is a tough job requiring many hours of work. If you like this site, please consider making a secure donation via Paypal by clicking the yellow donation button in the upper right corner just below the search box.

Thank you,

Fred

Occupy: What To Do If You Are Subpoenaed To Testify Before A Federal Grand Jury

Lawyers, Guns, and Money by Warren Zevon

Author’s Note: I published this at Firedoglake/MyFDL on October 6, 2010 just after people, who had protested at the Republican National Convention in Minneapolis in 2008, were subpoenaed to testify before a federal grand jury in Chicago investigating them to determine if they had provided material support to terrorists and/or a terrorist group.

I am reposting it here a little over a year later because I suspect it may be useful information to some of our readers, especially those in the Occupy Everywhere movement.

I was a criminal defense lawyer for 30 years and a law professor for 3 years. I represented many clients over the years in federal court, so I have a lot of experience representing people subpoenaed to appear before a grand jury.

State grand juries generally work the same way but are significantly less often used aggressively as federal prosecutors typically use them.

Namaste