Category Archives: Criminal Defense

What Are the Magic Words?

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Over at Simple Justice, Scott Greenfield is lamenting the fact that courts are requiring criminal suspects to leap ever higher obstacles to invoke their rights when being questioned by police.

Roland didn’t invoke when he said, “I ain’t signing shit without my attorney”?

To successfully invoke the right to counsel, the suspect’s desire to have an attorney present during his or her custodial interrogation must be sufficiently clear so that a reasonable police officer would understand that the suspect is invoking his or her right to have an attorney present during the interrogation.

See what they did there? The invocation must be “sufficiently clear so that a reasonable police officer would understand.” As bars go, it doesn’t get much lower.

Deputy Devost never questioned Defendant. Based on the circumstances here, a reasonable police officer would not have understood Defendant’s statement refusing to sign the consent to search form to be an invocation of his Fifth Amendment right to counsel.

In other words, the “without my attorney” only referred to his signing the consent form, not the refusal to subject himself to custodial interrogation. After all, didn’t Roland specifically say “I ain’t signing shit,” not “I want my attorney”? What more could you possibly expect of a reasonable police officer? They’re not mind readers, you know.

Invoking your rights now requires you to use certain magic words that a reasonable police officer would understand to be an invocation of rights. Or rather, you’re required to use magic words that a court would rule that a reasonable police officer would understand to be an invocation of rights. It’s kind of weird that the burden falls on the defendant to know what a reasonable police officer would understand. The cops are the ones who are supposed to be trained professionals, so wouldn’t you think the burden should fall on them to recognize when a reasonable citizen would believe they are invoking their rights?

In the comments, someone going by the moniker JAV sarcastically asks:

If I printed the statement on cards and handed it out to an officer, would that work? The communication is non-verbal, but is more permanent. How big would the type have to be? Will 12 point type work, or should I go with 20 in case the officer needs glasses to read?

Funny you should ask, JAV, because here in these parts the Cook County Public Defender’s Office has a handy-dandy card you can download and print out which explains how you should respond to police questioning:

Cook County Response to Police Questioning

Oh crap. That’s a bit concerning. The current Cook County Public Defender is actually Amy Campanelli. Edwin Burnette hasn’t been the Public Defender since 2009. And checking the metadata on the PDF file, it looks like the card was created back in 2004, so…it’s possible some of those magic words aren’t as powerful as they used to be.

It’s probably just as well, since it’s only a matter of time until some judge rules that “A reasonable police officer could not be expected to correctly guess that the Defendant handed him the card as a response to questioning.”

The Bronx Defenders Get Some “Corrective Action”

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A resolution of sorts has arrived at the Bronx Defenders, with lawyers Kumar Rao and Ryan Napoli both resigning from the firm as a consequence of the controversy over their involvement in the “Hands Up” rap video. News reports say that Executive Director Robin Steinberg has been suspended for 60 days without pay, and that Steinberg and her organization will be under increased scrutiny in the future.

Offhand, this sounded about right. Not in the sense of being just or fair — the complaints about Steinberg in particular seem overblown — but in the sense that it sounds like enough to placate the wolves and allow Mayor Bill de Blasio to claim he did something about the problem.

News reports also mentioned some other changes, and the Mayor’s Office of Criminal Justice (MOCJ) has now sent out a letter explaining the corrective actions, which includes additional review and correction steps. I don’t know enough about New York bureaucracy and politics to understand what it really means, but Scott Greenfield does, and his criticism is withering.

Regarding the hiring of Jason Lilien, former Bureau Chief of the New York State Attorney General’s Charities Bureau,  to advise the Bronx Defenders board on how to address the problems identified by the DOI’s findings, Scott remarks,

Perfect, because the funding for Bronx Defenders will be far better spent on paying for this nonsense than representing the indigent.  After all, everybody knows how indigent defense is rolling in so much dough they have oodles of money to squander on paying non-productive former state functionaries.

And then, they now have a former Attorney General bureau chief telling an indigent defense organization how to function.  Perhaps it didn’t dawn on the mayor’s office, but the attorney general’s office is on the other side of the criminal justice function, the side that wants to see every client of Bronx Defenders convicted.

The MOCJ also wants the city’s Corporate Counsel to create a training program to help the Bronx Defenders “ensure that its attorneys are zealously representing the interests of their clients and observing their responsibilities as officers of the court,” to which Scott responds,

So New York City’s Corporation Counsel, whose job it is to defend police for wrongful conduct, will now have their finger in the training of public defenders to “ensure” they are zealously representing their clients?

Let me just remind everyone that the “Hands Up” lyrics are about the community anger over the fact that police seem to face no consequences for killing young black men. Now the organization that helps ensure they face no consequences has been given influence over the Bronx Defenders.

The one thing that has never been in doubt was that Bronx Defenders did its job well.  There is, on the other hand, some serious doubt about the efficacy of Corp Counsel’s office, it being the place where third stringers get jobs after they’ve been turned away by the two US Attorney’s offices, five city district attorney’s offices, and the Special Narcotics prosecutor.

The notion that anyone at Corp Counsel should have any part of their anatomy, whether a finger or worse, involved in what Bronx Defenders do is ridiculous.  If anything, Robin Steinberg ought to teach Corp Counsel lawyers how to do their job, though she wouldn’t because they are the adversaries in the system.

Scott’s not kidding. The Bronx Defenders have a training program in criminal defense, and they provide training in indigent defense to other organizations.

As Scott summarizes the changes, it’s pretty typical government theater with a dose of cronyism:

All of this over a momentary appearance in a music video?  Of course not. The video was trivial, though the punishment, that skims money out of indigent defense so it can be used in the Full Employment For Former Government Functionaries Act, will directly harm the poor in the Bronx.

This is about the mayor appeasing the cops, at the expense of Bronx Defenders, and more importantly, the defendants in the Bronx courts who have long suffered mightily at the hands of cops who target their neighborhoods, their youth of color.

This all seems like an awful lot of trouble over a few lawyers who opened the office on a Sunday so they could be in a music video. Hopefully, the Bronx Defenders won’t have to waste too much more time and budget dealing with it.

A Very Good Point About the “Hands Up” Controversy From Radley Balko

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In his article about the Bronx Defenders’ involvement with the “Hands Up” rap video, Radley Balko makes explicit something I had in the back of my mind when I wrote my post, but that I couldn’t quite articulate:

In the Bronx Defenders, we have group that knows how to work the system. It has irreplaceable institutional knowledge of the city’s bureaucracy, its courts and its social welfare system. Its lawyers put that knowledge to work to better the lives of poor people. For the sake of argument, let’s stipulate that the video above really does call for violence against cops. And let’s stipulate that the attorneys who appeared in it knew as much ahead of time. Terminating the city’s contract with the Bronx Defenders would placate angry law enforcement groups and their supporters. But who would it punish? The Bronx Defenders staff are by all accounts talented attorneys. They’ll find jobs elsewhere. The people who will be punished are their indigent clients — both present day and in the future. Because two attorneys appeared in a rap video, the poor in the Bronx will be robbed of one of their most powerful and effective advocates. That’s some pretty severe misplaced accountability.

In a nutshell, that’s why people should be angry about what’s happening to the Bronx Defenders.

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