Arrest

Disappointing News in the Making-a-Murderer saga. (SPOILER ALERTS, but do yourself a favor and binge watch this Netflix docu-series)

In a heavily divided opinion, the 7th Circuit Court of Appeals has affirmed the conviction and thereby approved the abusive interrogation tactics employed against this disabled teen.

A federal appeals court in Chicago narrowly overturned a ruling Friday that could have freed a Wisconsin inmate featured in the “Making a Murderer” series from prison, though one dissenting judge called the case “a profound miscarriage of justice.”

The full 7th U.S. Circuit Court of Appeals reviewed Brendan Dassey’s claims that investigators tricked him into confessing that he took part in raping and killing photographer Teresa Halbach in 2005. Dassey was sentenced to life in prison in 2007 after telling detectives he helped his uncle, Steven Avery, rape and kill Halbach.

The 4-to-3 opinion conceded a ruling wasn’t obvious or easy, but said it came down to whether findings by Wisconsin state courts that Dassey wasn’t coerced into confessing were reasonable.

I’ll be honest; I binge watched this series. If I was a law school professor, I would use the series as the basis for an entire class on criminal defense. I nearly threw my laptop across the room watching the episode wherein the statements are obtained. The police behavior was bad; his defense lawyer was atrocious. Without his “coerced” confessions obtained by investigators (and his lawyer!), there would be no evidence to implicate Brandon.

Here is the statement of his attorneys, Laura Nirider and Steven Drizin:

We are profoundly disappointed by the decision of four judges of the United States Court of Appeals for the Seventh Circuit to reverse two prior decisions and deny relief to Brendan Dassey. Like many around the globe, we share the view of the three judges who wrote, in dissent, that today’s ruling represents a “profound miscarriage of justice.” We intend to continue pursuing relief for Brendan, including through a petition for certiorari to the United States Supreme Court.

Today’s ruling contravenes a fundamental and time-honored position of the United States Supreme Court: interrogation tactics that may not be coercive when applied to adults are coercive when applied to children and the mentally impaired. Indeed, when such tactics are applied to vulnerable populations, the risk of false confession grows intolerably. Unfortunately, this time-worn lesson was ignored today by four judges in the case of Brendan Dassey. We at the Center on Wrongful Convictions of Youth are committed to continuing to fight on behalf of Brendan and others like him to prevent future miscarriages of justice.

The Northeast Innocent Project tweeted:

Another travesty of justice: The 7th Circuit rules against Brendan Dassey. False confessions are a leading cause of wrongful conviction and courts who fail to act in cases like this are failing innocent men and women everywhere.

Dassey’s statement was completely contradicted by any forensics:

 

This matter highlights the danger of exposing juveniles to law enforcement. As I have posted, DO NOT TALK TO POLICE, its is especially true for your children. DO NOT LET YOUR CHILD OR TEEN TALK OR BE QUESTIONED BY POLICE.

In Alabama, Section of 12-15-202 of the Alabama Code enumerates the rights of children in this setting: (a) When a child is taken into custody, the person taking the child into custody shall inform the child of all of the following, in language understandable to the child: (1) The reason that the child is being taken into custody, (2) That the child has the right to communicate with his or her parent, legal guardian, or legal custodian whether or not that person is present. If necessary, reasonable means will be provided for the child to do so, (3) The child has the right to communicate with an attorney. If the child does not have an attorney, one will be appointed for him or her. If the child has an attorney who is not present, reasonable means shall be provided for the child to communicate with the attorney. Before the child is questioned about anything concerning the charge on which the child was taken into custody, the person asking the questions shall inform the child of the rights a second time.

The Alabama Supreme Court held in Ex parte Whisenant, 466 So.2d 1006 (Ala. 1985): “If any one or more of the 12-15-202 warnings are omitted, the
use in evidence of any statement given by the child is constitutionally proscribed.” These rights are sometimes referred to as “Super-Miranda rights.”

In 18 years of practice, I can count on one hand the number of parents who wisely did not let their child speak or be interviewed by law enforcement. However, this past month, one mother refused law enforcement an interview with her teen son; the charges were ultimately dismissed.

(IMPORTANT NOTE: THERE IS NO PARENT-CHILD PRIVILEGE. Anything a child tells a parent can and will be used against them. Therefore a parent could be compelled by court to testify about any statements made by their child to them. Therefore if you get the call, do not talk about the details of the case. Tell your child to remain silent and DEMAND A LAWYER.)

 

 

 

New Interview: “Don’t Talk to the Police! The Fifth Amendment protects both the guilty and the innocent.

Professor Duane is back with a new interview on the Fifth Amendment:









Practically:

His argument, which he’s since expanded into a new book called You Have the Right to Remain Innocent, is that even if you haven’t committed a crime, it’s dangerous to tell the police any information. You might make mistakes when explaining where you were at the time of a crime that the police interpret as lies; the officer talking to you could misremember what you say much later; you may be tricked into saying the wrong things by cops under no obligation to tell you the truth; and your statements to police could, in combination with faulty eyewitness accounts, shoddy “expert” testimony, and sheer bad luck, lead to you being convicted of a serious crime.

He further details the treacherous territory Americans are in with respect to their right to remain silent:

Up until about five years ago, lawyers would give out business cards to their client and say, “Read this to the police,” and it’d say, “At the advice of my attorney I decline to answer on the grounds that it may incriminate me, I’m invoking the Fifth Amendment.” And there wasn’t a lot of soul-searching and agonizing that went into all of this, because as long as the jury never finds out that you took the Fifth, it’s a perfectly sensible solution. But the tide turned three years ago in 2013 with this wretched, abominable decision by the Supreme Court in Salinas v. Texas that changed everything.

In the Salinas case, a young man was interrogated by the police, and when they asked him a bunch of questions that didn’t seem to be very threatening, he took the bait and answered them all. Then all of the sudden, they [asked a question that made it] obvious they wanted information that might expose him to criminal prosecution, and he just got silent. He didn’t say a word. And there’s no doubt that he was exercising his Fifth Amendment privilege, but he didn’t [formally] assert his Fifth Amendment privilege. So the five Republican [appointees] on the Supreme Court said, Because you didn’t tell the police that you were using your Fifth Amendment privilege, your exercise of the privilege, or your decision to remain silent can be used against you as evidence of guilt. Which probably had a dozen Supreme Court justices rolling over in their grave.

The game has changed now that your choice to use the Fifth Amendment privilege can be used against you at trial depending exactly how and where you do it. As I explain in the book, now the problem is, if you’re kind of clumsy about the way you assert the Fifth Amendment, you’re running a lot of different risks.

 

He was my evidence professor and here is the lecture which got it all started:









 

SCOTUS: Bond delays to gather additional evidence to justify the arrest are illegal

As a follow-up to my recent posts on illegal “investigatory holds” and “domestic violence holds”, I recent law review article provides additional support from a federal constitutional perspective to my argument; its entitled: The First 48: Ending the Use of Categorically Unconstitutional Investigative Holds in Violation of County of Riverside v. McLaughlin

The article cites

Under [Riverside v. McLaughlin, 500 U.S. 44, 47 (1991)], if the government does not afford a warrantless arrestee a judicial determination of probable cause (known as a ‘Gerstein hearing’) within the first forty-eight hours of his or her arrest, then the government bears the burden of proving that ‘a bona fide emergency or other extraordinary circumstance’ justified the delay. . . Specifically, the McLaughlin Court identified: ‘[1] delays for the purpose of gathering additional evidence to justify the arrest, [2] a delay motivated by ill will against the arrested individual, or [3] delay for delay’s sake” as “[e]xamples of unreasonable delay[s]” that violate the Fourth Amendment’s protection against unreasonable seizures under all circumstances.

For purposes of Alabama investigative holds, the article cites:

In United States v. Davis, 174 F.3d 941, 944 (8th Cir. 1999)., for example, the Eighth Circuit held that even assuming that probable cause existed to arrest a defendant, a mere two-hour delay in the defendant’s Gerstein hearing was still unreasonable where the sole purpose of the delay was to promote further investigation by law enforcement.

 

 

If you are not free to leave, you are under arrest and entitled to bond out

As I mentioned in the previous post about the legal fiction of “domestic violence holds,” I have had many clients arrested on what law enforcement called an “investigative hold.” This practice is downright unlawful. In such cases, there is no arrest warrant yet. Rule of Criminal Procedure Rule 4.3(a) says on a warrantless arrest:

If a probable cause determination is not made by a judge or magistrate without undue delay, and in no event later that forty-eight (48) hours after arrest, then, unless the offense for which the person was arrested is not a bailable offense, the person shall be released upon execution of an appearance bond
After arrest, a person’s right to bond immediately springs into play. The arrested person must be presented to a judge or magistrate “without undue delay” to determine probable cause for the arrest and establish their constitutional right to bond. Alabama Constitution § 16
That all persons shall, before conviction, be bailable by sufficient sureties, except for capital offenses, when the proof is evident or the presumption great; and that excessive bail shall not in any case be required.
Some law enforcement agencies attempt to side-step these rules and claim the person is not “under arrest.” A person is either free to leave, and if not, they are legally under arrest. “In order to decide if a suspect is ‘in custody,’ the court, looking at the totality of the circumstances, must find that a reasonable person in the accused’s position would believe that he or she is not free to leave.” State v. Jude, 686 So. 2d 528, 533 (Ala. Crim. App. 1996)

 

Alabama Domestic Violence “Cooling Off” Holds are a Legal Fiction

Section 15-13-190, Code of Alabama makes special rules for persons arrested for crimes of domestic violence.

A person arrested for an offense involving domestic violence…may not be admitted to bail until after an appearance before a judge or magistrate within 12 hours of the arrest.

Compare that with the standard rules for bailbonds after arrest. See AL ST RCRP Rule 4.3

A person arrested without a warrant: (i) May be cited by a law enforcement officer to appear either at a specified time and place or at such time and place as he or she shall be subsequently notified of and may be released; or (ii) May be released by a law enforcement officer upon execution of an appearance bond or a secured appearance bond in an amount set according to the schedule contained in Rule 7.2, and directed to appear either at a specified time and place or at such time and place as he or she shall be subsequently notified of; or (iii) Shall be afforded an opportunity to make bail in accordance with Rules 4.3(b)(3) and 4.4.

An urban myth has developed that persons arrested on domestic violence charges cannot be bonded until after 12 hours of arrest. Section 15-13-190 does not say that; it merely eliminates the options for bond found in Rule 4.3(i) and 4.3(ii). Section 15-13-190 modifies the timeliness of presentation to a magistrate to 12 hours after arrest. Under Rule 4.3(a), a person arrested without a warrant must be presented to a magistrate or judge “without undue delay” and not to exceed 48 hours.  Alternatively, under Rule 4.3(b) a person arrested with a warrant or on complaint must be presented to a magistrate or judge “without undue delay” but not to exceed 72 hours.”

Accordingly, if arrested, don’t let them give you the “we-cant-release-you-for-twelve-hours” run around.

The violation of the speedy presentment requirement may be grounds to exclude evidence obtained after the violation (e.g. confessions, consents, admissions.

(However, I have actually obtained decent civil monetary settlements for clients who were detained for “investigation holds” but were not presented to a magistrate or judge “without undue delay.” Local law enforcement held them and would not let them go which means they were legally under arrest. Even if there is no formal arrest, a person is considered seized for Fourth Amendment purposes when, under the circumstances, a reasonable person would not believe himself free to leave. See Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988) Once arrested, the rights to bond and presentation to a magistrate arise. Deprivation of those rights is a unlawful imprisonment and civil rights violation.)

 

Inmate on Prison Rape: “The opposite of compassion is not hatred, It’s indifference.”

Rape in the American Prison

Rape in the American Prison: a grisly article on rape in male penal facilities.

“rape in prison is rarely a sexual act, but one of violence, politics, and an acting out of power roles.” Being raped, or “turned out,” he explained, redefines the male victim “as a ‘female’ in this perverse subculture, and he must assume that role as the ‘property’ of his conqueror or whoever claimed him and arranged his emasculation. He becomes a slave in the fullest sense of the term.”

Read this article and know that in Alabama: 16 years olds can be tried as adults and sentenced to the ALDOC.

Chocolate chip cookies might get you arrested for drug possession

Radley Balko has a running list of all the materials that field tests have mistaken for drugs:

Sage, Chocolate chip cookies, Motor oil, Spearmint, Dr. Bronner’s Magic Soap, Tortilla dough, Deodorant, Billiards chalk, Patchouli, Flour, Eucalyptus, Breath mints, Loose-leaf tea, Jolly Ranchers

Police Don’t Decide Immunity

In scrambling for some way to avoid pre-trial Stand-Your-Ground type immunity hearings, a couple of Alabama prosecutors have relied upon a weak reed:  Ala. Code § 13A-3-23(e). It reads:

A law enforcement agency may use standard procedures for investigating the use of force described in subsection (a), but the agency may not arrest the person for using force unless it determines that there is probable cause that the force used was unlawful.

Prosecutors declare: “See, See: the statute says law enforcement decide whether someone is immune.” But it doesn’t say that.

By vesting a separate screening function to law enforcement, the Legislature in no way removed the judicial function of determining whether a person is immune, as a matter of law, from further criminal prosecution.

Remember that Alabama copied its Stand-your-Ground statute from Florida. Florida’s “Stand-your-Ground” law includes Fla. Stat. Ann. §776.032(2).

A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1), but the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.

Can you see the slight similarity between Florida’s §776.032(2) and Ala. Code § 13A-3-23(e).

But even with the presence of Fla. Stat. Ann. §776.032(2), each and every Florida appellate court, addressing the issue, has established a right to a pre-trial hearing for the accused to establish his eligibility for immunity, separate and in addition to the “law-enforcement” screening function. See Peterson v. State, 983 So.2d 27; State v. Gallo, 76 So.3d 407; Gray v. State, 13 So.3d 114; Fair v. State, 664 S.E.2d 227; Dennis v. State, 51 So.3d 456; Hair v. State, 17 So.3d 804.

Accordingly §13-3-23(e) does not eliminate the accused’s right to a pre-trial hearing concerning his immunity of §13-3-23(d).

(This section actually drew some national notoriety. Remember the hub-bub surround George Zimmerman’s non-arrest. It was initially reported that Sanford police did not arrest Zimmerman due to lack of probable cause under Florida’s “Stand Your Ground” statute. Zimmerman waived his right to a pre-trial Immunity hearing after a fairly lengthy and extensive colloquy.)

ID errors put hundreds in County Jail

According to a LA Times report about one county jail:

Hundreds of people have been wrongly imprisoned inside the Los Angeles County Sheriff’s Department jails in recent years, with some spending weeks behind bars before authorities realized those arrested were mistaken for wanted criminals, a Times investigation has found.

The wrongful incarcerations occurred more than 1,480 times in the last five years. They were the result of a variety of factors, including officials’ overlooking fingerprint evidence and working off incomplete records. . .

The number of mistaken identifications per year has been declining, but the department is still on pace to record nearly 200 wrongful detentions this year. For those who are jailed, the experience can be harrowing.

Mom reflects on the 1st year of her 8 year prison sentence

As reported in the Tulsa World News,

One year ago, on the week of Christmas, the first-time offender was checked into the Eddie Warrior women’s prison – the first holiday away from her four young children.

“I cried and cried just thinking of my kids opening presents on Christmas and I wasn’t there,” she said. “This year, it’s going to be any other day. I try not to keep up with days in here.”

At her mother’s home in Kingfisher, there is a somber tone among her children – ages 2, 4, 5 and 10. . .

“The first eight months were a blur,” Spottedcrow said. “I just cried a lot. It’s like I woke up a couple of months ago.”

Her daily schedule starts with breakfast at 5:30 a.m., followed by her job in the laundry. At 4:30 p.m., she is released and goes to the gym, followed by dinner and then church at 7 p.m.

“You have to try and keep your mind busy,” she said. “It’s easy to get sad, depressed and stuck in your own head in here.”

Prison is no picnic, even at a minimum-security campus like Eddie Warrior, she said.

“I took for granted using the bathroom by myself, what clothes you can wear and being able to pick up and go to the store when you want,” Spottedcrow said. “I hate not being able to use your own shampoo and you are limited to spending $10 a month (in the commissary).”

But it’s her kids taking up most of her thoughts.

“I was there every day taking of care of them before this,” she said. “I did everything from going to football games and PTA.”

While in prison, Spottedcrow has taken parenting classes, finished her GED and participates in a grief/loss recovery program, a behavior course, Alcoholics Anonymous/Narcotics Anonymous and a faith-based program. She is on a waiting list to begin higher education and Career Tech classes.

“The life I was living before, that’s over,” Spottedcrow said. “I’m not playing with my life anymore. I would never chance this again for my children.”

Spottedcrow never denied she smoked pot but said she was never a drug dealer or ever used or sold marijuana in front of her children.

“I got myself in this situation, and I’m not saying I shouldn’t be punished,” she said. “But I think this is a little excessive, especially looking at other cases from my county. And I’m sleeping next to people who have killed people, and they have less time than me. There are days I really can’t believe I’m in prison.”

In prison, she has had three misconducts: one for bartering when she gave an inmate cigarettes, one for having contraband when cookies were found in her locker without a receipt and another for aiding and abetting when she did not tell authorities a woman put bleach in the laundry area.

“I have a big heart,” she said. “When I see someone in need, like for food, I want to help if I can. But you can get a misconduct in here for the littlest things.”

In her classes, she has reflected on her life and changes that need to be made, including in her love life.

When she entered prison, she was still in a relationship with her common-law husband, who is the father of three of her children. Now, that relationship is essentially over, and he has not been supporting or caring for the children either, she said.

“The reality is – out of sight, out of mind,” she said. “We were kids having kids. I’m taking it day by day right now. But when I get out of here, I’m only worrying about me and my kids. They are my first concern.”

And there may be some concerns to work through with her children.

At the Kingfisher home, it’s been a tough existence and one that is relying on the generosity and help of others.

Spottedcrow’s oldest child has been acting out since her incarceration.

“He’s in trouble for stealing, and his mouth is real swift and sharp,” Starr said. “He blames me a lot for what happened to his mother. The girls want to cry a lot. They don’t like to listen to me, saying, ‘You’re not my mother.’ We struggle every day.”

Financially, the situation has been devastating at times.

Starr earns $8 an hour at a truck stop and doesn’t have a driver’s license because of a conviction. Spottedcrow’s oldest child pitches in with a few dollars from odd jobs he does at their church.

Starr’s utility and food costs have shot up since she took in the four children, and she owes $8,000 in court fines. As part of her sentence, she must take two drug tests a year, costing $150 each.

“But there are other little things, like I couldn’t buy their school pictures this year,” Starr said. “At school, kids can buy popcorn for $1 on Fridays, and sometimes mine are the only ones not getting popcorn.”