04.06.07
Posted in front line stories at 8:03 pm by misstyrios
It’s fairly common for me to see former clients in court, usually because they have picked up new charges or violated their probation. Most are sheepish when they see me, apologetic that they didn’t do what they were supposed to do. Some are angry, convinced (and not always incorrectly) that their probation officer or the police are just out to get them. Some even ask if I can be their lawyer again, or if they can hire me. And that always gives me a nice little fuzzy (though the answer is no, unless I happen to be on duty when they are arraigned and I convince the court officers to put them on my list).
But today, I saw a client in court who was there to set up her system for random drug screens with probation. She was there on schedule, doing everything she was supposed to do. And she looked amazing. It took me a few seconds to register who she was when she called out my name and waved in the hallway. Since I last saw her - when she plead her case out, facing two more months in jail and a long period of probation - she has put on some much-needed weight and lost a huge amount of that horrible premature aging that so ravages women addicted to heroin. Her hair was dyed, her makeup was done, her clothes were neat and clean. And she was just…healthy. I had grown really fond of her over the course of my representation. She was always very well-spoken, very realistic about her case, and completely willing to take all responsibility for what she had done over a year before. And what she did was incredibly stupid, though it was born out of a want to truly do right by the people who had helped her out. But, as heroin is wont to do, her logic about wanting to thank those people got a little twisted, as the result was highly illegal. I was thrilled to see her looking so good and earnestly trying so hard. She seemed almost giddy to see me, smiling and thanking me and introducing me to her father like I was an old favorite teacher or something. It truly brightened an otherwise stressful arraignment day and I hope, with all my heart, that she continues on this same path.
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04.04.07
Posted in confessions at 9:52 pm by misstyrios
This week, the New York Times ran a story highlighting the clash between one recently “released” US attorney’s push to record all interviews/confessions with suspects and the FBI’s adamant refusal to comply. As a general rule, my gut wants to fight against anything that prosecutors rally for. But in this case, my gut would end up on the side of the FBI. And then my gut gets very confused.
Paul K. Charlton was, until recently, a US attorney in Arizona and grew concerned about the fact that individuals suspected of committing crimes that occurred on the state’s numerous Indian reservations were not being recorded, per the FBI’s policy, whereas those that occurred on non-federal land were routinely being recorded. And this was apparently forcing him to plea out cases where a recorded confession could have provided him with a guilty verdict.
“A defendant’s admission regarding his own criminal conduct is often the most single powerful piece of evidence in a case,” he wrote, in explaining the new policy. The F.B.I. agent in charge in Arizona offered some flexibility, approving the uniform taping of interviews with child victims of sexual crimes. But the agency made clear that mandatory taping of all suspects’ statements was a nonstarter.
[…]
They disputed Mr. Charlton’s claim that he lost cases, or was forced to offer plea bargains, because of the failure to tape convictions. Officials also questioned the cost of a broad recording and transcription effort and the likelihood that defendants might decline to offer statements if they knew they were being recorded.
But most disturbingly, the FBI didn’t want jurors seeing their use of law enforcement “techniques”:
“Perfectly lawful and acceptable interviewing techniques do not always come across in recorded fashion to lay persons as proper means of obtaining information from defendants,” said one of the once-secret internal Justice Department communications made public as part of the investigation into the dismissals of the United States attorneys.
As a defense attorney, I don’t really want my client’s calm, coherent, factually accurate confession to be recorded. But I want the reading of (and potential waiver or lack thereof) the Miranda warnings recorded. And I want to know if he was drunk. And I want to know if his “confession” started one way and ended up sounding different due to some “suggestions” by police. And I certainly want to know if the police threatened him, or hit him, or in any other way violated his rights or the law.
In 2004, the Massachusetts Supreme Judicial Court decided a case called Commonwealth v. DiGiambattista, holding that the defense is entitled to a jury instruction that any non-recorded confession/custodial interrogation statement introduced at trial should be viewed with “particular caution.” Defense attorneys hailed the decision as a rare victory, but prosecutors feared it would cause juries to doubt credibly police testimony. But it has proved, according to this week’s Massachusetts Lawyer’s Weekly, just to have “leveled the playing field.”
In fact, Bennett and several other DAs say the taped confessions have proven so beneficial for the prosecution that they’ve spent tens of thousands of dollars equipping police departments with recording equipment.
And while defense lawyers maintain that DiGiambattista can be used to aid their clients’ cases in many ways,…the decision’s legacy may be more about the fairness it has brought to disputes involving what transpired during police interrogations.
“It has made life easier for all concerned,” says John A. Baccari of Wakefield, the defense lawyer who won the DiGiambattista case before the SJC.
Not surprisingly, the now more regularly recorded interviews have revealed that some interviews are conducted properly and without misconduct…and others still ignore basics like honoring the right to an attorney and to remain silent. So it can be really good for defendants (whose credibility doesn’t stand a chance against that of the police) or it can be really bad. On a case-by-case basis, it will certainly vary. But I have to be in favor of anything that makes the police more accountable for their actions.
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04.02.07
Posted in front line stories at 7:12 pm by misstyrios
Please - if you are ever supposed to appear in court, just go. On time. Show the hell up. Because no matter how scared you may be of what is going to happen, it will only get worse if you don’t show up. There is absolutely nothing I hate more than defaults. If I am on arraignment duty and I see that someone’s record has defaults on it, I know that my bail argument will be even more futile than usual. If I have a good deal worked out for my client and I don’t see him…don’t see him…don’t see him, I know that he will be defaulted, the deal will go out the window, and he will likely get picked up on an arrest warrant and face an uphill battle in custody rather than out of it.
I had a case scheduled for discovery compliance today. My client is 18-years-old with absolutely nothing else on his record, not even a juvenile record. I spent several precious morning moments talking to the prosecutor about what was going on in the case and felt confident that I could either get the case resolved incredibly favorably for this client, or put it on for trial without feeling like I was going to embarrass myself. But he never showed up. I spent the next 2.5 hours searching the faces in the audience, obsessively checking the hallways, constantly calling my office to check messages, and even calling him on my (*67 protected) personal cell phone. All to no avail. He wasn’t coming. And when the case was called, I had to say that I had not yet seen my client. The DA asked for a default warrant and the judge granted it. So now this 18-year-old could be in his living room tonight and the cops can come bust him and he will be taken into custody for the first time in his life. Or maybe he will be driving a little too fast next week and he will be arrested once the cops realize his license has been suspended because of a default warrant. Or maybe there will be a rash of crime and the police will be too busy to worry about default warrants, in which case, he may slip through the cracks for another month. But he won’t ever just escape it and he’ll face a much harsher reality once it catches up with him.
Our office has been getting a crush of calls lately from social workers and legal aid lawyers around the country, begging for us to please help some destitute and disabled person in California or Oregon or Kansas address a 20-year-old warrant in our county. Why, when these people thought that they had safely fled that charge of receiving stolen property or driving an uninsured motor vehicle so many years ago, are they suddenly desperate to take care of them now? Because now they need Social Security disability payments to live. And Social Security will not dole out benefits to anyone with an open warrant anywhere. They literally have an entire department dedicated to sussing these warrants out just to avoid giving them a couple hundred bucks a month. In 1990, this sort of interconnectedness did not exist between states or the feds or even counties within one state. But technology can be a bitch and no judge where I practice is going to have one iota of sympathy for a sob story unless you show your damn face in court. These people defaulted just like my 18-year-old client did today. Only now, they literally may die because of it.
So please. Go to court.
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