The Rap Sheet: Nolo's Criminal Law Blog

As you probably know, unless police officers issue "Miranda Warnings" to suspects before interrogating them, whatever suspects say is generally inadmissible in evidence against them at trial.  One of the warnings is that "you have the right to have an attorney present when we question you."

In the case of Florida v. Powell (2010), police officers told Powell that "you have the right to talk to a lawyer before answering any of our questions" and that "you can use this right anytime you want to during the interview."  7 of the 9 U.S. Supreme Court justices upheld Powell's conviction, ruling that the warning adequately conveyed the message that Powell was entitled to the presence of a lawyer during questioning.  Two justices (Stevens and Breyer) disagreed, arguing that the officers' words didn't clearly tell Powell that he had a right to have an attorney present during (and not just before) questioning.  

The dissenters seem overly picky.  But the fact that the issue made it all the way to the Supreme Court is a reminder that language can be ambiguous.  In a country filled with native speakers ffrom non-English speaking countries, courts should make sure that police officers explain rights clearly.

In 1963, the US Supreme Court ruled in the case of Brady v. Maryland that prosecutors have an obligation to turn over potentially exculpatory information to people charged with crimes.  When prosecutors fail to do so, either intentionally or through carelessness, the frequent result is the reversal of a conviction that may have been obtained at great financial and emotional cost.

The latest example may involve Michael Anderson.  In a notorious case, Anderson was convicted of killing five people in New Orleans in 2006 and sentenced to die. Torrie Williams was the key prosecution eyewitness.

It turns out that the New Orleans DA'a office had in its files a copy of a videotaped interview that prosecutors conducted with Ms. Williams prior to Anderson's trial.  The version of events that Ms. Williams provided in the interview was markedly different from the version that she testified to at trial.  Clearly, had the DA's office complied with its legal and ethical obligations and turned the videotape over to Anderson's lawyers, they could have used it to cast doubt on Ms. Williams' trial testimony. 

Anderson is trying to set aside his conviction based on the prosecutor's failure to disclose the existence of the videotape, and court hearings are underway.  Of course, the New Orleans DA's office is trying to protect its ass by claiming that the tape wouldn't have been all that helpful.  Do you think any of these prosecutors would make this same argument if their lieves were at stake?

If Anderson's conviction is set aside, he'll have the shoddy New Orleans prosecutors to thank.  Unfortunately, prosecutors are immune from suit if they fail to properly carry out their public duties. If they at least had to apologize to Louisiana taxpayers for wasting their money and to the families of the five victims for forcing them to relive the tragic events, maybe more prosecutors would follow rather than try to evade the rules of trial.   

Umar Farouk Abdulmuttalah is the Nigerian airline passenger who is charged with trying to blow up his Detroit-bound airliner on Christmas Day, 2010.  It was recently reported that the government officials who arrested Abdulmuttalah elicited lots of information from him before advising him of his "Miranda rights," including the right to remain silent and the right to talk to an attorney. 

The federal government presently plans to try Abdulmuttalah as a criminal rather than as a terrorist.  If so, the statements made by Abdulmutallah before he was given Miranda warnings may not be admissible in evidence against him at trial.  However, the delay in giving warnings will have little or no impact on the government's case against Abdulmutallah.  Apart from anything he might have told the investigators, the government has plenty of other evidence that it can offer to prove his guilt. 

Thus, the delay in giving Miranda warnings may affect the admissibility of Abdulmutallah's statements, but the delay in no way jeopardizes the government's ability to convict him of an act of terrorism..

Rodney Alcala has twice been convicted of killing 12 year old Robin Samsoe in Huntington Beach (CA) in 1979.  Each time he was sentenced to death.  But both convictions were reversed, so here in Jan. 2010 Alcala is again on trial for killing Robin Samsoe.

Robin has plenty of company this time around.  As Alcala remained in prison, DNA testing linked him to the deaths of 4 other late-1970's CA murder victims.  So Alcala now is charged with 5 murders.

Ironically, Alcala's first conviction was reversed because the trial judge allowed the prosecution to offer evidence of Alcala's violence towards girls other than Robin. Now that evidence rules have changed and Alcala is charged with other crimes, Jury # 3 will hear plenty of evidence suggesting that Alcala is a serial killer.    

Alcala has chosen to represent himself.  That's less of a gamble than it seems.  He is now 66 years old, so even if he is convicted and the conviction is upheld, the chances that he'll be executed are virtually nil.

As a California bicycle commuter, I'm angry and scared because I see so many people continuing to use cell phones while driving long after doing so was made a crime.

In England, Phillippa Curtis (age 22) was recently convicted of driving while distracted by using a cell phone and sentenced to 21 months in prison.  Curtis smashed into a stopped car and killed its occupant, Victoria McBride.  An analysis of Curtis' cell phone showed that while she was driving, Curtis had sent and received about 20 text messages in the minutes leading up to the crash.  She'd just received another message seconds before the crash, and may have been about to open it when she killed Ms. McBride. 

Curtis was convicted even though she was not actively texting at the moment of the crash.  The evidence convinced the jury that Curtis was distracted by texting while driving, and that supports the guilty verdict.

What a sad story.  I hope drivers here get the text message.

Eric Safire is a San Francisco criminal defense attorney.  Representing murder defendant Charles Heard at a preliminary hearing, Safire asked 7 men that he had asked to come to the hearing to stand up when the prosecutor asked an eyewitness to identify the shooter.  Like Heard, the 7 men who stood up in court are black.  Safire's courtroom theatrics may backfire.  The 7 men were arrested for intimidating a witness, and the DA is looking into the possibility of charging Safire with a crime or at least referring him to the State Bar for possible ethical violations.

While the DA's reaction may be overblown, Safire's tactic seems indefensible.  A few commentators have defended Safire on the gound that he used a creative means to test the eyewitness' ability to make an accurate identification.  But this is silly.  The eyewitness could not reasonably confuse Heard, no doubt seated at counsel table, with 7 men standing in the courtroom gallery.

Safire's misguided  effort reminds me of a more legitimate stunt pulled off by Earl Rogers, one of the greatest courtroom lawyers who ever lived.  Rogers practiced in Los Angeles until his death from alcohol disease in the 1920's.  Representing a man charged with murder, Rogers cross examined a prosecution eyewitness while blocking the witness' view of the defendant.  During the cross examination, the defendant changed places with a man who had been seated in the rear of the courtroom.  Once the switch had been made, Rogers stepped to the side and asked the eyewitness to once again point out the murderer.  Sure enough, the eyewitness pointed to the imposter.  Rogers then had the real defendant to stand up in the back of the courtroom, and asked the judge to dismiss the case.

Perhaps Safire got the idea for his stunt when he watched the pilot episode of the great 1960's TV lawyer show, The Defenders.  The show focused on a father-son lawyer team that grappled with the most controversial issues of its time.  In the pilot episode the father (played by Ralph Bellamy) is persuaded by his son (played by William Shatner) to use a variation of Rogers' trick, and the case against his client is dimissed.

Safire has to learn that even the most creative stunts will backfire if there's no point to them.   

A recent California case demonstrates once again that police officers can engage in deception in an effort to elicit confessions.

In People v. Mays, 95 Cal. Rptr. 219 (2009), the defendant was suspected of participating in a murder.  Mays denied knowing anything about the murder and demanded a lie detector test.  Instead the cops conducted a phony lie detector test.  They connected Mays to a machine and asked him some questions, then showed him a phony written report indicating that he had failed the test.  At that point, the defendant admitted that he had been at the murder scene.

At trial, Mays claimed that his confession was inadmissible in evidence because it was the result of police trickery.  The court ruled that the confession was admissible, because the trickery did not constitute coercion. 

It's a good thing for the cops that Mays didn't ask them to take a lie detector test about the lie detector test.  They would have flunked.

Jesse Jay Montejo was charged with first-degree murder in Louisiana. Montejo remained mute at his first court hearing as the judge appointed an attorney to represent him. After the police read Montejo his Miranda rights, but before Montejo could meet with his attorney, Montejo showed the police where he had put the murder weapon and wrote a letter of apology to his victim's widow.  Over the objection of Montejo's lawyer, the trial judge ruled that the prosecutor could offer the letter into evidence at trial to help prove that Montejo committed the murder.

In a decision issued May 26, 2009, the U.S. Supreme Court upheld the trial court's ruling in a 5-4 majority decision (Montejo v. Louisiana - PDF).

The decision overturned a two-decades-old case that basically said that once a lawyer has been appointed for a defendant, any statements the defendant makes to the police in the absence of the attorney should not be admitted into evidence.  The rule's purpose was to discourage police officers from "badgering" defendants into talking to them. But a statement that a defendant is badgered into making is likely to be inadmissible even under the Montejo decision. In deciding Montejo, the Court majority assumed that Montejo had written the letter voluntarily.  If so, said the majority, there's no valid reason to exclude it from evidence.  But if the police hadn't warned Montejo of his right to remain silent, or if they hectored Montejo into writing the letter, then the letter won't be admissible in evidence.

Probably few suspects who already have lawyers are as cooperative as Montejo and decide to talk voluntarily to police officers. Thus, as the Court majority admits, its decision is unlikely to affect many cases.

Susan Boyle is the frumpy, unemployed middle-aged spinster who became a YouTube sensation for her magnificent singing of "I Dreamed A Dream" (from Les Miserables) on the UK TV show, "Britain's Got Talent."

Mike Carona is the disgraced ex-Sheriff of Orange County (CA), who was fired and criminally convicted after a trial revealed his corruption and abuse of trust, including the trust placed in him by his wife.   

I would hope that Susan Boyle would see fit to forgive me for linking her name with Mike Carona's.  I do so because their disparate stories should remind us how easily fooled we can be: Susan Boyle's shabby outward appearance masked a marvelous singing voice; Mike Carona's suave, sophisticated appearance masked an evil intent to cheat, lie and steal. 

Our readiness to confuse exterior appearance with interior character is particularly risky in the context of our criminal justice system.  For example, jurors may arrive at incorrect verdicts if they evaluate expert witnesses' credibility based on their manner of speech and dress.  And police officers may pull drivers over based on seeming inconsistencies between their personal appearance and the make of car they are driving. 

Admittedly, outward appearances are far more easily observed than internal characters, and decision-making often has to proceed based on incomplete information.  However, the stories of Susan Boyle and Mike Carona should at least remind us always to check initial assumptions  before making decisions.  If this is true in life generally, it's especially important in a criminal justice system that can lock people up for years. 

As you probably know, Phil Markoff, a seemingly squeaky-clean Boston University medical student, has been charged with murdering one masseuse he met through the Craigslist website, and robbing another.

The charges have given rise to examples of two of my pet peeves: 

Peeve # 1: Markoff's defense attorney, John Salsberg, is telling the media that "Markoff isn't guilty."  Just as prosecutors should never say that a defendant is guilty, defense lawyers have no business proclaiming their clients' innocence.  Unless Salsberg himself committed the crimes, he cannot possibly know whether Markoff is guilty.  Salsberg can say something along the lines of, "My client insists on his innocence."  Otherwise, he shouldn't talk as if he knows what he cannot possibly know.

Peeve # 2: Markoff's friends are griping that people are rushing to judgment instead of considering him innocent until proven guilty.  Of course criminal defendants are presumed innocent -- once inside the courtroom, when official proceedings can result in punishment.  But in the Court of Public Opinion, people have no power to pronounce guilt or punish suspects. Just as a parent doesn't need a jury to decide whether a child spilled a bottle of milk, individuals don't need a jury to tell them whether to believe that the information currently available suggests that Markoff committed a murder and a robbery.  A person's private belief that "Markoff did it" in no way violates the formal presumption of innocence.