Obama Admininistration Seeks to Kill Right to an Attorney

[Dominus Atheos]

Talk Left

More true colors?

The Justice Department is asking the Supreme Court to overrule Michigan v. Jackson, the 1986 Supreme Court decision that held that if police may not interrogate a defendant after the right to counsel has attached, if the defendant has a lawyer or has requested a lawyer.

[T]he protection offered by the court in Stevens' 1986 opinion is especially important for vulnerable defendants, including the mentally and developmentally disabled, addicts, juveniles and the poor,

This isn't the first time the Justice Department, under President Obama, has sought to limit defendants' rights.

Since taking office, Obama has drawn criticism for backing the continued imprisonment of enemy combatants in Afghanistan without trial, invoking the "state secrets" privilege to avoid releasing information in lawsuits and limiting the rights of prisoners to test genetic evidence used to convict them.

The idea of overruling the decision originated with Justice Alito during oral arguments in the case of Jesse Montejo, a Louisiana death row inmate. Even some prominent former prosecutors and judges are not on board with changing the rule:

Former Deputy Attorney General Larry Thompson and former FBI Director William Sessions are among 19 one-time judges and prosecutors urging the court to leave the decision in place because it has been incorporated into routine police practice and establishes a rule on interrogations that is easy to follow.

Their amicus brief is here (pdf.)

Allowing the police to initiate interrogation of a represented defendant and to use any resulting statements would strip away protections the attorney can provide, interfere with the relationship between counsel and client, and undercut the integrity of criminal trials. It would also contradict the commitment made to defendants through Miranda warnings.

The Supreme Court ordered additional briefing in March. It could decide as early as tomorrow whether it wants to hear argument on the issue.

So to sum up: currently the police cannot question someone who doesn't have a lawyer present once they've asked for one. The DOJ is trying to change that so that the police can deny people their attorneys and interrogate them anyway.

Wow. That's a huge miscarriage of justice and puts Obama on the same level as banana republic juntas. If the police are allowed to deny people their right to an attorney, that's pretty much the end of due process.

I mean, we already knew that Obama rejects the rule of law and supports a two-tiered justice system, but I don't think anyone thought he'd go this far. Although I suppose we probably should have. Once someone demonstrates the level of contempt for the rule of law that Obama has, pretty much anything is possible. I expect pretty soon he'll start writing Bills of Attainder and General Warrants.

[Mr Bean]

Overreaction time Dominus Atheos. Overreaction to high hell

For some actual background this is a point of contention since 1986 that says if you ask for a Lawyer when arrested, until the lawyer shows up anything you say after you ask for a Lawyer is not admissible in court.

Problem is this had lead to cases in the past when certain people have called for their lawyer then confessed. Because nothing in that time frame is admissible in court nothing that develops from that point is admissible either. I'm split on this issue because there's two obvious issues. One the current statue is imperfect and until the Supreme Court changes it we still face that issue where if someone ask for a lawyer then confesses, that confession is not admissible, and their lawyer is sure as hell going to try and make them take that back(As any good defense attorney should).

On the other hand if you just remove the right the police will sure as hell exploit that ability. You know it, I know it, I'm sorry but it's going to happen and it's going to be legal for a cop to "forget" to call a lawyer for a few hours, or just tell the suspect that to pressure them.

The best outcome is to change the law from "After you call for a lawyer anything you say is not admissable until the lawyer gets there" to "Anything you say is admissible, but you are not allowed to question someone who has requested a lawyer until one is present"

However considering the court and the time, I'm far more comfortable with them letting the ruling stand for now.

[Terralthra]

This is the usual overblown rhetoric from the disappointed. Scroll down a bit in the AP piece and we find out the real story.

Obama legal team wants to limit defendants' rights

By MARK SHERMAN
Associated Press Writer

WASHINGTON (AP) -- The Obama administration is asking the Supreme Court to overrule long-standing law that stops police from initiating questions unless a defendant's lawyer is present, another stark example of the White House seeking to limit rather than expand rights.

The administration's action - and several others - have disappointed civil rights and civil liberties groups that expected President Barack Obama to reverse the policies of his Republican predecessor, George W. Bush, after the Democrat's call for change during the 2008 campaign.

Since taking office, Obama has drawn criticism for backing the continued imprisonment of enemy combatants in Afghanistan without trial, invoking the "state secrets" privilege to avoid releasing information in lawsuits and limiting the rights of prisoners to test genetic evidence used to convict them.

The case at issue is Michigan v. Jackson, in which the Supreme Court said in 1986 that police may not initiate questioning of a defendant who has a lawyer or has asked for one, unless the attorney is present. The decision applies even to defendants who agree to talk to the authorities without their lawyers.

Anything police learn through such questioning cannot be used against the defendant at trial. The opinion was written by Justice John Paul Stevens, the only current justice who was on the court at the time.

The justices could decide as early as Friday whether they want to hear arguments on the issue as they wrestle with an ongoing case from Louisiana that involves police questioning of an indigent defendant that led to a murder confession and a death sentence.

The Justice Department, in a brief signed by Solicitor General Elena Kagan, said the 1986 decision "serves no real purpose" and offers only "meager benefits." The government said defendants who don't wish to talk to police don't have to and that officers must respect that decision. But it said there is no reason a defendant who wants to should not be able to respond to officers' questions.

At the same time, the administration acknowledges that the decision "only occasionally prevents federal prosecutors from obtaining appropriate convictions."

The administration's legal move is a reminder that Obama, who has moved from campaigning to governing, now speaks for federal prosecutors.

The administration's position assumes a level playing field, with equally savvy police and criminal suspects, lawyers on the other side of the case said. But the protection offered by the court in Stevens' 1986 opinion is especially important for vulnerable defendants, including the mentally and developmentally disabled, addicts, juveniles and the poor, the lawyers said.

"Your right to assistance of counsel can be undermined if somebody on the other side who is much more sophisticated than you are comes and talks to you and asks for information," said Sidney Rosdeitcher, a New York lawyer who advises the Brennan Center for Justice at New York University.

Stephen B. Bright, a lawyer who works with poor defendants at the Southern Center for Human Rights in Atlanta, said the administration's position "is disappointing, no question."

Bright said that poor defendants' constitutional right to a lawyer, spelled out by the high court in 1965, has been neglected in recent years. "I would hope that this administration would be doing things to shore up the right to counsel for poor people accused of crimes," said Bright, whose group joined with the Brennan Center and other rights organizations in a court filing opposing the administration's position.

Former Deputy Attorney General Larry Thompson and former FBI Director William Sessions are among 19 one-time judges and prosecutors urging the court to leave the decision in place because it has been incorporated into routine police practice and establishes a rule on interrogations that is easy to follow.

Eleven states also are echoing the administration's call to overrule the 1986 case.

Justice Samuel Alito first raised the prospect of overruling the decision at arguments in January over the rights of Jesse Montejo, the Louisiana death row inmate.

Montejo's lawyer, Donald Verrilli, urged the court not to do it. Since then, Verrilli has joined the Justice Department, but played no role in the department's brief.

© 2009 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed. Learn more about our Privacy Policy.

The case that prompted the review can be read about

In late 2002, Patricia Ferrari returned to her Slidell, Louisiana home to discover her husband, Lewis Ferrari, dead on the kitchen floor from gunshot wounds to his head and chest.

Suspicion quickly turned to Jerry Moore, whom Mr. Ferrari had employed in his dry-cleaning business. In the months leading up to the murder, Mr. Ferrari’s relationship with Mr. Moore had soured; witnesses contend that the two had argued publicly (including on the day of the murder) because Mr. Moore had lost his driver’s license and was forced to rely on a friend, Jesse Jay Montejo, for transportation, making Mr. Moore unreliable.

Mr. Ferrari’s neighbors reported that they saw Mr. Montejo’s van—known for its distinctive chrome cattle bar on its front bumper—carrying a passenger and speeding away from the area around Mr. Ferrari’s home around the time of the murder. Mr. Ferrari’s white Lincoln, which had been stolen from his home, was seen closely following the van. Subsequent forensics found Mr. Montejo’s DNA under Mr. Ferrari’s fingernails.

Based on this evidence, the police conducted a lengthy interrogation of Mr. Montejo, who produced seven distinct explanations for and descriptions of the crime. After about five hours, Mr. Montejo requested an attorney. The detectives immediately ended their questioning; however, on their way out of the room one detective informed Mr. Montejo that the request had “let [the detective] down.” Ten minutes later a video camera recording the interrogation was turned back on, and it captured Mr. Montejo’s sobbing revocation of his request for counsel. The detectives later claimed Mr. Montejo “beg[ged]” them to allow him to reconsider his request for counsel.

Mr. Montejo’s subsequent descriptions of the crime amounted to a confession that he was involved with the murder along with two accomplices, Mr. Moore and an individual identified only as “D.P.” Following these statements, Mr. Montejo and Mr. Moore were arrested for murder.

Consistent with Louisiana law, soon after his arrest Mr. Montejo was brought before a judge for a “72-hour hearing,” intended to allow for the appointment of counsel and establish the amount of bail.. The hearing is considered a “critical stage.” However, the record does not indicate how Mr. Montego responded to the appointment, and the judge did not seek to elicit Mr. Montejo’s formal acceptance of the representation.

The day after the hearing, the same detectives who had previously interrogated Mr. Montejo asked for his assistance in locating the murder weapon. Petitioner contends, and respondent does not disagree, that this too was a “critical stage.” Mr. Montejo said that he believed he was represented by counsel, but the detectives informed him otherwise. (The detectives later claimed that they were unaware Mr. Montejo was represented, even though a representative of the police department attended Mr. Montejo’s 72-hour hearing.) The detectives read Mr. Montejo his Miranda rights, which he agreed to waive, and proceeded to question him about the crime without his counsel present. During this questioning, Mr. Montejo wrote a note to Mrs. Ferrari in which he apologized for murdering her husband and indicated that he had only intended to commit a “simple burglary,” which in Louisiana is a technical legal term that describes a particular level of offense within the penal code. The detectives testified at trial that Mr. Montejo spontaneously produced the letter. However, Mr. Montejo testified that the letter was dictated to him by the detectives.

When his trial began, Mr. Montejo sought to suppress both the statements made during his interrogation and the letter he wrote Mrs. Ferrari. He argued that he was coerced into revoking his request for counsel during the initial interrogation, and that the letter was the product of an interrogation that occurred at a “critical stage” after the appointment of counsel, without his counsel’s presence or consent. The trial court denied his motion, instead accepting the state’s argument that both statements had been given voluntarily, following proper Miranda warnings, making them admissible.

At trial, the state relied heavily on Mr. Montejo’s letter, while Mr. Montejo altered his narrative of events and argued that although he had been involved in an altercation with Mr. Ferrari prior to the murder, he did not take part in the shooting. Mr. Montejo was convicted of first-degree murder and sentenced to death.

On appeal to the Louisiana Supreme Court, Mr. Montejo raised twenty issues for review. However, the court only considered in detail the two issues raised by Mr. Montejo’s motion to suppress, rejecting both claims. Regarding the admission of the letter, the Louisiana Supreme Court agreed that the 72-hour hearing was a “critical stage,” requiring the appointment of counsel. As a result, the court – citing Michigan v. Jackson (1986) – explained that had Mr. Montejo requested representation by counsel, the police could not have questioned him further in the absence of his counsel’s consent or presence. However, relying on state precedent, State v. Carter (1995), and the controlling Fifth Circuit case, Montoya v. Collins (1992), the court concluded that counsel is not “requested” if a defendant merely accepts court-appointed counsel without making some affirmative statement or indication that he desires representation. As a result, Mr. Montejo’s interrogation following the 72-hour hearing was not governed by the Sixth Amendment right to counsel. Instead, the court only needed to find that Mr. Montejo voluntarily waived his right to counsel, which (based upon his signed Miranda waiver) the court concluded he had. Thus, the fruits of the interrogation were admissible.

If that's too much for you to read, the odds-on suspect was brought in for questioning, told five different stories before asking for a lawyer. The investigators stopped asking questions immediately, summoned for a lawyer, and on their way out, one said "You let me down." The suspect broke down and over the next ten minutes, revoked asking for a lawyer and confessed to the crime. Later, he wrote a letter apologizing to the widow of the man he murdered, and willingly directed the police to the murder weapon. After being convicted, he appealed on the grounds that under Michigan v. Jackson, he couldn't technically be interrogated after asking for lawyer - even though he later changed his mind about wanting one - and that covered an unprompted confession too.

[Dominus Atheos]

Problem is this had lead to cases in the past when certain people have called for their lawyer then confessed. Because nothing in that time frame is admissible in court nothing that develops from that point is admissible either. I'm split on this issue because there's two obvious issues. One the current statue is imperfect and until the Supreme Court changes it we still face that issue where if someone ask for a lawyer then confesses, that confession is not admissible, and their lawyer is sure as hell going to try and make them take that back(As any good defense attorney should)./quote]

Right, the defendant asks for a lawyer and the police keep interrogating him even without the lawyer present. That's clearly in violation to his right to counsel. The reason for this is so the defendant can't be intimidated into giving a false confession.

The best outcome is to change the law from "After you call for a lawyer anything you say is not admissable until the lawyer gets there" to "Anything you say is admissible, but you are not allowed to question someone who has requested a lawyer until one is present"

That's what they have now.

When an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to police-initiated interrogation after being again advised of his rights. An accused, such as petitioner, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation until counsel has been made available to him, unless the accused has himself initiated further communication, exchanges, or conversations with the police

There's no good reason this needs to be changed, except to help secure convictions against people they can't proof are gulity.

[Mr Bean]

There's no good reason this needs to be changed, except to help secure convictions against people they can't proof are gulity.

Did you ignore Terralthra post on just this issue? Because it looks like you did.

[Darth Wong]

Damn it! I saw this thread title and for a moment I thought it said "Obama Administration seeks right to kill an attorney."

[The Yosemite Bear]

Damn it! I saw this thread title and for a moment I thought it said "Obama Administration seeks right to kill an attorney."

"First thing we do, Kill all the Lawyers"- Henry VI, just for fun

[Dominus Atheos]

If that's too much for you to read, the odds-on suspect was brought in for questioning, told five different stories before asking for a lawyer. The investigators stopped asking questions immediately, summoned for a lawyer, and on their way out, one said "You let me down." The suspect broke down and over the next ten minutes, revoked asking for a lawyer and confessed to the crime. Later, he wrote a letter apologizing to the widow of the man he murdered, and willingly directed the police to the murder weapon. After being convicted, he appealed on the grounds that under Michigan v. Jackson, he couldn't technically be interrogated after asking for lawyer - even though he later changed his mind about wanting one - and that covered an unprompted confession too.

So if it's so clear cut, there shouldn't be any need to file a request with the supreme court asking them to overturn part of the right to counsel.

[Mr Bean]

So if it's so clear cut, there shouldn't be any need to file a request with the supreme court asking them to overturn part of the right to counsel.

The Supreme Court does not just over-turn cases, they have the option to reafirm, they have the option to expound on the earlier ruling.

Also note, this is the Supreme Court if they want to overturn this case, this is dick Obama could do, more-over he did not purge the Justice department on being elected which means it's still a mix of Reagan, Bush 1, Clinton, and Bush 2's members. More-over the more liberal Clinton picks were famously purged which means the "Obama" justice Department is and will be heavily Bush built for at least another year.

[Edi]

How was it that the Miranda rights speech went?

"You are under arrest for [crime]. You have the right to remain silent. If you choose to forgo that right, anything you say may be used against you in a court of law. You have the right to an attorney. If you don't have one or cannot afford one, an attorney will be provided for you."

Maybe something else as well, but that was the gist of it. If that's the thing to go by, all that has to be done is inform the suspect of his rights and that's it. He has the right to remain silent and the right to an attorney. Even if he does ask for one, if he talks before the attorney arrives, that's not out of bounds for a court unless there are specific laws and regulations in place that say otherwise.

It may be the practice to not question suspects after they ask for a lawyer to avoid any possibility of the defense playing dirty tricks about due process even if it was in fact followed. In addition to giving due process, also making it unequivocally look like it was given.

That's the main concern, and police corruption in the US is also a concern, as are ruthless prosecutors who seek convictions to further their careers, which is why the amicus brief that comments on the Miranda issues is relevant. But it does not mean that such an interpretation is the only possible one.

So chalk up another thread where Dominus Atheos screeches like a banshee and runs around like a headless chicken, wearing a full tinfoil suit without any regard for anything as inconvenient as facts. Next one of these comes up, I'd say the Senate will have cause to hold a VI poll. We haven't had any of those for a while.

[Flagg]

From what I recall in my security classes (why we needed to know this I have no fucking idea), once a person asserts their right to remain silent or to an attorney the questioning must stop if only because any information gleaned after that point cannot be used in court unless the suspect signs a Miranda waiver essentially saying they understand their rights and waive them.

[Terralthra]

If that's too much for you to read, the odds-on suspect was brought in for questioning, told five different stories before asking for a lawyer. The investigators stopped asking questions immediately, summoned for a lawyer, and on their way out, one said "You let me down." The suspect broke down and over the next ten minutes, revoked asking for a lawyer and confessed to the crime. Later, he wrote a letter apologizing to the widow of the man he murdered, and willingly directed the police to the murder weapon. After being convicted, he appealed on the grounds that under Michigan v. Jackson, he couldn't technically be interrogated after asking for lawyer - even though he later changed his mind about wanting one - and that covered an unprompted confession too.

So if it's so clear cut, there shouldn't be any need to file a request with the supreme court asking them to overturn part of the right to counsel.

I suppose we can just ask you, nimrod. Should his unprompted confession and subsequent self-implication by directing the police to the murder weapon be thrown out because it was delivered after he asked for a lawyer, then changed his mind? Keep in mind that in this case, that would effectively mean letting a confessed murderer go free.

[Furlong]

How was it that the Miranda rights speech went?

"You are under arrest for [crime]. You have the right to remain silent. If you choose to forgo that right, anything you say may be used against you in a court of law. You have the right to an attorney. If you don't have one or cannot afford one, an attorney will be provided for you."

Actually, it's "You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to have an attorney present during questioning. If you cannot afford an attorney, one will be appointed for you. Do you understand these rights?"

As to the topic at hand, it seems reasonable to me that statements made, voluntarily, by a suspect, should be admissible in court even if they have requested an attorney, but only if they are not coerced by officers.

[Edi]

Even if an officer asks a question and the suspect answers, it should be admissible. Unless there is evidence of actual coercion. Otherwise there are too many loopholes to abuse.

There's a reason why the Finnish police videotapes all interrogations related o certain types of crimes.

[Big Phil]

I mean, we already knew that Obama rejects the rule of law and supports a two-tiered justice system,

What exactly is your evidence to support this assertion?

but I don't think anyone thought he'd go this far. Although I suppose we probably should have. Once someone demonstrates the level of contempt for the rule of law that Obama has, pretty much anything is possible. I expect pretty soon he'll start writing Bills of Attainder and General Warrants.

And this? I mean, other than your opinion and wildly exaggerated blogs written by douchebags.

[ray245]

but I don't think anyone thought he'd go this far. Although I suppose we probably should have. Once someone demonstrates the level of contempt for the rule of law that Obama has, pretty much anything is possible. I expect pretty soon he'll start writing Bills of Attainder and General Warrants.

And this? I mean, other than your opinion and wildly exaggerated blogs written by douchebags.

And to think that he said a while ago that relying on blogs for information will be better for everyone because people are less willingly to belive what bloggers have to say outright.

Back to what DA have to said.

but I don't think anyone thought he'd go this far. Although I suppose we probably should have. Once someone demonstrates the level of contempt for the rule of law that Obama has, pretty much anything is possible. I expect pretty soon he'll start writing Bills of Attainder and General Warrants.

The justice system isn't something that is perfect to begin with, and I fail to understand why seeking to improve the justice systems means you are abusing it.

Carry on listening to bloggers over news report because you believe that people are far more critcal of blogs that news reports. Apparently, you failed to apply critical thinking when you are reading the blogs yourself.

[Kodiak]

Damn it! I saw this thread title and for a moment I thought it said "Obama Administration seeks right to kill an attorney."

It must be an engineer thing, because that's EXACTLY what I saw.

I think there needs to be some sort of middle-ground as in "Everything you say while in police custody is admissible, although you have no obligation to respond to questioning without an attorney." I mean, can't they keep the guy in a room with a camera so that we know exactly how the confession was obtained?

[Stuart]

How was it that the Miranda rights speech went?

According to my Miranda Card (Miranda is like a SAC check-list, one has to read it from the card even if one knows it off by heart).

You have the right to remain silent
Anything you say can and will be used against you in the court of law
You have the right to talk to a lawyer and have him present with you while you are being questioned
If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning if you wish one

Do you understand each of these rights as I have explained them to you (affirmative answer required before questioning can continue)
Having these rights in mind, do you wish to talk to us now? (affirmative answer required before questioning can continue)

I read the title as "to kill an attorney as well". Reminded me of an old friend who, when a particularly vexatious human rights attorney disappeared denied absolutely that he had disappeared on the grounds that "disappeared" meant nobody knew where he was and there were quite a few people who did know where he was.

[Chris OFarrell]

When I first saw this thread, and when I saw it was from Atheos, *I* thought it meant the Obama Administration had found the lawyers behind the human rights abuses and torture from the former administration, and was seeking the right to execute them!

Now THAT is change we can believe in!

[Kamakazie Sith]

The rumors I've heard within the law enforcment circle is that the miranda requirement is going away. I've heard nothing about preventing people from obtaining counsel before questioning.

Oh, and currently you don't HAVE to read from a card. You just need to make sure that you explain each of the points, so it is best to read from a card but you're not required to.

[Dominus Atheos]

How was it that the Miranda rights speech went?

"You are under arrest for [crime]. You have the right to remain silent. If you choose to forgo that right, anything you say may be used against you in a court of law. You have the right to an attorney. If you don't have one or cannot afford one, an attorney will be provided for you."

Maybe something else as well, but that was the gist of it. If that's the thing to go by, all that has to be done is inform the suspect of his rights and that's it. He has the right to remain silent and the right to an attorney. Even if he does ask for one, if he talks before the attorney arrives, that's not out of bounds for a court unless there are specific laws and regulations in place that say otherwise.

It may be the practice to not question suspects after they ask for a lawyer to avoid any possibility of the defense playing dirty tricks about due process even if it was in fact followed. In addition to giving due process, also making it unequivocally look like it was given.

That's the main concern, and police corruption in the US is also a concern, as are ruthless prosecutors who seek convictions to further their careers, which is why the amicus brief that comments on the Miranda issues is relevant. But it does not mean that such an interpretation is the only possible one.

Maybe things are different in Finland, but here police corruption is more then a "concern". Police are actually trained on how to get confessions regardless of whether or not the suspect is guilty. It's called the "Reid Technique", and it's taught to police all around the continent. Here's a page on it from a Michigan law school:

Most police detectives and interrogators in Michigan are trained in the following method of interrogation. Key points to look at here, the suspect really not allowed to talk much until step 8. Another key point with this technique is that it is not concerned with voluntariness of the statement until the police are recording the statement at the end of Step 9.



The REID 9 STEPS OF INTERROGATION, IN BRIEF





Step One: Direct Positive Confrontation



A. Presentation of fact synopsis to suspect.

B. Reference to evidence, real or fictional.

C. Suspect is told that he is involved in the crime.

D. Behavioral observation of suspect.

E. Restatement of confrontation, stronger or weaker.



Step Two: Theme Development



A. Transition phases from confrontation.

B. Propose reasons that will justify or excuse the commission of the crime.

C. Behavioral assessment of suspect to choose proper theme.

D. Longest portion of 9 steps.



Step Three: Stopping Denials



A. Both guilty and innocent deny the crime at issue.

B. Starts during direct positive confrontation.

C. Absence of denials in step two indicates probable guilt.

D. Interrogator recognizes and stops denial before it is complete.

E. Progress is indicated by cessation or weakening of denials.



Step Four: Overcoming Objections



A. Suspect proposes a reason why he allegedly did not commit the crime.

B. Normally offered by only the guilty.

C. Indicates progress n the interrogation if given after denials.

D. Handled differently than denials by first listening and accepting.

E. Proper handling of objections helps overcome the subject’s defenses.



Step Five: Getting the Suspect’s Attention



A. Suspect is on defensive and is tense and confused.

B. The themes will work only is suspect is listening.

C. Interrogator reaches peak of sincerity in his speech.

D. Physical closeness and use of verbal techniques to command attention.

E. Physical gestures of sincerity are used to establish attitude of understanding and concern.



Step Six: The Suspect Quiets and Listens



A. The physical signs of surrender begin to appear.

B. The themes are shortened and lead toward alternatives.

C. Establishment of eye contact is most important at this point by verbal and physical techniques.

D. Tears at this stage positively indicate the suspect’s guilt.



Step Seven: Alternatives



A. Non-threatening to suspect they concern some minor aspect of the crime.

B. Gives choice between acceptable reason and unacceptable reason for committing the crime.

C. One alternative is stressed to lead subject to choose the positive alternative.

D. Either choice is an admission of guilt.



Step Eight: Bringing the Suspect into the Conversation.



A. The acceptance of one alternative is reinforced by the interrogator.

B. The suspect is encouraged to talk about aspect of the crime.

C. The use of realistic words is introduced by the interrogator.

D. Initial corroboration of the confession is begun.

E. Oral witnessing of admissions by two persons.



Step Nine: The Confession



A. Reduction of oral statement into written, typed, or electronically recorded form.

B. Voluntariness of statement is established along with corroboration of details.

C. Suspect’s signing of statement is witnessed by two or more persons.



Post Interrogation Interview:



A. Provides a method to determine technique effectiveness.

B. Keeps guilty suspect in proper frame of mind during typing of formal statement.

C. Allows interrogator to calm down an innocent suspect who was confronted.


This comes from Practical Aspects of Interview and Interrogation, David E. Zulawski, and Douglas E. Wicklander,

CRC Press, Ann Arbor, 1998.

There are very good reasons we don't allow police interrogations unless the suspect specifically waives his right to an attorney, and it's going to be a very bad day for justice when the police are allowed to do the above to any suspect even when an attorney is on his way to defend him.

[Stuart]

Oh, and currently you don't HAVE to read from a card. You just need to make sure that you explain each of the points, so it is best to read from a card but you're not required to.

Interesting; when we were being indoctrinated the instructor made a big thing about us being required to "read it from the card even if you've memorized it". Might be a context thing or possibly a jurisdictional variation.

[Edi]

Dominus Atheos:

Police corruption is not generally a concern here, but I know it's bad in the US, location dependent. The that interrogation method certainly falls to a category that could result in a case thrown directly out of court here or necessitate a renewed investigation and reassessment of evidence.

However, that does not alter the point I made earlier unless the laws governing interrogations (or police regulations or whatever) require cessation in the meanwhile. Apparently such things are in place, in which case cops who continue questioning when they shouldn't only have themselves to blame if a guilty perp walks free. I already took that into account earlier, which is why I mentioned it then. And if those regulations are removed, it still does not kill right to an attorney, it just modifies the framework around it.

Taped interrogations also serve as safety insurance for both suspect and interrogator, because they can be assessed during a trial and it doesn't go over too well if it's clear that unethical pressure tactics were used. Of course, depending on how fucked up the trial proceedings are, taped interrogations might not be shown even if there is controversy about whether a confession is real or coerced.

I still fail to see how that is a complete rebuttal of what I said, since that is not the only interrogation technique available. It's still not conclusive evidence of a systematic attempt to kill right to an attorney, as per the opening post and the following arguments.

[Dominus Atheos]

Dominus Atheos:

Police corruption is not generally a concern here, but I know it's bad in the US, location dependent. The that interrogation method certainly falls to a category that could result in a case thrown directly out of court here or necessitate a renewed investigation and reassessment of evidence.

However, that does not alter the point I made earlier unless the laws governing interrogations (or police regulations or whatever) require cessation in the meanwhile. Apparently such things are in place, in which case cops who continue questioning when they shouldn't only have themselves to blame if a guilty perp walks free. I already took that into account earlier, which is why I mentioned it then. And if those regulations are removed, it still does not kill right to an attorney, it just modifies the framework around it.

Taped interrogations also serve as safety insurance for both suspect and interrogator, because they can be assessed during a trial and it doesn't go over too well if it's clear that unethical pressure tactics were used. Of course, depending on how fucked up the trial proceedings are, taped interrogations might not be shown even if there is controversy about whether a confession is real or coerced.

I still fail to see how that is a complete rebuttal of what I said, since that is not the only interrogation technique available. It's still not conclusive evidence of a systematic attempt to kill right to an attorney, as per the opening post and the following arguments.

The phrase "Seeks to Kill Right to an Attorney" was hyperbole, I didn't actually mean I thought the DOJ want's to get rid of defense attorneys completely. The issue is that if their request goes through, the police will allowed to interrogate a suspect regardless of whether he asks for an attorney, so the right may as well not exist for the first few hours in police custody since it makes no difference to how the police are allowed to treat him. There are numerous examples of what happens when someone doesn't get that right, or gets tricked into waiving it:

Eddie Joe Lloyd

nnocence Project client Eddie Joe Lloyd served 17 years in Michigan prison for a murder and rape he didn’t commit before DNA testing proved his innocence and led to his release in 2002.

Lloyd was convicted of a brutal 1984 murder of a sixteen-year-old girl in Detroit, Michigan. While in a hospital receiving treatment for his mental illness, Lloyd wrote to police with suggestions on how to solve various murders, including the murder for which he was convicted. Police officers visited and interrogated him several times in the hospital. During the course of these interrogations, police officers allowed Lloyd to believe that, by confessing and getting arrested, he would help them "smoke out" the real perpetrator. They fed him details that he could not have known, including the location of the body, the type of jeans the victim was wearing, a description of earrings the victim wore, and other details from the crime scene. Lloyd signed a written confession and gave a tape recorded statement as well.

At trial, the prosecution played the confession to the jury and claimed that Lloyd had killed the victim in order to get away with the rape. The forensic evidence consisted a semen stain on longjohns used to strangle the victim and a bottle that was forced into the victim, and a piece of paper with a semen stain that was stuck to the bottle. The only testing presented at trial consisted of confirming the presence of semen and other biological matter.

Lloyd was represented during pre-trial by a court-appointed attorney who received $150 for pre-trial preparation and investigation. This attorney gave $50 of this to a convicted felon, who conducted no investigation into Lloyd's mental state or confession.

This lawyer withdrew from the case eight days before trial, but another attorney was appointed and the trial was not postponed. The trial attorney did not meet with the pre-trial attorney. He did not question the details of the investigation and did not cross-examine the police officer most directly involved in the coerced confession. He called no defense witnesses and gave a five minute closing argument. The jury deliberated for less than an hour before convicting him of first degree felony murder in May 1985.

Jeff Deskovic

Jeff Deskovic, then 16 years old, was a classmate of the victim’s. He became a suspect because he was late to school the day after the victim disappeared. Police also believed he seemed overly distraught at the victim’s death, visiting her wake three times.

Police spoke with Deskovic eight times in December 1989 and January 1990. Deskovic had begun his own “investigation” of the case, giving officers notes about possible suspects. Police asked Deskovic to submit to a polygraph examination and he agreed in late January 1990. He believed that, if cleared, he could continue to help police with their investigation.

Deskovic was taken to a private polygraph business run by an officer with the local Sheriff’s Department, who, according to trial testimony, had been hired to “get the confession.” Deskovic was held in a small room there with no lawyer or parent present. He was provided with coffee throughout the day but no food. In between polygraph sessions, detectives interrogated Deskovic.

Deskovic’s alleged confession occurred after six hours, three polygraph sessions, and extensive questioning by detectives between sessions. One of the detectives accused Deskovic of having failed the test and said he had been convinced of Deskovic’s guilt for several weeks. According to the detective, Deskovic then stated he “realized” three weeks ago he might be the responsible party. Deskovic was asked to describe the crime and began speaking in the third person, switching to first person part way through the narrative. Deskovic said, “I lost my temper” and admitted he had hit the victim in the head with a Gatorade bottle, put his hand over her mouth and kept it there too long. During the confession, Deskovic sobbed. By the end of the interrogation, he was under the table, curled up in the fetal position, crying.

The Biological Evidence
The victim was found naked and her autopsy revealed genital trauma. Semen was identified on the vaginal swabs from her rape kit but no semen was observed on her clothes.

DNA testing was conducted before trial. The results showed that Deskovic was not the source of semen in the rape kit. Deskovic had been told before the alleged confession that if his DNA did not match the semen in the rape kit, he would be cleared as a suspect. Instead, prosecution continued on the strength of his alleged confession.

The Trial
In January 1991, Deskovic was convicted by jury of 1st degree rape and 2nd degree murder, despite DNA results showing that he was not the source of semen in the victim’s rape kit. The state argued that the semen had come from a consensual sex partner and that Deskovic killed the victim in a jealous rage.

Post-Conviction
In January 2006, the Innocence Project took on Deskovic’s case. The semen from the rape kit was tested with newer technology for entry into the New York State DNA databank of convicted felons. In September 2006, the semen was matched to convicted murderer Steven Cunningham, who was in prison for strangling the sister of his live-in girlfriend.

On September 20, 2006, Jeff Deskovic was released from prison when his conviction was overturned. Following an apology from the assistant district attorney, the court dismissed Deskovic's indictment on the grounds of actual innocence on November 2, 2006.

Steven Cunningham subsequently confessed to the crime for which Jeff Deskovic served nearly 16 years.

Michael Crowe

Six years after being dismissed by Escondido police as a bungling prowler, Richard Tuite was convicted yesterday of stabbing to death 12-year-old Stephanie Crowe in her bedroom.

...

Escondido police concluded almost immediately that the killing was an inside job, despite 911 calls from Crowe neighbors frightened by Tuite in the hours before the stabbing. Police focused on Michael Crowe, then 14.

The teen, who was sick with a fever, was interrogated without his parents' knowledge and ultimately confessed after detectives lied to him about finding Stephanie's blood in his room and other evidence supposedly linking him to the killing. Crowe said he had no memory of the crime and provided no details.

His friends Treadway and Houser, both 15, were interrogated after Houser told police a knife was missing from a collection given to him by his grandfather. Treadway said he stole the knife days before the killing during a visit to Houser's house because he wanted to sketch it, and that he had kept it under his bed.

But when detectives lied to Treadway during his two interrogations, which lasted about 22 hours, saying they could prove the knife was used to kill Stephanie, he began telling a tale of conspiracy and murder.

Houser, meanwhile, denied any involvement in the slaying during his 10 hours of interrogation.

Like I said there are a lot of very good reasons we have the right to an attorney, and we have a lot of experience with what happens when that right is denied. And so that's why I'm concerned about this filing by the Obama DOJ, because I'm afraid it may lead to more like the above.

[Kamakazie Sith]

Oh, and currently you don't HAVE to read from a card. You just need to make sure that you explain each of the points, so it is best to read from a card but you're not required to.

Interesting; when we were being indoctrinated the instructor made a big thing about us being required to "read it from the card even if you've memorized it". Might be a context thing or possibly a jurisdictional variation.

It's a good idea because it removes any possible wiggle room for a defense attorney because you'll be able to show that you do in fact read it the same way each time to everyone you interrogate. However, if your on the stand and the defense attorney asks you to recite exactly what you said and you cover all the requirements there's not much he/she can do.