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You have the right to an attorney… for 14 days

Yesterday, the Supreme Court of the United States held that after you invoke your right to an attorney—which prevents police from questioning you—after 14 days, police can question you.

Confused? Let’s start at the beginning.

In 1966, in Miranda v. Arizona, the Supreme Court ruled that before interrogating a suspect, police must inform him of his right to remain silent. You’ve seen Law & Order, “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 an attorney. If you cannot afford an attorney, one will be appointed to you.…” Those are your Miranda warnings.

In 1981, in Edwards v. Arizona, the Supreme Court held that when a suspect in custody asks for an attorney under his Miranda rights, police have to stop questioning him and cannot ask him to change his mind.

Fast forward yesterday, to Maryland v. Shatzer. In that case, police arrested a man who then asked for an attorney; terminating his interrogation. Yet three years later, the police question him again and this time he admits to the crime.

His attorneys take the case to the Supreme Court. They argue that he invoked his right to an attorney and therefore the police interrogation was unlawful and his confession should be excluded. A unanimous Supreme Court held that the Edwards rule expires; a majority held that it expires 14 days after a suspect is released from custody.

What does this mean, practically speaking? If you are arrested and ask for an attorney, the police will probably let you go at some point. 14 days after they do, you’ll get a call from a friendly detective that just wants to chat… someone that is so sorry about the whole misunderstanding. After you feel nice and warm and fuzzy, you’ll probably say something that gets you in trouble.

Police will make repeated attempts to talk suspects. Criminal defendants can—and should—reinvoke their right to an attorney. Most importantly, never try to talk your way out of trouble with the police, that’s your attorney’s job.

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February 25, 2010 — Filed under: Constitutional Law,Criminal Law,Procedure,Supreme Court of the United States — Kelly Ann Booth @ 9:46 am

12 Shots, 1 Crime or: It’s the law, stupid.

If you punched someone in the face 12 times, the law considers that 1 assault.

If you steal 12 items from someone’s house, the law considers that 1 burglary.

What about a drive-by shooting where 12 shots were fired at a house? Is that 1 crime or 12?

In my client’s case, the State argued it was 12 separate crimes. Why? Because then they’re able to throw the book at someone and show that they’re tough on crime.

But in Utah, that’s not how it works. Where there is “one intention, one general impulse, and one plan, even though there is a series of transactions, there is but one offense.” (State v. Irvin, 2007 UT App 319, ¶ 18, 169 P.3d 798.) That’s the law. It’s called merger.

Today, we argued this doctrine before the court. Some people would call this a “technicality,” I call it the law. Fortunately, so did the judge. The court reduced my client’s maximum potential sentence by 55 years. I call that a win.

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February 22, 2010 — Filed under: Constitutional Law,Criminal Law,Legal Research,Utah District Courts — Tags: , — Kelly Ann Booth @ 9:08 pm

My client was charged with a nonexistent crime.

Yesterday, Midvale charged my client with a nonexistent crime. It formally charged my client with “refusing to submit to a chemical test.” The problem is, that’s not a crime.

In Utah, if you refuse a chemical test (breathalyzer, blood, or urine test—NOT Field Sobriety Tests, you can refuse those) the Driver’s License Division can suspend your license. Yet there’s no criminal penalty; no fine, no jail time. Don’t believe me? Check it out yourself by reading the law.

Amazingly enough, that doesn’t prevent the government from charging you with a crime. And unfortunately, my client had to spend money by retaining me to defend against a nonexistent crime.

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February 18, 2010 — Filed under: Criminal Law,Legal Research — Tags: — Kelly Ann Booth @ 1:39 pm

Looking for an attorney? Look for someone who is prepared.

“To… not prepare is the greatest of crimes; to be prepared beforehand for any contingency is the greatest of virtues” – Sun Tzu

People ask me what to look for in an attorney. Whether it’s family law, litigation, or a criminal case, I always say the same thing: Look for someone who prepares.

How do you know if someone prepares? Easy, ask. But you need to ask the right question. If you ask, “Do you prepare for trial?” every attorney will say “yes.” A more telling question is “What did you do to make sure you would win your last trial?”

You should hear something like, “I interviewed my client and reviewed documents so I would be familiar with the facts of the case.” Or “After I understood the facts, I looked for legal areas we could exploit and I filed several pre-trial motions.”

Preparation is the key to winning. Everything else is just luck.

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February 17, 2010 — Filed under: Administrative Law,Civil Law,Criminal Law,DUI,Legal Research,Procedure,Trials — Tags: — Kelly Ann Booth @ 11:50 am

Good trial attorneys tell stories.

People like to connect the dots. We naturally explain how things happen, how the world works. For instance, when we meet tall people, we assume they have tall parents. One piece of data—someone’s height—leads us to a cause, tall parents.

How does this relate to criminal defense? A jury needs to understand why the government charged you with a crime. They need to see why it’s reasonable to believe you didn’t commit a crime. And good trial attorneys do this with stories.

Not guilty verdicts come from interesting and believable stories. Three weeks ago, I defended a man against a traffic ticket. Not the crime of the century, but he was upset the government charged him at all. It charged him with improper lane travel and reckless driving. Why would the government do this?

According to the prosecution’s story, my client violated numerous traffic laws before a plain-clothed officer pulled him over; for safety’s sake. Yet our story was completely different. We told the jury about the officer’s  fit of road rage.

As both parties agreed, my client cut off a policeman. Yet the government claimed this was my client’s latest traffic violation after a string of observed offense. Sound plausible, right?

Wrong. If the policeman saw an aggressive driver, why wait until he was cut off to do something about it? The officer didn’t have a good answer and agreed that the general public deserves vigilant protection. And what about the van that pulled onto the street without a signal causing my client to swerve and avoid a collision? The officer saw it pull onto street but blamed my client for not letting him in. The problem is, you don’t have a duty to let anyone into your lane of travel.

But at the time, the officer didn’t care. As officers often do, this one lectured my client for 10 minutes before giving him a ticket. With those facts on the record, the jury understood why the officer gave my client a ticket: Not because my client was reckless, but because the officer was angry.

We told the jury our story and they understood. Not Guilty.

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February 16, 2010 — Filed under: Civil Law,Criminal Law,Trials — Tags: , , — Kelly Ann Booth @ 12:26 pm

Be patient.

Today, I had a client write me an email which said “I just can’t wait for this to be over.” While I understand this sentiment, my advice is be patient.

In the real world, cases rarely get better with time. The government rarely finds new evidence which hurts your case. Instead, memories get worse, people forgive, and cops retire. All of these things help you win.

So endure. Having criminal charges hanging over your head is never a comforting thought. Still, having a criminal conviction is worse. If you can endure in the short term, you’re likely to benefit in the long term.

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February 13, 2010 — Filed under: Criminal Law,Trials — Tags: — Kelly Ann Booth @ 12:00 am