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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

Can you sue prosecutors for framing you?

Today, Pottawattamie County, Iowa, asks the Supreme Court of the United States to reverse an 8th Circuit Court of Appeals ruling which states “immunity does not extend to the actions of a County Attorney who violates a person’s substantive due process rights by obtaining, manufacturing, coercing and fabricating evidence before filing formal charges, because this is not ‘a distinctly prosecutorial function.’”

Some background: In 1978, the Pottawattamie County Attorney convicted Curtis McGhee and Terry Harrington of murdering a retired police officer. The trial court sentenced them to life in prison.

Fast-forward 20 years. A prison employee befriends Harrington and his family and starts an independent investigation in to their claims of innocence. She discovers that the County Attorney, before trial, participated in the criminal investigation. McGhee and Harrington accuse the County Attorney of  using perjured and fabricated testimony, and withholding evidence to convict them.

25 years after their convictions, The Iowa Supreme Court agrees and overturns McGhee’s and Harrington’s trial. Iowa drops charges against Harrington and McGhee pleads to a charge with no additional punishment.

With their freedom, McGhee and Harrington sue Pottawattamie County for railroading them; but there’s a catch. Prosecutors enjoy absolute immunity for their actions during trial. What does that mean? Prosecutors can put someone on the stand to testify against you, someone they know is lying, and you cannot sue them. They are immune.

McGhee and Harrington’s suit takes a new tack. They claim that because the County Attorney participated in the criminal investigation, before trial, that the prosecution only enjoys limited immunity—in this case, no immunity. The 8th Circuit Court of Appeals agreed with them.

McGhee and Harrington make a compelling argument. They argue that prosecutorial misconduct that is “so ill-motivated as to shock the conscience” violates due process even if it occurs before trial. They also argue that giving prosecutors absolute immunity at every stage in a criminal investigation encourages malicious prosecutions. The facts of this case are particularly heart-wrenching. Here, prosecutors didn’t chose to believe one person over another, or fail to disclose important evidence; here, the prosecutors fabricated evidence. To a defense attorney, nothing is scarier.

The Supreme Court must agree with the 8th Circuit and find that in this country, we the people enjoy the right to be free from this prosecutorial misconduct, to be free from railroading.

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November 4, 2009 — Filed under: Constitutional Law,Criminal Law,Supreme Court of the United States — Tags: , , — Kelly Ann Booth @ 10:52 am