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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

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

A Novel Criminal Defense – Factual Innocence

Today in Miller v. State, the Utah Court of Appeals ruled that district courts must hear claims of factual innocence without making the person bringing the claims jump through myriad procedural hoops. Now, Harry Miller can finally pursue his claim of factual innocence.

Miller’s story is heartbreaking.

In 2003, a woman saw Miller in public and identified him as the man that robbed her at knife point. Miller, a black man, had an alibi. At the time of the crime (December 8, 2000) he was in his homes state of Louisiana. Moreover, less than two weeks before this crime he had a stroke; he was unable to drive and required frequent care. His in-home nurse asserted that she had visited him, in his home, on December 7, the day before the crime.

The State of Utah, however, prosecuted Miller anyway. Its theory of the crime was that Mr. Miller could have done it. Yet their timeline required Miller to leave the house shortly after his nurse left, get on a plane, fly to Salt Lake City, and shortly thereafter, rob this woman. He then had to get back on a place and fly home because several people saw Miller in Louisiana. Miller has never been on a plane.

Unbelievably, a jury convicted Miller and the court sentenced him to five years to life in prison. Miller appealed his conviction and someone, somewhere came to their senses. The State agreed that “irregularities” occurred in Millers trial and stipulated to its reversal. The State then decided not to reprosecute Miller. Still, the State took over four years of Millers life; that’s how long he spent in prison.

Flash forward to today. Although he’s been found “not guilty,” Miller wants to take advantage of Utah’s Factual Innocence Statute. The Statute allows people that are more than factually innocent (as opposed to merely not guilty) to recover money for the time they spent in prison.

Miller asked the district court for a hearing to prove his innocence. The court denied him the opportunity to tell his story. Therefore, a good friend of mine, Andrew McCullough, took Miller’s case to the Utah Court of Appeals.

Today the Court ruled that as long as Miller demonstrates there “is a bona fide issue as to whether the [he] is factually innocent,” he is entitled to hearing. The Court then held that Mr. Miller proved a bona fide issue exists. This isn’t the end of Miller’s battle, but in this case that’s a good thing.

Congratulations to Mr. Harry Miller for winning and to Andy McCullough for championing justice.

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November 19, 2009 — Filed under: Criminal Law, Procedure, Utah Court of Appeals — Tags: , , — Kelly Ann Booth @ 1:40 pm

Horizontal Gaze Nystagmus Field Sobriety Test During DUI Stop

If a Utah policeman pulls you over and suspects you of DUI, chances are the officer will ask you to perform a “couple of routine tests.” What he really means is, he’d like to gather evidence that you’re driving drunk; he’s going to take notes and use this against you at trial.

Don’t let the police use fake science against you. Always remember: Refuse to take the Field Sobriety Tests (FSTs). In Utah, there are no penalties for refusing to take the FSTs during a DUI stop. If you agree, most likely the police officer will ask you to hold your head still and follow the tip of a pen or the tip of his finger.

The officer will move his pen to your left while watching your eye movement. The officer is observing your eye movement. As shown in the video, he’s looking for involuntary eye jerks, technically called nystagmus. Because this is done from a side-to-side movement, this test is called the Horizontal Gaze Nystagmus test.

Utah law enforcement claims this happens when someone is drunk. What the police fail to mention is that many other perfectly harmless reasons can cause this eye jerk, including an improperly administered test.

We fight DUIs by taking police science head on with real science. And gradually Utah courts are understanding that the Horizontal Gaze Nystagmus test isn’t scientific or accurate at all.


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November 12, 2009 — Filed under: Criminal Law, DUI, Procedure — Tags: , , , — Kelly Ann Booth @ 12:55 am