Your right against self-incrimination is provided by the 5th Amendment of the U.S. Constitution. You can’t be compelled to provide testimony against yourself… but time and time again, criminal suspects give statements that harm their own interests. The latest example is Wade Wilson, a Cape Coral man suspected in two murders during a spree a few weeks ago. Wilson was jailed on other charges while authorities continued their investigation.
Well, our Wade Wilson, not to be confused with the comic-book Deadpool’s alter-ego played by Ryan Reynolds, just couldn’t keep his mouth shut. Wilson started calling local reporters and giving statements that were broadcast on the news. Wilson gave chilling statements about his interactions with the women. While Wilson ultimately denied being responsible for killing the women, he made multiple incriminating statements, including admitting that he was the last known person to see the women alive. The state may have charged him anyway, but it certainly didn’t help, as he’s now been indicted for first degree murder in their deaths. Yes, his news interviews will be admissible evidence against him.
This goes from the most serious charges like Wilson’s, down to misdemeanors like DUI. While the State may be able to prove up a DUI based on the observations of officers, other witnesses, or a breath result… the case gets a lot easier if the Defendant admits drinking, or how much he was drinking before he got pulled over. The cops are certainly going to keep listening.
I suspect most people don’t realize there is a key legal loophole that allows people to be prosecuted more than once for the same crime. It’s understandable that people would not realize this, as the Fifth Amendment pretty clearly states: “… nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb…” It’s a principle handed down through the common law, and appears to date all the way back to the Roman Empire. However, U.S. courts have allowed people to be tried, and punished, for duplicate offenses if those offenses are prosecuted in different jurisdictions: State and Federal. That is, even if a state court has tried, convicted, and sentenced someone for a charge in state court, the federal government can also try, convict, and sentence them in federal court. The sentences can even run consecutively, that is, one after the other.
On Monday, the Supreme Court issued a decision in a case, Gamble v. United States, that could have reversed the long-standing exception to the bar on double jeopardy. Instead, a 7-2 majority upheld the double jeopardy exception. The majority opinion found that the separate laws are defined by different sovereigns: although “separate sovereigns” is a judicial construct that does not appear in the Constitution. Mark Joseph Stern at Slate points out that dissenting justices Ginsburg and Gorsuch cite founding father Alexander Hamilton, in the Federalist papers, argue that sovereignty derives from the people and that the federal and state governments are to be regarded as “ONE WHOLE”. So, the two-sovereignty theory fails the framer’s intent test, as well as failing to convince the court’s leading textualist in Gorsuch. The plain language of the Fifth Amendment does not seem to support that the “atom of sovereignty” can be split so as to place a person twice in jeopardy for the same offense.
This is not a change of law, the courts have long upheld the state/federal exception to the bar against double jeopardy. However, for those that have long thought the state of the law did not reflect the intent of the Constitution, this opinion represents a missed opportunity to close this loophole and protect this right of the people.
The Lee County Sheriff’s Office has filed additional charges against Jorge Guerrero, but not yet for her disappearance. LCSO has filed additional sexual felony offenses against Mr. Guerrero, which are based on the charges for child pornography for which he was convicted in Federal court. Undersheriff Carmine Marceno spoke at a press conference this afternoon, and stated that investigators feel confident that Guerrero was involved in her disappearance, but they are going to continue to investigate. There are two very good reasons for them not to rush kidnapping or murder charges: First, Guerrero was tried and convicted in Federal Court, and has now been sentenced to 40 years in prison. He’s not going anywhere, there’s no need to rush. Second, once he is arrested, the clock starts running for his speedy trial right, and LCSO does not want to give him an out. LCSO indicates they are still investigating the disappearance of Diana Alvarez, and Marceno says he expects more charges to be filed.
The search still continues for Diana Alvarez, but as time goes, it is increasingly unlikely that she will be safely returned. At this point, it is not clear if kidnapping or murder charges are appropriate, and hope remains. Meanwhile, the investigation continues. Marceno indicated the LCSO Detectives are going to speak to Guerrero this afternoon, potentially finding a loophole in that since his Federal case is closed, that he does not currently have an attorney appointed. Whether or not he says anything actionable, remains to be seen.
It’s quite clear that you do not have an obligation to answer an officer’s questions, especially if it could tend to incriminate you. But what happens when they use force when you don’t? The answer is not clear, but this article from the Volokh Conspiracy blog takes a great in-depth look at the different rights bestowed by the fifth amendment:
I was actually kind of surprised they had to litigate this issue, what with the right to remain silent being a Constitutionally protected right. Last week, the Florida Supreme Court unanimously agreed with the 4th Circuit Court of Appeal that it is improper for the state to comment on the the pre-Miranda silence of a Defendant who does not take the stand. Basically, if someone exercises their right to remain silent… it cannot be used against them. I suspect the Florida Supreme Court was suprised the issue needed to be litigated, the 4th DCA opinion that they upheld was just issued on February 18. The appellate court certified the question as one of great public importance, but that is still an impressive turnaround at the highest court in the state.
Donna Horwitz, via FL DOC
The Court sent back the conviction of Donna Horwitz, convicted of first degree murder in the death of her husband. When police responded to the shooting, they asked Ms. Horwitz several questions, and she stood mute. The prosecutor successfully argued at trial that her silence was indicative of a consciousness of guilt, and she was convicted and sentenced to life in prison. The Court ruled, consistent with longstanding precedent around the country, that his is unfair comment on the right to remain silent. It would essentially force a defendant to testify to rebut the assertion, which is improper.
Further, the court observed that the evidence of silence would not be relevant and is inadmissible under basic rules of evidence. While silence potentially could indicate consciousness of guilt, the meaning is ambiguous. It could be shock, or a concern that officers would not believe the story, or many other things. Due to the ambiguity, it is not relevant to the elements of the crime, and would also be inadmissible for this reason.
You have a right to remain silent… use it. The State cannot use it against you if you do.
Ultimately, the courts found that Joshua Nisbet waived his right to have an attorney, but the case is unusual in that Nisbet wanted an attorney to represent him. The courts ruled that he waived his right to have an attorney, due to the actions he took over the course of the case that prevented several lawyers from staying on his case. He reportedly disagreed over strategy, asked them to engage in unethical conduct, and ultimately threatened to shoot one attorney in the eye with a BB gun. The courts found that he had forfeited the right to have an attorney based on his actions.
Now, it is not unusual for people to waive their right to an attorney, and represent themselves. That’s also within their rights, though it is rarely a good idea. However, it’s extremely unusual for counsel to be denied when desired by a defendant. I’ve never heard of such a situation happening in Florida.
Legally, the concept is sound, but troubling. Your rights are personal to you, and you can waive them. You can waive a jury trial, you can waive your right to remain silent, and you can waive your right to demand a warrant. Not all of these rights require a knowledgeable waiver: for instance, when a cop reads someone their Miranda rights, but that person chooses to blurt out incriminating things… those things can often still be used against a person, even if they didn’t mean to. It’s troubling that a man who wanted an attorney was not permitted to get one… but the extreme circumstances of this case might be the rare case where it was appropriate.
Also, never threaten to shoot your lawyer. That’s just bad form!
The city of Jacksonville released financial numbers indicating the Dunn trial cost taxpayers $99,158.26. These numbers don’t include a lot of important costs, such as the expenses incurred by the State Attorney to prosecute the case. The majority of these costs were for law enforcement overtime, and the costs associated with jury sequestration. Unfortunately for city coffers, the hung jury on the most serious counts mean that a similar retrial is likely. This case cost substantially less to try than the Zimmerman case, and is being used as a model for upcoming cases, such as the Marissa Alexander case. That case will also be a second trial.
Wait, why doesn’t double jeopardy apply to these cases? Because they were not acquitted the first time around. Had they been found not guilty, they could not be tried again. In Dunn’s case, the hung jury on the murder charge essentially
makes the trial on that count a nullity, and it must be retried anew. The convictions on the other charges will stand. As Marissa Alexander was convicted the first time around, she could have let that verdict stand. But since she got the benefit of a new trial being ordered on appeal, she faces the prospect of a new trial. Normally, the sentence cannot be increased on a retrial, as it could be seen as vindictive. However, legal changes may force the judge to order any minimum mandatory sentences under 10/20/Life to be served consecutively. That legal change may force the court’s hand, which would suggest the increased sentence was not due to vindictiveness. Defendant’s are not eligible for gain-time or other early release on a 10/20/Life sentence, which means Ms. Alexander would serve every day of 60 years, less what credit she already had.
In case anyone needing reminding, this suit alleging that Arizona deputies beat a lawyer who was trying to comfort his client is shocking. I wish it would go to trial, but these things generally resolve before that level. Still, it’s a reminder of all the things that attorneys are up against.
The Italian Supreme Court, which recently overturned Ms. Knox’s acquittal, has ruled today that she must once again stand trial for the murder of her former roommate. Her boyfriend at the time, Raffaelle Sollecito will also be tried again. The confessed killer, Rudy Guede, is still serving his sentence for the killings after being convicted separately. Prosecutors still believe Ms. Knox and her former boyfriend were involved in the killings, despite the fact that her statement is wholly inconsistent with Mr. Guede’s killing of Ms. Kercher.
CBS recently aired the new documentary, “Central Park Five”, about five young men/boys were interrogated under intimidating circumstances, and ultimately convicted for a horrible crime in spite of the fact the stories they gave were inconsistent and frequently incorrect on details. The tainted confessions doomed their case, in spite of the fact that there was a serial rapist who’s MO matched the crime. The way the statements were extracted and the way the inconsistencies of Ms. Knox’s case mimic the incorrect statements of the Central Park Five made me think of the Knox case as I was watching it. Definitely check it out for an examination of how false confessions can happen, and how they can over power the surrounding evidence of a case.
When the second Boston Marathon bombing suspect, Dzhokar Tsarnev, was being sought, debate was roiling over whether or not authorities should read him his Miranda Warnings prior to questioning him, and whether he should be classified as an enemy combatant. The second argument did not go very far, as Mr. Tsarnev is a U.S. citizen, and is afforded the same rights as all citizens under the constitution, including due process and the right to an attorney. The more heated debate centered on whether he should be read Miranda.
The Justice Department stated their intention to not advise Mr. Tsarnev of his Miranda rights, saying that their questioning would be allowed under the public safety exception. All indications are that Mr. Tsarnev was not advised at the initiation of his interrogation, and that he has been communicating with law enforcement. The failure to read Miranda does not mean that authorities could not question him, but typically any statements obtained from such a custodial interrogation could not be used against him in court. Such statements were not admissible under the Miranda ruling by the Supreme Court, until they carved out the public safety exception in a case known as New York v. Quarles. The Quarles decision in 1984 drew a very narrow exception for questions in the interest of public safety. In that case, Mr. Quarles had been detained after ditching a firearm, and the officer asked a few questions about the whereabouts of the gun prior to reading Mr. Quarles his Miranda. The court found that under those facts, an exception was proper, and the state could use those statements in the prosecution of the case against him.
The FBI latched onto the idea of the public safety exception, and spent some time reviewing and planning when they felt they might be able to use it to avoid the reading of Miranda. They produced an internal memo in 2010 outlining which circumstances they could cite the exception to avoid the Miranda reading. The New York Times obtained a copy of that memo and published it in 2011. This presents several logistical problems, as well as a concern that the FBI has made a concerted effort to deny detainees their Constitutional rights.
The public safety exception, as outlined by Quarles, is limited to a very narrow set of facts and circumstances. Justice Rehnquist specifically discussed that there was an element of spontaneity involved when suspects are arrested in the field as Mr. Quarles was. That does not appear to fit the facts of Mr. Tsarnev’s situation. Rehnquist contrasts those questions in the field to the inherently coercive nature of interrogation in the confines of a police station house. There is a danger for the government that there was a coercive nature to Mr. Tsarnev’s custodial interrogation in the hospital, where he was undoubtedly tied down and confronted by multiple trained interrogators who had time to formulate their questions. The FBI memo attempts to broaden the scope of the public safety exception, but such internal memos carry no force of law. It’s possible that interrogators’ reliance on the FBI’s interpretation of the exception could taint Tsarnev’s statement; and a judge might refuse to admit those statements. This may not be a major issue in Tsarnev’s case, as the government may feel they have enough evidence against him without needing to rely on his statements. They certainly will be challenged by the Defense if the case ends up going to trial, as the facts of Mr. Tsarnev’s interrogation do not fit the facts of Quarles and its narrow exception.
It is possible the court could further expand the public safety exception. The Quarles language is very limited and fact specific, but it is easy to imagine situations where such an exception would be appropriate. Imagine a scenario where terrorists are planning to detonate a nuclear weapon in the United States, and are on the verge of doing so (a Jack Bauer situation). What if agents were able to capture a conspirator who had information about how to stop the imminent attack: would we want them to advise the terrorist he didn’t have to talk to them? In such a hypothetical, the public interest would be better served by allowing the interrogation to proceed, unadvised. The public interest would favor the greater good of seeking information to protect more people from harm, and could still be a limited enough public safety exception to warrant abuse from overly broad interrogations. I recognize the slippery-slope concern of further abrogating Miranda, but it might be appropriate under limited factual circumstances. As it is, the government has rarely attempted to claim the public safety exception, so there is not a great body of law on the subject. It will be interesting to see how it develops.