You Have the Right to Remain Silent… so SHUT UP

I have many grievances with how our criminal justice system is portrayed on television, but one of the few good things that it has done is emblazoned a person’s right to remain silent in the minds of even a casual viewer. The “Miranda Warning” came into existence in 1968, when the Supreme Court decided the case of Miranda v. Arizona. In that case, the Court held that in order to protect a person’s right to remain silent and in order to make that right meaningful in the real world, suspects had to be advised of that right before any interrogation that takes place in a “custodial” setting. Thanks to the ubiquity of police shows on TV, many of us can recite the four parts of the “Miranda Warning” from memory:

1) You have the right to remain silent.

2) Anything you say can be used against you in court.

3) You have the right to have an attorney present during any questioning.

4) If you cannot afford an attorney, one will be appointed free of charge.

In the early 1990’s, the Supreme Court had the opportunity to revisit its decision in Miranda, and many suspected that what was then a very conservative (right-wing) Supreme Court would undo the requirements of Miranda.  However, the Court decided to uphold Miranda; in doing so, the Court referenced the fact that so many people could recite “Miranda Warnings” from memory (after hearing it on television so many times) as a sign that the warning itself was an integral part of our right to remain silent.

And yet, Miranda warnings rarely stop people from confessing. I once had a case in juvenile court where my client was accused of possessing a stolen car – this particular charge requires actual knowledge that the car was stolen. I opened the file to find that my client was merely a passenger, and that the car had no damage to the steering column or ignition that would advertise to the world that the car was stolen. Being pleasantly surprised at how defensible this case was, I then turned the page to find my client’s detailed, lengthy, wholly unnecessary confession to having stolen the car, doing “doughnuts” with it in a parking lot, and then letting his friend drive shortly before being spotted and arrested by the police.

This kid was hardly an isolated example; a surprising portion of my clients confess before consulting with an attorney. I have no idea why they do this. Overall, it’s the sex offenders who are the most likely to confess to everything. Despite Miranda warnings and a spinning tape recorder placed on the table in front of them, a typical client accused of a sex-offense will go on and on about how he did indeed have frequent rendez-vous with the pre-teen that he met on Myspace, but then insist that everyone was ok because it was consensual (note: NOT A DEFENSE).

Sometimes police get people to confess by lying; for example, telling a suspect they found DNA at the scene, a fingerprint on the weapon, and/or a confession letter from a co-defendant. But this is fairly rare; usually the confession comes with only the slightest provocation. I can’t figure this out. My personal theory is that many of my clients come from religious backgrounds and are under the gravely mistaken impression that confession is good legally as well as spiritually. That is, if they confess, the system will show them mercy as a reward for their honesty (note: NOT TRUE).

Even when clients give statements that they think will get them out of trouble, it is usually better for them to remain silent. Often, they talk before knowing what the evidence is against them, and so they blab before they find out that the store surveillance camera/blood trail/three eyewitnesses completely contradict their self-serving malarky. Many times, I find myself thinking that I could have come up with a better defense than my client’s implausible tale, and that it would be easier if they would just STAY SILENT and let me do the talking.

It’s not that whatever you say can be used against you; it will be used against you, whatever you say. Don’t take my word for it; law enforcement experts agree that there is almost nothing that a person can say post-Miranda warnings that will help them, even if they are completely innocent.

Enjoy this informational video; and remember if you’re ever arrested, that since you have the right to remain silent, you should really just stop talking.

Respectfully Submitted,

Norm DeGuerre

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Welcome to my workaday world…

When people in their late twenties and early thirties gather to drink and converse in public, “What do you do for work?” is the typical ice breaker question. Oh, so you’re a consultant. And you’re a programmer? And your wife is a project manager…

Me? I’m a lawyer. I’m a public defender. No, I don’t “defend the public” from criminals. I defend people who are accused of crimes but who can’t afford to hire their own lawyer.

And then, the follow-up question comes. Without fail, I am always asked The Question:
How do you defend those people?

The best thing about being asked The Question every single time a new acquaintance finds out what I do is that I get to practice lots of different answers. With family members (and others with more tender sensibilities), the best answer is the earnest one. A legal system that flatters itself “fair” and “impartial” must treat everyone who comes before it with a basic modicum of dignity. My clients don’t often receive dignity from the world of poverty, drug addiction, and/or psychological trauma from which they come. And even if my client did something truly awful, the only person who will treat them with dignity and ensure that the system doesn’t cheat in its haste to remove him from society is–or should be–his lawyer. It’s a role that I enjoy playing, and every so often, justice comes out of it. That’s how I defend those people.

Sometimes this answer takes too long. Sometimes the listener has spent too many college years avoiding the talky-chatty classes that enable one to absorb humanism and civics at the same time. Sometimes they find it easier to hold on to the rigid value system learned in childhood than to let go of prejudices and look at the messy choices one must make as an adult. Sometimes a person has simply seen too many cases on Law and Order thwarted by fiendish defense attorneys to actually listen to what I have to say. In such cases, I (sometimes) refrain from working one or more of the following phrases into the conversation:

Pedophiles? They’re only scary if you’re seven.

Who said you can’t steal a car in self-defense?

The assault rifle was just for personal use and not for sale.

But quips like these do everyone a disservice. It’s not an answer to The Question. This person may well be a juror for some other defendant in the future. Since California puts all of its truly serious “criminal justice” issues on the ballot for a popular vote, this person might very likely have a direct influence on my own legal practice. If I have information worth sharing, I need to share it sincerely. Multiple installments might be necessary.

And this is why this blog exists. I see sides of life that most will never see unless they are knee-deep in it themselves. The criminal justice system is a subject on which most people have opinions despite not having the professional training or experience to participate in the field. This is only natural as crime stories capture the imagination. These stories involve questions of right and wrong, sanity and insanity, free will and the lack thereof. Poverty, addiction, violence, police authority, and state power come together in ways that often write their own lurid headlines.

Simply put – I want everyone who visits my blog to leave with a more informed opinion about the justice system. It’s good for you. It’s good for me. It’s good for my clients. It’s good for our democracy. I am fully aware that these are my own subjective experiences and that they may or may not be proof of any larger “truth” beyond themselves, but I will always make sure that the stories you read here have truth in them. Truth is something we all chase, even if we never quite catch it. The chase alone is worthwhile.

My rules of engagement for this project are as follows:

  1. I am choosing to make this an anonymous blog. This is for the sake of my clients, not my own. I will tell my readers that I am a thirty-something public defender working in a major metropolitan area in California. Beyond that, I will not share any information that allows the reader to identify a client by name, or even by description.
  2. I will never comment on a “pending case.” By the time you hear about it, any issues of law or fact have been resolved. My blog is a place for reflection, not news.
  3. To further ensure everyone’s privacy, the people about whom I will write are likely to be composites of many different people.
  4. Under no circumstances will client confidences be shared. Ever. Nothing I write will allow a client, another lawyer, a judge or any other “officer of the court” to be identified in any way.
  5. I will never mock a client. I do, however, reserve the right to respond to my work with gallows humor, dry humor, sarcastic quips, exasperation, desperation, and indignation. I will endeavor to keep feelings separate from judgements.

Disclaimers are fun, but now it’s time to get to work.

Respectfully submitted,
Norm DeGuerre