Okay, I admit that the title of this post is a no brainer. Still, it is interesting to note that no matter how entrenched the concept of the “5th Amendment Right to Counsel” is, we still have police blowing through defendants’ requests to have their attorneys present during custodial interrogations.

State v. Bowlin, No. 99,213 (Kan. App. Ct. April 30, 2010) is the latest example of law enforcement’s seeming inability or unwillingness to reign in their blatant efforts to circumvent the Constitution. In brief, the defendant made a clear request for counsel at the early stages of his interrogation. Despite this (or because of it–”he wouldn’t be invoking Miranda if he wasn’t guilty”) the interrogators pressed forward. They pushed and pushed until the defendant agreed to talk, which resulted in a confession.

So here’s the rule on Miranda as affirmed by Bowlin (in syllabi form). It is rather lengthy, but nonetheless succinct as applied to the multiple sub-issues that can come up when the issue of the 5th Amendment Right to Counsel comes up (the numbers are the syllabus paragraph numbers in case you want to check out the case itself and refer to the body of the Bowlin opinion).

3. Invocation of the Fifth Amendment right to counsel, which is protected by Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, reh. denied 385 U.S. 890 (1966), may be asserted at any time and requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney in dealing with custodial interrogation by the police.

4. The assertion of the Fifth Amendment right to counsel under the United States Constitution has two aspects: (1) the suspect must articulate his or her desire to have an attorney present sufficiently clearly so that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney; and (2) the request must be for assistance with the custodial interrogation, not for later hearings or proceedings.

5. Once a suspect invokes the Fifth Amendment right to counsel under the United States Constitution, not only must the current interrogation cease, but the suspect may not be approached for further interrogation until counsel has been made available to him or her.

6. Although an officer is not required to ask clarifying questions to ambiguous post-Miranda statements, it is good police practice for interviewing officers to seek clarification of suspects’ ambiguous or equivocal reference to an attorney. Clarifying questions protect the suspects’ rights by ensuring that they get an attorney when they want one and minimize later judicial second-guessing as to whether the suspects were actually invoking their right to counsel.

7. Under the facts of this case, where the officers clarified the defendant’s request for an attorney during his interrogation but chose not to honor his right to counsel under the Fifth Amendment to the United States Constitution, the defendant’s post-request statements were involuntary.

8. In determining whether a statement is voluntary, courts look at the totality of the circumstances. The essential inquiry in determining the voluntariness of a statement is whether the statement was the product of the accused’s free and independent will.

9. Coercive police activity is a necessary predicate to a finding that a confession is not voluntary.

10. Where the appellate record in this case shows that the interrogators’ coercion and overreaching police conduct were causally related to the defendant’s confession, the defendant’s interrogation statements were involuntary.

11. Under the facts of this case, defense counsel’s failure to move for suppression of the defendant’s interrogation statements, which were vital to the State’s case, cannot be dismissed as trial strategy and constituted ineffective assistance of counsel.

As I’ve said more times than I can count on both hands, talking to the police is almost always a bad idea. On occasion I’ve fielded calls from potential clients who wanted to go in to the station for an interview and wanted counsel present. Even when this occurs it is a bad idea in most cases (unless you are the victim reporting a crime). A much better option is for the attorney to prepare a written statement, and maybe obtain a lie detector test with a series of question for the private investigator to ask. The former will prevent the interrogator from asking any questions, and the latter will tell the client and attorney how much trouble the client might have gotten in if he would have talked to the police with the result of the test protected from disclosure to law enforcement via Work Product Privilege.

Case in point is this week’s Goldman Sachs congressional hearings. I will spare you the details, but to say that the suspects made multiple incriminating statements would be the understatement of the decade (although the individuals may have helped the employer, they did not help themselves at all–more on that conclusion later). It was a train wreck. What amazed me was that all those who testified, including the trader who orchestrated the scheme that caused the brouhaha, said they received legal advice from Goldman lawyers (helped Goldman, but hurt the individuals? I wonder who the lawyers perceive to be the one who butters their bread). Net result: This morning I read in the Wall Street Journal that the U.S . Attorney’s Office was opening a criminal investigation.

Oops! I would love to hear Goldman’s $1,000.00 per hour lawyers explain to the Goldman employees who thought the lawyers were helping them how the legal advice to answer the questions asked by Congress was a good idea.

I’ve made it a regular practice on Ace Law Letter to periodically admonish its readers to never talk to law enforcement when they are the subject of a law enforcement investigation. In the last 24 hours I was faced with two quite different sets of facts, with only one presenting a possible scenario where such blanket advice might not be wise. So here they are…

The first one concerned an investigation that occurred months ago. The alleged victim was a wakadoo. I mean, a jar of Planters Peanuts is less nutty that this woman. The evidence was that she bought furniture online, had raised all kinds of issues with the vendor about delivery, even though terms of the sale required her to pick up the furniture, and even paid several thousand dollars for work. The check for the furniture was dated a full two weeks before the subject of another purchase was brought up, and the invoice for the later disbursement clearly indicates that it was for services rendered for the installation work. She claimed that negotiations about a jewelry transaction occurred, and that the first payment was for jewelry too, yet the timing of the very first time such discussions took place was entirely inconsistent with when payment occurred (you don’t pay for something before you even know it exists!).

The client chose to talk to the police. Sadly, the officer was a bit of a jerk in that he already reached his conclusion and nothing would have dissuaded him from his misplaced preconception, despite the clear evidence against such a conclusion. At the end of the interrogation, my client acknowledged that he lost his temper and let lose a few personal comments toward the officer. Something akin to his mom wearing combat boots. As I’ve warned before, nothing the client said would have prevented charges from being filed, and, if anything, his demeanor only served to make the officer’s case stronger when he presented it to the DA.

NEVER TALK TO THE POLICE unless you are reporting a crime against you.

Second scenario s a bit dicey, although I still believe that not talking is the best advice possible. It involved a prospective client who allegedly purchased contraband by mail. When he got busted, the police presented several shipping invoices that made it clear he had been watched for quite some time, and that the amount of evidence was likely voluminous. He was told he could either become a narc so they could catch the really bad guys, or they would walk the case over to the U.S. Attorney’s Office and the case would go federal. The latter scenario meant certain prison time. No promise was made to not present the case to the DA. Here, the man’s choice was a bad one. No doubt he will be charged with felony possession, and possibly possession with intent. But if the case goes federal, there are likely even more serious charges coming due to the use of the U.S. Mail. This man probably has no choice but to cooperate. And if he doesn’t help them bust some pretty big time dealers, he will still probably be charged in federal court.

Two scenarios. Two possible choices. It seems to me that it’s better to not say anything. In the latter case, cooperate but do not talk about the case that got you into trouble in the first place. If they will accept these parameters, great. Otherwise, don’t do or say anything at the bequest of law enforcement and hold your breath.

http://www.star-telegram.com/2010/04/23/v-mobile/2139209/estate-planning-prevents-family.html

Here’s an interesting article on the cost of being a zealous advocate for your client (the ultimate price: disbarment and imprisonment). I try to be as respectful as I can of judges, but I can see how, in a totalitarian state, one might have to sacrifice your client’s interests for the sake of a good relationship with the bench. Such sacrifice is simply unacceptable in an Anglo-Saxon, Common Law legal system. Lawyers must never worry about what a judge or prosecutor thinks about him when he has a good faith belief in what he is arguing before the Court. Richard I. Fine, Esq., would attest to this fact.

“If I know that the kid who’s been calling me dad all these years isn’t my kid, can I get out of paying child support?” I’ve fielded this question numerous times and usually end up with the same outcome. Here’s the rest of the scenario: “I’ve been living with this chick for five years. She had a baby three years ago and my name is on the birth certificate. We got married a year or so later, but I want out. I know that I’m not the daddy. I want a genetic test to prove I’m not the father!”

My response is never appreciated. “You’re screwed! The time to get that done was the day the baby was born, or at least a few days after birth and definitely before you married the woman.”

Paying child support for another man’s kid is not fun, or so I’m told. Sadly, that’s what happens in situations like the above. Indeed, you don’t even need a marriage and birth certificate with your name on it for a court to presume you are the father, even with a genetic test that determines that your genes aren’t in the kid. If you act like the father long enough for the kid to think you are, BAM!, you are “Daddy”! If any baby is born while you are married to mom, common law or otherwise, BAM!, you are “Daddy” even if you aren’t, at least if you don’t contest paternity shortly after the birth. If you hold yourself out long enough as “Daddy” for the kid to think you are indeed “Daddy,” and live in the same home with him, same outcome. Same genes or not, you are “Daddy.”

Today the Kansas Court of Appeals affirmed this long-standing principle in the common law (as well as most state’s statutes), and made it clear that absent genetic evidence that ties a specific name to the kid’s paternal source, the one who is called “Daddy” will be viewed as such in the eyes of the law. “The statutory presumption of paternity may only be rebutted by clear and convincing evidence or by a court decree establishing paternity of the child by another man or by weighing two conflicting presumptions and deciding which presumption will control based upon the weightier consideration of policy, logic, and the best interests of the child.” See In re Janzen, No. 102,133, Syl, 4, (K. App. Ct. 2010). Thus, if any of the above circumstances applies (as well as a few others, see K.S.A. 38-1114 (2009)), only upon BOTH proof that you are not the father AND an actual name and genetic proof that another man is the father will the Court even consider telling Junior that you have been perpetrating a fraud on him all these years.

One other consideration: the child’s best interests might preclude a court from finding another man the father even if there’s is proof that he is via genetic testing. If severance of the first “held out” father’s parentage will cause irreparable damage to the child’s emotional and mental stability, the non-genetic father will still be “Daddy” even if everyone knows he is not. Further, it is a big “no no” for anyone to tell Junior another man is his real “Daddy.”

Two things to take away from this ruling. One, don’t fool around with someone who is not your wife. Two, don’t pretend to be something you are not, even if doing so provides a good role model to a kid who feels compelled to call you “Daddy.” That is unless you are willing to “do the right thing” and be “Daddy” to a kid who really needs one. (Don’t act like a good person while it’s convenient then turn your back when it’s not!!!)

It’s pretty easy to predict when the next horrendously serious change in DUI legislation will occur. Basically, whenever a headline reads “killed by drunk driver,” some legislator will grab the headline and run to the nearest TV camera. Maybe I’m an anomaly, but the few times press has contacted me to comment on a recent case I have shied away. It just seems, well, unseemly. Too bad legislators don’t have the same aversion to the media as I do.

So I cannot say that the subject of this Fort Worth Star Telegram article surprises me. In summation, a recent death by DWI committed by a twice-convicted drunk driver prompted a Texas lawmaker to push for permanent DL revocation upon a second DWI conviction. Also included would be turning driving while suspended violations into misdemeanors (already that way in Kansas), and a few other tweaks in the Texas traffic code as relates to DWIs and DWSs.

Hence, the solution to stopping the heinous crime of DWI is to create more suspended license crimes. I’ve said it before and I’ll say it again, people with suspended DLs will still drive. The only thing this legislator will create are more underemployed poor people who will never be able to overcome the obstacles their drinking has caused.

But that’s not the point of this post. Simply put, Kansas DUI offenders just don’t get it. When a potential client comes into my office tearful and tormented at what will happen to him or her with yet another DUI conviction (and then walk out of the office huffing and puffing when I tell him how bad his case looks), and then can’t explain why he or she kept drinking and driving even after two prior DUI convictions, I can truly say such a person is denser than lead (which can’t even be penetrated by X-rays). And this denseness will only lead to more tweaks in DUI laws to the point where such a scarlet letter just might lead one straight to the gallows.

To say that Kansas drunk drivers have it easy is a bit of an understatement. Drunk drivers who kill in Texas are lucky to get off with 10 years prison. In Kansas, probation is possible (though unlikely), with prison of 3.8 years per dead body. But this will not last. That publicity hound of a legislator in Texas is giving us a glimpse of where our laws are likely headed in the next few years, that is if the typically arrogant, rebellious attitude of Kansas drunk drivers continues. Without a dead body, the most time any drunk driver faces in Kansas is 12 months in county jail. That’s the case with 2nd, 3rd, 4th…and to infinity (even for multiple felony convictions!!!). As for the permanent DL revocation, that doesn’t happen in Kansas until the 5th lifetime occurrence. That’s an awful lot of grace for a crime that can lead to such horrific consequences.

Wake up Kansas drunks! If you must drink, do so at home, or take a taxi when leaving the bar. If you continue to keep up your drunk driving ways, you will screw things up for the DUI offenders that are truly the rule (as in they don’t drink and drive after making one big mistake). Here’s a thought. Read and memorize Romans 13:1-7:

Let every person p be subject to the governing authorities. For q there is no authority except from God, and those that exist have been instituted by God. 2 Therefore whoever resists the authorities resists what God has appointed, and those who resist will incur judgment. 3 For rulers are not a terror to good conduct, but to bad. Would you have no fear of the one who is in authority? Then do what is good, and you r will receive his approval, 4 for s he is God’s servant for your good. But if you do wrong, be afraid, for he does not bear the sword in vain. For he is the servant of God, t an avenger who carries out God’s wrath on the wrongdoer. 5 Therefore one must be in subjection, not only to avoid God’s wrath but also u for the sake of conscience. 6 For because of this you also pay taxes, for the authorities are ministers of God, attending to this very thing. 7 v Pay to all what is owed to them: taxes to whom taxes are owed, revenue to whom revenue is owed, respect to whom respect is owed, honor to whom honor is owed.

Thus, respect the law. Don’t drink and drive for the simple reason that it is illegal. The sword of justice will not smash down on your head (or need to smash down on others hard heads even harder) if you will simply choose to not break the law.

Good news. The proposed DUI law changes that passed the Kansas Senate will be retroactive. Thus, if your DUI test failure of between .08 and .15 BAC on a second or more occurrence now subjects you to a 1-year suspension of your DL, it will revert to a 45 day suspension after July 1 (followed by a 1, 2, 3 and longer interlock period). Of course, this is true only if the House passes the bill and the Governor lets it become law.

I’ve always been perplexed by the reasoning that goes into DL suspensions of a year or more (for DUI suspensions and otherwise). Practical aspects of this modern world compel most suspended drivers to drive, and when they do it often results in accidents without insurance, which means you and I get our insurance rates hiked to cover for the uninsurable suspended drivers. It seems to me that mandatory interlocks are much more sensible. This option means that any measurable amount of alcohol in the previously convicted drunk driver would make it impossible for him to operate his motor vehicle yet he would still be able to transport his family and friends while in a sober state.

Another idea. Prison for the thrice convicted DUI convict who drives in a vehicle without an interlock, or at least make the crime a grid felony that would result in probation followed by prison if he violates terms and conditions of probation.

Allegedly, there’s a commission in Kansas that is weighing lots of options for DUIs. Too bad any changes will be publicity driven (it’s a MADD, MADD world) and likely be devoid of any common sense whatsoever.

There’s no magic to the words “Miranda Warnings.” I often find potential clients harping on the fact that the police didn’t “read me my rights.” In most circumstances, the net result is “so what.” You are entitled to be read your Miranda Rights only when you are officially in “police custody,” and that is a harder burden to meet than you think. Today the Kansas Appeals Court issued the following ruling that has been and likely always will be the law: “A person who voluntarily goes to a police station to be questioned, is questioned, and then leaves without restraints being placed on his or her movements is not in police custody.” State v. Cluck, No. 101347 (K.Ct. App. April 9, 2010).

Thus, if you talk to the police you are not entitled to Miranda unless you’ve been chained, locked behind bars, and the record shows that you are the one they are intent on arresting. But wait, there’s more. In Kansas a person actually placed in a patrol vehicle, taken to the station for a breath test, and stuck in a room waiting for the breath test isn’t even entitled to Miranda until the breath test result comes back. Ouch.

This brings me back to the brilliant Professor James Duane’s assessment of the wisdom of talking to the police (especially when you are innocent). Don’t do it! In case you missed it, watch the following video.

In PADILLA v. KENTUCKY, 559 U. S. ____ (2010), the Supreme Court held that a lawyer’s failure to advise his criminal defendant client how a conviction will impact his immigration status is providing ineffective assistance of counsel. I don’t have a lot to say about this except that the decision will have a dramatic impact on how lawyers advise client’s in the future, as well as flush out of the system many lawyers who, to be frank, aren’t very professional in the first place. It seems to me that any lawyer who doesn’t tell his illegal immigrant client that just about any alcohol or drug-related offense, and any felony, will result in ICE swooping in to deport him upon sentencing in a probated sentence case, and upon completion of his prison time when he is incarcerated for a crime, is actually committing legal malpractice, which is more difficult to do as a lawyer than provide merely “ineffective” counsel.

The big lesson here is that you must be very careful when interviewing your attorney. You must ask lots of questions, do research on your own, and only hire the attorney who provides answers to the issues in your case that concern you the most. Of course, if you want a promise that he will make the case go away for a fee, run away!!! This is unethical and a flat out lie! Such promises are made so as to get your money before you have a change to really think about what you are doing. Don’t fall for it, no matter how many flattering newspaper articles the lawyer has posted on his walls.