Houston criminal defense lawyer Jackie Carpenter learned the hard way and tells her story. It’s rough and poignant at the same time. She handled herself admirably, in the face of a reality that never manages to find its way into the sanitized story that is told in a courtroom.
Read what happened to Jackie when she was seized by mistake. And judges, read it twice. Don’t waste this opportunity.
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I want to say this is horrific (well, it is) but that would kind of elevate it to something unique, instead of something that happens every day to hundreds or even thousands of people across the nation.
I want to say maybe Ms. Carpenter went from a detached CDL to understanding a little more what her clients go through, innocent or guilty, but that would be catty and her account really did reach me.
The trouble is this story and stories like it won’t and/or haven’t reached the majority of Americans. We really are living in a police state. No, FULL. STOP. Again. We really are living in a police state. Cops can detain you for any reason they make up, can falsify any actions of yours they want on the report, and the judge who has seen their affable and deferential faces a thousand times in his courtroom will most likely rubber-stamp their allegations. If you’re doing something perfectly legal that a LEO doesn’t like, then the report will say you presented ‘bladed body stance’, the officer feared you were going to strike him, and then you resisted arrest, which accounts for all those bruises and marks and torn clothes you have, while he is still pristine and undamaged. (although maybe a little mussed, sweaty, and winded, because beating proles can be a high-exertion activity.)
In the end what I *really* want to say is that this is an isolated incident at the hands of a few poorly-trained or rogue officers, but no, they represent the norm. They know the badge and police persona gives them immeasurable powers to define the ‘truth’ of interaction after the fact, to fit what they want to say.
The least we can do is spread the word as far as possible. But the real shame can be seen in the comments to the ABA Journal post about Jackie’s experience.
The comments at the ABA article are enlightening. When criminal defense attorneys tell me that I exacerbated the situation by not cooperating, I wonder what advice they give their clients. Also, I did not play a race card. I merely mentioned that they were looking for a black male and I was riding with one. It helps explains the PC for the stop.
You are absolutely correct on both counts. Some of the comments were atrocious, ranging from ignorant to patently offensive, and an embarrassment to lawyers in general and criminal defense lawyers in particular.
Ms. Carpenter was defo correct not to talk to police. Nevertheless, I believe there are some situations where “suspects” should talk to police. There are so many ppl who say “always talk to the police if you are innocent.” There are so many ppl who say “never talk to police if you are innocent.” Neither camp is entirely correct and it gets frustrating watching them argue, instead of converging on a Hegelian synthesis.
btw, I had a worse experience with police for advising my designated driver not to take a pbt, and standing on his right (in that state at that time) to have a bench test. It was the right advice despite the humiliation and hassle it caused us both. So, yeah, I get the fact that sometimes you can’t trust the police even when they will mess up your night for not co-operating. Still, co-operation is not never the answer, IMHO.
No, Dave, the “never talk to police” (whether guilty or innocent) camp is correct. It is one of those rare rules to which there really isn’t an exception, at least from the point of view of a criminal defense attorney. It is true that talking to the police may avoid charges ever being filed, but if we start from the assumption that charges will be filed and the need to defend against them will arise (the only way this debate is relevant to this site), there is no situation where I’m happy a client talked to the police by themselves.
Sure there are exceptions. Automobile accident. Accidentally dropping a baby that got injured. Leaving a dog in a hot car accidentally. Self-defense shooting. Saying (as a driver) that you have not been drinking (if you have not been drinking).
There are many situations where a person will be in a better situation if she talks to police than if she doesn’t.
I mean, maybe there are a lot of people out there who will operate best under a rule that is as simple as “don’t talk to police.” But that is not the optimal strategy for every police encounter in which one is a suspect.
“Never talk to the police” is a much better rule than “always talk to police.” However, an even better rule is “usually don’t talk to police.”
Of course, in Ms. Carpenter’s situation, neither she nor her passenger should have talked. It is a classic case of the type where it is bad to talk. The only times that it ever possibly could be advantageous to talk are ones where you know exactly, and beyond a shadow of a doubt, what the police suspect you of doing wrong. That was not the case in Ms. Carpenter’s sitch.
QUESTION:
Was she arrested for 4a purposes when they transported her? I think she was arrested, but then I thought Dylan was arrested for 4a purposes last year when the police picked him up, and no one else seemed to think so at the time. It seems like police should be encouraged to bring the witnesses to the detainees, rather than vice versa, out of 4A-type respect for the detainees.
The rule “usually don’t talk to the police” has all the benefits of “always talk to the police” and “never talk to the police” and also has the advantage of making it the person’s fault if they choose wrongly.
The only time I would be comfortable to talk to the police is if I was either a police officer or a practising criminal lawyer. That way you would have a chance of competing on the same level with people who do it every day.
Dave, the point I was making was that when you are contacted as a suspect by the police, the best play is to assume you will ultimately be arrested. If they’re talking to you and you are not in handcuffs in a police station, they’re trying to get enough information TO arrest you.
Working from the assumption that you will ultimately be arrested, it is NEVER a good idea to talk to the police without a lawyer. All of your counterexamples involve situations where you might talk your way out of being arrested, something that happens, albeit rarely. Something that happens with far greater frequency? People shut up their way out of being arrested.
The point of a rule is a means of handling a situation without having to assess the choices and learn, post hoc, whether you did the right thing or just guaranteed a conviction. Not talking is the rule. Even though talking may, on rare occasion, work out for the best, the consequences of making the wrong choice are far too likely and serious. Nobody ever went to prison for 20 years because they exercised their right to remain silent.
Johannes Mehserle is an example of a man who is going to prison because he exercised his right to remain silent.
This morning I came across a blog post where the suspect probably saved himself some prison time by talking. The story was that police suspected that the man stole a truck and had a gun. In reality he hd not stolen the truck and had no gun, but he did have an illegal knife. It appears that, by talking and talking quickly, he probably saved himself from prison. Now this man should not have talked (because he didn’t know what the police were questioning him about), but it is one of those stories that makes it clear to me that talking will never save you from prison. Talking may very well save you from being charged, which in turn, saves you from being convicted, which saves you from prison.
[Ed. Note: Link deleted. Links are not permitted in comments.]
Usually the prison risk associated with talking outweighs the prison risk associated with not talking. But it is overly simplistic to say that talking never get anybody out of being charged.
The thing about people who get out of being charged by talking is that you never hear about them because they generally don’t end up calling a criminal defense lawyer. It was definitely interesting watching the crimdefbar response to Mehserle’s strategy of not talking. There seemed to be a deep, abiding denial that he would have helped himself by talking* when that fact is pretty clear (obviously it is impossible to know for sure).
FOOTNOTE:
* assuming that when he talked he told his taser mix up story
Dave, you’re just plain ignoring the fast that most cops, when they’re sitting in an interview room trying to talk to a suspect or person of interest, are of the mindset that they can elicit SOME sort of information that will lead to SOME sort of charge. A significant subset of those cops will then go for that ‘some sort of charge’. Trying to trip the person up, get them to admit to something or nail down a specific detail that can later be proven wrong, because remember – you don’t make honest mistakes when you’re talking to cops – you either tell the truth or you lie. There is no other outcome for them, so if they can show that you WERE in fact in some area on some day when you previously claimed it was a different day because you got mixed up (which they also try to do), then that’s again, not a mistake, but a lie. You’re hiding something.
Another thing, our criminal code is bloated that you could say something you think is perfectly innocent and it turns it’s illegal.
The safest course of action is to assume the LEO you’re talking to wants to **** you over badly, and clam up.
Jesus, I hope you’re not a criminal defense lawyer advising clients, Dave. You go ahead and pursue that strategy for yourself, please don’t urge it to anyone else.
Your argument starts by changing the terms, nobody is arguing that it is possible to avoid being charged sometimes by talking, the point I am making is that if you are ultimately charged, it will ALWAYS be an better option ex-post to have remained silent. You can always make whatever statement you need to, after the fact, with the assistance of your lawyer. You then use Mehserle as your example, which assumes that he would have told (come up with?) the story his lawyers ultimately decided to present at trial on the spot and been able to withstand interrogation so as not to weaken it. Both are very unlikely. By talking to the cops at the outset, you lock yourself in to whatever you have said and limit your possible defenses to those that fit your statement. Thus, ASSUMING ONE IS GOING TO BE CHARGED, WHICH IS THE SAFEST ASSUMPTION, IT IS NEVER A GOOD IDEA TO TALK TO THE POLICE WITHOUT A LAWYER. That’s it, I’m done.
Also, you hear about the people who get out of being charged by both talking and not talking all the time. Guess how you hear about them? Because their co-arrestees talk and are charged while they shut up and are released without charges.
I can’t count the times where a client has despondently asked me “well why isn’t [potential co-defendant] being charged?” Answer: becuase you talked and he didn’t and without a statement from him, they cannot make a case, which is why they were trying to get a statement from the both of you in the first place, dummy.
You then use Mehserle as your example, which assumes that he would have told (come up with?) the story his lawyers ultimately decided to present at trial on the spot and been able to withstand interrogation so as not to weaken it. Both are very unlikely.
This has happened several times. The difference between the other cases and Mehserle’s is that he started talking too late.
Anyway, I doubt we as far apart on these issues as you think. I imagine that every one of your clients whom you counsel not to talk (or whom you admonish for talking after the fact) shouldn’t (or shouldn’t have) talked.
I just think that the “talking never helps” is hyperbole that is ultimately counterproductive. Kind of like when health education in high school tells the kids that they might od on addictive marijuana.
I think you still don’t get it. If you assume the cops in the room with you are justice and truth seekers you are fucking up. If you assume they are arrest-count padding conviction-seeking numbers junkies, then you’re doing yourself a favor.
Many police could give a crap about the truth. It’s not what’s true, it’s what you prove in court. Start flapping your gums and you just provide them ammunition. Cops are NOT your friends in that situation, and NEVER will be. It’s not hyperbole. It’s simple fact. They want an admission of something, don’t feed them.
Here is another example:
Back in 2002, I accidentally ran a red light that was new (and perhaps temporary), and located so that is was quite obscured by an overpass.
When was stopped for this, I talked. I did not admit to running the light (indeed I did not know I had). I got a warning instead of a ticket. My gut feeling is that if I exercised my right to remain silent I would have gotten a ticket instead of a warning. If I had gotten a ticket, I have a feeling it would have stuck.
If the policeman was a pure numbers junkie, he would have given me a ticket. Talking probably helped in that particular situation.
If the same situation happened again today, I would not talk, and I probably would get the ticket. Since 2002, I have come to understand that the potential downside of talking when you don’t know what the policeman is trying to do* is just too great a price to pay to beat the infraction.
But the point is: talking doesn’t never help. Talking to police doesn’t never get you out of liability.
FOOTNOTE:
* I actually suspect that the policeman who pulled me over for the red light violation was patrolling there because everybody was probably running the red and he was looking for sufficient cause / consent to search vehicles in a situation where he could at least give a running a red light ticket to the vehicles who would not co-operate with him in his quest to develop sufficient cause to search the vehicle.
Dave, you’ve got to stop. You’re wrong. You’ve been told you’re wrong by criminal defense lawyers, and still you persist. You are wrong. You are absolutely, totally, completely, 110% dead wrong. Your inability to grasp why you are wrong, and persistence in arguing your grossly erroneous position, renders you a danger. If you feel compelled to persist, go elsewhere. I will not allow you to continue to argue this here.