There is, perhaps, no “advice” offered more, and more consistently, to anyone confronted by police than to shut up. Sometimes, shut the fuck up. But always with the message, do not talk to the police. As every criminal defense lawyer knows, it just don’t happen. People just can’t not talk. Even when they think they’re not talking, they claim they didn’t talk, they talked.

Lawyer: Did you answer questions, make a statement?

Defendant: No way, man. I didn’t say shit.

Prosecutor: The defendant confessed, in writing, signed and notarized, witnessed by two nuns.

The lawyer then turns to the defendant, who shrugs with that sheepish look on his face, and mumbles: 

I just told them that it was that other dude who pulled the trigger when we went to rob the liquor store to get more weed money. That’s all. I didn’t say shit except for that.

But what of the defendant who listens long enough, close enough, seriously enough, to invoke his right to remain silent?  As the Missouri Supreme Court en banc concluded, the failure to speak the official words that, in the minds of judges, constitute a “clear and unequivocal” assertion will doom you anyway. Or, in the parlance of the street, you’re fucked.

In the early morning hours of December 10, 2013, it was asserted that RaDonna Roland (hereinafter, “Wife”) shot Defendant in the back of the arm. Defendant fatally shot Wife and thereafter, called 911.

Not a good night at the Roland residence.

After paramedics arrived, they first attempted to treat Wife. Deputy Thorn moved Defendant into the ambulance so that he could receive treatment. Defendant was emotional, upset about Wife, and repeating that he could not believe he shot her. Deputy Devost informed Defendant of his Miranda rights. Defendant continued speaking to Deputy Devost, stating that he could not believe there was not more being done for Wife, that he could not believe Wife shot him, and explaining that he should not have shot Wife but rather should have run away. Deputy Devost requested Defendant sign a consent to search form to search his home. Defendant responded, “I ain’t signing shit without my attorney.”

But that wasn’t the end of it. Not at all.

Other detectives arrived at the scene. Deputy Devost informed them that Defendant was “in custody. He’s been read Miranda. He’s refused to sign a search without his attorney.”

The next morning, Detective Linda McElroy (hereinafter, “Detective McElroy”) questioned Defendant. Detective McElroy read Defendant his Miranda rights and asked if he understood them. Defendant indicated he understood his rights, and he spoke with Detective McElroy. Subsequently, Defendant was charged with first-degree murder, section 565.020, and armed criminal action, section 571.015.

There are two corrects methods of invoking rights after being Mirandized, The first is the mere refusal to answer a question. While it’s the simplest response, it has a hidden flaw. A defendant can change his mind and choose to talk. Sometimes that happens after some subtle persuasion by the cops. Sometimes it happens when a defendant invokes, then can’t stop himself from yammering.

The second method is the invocation of the right to counsel, rather than just refusal to answer questions. This is the theoretically better method, as once right to counsel is invoked, it can’t be uninvoked without counsel’s approval. Most lawyers are disinclined to do so.

But invocation of right to counsel, how does it work?

The state argues that Defendant did not unequivocally assert his Fifth Amendment right to counsel when he refused to sign the consent to search form. Further, the state maintains that other than refusing to sign the consent to search form, Defendant communicated with the police and never invoked his right to counsel.

Roland didn’t invoke when he said, “I ain’t signing shit without my attorney”?

To successfully invoke the right to counsel, the suspect’s desire to have an attorney present during his or her custodial interrogation must be sufficiently clear so that a reasonable police officer would understand that the suspect is invoking his or her right to have an attorney present during the interrogation.

See what they did there? The invocation must be “sufficiently clear so that a reasonable police officer would understand.” As bars go, it doesn’t get much lower.

Deputy Devost never questioned Defendant. Based on the circumstances here, a reasonable police officer would not have understood Defendant’s statement refusing to sign the consent to search form to be an invocation of his Fifth Amendment right to counsel.

In other words, the “without my attorney” only referred to his signing the consent form, not the refusal to subject himself to custodial interrogation. After all, didn’t Roland specifically say “I ain’t signing shit,” not “I want my attorney”? What more could you possibly expect of a reasonable police officer? They’re not mind readers, you know.

The next day, Detective McElroy sought to interrogate Defendant after again reading Defendant his Miranda rights. Defendant again indicated his willingness to speak with Detective McElroy. Because Defendant did not invoke his right to counsel clearly and unequivocally after being read his Miranda rights by Deputy Devost or Detective MCElroy, Detective McElroy’s interrogation of Defendant was proper.

An ungenerous interpretation of Roland’s words? Cynical minds might view a ruling like this as directed toward making sure Roland’s interrogation isn’t suppressed. After all, suppression of his statements could make it harder to convict him for the killing of his wife, and that would make the police, prosecutors and judges sad.

And it’s not as if judges are incapable of being generous. After all, police officers manage to enjoy their fuzzy approval regularly, whether wrong on facts or law, despite the significance of their “training and experience” that allows judges to believe their wildest assumptions while forgiving their must idiotic errors. Generous to a fault, those judges can be.

But when it comes to the words uttered by suspects, expectations are far more demanding, far less forgiving. After all, it’s not as if their heads have been filled with an academy’s worth of specialized training in how to perform their duty as citizens by properly invoking their constitutional rights. Is it too much to expect the guy on the street to announce his intentions with the right words, clearly and unequivocally enough to satisfy the court, so that a reasonable cop would get it?