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Subscribe to this list via RSS Blog posts tagged in Steakleys Golden Rules

Posted by on in Criminal Defense Blog

A man in Connecticut has been cleared to continue his suit for being arrested for his response to a ticket:  

U.S. District Judge Cathy Seibel in White Plains ruled last week that Willian Barboza's rights were violated when the Fairfield County, Connecticut, resident was arrested on an aggravated-harassment charge three years ago. The New York Civil Liberties Union publicized a transcript of the proceeding Tuesday.
Barboza protested his speeding ticket by writing three curse words on his payment form. He also replaced the village's name, Liberty, with "Tyranny."
The village, 100 miles northwest of New York City, refused to let him pay by mail after one of its clerks, who were all women, told a local judge his profane phrase, which referred to them as "bitches," upset and alarmed them, according to court records. The judge referred Barboza's speeding payment form to a prosecutor and ordered Barboza to appear in court.
When Barboza showed up, the local judge reprimanded him for his comments on the form and told him he would be arrested, Seibel said in her ruling. Barboza was handcuffed and taken away before his release on $200 bail.
Seibel said the arrest violated Barboza's First Amendment rights, and she noted the criminal charge eventually was dismissed on those grounds. She said Barboza's phrase was crude and offensive to some but "did not convey an imminent threat and was made in the context of complaining about government activity."

This is similar to the Amy Barnes case here in Cobb, where she was arrested for voicing her opinion and later received a hefty civil settlement.  What's different is that Mr. Barboza's statements were written and directed not at police but court personnel.  Nevertheless, no matter how crude his response, it is Constitutionally protected.  

But never forget one of the Steakley Golden Rules that just because something is Constitutional, that doesn't make it a good idea.  

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The Free Thought Project has published their own Top 10 Reasons to Not Talk to Police.  It's similar to my own list but this advice can't be given often enough.

Here is their list:

REASON #1: Talking to the police CANNOT help you.

REASON #2: Even if you’re guilty, and you want to confess and get it off your chest, you still shouldn’t talk to the police.

REASON #3: Even if you are innocent, it’s easy to tell some little white lie in the course of a statement.

REASON #4: Even if you are innocent, and you only tell the truth, and you don’t tell any little white lies, it is possible to give the police some detail of information that can be used to convict you.

REASON #5: Even if you were innocent, and you only tell the truth, and you don’t tell any little white lies, and you don’t give the police any information that can be used against you to prove motive or opportunity, you still should not talk to the police because the possibility that the police might not recall your statement with 100% accuracy.

REASON #6: Even if you’re innocent, and you only tell the truth, and your entire statement is videotaped so that the police don’t have to rely on their memory, an innocent person can still make some innocent assumption about a fact or state some detail about the case they overheard on the way to the police station, and the police will assume that they only way the suspect could have known that fact or that detail was if he was, in fact, guilty.

REASON #7: Even if you’re innocent, and you only tell the truth in your statement, and you give the police no information that can be used against you, and the whole statement is videotaped, a suspect’s answers can still be used against him if the police (through no fault of their own) have any evidence that any of the suspect’s statements are false (even if they are really true).

REASON #8: The police do not have authority to make deals or grant a suspect leniency in exchange for getting as statement.

REASON #9: Even if a suspect is guilty, and wants to confess, there may be mitigating factors which justify a lesser charge.

REASON #10: Even for a completely honest and innocent person, it is difficult to tell the same story twice in exactly the same way.

It's a good list.  Read the details here.

 MORE:

Why Do Innocent People Confess?

$teakley'$ Golden Rule$

Top 10 MORE Things Clients Do To Damage Their Cases

Top Ten Ways to Damage Your Criminal Case

Famous False Confession Cases

False Confessions Plague Criminal Justice System With Wrongful Convictions and Wrongful "Guilty" Pleas

The Sad Case of Lester Eugene Siler

Don't Talk To The Police - EVER!

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Posted by on in Criminal Defense Blog

Last year, Cobb County Police arrested Amy Barnes for using profanity at them.  As I mentioned in a previous blog post, while using profanity or profane gestures at the police is a bad idea, it's not a crime. (It is one of Steakley's Golden Rules that just because something is Constitutional does not mean it is a good idea.) 

Ms. Barnes stood her ground on Free Speech principles.  She had the Constitutional right, she asserted, to express her extreme dissatisfaction with the local law enforcement authorities. To vindicate herself, she was willing to face trial, a jury, and the risk of a wrongful conviction. Fortunately, it did not have to go that far.

The outcome:  

Amy Barnes admits to making obscene statements Easter Sunday 2012, when she saw two Cobb County police officers questioning a burglary suspect about 7 p.m. on Austell Road. As she was riding by on her bicycle, Barnes said, among other things, “F— the police,” and “police suck,” [her attorney Cynthia] Counts said, calling the statements “a protest of police abuse.”

“Upon hearing her statements, the officers left the suspect to pursue Ms. Barnes, who they stopped and arrested,” said Counts. The burglary suspect got away. Barnes was arrested and taken to jail, charged with one count of disorderly conduct under O.C.G.A. § 16-11-39(a)(4), which bars “without provocation” the use of “obscene and vulgar and profane language in the presence of a person under the age of 14 years which threatens an immediate breach of the peace.”

The police justified this charge by alleging that a child was present when Barnes made her statement, Counts said.

“After hearing testimony from two officers and viewing a video of the incident taken from a camera in one of the officer’s cars, the judge concluded that the officers simply took issue with what Barnes had said and were determined to arrest her,” Counts said.

Clayton also concluded that the alleged presence of the child was “inconclusive” and “irrelevant,” because, “the mere presence of children does not transform the defendant’s statements into ‘fighting words.’”

“Her criticism of the police was certainly caustic, but criticizing the police and other public officials is a basic right,” Counts said. “Certainly, the police cannot arrest someone for disrespecting them by the use of a curse word.”

Ken Hodges and Alex Bartko of Rafuse, Hill and Hodges also defended Barnes, saying her “First Amendment rights were clearly violated by the arrest and prosecution.”

Hodges, a former prosecutor, said, “It is a travesty that Ms. Barnes spent 23 hours in jail, including six hours in solitary confinement. She should also not have had to spend the last year awaiting vindication. The officers should have thicker skin. There was no reason to arrest a woman on a bicycle who presented no threat.”

 

 A couple of thoughts:  It's not only police officers who should have thicker skin.  We all should. 

 The attorney who won the case for Barnes was Cynthia Counts, who also points to a NY case where "the bird" directed at police was considered free speech as well, so this case isn't outside normal court rulings.  On the contrary, I think Cobb County State Court Judge Melodie Clayton did exactly the correct thing.

 That all being said, allow me to remind you of the Steakley Golden Rule that says that just because something is Constitutional - protected by law, protected by free speech - that doesn't mean it's a smart thing to do.

 UPDATE:  Ms. Barnes settled her case for $100,000.   So maybe it wasn't such a bad idea to do what she did.  

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Posted by on in Criminal Defense Blog

Here's a long, thorough look at some of the reasons behind false confessions.  Let me reiterate that if people would just refuse to talk to the police at all, a false confession wouldn't be a possibility.  That's one of Steakley's Golden Rules.

On the other side of the equation, law enforcement agencies should adopt policies requiring the recording of interrogations whenever possible.

Full Article

After decades of resistance, even the FBI has finally agreed to start recording interviews.

 MORE:

False Allegations, Arrests, Confessions and Convictions

Another Top 10 Reasons to Remain SILENT

FBI To Finally Start Recording Interrogations

List of False Confession News

Top Ten Ways to Damage Your Criminal Case

Famous False Confession Cases

False Confessions Plague Criminal Justice System With Wrongful Convictions and Wrongful "Guilty" Pleas

Don't Talk To The Police - EVER!

 

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Posted by on in Criminal Defense Blog

There are a few general rules that can make your life much easier both inside and outside of the criminal justice realm.  I call them my "golden rules."   Consider these:

 

  1. Just because something is Constitutional doesn't mean it's a good idea.  Oh sure, you have the right to "flip off" a policeman or express your displeasure by yelling "f*ck the police", but what good does it do you? All you get is alot of scrutiny that you could have avoided. 
  2. Never consent to a police search of your body, blood, breath, saliva, DNA, automobile, computer or residence.  You have nothing to gain.  Even if the police promise to get a search warrant and come back, make them.  You gain nothing by consenting.
  3. The only way to "beat the system" is to stay out of it.  If you get arrested and charged with a crime, you find yourself under the control of other people, be it a jailer or a bondsman or a judge or a prosecutor.  You are on the defensive from the start and often the best outcome you can hope for is to get back to where you were the moment before you entered the criminal justice system.  You don't beat the system.  You survive it.
  4. Never talk to the police.  The police want nothing more than to hear "your side of the story" so they can use it against you.  If your side needs to be told, there will be plenty of time later to tell it.  But before you say anything, talk to a lawyer first.  Prisons are full of people who thought they could talk their way out of a jam.
  5. Don't spend dollars to win dimes.  I often here stories of people who have been wronged and want to sue.  The problem is that the wrong is less expensive than the suit.  Why gamble $5,000 to win $50?  It's not worth it, no matter how right you think you are.  Pick your battles.
  6. Public defenders are worth every penny you pay them.  Most public defenders are talented and hard-working.  But no matter how good of an attorney a public defender may be, they get their budget from the taxpayers and taxpayers hate to fund public defenders.  As a result, public defenders are overworked, underpaid, and less effective than they should be.  The US Attorney General and a host of others have said so
  7. Never break more than one law at a time.  How do most drug cases begin?  Traffic stops.  People who are already breaking the law by having drugs in their car should not also break the law by having busted tag lights, cracked windshields, etc. 
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After the popularity of my previous post "Top 10 Things Clients Do to Damage Their Cases" I received all sorts of feedback and ideas from other attorneys. 

So without further adieu, here is the Top 10 More Things Clients Do To Damage Their Cases:

1. Hire the Wrong Lawyer.  There are many lawyers that are experts in fields OTHER than criminal law.  When you need that great real estate or probate lawyer for a real estate or probate case, go hire him.  For your criminal case, stick to criminal defense attorneys.

2. Be Late. The client who can't make it to court on time is inviting the judge to reincarcerate him so that he is certain to be on time for court next time.

3. Dress Guilty.  Dress for court like a job interview, because both are situations where you want to make a good impression.  While you may be proud of that NORML T-shirt with the 12" marijuana leaf on the back, it is probably not the best courtroom attire.  Men should be covered from wrists to ankle;  Ladies from elbow to knee.

4. Consent To A Search.  I know I've covered this one before and again at every opportunity, but it's a big one. Consenting to a search accomplishes nothing.

5. Play Lawyer.  If you have a lawyer, let him/her do the work.  Don't file your own motions because you read something on the internet.

6. Write The Judge.  Countless times I've seen cases derailed because a client thinks it is a good idea to write the judge in a private plea for mercy.  The letter usually basically says "I did it, but I'm a good guy. I promise to never do it again."  These handwritten confessions are quickly copied and redistributed to the lawyers, including the prosecutor. 

7. Get Legal Advice From Inmates.  If they knew the law, they wouldn't be in jail.

8. Contact Victims.  Especially in domestic cases, a guy will get arrested and released on bail (or served with a restraining order) with a condition that he have no contact with the victim (usually a wife or girlfriend).  Within minutes of leaving jail, he will call her to talk about the case.  Whether he's calling her to apologize or complain, it's all the same violation of his bail conditions and often a whole new criminal charge.

9. Represent Yourself.  I have rarely seen anyone win a pro-se felony case.  It happens, but for every time it happens, I think there are ten other people who got far worse outcomes than they would have had if they had left the legal work to the lawyers.

10. Berate the Judge.  I have never seen a case go well after a defendant berates a judge.  My personal favorite was the defendant who called a judge "white b*tch" and was later sentenced to 10 years for shoplifting a pair of blue jeans.

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Being accused of a crime is bad enough, but some people still manage to make their bad situation even worse.  Based on my seventeen years in this profession, here are the top ten ways I see people damage their criminal cases:

1. Skip bail.  If you fail to show for court, you're going to lose whatever respect the judge may have for you as well as give the proseuctor an argument for why you aren't a good candidate for probation.  The judge will issue a warrant for your arrest which will pop up at the worst possible time, like when you are standing at the airport trying to leave for vacation or when you get stopped for speeding on the way to your daughter's wedding.

2. Move, but don't tell anyone.  If I can't find you then your bail bonding company probably can't find you and the court can't find you, so now it looks like you've skipped bail, because you won't get court notices in the mail and you won't get letters from your attorney.  See #1.  Just because you may have told the Post Office your new address doesn't mean the Judge has it.  It is not the job of the court system to hunt you down. It is your job to keep them informed of your whereabouts.  If you don't want to do that, at least tell your lawyer and bail bondsman.

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There are many more reasons than just these five, but they make a good start

1. It's your constitutional right.

The 4th Amendment to the U.S. Constitution protects us against unreasonable searches and seizures. Unless police have strong evidence (probable cause) to believe you're involved in criminal activity, they need your permission to perform a search of you or your property.

You have the right to refuse random police searches anywhere and anytime, so long as you aren't crossing a border checkpoint or entering a secure facility like an airport. Don't be shy about standing up for your own privacy rights, especially when police are looking for evidence that could put you behind bars.

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Posted by on in Criminal Defense Blog

Something that all lawyers have learned by the end of law school that most non-lawyers (called "laymen") never learn is that law isn't math.  Law usually isn't a clear "If A, then B" scenario. 

Consider this example:

A person asks:  "If I drink and drive, will I go to jail?"

The layman expects a "yes" or "no" answer.  The lawyer answers like this:

"If you drink and drive, that doesn't mean you are driving drunk, so you may not be committing a crime.  Even if you are DUI, that doesn't mean you will get caught being DUI.  Even if you get caught, that doesn't mean the officer will arrest you.  Even if the officer arrests you, that doesn't mean he can prove you guilty.  Even if you plea guilty, that doesn't mean you will go to jail.  So if you drink and drive you CAN go to jail, but maybe no." 

So what the layman sees as a straight line between question and answer, the lawyer sees a multitude of other questions and answers in between.  When a layman asks, "Will a jury find me guilty next year of this crime I just got arrested for?" the lawyer has no idea how to answer.  The person might as well have asked "Who will win the Superbowl in 2032, and by how much?"

Another example I love is the Goat and the Garden:

A layman awakes one day to find his garden has been eaten.  He knows that his neighbor has a goat, and suspects that the goat ate the garden.  He confronts his neighbor, a lawyer, and accuses the lawyer's goat of eating the garden.  The lawyer replies: 

  1. You don't have a garden.
  2. Maybe you have a garden, but I don't have a goat.
  3. Maybe you have a garden, I have a goat, but your garden wasn't eaten.
  4. Maybe you have a garden, I have a goat, your garden was eaten, but my goat has an alibi.
  5. Maybe you have a garden, I have a goat, your garden was eaten, and my goat was there, but another goat ate it.
  6. Maybe you have a garden, I have a goat, my goat ate your garden, but you can't prove it.
  7. Maybe my goat ate your garden, but only because he is legally insane.
  8. Maybe my goat ate your garden in self-defense.

The lesson of this story?  Lawyers think step-by-step.  Laymen think only beginning and end.

The problem with people seeing complicated issues as simple is that it gives them false sense of confidence that they can represent themselves and do just as well. In my career, I have seen many accused people make the horrible mistake of representing themselves.  They tend to be people who THINK they are smarter than everyone else and don't see the complexity involved in a legal case.  They find themselves in way over their heads, but by the time they realize and admit that they are in over their heads, it is too late.  Trials are not trial-and-error. You get ONE trial and you had better make it a good one, because your freedom is on the line.
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Posted by on in Criminal Defense Blog

Not everyone arrested and accused of something is guilty, even when the arresting officer is a decorated rising star.  Cops are human and make mistakes.  Sometimes they error on the side of arrest and "let the lawyers figure it out."  And then sometimes they are purposefully falsifying the whole thing:

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Posted by on in Criminal Defense Blog

A Texas traffic cop offers some pointers

I clocked a guy on a crotch-rocket bike doing 189 mph. Just let him go. Since police departments began to get sued for chasing speeders, around 1995, there's a fine line. You have to determine if you can catch him, if chasing him will cause an accident for him, for you, for the public. There's no way to catch anyone like that.

I rarely do much in traffic court.  The reason is that traffic fines are set just low enough that for most people it isn't financially feasible to hire an attorney.  To spend several hundred or over a thousand dollars to avoid or minimize a ticket costing a few hundred dollars would violate the Steakley Golden Rule that says "don't spend dollars to save dimes."

But if someone is charged with DUI, or if they have a CDL (commercial drivers license), or if they have so many "points" already that they are about to lose their license, then it IS worth it to hire an attorney to fight even a "minor" traffic offense.

Call us.  We will be glad to help.

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This is the one thing most clients get wrong.  When I first becamse a prosecutor, I was amazed at how many cases are built around a confession.  Clients think they can talk their way out of trouble or that remaining silent will look worse than talking.  Cop have tactics to encourage people to talk, such as "minimization" and accusatory questions.  Most people are shocked to learn that cops are allowed to lie to suspects to convince the suspects to talk.

Then there are cops that just torture people until they get what they want, but we can discuss that in another post sometime. 

Regent U. law professor James Duane does an outstanding job explaining why even the most innocent of suspects should never talk to the police absent a lawyer.  Unfortunately, most citizens do not learn this lesson until it is too late.  For that reason, it is often important to address a client's statement to the police early in the case to determine whether it is admissible in court against him or her. It's a long video, but it's worth it.

If you are detained (meaning you aren't free to walk away) by an officer, you should wait until you've consulted with an attorney before dealing with the police.  Give them your correct name and date of birth (or SSN) and then ask if you are free to leave.  If you are, leave.  If you aren't, ask for a lawyer.

 

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Scott Morgan at Huffington Post lists the 5 Reasons to Never Consent to a Police Search.   Morgan writes:

It wouldn't even be such a big deal, I suppose, if our laws all made sense and our public servants always treated us as citizens first and suspects second. But thanks to the War on Drugs, nothing is ever that easy. When something as stupid as stopping people from possessing marijuana came to be considered a critical law enforcement function, innocence ceased to protect people against police harassment. From the streets of the Bronx to the suburbs of the Nation's Capital, you never have to look hard to find victims of the bias, incompetence, and corruption that the drug war delivers on a daily basis.

Whether or not you ever break the law, you should be prepared to protect yourself and your property just in case police become suspicious of you. Let's take a look at one of the most commonly misunderstood legal situations a citizen can encounter: a police officer asking to search your belongings. Most people automatically give consent when police ask to perform a search. However, I recommend saying "no" to police searches, and here are some reasons why:

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