Probable cause in arrests, initial appearances, informations, and grand jury indictments

April 27, 2013

Saturday, April 27, 2013

I write today to clear up some confusion that I may have caused regarding the purpose of an initial appearance in a federal criminal case. I think I caused the problem by failing to mention that all federal court felony prosecutions must be by grand jury indictment. I cover a lot of basic material that most people do not know about our criminal justice system. This information will help you understand why Dzhokhar Tsarnaev’s initial appearance happened on Monday. I also provide basic information about grand juries, including when and why they were created. Finally, you will have a more thorough understanding of probable cause and its role in our criminal justice system.

In tomorrow’s post I will look ahead to Tuesday’s hearing in the Zimmerman case and express some choice words to describe the new low in sleaziness achieved by Mark O’Mara.

Do not confuse an initial appearance with an arraignment. An initial appearance is a judicial review of a complaint and affidavit for probable cause to determine whether the affidavit actually establishes probable cause or reasonable grounds to believe the defendant committed the crime(s) charged in the complaint. The defendant does not enter a plea at the initial appearance for the simple reason that he cannot be arraigned unless he has been indicted by a grand jury.

The Fifth Amendment provides in pertinent part:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger;

Many states, including Florida, permit prosecution by information. The Zimmerman case is a good example. Florida permits felony prosecution by information except in capital cases, which must be prosecuted by grand jury indictment. Therefore, State Attorney Angela Corey could have prosecuted the defendant for second degree murder by grand jury indictment or by information. She opted to charge Zimmerman by information thereby avoiding the cumbersome and time consuming effort required to persuade a grand jury to indict him.

Prosecution by grand jury indictment originated in England in order to prevent the king from initiating bogus criminal prosecutions against political enemies for political reasons. Transferring the power to charge people with crimes from the king to a group of citizens was a remarkable accomplishment at the time and a very important step in the long evolutionary process from governance by an unchecked monarchy to governance by elected officials.

We live in a different world where grand juries have become little more than rubber stamps signing off on indictments proposed by prosecutors. This is not surprising since grand juries meet in secret without a judge to supervise the proceedings. Hearsay is permitted because the rules of evidence do not apply and the targets of their investigations are not present. The absence of judicial oversight and the exclusion of suspects and their lawyers from participation in the process permits prosecutors to rig the outcome.

A suspect cannot be arrested or charged with a crime unless there is probable cause (i.e., reasonable grounds) to believe he committed the crime.

In the case of an arrest, the police decide whether they have probable cause. However, police are not lawyers. They can and do make mistakes even when they are acting in good faith. Although prosecution by information transfers the power to charge a suspect with a crime from the police who arrested the suspect to a prosecutor, the test remains the same. The prosecutor must have probable cause to believe the suspect committed the crime. The same is true when the prosecution is by grand jury indictment only now the grand jury is making the decision instead of the prosecutor. Finally, in our legal system we have judicial review of police decisions to arrest and prosecutor’s decisions to charge suspects with crimes. The test is still probable cause but now a judge is making the decision.

Judges also review the issue of detention after police have arrested a suspect and booked him into a jail pending a decision to charge or release a suspect by a prosecutor or the grand jury. Judicial review of probable cause and detention in federal court takes place at the initial appearance.

An arraignment is a judicial hearing that occurs after a person has been charged, whether by information or grand jury indictment. The purpose of the arraignment is to formally notify the defendant that he has been charged with a crime(s) and to record his plea. In both federal and state courts, defendants are required to plead “not guilty.”

There is a good reason for this requirement. Arraignment calendars in state and federal courts are busy affairs. Judges cannot accept a guilty plea unless they are satisfied that the defendant knows what rights he is forfeiting by pleading guilty. The defendant also must provide a statement under oath regarding what he did that is legally sufficient to support the plea. Guilty pleas can take up to 15 or even 30 minutes to complete. Therefore, they are scheduled for a different time.

Magistrate judges in each federal district conduct the initial appearances and arraignments in federal court. Initial appearances are typically scheduled in the afternoon to allow sufficient lead time for federal law enforcement agents and prosecutors to prepare the formal charging document, which we call the complaint, and the supporting affidavit (i.e., sworn statement) for probable cause. The complaint and affidavit are filed in the clerk’s office at the United States Courthouse. In turn the clerk’s office notifies the federal public defender regarding the new arrest and that office assigns the case to a lawyer in the office.

The Pretrial Supervision section of the United States Probation Office also is notified about the new case and they assign it to one of their officers. Their job is to prepare a report for the magistrate judge regarding the defendant and to recommend whether he should be released pending the outcome of the case. They also recommend the conditions of the release.

The United States Marshal’s Office is responsible for transporting the person to court for the hearing.

If this process works smoothly, the defense attorney receives his copy of the complaint and affidavit for probable cause with sufficient time to review and discuss it with the defendant in the lockup at the courthouse before the hearing.

At the beginning of the hearing, counsel for the government and the defendant identify themselves for the record and the magistrate judge informs the defendant of the charge(s) against him in the complaint and the maximum sentence that could be imposed, if convicted. He also advises the defendant of the following rights:

1. Right to remain silent

2. Anything he says can be used against him

3. Right to be represented by the lawyer he chooses, if he can afford the fee and the lawyer files a notice of appearance confirming representation

4. Right to have the court appoint counsel to be paid at public expense, if he cannot afford counsel.

5. Right to be presumed innocent.

6. Right to a jury trial

Most defendants cannot afford counsel and for that reason the clerk’s office routinely assigns the case to the Federal Defender, unless retained counsel contacts the clerk’s office and confirms that he will represent the defendant.

In a multiple defendant case, each defendant is entitled to his own lawyer because acting in the best interests of one client often is not in the best interest of the other client. Assume, for example, that you are representing both defendants. Also assume that the prosecutor contacts you and offers a benefit to one client in exchange for a guilty plea and his agreement to testify against the other client. Congratulations! You now have a conflict of interest and have to withdraw from the case, if it would be in the best interests of the first client to advise him to accept the offer because you cannot advise him to do that without violating your duty to act in the best interests of your other client.

Since your conflict of interest would extend to your law partners, the law firm that employs you, or every other lawyer employed by the Federal Public Defender if you work for them, the district courts maintain a list of experienced and qualified lawyers in private practice who have agreed to accept appointments with financial compensation at the rates set by the court. This list is called the Criminal Justice Administration Panel or CJA Panel.

In multiple defendant cases, the clerk’s office appoints the Federal Public Defender to represent the first defendant. Additional defendants in the same case are each assigned to a CJA Panel attorney. I was a CJA Panel attorney in Seattle for 20 years, so I am familiar with the process.

The process I have described is the same in every federal district in the United States.

This process would have been followed in the Boston Marathon bombing case. Since the Federal Public Defender Office would have known that it would be formally appointed to represent Dzhokhar Tsarnaev on Monday, I am reasonably certain that they assembled a team over the weekend to work on the case. The team would have included at least one or two lawyers, an investigator, and possibly a mitigation specialist.

Subsequent news reports have confirmed that a defense team was assembled over the weekend.

I imagine the lawyer or lawyers attempted to meet with Dzhokhar Tsarnaev at the hospital over the weekend, but were denied access. Law enforcement officials can do that absent a request from the suspect in custody to meet with counsel. I doubt he made that request, if he were intubated, unconscious and unable to speak.

The Magistrate Judge also would have known that she would have to conduct an initial appearance for Dzhokhar Tsarnaev on Monday, assuming he survived until then.

I am relatively certain that arrangements were made on Monday morning to conduct the hearing in the hospital at the patient’s bedside with notification to all parties concerned.

I doubt defense counsel were permitted to meet with their client before the FBI’s interrogation team completed its work.

The Fifth Amendment issue is whether the defendant’s statements will be admissible against him, since he provided them during a custodial interrogation without advice and waiver of his rights per Miranda. The government will argue that the public emergency exception exempted it from having to Mirandize the defendant. The defense will argue that the exception has not been judicially approved and did not apply.

A closely related issue is whether the defendant’s statements were voluntary or coerced, given his medical and mental condition. Was he competent to answer questions?

The Sixth Amendment issue is whether he requested a lawyer at any time before or during the interrogation. We know he could not speak and the interrogation team would have known that. Was he denied pencil and paper at the team’s request before the interrogation? Did he scribble out a request that was ignored?

The remedy for a failure to Mirandize the defendant prior to a custodial interrogation is to exclude his statements from being admitted into evidence.

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Writing articles every day and maintaining the integrity and safety of this site from people who would like nothing better than to silence us forever is a tough job requiring many hours of work.

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Fred


Dzhokhar Tsarnaev should be Mirandized

April 21, 2013

Sunday, April 21, 2013

I write today to defend a fellow citizen’s Fifth Amendment right to remain silent during a custodial interrogation and his Sixth Amendment right to consult with counsel and have counsel present during a custodial interrogation. He has not been questioned yet due to his medical condition.

Dzhokhar Tsarnaev is a naturalized United States citizen in custody for his suspected participation in a scheme that detonated two bombs killing 3 people and injuring many more along the Boston Marathon race course on April 15, 2013. He is also a suspect in the murder of a law enforcement officer on the campus at the Massachusetts Institute of Technology after the bombing.

He is not an enemy combatant who attacked United States military personnel on foreign soil.

Dzhokhar Tsarnaev should be advised that he has those rights before law enforcement agents attempt to question him and no interrogation should take place, unless he voluntarily waives those rights and agrees to answer questions. No less is required by the SCOTUS decision in Miranda v. Arizona, 384 US 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

If an interrogation proceeds without the advice of rights and voluntary waiver of those rights required by Miranda, then anything he says should be suppressed and cannot be used against him in a court of law.

He has the right to be charged and prosecuted in the United States criminal justice system, rather than before a military tribunal, and accorded all of the rights that would be accorded to any other defendant charged with a crime.

The United States Department of Justice has announced that he will be prosecuted in the civilian criminal justice system and that is a proper decision.

However, despite an acknowledged lack of any evidence or reason to believe that Tsarnaev is part of a larger plot with plans to commit other terrorist acts, the Justice Department has announced that it intends to interrogate him without Mirandizing him.

This decision is an intentional violation of Miranda that not only violates the suspect’s rights, it potentially jeopardizes the prosecution.

There is no reason ever to sacrifice due process of law and this casecertainly provides no compelling reason to consider making an exception.

For more information, read this informative article by Josh Gerstein at Politico.

________________________________________

Writing articles every day and maintaining the integrity and safety of this site from people who would like nothing better than to silence us forever is a tough job requiring many hours of work. If you like this site, please consider making a secure donation via Paypal by clicking the yellow donation button in the upper right corner just below the search box.

Thank you,

Fred


Zimmerman: Understanding the Miranda Rule

September 2, 2012

To eliminate widespread abusive and coercive practices by police to secure confessions from suspects during custodial interrogations, the United States Supreme Court announced a new rule in the famous case called Miranda v. Arizona, 384 U.S. 436 (1966).

Under the Miranda rule, a suspect’s statement during a custodial interrogation is not admissible unless the prosecution presents evidence that the statement was voluntarily given after the suspect was advised of his rights and agreed to waive them.

Y’all should know them by heart, but here they are in case you may have forgotten them:

You have the right to remain silent;

Anything you say can be used against you in a court of law;

You have the right to an attorney;

If you cannot afford an attorney, the Court will appoint one to represent you at public expense.

The Right to Remain Silent

The right to remain silent comes from the Fifth Amendment, which states:

No person shall be compelled to testify against himself.

Notice that the so-called Compulsion Clause prohibits the use of any threats, physical acts, or punishment to force a suspect to give a statement. The right to remain silent may be asserted at any time, including at trial. Defendants who elect not to testify at trial, are entitled to have the trial court instruct the jury that it cannot consider silence for any purpose, including guilt. This instruction recognizes that silence is insoluble because there may be any number of reasons why a defendant may decide not to testify.

The Right to Counsel

The Sixth Amendment is the source for the right to counsel. For example, in Gideon v. Wainwright, 372 U.S. 335 (1963), the Supreme Court held via the Due Process Clause of the Fourteenth Amendment that the states must appoint and pay for counsel representing indigent defendants.

Waiver

A “waiver” in the legal system is a formal way of stating that a person has acknowledged that he has an important right or privilege and has decided to give it up. Waivers of constitutional rights are invalid absent a showing that the decision was knowingly, intelligently, and voluntarily made.

The Exclusionary Rule

The Exclusionary Rule is the remedy for a violation of the Miranda Rule. Pursuant to this rule, statements obtained by police from suspects during custodial interrogations are not admissible during the prosecution’s case in chief at trial, unless the police have complied with the Miranda Rule.

However, if the defendant testifies during the defense case and his testimony conflicts with his custodial statement, the statement may be admitted into evidence so long as it was voluntarily given.

Zimmerman Case

One of the biggest problems facing the defense is the number of lengthy and detailed statements that George Zimmerman gave to the police. The statements are internally inconsistent as well as inconsistent with each other. Some of the statements appear to contain provable lies. Unless the defense can persuade the Court to exclude his statements, George Zimmerman may not have much of a chance to win his case.

To evaluate the likelihood that his statements will be admitted, follow this guideline with respect to each statement:

Was the statement obtained during a custodial interrogation?

There are two parts to this question. The first part distinguishes custodial statements from non-custodial statements. Custodial statements require Miranda warnings because they are inherently coercive. Non-custodial statements are not as coercive because the suspect is free to terminate the contact with the police at any time and walk away. The courts apply an objective test to determine whether a suspect is in custody. That is, given the totality of the circumstances, would a reasonable person in the same situation have believed he was free to leave?

If the answer is “yes,” the police are not required to Mirandize a suspect and the statement is admissible, so long as it was voluntarily given.

If the answer is “yes,” the statement is not admissible unless the police advised him of his rights, he acknowledged that he was advised, and he agreed to waive those rights knowingly, intelligently, and voluntarily.

I believe the prosecution may argue that Zimmerman was free to leave and therefore, under the totality of the circumstances, all of the statements were non-custodial, voluntary, and admissible.

Prosecutors generally advise police to delay placing a suspect under arrest so that they can question him in the field under non-coercive circumstances without having to first Mirandize him.

Obviously, the more coercive the circumstances, the more likely the Court will require advice and waiver of Miranda rights before admitting a statement into evidence.

Mirandizing suspects is the safest way to go and I believe the police probably complied with the requirements of Miranda, even though he may been free to leave. We will have to wait and see if the defense moves to exclude his statements.

I do not see any evidence that Zimmerman’s statements were involuntary. He appears to have been eager to talk to the police. For example, he called the prosecutor’s office and tried to speak to Angela Corey about his case, but she was not available. His call was transferred to Bernie de la Rionda, who insisted on talking only to his lawyer. Zimmerman said he did not have a lawyer at that time, but de la Rionda still refused to talk to him and terminated the call.

Bernie de la Rionda’s insistence on talking only to Zimmerman’s lawyer was in compliance with ethical rules.


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