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Miranda

Posted Thursday, May 13, 2010, at 6:57 AM

There have been four incidents of domestic terrorism since the Bush Administration left office. With each of these events, there has been controversy surrounding whether to read these terrorists their Miranda rights. The current policy seems to be to interrogate for a while first, then advise the suspect of his rights, then interrogate some more.

What's the controversy about Miranda?

In 1966 the United States Supreme Court ruled that before a suspect can be interrogated he must be advised that he has certain rights under the Fifth Amendment to the U.S. Constitution. Those rights include the right to not testify against your self (remain silent) and the right to have an attorney. Failure to advise the suspect of these rights could result in any evidence obtained by the questioning being excluded at the suspect's trial.

Law enforcement does not have to read you your rights. That is a myth perpetuated by TV cop shows. An officer can stop you, converse with you, and even arrest you without Mirandizing you and any information you volunteer can still be used against you. You SHOULD be read your rights before an interrogation. But if that is not done, the only consequence is that the information given before you are advised of your rights will be excluded as evidence against you.

So, now we capture someone who has committed, or attempted to commit, a terrorist act. Should he be read his rights?

That depends on what you are trying to do. If your primary goal is to criminally prosecute a suspect in a civilian court, questioning without Mirandizing will jeopardize the prosecution. If prosecuting these guys is our goal, why are we questioning them for thirty minutes to four hours without Mirandizing. Most of any post Miranda information obtained will "be fruit of the poisonous tree" and excluded from evidence.

If it is critically important to get actionable intelligence, it would be foolish to tell a suspect that he can remain silent and have an attorney present during any questioning. If the primary goal is to prevent enemy combatants (irregular militant forces that do not wear uniforms) form committing further acts of terrorism or sabotage, why are you reading Miranda rights to the suspect at all?

I am *just* a criminal defense attorney. Clearly, I do not have what it takes to be an Eric Holder, the U.S. Attorney General. However, I cannot understand our current policy. It appears to be partially focused on intelligence gathering and partially focused on criminal prosecution. Unfortunately, the choices appear to be mutually exclusive.

If these guys are enemy combatants engaging in asymmetrical warfare, they should be treated as such. The Geneva Conventions permit the interrogation and unlimited detention of such people. They are not granted the rights and privileges of either uniformed soldiers or civilians. Incidentally, Miranda also does not apply to soldiers tried under the Uniform Code of Military Justice.

If they are criminals committing crimes, they should be treated as such. American Federal Criminal Procedure is very clear and easily understood by everyone who has made it through the second year of law school. Interrogating prior to Mirandizing, will severely jeopardize a criminal case.

Our present policy appears to achieve the worst of both possible outcomes. We interrogate for a while without Mirandizing and potentially ruin a civilian criminal prosecution. Then, we Mirandize and stifle additional efforts at gaining actionable intelligence.

In all of the times that the Attorney General has been questioned by the media about this, he has never revealed how our current practice advances either goal. Rather, we hear him talk about getting intelligence then following the constitution. That literally means getting less than all information and ruining the subsequent criminal prosecution.

It is not up to me to decide which policy is more important. But it seems that we should pick one goal or the other and design our policy clearly around it.


Comments
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I wonder though, how many "acts of terror" happened before we changed its name from "acts of violence?"

Since 9-11 we changed several methods under the guise of homeland security that allowed invasions of privacy as well as the difference between the two acts I mention above. Yes I know this involves a lot of legal/political mumbo jumbo but we have always had these acts, even though our main population of White Anglo Saxon Protestants weren't the targets. As a matter of fact a group of these very WASPS performed acts of terror upon their fellow Americans under the guise of hoods as KKK members. Weren't these acts of murder and intimidation just as heinous?

Gang members also carry out "acts of terror" whether small neighborhood groups or large mafiosos. Even "gangs" [we subtly sometimes call them cliques] in our schools bully and terrorize individual students who may not fit their exact same mold due to race differences or sexual preferences, or even simply because they may take their class work seriously.

No. I think with the name change, came a dangerous precedent, just like those wanting to publicly display religious icons on public property and pray before public meetings. If we allow one accused person to be treated in a way different just because we now label them as a terrorist instead of a criminal, we may be allowing the criminal justice system to eventually call a gang of high school boys acting as terrorists when throwing a punch on the school bus. I am not condoning the acts at all, but in a country where one is innocent until proven guilty, when we treat one group differently than we treat another we open the door for it to backfire in our face sometime in the future.

A simple example is the prayer that is said at the beginning of each school board meeting. Most look at it as at worst harmless..but in fact it too sets a precedent. It is said in the fundamentalist brand of Christianity, close to Pentecostal "brand" of Christianity. If that is acceptable, what's to say that in another community which is Catholic, Jewish, or Hindu, is it not the same right for those to pray in the manner of their own faith?

Our country's laws were set in place, not to eliminate religion in public places, but to protect those who wish to practice theirs if it is different than those currently in power.

Currently most in power are those WASPS but what if in the future, those of another religion hold the majority? If the latest supreme Court justice nominee is approved it will be the first time that NO protestant judge was one of their number. Only Jews and Roman Catholics will be on the bench. Maybe unheard of 200+ years ago but there it is... The same could happen here.

How would the fine people of clay county feel if the prayer we said at the beginning of a school board meeting was from the Roman Catholic or Jewish faith? There are great pockets of Islam in and around major cities in this country. Do their meeting begin with a prayer in that faith? I wonder?

Should we not treat all of our people the same in our justice system and not try to hide the preferential treatment by changing the name of the alleged act? Someday your grandson may throw a rock through someone's window...Will it be called an act of terror because the local establishment has a prejudiced view of him so it will be called an act of terror instead of an act of property damage? What if glass hits someone and injures them? What then. How far could it go if we set the precedent now?

As a Christian, I am challenged by Christ to love ALL of His people. How can we treat some one way and some another way? This has been answered by those in our federal government, many who claim to be Christian, but with their acts I wonder? Same goes for those in our local government. The rights of those who do not pray the same "brand" of prayer as those holding office on the school board are being violated. Are they doing this out of pure ignorance of their act? Are they doing it to show their popularity or power over those who are not of their same brand of faith like a "popular" group of school children? Do they care that they are setting a precedent that may come back to bite them or their grandchildren sometime in the future? Or do they truly think that their God thinks that one brand is better than another? I wonder just as I wonder if one alleged law breaker is more guilty than another by the new and legal definition of his crime?

-- Posted by Jenny Moore on Thu, May 13, 2010, at 10:02 AM

I do not want to be disrespectful to you Mr. Hear. I do agree with a lot of your opinions & even enjoy your blogs for you seem to be a very intelligent man although your "I'm the man" attitude does take away from your class. I am unable to locate a personal e-mail address for you so I had no other way to ask you how you are able to find time to write so many blogs to submit to the paper but you have clients that are sitting in jail for one reason or another & trying to get in contact with you but are unable to do so. I understand these people are there for a reason but as their attorney, you have an obligation to communicate & defend them. If you only want to represent those with the big bucks then why are you a public defender? On the other hand, a relative of mine paid you a lot of money and not only did they receive poor service, but you ripped them off! You talk of yourself as a very committed man however your actions say otherwise. I don't know you personally but I do know people that deal with you on a professional level (& I don't mean just inmates) & I understand why you advertise on a billboard because I'm sure word of mouth doesn't get you much business. Mr. Hear, everyone in this community need's a lawyer at some point or another for one reason or another. Be it criminal circumstances or to write a will, all of us need a lawyer who will have our best interest in mind & treat us with respect as I'm sure you would want for yourself. I'm sure you are a busy man but you chose a busy profession & there are people who need your attention. People with children at home wanting to know when mommy/daddy is coming home and they can't be told because their lawyer can't take 30min to visit them and talk about their case. There are a few people in the Clay Co. jail who can't seem to get a response from you. Now, everyone has circumstances that can keep them from doing their job but if it's going to be for a long period of time then a responsible lawyer would refer their clients to someone who has the time. I don't mean to offend you in any way. I just want you to realize & understand how you and the way you do business are being viewed in a negative manner. Again, I wanted to send you an e-mail to your personal account that I thought I would find here in your blog section so I'm sorry that I had to write this as a comment. I'm sure it will be deleted as soon as you read it which is fine since I just wanted you to read this and do so with an open mind. I hope you are able to help those that you took an oath to help and I pray that you take a good look at your situation & decide whether you want & are capable of being a public defender for this community. Just because someone goes to jail doesn't mean they are a bad person & most people these days can't afford a private attorney. I have never been to jail but I have had to hire an attorney for other reasons & I thank god for his support (& those at his office), knowledge, professionalism & his ability to stand up & fight for me. I believe that whether he is paid or not, he would treat all of his clients the same as should every lawyer.

-- Posted by Kayk on Thu, May 13, 2010, at 3:57 PM

Dear Kayk

Thank you for your post. I must confess that I am far from perfect. Moreover, every time I think that I have life figured out, it has a way of kicking me in the keister.

It would be helpful to know who your loved one is. I have well over 100 active public defender cases at the moment plus my private clients. Between May 17 and June 7, I have thirteen cases slated for jury trial. Most to all of them will resolve without a jury, but you never know and have to be prepared. This has been fairly typical for the past six months.

My office is in my home. I advertize that I take evening and weekend appointments. It is typically no problem to see people up to 6:00 p.m. (when my wife gets home) and later in the evening with some advanced notice. Saturdays are typically available between 10:00 and Noon.

My telephone number should be on every other page of the white pages of the phone book.

Inevitably some families call several times per week with instructions or requests. Other families are never heard from. Unfortunately, I don't think that I will be able to make all of the people happy all of the time.

Additionally, my office receives up to 40 telephone calls per day. If I spend 10 minutes on each call, that is six hours and forty minutes per day. I am typically in court Monday through Thursday, mostly doing P.D. cases. I also have to meet with clients, do research, and write pleadings. It is not possible to return all of the calls.

If you have called and not been called back, I am sorry. I would suggest making an appointment.

It is typical for families to be in touch with their loved ones at least once per week. Families can often be a good way to transmit information to and from inmates.

If you need to drop in after hours unannounced, the rule has always been: If you are there to make a payment, my wife is happy to see you. If you have an emergency, my wife understands. If you want to chew on my ear, my wife is jealous of her time with me and may not be happy.

Please make an appointment and I will try to help you.

-- Posted by Charles Hear on Fri, May 14, 2010, at 8:30 AM

Interesting Charles, for some strange reason I thought you did nothing but legal services every hour of the day. Who needs time off when you can be out there fluffing every pillow. If you have ever met Charles, you would know that he does not have the "I'm the man" attitude, even though he is "The Man". It does not seem like Kayk really wants to contact you Charles, but rather make you look bad on the internet. If you google Charles Hear, your web page is the first link that comes up. Your telephone number is on every other page in the brazil phone book, and is on the billboard that this person pointed out.

I know of this one case that you handled where a company screwed up some paperwork, and your client wanted to sue this company for six hours worth of time that he had to take off to handle the typo. The judge threw the case out, and your client thinks this is your mistake, and that your time should be free. "How?" I asked. He said "because you just didn't care". I asked "why do you think that he didn't care?". He answered "becasue he didn't get me my money, why should I have to pay?". I said "becasue he did what you wanted, fixed the mistake". If you blow a tire. Should the company that replaces the tire also be responsible for a leaking fuel line?

-- Posted by sandman442 on Tue, May 18, 2010, at 11:42 AM


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