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Wednesday, October 09, 2013

MEANDER WITH MIRANDA

Pop quiz: what if anything is wrong with this Miranda warning?

All right, you know, because we’re here in the states now,
before you can – I can talk to you about this, I have to tell
you, about your rights. You have the right to remain silent;
anything you say can be used against you; you have the
right to an attorney; if you can’t afford one, one will be
appointed for you at no charge. All right?

Think about it for a moment while we blog about something else. 

RECUSAL: The prosecution wants the Judge in Boston in the Aaron Hernandez murder prosecution to recuse herself because, get this, the prosecutor and the judge squabbled in a prior murder case in 2010 (a case the prosecutor won no less!). The ESPN article is here.  If that was the standard, half the lawyers in the REGJB wouldn't have any judges to try cases in front of. 
We say- go put on your trial suit, shake off the judge wagging her finger at you and go try your case cry baby. 

MIRANDA: 
The Miranda warning was....BAD- necessitating a new trial in the ill fated State v. Omar Loureiro case, which is now set for a third re-trial. If you want to know the prior problems, just google "Judge Ana Gardiner" for a good read. 
In this iteration, the conviction was reversed based on the admission of the challenged confession because: 

As can be gleaned from the language of Miranda, the point of the third warning is to advise the suspect of his or her right to “the presence of an attorney.” It is clear from the warnings given to Loureiro before his second confession that h e was advised “you have the right to an attorney,” but he was told nothing about his right to the presence of an attorney before or during questioning.

The decision is here. 

One problem that we see, as the opinion points out:

The State conceded in closing argument that the only evidence directly linking Loureiro to J.L.’s death was his confession to law enforcement. 

Hmmm....what to do....what to do? 

See You In Court. 




6 comments:

Anonymous said...

Defendants comprehend Miranda rights as well as they comprehend plea colloquies - which is to say they intuit when to nod and say "yes" or "no" based mostly on guesswork and looking at the cop's face. Great majority of crim defendants are dumb. Id wager if you did a study where you rattled off Miranda to a group of average IQ adults then tested their comprehension five minutes later you'd learn how much this practice is worth. Add to the mix that people hear Miranda in high stress situations where they are unlikely to be able to process abstract ideas.

It's even worse with Jury Instructions. We persist in subjecting a sitting jury, who has just been made to listen to hours or days of testimony to another 30 minutes of instructions read at them, without even the benefit of reading along. How much legal instruction do you think the average adult can receive, process and understand out of thirty minutes of quick oral recitation?

All this shit might as well be in Chinese. If Miranda were understood at all, we'd never see a confession.

Anonymous said...

Interesting that the state decided to use the 2nd confession because they thought there were Miranda problems with that one.
Guess they had it wrong.

Wonder if they're gonna retry using the 1st one now.

Anonymous said...

Don't be surprised if this one makes its way to the Supremes in Washington. The kind of hair splitting that would catch the attention of at least 4 Justices to grant cert. Especially since the end result here is that a killer will go free. Those kinds of factors are not supposed to matter but we all know different.

Anonymous said...

I read the opinion and wonder why the judge couldn't suppress. That Miranda isn't even close.

The defendant must be quite a jerk to have been "expelled" fron a central American country.

Also, how do you do a self defense with the client not testfying?

Looks like he may get off and Ana Gardner gets a job as a waitress.

Just wondering....

Anonymous said...

What is the current status of Judge Ana Gardiner? Is she disbarred? Has the Fla. Supreme Court ruled on her status and punishment?

Anonymous said...

Sup ct will decide her fate in about 6 months