" I CAN'T AFFORD A LAWYER ANYHOW "

The second DCA issued a nice decision in Noh v. State in which the court found that in response to the Miranda warnings, the defendant's statement " I can't afford a lawyer anyhow" without any further response by the officer that the court would appoint a lawyer for free, was sufficient to render the warnings null and void, and resulted in a new trial for Noh. 

Congrats to Ivy Ginsberg for the win. 

The opinion is below. 

Noh Reversal by Rumpole21 on Scribd

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. 

SUPREME COURT

Update- our favourite federal blogger has temporarily lost his marbles. Go see his blog and see what he says about Scalia. 

With the Supreme Court taking center stage in the news, we present to you a few supreme tidbits: 

Supreme Court Decision Predictor...... It turns out there is a lock solid way to determine which side won and which side lost after oral arguments before the Supreme Court: The side receiving the most questions loses. This predictor has been determined to be correct more than 84% of the time. Almost as good as our football predictions.   The title of the post links to the NY Times story. 

Sotomayor: Chosen because: 1) She's a woman; 2) She's Hispanic; 3) She can easily win confirmation (she was nominated to the district court by George Bush Sr. (The Good Bush) and to the Appeals bench by Clinton); 4) Because she's a Yankee Fan. 5) She's the best and the brightest around.

Pick one or all and let us know. 

The Supreme Court issued a major 6th Amendment decision Tuesday:

Montejo v. Louisiana: When Scalia writes for the majority in a criminal law case, you know it can't be good.  Scalia was hunting, and the scope of the 6th Amendment was squarely within his sights. But he also has bigger prey in mind, as we shall see. 

In Jackson v. Michigan, decided a scant (in Supreme Court time) 23 years ago, the court held that the police cannot initiate interrogation when a suspect has appeared at an arraignment and been assigned counsel. 

Montejo appeared at a preliminary hearing  and stood "mute". Uhho. Never a good idea when Scalia is around.  Montejo was appointed counsel. But those cops- geez they are fast. Before his lawyer could see him, the cops grabbed Montejo, took him out to the scene to locate the murder weapon, and just for good measure,  the cops encouraged Montejo to write a letter of apology to the widow of the deceased. This being Louisiana, Montejo was sentenced to death for poor spelling in the letter, and murder. 

As Scalia winds his way through the analysis of why neither the solutions of the Louisiana Supreme Court nor Montejo are "practical" we note this chilling passage and can see Scalia's lean and hungry look when it comes to .....Miranda???!!!!!:

And when a defendant is read his 

Miranda rights (which include the right to have counsel 

present during interrogation) and agrees to waive those 

rights, that typically does the trick, even though the 

Miranda rights purportedly have their source in the Fifth 

Amendment:...

Rumpole says: "purportedly"???....uhho!! 

 Scalia has Miranda on his mind, and not in a nice way. Although that is fodder for another day, can't you just see Assistant Attorney Generals around the country looking for the right case to bring to Scalia so he can sever Miranda's head and serve it on a silver platter to the right wing?  There's a federal appeals court judgeship waiting for the AG who kills Miranda. 

And here's why this decision affects Miranda. This case is a 6th amendment right to counsel case. Miranda is (purportedly) a 5th amendment case. In this case Scalia writes to strike down the "prophylactic" rule created by Jackson in 6th amendment cases when counsel is appointed. 

And why does this decision threaten Miranda? Here's what Scalia writes: 

We created such a  presumption in Jackson by analogy to a similar prophylac- 

tic rule established to protect the Fifth Amendment based Miranda right to have counsel present at any custodial  interrogation.

See what he's doing? First he strikes down the "prophylactic" protections in a 6th amendment case analogous to Miranda.  Can striking down the "prophylactic" protections in 5th amendments Miranda cases be far behind, especially since in Scalia's view, Miranda merely "purports" to have it's origins and protections in the 5th amendment?   And of course, when Scalia does go after Miranda, what case will he cite as precedent? THIS ONE. 

It's a particular ingenious way of interpreting the constitution and creating reasons to overrule other decisions. Create case law under one amendment to be used to undermine the firmest of constitutional decisions on another amendment. Hardly the acts of a man who tells anyone and everyone that constitutional jurisprudence should be limited to original intention. 

Here, in all its glory, is Scalia's view of the real world of police and defendants:

No  reason exists to assume that a defendant like Montejo, 

who has done nothing at all to express his intentions with 

respect to his Sixth Amendment rights, would not be 

perfectly amenable to speaking with the police without 

having counsel present.  And no reason exists to prohibit 

the police from inquiring. Edwards and Jackson are 

meant to prevent police from badgering defendants into 

changing their minds about their rights, but a defendant 

who never asked for counsel has not yet made up his mind 

in the first instance. 

No reason whatsoever Justice Scalia, except that Montejo is going to die because he remained mute at his preliminary hearing. I don't know about you, but we rarely encounter murder suspects who are versed in the intricacies of 6th amendment case law. 

So for today, in a court still dominated by Scalia and his cohorts when it comes to criminal law, the lesson is silence is NOT golden:

and even if it is reasonable to presume from a defendant’s 

request for counsel that any subsequent waiver of the right 

was coerced, no such presumption can seriously be enter- 

tained when a lawyer was merely “secured” on the defen- 

dant’s behalf, by the State itself, as a matter of course.

Oh. And just in case you still don't believe me when I tell you Scalia and his gang are the farthest thing imaginable from true conservatives, consider this little paragraph about society versus the individual: speculating on the result if the court found that the appointment of an attorney (versus asking for an attorney and getting one) would automatically trigger the "prophylactic" protections ala Miranda that Scalia despises so much, Scalia shows us how much of a collectivist (versus a conservative truly concerned about protecting individuals from government) he is:

That  would have constituted a “shockingly dramatic restructur- 

ing of the balance this Court has traditionally struck 

between the rights of the defendant and those of the larger society

So there you have it. Scalia the great collectivist-always worrying about the rights of "the larger society". Upholding the rights of society versus the individual- doesn't sound like a conservative to me. 

See you in court, whispering to defendants "ASK for a lawyer. Don't just accept one."

PD PRANK

This was the sum and substance of a April first email originating in the PDs office detailing a new program. A few separate sources forwarded to us the email and we ALMOST fell for it and ALMOST printed the following:

PD KEYSTONE KOPS vs. METRO DADE HOMICIDE

What two separate sources have told us is that in response to the belief that Metro Dade Homicide does not honor a suspect's request for an attorney,  the PDs office intends to station Public Defenders outside of the MDPD and follow homicide officers to the scene of homicides and thus be readily available if suspects request counsel. 

Sounds almost like something we should have published on April Fool's day. 

Rumpole says: Glad to know spirits are high on 14th Street. If this email was sent at the SAO we'd be doing a piece on a prosecutor being fired. One office is run through a pervasive atmosphere of fear, and one is not. 

MIRANDA: 

In thinking about the Miranda rights recently, it occurred to us (and we wrote about it in the comments section on Sunday) that we have never heard of the police calling the PD's office to request an attorney to a crime scene to speak with a suspect who asked for counsel. Never.  

 From time to time we have private clients who are expecting to be arrested and have been informed to call us immediately. In those circumstances the police SOMETIMES allow them to make the call before trying to get a Miranda Waiver.  Other times they pull some stunt, usually talking between themselves that if the person would just speak with them perhaps they would not have to arrest them, but if they called a lawyer their sergeant would make them follow through on the arrest.   

But our larger point is that Miranda isn't working because the police do not scrupulously ensure that a suspect's 5th amendment's rights are being protected, EXCEPT- in one special case. When there is a police shooting,  then the officer has PBA counsel brought to the scene as soon as possible, and a formal statement is NEVER taken without the officer first conferring with their counsel, and with their counsel being present at the statement, which in our experience in this town, can often be several days later.  

It seems the police do know how to honor the Fifth Amendment when it suits their purpose. 

See you in court, filing motions to suppress. 

PS : Today is opening day in baseball. As John Fogerty sang in Centerfield:

Just to hit the ball and touch em all

a moment in the sun

it's gone and you can tell that one goodbye. 

FUN WITH TEMPERATURES:

Today the high will be a record 93. 

By tomorrow it will be 73

By Wednesday it will be a record 50.

From the frying pan into the freezer.