What To Do When The Police Come Calling

4-20-2010 Connecticut:

From Norm Pattis at Defending Sex Crimes

I'm a battle-hardened criminal defense lawyer, so it always surprises me how weak in the knees I get when a policeman pulls me over. The urge to confess runs rampant, even if I haven't done anything. I assume the authorities must have a reason for wanting to talk to me. What have I done?

Police prey upon our tendency to trust them. Yet confusing the sort of soul-cleansing confession one might give to a priest with the Earth-bound variety police officers ask for is playing with Hell fire. Many a man and woman sits now in a prison cell, convicted by their own words.

I pass along some general observations about cooperating with the police in the hope that it may spare you the sorrow that comes of an improvident confession to a lawman. Mind you, nothing I am writing here is meant to encourage folks to commit a crime. I am simply reminding you that however much confession may benefit the soul in some spiritual sense, the corporeal consequences of a confession could well land you in prison. And prison is not good for the soul.

So here are some common myths and misconceptions about what you must do when the police come calling.

1. The police can order me down to the station to give a statement, correct?

Wrong. The police cannot order you to come down and see them. The Fourth Amendment gives them the power to arrest if they develop probable cause to believe you have committed a crime, and they might have the authority to engage you in a brief investigatory detention. But no case stands for the proposition that you are required to come to the station for a chat. Period.

But fear undermines many folk's sense of self-interest. So does a misplaced sense of hope.

An officer may call and say he needs you to come to the station to tell your side of the story. (He may not tell you just what story that is. My favorite investigative technique? Officers show up at your door and ask: "Why do you think we want to talk to you?") The officer may say that if you don't come to the station he will seek an arrest warrant for you.

News flash: The officer is almost certainly going to seek the warrant anyhow once things have gotten to that point. What he is looking for here is a confession, to bolster the warrant and make a conviction all but a foregone conclusion.

The law does not require police officers to get your side of the story before arresting you. In rare cases only does discussing your case with the police benefit you. The only way to make an intelligent assessment of whether you should cooperate is by consulting a lawyer before you talk to the police. There are no exceptions to this rule. Don't accept the invitation for coffee and donuts at the station.

2. When the police show up at my house, I have to talk to them right?

Wrong again. The normal conventions of polite society do not apply here. The police have not come to your home to trade notes on how your respective fantasy sports teams are doing. They are investigating a crime, and you may well be a suspect. It takes perishingly little to convict of certain crimes. Minor details you give them may be used as a means of corroborating a far-fetched story told about you by others.

This is common in child sex-abuse cases. Suppose your niece or nephew now claims you abused them a decade ago. You are rattled. Shocked. The police want to ask you about the relationship. Where you saw the child. What sorts of things you did together. Why you think the child is saying these things. All of these investigative leads can be turned against you to corroborate the fact that you did, indeed, have contact with the child at certain family events. Your assessment of the child's motives will be transformed into claims that you were deceptive.

Evidence that might truly assist you, e.g., the fact that the child has made similar false or exaggerated claims, background on family conflicts that provide the child with powerful motives to lie to assure that mommy and daddy remain together, united in crisis, and other such information can be provided to the police by your lawyer.

3. If the police don't read me my rights, they can't use anything I say, right?

Wrong, unless you are in custody. The so-called Miranda warnings have become part of American folklore. Unfortunately, many people get it wrong, thanks in no small measure to television. Police are only required to advise you of your right to remain silent if you are in custody. If you appear at the station voluntarily and they tell you that you are free to leave, you almost certainly are not in custody. In these cases, courts will regard your statement as voluntary, and, Mirandized or not, you will eat your own words at trial.

If you are unsure whether you are in custody or not, and believe me, figuring that out is no easy task, simply refuse to speak to the police. Once again, don't resort to normal, polite conversational gambits. "Maybe I should talk to a lawyer" is not clear enough to satisfy a court that you were serious about wanting a lawyer present. State the following: "I DO NOT WANT TO SPEAK TO YOU WITHOUT A LAWYER PRESENT." Print it out on a three-by-five card. If you really want to short the officer's circuits, ask him to sign the card, signifying that he gets it. (He won't sign.)

This may sound cynical, but it is a conclusion I've reached after many years of head-banging: the courts are increasingly reluctant to meaningfully enforce the rights of the accused. Ask any criminal lawyer about the serious crime exception to the Bill of Rights. Don't become a victim. Call a lawyer.

Police officers are trained in the art of deception. They know how to prey on fear and uncertainty. Whether you have committed a crime or not, odds are you will be putty in their hands. There are ways to get the information important to your defense into the hands of the police, but you are not equipped to do it without a lawyer.

I have said this to folks hundreds of times. Sadly, each week I get another call from someone who has given away some significant portion of their future by talking about things they would have been better served keeping to themselves.

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Four Things You Need To Know If You Are Charged With A Sex Offense

If you or a loved one are charged with a sex offense you are undoubtedly concerned about the prospect of imprisonment. But that is only one of the four discrete harms faced by any accused sex offender. There are three other harms that are as significant, and each should be discussed with your lawyer.

Sex offenses come in many forms, ranging from urinating in public, in some jurisdictions, to forcible rape. Unfortunately, all these various offenses are frequently lumped together. Programs designed for violent offenders are often indiscriminately required for anyone convicted of a sex offense.

Here are the four harms: imprisonment, a felony record, registration as a sex offender, and being required to undergo sex offender treatment as a condition of probation. Often, defendants are so terrified of imprisonment, they do not spend enough time focusing on the other harms that will befall them if they enter a plea or are convicted a trial.

Imprisonment. Nothing prevents a prosecutor from overcharging a case. We call this colloquially "throwing the book" at someone. Thus, for one event, a defendant can be charged with a series of crimes. Often the more serious charges carry mandatory minimum prison sentences. A person facing five years mandatory jail time might willingly, and gratefully, plead guilty to charges not including the mandatory minimum. Many a defendant has walked out of court with a suspended sentence when the state dropped a charge carrying a mandatory minimum only to face nightmarish terms and conditions of probation. Be sure you understand the factual basis supporting each charge. Ask your lawyer whether the state has overcharged in a way that violates your right to be free from double jeopardy. (The answer is almost always no, but you still need to check.)

Felony. A felony conviction is a potent bar to participation in many professions. It will also keep you from voting and from enjoying certain federal and state benefits. Most state penal codes are drafted in such a way that related offenses are graded on a scale of culpability, with first degree offenses being considered more serious than offenses in the second, third or fourth degree. There are sometimes misdemeanor offenses lurking at the low end of the culpability scale. Always press in pre-trial negotiations for the state to consider a plea to a misdemeanor in those cases in which you are willing to consider a plea. At trial, be sure to ask your lawyer to review with you any lesser included offenses that you might ask the judge to submit to a jury. Remember: the state almost always overcharges a case. Putting a lesser charge before the jury might well spare you a felony if you are convicted.

Sex Offender Registration. The law is particularly savage. Lawmakers are forever pressed into hysteria when a new sensational sex abuse case hits the newspaper. They adopt a one-size-fits-all strategy for classifying those convicted of an ever-widening array of crimes. A serial rapist is the same as a 17 year-old boy who made love to his minor girlfriend. Judges acknowledge the cruelty of these laws in private conversations, but few will do anything about it when it counts. Everyone is afraid of retribution at the polls or at their next retention hearing. Laws differ in both the state and federal courts about what offenses require registration and for how long. Many states also have law-enforcement only sites that are not disclosed to the public via the Internet. If you need to register, press your lawyer to get you on a non-public list for a limited period.

Sex Offender Treatment. This condition of probation catches many defendants by surprise. It is sometimes slipped in at the very last minute after a plea bargain when a judge requires compliance with "such conditions as probation deems necessary." A person facing such treatment can expect demeaning treatment by scarcely trained and often poorly education folks with the equivalent of undergraduate degrees. A probationer might be required to fill out a detailed questionnaire about their sexual history and fantasies. You might be required to admit things you never did or face prison. And then there are group treatment sessions in which Romeo sits cheek by jowl with Jack the Ripper. And don't try complaining to the court that all these conditions are unfair or are not what you bargained for. The courts are rarely receptive to such claims.

Sex offender cases are terrifying. Clients face enormous prison terms. The rules of evidence are stacked in favor of the complaining witnesses, with special rules of young alleged victims and limits on what can and cannot be said about the past of the person accusing you of a crime. And lawmakers show increasing willingness to extend statutes of limitations to the breaking point. Don't recall where you were 30 years ago? Who can? But an alleged victim can claim you touched her or him in ways the law prohibits.

The four harms facing all sex offenders need to be addressed promptly in any defense strategy. It may be that intelligent negotiations with the state can minimize these harms if you are willing to consider a plea to some offense. Of course, in cases in which a plea is out of the question, it still pays to keep your eye on these four harms. If you are unfortunate enough to be convicted, you'll want to avoid as many of them as possible. ..Source..