War over discovery and exculpatory evidence

 Why is it that prosecutors don't want to turn over evidence? Are they scared that if they do, they are going to lose? When I was a prosecutor, I figured that if I showed you how strong my case was, you would be more likely to take my plea offer. And, if there were weaknesses in my case, I needed to understand and acknowledge them. I had several cases I sent back to the detectives for further investigation.

In the end, the mandate of the prosecutor is to DO JUSTICE.

When I worked for the DA of New York, the mandate was taken seriously. That was a dozen years ago, and I don't know how things are today.

In Tennessee - the mandate seems to be to win at all costs. Cases are brought without sufficient evidence. I get the feeling the standard the prosecutors use for measuring a case has nothing to do with proof beyond a reasonable doubt but whether or not they have enough for the much lower probable cause to get through preliminary hearings and grand juries.

I think the problem is that most criminal cases plea out. So, the prosecutors know that if they can get it past preliminary hearings and grand jury, then the defendant is likely, probably 97 or 98 percent of the time, to plea. Those are pretty good odds for the prosecutor.

Frankly, I blame my fellow defense attorneys and myself. We need to do a better job demanding evidence and defending our cases. We need to attack the case more and be willing to take cases to trial. The more we do that, the more likely we are to accomplish a couple of things.

1. Get better results for our clients;
2. Get weak cases dismissed;
3. Win jury trials;
4. Get better plea offers for our clients;
5. Force the prosecutors to take a close look at their cases from the start (this will happen if we take away the almost guaranteed plea deal from them and make them work for their case).

A wise friend once said that the quality of the prosecution in your town or county is a direct reflection of the quality of the defense bar. (Brent Turvey, criminologist). I believe that to be a true statement.

The more we hold their feet to the fire, the more they will demand from their police officers in the field. There will be fewer weak cases - frivolous you might call them, fewer unjust pleas, the case loads will lighten up, and the real cases will go forward. We will have a more proficient defense bar that is willing to take more cases to trial.

Believe me, in many instances, you will get a better result from 12 of your neighbors in a jury trial than you will ever get from the State. And, if the prosecutor knows you are willing to go that far, he will become much more realistic, much quicker.

Results speak for themselves. Over the last year, I took four criminal cases to trial with not guilty verdicts on all of the charged crimes. Subsequently, I have answered ready on three felony cases, one a first degree murder, one a rape and one a coercion case, all of which have been dismissed by the State prior to trial.

If we do this, if we fight for discovery and exculpatory evidence. If we battle the case all the way through, the quality of our criminal justice system will improve for everyone. Trials get the citizens involved, too. The community will feel it has a stake in the system. This is a good result and empowering for all of us. Believe it or not, it is even a good policy for the prosecutors.

Never say die. Put on your best defense.

Bob V
rlvogel@robertvogellaw.com

Silence can be used against you

Tell Police Why You are being quiet!

The California Supreme Court has entered one of the worst rulings I've ever seen, destroying sixty years or more of established civil rights law and gutting the 5th Amendment to the Constitution. No citizen of the United States can be made to testify against himself. If you choose to talk to police, whatever you say can be used against you. This is the mantra of the Miranda warning.

 

However, this Court has said that until you affirmatively evoke your right not to speak, your silence IS speech and can be used against you. According to this decision, a prosecutor can stand up and tell a jury that your silence means you are guilty. Silence equals guilt. Which stems from the logic that an innocent person would tell what happened. Innocent people talk, guilty people claim the 5th. That stereotypical thinking is what is exploited here to convict a person.

 

My experience in dealing with thousands of criminal cases is that it is more likely a guilty person will try to explain away his crime. An innocent person falsely accused often shuts up and gets angry and frustrated. Guilty people often try to talk their way out of it.

 

These are not truths that I would apply as rules of the road, simply observations I've made. The point is that the assumption that the California courts have made does not hold true. Neither the choice to talk to police or to remain silent is an indicia of anything. 

 

The police will often try to manipulate people into talking using the strategy that, if you have nothing to hide you'll tell us what happened, or, only guilty people need lawyers. If the police were really interested in solving the crime, this might not matter. But, the police are interested in arresting the person in front of them. If they're asking you question, you're a suspect. If you're a suspect, they want to arrest you. So, they try to get you talking and hang you with your own words.

Now, they can hang your with your own silence.

Since the ruling requires a suspect to invoke his rights, what happens if the police wait four hours to advise you of your rights, or a day, or two? Does the fact that you have remained silent about the accusations against you mean you are guilty? Can the police create an indicia of guilt by letting you sit there in silence? According to this Court they can.

If asked, my advice to clients is to shut up. That is still my advice. Don't talk to the police. They are not there to help you, they are there to make an arrest. If a prosecutor tries to use that against you, let your lawyer handle it. Fortunately, a California decision has no influence on any other State. Until your state supreme court adopts this decision, the prevailing law remains intact.

The bottom line here is that the facts in this case and the "right outcome" of this case - i.e. the guilt of the defendant, were more important to this court than the preservation of our fundamental rights. For this court, the 5th amendment rights of a citizen were not as important as the conviction of that citizen for this crime. The court is no longer doing justice. It is no longer upholding the law. It is sacrificing a fundamental right of all citizens so this conviction could be maintained. In doing so, it has given the prosecutors in California another, underhanded tool with which to go after people who innocently exercised their right not to talk.

We must be careful not to let this happen anywhere else.

Bob Vogel
rlvogel@robertvogellaw.com
www.robertvogellaw.com
 

 

 

Court: Silence can be used against suspects

AP Photo: Jeff Chiu

In this Nov. 10, 2011, file photo, Justice Marvin Baxter sits on the bench at the California Supreme Court in San Francisco.

3 days ago By PAUL ELIAS of Associated Press

 

SAN FRANCISCO (AP) — The California Supreme Court has ruled that the silence of suspects can be used against them.

Wading into a legally tangled vehicular manslaughter case, a sharply divided high court on Thursday effectively reinstated the felony conviction of a man accused in a 2007 San Francisco Bay Area crash that left an 8-year-old girl dead and her sister and mother injured.
Richard Tom was sentenced to seven years in prison for manslaughter after authorities said he was speeding and slammed into another vehicle at a Redwood City intersection.
Prosecutors repeatedly told jurors during the trial that Tom's failure to ask about the victims immediately after the crash but before police read him his so-called Miranda rights showed his guilt.
Legal analysts said the ruling could affect future cases, allowing prosecutors to exploit a suspect's refusal to talk before invoking 5th Amendment rights against self-incrimination.
"It's a bad and questionable decision," said Dennis Fischer, a longtime criminal appellate lawyer.
Tom's attorney Marc Zilversmit said he is deciding whether to petition the U.S. Supreme Court to take up the issue or renew his arguments in the state court of appeal.
"It's a very dangerous ruling," Zilversmit said. "If you say anything to the police, that can be used against you. Now, if you don't say anything before you are warned of your rights, that too can be used against you."
The state Supreme Court in a 4-3 ruling said Tom needed to explicitly assert his right to remain silent — before he was read his Miranda rights — for the silence to be inadmissible in court.
Tom has been freed on $300,000 bail pending his appeal.
Tom was arrested after his Mercedes sedan plowed into a car driven by Lorraine Wong, who was turning left onto a busy street.
Prosecutors argue that Tom's car was speeding at 67 mph in a 35 mph zone when the collision occurred. He was placed in the back of a police cruiser but was not officially arrested and advised of his rights until later in the day.
Prosecutors said Tom's failure to ask about the Wong family while detained showed his guilt.
Justice Goodwin Liu dissented.
"The court today holds, against common sense expectations, that remaining silent after being placed under arrest is not enough to exercise one's right to remain silent," Liu wrote.
The ACLU filed a friend of the court brief supporting Tom's appeal.
Fischer and others say the ruling might not be the last word on the issue.
The high court ordered the court of appeal to reconsider the case, meaning it could return to the California Supreme Court.
The high court is undergoing a dramatic transition and it's possible that two new justices would reconsider the ruling.
Baxter, a Republican appointee and reliable conservative vote on the court, is retiring in January.
Meanwhile, Gov. Jerry Brown recently nominated Stanford University law professor Mariano-Florentino Cuéllar to fill a vacancy.
"This could be the last hurrah for a conservative Supreme Court," appellate lawyer Jon Eisenberg said.