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Florida Criminal Defense Lawyer Blog

This isn’t an article about whether the two men featured in the documentary, ‘Making a Murderer’ are guilty or innocent. While I do have strong feelings concerning the handling of the criminal cases of both Steven Avery and his Nephew Brendan Dassey, I would prefer to focus on something different. In this article, I’m choosing to focus on something very positive that came from the documentary.

One thing that the documentary featured was how Steven Avery was convicted of rape, in spite of his innocence. Examples of these miscarriages of justice happen too frequently and often fail to get the media attention that they deserve. How often? Well, in a report just released, a record breaking number of convicted felons were exonerated in 2015. Most were serving significant prison time for crimes that they had nothing to do with.

According to the report, created by the National Registry of Exonerations at the University of Michigan Law School, 149 people were exonerated last year. Each one served an average of 15 years in prison prior to being released. Of the 149 who were falsely accused, 54 were serving time for murders that they didn’t commit. Five of those exonerated were on death row, awaiting their date with the death chamber.

The report reveals that more than two-thirds of those wrongly convicted were minorities, including half who were black. Twenty-seven of those exonerated had falsely confessed to their crimes. That group consisted of primarily children and/or the mentally handicapped.

One of the exonerated, William Vasquez, was falsely convicted of arson that resulted in the death of a mother and five children back in 1981. Vasquez, who was cleared in December, served 31 years in prison before being released. He was convicted in spite of having an alibi witness who testified at his trial. The chief accuser recanted her testimony shortly before her death in 2014. Another man, Ricky Jackson, was exonerated after serving thirty-nine years in prison.

One revelation that I find most alarming is that approximately 28 percent of all exonerations last year came from one single prosecutors office, in Harris County, Texas. The problems with their cases only came to light after they chose to vigorously examine prior convictions from their jurisdiction. They uncovered many false convictions as a result of their prosecutors previously using aggressive tactics, which included threatening defendants with lengthy prison terms in order to secure guilty pleas. That behavior led to many of the accused to plead guilty to crimes that never even occurred. That office has since made major changes to how they do things, hoping to decrease the chances that these false convictions will occur again in the future.

What ‘Making a Murderer’ has done, amongst many other things, is provided increased interest in the discussion of false convictions in the Criminal Justice System and has resulted in people taking more seriously those who are alleging that they are innocent. What remains unclear is how frequently these false convictions are occurring. To believe that all those who have been falsely convicted have managed to find their way out of prison after exoneration is being intellectually dishonest. The 149 who were fortunate may only represent a small portion of those who were falsely convicted. Without question, wrongful convictions remain a significant problem that must remain of primary importance.

The documentary has also sparked an increase in pubic debate concerning the troubling tactics that many prosecutors have engaged in to secure convictions. With only six percent of criminal cases ever being tested at trial (the rest take plea bargains), it’s hard to know whether the facts support guilt since so many have never been tested at trial in the first place.

So we are clear, I am not suggesting Avery and/or Dassey are innocent of murder. Nor am I suggesting that they are guilty. That’s a different discussion for a different day. What is clear, is that ‘Making a Murderer’ has added new life to the discussion about criminal convictions and whether more innocent folks than previously believed are being sent to prison for crimes that they did not commit.

In a ruling handed down yesterday, The Supreme Court provided hope to many prison inmates who were sentenced as teenagers to mandatory life in prison without parole. They will now be given the opportunity to argue why they should be released from incarceration.

The decision, made by the highest court in the land, expanded a 2012 ruling that made it unconstitutional to incarcerate juveniles for life without the possibility of parole. The ruling must now be applied retroactively, providing relief to approximately 1,200 to 1,500 inmates. Justice Kennedy, who wrote the latest opinion, indicated that those inmates should be given the opportunity to argue for parole at their re-sentencing hearings.

The 2012 case was brought by Henry Montgomery, who as a teen was sentenced to life without parole in Louisiana in 1963. He was 17 years old when he shot and killed a law enforcement officer. Now 69, Montgomery believes that he rehabilitated himself in prison and deserves to be considered for parole. The Louisiana Supreme Court ruled against him, however, the Supreme Court ruled in his favor, declaring that the 2012 ruling is retroactive.

A change in sentence for all those teens sentenced this way is not a guarantee. Even Justice Kennedy acknowledged that there may be the rare case where the juvenile offender can never be rehabilitated and thus, life without parole may still be justified.

Kennedy also explained in the ruling that the reason why he found the mandatory life without parole sentences unfair for juvenile offenders was because children have “diminished culpability” and also, a “heightened capacity for change.” In the dissent, Justice Scalia criticized the Court’s ruling. He criticized the retroactivity of the ruling.

I applaud this ruling. Think about Henry Montgomery for a moment. Without question, he committed a heinous crime. I’m confident that the loss that he caused to the family of the sheriff deputy that he killed was enormous. Additionally, the negative impact on the community was also extraordinary. However, it’s important to also consider Montgomery’s age at the time and his accompanying mental capacity. At 17 years of age, the frontal lobe of his brain hadn’t been fully formed. That’s the portion that governs reasoning and judgment. Fast forward 52 years, the person that he is today, after over five decades of incarceration, cannot plausibly be analogized to the person he was when he first came into prison as a teen.

I’m not suggesting that all teens given life without parole should be paroled. The Supreme Court isn’t either. There will be rare circumstances when paroling some rare inmates is not in society’s best interest. However, I think fundamental fairness requires at least considering each person’s unique circumstances to determine if release is appropriate.

This ruling is epic! The United States Supreme Court ruled this week that Florida’s death penalty law is unconstitutional. The highest court in the land found, amongst other things, that Florida courts were violating defendants’ Sixth Amendment rights by ordering death in the manner in which they were.

What the court had a problem with was the fact that judges, not juries, were the ones making the ultimate decisions in capital cases. While jurors deliberated and made a recommendation to the judge, the judge would decide on his/her own whether the person should live or die. The Court found that a jury’s mere recommendation is not enough.

The ruling was good news for Timonthy Lee Hurst, who was convicted of stabbing his co-worker in 1998. His case will now be remanded back to the lower courts to decide what his penalty should be. It will now be exclusively up to the jury to decide his fate.

This ruling could affect at least the other 400 inmates on Florida’s death row and may impact many other cases. What isn’t clear is whether this ruling is retroactive, and thus, applies to previously resolved death penalty cases. One thing is for sure, every defendant sitting on death row will be challenging his death sentence under the new “Hurst decision.”

I believe this is a very important decision. The Court is sending a clear message that the constitution requires juries and not judges make these critical decisions. I support the Court’s decision. What is fundamentally unfair is for a jury to make a decision on one of the most critical issues in our criminal system and then have a lone judge singlehandedly impose his will in a case, ignoring and/or overriding a juries’ findings. That always seemed unfair to me. I felt that wasn’t square with the mandates of the constitution. Now, the higher court has corrected that.

THE HYPOTHETICAL

You’re driving home from a lovely night out on the town when you see those dreaded police lights behind you. You hope the officer is just trying to around you, however, you quickly realize that he wants you to pull over. As you think of all the reasons why the cop may have interest in you, you remain calm knowing that you weren’t speeding and that you’ve only had a couple of drinks over the course of a several hour dinner. The officer approaches and immediately smells the odor of an alcoholic beverage protruding from your breath. He asks, “Have you been drinking?” After you admit to the couple of drinks you consumed over dinner, he asks you to perform roadside “tests.” (We call em’ “exercises”) In spite of feeling fine and thinking you performed well, you are told that you are being placed under arrest for DUI (also known in other states as DWI and more commonly referred to as “Drunk driving”) You’re eager to take a breath test to prove the officer wrong. Unfortunately, after you blow twice into the machine (they call it an “instrument”), the officer’s eyes light up. In amazement, the officer announces that your breath reading is .40, which is approximately 5 times the legal limit. Regardless of your passionate pleas of innocence, you’re booked into the county jail. After you post bond and are released after approximately 18 hours of custody, you contact me, an attorney with expertise in DUI defense. You feel comforted knowing that I believe you, that there must be another explanation of the high reading other than extreme alcohol consumption.

ANALYSIS

The facts in the above hypothetical are very similar to what recently occurred to one woman in upstate New York. Just before Christmas, in Hamburg, New York, a woman was stripped of her liberty after she was accused of DUI. She blew a .40 after consuming only several drinks over a many hour period. She knew there was something wrong with the machine. Based upon what she actually consumed over the period of time that she was drinking, her reading should have been no higher than .05. Her attorney did some research and found something that may offer an explanation. Based on what he found, the attorney hired two physician assistants and a trained breath machine operator to observe her and obtain blood alcohol readings from her over a 12-hour period. The experiment was done at the same laboratory used by prosecutors. Without consuming any alcoholic beverages, her blood alcohol level was double the legal limit on the first breath sample at 9:15 am. Then, at 6 p.m., she was triple the legal limit and then at 8:30 p.m., she was four times the legal limit. What was even more bizarre was that the woman showed no signs of impairment until her levels were between .30 and .40. At that point, she started to appear unsteady on her feet.

The condition that she suffers from is known as “Auto-Brewery Syndrome.” This extremely rare condition, also known as Gut-Fermentation Syndrome, can occur when abnormal amounts of gastrointestinal yeast convert common food carbohydrates into ethanol. It occurs in the small bowel and is apparently very different than the normal gut fermentation that takes place in the large bowel that provides our bodies energy. It was studied in the 1930’s and 1940’s as a contributing factor to irritable bowel syndrome and vitamin deficiencies. Several cases of people with this condition involving unexplained drunkenness for years have been documented. Folks with this condition can be functioning with alcoholic levels of .30 and .40, yet the average person would be in a coma or dead with the same levels. It’s truly amazing that people with this syndrome can have such high levels and still be walking and talking normally.

OUTCOME/CONCLUSION

Fortunately, the defense’s motion to dismiss the case was granted. Unfortunately, the prosecutors plan to appeal.
This case highlights a number of points. First, not everyone is guilty, even when the case looks open and shut. Additionally, this case appears to stand for the proposition that the system works. (At least so far) Finally, this case emphasizes the importance of the role us criminal defense attorneys play. While many of our clients are guilty, many are not. It often rests on our shoulders to assist clients find their path to freedom, in the face of seemingly overwhelming evidence and zealous prosecutors.

In response to the escalating rates of teen suicide, school shootings and cyber-bullying, Wisconsin has passed an ordinance imposing fines on parents of kids who bully. It’s not a criminal charge. Rather, it’s a civil ordinance which permits a fine of $124 against parents whose kids repeat bullying behavior after being warned of their conduct. The Wisconsin police chief said that he’s in favor of the new ordinance because it puts pressure on the parents, the ones whose job it is to raise the kids. He doesn’t believe it’s the teacher’s obligation to prevent kids from bullying. He explains that teachers’ energy should be limited to the challenging task of teaching our kids.

The way that this ordinance will be enforced is as follows. First, police will identify those kids who have engaged in repeated bullying within a 90 day period. The parents will be notified and asked to work with law enforcement to correct the behavior. If the bullying persists, then their parents may be fined.

The analogy made by the police chief is that it’s like if a kid breaks something, their parent would be held responsible for it. He wants to see parents taking responsibility for their kid’s behavior. School principals seem to be embracing the ordinance.

At first I was opposed to this idea. While I recognize the need to do something to stop the proliferation of bullying in schools, I’m concerned about punishing simple kid behavior. In other words, I don’t want little Johnny and/or his parents punished because Little Johnny calls another schoolmate “fat.” The portion of kids’ brains governing judgment and reasoning, the frontal lobe, hasn’t been fully formed yet. That’s why kids often say and do stupid things. It comes down to how the term “bullying” is defined. If law enforcement can identify those students who are engaged in the worst, most damaging repeat behavior, coupled with parents who refuse to address the issue, then the ordinance should have merit.

THE FACTS

36-year-old mother Qumotria Kennedy was recently a passenger in a vehicle that was pulled over after the driver allegedly didn’t come to a complete stop at a stop sign. Though Kennedy wasn’t doing anything wrong, police demanded her I.D. and learned that she had a warrant for her arrest out of Biloxi, Mississippi for failing to pay $400 in court fines. The fines were for traffic tickets that she failed to pay in 2013. Back then she told her probation officer that she was too poor to pay the fines and also, didn’t have any way to secure the funds from anyone. Ms. Kennedy worked in downtown Biloxi as a baseball field cleaner. She was earning less than 9 grand annually. For a single person, that is significantly under the poverty level. It’s important to note that Ms. Kennedy supports her two dependent children.

In spite of pleading poverty to her probation officer, Ms. Kennedy was warned that if she didn’t come up with the full amount of all the fines that she owed, in addition to the $40 monthly probation fee, she would be arrested. True to her word, the probation officer sought a warrant to arrest Ms. Kennedy once it was clear that the court fines and fees weren’t being paid.

After Ms. Kennedy was arrested, she was informed that if she didn’t fork over all the outstanding costs that she owed, which now had ballooned to $1000 as a result of all the monthly probation fees, she would remain in jail. Because she couldn’t possibly pay that amount, she remained incarcerated for the next five days.

Kennedy’s experience in jail was nothing short of horrible. She said that the toilet was broken and there was no hot water. She said that she was housed in a cell with a woman who had stabbed her husband. Additionally, for the first three days, she wasn’t even permitted to contact her children to inform them where she was.

THE LAW

In 1983, the United States Supreme Court declared it unconstitutional to incarcerate people who couldn’t afford to pay court fees or fines. The highest court in the land made it very clear that arresting someone solely for financial reasons violates the 14th Amendment ensuring equal protection under the law. The Court ruled that judges must first evaluate a person’s ability to pay before sending them to jail. In spite of the Court’s ruling, many are surprised to learn that debtor’s prisons are still alive and well in the U.S.

Fortunately, Ms. Kennedy is suing. She’s the lead plaintiff in a class action suit filed by the ACLU against the city of Biloxi, their court system, their probation department and police department. The ACLU alleges that the various agencies conspired to create a modern day debtor’s prison in an attempt to extort money from the poor. The City of Biloxi believes that the ACLU is wrong in their allegations and that the city affords the poor an opportunity to do community service hours instead. The statistics seem to undermine what the city is alleging. At least 415 people went to jail as a result of warrants that alleged that they failed to pay fines that they owed to the city between September 2014 and March of 2015. Each one of the 415 arrested didn’t have the money to pay back what they were owed and were told they’d be held for days.

One homeless guy, 51-year-old Richard Tillery, spent a month in jail for failing to pay fines stemming from petty crimes that related to his poverty and homelessness. Another man, who was physically disabled as a result of multiple heart attacks, spent seven days in jail after failing to pay $170 for a speeding ticket. Even more tragic, just last month, a man died in a Detroit jail on day 16 of a 30 day sentence for failing to pay a careless driving fine in the amount of $772. Another man died in 2011 in the same jail that Kennedy was housed. He, too, was incarcerated for failing to pay a $409 court fine.

Unfortunately, this unlawful behavior isn’t limited to Biloxi, Mississippi. Back in 2010, the ACLU uncovered the same practices in Washington, Georgia, Ohio, Michigan and Louisiana. The unlawful practices seems to be increasing. More cities use “debtors prisons” in order to generate very needed revenue.

THE CONCLUSION

Obviously, this unlawful practice needs to stop…yesterday! If people can’t afford to pay fines, costs and/or fees, they should not be jailed. Instead, they should be afforded the opportunity to perform community service in lieu of payment. Those bureaucrats who continue to thumb their noses at well established law making this practice unlawful, should be prosecuted. Word needs to get around that there will be stiff penalties for those who opt for debtors prisons as a money making scheme.

No. There you have it. All my clients aren’t innocent. No beating around the bush from me. I won’t give you that frequently offered smug line, “All of my clients are innocent…until proven guilty.”(Even though they are legally innocent) As a criminal defense attorney, I do represent numerous “guilty” clients. “How can you defend those guilty people?”, many have asked. The answer is, “It’s actually easier to defend someone who is guilty.”
To understand what I’m saying, imagine someone you care about was accused of a crime that she/he did not commit. Imagine feeling powerless over the police, prosecutor and judge. You want so desperately to make the charges go away, however, you can’t. Sleepless nights, stress, and anger all accompany this living nightmare. Who do you turn to? Me. While I can’t guarantee any particular result, I take on representation of your innocent loved one with the promise that, “I will do all that I can do obtain the best possible outcome under extremely challenging circumstances.” In spite of indicating that you understand that I cannot pull a “David Copperfield” and make the charges disappear, you don’t really want the “best possible outcome.” In your mind, anything short of the charges being dropped would be a miscarriage of justice. Well, that energy and pressure falls on me. While I’m always up for the challenge, I nevertheless am constantly feeling the daily pressure to keep doing the next right thing in order to obtain justice for my clients. One of the many initial challenges that I face in dealing with innocent clients is that most prosecutors and judges don’t believe that my client is innocent. You ask, “But what about the presumption of innocence?” Ha! That only exists in cheesy television law dramas. In reality, most prosecutors and judges believe that if a person was arrested, they must be guilty. Similarly, most potential jurors typically share the same philosophy. I prove that every time I’m picking a jury at trial. Invariably, I ask the following questions: “Have you ever driven by the scene of a crime and seen someone who had been handcuffed by police?” (After most jurors respond, “Yes”) I next ask, “Let me guess, your thought at the time was, “Why are they arresting that sweet innocent person?” Many jurors laugh at loud after hearing me say that. I then say, “That’s not how you feel. Rather, you think, What did that guilty person do?” I then challenge them with the following, “Knowing that my client was one of those persons who once wore handcuffs and was brought to jail, just like those arrested persons you’ve seen in the past at the scene of a crime, how can you believe that he is innocent? (As the law requires) I study the looks on their faces. The ones who give me a, “You make a good point” look, I move to strike. The ones who fire back with, “Well, just because their arrested and handcuffed doesn’t mean their guilty,” are the jurors who I want to hear the case.
The feeling of fighting for an innocent client and ultimately being able to get the charges dropped by prosecutors is a spectacularly rewarding experience that is almost indescribable. I feel like I’ve been a part of something wonderful. My feeling after jurors acquit my innocent clients is a bit different. Instead of feeling relief after the not guilty verdict, I am often consumed with anger. I think, “You see prosecutor? This case never should have gone to trial. You should have dropped these charges. My client shouldn’t have gone through the extraordinary financial and emotional strain of a trial. You should have done the right thing months ago when I passionately pleaded with you and shared evidence that supported innocence.”
After I get charges dropped or obtain an acquittal for an innocent client, I am typically not given the response from the client and/or client’s family that you might envision. Football coaches who win the big game are hailed as heroes and may receive the triumphant “Gatorade Shower.” The basketball players who make the clutch winning shots often are rewarded with high fives and hugs. Even the actor who is merely nominated for the Oscar is invited to the most happening parties in town and is showered with accolades. When I win a case for an innocent client, typically the reaction, even before the occasional “thank you,” is, “Ok, now who can we sue?” That’s followed by, “They never should have put me through this hell. Can we at least sue to get back all the attorney fees I had to pay you?”
So, give me a guilty client, any day. The passion and energy that I put into defending that case is no different than for the innocent client, however, as you now know, things can be very different. Some rare days I do wonder why I never became a football coach.

This one is outrageous. A 16 year old boy was arrested and charged as an adult in criminal court and prosecuted for sexually exploiting a minor, under the federal pornography laws. Who was the minor? He was! Yes, North Carolina federal prosecutors prosecuted him for having nude pictures of himself on his cell phone and for sending naked photos of himself to his 15 year old girlfriend. She sent nude photos of herself to him as well. While the photos were never disclosed to anyone else, the two were both charged with four felony counts. The photos were discovered solely because investigators were looking into a bigger problem at the school concerning sexual images being shared without the victims’ consent. These teens weren’t involved in that scandal in any way.

The teens were forced to take a plea deal in order to avoid jail time and being forced to register as sex offenders. In addition to having to agree to be subjected to warrantless searches by law enforcement for a year, the male teen suffered numerous other penalties. Additionally, he was suspended as quarterback of the high school football team while the case was resolved. Additionally, his name was all over the media.

I’m still blown away by this one. In North Carolina, the state in which they were prosecuted, the age of consent for sexual intercourse is 16. So, while they could legally have actual sex, and take mental pictures of each of their teen bodies, they just couldn’t legally memorialize it with a photo to be shared with the other. Ludicrous!

If I’m being intellectually honest, I must concede that technically, what they did was a crime. That in no way means that prosecutors had to move forward with these cases. It’s called prosecutorial discretion. Use it!!! I’ve done some research and found zero examples where teen lovers were ever prosecuted for consensually sharing naked photos with each other. It makes no sense that prosecutors deemed both teens predators and also the victims, who needed the law’s protection. “Alex, I’ll take gross overreach for a thousand.” When the U.S. Supreme Court made child pornography illegal in 1983, they were determined to protect children from adult predators. I’m certain that they never envisioned that the law would be used to arrest and prosecute teens for taking naked selfies and sending them on cell phones.

While the federal laws apply throughout the U.S., I applaud the 20 states who have enacted laws that make these same acts lawful. Typically known as “Romeo and Juliet laws,” they are absolutely necessary to prevent this type of prosecution when there is no victim.

With an estimated 30% of teens “sexting” each other these days, law enforcement needs to use their discretion and common sense when dealing with these types of cases. If not, let’s just keep building lots of jails and get ready to turn tons of our teens into registered sex offenders.

…says my friend Whoopi Goldberg. In defending Bill Cosby, she stated, “The bottom line is, that’s the law.” She added,”Innocent until proven guilty.” In illustrating the importance of due process, Whoopi highlighted the 2006 Duke lacrosse case, where three Duke lacrosse team members were falsely accused of rape.

In response, I say, “Whoopi, you are right.” Legally, every defendant is presumed to be innocent unless proven guilty in a court of law. That includes Bill Cosby. The question is whether every person who is “legally innocent” is actually/factually innocent. The answer is “no.” There are numerous reasons why someone who committed an offense may never be brought to criminal court and/or convicted. One reason is that the evidence is insufficient, in spite of the person’s guilt. As we have all learned from many high profile cases resulting in acquittals, the Criminal Justice System is less about truth and more about what can be proven. “Proof beyond and to the exclusion of every reasonable doubt” is a very high burden for prosecutors to reach. As a result, many cases aren’t brought by prosecutors due to proof problems and not because of a person’s innocence. Additionally, some cases aren’t brought in the criminal arena because of problems with the Statue of Limitations. That’s the only reason why Cosby hasn’t been yet stripped of his liberty, in spite of approximately 40 separate accusers and his admission in sworn testimony from his 2005 civil suit. Prosecutors believe he is guilty and most folks who are being intellectually honest also believe he isn’t Snow White innocent.

Regarding her opinion about Cosby, Whoopi has also stated, “So, don’t come after me like that, ’cause I’m sick of this bull.” She added: “Here’s the bottom line, for me: It’s my opinion. And the American courts agree with me, because still he has not been taken to jail or trial on anything. So, back off me!” To those remarks, I say, “Well Whoopi, you are right, in part.” People should back off if they are personally attacking you or threatening to do violence to you. What makes this country great is that everyone is entitled to their opinion. As a free society, we should encourage a free flow of ideas and agree to respectfully disagree with those whose opinions differ from ours. However, what I do disagree with is the portion of her remarks which seem to erroneously suggest that Cosby is actually innocent because he was never taken to jail or placed on trial. That hasn’t happened solely because of the Statute of Limitations.

So, are we wrong for saying or even thinking that Cosby is guilty absent a conviction or even an arrest? After all, as Whoopi points out, shouldn’t we keep our, “He’s guilty” remarks until after he has been brought into court and convicted. My answer may surprise you, especially since it’s coming from a veteran criminal defense attorney. Most defense lawyers would scorn you for declaring someone guilty before it’s proven in court. I don’t feel that way. I do believe that people should keep an open mind, keeping in their recent memories cases like the Duke lacrosse case and the countless innocent prisoners released after being exonerated. I also encourage people to realize that the media doesn’t always accurately report the evidence in a case and/or they don’t have the complete story. However, the “Court of Public Opinion” is always in session and folks are free to formulate their own opinions, in spite of whether or not a case ever makes it to criminal court. Legally guilty and factually guilty may be two separate things. In other words, just because a person has never been brought to court or, after they were yet they were not convicted, does not mean that they are factually innocent.

So, is Bill Cosby innocent? Yes and no. Whoopi is correct that he is legally innocent because he’s never been proven guilty in a court of law. However, to suggest that he’s factually innocent, in spite of his admission in the civil case and the fact that there are more than three dozen accusers, seems to be a bit off base.

UPDATE

On Tuesday July 14th, Whoopi changed her stance concerning Bill Cosby. She stated on “The View” that she can no longer say “innocent until proven guilty.” She further stated during a conversation with ABC News chief legal analyst Dan Abrams., “If this is to be tried in the court of public opinion, I got to say all of the information that’s out there kind of points to guilt.”

INTRODUCTION
It has just been revealed that all six of the criminally charged Baltimore police officers, who were involved in the arrest of now deceased Freddie Gray, provided statements to law enforcement investigators. At the time of this posting, the contents of each of the officers’ statements is unknown. It’s possible that everything that flowed from each of the officers’ lips assists their defense. On the other hand, what is also possible is that some of the statements made by some or all of the officers will be words that prosecutors will seek to introduce against them at trial. The question that many are asking is, “Can the officers’ statements be used against them?”

ANALYSIS
Whether their statements can be introduced against them at trial hinges upon the facts and circumstances surrounding how the statements were obtained. Let’s assume that all six officers were questioned while an investigation into the arrest and subsequent death of Freddie Gray was being conducted. Assuming that investigators read every officer their Miranda Rights. If that were the case, then I don’t believe their attorneys could prevent prosecutors from introducing their statements. If their rights were read to them, they would know that anything they said could be used against them in a court of law.
Let’s now suppose that Miranda Rights were not read. Let’s also assume each of the six officers were told by law enforcement investigators that they were conducting a criminal investigation. My conclusion would be that the statements would still be admissible at a criminal trial. The prosecutors will argue that when the officers were questioned, they were not under arrest. They will further argue that the officers were free to leave and could have walked out of the interrogation room at any time. Therefore, because they weren’t “in custody,” no Miranda rights had to be afforded.
Let’s change the facts one more time. Let’s say the officers were placed under arrest and then asked to give statements. If they weren’t read their Miranda Rights, then the statements should be suppressed (thrown out of court). There’s no “Police Officer Exception” to the Constitution. Every citizen who is in custody and not free to leave, including police officers, must be informed of their Miranda Rights prior to being interrogated.

CONCLUSION
So, can the officers’ statements be admitted against them in their criminal trials? The answer is, “It depends.” Like most legal decisions, the facts determine whether evidence should be admitted. In this case, assuming the officers were not under arrest and/or not free to leave when being questioned, I believe their statements will be admissible against them. Whether prosecutors want to introduce their statements is an entirely different issue.