An Experienced Federal Defense Attorney

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Your Right to Remain Silent

I have written about the right to remain silent before and the importance of exercising it. In recent days, a light has been turned on police mis-conduct in a way which has not been seen in several decades. I want to discuss with you today just such a situation.

An individual was arrested and was facing state charges. He was interrogated by local law enforcement and exercised his right to remain silent. Subsequently, he was brought back to the interrogation room. But this time, instead of seeing local law enforcement officers he was confronted with Special Agents of the Federal Bureau of Investigation. He was told that he had been indicted federally and that the agents needed to talk to him. He again attempted to invoke his right–but before he could the agent began a campaign to overwhelm his ability to do so.

The agent started by stating that he tried to help people in trouble if they were trying to “do what’s right and get on the right path,” and that after their conversation he would do his best to try and help. He then stated, the person should trust him and told him that “from this moment on, I’m on your side.” The agent continued, describing his trip the previous day to obtain the federal warrant and telling this person that he had spoken with the judge who had reviewed the case. He said the judge had looked at his criminal record. The agent emphasized that he was “not bullshitting” and repeatedly told the person to trust him. Then, the agent told him that with the smaller amount of methamphetamine, the judge was willing to charge “anywhere from five to ten years.” The agent said that the person had two options and that he could “physically buy down the amount of time you see in a federal prison,” with the difference depending on [the person’s] “willingness to own to the information.” He continued, “every time you answer a question truthfully, it ticks time off that record, it ticks time off how much you’re going to actually see.” He also repeatedly told the person that he would go back to the judge and tell him what he said at the interview, invoking his supposed relationship with the judge numerous times.

With these promises and never having been in this situation before the person collapsed and provided the information the agent sought. That is, he entered a confession. But confessions must be voluntary and they must be made freely and knowingly by the person giving them.

The person was charged with far more than he ever imagined when he made his inculpatory statements. This is where I enter the picture. I was appointed to represent this person in federal court. I will note at this point that all matters posted in this blog are public record and no information of a protected status will be posted herein. I saw the video of the above interrogation. I knew much of what was stated was wrong. I knew the agent was a false friend and only attempted to manipulate the situation to the agent’s benefit. So I filed a motion to suppress the involuntary confession.

There was a full hearing on my motion complete with witnesses and a playing of the video of the agent’s questions and statements. The district judge found that the agent made false representations and improper promises of leniency that were “coercive in nature under the circumstances,” the trial court ultimately concluded confession was not involuntary and denied the motion to suppress. Then through a process available in federal court the defendant entered a conditional plea and appealed the denial of the suppression motion to the federal circuit court.

The circuit court stated, Agent ... did not merely inform [the defendant] that cooperation would be viewed favorably by the prosecutor. Instead, Agent [ ] repeatedly told [defendant] he had spoken with a federal judge who had reviewed the case. He emphasized to [defendant] that he would tell the judge whether [defendant] had cooperated and that cooperation would “physically buy down the amount of time you see in a federal prison.” He said, “every time you answer a question truthfully, it ticks time off that record, . . . that’s the way it works.” But that is not the way the federal system works.

Recently, the circuit court reversed the trial court’s denial of the motion to suppress, vacated the judgment against this person and remanded the case for proceedings consistent with its decision.

So, dear reader, what has this to do with you? Simply stated it has everything to do with your protection of your personal constitutional rights. The case demonstrates there are law enforcement officers at all levels who are ready, willing and able to trample your rights and to run rough shod over your ability to resist. Where ever one person’s rights are denied all people’s rights are in jeopardy. When police, or FBI, believe they can act with the impunity of this agent – you are not safe. It is worth mentioning, at the suppression hearing the agent changed his story about what was said and what he meant. But for the video, he may well have been successful in this deception. The circuit court noted in some detail the disparity between the downplayed sentence stated by the agent and the actual significant sentence permitted by the law. Where our civil rights are concerned we can not be too vigilant nor can we be too vocal in protecting and protesting their infringement. Most have no idea what tyranny looks like. But tyranny is the arbitrary and unreasonable use of power or control. Many would like to think that such concepts can never happen here, but they would be wrong. Tyranny is always lurking and patiently waiting for us to become complacent and smug in our belief that cannot happen. That is when we are at greatest risk. Tyranny comes in clothes which disguise its true nature. Like the agent in this case, tyranny will tell you to trust it and that it is your friend, just give up some rights so it can help you.

The right to remain silent is one of those precious gems of the Bill of Rights no person shall be compelled to bear witness against himself or herself. In this instance the circuit court protected that right and found that this “confession” was coerced and was not freely given nor voluntary. The coercions were not physical strikes to the body of the person such as a rubber hose nor the pain of the rack. These coercions were psychological, they were sophisticated and designed to leave no physical evidence of their presence. Though the circuit court recognized the mental pain and anguish such tactics caused.

It is therefore important to remember that before any questions are answered by you, that you request your lawyer be present. That you tell the police, I am exercising my rights to remain silent under the 5th Amendment to the Constitution. You must use the “rights” language to be safe. These are your rights, use them or lose them.