Your Right To Remain Silent - A Guest Blog Post By Austin-Georgetown Attorney Terrance Marsh

What does the Right to Remain Silent really mean?

How many times have you heard someone say "I'm going to plead the Fifth." If you've heard that before, they're referring to our U.S. Constitution and the Bill of Rights. The Bill of Rights is the first 10 Amendments to our U.S. Constitution. These rights protect us from the government (police are part of the government). Our right to remain silent is written in the Fifth Amendment to the U.S. Constitution. There are many rights packed into the 5th Amendment. Here are the exact words:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

- 5th Amendment to the U.S. Constitution

Why is the right to remain silent important?

The part referring to the right to remain silent is in bold, and underlined above. The right to remain silent is so important because it protects you from being forced to say things, write things, or confessing when being questioned by police. It is a shield between you and the government (police are part of the government)!

Being compelled in a criminal case as a witness against yourself is the fancy way of saying that the government can't force you to testify against yourself or self incriminate. Being forced to testify against yourself pretty much explains itself. If you are charged with a crime, the government or the prosecutor can't force you to testify.

Over time the Courts have said that our Fifth Amendment right to remain silent includes contact and questioning with police. Police are allowed to go up to you and talk to you on the street, or in your car. However, you don't have to answer the questions police ask you other than identify yourself. Your right to remain silent includes all police questioning - including confessions. Never confess to anything and especially don't put anything in writing when the police question you. I'm a big fan of examples so let's use an example.

Police Questioning and The Right to Remain Silent

A few months ago I had a client named John who was arrested because police suspected him of dealing drugs. Police picked John up with a Warrant of Arrest at his home and brought him to the station for questioning. Police read him is Miranda Warnings. If you've ever seen an episode of Cops or Law and Order you've heard this a millions times:

“You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?”

The moment the police went to John's house, knocked on the door, and began asking John questions other than his name, his 5th Amendment right to remain silent had kicked in. Why?

John's right to remain silent kicked in because the police asked John questions after he identified himself. John could have told police "I don't want to talk to you or answer any questions" and that would have been perfectly legal. As a matter of fact, that's exactly what I would have advised John to do if I was sitting next to him. The police are allowed to ask as many questions as they'd like and as many as you'll keep answering. Luckily, John didn't answer very many of the questions police asked. More importantly, the police didn't question John further or try to get a confession out of him. John kept his mouth shut, and because of that his felony drug charge was dropped  down to a misdemeanor.

Summary

The true meaning of the right to remain silent is for people to be free from government (police) questioning. Never answer questions from police unless the question is to identify yourself. Miranda Warnings are given to you by police so that you are aware it's your right not to speak with police. Knowing the meaning of the right to remain silent can help protect you from past or future criminal charges that police investigate. Always follow the law.

But just remember, don't make the cops' job easier than it has to be and if nothing else, don't do their jobs for them. Remember the meaning of our right to remain silent.

Picking a Jury in Harris County on Resisting Arrest Charges as a Second Chair

The adage is that you win trial in jury selection.

I meandering into Harris County Court 14 the other day expecting to pick a jury for my client's case. It was the ninth trial setting, after all.  Instead, the court chose to go with an a resisting arrest case on its first trial setting. 

No Rhyme.  No Reason.

I just so happened to know the lawyer who was defending the young Puerto Rican accused of resisting arrest.  The poor kid was jumped by a cop and sent to the hospital for some stitches and bruised ribs before he was booked in jail.  Of note, the 5'5 cop who was clearly inflicted by Napoleon Syndrome, was working an extra job at twin peaks.  Knowing the lawyer, and having helped him before in a DWI trial, I helped him pick the jury.

I knew nothing about the case until about 15 minutes before jury selection, but what I did know was my obligation as a second chair.  For any new lawyers that may stumble upon my blog, a second chair is a lawyer who assists another lawyer during trial.  Sometime second chairs take the role of observer and whisperer of ideas.  Other times, second chairs may have the opportunity to conduct examinations and arguments.  I have second chaired murders and sexual assaults to DWIs and simple assaults.  

No matter what, when second chairing, you have to be actively participating by seeing what there is to be seen, hearing what there is to be heard, and sharing your observations and ideas with the first chair.

In this particular resisting trial, my job was to determine who in the jury panel was ineligible to serve on the jury due to a bias or prejudice I identified two issues early on.  First, officer credibility. Second, how might an officer act after he worked a long shift on the job for HPD, then immediately worked a second shift as security.  The first chair, Paul Kendall, had the rest set up perfectly.  

I took tabs on who could not serve on the jury, and the judge agreed that I got them all correct.

As Paul was about to finish his voir dire, he asked me if there was anything else he needs to cover. I said, "Yes, ask the jury how an officer might feel after working his main job then going directly to his extra job.  Ask the jury what might effect the cop's judgment."  He asked and the answers followed. In fact, the first juror to speak said the exact word I was looking for, "cranky."  It was all gravy from there.

We got the 6 jurors we wanted on the panel.  Hell, we even got the guy who was previously convicted of resisting arrest on jury!

It certainly helped that Napoleon Dynamite testified it was as if his commands (to leave the parking lot) fell on deaf ears, because, well, the client was partially deaf.

Two Words:  Not Guilty.  

Congrats, Paul.

Lawyer Shopping Advice: You Get What You Pay For

I am absolutely raging right now, but not in the "let's go rage" way that so many of my friends in SoFlo used to say before going out in Ft. Lauerdale.

Nope.

I am mad at you, my potential clients.  I am mad because I care for you.  I care for you before you even give me a dime.  In fact, I am mad because I want what's best for you.

Am I always going to be what's best for you?  No, but I can tell you a story to illustrate why I may be a good choice.

Twice this week, TWICE, I got phone calls from folks who live hundreds of miles away, and the conversation goes something like this:

"My family member is in jail.  He doesn't have any family in the area and few friends.  He's never really been in trouble before, and I am looking for a lawyer.  I got your name from So and So (big time lawyer considered one of the best in the game).  He's been charged with X crime, how much is it?"

"I am so honored to be getting refers for Mr. So and So...tell me what's going on."

"Well .... (details that potential client's family member thinks they know)....How much is it?"

"Thank you for sharing that with me.  I am going to see what I can find on the clerk's website.?

"How much is it?"

"Sir, I understand you are concerned about the price, but I'll tell you what, I want to give you and your loved one a price that is fair to me.  There are so many variables that could determine what a fair price is, and I will only have an idea after I speak with your loved one.  We have been on the phone for 30 minutes, and I'll tell you what, I am going to take time to go visit your loved one in jail and interview him personally if that is ok with you.  But before I do that, I am sure you will talk to other lawyers, and you should probably do that, but just remember you get what you pay for, and I think a lawyer that will give you a price right off the bat without knowing anything probably isn;t going to put in the work necessary needed for your loved one's case.  Also, this is my price range (price range) for the charge.  Do you still want me to take an hour or so to go visit your loved on in jail?"

"Oh yeah, great, I like you already."

 "I will call you as soon as I talk to your loved one in the next 24 hours."

I then go to the nasty, stinky, too cold or too hot jail, after paying to park and I go introduce myself to the potential client.  They are gung ho about hiring me.  I give them a price and they say yah let's do it!  I say great, I'll tell your loved one what you said.

I get to the office and call the person who called me and they either never answer, or tell me they hired a lawyer who the bail bondsman recommended and is charging next to nothing.

So, you see why I'm mad with you, the potential client or his/her family member.  I do everything in my power to help you, and be fair to you, and you don't take my advice. 

This has happened to me 6-10 times in my career so far.  I have yet to see one of these potential clients get bailed out, I have yet to see one of these potential clients go to trial despite proclaiming their innocence.  On the flip side, I have been the second lawyer hired on several cases where the family hired the lawyer the bondsman or some inmate recommends. They are always more happy with me.

I may charge slightly more for my representation than others, but that is so I can keep a low caseload and devote to you the attention you deserve.

Word to the Wise:  You get what you pay for.  If a lawyer is giving you his time and undivided attention before ever being paid, and he wants to be fair to you, there is a good chance you might hire him or her now, instead of hiring the cheap guy, paying him, then hiring the first lawyer you spoke to and paying him too.

P.S. Experience is useless if its bad experience.

 

 

 

 

 

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Winning a Felony Motion to Suppress in Houston County, Texas

LISTENING IS KEY...AND GAMBLE

My luck continues with another win.  This time, it was a motion to suppress.

I took the relatively scenic drive north from Houston to Crockett, Texas in Houston County, Texas, color changing leaves and one stop light towns and all.

I was asked by a fellow lawyer to conduct the examinations and argument in a motion to suppress into what was clearly a race based traffic stop that resulted in felony charges of tampering with a government document.

Mexican client was driving down a two lane highway in a pickup truck with aftermarket tail lights. Local Trooper was driving in the opposite direction when he claims he sees that wire was obstructing client's license plate.  Trooper pulls my client over, who is driving between two trucks, each towing trailers without license plates (Trooper doesn't pull them over, obviously).

Trooper immediately takes client out of the truck and asks him a barrage of questions. Client gives a false name in tattered English and cannot provide a license.  Insurance does have his name on it. Trooper tells client to stand near the back of his truck on the driver's side and immediately searches the cabin of the truck.  I am talking about everywhere: seats, under seats, behind seats, map pockets, and glove compartments. Trooper testifies he is conducting this search for his own safety. Trooper then cuffs client and leaves him in the same spot before going to the passenger sides of the truck to continue his warrantless and search.  Finally, Trooper finds pay stubs for several different people.  Trooper then calls client's employer and dutifully brings the social security card my client used to get his job several years ago.

This cop was your typical trooper/former trooper near the end of retirement.  He was smart, but he was too smart for his own good.  He spoke too much for his own good.  On direct by the state, he babbled and babbled and babbled.  I had to come up with a strategy. Do I try and control this seasoned cop in this rural courthouse?  Or do I risk letting him get himself into trouble by speaking too much?  Well, I did a little bit of both.

My opening question poked fun at him for thinking my client may have been a terrorist.  After pissing him off, I sort of let him go because he was now hell-bent on beating me.  He was so focused on talking and his elaborate story that when I asked him in a leading manner if my client was under arrest when he was cuffed, he just said "yes, he was absolutely under arrest."

A moment later, he asked to correct something he said, and there was no way in hell I'd let him do that.  I simply confirmed that he continued to search the truck after my client was placed under arrest, and that during the continuation of the search is when he found the evidence that caused my client to be charged with a serious deportable felony.

The Honorable Judge up there did the right thing and granted my motion to suppress, not on the stop, but based on the search, which I take greater pride in.  It sure was a breath of fresh air to see a district attorney not make frivolous arguments based solely on her desire to make quota or one up his cohort in the office.

All in all, it was a good way to end a week.  I hope I can get the hat-trick.  Keep the opportunities coming.

Not Guilty - Solicitation of a Minor to Commit Sexual Assault - Montgomery County, Texas

First Trial = First Not Guilty Verdict!

Now that the dust has settled, I can reflect on my first trial and first not guilty verdict.

I was called up just days before trial to sit second on a Felony Solicitation of a Child to Commit Sexual Assault trial in Montgomery County.  Only around 1% of cases in Montgomery County get a not guilty verdict.

The Government had a good story going for it: Beautiful, intelligent girl asked by deaf Mexican in creepy truck for a blowjob in exchange for money, then creeper chases her down dark street after she says no.

The problem with that story is that it was not supported by the evidence.  Sure, my client offered the girl a ride, not knowing she was a girl or having any idea of her age.  Sure, his truck came to a stop on a dark dirt road in near the woods.  Sure, the girl had reason to be spooked when she saw his truck roll to stop.

BUT HE WAS NOT A PREDATOR AND I ADMITTED THE BAD FACTS FROM THE GET-GO!

You have to admit the bad facts.  You never know, your bad fact may be supported by your theory of innocence.  For example, our client said his truck ran out of gas and the battery died.  Well, we admit the bad fact and what do we learn in trial that supports out theory of the facts: (1) A 911 caller testifies that my client comminicated that his batter died and he needed a charge; and (2) Pictures ther sheriff took of the bed of my client's truck showed, you guessed it, a tow rope and jumper cables.

BOOM -- a fact beyond change turned into a fact that supports the theory of innocence.

A few words of advice from this attorney who is now in his terrible twos:

1. Get the venirepersons to educate each other during voir dire.  
2. Because solicitation of a minor requires the government to prove the specific intent to solicit and the specific intent to engage in the solicited conduct, ask the jury what type of evidence the would expect to see.  NOTE: a sharp prosecutor will object as an improper commitment question, but it is not so be prepared.
1. You are looking for jurors that want: Money, Condoms, Clothing on, Nudity, Exposed Penis, Fingerprints, Corroborating Witnesses, Eye Witnesses.  You want objective pieces of evidence that support the specific intent.
3. Ask questions that support your theory.
4. Listen for answers that might alter your theme in closing and support your theory of innocence.
5. MOST IMPORTANTLY: in a conservative jurisdiction you MUST spend time harping on how great of a nation, state and even jurisdiction we live in.  It is cheesy but it is the truth:
1. this is not China, North Korea or Iran.
2. We are presumed innocent/ cloak of innocence.
3. We expect the best from our officers. They must exclude suspects/charges before charging/Best technology is a must.
4. I thing this is the most important part of every closing, especially in a sex case, because the government is preying on each juror's fear that the complainant could be their daughter, niece, granddaughter, neighbor, cousin.  When you passionately argue the law, you are subconsciously reminding them that the person sitting next to you at counsel table could be their son, nephew, grandson, or self.