You Have the Right to Remain Innocent
Page 8
Seriously? You want me to guess whether you are going to be able to find a so-called expert who will testify that my gun matches the shotgun shells you claim you found at the scene of some murder I know nothing about? Are you out of your mind? I gather that you have not yet seen the 60 Minutes special “Evidence of Injustice,” which exposes how a number of men around the country have been convicted on the basis of expert testimony from FBI agents who falsely claimed that they could match shotgun shells as coming from the same box, even though it later turned out that there was no scientific basis for that bogus testimony. Even though I know nothing about this crime you are talking about, and I know that my gun had nothing to do with it, I also know that if I tell you that you will not find a match between those shotgun shells, you might well find some cockamamy expert who will mistakenly conclude that there was a match. At that point, even if you do not have any significant evidence that I committed this supposed murder—and for all I know, you might be lying to me about whether there was a murder, and may only be investigating some sort of shooting—I can then be charged and prosecuted for my alleged offense of lying to you about whether that gun was fired at the scene! So no, Officer, with all due respect, I will not put my liberty on the line and run the risk of becoming the next false conviction by trying to guess what your so-called expert witness will conclude about those shotgun shells.
But there was one small ray of hope for innocent American citizens in the Salinas decision. In ruling against Genovevo Salinas, the Supreme Court noted that there were two reasons why his silence was admissible against him as evidence of his guilt. First, he was not under arrest or in custody at the time he remained silent—and the Supreme Court long ago held that your silence cannot be used as evidence against you if you refuse to answer questions after you are under arrest.14 Second, when he was asked about those shotgun shells, he did not affirmatively assert his right to remain silent, but instead simply remained mute. The conservatives on the Supreme Court thought that was not enough to protect his rights, but stated (without deciding) that he might have won the case if instead he had spoken up and told the police that he did not want to incriminate himself.
In the aftermath of the Salinas case, therefore, criminal suspects now have—for the first time in American history—a new reason why they must not simply remain mute when they are questioned by the police. If you simply say nothing in the face of police questions, unless you are in custody and under arrest, your silence can and will be used against you as evidence of your supposed guilt in a court of law. To avoid that possibility, you must speak up and specifically tell the police about your desire to assert your constitutional rights.
But exactly what do you say, and how do you say it?
The Supreme Court did not decide the answer to that question in the Salinas case. So I will tell you. I doubt that anyone who has read this far in the book will have any difficulty understanding the importance of your constitutional Fifth Amendment privilege to remain silent, and of not answering questions that might be used to help incriminate you. But we need to briefly consider a few surprising rules about how you should exercise your right to remain silent.
There are a couple rules you must observe about what you should say, and what you must not say. And as you will see, most of them are so unnatural and counterintuitive that you probably would not have guessed any of them on your own. Fortunately, they are not too difficult to memorize and pass on to others. Let me list them for you, and explain why they are so important.
You Must Explicitly Invoke Your Constitutional Rights
In any encounter with the police, you have several different objectives to keep in mind. Of course, as we have seen, your primary objective is to make sure that you do not say anything that could be used against you, which means that you will say virtually nothing at all. But the problem is that you cannot remain absolutely mute, because you have two other important objectives that you must also accomplish at the same time, and neither of those will be completed if you remain completely silent.
First, you need to make sure that your silence is not held against you as evidence of your guilt if the case later goes to trial. And after Salinas, as we have seen, that means that you cannot simply remain mute in the face of police questioning, but rather must say something to invoke your legal right to refuse to answer their questions.
Second, you also need to make sure that you get the police to stop questioning you and leave you alone. You need to bring the interrogation to an end, once and for all, and as quickly as possible. But that will not happen unless you say something. Just a few years ago, the Supreme Court held that a man who sat almost entirely silent for nearly three hours in the face of continuous police questioning had not in fact made a valid assertion or exercise of his right to remain silent.15 According to the Supreme Court, his extended silence was merely ambiguous as to whether perhaps he wanted to talk to the police. The conservatives on the court apparently thought that when a person looks at you without saying a single word while you sit there asking questions for three hours, it is possible that person is still trying to make up his or her mind about whether to speak or not! (It would be fascinating to watch those justices at breakfast with their spouses.) Consequently, the court held, the police were entitled to continue to question that man until they finally wore down his resolve, broke his will, and got him to talk. All because he did not make an effective assertion of his rights.
You Must Not Tell a Lie
Years ago, First Lady Nancy Reagan, the wife of President Ronald Reagan, launched a nationwide antidrug campaign with the slogan “Just say no.” That was great advice for young people talking to drug dealers. But it was terrible advice for young people who talk to the police.
As we learned earlier in this book, even innocent people must be exceptionally cautious when dealing with the police, making sure they do not say anything that might later subject them to the separate charge of lying to the police. When a police officer comes to ask you about a crime that you did not commit, ironically, you may find yourself getting into legal trouble if you say anything—or if the officer recalls that you said something—that sounds like a denial of something the officer thinks can be proven. Because that means you have just committed a crime that can get you sent to prison for up to five years.
This means that you must speak with a great deal of precision when you are explaining yourself to the police, which is easier said than done. If you are an ordinary American who is not accustomed to expressing yourself in such a clear way, you may easily be tempted to make the terrible mistake of thinking that perhaps you can “just say no” when questioned about something you would rather not discuss. That natural mistake has gotten some people in a great deal of trouble. One criminal suspect was charged with lying to the police when he told them, “I don’t know what you are talking about.” The government later charged and proved that he was lying when he said that, because they were able to convince a jury that he did have some information about what they were asking him about.16 Obviously there is a very fine line between telling the police, “I do not wish to discuss this matter,” and, “I do not know anything about this matter.” Indeed, they are so close that a careless police officer might not recall clearly which one was an accurate quotation of what you said—but the former is the exercise of a constitutional privilege, and the latter may be a federal criminal offense.
Just a few months ago, Susan Thompson, a fifty-eight-year-old widow with no criminal record, worked for the federal government at the US Army Corps of Engineers.17 She was approached by a federal agent, who asked whether she had placed a picture of a Confederate flag on the desk of an African American coworker. The agent was not from the FBI—they have infinitely more important things to worry about—but was instead an agent of (I am not making this up) the United States Federal Protective Service. You have probably never even heard of this organization, which is the security police division of the National Protection and Programs Dire
ctorate, a division of the United States Department of Homeland Security. I swear that I think I saw some of those organizations mentioned somewhere in George Orwell’s 1984. According to the agent, when he asked Ms. Thompson whether she had done such a thing, she said she had not.
If this woman actually left a picture of a Confederate flag on the coworker’s desk, of course, that was rude and offensive, and many would agree that it was downright despicable. But it was probably not a criminal offense, much less a felony. (But just like any other lawyer in the country, I could not confidently assure her that such conduct could not be prosecuted under any of the thousands of federal criminal statutes on the books, which is why any lawyer would have advised her to not answer that question.) Indeed, it is even possible that her action might have been a form of free speech protected by the First Amendment to the Constitution.
But it is now entirely academic whether she might have committed a crime when she placed that flag on someone else’s desk, because the Obama Department of Justice has instead charged this woman in federal court with two counts of the separate offense of lying to federal agents when she denied putting it there. If she had been convicted of both charges, she faced the possibility of as much as ten years in prison—simply because she denied committing a certain act, which might not have even been a crime, and which might have even been protected by the First Amendment.18 Who in their right mind would ever imagine that you could actually go to prison for lying about whether you did something that might not even be a crime? That is why Supreme Court Justice Ruth Bader Ginsburg sensibly complained years ago about this very same statute and voiced her grave concern over what she called “the extraordinary authority Congress, perhaps unwittingly, has conferred on prosecutors to manufacture crimes.”19
The astonishing fact illustrated by this story, which would probably come as a tremendous surprise to almost everyone who is not a lawyer, is the breathtaking ease with which any federal agency—when it has too much time on its hands—can turn almost anyone into a criminal, simply by way of a few unexpected and nonthreatening questions about something stupid or embarrassing (not necessarily criminal) that they already know or suspect you have done. They can then take advantage of the terribly unfortunate but 100-percent-understandable tendency on the part of almost every fool in that situation to immediately think:
I cannot admit that I did such a stupid thing, and it will look suspicious if I refuse to answer, so maybe I better lie about it and say that I did not do it. I know I should not lie to anyone, because that is wrong, and I promise myself I will never do it again after today, but surely it cannot be a crime to tell a little innocent lie to stay out of trouble. Why, I have been telling little lies to keep myself out of trouble all my life, especially when I am dealing with government agents; I do it almost every time I am pulled over by the police when they ask me how fast I was driving. And since the Fifth Amendment gives me the constitutional right to refuse to answer his questions at all, surely it cannot make a big difference whether I refuse to answer his question and say nothing, or take Nancy Reagan’s advice and just say no.
That poor soul will later learn that he was absolutely wrong and may have made the biggest mistake of his life.
To make matters worse, the possibility of such insane criminal prosecutions is readily increasing as our federal government is growing rapidly out of control. Here is just a partial list of some of the more than forty United States federal agencies that now employ a total of 120,000 armed investigative agents: the National Park Service, the IRS, the Postal Inspection Service, the Department of Health and Human Services, the Departments of Agriculture, Labor, and Veterans Affairs, the Environmental Protection Agency, the Fish and Wildlife Service, the Bureaus of Land Management and Indian Affairs, the Small Business Administration, the Railroad Retirement Board, and the Federal Reserve Board. Even the Library of Congress.20 (“You mind if we come in to ask you a few questions about an overdue book?”)
When one of these people comes by your office to meet with you, you must always and absolutely refuse to speak with the agent—even if you are dating this person’s son or daughter—because they are the most dangerous people in our country. Unlike agents from the FBI, who have their hands full trying to enforce the most important criminal laws and catch the most dangerous criminals, most of these government agents wage a daily effort just to justify their existence, and to explain (at least to themselves) why they should even have a job, not to mention a gun and a badge and a pile of blank search warrants. Avoid them like the plague.
If you want some recent examples, just google the madness caused for the Gibson guitar company by agents of the Fish and Wildlife Service, who cost the company half a million dollars because of their investigation of some wood that may have been imported in violation of some Indian laws designed to protect local jobs in India.21 Or read about the insanity that was inflicted on Nancy Black, a dedicated and respected marine biologist, who spent her life savings and years of her life defending herself against charges that she allegedly lied to agents of the National Oceanic and Atmospheric Administration, an agency of the United States Department of Commerce.22 I know that you have not already read about those two investigations, because you would not have needed to read this book if you had heard about either one of those real-life horror stories of governmental bureaucracy utterly out of control.
More than a year ago, one of my clients was approached by a federal agent who was investigating some possible criminal activity, and who asked if she would be willing to answer a few questions on a voluntary basis. The agent, who worked for a certain federal agency that I will not name, dropped by my client’s house a couple times, always without warning. My client asked for my advice. I told her to send the agent a letter, explaining that she would be happy to consider answering any questions he might have, but only if he would extend her the minimal courtesy of putting those questions in writing, so that she could also put her answers in writing. What on earth would be so unreasonable about a request like that? Nothing at all. It would enable this woman to think carefully about her answers, possibly obtain the assistance of a lawyer, and check her records to make sure that her answers were accurate. It would also eliminate the very terrible danger, discussed at great length in this book, that the agent might later unintentionally misquote her in ways that could make her statements sound more damaging than they really were. The request was perfectly reasonable—and, I might add, it was exactly what any federal agency will tell you to do if you want to get important information out of them. (“Put it in writing, and we will get back to you in a couple months. Maybe.”)
But that was the end of the investigation, as I knew it would be. When the federal agent was advised that my client would not talk to him unless he was willing to put his questions in writing, he angrily replied that he refused to interview anybody that way, and she has not heard from him in months. Just think about that. That tells you just about everything you need to know about the motives of this government agent. He was more than happy to talk to my client as long as he could have the element of surprise and the ability to hold all the cards by asking her a bunch of questions in an informal interview that would not be recorded—and he knew from years of experience that he would have no difficulty getting any jury or judge to believe him if he later testified from his notes about his recollection of that conversation. But when he was asked if he would simply agree to allow the exchange to be put in writing, he refused. That is the kind of unreasonable behavior you can expect when a government agent has become spoiled through years of always having it his way, dealing only with people who are never able to effectively contradict his recollection of exactly what was said, and by whom.
Don’t Plead the Fifth
The Department of Justice a couple years ago helped to persuade the Supreme Court that prosecutors should be allowed to tell juries about the fact that a suspect who was not in custody tried to exercise the right to remain silent if the suspect
did not tell the police explicitly why. So that means you should tell the police that you wish to exercise your privilege against self-incrimination, right? Wrong. The same year the Supreme Court decided Salinas, the Department of Justice also helped persuade another federal court in another case that it should be lawful and permissible for a prosecutor to argue that anyone who explicitly asserts the right against self-incrimination is also admitting guilt.
In early 2008, Gillman Long was living on an Indian reservation in South Dakota. He was approached by a special agent from the FBI, Sherry Rice, who said he was not under arrest, but she wanted to talk to him about some allegations.23 The agent persuaded Long to meet with her at a nearby tribal office on a voluntary basis. She told him again that he was not under arrest and could end the interview at any time. She then told him about some allegations about him by a minor—his girlfriend’s niece—concerning improper sexual contact. Long replied by describing an incident in which he said he was sitting at a computer in his house when the alleged victim came up and rubbed her breasts against his back; he insisted that he then stood up and pushed her away. At that point in the interview, according to the FBI agent, Long allegedly said, “I do not want to incriminate myself. I would like to stop talking.”
At the end of the trial in federal court, once the case had gone before a jury, the Assistant United States Attorney began her rebuttal closing argument not by discussing the testimony of the alleged victim, but instead by asking the jurors to focus on the defendant’s assertion of his constitutional rights. She began her closing argument with these words: