things that are frustrating
For the past week I have been reading cases non stop, gathering precedents for an innocence project appeal. Reading criminal cases for 12 hours a day can take its toll. While it's bad enough reading about horrible murders and attacks and robberies, it is beyond frustrating to see the court pulling BS like this:
Next, the defendant contends he invoked his right to counsel, but the police did not honor his requests. The defendant made two references to getting an attorney: "I think I might need an attorney," and later, "if I'm going to be arrested, I need an attorney." The defendant made the first statement after the polygraph examiner told him he had failed the test. The phrase joined the auxiliary verb "might" to the verb "need" to express possibility. When introduced by "I think," the meaning indicated a thought in process, but not yet concluded. The speaker was still considering or weighing the decision, was still testing alternatives. The statement was not a clear, unambiguous request for counsel.
The second reference to an attorney was also inconclusive. The statement, "if I'm going to be arrested, I need an attorney," is a conditional sentence. The subordinate clause "if I'm going to be arrested," established a condition upon the main clause. The statement told the police that if they were going to arrest the defendant, he wanted an attorney. Such a conditional statement was not a clear, unambiguous request.
Law enforcement officers must immediately cease questioning a suspect who has clearly asserted his right to have counsel present during custodial interrogation. Edwards v. Arizona, 451 U.S. 477 (1981). However, the defendant must make an unequivocal request. Davis v. United States, 512 U.S. 452, 458-60 (1994). We hold that the defendant never made an unequivocal request for counsel.
Here you see the court resorting to pedantic grammatical parsing in order to find that no request for an attorney was made. I could understand if the court simply said, "The defendant must use the following words: I request a lawyer. While other statements may indicate a desire for a lawyer, this is the phrase we need to see." But to claim that the defendant did not in fact clearly request a lawyer is just low.
[the quotation above is from Pritchett v. Commonwealth, 2000 Va. App. LEXIS 807, 7-8 (Va. Ct. App. Dec. 12, 2000)]
I knew someone who had worked as a Federal public defender whose brother used to engage in behaviors that might have gotten him in trouble. Her advice was to ask to be let go, but if they were holding him in custody he was to say, "I want a lawyer NOW" and nothing more.
By Abby, at
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