Police Cannot Coerce Waiver of Miranda Rights

On June 6, 2017, the U.S. Court of Appeals for the Fourth Circuit issued a published opinion that deals with situations where police officers intimidate a suspect into waiving his Miranda rights.  The decision in United States v. Giddins, No. 15-4039, applies to all federal courts of the five states comprising the Fourth Circuit:  NC, SC, VA, MD, and WV.

The Giddins case involved police interrogation of Mr. Giddins, the owner of a car that had been seized.  The police had contacted him and informed him that they had his car and that the car had been used in a bank robbery.  Giddins went to the police station to retrieve his car.

Once at the police station, the police took him into an interrogation room.  The door nearest to Giddins was locked by one of the detectives.  Giddins asked a detective if he was in trouble and the detective told him no, even though they had already obtained a warrant for his arrest for the armed robbery.  The detective made Giddins place his cell phone on the table and turn it off.

The detectives read Giddins his Miranda rights, but he asked if this procedure was required just to get his car back.  The detectives replied that it was, which was not true.  Giddins was a working man and needed his car back to get to work.

The Court found although he had not yet been arrested, Giddins was in the functional equivalent of custody, meaning that Miranda warnings and a voluntary waiver were necessary before questioning could proceed.  The Court reiterated existing law that the determination of whether a person is in custody for Miranda purposes is an objective inquiry focusing on “whether a reasonable person would have felt he or she was not at liberty to terminate the interrogation and leave”.

Mr. Giddins was in a room with one locked door and a detective between him and the other door and he was told he had to consent to the interview to retrieve his car.  The Court held that a reasonable person would have felt unable to cease the interview without forfeiting the return of his car.  Thus, the Court determined that Giddins was then in custody, requiring Miranda warnings and a voluntary wavier.

Next, the Court found Giddins’ Miranda waiver to be involuntary as it was the product of unduly coercive police behavior which overbore the will of Giddins.  This was based on a determination that the detectives affirmatively misled Giddins as to the true nature of the investigation by failing to inform him, in response to his query, that he was the subject of the investigation, thereby constituting deceit and coercion.  The Court found that this coercion rose to the level that Giddins’ will was overborne.  Consequently, the Court found that Giddins’ waiver and statements were involuntary, the result of coercion, and were erroneously admitted against him at trial.  The Court reversed his conviction.

Under existing U.S. Supreme Court case law, law enforcement officers can lie to suspects during interrogations to attempt to obtain confessions.  For instance, officers can falsely tell a suspect that his DNA has been found on the murder weapon.  However, such conduct, in conjunction with lengthy in-custody interrogation, can lead to coerced confessions and even false confessions.

Giddins deals with the different situation of police deceit regarding the nature of the investigation and the suspect’s status in it.  It is common for police to bring a suspect to the police station for a “voluntary” interview but to do and say things that make the suspect believe that they are not free to go until they waive their rights and tell the police their side of the story.  Giddins will hopefully aid federal criminal defense attorneys in the enforcement of suspects’ Constitutional rights under the Fifth Amendment.

 

Attorney General Sessions handcuffs federal prosecutors

On May 10, 2017, Attorney General Sessions issued his “Department Charging and Sentencing Policy”.  This policy directive governs federal prosecutors across the country.  In the federal criminal justice system, prosecutors already exercise great control of the sentencing process.  Until now, they have had some discretion to decide whether to charge certain serious offenses that have statutory mandatory minimum prison sentences or which carry higher sentencing guideline ranges than related offenses.  Now, Attorney General Sessions is ensuring that federal prosecutors will have virtually no discretion in deciding what offenses to charge and in negotiating plea agreements.

The memorandum requires federal prosecutors to “charge and pursue the most serious, readily provable offense”.  Any decision to vary from this policy “must be approved by a United States Attorney or Assistant Attorney General, or a supervisor designated by the United States Attorney or Assistant Attorney General, and the reasons must be documented in the file.”

Sessions’ directive specifically rescinds previous policy memos from the Obama administration, including the policy that allowed prosecutors not to charge mandatory minimums in certain circumstances and the policy regarding using prior conviction enhancements in plea negotiations.

Thus, Assistant U.S. Attorneys will now be unlikely to do anything but charge the most serious offense with the highest possible sentence and to offer no relief whatsoever in a plea agreement.

It will be a grim landscape for federal criminal defendants who have unique mitigating factors or where application of mandatory minimums would be unjustly harsh.  This will probably mean that more federal criminal cases will be contested at trial because in many cases there will be little incentive to plead guilty.

More so than ever, a person charged with a federal criminal offense will need representation by an experienced and qualified federal criminal defense attorney.

Foster saves drug trafficking client from lengthy prison sentence

April 3, 2017—Wilkesboro, NC—After two-and-a-half years of investigation and plea negotiations, Mark Foster succeeded today in saving his client from a mandatory prison sentence of 225 to 282 months (18 to 23 years) in an opiate pill trafficking case.  By highlighting his client’s cooperation, his childhood traumatic brain injury, and his drug addiction treatment efforts, Foster was able to convince the D.A. to agree to a plea to a reduced charge.  He then persuaded both the D.A. and the court to agree to a sentence of only 90 days in a prison drug treatment program as a condition of 18 months of supervised probation.

What is “discovery”?

Criminal defense attorneys, prosecutors, and judges use the term “discovery” often, but clients may not accurately understand the term.  “Discovery” means copies of police reports, witness statements, lab reports, photographs, etc., that comprise the evidence against the accused.  It seems like it would be common sense that the Constitution entitles a criminal defendant to receive full discovery of the case against him, but this is not the case.  Instead, discovery is a limited right created by statute.

In North Carolina state courts, discovery by the defense is governed by Section 15A-903 of the General Statutes.  If requested, the State must make available to the defense the complete files of all law enforcement agencies involved in the case.  This includes copies of the defendant’s own statements and those of any codefendants, witness statements, police officer reports, reports of tests and examinations, and inspection of any physical evidence.  To secure the right to receive this discovery, the defendant’s attorney must submit a written request for voluntary discovery to the State.

In the federal courts of North Carolina, discovery by the defense is governed by Rule 16 of the Federal Rules of Criminal Procedure.  Rule 16 entitles the defense to receive, upon request, copies of the defendant’s oral statements, written statements, and his prior criminal record.  Additionally, upon defense request, the government must make available copies of documents and other evidentiary items in the government’s possession if they are material to preparation of the defense, the government intends to use them in its case-in-chief at trial, or they were obtained from or belong to the defendant.  Finally, upon request, the government must provide the defense with copies of results or reports of any physical or mental examinations and of any scientific tests but only if such items are material to preparing the defense or the government intends to use the items in its case-in-chief at trial.

Rule 16 contains no provision requiring the government to disclose statements of ordinary witnesses (although notice of expert witnesses is required).  However, it is the common practice in the Western District of North Carolina for the U.S. Attorney’s Office to provide “open file” discovery, allowing defense access to most everything the government obtained in the investigation, including reports of witnesses.  However, while the defense attorney can show the client the discovery for his or her review, local rules prohibit the attorney from giving any copies to the defendant to retain.

Beyond statutory discovery obligations, prosecutors are also required by the U.S. Supreme Court case of Brady v. Maryland to disclose any exculpatory evidence, i.e., evidence tending to show the defendant’s innocence or to mitigate his punishment.  Finally, prosecutors are also required by Giglio v. United States to disclose evidence that would tend to impeach a prosecution witness.

Discovery is the heart of a criminal case and is the primary focus of a criminal defense attorney’s work.  The first task in providing effective assistance of counsel to a person charged with a crime is to thoroughly review the discovery provided by the prosecution to determine the strength of the prosecution’s case and to advise the client of his or her options.

Drinking and Driving on St. Patricks’ Day

Happy St. Patrick’s Day!  When this day of celebration and revelry falls on a Friday, as it does this year, the amount of partying and imbibing is increased.  If you plan on drinking, please arrange in advance not to drive home.  Have a designated driver, take a taxi, or call Uber.  It is not worth the risk to yourself and others to drive while impaired.  It is also highly expensive if you are arrested and charged.

In the event you use poor judgment and get arrested and charged with DWI in Charlotte or anywhere else in North Carolina, you should hire an experienced criminal defense attorney as soon as possible.

There are a variety of issues that may constitute a defense that only an experienced criminal defense attorney can properly litigate on your behalf.  These include, but are not limited to, the following:  reasonable suspicion to pull over your vehicle; legal validity of traffic checkpoint; proper administration of field sobriety and alcohol breath testing; probable cause for arrest; proof of impairment.

Conviction of DWI in NC carries serious consequences, including:  possible jail time; suspension of driver’s license; greatly increased insurance premiums; possible requirement of installation of ignition interlock device on your car; community service; alcohol assessment and treatment; and large monetary penalties in the form of court costs and fines.

You should never represent yourself when charged with DWI in North Carolina.  You have the right to be represented by counsel of your choice or, if you cannot afford your own lawyer, the court will appoint one for you.  Good luck and be safe.

Getting Out of Jail Pending Trial

One of the highest priorities of a newly charged defendant in a criminal case is to be released on bail.  Being released on a misdemeanor charge if you have no prior criminal record is relatively simple and inexpensive.  However, having a previous criminal record or being charged with felonies will make release problematic.

In North Carolina, there is a big difference between bonding out of custody in state cases versus federal cases.  In state cases, within a few hours of arrest, a magistrate will set the amount of bond which must be paid for the defendant to be released.  That amount can be paid in full to the clerk of court or arrangements can be made to pay a bondsman 10-15% of the total to be released.  A bond amount must be set unless the charge is a capital offense.

Once the initial bond is set in a state case, a defendant who is still in custody is entitled to a bond hearing before a District Court judge where the judge would determine whether to decrease the bond, leave it the same, or increase it.  If the offense is a felony and the defendant is indicted on the charge, the defendant is entitled to one additional bond hearing in Superior Court where he can make another attempt to have the bond reduced.  At a bond hearing, the two factors the court will consider are whether the defendant is a flight risk and whether he or she constitutes a danger to the community if released.

In federal court in the Western District of North Carolina (Charlotte, Asheville, and Statesville Divisions), a newly arrested defendant is entitled to one “detention hearing”, where the issue is whether the court can set conditions that will reasonably assure the appearance of the defendant and the safety of the community.  If so, the court will order the defendant released on a set of conditions that will include the setting of an unsecured bond, i.e., one which does not require the actual payment of the bond.  However, the bond would become due and payable if the defendant violates his or her release conditions.

Federal law provides that in cases where defendants are charged with certain serious drug, gun, and violence offenses, it is presumed that no set of release conditions will reasonably assure the appearance of the defendant and the safety of the community.  In such a case, the court will order the defendant to be detained pending trial unless the defendant can rebut the presumption of detention.

Being released pending trial on state or federal charges is very important not only to the defendant’s ability to maintain employment and preserve family ties, but also to his ability to assist his criminal defense attorney in preparing for trial.  An experienced criminal defense attorney is best able to present information to the court to maximize a defendant’s chances of release.  It is inadvisable for a defendant to represent himself at a bond or detention hearing.

Fighting the Trial Without Losing the Appeal

A good criminal defense attorney not only tries to win the trial in front of the jury but works to preserve any legal issues for appeal.  In North Carolina, this can be tricky.

Under North Carolina law, it is not sufficient to file a written motion to suppress evidence and then litigate that at a pretrial motion hearing.  The attorney must also make an on-the-record objection at the time the evidence is offered into evidence in front of the jury.  If the attorney fails to do this, then the defendant will be held to have waived appeal of this issue.

The fact that this is a common mistake by criminal defense attorneys is illustrated by two opinions handed down on the same day, February 21, 2017, by the North Carolina Court of Appeals.  In State v. Gullette, the defense attorney had moved to suppress an out-of-court photo identification of the defendant on the grounds that it was unfairly suggestive and was obtained in violation of a new state statute.  However, after the court ruled against the defense during a pretrial hearing, the defense attorney failed to object to this evidence when it was offered into evidence during the trial.  The Court of Appeals rejected appellate review of the issue because the defendant failed to preserve the issue.

Similarly, in State v. China, the defense attorney had filed a pretrial motion to exclude evidence of the defendant’s recent release from prison.  He had also objected during trial to the State’s stated intention to elicit such evidence from a witness.  However, he did not object when the prosecutor asked the witness questions which elicited the testimony about the defendant being in prison.  Therefore, the Court of Appeals held that the defense had failed to preserve this issue for appellate review and dismissed the defendant’s appeal of that issue.

The moral of the story:  a criminal defense attorney in North Carolina must timely object to admission of evidence before trial, but if the judge denies the motion, must also object again when the evidence is offered into evidence in front of the jury.  Otherwise, there will be no ability to pursue that issue on appeal.

Attorney Mark Foster successfully defeats the State’s attempt to convict a client on six felony charges.

Charlotte, NC: Attorney Mark Foster successfully defeated the State’s attempt to convict a client on six felony charges. The client was charged with committing sexual acts with a child and taking indecent liberties with a child six years after the incidents allegedly took place. Foster’s defense focused on the total lack of corroboration of the alleged victim’s claims and the tremendous delay in making the claims. After a one-week trial, the jury deadlocked, with 9 votes for not guilty and 3 votes for guilty. The lack of a unanimous decision meant that no verdict was reached and the judge declared a mistrial. The District Attorney will have to decide whether or not to retry the case in front of a different jury at a later date.

Attorney Mark Foster obtains a jury acquittal on all charges for his client charged with statutory rape of a child and taking indecent liberties with a child.

Charlotte, NC: Attorney Mark Foster obtained a jury acquittal on all charges for his client charged with statutory rape of a child and taking indecent liberties with a child. Due to the seriousness of the charges and the client’s prior criminal record, the client was held in jail while awaiting trial and was facing mandatory life imprisonment without parole if found guilty. Foster’s successful defense of his client focused on the total lack of medical, scientific, or physical evidence corroborating the alleged victim’s claims. The jury agreed with Foster’s argument that the prosecution had failed to carry its burden of proving the case beyond a reasonable doubt. As a result, the client was released from jail later that day.

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