things to think about

today i am thinking about: CONSTITUTIONAL RIGHTS
May 26, 2009, 2:52 pm
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I am lucky that the most intimate part of my criminal justice experience is hours and hours curled up with my laptop watching Law & Order. This makes me like a lot of lucky people, largely middle class, largely white. I get to watch the fake police in action — a great way to lose even more trust in the real police, I tell you what — and I learn truisms about criminals. The creepy guy in act 1 is always the guy who did it in act 3. Telling a wife her husband was cheating on her is a great way to get the wife to testify. And the difference between a hardened criminal and a novice is that the hardened criminal will always, always lawyer up.

Thanks to a 1986 ruling, Michigan v. Jackson (SCOTUS, Wikipedia), police are not allowed to interrogate a suspect without a lawyer present. All you have to do is say “I want a lawyer” — to lawyer up — and you are not required to answer any other questions. Further, and most importantly, this means that things you say to the cops without a lawyer present are not admissable as evidence in court. No lawyer, no deal.

This ruling reverses that. It now states that police can interrogate prisoners without a lawyer present. Or, rather, it states that defendants who choose to talk to the police without a lawyer present can do so. Of course, the question is exactly how much can a person, being held by the police, “choose” and be really and fully consenting.

The NY Times summarizes the Justice Department brief thusly:

The Justice Department […] said the 1986 decision ”serves no real purpose” and offers only ”meager benefits.” The government said defendants who don’t wish to talk to police don’t have to and that officers must respect that decision. But it said there is no reason a defendant who wants to should not be able to respond to officers’ questions.

Officers must respect that decision. So now, instead of having the law require a lawyer — by saying that anything said in an interrogation room without a lawyer present doesn’t count — the law now requires the police to respect the suspect’s decision not to talk. Just like they should respect the suspect’s right to reach for ID. (RIP Amadou Diallo.) Or to not be raped by officers walking you home. Or cooperate with the police while trying to calm other people down. (RIP Oscar Grant.) Or any of 100 other tiny and miserable acts of corruption that have even been shown to be outside the control of individual officers but are certainly proof of a system that is not to be allowed to run unchecked.

Sure, there are a lot of respectful cops. But if I understand this right, this means the burden has shifted off the police. For anything coming out of an interrogation room without a lawyer present, it will now be assumed that that information was gathered in a respectful way. It will be on the suspect to prove any misconduct, mistreatment while incarcerated is an incredibly hard thing to prove. (Here’s Human Rights Watch’s category of articles. Knock yourself out.)

There are a lot of people I know pissed off about some other human rights issues happening today. I am sure a lot of them will be marching and waving signs. I am sure a lot of them will be writing angry letters to their congressman. Maybe some of those protestors will be arrested because the police decide that they’re trying to go somewhere they shouldn’t, or someone who looks like them smashes a window, or even because they trip and fall after the police decide to clear an area. Maybe none of those people arrested will get charged with a crime, but maybe one of them will. And maybe the police will decide to interrogate that arrested person, and bring them into an interrogation room, and shut the door. And maybe that police officer will respect that arrested person’s right to an attorney, and wait until one gets there. But let’s say that police officer is homophobic. Or tired and not going home until they close the case. Or getting pressure from their boss to get a confession — just like we’ve all seen on Law & Order. Wouldn’t it suck if the attorney got caught in traffic?