Silence is Golden

“You know, if you just tell us what happened, I’m sure the Court will go easier on you.”

Yep, if you’ve seen a cop show on television, you know that this gets said to every generally good person accused of a crime. On TV we have the moral certitude that the wrong was committed. In the real world, not so much.  And the idea of a court rewarding honesty is good in theory, but I’ve seen no data that suggests it actually happens.

Someone once observed that confession is good for the soul. That may be, but it is not good for your freedom. Until such time as you’ve had legal advice, you should never speak to a police officer about the events that led up to a self defense shooting. “I am happy to give a complete statement once I have spoken to my lawyer.” Say that, and no more. Any time anyone asks you anything, say “LAWYER!” They’ll quit soon enough.

Also, don’t assume that what you say won’t be recorded. Not only do cops wear body cameras, but they can turn on the video recorder in their patrol car, and if they put you inside, in most cases it will record what you say. So things like “damn I nailed that sumbitch!” are just not good things to say in the back of a cop car.

You’ve probably read it so many times by now that you can repeat it in your sleep: you have a right to self defense so long as you’re not the aggressor, and you believed your life or the life of someone else was in immediate peril. You probably also know that you can only continue defending until the other person is not a threat. So if the bad guy falls down and drops the gun after your first shot hits him, you can’t pump five more into him while he’s on the ground.

There are about a million reasons why you should not talk to police, fire, or anyone else at the scene until you talk to a lawyer. The first is that you’ve been traumatized. You’ve had to take a life, and in doing so, you faced mortal danger. You’re operating on adrenaline. Your fine motor skills are crap. Your memory is trying to re-order the events in a way that makes sense. If you tell your story to three different people, you’ll tell three different stories because you’re working off short term memory, not long-term memory. And that’s a problem because inconsistencies in stories become “lies” in court. And anything you say can and will be used against you.

This is why in garden-variety cases involving criminal activity, the client is never allowed to testify.

Why?

Because everyone gets confused, everyone makes mistakes, and a seasoned cross-examiner could put Mother Teresa on the stand, and have a jury saying things like “that damned Mother Teresa, what a liar!”

This is because while trials are a search for the truth, lawyers look for and highlight the inconsistencies, which become “lies” when argument is made. Letting your client answer questions before trial gives the prosecutor the “didn’t you tell the police that…” arrow in his quiver. And, it’s worth noting that if what the criminal defendant says helps him, there were be no video, but if what he says hurts him, he’ll be on video. It’s also worth noting that notes taken by arresting officers where they may have written down something vaguely exculpatory will be thrown away and lost forever (with exculpatory information removed) once a report is written.   This doesn’t mean cops are bad people, it just means that having been subject to cross examination multiple times, cops understand how the game is played, and they take pains to play to win. And if you’re innocent, that sucks.

That’s because while cops and prosecutors are supposed to play fair, often, in their zeal to win, they don’t. I know this personally.

To borrow from the TV series Dragnet, the story below is true; only the names have been changed to protect the innocent. In this case, the defendant was truly innocent, and it highlights the kind of specialized help that a lawyer can bring to a situation where the police are unlikely to want to play fair.

I had a client once who was accused of a sexual misadventure with an underage girl. The girl was pretty, about 19, and she did that whole crying thing very well. I suspect she purchased the cheapest mascara available so that she could look like she’d cried her eyes out. Her pretend vulernable nature brought out the protector in the cop assigned to investigate, who had never seen an innocent man – ever. If this cop was after you, he wouldn’t stop until he found the evidence (or created the evidence) to nail you.

The client was innocent. He didn’t do what he was accused of. He told me the girl had never been in his house, and I believed him. Early in the investigation I told him to go to his house and repaint the bedroom and living room with a new and different color. It didn’t matter what, as long as it was different.

I told him to change the placement of the furniture. So that it was different, and to have someone help him do that so there would be a witness besides him to testify to the way the room was arranged before and after. That same witness took before and after photos.

I knew if the girl had never been in the house, that she could not possibly describe the way the house looked, what was where, etc. But I knew that if I knew this flaw in the prosecution’s case, the prosecutor knew it too.

About a week after the client interview with the cops and two weeks after he’d repainted the inside of his house, the cops showed up with a search warrant and a video camera, and they videoed the entire house, especially the bedroom and the living room where supposedly all of the bad things had happened. They took DNA samples, etc., none of which came back.

So I pulled aside the detective and I said “you better not show the complaining witness this video because I don’t think she can describe the house without seeing it.”

He bit like a chicken on a June Bug. He assured me he would not show it. And on the stand, he stated he had never shown the witness the video (but of course, he didn’t need to show it to her, someone else could have). However, I’m sure that the girl watched the video several times. She testified at trial about the blue walls in the bedroom and the yellow walls in the living room, and how the bed was on the north wall, and the couch was on the east wall of the living room. She got up and marked where these things were on a big piece of paper hung on an easel in the Courtroom. On cross exam she said again and again she was absolutely sure. This couch was the right place. This was the right color for the bedroom. No, the bed was facing south, not north.

The prosecutor enjoyed this: “you’re making my case for me.”

He didn’t enjoy the first defense witness, the person who had helped the client paint and moved the furniture into a new orientation.

“Ms. X put the couch here. Was that where it was on May 9?”

“No, it was here.” He then pointed to a different location, and marked it in with a different colored marker on the prosecution’s easel.   I could hear steam escaping at the prosecution table.

“Were the walls in the bedroom blue on May 9?”

“No, they were a light gray on May 9.”

“How did they get blue?”

“I helped Mr. Y paint them.”

“Can you describe this photo please?”

“Sure, that’s a photo of me helping paint the gray walls blue.”

The prosecutor sat like a boiling teakettle at counsel table until counsel passed the witness and his first question was something like “what were you trying to conceal by repainting the walls and moving furniture?”

“Nothing sir. I was trying to expose a liar. And, it looks like I did.”

The jury was out about 30 minutes, but mostly because they wanted the pizza that was brought in for supper. The acquittal was unanimous.

In a self-defense situation, there will almost always be an assertion of wrongful conduct on the part of the shooter. Recently in Oklahoma, when a man shot three teens who had broken into his house, the victim’s parents were aghast that little Johnny got his ass shot off because he was breaking, entering, and carrying a knife. In Oklahoma, the prosecutor laughed.

In Illinois the prosecutor would have wanted to help slap on the cuffs. That would be the same in Maryland, Connecticut, New York, New Jersey and California. Those “blue states” hate the idea that someone might use a firearm for self defense.

If you don’t have Delta Defense or NRA Carry Guard, you’re not prepared for what will happen if you ever have to use your gun to defend yourself. The time to prepare is now.