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IMPORTANT ADVICE

 

In the event that you have legal issues or are arrested the first decisions that you make could be the most important of your life. Read these 4 important recommendations and examples to protect yourself or your child.

 

#1 - Failure to exercise your right to remain silent until you speak to an attorney can have dire consequences.

#2 - If you have a juvenile with legal trouble don’t fall into the trap of believing that everyone wants and knows what is best for your child - or you.

#3 - If you are arrested for DUI you DO need an attorney.

#4 - Arbitration is seldom the best means to settle a dispute.

 

#1 - Failure to exercise your right to remain silent until you speak to an attorney can have dire consequences.

 

Remain Silent.
An odd thing happened on the way to an acquittal, the jury believed a confession.  And it wasn’t true.  An even odder thing happened on the way to the confession: the suspect believed his innocence would set him free.  What the suspect did not know at the interrogation and the jury did not find out at the trial was the police are very well trained in a powerful method of extracting admissions whether true or not.  Here’s how they do it:

 

They isolate the “suspect” (or, more appropriately, “victim”) in a small bare room in the inner recesses of a police station with a plain table, a few chairs and a one-way mirror on one wall.  The suspect is seated across from the mirror with a policeman sitting between the suspect and the only door.  During the interrogation the policeman repeatedly gets up close to the suspect and “in his face”.  The entire proceeding is recorded and often the parts where the officers assure the suspect that he is not being recorded will be “lost”.

 

The room setup is extremely intimidating to youngsters and people who are innocent.  It makes them want to get out of it at any cost.  The next step is to show them how to get out of it by confessing to whatever crime is being investigated.  Then they confess and ruin their lives.

 

To get a confession the police use the “Reid Technique”, a time-honored (by police departments, anyway) method of cowing, badgering and coercing the suspect.  It has nine steps. 

 

First the officers tell the suspect unequivocally he “did it”, he absolutely did it.  Not, they believe he did it, but that he flat out did it. 

 

Next they try to convince him “it” was not his fault and/or the crime, itself, was justified.  “Those people cheated everyone who shopped there, no wonder somebody decided to get even, they deserved to be robbed.”  “The car didn’t have its lights on, even a sober driver couldn’t have seen it in time.”

 

Third, they will not let him deny he did it.  They become very angry when he makes the attempt.  “You did it, we know you did, don’t insult us by saying you didn’t!  Are you saying I’m stupid?  Are you calling me a liar?”

 

Fourth, if he tries to say he couldn’t have done it they stop him, telling him he is lying and they can prove he is lying.  “Don’t finish that sentence.  You were there, we know you were there.  We already talked to your girlfriend.  She says you weren’t with her.  You can’t change the facts and the fact is you were there.”  They are probably lying.

 

The fifth step is to keep on the attack and not let their suspect stop the interrogation or stop talking.  “We know you’re tired but we need to go over that one thing one more time before we stop.”  And on and on.

 

They change to being sympathetic.  “Look, Jimmy, we’re on your side here.  We want to help you.  Just confess and you’ll feel better, we’ll feel better and we can all get this thing over and done with and relax” (or even, “go home”).  They are lying.

Then they offer a way to confess and save face by giving the suspect a way to look at the crime as though it were reasonable.  “Maybe that cheating clerk short-changed you when you were in there earlier.  Anyone would have been ticked off at that.  There is not a jury n the country that would blame you if you tell them that.”  They are lying to beat the band.

 

When the suspect is worn down and will do anything to stop the interrogation they ask him to just give them some details.  (Sometimes they give him the details to give them back or “lead” him to them.)  They help him give them the “correct” details.

 

Last, they get him to write it all down or give an oral “confession” on the record.

The police can be very creative in applying the Reid Technique.  Young innocent people are especially susceptible to it and false confessions happen all the time.  The problem for a lawyer is proving to the jury that it is false.  Any evidence the police had, such as feeding details or making threats, tend to disappear.   “It was a system and I wasn’t familiar with the equipment”.  And, the old faithful, “The recorder sometimes skipped.  We’ve had a lot of trouble with it but there wasn’t anything important that was missed.”

 

Creative “loss” of video and audio tapes is prevalent among police departments.   I can think of several instances when “the dog ate my homework”.  One time the tape went through a car wash and was thrown away.  (Yeah, right.)  Another time the sheriff’s department was moving to another building and somehow erased that one (and only that one) period of time at the jail.  (Sure, would the sheriff lie?)  Another time, the officer “just didn’t know where the tape was.”  Exculpatory parts (the parts that will prove you innocent) of tapes get garbled but the officer always volunteers to fill in the blanks.  His version will invariably be inculpatory (prove you guilty).

 

There is only one way to avoid the problem.  To paraphrase Churchill, “Never give in, never give in, never; never; never; never, in nothing, great or small, large or petty - never give in [or you will be convicted].”  Remember the third monkey and “speak no evil.”  Or anything else.  Ever.  Your name, address and the name of your lawyer.  That is it.  Nothing more. 

 

“The information contained on my driver’s license is current.  I want to confer with my attorney.”

“You aren’t under arrest.”

“Good, I’m leaving.”

 

If you are not convinced, might look at “The Psychology of Confessions” by Saul M. Kassin and Gisli H. Gudjonsson.  It can be found at various places on the internet.  Watch and you will become a believer.

 

RECENT CASE
A twenty-nine-year-old woman was accused of the statutory rape of a teenage boy.  The investigating officer got the boy alone and told him he had been accused by the woman of rape and he was going to prison.  The boy asked for a lawyer but the officer refused, telling him if he told a different story (that the woman seduced him) the case would be closed and the boy could leave.  The boy told the officer what the officer wanted to hear.  The woman was charged with statutory rape and incest.  Many months and many dollars later the woman was acquitted.

 

Advice: The police have little interest in the truth.  Silence is golden.

Don't rely on others to protect your child.  Few people in the juvenile legal system seem to genuinely listen to what the children have to say and want unless it is exactly what the adults want to hear.  One terrible problem is that for the most part, the adults, including those appointed by the courts to look out for the child's interest, try to do what they think is "best" for the child.  Every one of them has a different idea and some are adamant that their way is the only way.

 

#2 - If you have a juvenile with legal trouble don’t fall into the trap of believing that everyone wants and knows what is best for your child - or you.

 

At a seminar on juvenile law one of the speakers asked the attendees, “What is the role of the lawyer representing the child?”

 

The answer seemed so clear that I thought he was being rhetorical but he didn’t follow up so I replied, “To be the child’s zealous advocate.  A lawyer has no choice.” 

The speaker said, “Isn’t it really to do what is in the child’s best interest?”

“No.  A lawyer’s sworn obligation is to do his utmost to get the result the client wants.  I would be obliged to advise my juvenile client the same as I would an adult, but the bottom line is I work for the child and he gives me my marching orders.”

 

A juvenile judge present told me that I had better make it a point not to appear in his court.



That judge’s rather extreme posture is far from universal but it reflects the norm.  Each judge “just knows” how to handle kids.  And there are people in the juvenile justice system who read all the statistical data on what works statistically.  The first is a bit on the bizarre side.  What are the odds he is omniscient in child rearing?  Zero.  And statistics tell you nothing about a particular individual.  My son became a terrific man but I do not know how.  It would be beyond hubris to believe I know what will work best for some other child.  The same is true of judges but few of them recognize it.  Bless those who do.



All that being the case, what should parents do when the call comes to come to the principal’s office or the juvenile court?  The first thing is a “don’t”.  Don’t fall into the trap of believing everyone wants and knows what is best for your kid.  The same is true of you.   A non-lawyer does not have the knowledge of the law or the legal system to make decisions.  Lawyers have been hired more often to bail out children from the horrors caused by their own parents having done what they (and/or the police and/or school officials and/or the judge) thought was best at the time.  Don’t make that mistake.  Stand your ground, it is your child’s future that is at stake.  The second thing is to tell your child before he/she ever gets into trouble to say absolutely nothing.  In fact, tell your kid every year before school starts that if trouble comes, to call you first and say absolutely nothing to anyone except his lawyer.  Then send a letter to the school principal that you forbid anyone to interrogate your child unless you or your child’s lawyer is present, and that, per the lawyer’s instructions, you have told your child to say nothing. Request that this warning be passed on to anyone who might want to “interview” your child.  Don’t go wishy-washy here, use “warning” and play the lawyer card.



THERE IS NO SUCH THING AS PARENT-CHILD CONFIDENTIALITY!  If you talk to your child the prosecutor can force you to testify to what was said.  Do not discuss the matter.  Let me say that again, do not discuss the matter - even with other members of the family.

 

RECENT CASE
My client was a sophomore in high school.  He had been standing outside his school with some friends when a coach came up and noticed a “roach” lying near them.  In fact, it belonged to none of them but my client’s father told him to admit to it and “get it over with” because the coach and police officer told him everything would be all right if he did.  A few months later the young man was in a fight and the juvenile judge revoked his probation and sent him to jail - for a year.  Fortunately, the judge and others involved in both cases had made serious errors and a few days and many dollars later my client was released, the first conviction reversed and both cases dismissed.

 

Advice: Good intentions can have horrible consequences.  Take your lawyer’s advice, not that of those who want “what is right” for you.

 

#3 - If you are arrested for DUI you DO need an attorney.

 
Tough DUI laws and tougher enforcement of DUI laws are based on money, capitalism, greed.  A Federal Highway Grant pours tens of millions of dollars into Washington for new cars, equipment and overtime solely for the prosecution of alleged DUI drivers, money that police departments and officers (for court appearances) would not get from the state. 
It boils down to this: no prosecutions for DUI, no piles of federal money.  The kicker is that everything has to be done the federal way using federally required laws.  And the required laws have gotten weirder and weirder.

 

When the first toughened DUI laws were enacted they were referred to by the legal community as the Lawyers Relief Act because the DUI suspect has no chance of avoiding a conviction without a lawyer.  The loss of driving privileges can be devastating.  About the only thing a DUI defendant can do without a lawyer is plead guilty.  Sometimes there is no hope but that is not the norm.  Of course, the first conviction is a serious start, but the consequences of subsequent convictions are truly draconian

 

A police officer is predisposed to suspect every driver on the road of being intoxicated because he has that great federal cash incentive.  And the legislature makes it ever easier for the officers to file a warrant for DUI, get a conviction and make excellent extra pay.  Greed is a fine incentive.

 

The sad reality is that so long as the federal government keeps holding the cash carrot in front of police departments and officers they will follow it.  On the other hand, if capitalism is the American Way it would be un-American for the police not to drink deeply of the federal spring.  Pardon the mixing of metaphors and paraphrasing of good poetry, but you get the idea.

 

There are four principles here: Never drink and drive; never let someone else who has been drinking drive your car; keep your lawyer’s phone number handy; and, for reasons not mentioned, never talk to police officers.

 

Advice:  Say nothing (see rule #1) and retain counsel.



#4 - Binding arbitration is seldom the best means to settle a dispute.

Binding arbitration means that one person makes a decision and it is final.  No appeal.  And that is one of the problems.  If the arbitrator has his own agenda, his own biases, the decision will be skewed and will leave someone screwed and stuck with it.  If the arbitrator just cannot grasp what the law is, the decision will be skewed and there is nothing you can do about it.  If the arbitrator has ambitions which can be best satisfied by one of the parties or the law firm of one of the parties - you get the idea.  If you try a case and the judge screws up, you can appeal and have a hope of reversing the judge’s screwed up decision.  Finality is fine if the decision is correct.  Humans make mistakes (if they did not, you wouldn’t need someone to decide who is right) and arbitrators are human.  If the arbitrator chooses to ignore the facts or the law, tough luck.  You lose.  Or the other guy loses.  Flip a coin.

 

There is an old joke about a small county with just a few lawyers.  The only judge decided to take a month off and called the local lawyers in and told them, “If you just can’t wait for me to get back, each lawyer write down what he thinks the decision should be.  The clerk will put the plaintiff’s decision under a saucer of milk on the right side of the bench and the defendant’s under a saucer on the left side.  Then he will put my cat dead center between them and whichever saucer he goes to first, that is the decision.”  Next election, the cat won. 

 

Arbitrators charge money, a lot of money.  An arbitrator is American and it is the American way to maximize one’s income.  If one of the parties and/or the law firms involved is more able to employ the arbitrator in the future, there is an unavoidable bias.  An arbitrator is supposed to decline if he does not believe he can handle the dispute because of lack of knowledge in the area or possible bias.  If his child’s college tuition is coming up and he is a bit short or his “day job” has hit a slump, what are the odds?  Save your money, borrow a cat.

 

Lots of contracts have clauses that require arbitration.  Some of the older ones require going through the American Arbitration Association.  That equates to a lot more money, up front.  If you run into one, strike out that clause.  You might also look for clauses that require that any arbitration or law suit be filed in another state and apply the other state’s laws.  Strike through that one, too.  Make the other party initial the strikeouts.  If he refuses, odds are he intends to screw you over.  Even if you do sign it there might be a way to get out of that provision if there is a great disparity between your bargaining power and the other party’s but don’t count on it.

 

But there is still some hope: non-binding mediation.  The mediator usually charges less and it is his job to help you work out your differences by hearing from each party what the proof would be and trying to bring them to an agreement through explaining the law and the strengths and weaknesses of both positions and going back and forth negotiating a settlement.  Mediation does not suck because there must be an agreement so the decision is yours.  No agreement, go to trial.  Get a judge and jury and the right to an appeal, at a fraction of the cost of arbitration.

 

Advice:  Do not agree to binding arbitration.