by James Duane
“I don’t want to incriminate myself.” That was what Gillman Long said to Agent Sherry Rice when she asked him about sexual contact between him and [the alleged victim]. . . . What was his response? “I don’t want to incriminate myself.”
Then, after advising the jurors that they could “never use [it] against somebody when [that person] invoke[s] the right to remain silent,” the prosecutor said in complete contradiction, “We are asking you not to leave your common sense at the door. If somebody doesn’t want to incriminate themselves, it means any sort of statement as to that topic that they are being asked for would get them in trouble.”
Of course, the prosecutor’s argument was absolutely false. As this book has clearly demonstrated, and as even the Supreme Court understood fifty years ago, innocent people have ample reason to fear the perils of talking to the police, and they therefore have a perfectly lawful right to refuse to give answers to questions that might incriminate them. But partly on the basis of this argument, Long was found guilty and sentenced to life in prison without any possibility of parole. On appeal, the Obama Department of Justice successfully persuaded the United States Court of Appeals that this argument was proper, or at least not clearly improper, and therefore should not result in a new trial. Unfortunately for Long, his attorney had not objected when the prosecutor made those arguments, and the judge—who was herself a former federal prosecutor—did not immediately intervene to emphatically contradict the prosecutor, as a good judge would have done. The court of appeals did not decide whether Long might have won if his lawyer had made the right objection, but agreed with the prosecution that the law was ambiguous enough to permit the government to regard this sort of argument as a proper basis for urging a jury to convict a man and take away his liberty for the rest of his life.
The Department of Justice has now served official notice that it believes the courts should allow a prosecutor to argue under any circumstances that your willingness to assert the Fifth Amendment privilege can and should be used against you as evidence of your guilt. It is too soon to know whether all of the federal courts will yet go along with that radical suggestion, but at least one circuit of the United States Court of Appeals has already done so, and the grave danger is that others will follow suit.
What does this mean for the liberty of ordinary American citizens? The implication is as obvious as it is shocking. In light of the ongoing war now being waged against the Fifth Amendment by the federal courts and the Department of Justice, the precious constitutional privilege against self-incrimination is no less important than in the past, but it has now become “the constitutional privilege that dare not speak its name.”
III
PLEAD THE SIXTH
Anybody who understands what goes on during a police interrogation asks for a lawyer and shuts up.1
—Professor Franklin E. Zimring, UC Berkeley School of Law, 2015
If you are asked any question by a police officer or a government agent and you realize that it is not in your best interest to answer, you should not mention the Fifth Amendment privilege or tell the police that you wish to exercise your right to avoid incriminating yourself. In this day and age, there is too great a danger that the police and the prosecutor might later persuade the judge to use that statement against you as evidence of your guilt. And if they do, to make matters much worse, you have no guarantee that the FBI agent in your case will not slightly misremember your exact words. Even if you take care to say, “I wish to invoke my right under the Fifth Amendment against self-incrimination,” you have no guarantee that the agent will not testify months later at your trial that “he said he would not talk because the truth would incriminate him.” Even if the officer only gets a few words wrong, it only takes a slight rewording of the privilege to make it sound like a confession.
So what do you do instead?
Instead mention your Sixth Amendment right to a lawyer, and tell the police that you want a lawyer. Is that honest? Not entirely, because it sounds like you are implying that you might be willing to talk to them after a lawyer shows up, and of course that is not true, and your lawyer will not agree to that. But a little dishonesty is a small price to pay to defend your freedom and your constitutional rights, especially when dealing with police officers who will lie to you until the sun goes down. And most of them will not stop when the sun goes down if they are being paid by the hour and can get overtime for lying to you through the night.
By invoking your Sixth Amendment right, if you are charged with a crime and the prosecutor wants to use your invocation of that right against you, you will probably be able to keep that information away from the jury under the law, because the federal courts (at least so far) generally agree that you cannot tell the jury that the defendant has asserted the Sixth Amendment right to a lawyer, or to use that as evidence against the defendant.2 And even if you cannot keep it out of the evidence at trial and the jury is allowed to learn what you said to the agent, it will sound far less suspicious if you merely told the officer that you wanted a lawyer present before you agreed to be interviewed. That makes it sound, after all, like you were willing to answer their questions. (But don’t worry about what will happen after the police obtain a lawyer to represent you, because they probably will not even bother wasting their time. They know that the lawyer will tell you not to answer their questions.)
But how do you request a lawyer? There is no need to be rude, naturally. And most people instinctively recognize that fact. The police officer does not deserve your disrespect, because he or she is only doing his or her job in a criminal justice system that is terribly out of control.
Unfortunately, far too many individuals in the real world go in the opposite direction, and for some reason think that they need to be overly polite to the police. They seem to instinctively fear that they might come across sounding a little rude or disrespectful if they make their request sound too confident or unequivocal. So here are some of the things that actual criminal suspects have said in real cases, when they were trying in vain to end the interrogation and keep themselves out of trouble:
“Maybe I should talk to a lawyer.”
“[B]ut, excuse me, if I am right, I can have a lawyer present through all this, right?”
“I think I would like to talk to a lawyer.”
“What time will I see a lawyer?”
“I think I want a lawyer.”
“I can’t afford a lawyer but is there anyway [sic] I can get one?”
“Could I call my lawyer?”
“I think I need a lawyer.”
“Do you think I need a lawyer?”
Every single one of the above quotations was taken directly from the mouth of a criminal suspect who was trying to ask for a lawyer, but who tragically decided that he might sound more polite and respectful if he did not act too confident about his desire.3 In every one of these cases, the police ignored the suspect’s tentative and mealymouthed expressions of interest in a lawyer, persisted in their questioning, and successfully managed to get him to make some damaging statements (not necessarily a confession) that could be used to help convict him, and the courts concluded that such statements were admissible against the suspect because he had not made a clear and unequivocal request for a lawyer. In dealing with the police, that kind of politeness is a tragic mistake. In many of these cases, the suspect never would have been convicted if he had simply made his request unambiguous—and we will never know for sure how many of them were indeed innocent, although I have already shown you how easily and how often innocent people can be convicted on the basis of “incriminating” statements they made—or allegedly made.
Even when you try to express yourself rather directly and forcefully when talking to the police, you may become the tragic victim of the ambiguity in your unarticulated punctuation! Tio Sessoms was only nineteen years old when he learned that he was being sought for questioning by California police officers in connection with a murder.4 On the advice of his father, he
turned himself in to the authorities, and he was later questioned by the police after spending four days in custody. At the very beginning of the interview, even before he was told about his right to remain silent, Sessoms tried to prevent them from questioning him. But in an unfortunate desire to sound as polite as he possibly could, he expressed himself this way: “There wouldn’t be any possible way that I could have a . . . a lawyer present while we do this?” Obviously that would not be enough to do the trick. But then he went on—and here I am typing it just as he said it on the recorded statement, without adding any punctuation—and added: “Yeah that’s what my dad asked me to ask you guys uh give me a lawyer.”
You see the problem, of course. Although Sessoms knew that his statement was being recorded by the police, he did not actually dictate the punctuation that he had in mind, so the recorded statement was ambiguous as to which of the following he meant to say:
“That’s what my dad asked me to ask you guys. Give me a lawyer.”
“That’s what my dad asked me to ask you guys: give me a lawyer.”
If Sessoms had simply told the police, without hesitation or equivocation, “Give me a lawyer,” that would have been the end of the interview. The same would have been true if he had paused long enough between the two sentences to make clear that they were indeed two different sentences, and that he was in fact following his father’s advice. Or if he had put it in writing. But he did not do any of those things, and the way he actually expressed himself left itself open to the possibility that he was merely trying to summarize his father’s advice. It was not clear, the police later insisted, whether this request for a lawyer was just something his father had recommended, or one that he was making himself.
Because of this tragic ambiguity in what we might call the “intended punctuation” of his comments, the California courts ruled that Tio Sessoms had not made an effective request for an attorney, and so his later statements could be used against him at trial. He was convicted of murder and sentenced to life in prison without the possibility of parole. Some good news recently came for Sessoms when his lawyers finally succeeded, after more than ten years of fighting on appeal, to persuade the United States Court of Appeals that he had indeed made a valid expression of his desire for a lawyer, and so his statement should not have been used against him, and that he is therefore entitled to a new trial. But the bad news, as I said, is that it took his lawyers more than a decade of fighting on appeal to win him that result, and by that time he had already been in prison for more than thirteen years. And all because his attempt to invoke his right to counsel, despite its seeming clarity, precision, and forcefulness, was plagued by a bit of arguable ambiguity with respect to how he meant for it to be punctuated. The difference between a period and a colon could have cost him thirteen years in prison, perhaps for a crime he did not commit.
There is only one way to avoid this problem. When you ask for a lawyer, do not worry about sounding polite, because that will make you sound unduly tentative or equivocal. Never ask the police officers what their opinion might be. In fact, do not ask any questions when you insist on the presence of a lawyer. Do not even use the words I think or might or maybe. You need to say, with no adverbs, in only four words, “I want a lawyer.” And then you need to say it again, and again, until the police finally give up and realize they are dealing with someone who knows how our legal system really works.
ENDNOTES
PART I
1Paul Blumenthal, “Lois Lerner, IRS Scandal Figure, Will Invoke Fifth Amendment at Oversight Hearing,” Huffington Post, last modified May 22, 2013, http://www.huffingtonpost.com/2013/05/21/lois-lerner-irs-scandal_n_3314693.html. For more recent examples of the same phenomenon, see Laura Koran, “Clinton IT Staffer Intends to Take the Fifth in Upcoming Deposition,” CNN News, June 2, 2016, http://www.cnn.com/2016/06/01/politics/bryan-pagliano-hillary-clinton-email-server/; Radley Balko, “The South Carolina Police Files: Gunslinging Raids, Coverups and Magical Dog Sniffs,” The Washington Post, May 31, 2016 (noting that officers pleaded the Fifth Amendment and refused to testify against the men they arrested after videos “revealed major discrepancies in the police’s account of their interactions with both men”), https://www.washingtonpost.com/news/the-watch/wp/2016/05/31/the-south-carolina-police-files-gunslinging-raids-coverups-and-magical-dog-sniffs/.
2Hiibel v. Sixth Judicial District Court of Nevada, 542 U.S. 177 (2004).
3At the risk of stating the obvious, you should of course talk to the police (although as briefly as possible) in those situations in which the law requires you to call them (to let them know, for example, that you have been involved in an automobile accident or a shooting in which someone has been seriously injured or killed), or if you are a witness or the victim of a crime, or if you are pulled over on the highway for a minor traffic infraction. These situations have nothing to do with our central focus, which is to tell you how to handle a situation in which a police officer or other government agent comes to you without warning, in an encounter you neither requested nor proposed, and wants to ask you some questions about where you have been, who you have been with, and what you have done.
4In one recent criminal case, a Texas police officer admitted under oath in court that he had knowingly lied to deceive a suspect into talking, and “that lying is a common and accepted police tactic during interrogation.” Weaver v. State, 2008 WL 2548807 (Tex. App. Jun. 26, 2008). For a description of some of the methods of deception the police are trained to use, see Brandon L. Garrett, Convicting the Innocent: Where Criminal Prosecutions Go Wrong (Cambridge: Harvard University Press, 2011), 22–23.
5Garrett, “Contaminated Confessions,” Convicting the Innocent, 18.
6This information has been compiled by the Innocence Project, which has managed to obtain exoneration and release of over three hundred innocent men and women. “False Confessions or Admissions,” Innocence Project, http://www.innocenceproject.org/causes/false-confessions-admissions/.
7From 2000 through 2007, Congress created, on average, one new crime a week for every week of every year. Brian W. Walsh and Tiffany M. Joslyn, Without Intent: How Congress Is Eroding the Criminal Intent Requirement in Federal Law (Washington, DC: Heritage Foundation, April 2010), 8, http://www.heritage.org/research/reports/2010/05/without-intent.
8Paul Rosenzweig, “The Over-Criminalization of Social and Economic Conduct,” Champion, August 2003, 28.
9“In addition to the thousands of criminal offenses spread throughout the [forty-nine] titles of the United States Code, according to estimates tens of thousands of criminal offenses are similarly scattered throughout the over [two hundred] volumes of federal regulations.” Walsh and Joslyn, Without Intent, 25.
10Rubin v. United States, 525 U.S. 990 (1998) (Breyer, J., dissenting from denial of certiorari).
11Edwin Meese III, introduction to One Nation Under Arrest: How Crazy Laws, Rogue Prosecutors, and Activist Judges Threaten Your Liberty, ed. Paul Rosenzweig and Brian W. Walsh (Washington, DC: The Heritage Foundation, 2010), xv.
12Id. at xii.
1318 U.S.C. sec. 707.
1418 U.S.C. sec. 711a.
1518 U.S.C. sec. 46.
1618 U.S.C. sec. 708.
17Associated Press, “Kennedys’ Sea Turtle Rescue Violated Federal Law, Officials Say,” Fox News, July 17, 2013, http://www.foxnews.com/politics/2013/07/17/kennedys-sea-turtle-rescue-violated-federal-law-official-say.html.
18For more examples of this madness, see the daily parade of examples on the Twitter feed “A Crime a Day,” https://twitter.com/crimeaday. And take a look at the article by Yale law professor Stephen L. Carter, who notes (among other crimes) that it is a federal crime to disturb the mud in a cave on federal land, so he cautions: “Be careful where you run to get out of the rain.” Stephen L. Carter, “Over-Legislating Puts Everyone in the Same Danger as Eric Garner,” Syracuse.com, last modified December 4, 2014, http://www.syracuse.com/opinion/index.ssf/2014/12/over-legislatin
g_puts_everyone_in_the_same_danger_as_eric_garner_commentary.html.
1916 U.S.C. sec. 3372 (emphasis added).
20David McNab was one of several individuals prosecuted, convicted, and sentenced to prison for importing lobsters that were smaller than what was allegedly allowed under Honduran administrative regulations. See Rosenzweig and Walsh, One Nation Under Arrest, chap. 1.
217 U.S.C. sec. 13(a)(2) (emphasis added).
2218 U.S.C. sec. 229 (emphasis added).
23Bond v. United States, 134 S. Ct. 2077, 2091 (2014).
24Code of Virginia, sec. 29.1-521.
25Bill Sizemore, “Freshman Lawmaker Taking His Job by the Horns,” Virginian-Pilot, February 2, 2010. Luckily for him, however, he was white, and a newly elected member of the “good old boys club,” so his violation of the law was forgiven and overlooked. But he was technically guilty and could have been prosecuted under the statute.
26Harvey Silverglate, Three Felonies a Day: How the Feds Target the Innocent (New York: Encounter Books, 2009).
27Alex Kozinski and Misha Tseytlin, “You’re (Probably) a Federal Criminal,” in In The Name of Justice, ed. Timothy Lynch (Washington, DC: Cato Institute, 2009), 44.
28For numerous examples, read Rosenzweig and Walsh, One Nation Under Arrest. This book is filled with real-life horror stories of people prosecuted, and most of them convicted, for conduct that no man in his right mind would think could even get him in any legal trouble, much less be a crime.
29The chemicals were 10-chloro-10H-phenoxarsine (an arsenic-based compound) and potassium dichromate (commonly used in printing photographs or cleaning laboratory equipment).
30Bond, 134 S. Ct. 2077, 2091.
