BKM Managing Partner David Betras scores a big win for Trumbull County Commissioner Niki Frenchko, democracy, and Constitutional rights in federal court…

Federal Judge rules Trumbull County officials repeatedly violated Niki Frenchko’s Constitutional rights, Commissioner vows to continue fight for government accountability and transparency

BKM Managing Partner David Betras and Trumbull County Commissioner Niki Frenchko

“Here in America, we do not arrest our political opponents.” Those tens words comprise the first sentence of a scathing 81-page opinion in which U.S. District Court Judge J Philip Calabrese found that Trumbull County Commissioners Frank Fuda and Maro Cantalamessa, Trumbull County Sheriff Paul Monroe, and Trumbull County Sheriff deputies Harold Wix and Robert Ross willfully violated Commissioner Niki Frenchko’s rights under the First and Fourth Amendments to the U.S. Constitution when they repeatedly attempted to silence her and prevent her from representing the interests of her constituents.

The ruling comes in a federal civil rights lawsuit filed on Commissioner Frenchko’s behalf in March of 2023 by Attorneys David Betras and Matt Miller-Novak formerly of Austintown, Ohio who now practices in Cincinnati. In the suit they alleged that Commissioner Frenchko’s arrest during the July 7, 2022 Trumbull County Commissioners meeting was a “…ruthless false arrest intended to punish a political adversary for criticizing the County Sheriff…” In addition to finding that the five defendants had indeed violated Commissioner Frenchko’s rights, Judge Calabrese also stripped them of their sovereign immunity which means they can be held individually liable for monetary damages.
“I was compelled to file this suit because if public officials can use their offices and power to silence me, they can do it to anyone,” Commissioner Frenchko said after the decision was announced. This is a tremendous day for freedom of speech, the rule of law, and democracy,” “The people of Trumbull County elected me in 2020 because I promised to bring transparency and accountability to county government. When I kept my word, I was harassed, assaulted, and ultimately arrested, but I would not be intimidated. Today’s ruling both vindicates what I have done in the past and gives me the strength to continue fearlessly doing the people’s business in the months and years ahead.”
“I said at the time that this incident was a scene out of Russia and other dictatorships where despots like Vladmir Putin and Syria’s Bashar al-Assad routinely arrest and jail their political opponents,” Atty. Betras said. “But there it was, live on Facebook, an elected official arrested and silenced by her political enemies for exercising her First Amendment rights. It was absolutely chilling and I and Commissioner Frenchko are truly grateful that those who committed these vile acts are now being held accountable. This decision sends a loud and clear message: political oppression is not acceptable in the United States.”
Check out media coverage of the case on these outlets:

A cautionary tale for gun owners and anyone who has been adjudicated as a juvenile delinquent

Attorney David Betras
BKM Managing Partner David Betras

One of the fascinating things about trying criminal cases—and one of the things that will keep me at it until I fall over at my desk—is that you never know where the law and the facts will take you. I was reminded of that reality during a just-concluded high-profile murder trial in which the provisions of Ohio’s “Constitutional Carry” firearms statute and my client’s failure to have his juvenile record sealed and expunged converged to forge the plea deal I negotiated on his behalf.

That said, this week’s column should serve as a cautionary tale for gun owners, any who has been adjudicated as a juvenile delinquent, and parents.

Chapter One: Where you can’t carry a firearm in Ohio.

While Ohio’s recently enacted Constitutional Carry law has relaxed or removed many of the statutes related to carrying a concealed weapon, including the need to apply for a permit and undergo training, it has not turned the entire state into Dodge City. There are still places the Wyatt Earps and Doc Holidays among us may not enter if they are packing. They include:  

  • Police stations, sheriff’s offices, highway patrol posts
  • Correctional institutions or other detention facilities
  • Airport terminals or airplanes
  • Courthouses
  • Universities, unless expressly permitted
  • Places of worship, unless the place of worship permits otherwise
  • School safety zones: schools, school buildings, school premises, school activities, and school buses
  • Private businesses, including bars, restaurants, and other places that serve alcohol may prohibit the carrying of concealed weapons but must post a notice of the prohibition in a conspicuous place.

That last proved problematic for my client because he did carry a concealed weapon into a bar/restaurant that expressly prohibits doing so which is a third degree felony punishable by up to three years in prison and a fine of up to $10,000.

He shouldn’t have done that—and neither should you. Take my advice, nothing good comes of carrying a concealed weapon into a place where people are consuming alcohol—especially if one of the people is you. BKM’s rule pertaining to driving while under the influence–Don’t Do It—also applies to doing shooters and carrying a shooting iron.

Chapter Two: Carrying a weapon under disability.

And, no I’m not talking about workers’ comp or SSDI. I’m referring to the Ohio law that makes it a crime to knowingly acquire, carry, or use any firearm or dangerous weapon if you:

  • Are a fugitive from justice;
  • Are under indictment for or have been convicted of any felony offense of violence;
  • Are under indictment for or has been convicted of any felony offense involving the illegal possession, use, sale, administration, distribution, or trafficking in any drug of abuse;
  • Are drug dependent, in danger of drug dependence, or a chronic alcoholic;
  • Are under adjudication of mental incompetence, have been adjudicated as a mental defective, or have been committed to a mental institution;
  • Have been adjudicated a delinquent child for the commission of an offense that, if committed by an adult, would have been a felony offense of violence;
  • Have been adjudicated a delinquent child for the commission of an offense that, if committed by an adult, would have been a felony offense involving the illegal possession, use, sale, administration, distribution, or trafficking in any drug of abuse.

If you guessed that my client ran afoul of the juvenile adjudication thing, give yourself a gold star. Like carrying a concealed weapon into a prohibited place, possessing a firearm under disability is a third degree felony punishable by up to five years in prison and a $10,000 fine.

Again, take my advice, this is something you really should not do.

Chapter 3: Failing to seal and expunge juvenile records can haunt you well into adulthood

Because the state of Ohio believes juvenile offenses should not impact a person’s life until they day they die, the General Assembly created a process for sealing and expunging juvenile court records. If you or someone you know has been adjudicated as a juvenile delinquent, I implore you to take advantage of the opportunity to obtain the fresh start the state is offering.

The client in the case I’m discussing today did not, and, as I noted above, that left him open to the charge of possessing a firearm under disability. While not as serious, failure to seal and expunge a juvenile record can make it difficult to get a job, be admitted to college, or obtain a credit.

Here is a brief overview of what is a complicated process:

First, let’s define our terms.

Sealing a record means it still exists but is hidden from public view. A sealed record can still be seen in limited circumstances by the Courts, law enforcement, or the defendant.

Expunging a record means all physical and electronic versions of the record are destroyed. The record then no longer exists, and for all intents and purposes, it never existed. Once the record is expunged you can truthfully say that you do not have a juvenile record.

Before records can be expunged, they must be sealed. All offenses, except for aggravated murder, murder, and rape may be sealed and expunged.

Contrary to what many people believe, with few exceptions, juvenile records are not automatically sealed and expunged by the courts. You must apply. I am sure that most readers will not be surprised to learn that as this guide clearly shows, the process is complicated and laborious. The law does not require applicants to be represented by an attorney, but if you take a look at the publication referenced above, you may decide to contact a lawyer.

Chapter 4: Conclusions

What have we learned from the cautionary tale?  Don’t carry a firearm into someplace you shouldn’t, don’t carry a weapon under disability, and do take advantage of the law that allows you to seal and expunge your juvenile record.

The End.

Do Trump gag orders pass constitutional muster? Probably not.

“Writing is easy. You only need to stare at a blank piece of paper until drops of blood form on your forehead.” Gene Fowler, American journalist

Attorney David Betras
BKM Managing Partner David Betras

Anyone whose job is or involves creative writing will agree with Gene Fowler. I’ve cranked out more than 200 of these columns over the years and I can tell you that staring at my computer monitor when the only thing on the screen is a blinking cursor—the days of paper and pen having disappeared long ago—is a frightening and frustrating experience.

Deciding what to write about is among the most difficult challenges I face. Some weeks my brain is devoid of possible topics, others my cranium is stuffed with so much flotsam and jetsam you’d need a Coast Guard icebreaker to cut through it. This week proved to be the latter because as I sat down and hovered my hands over the keyboard a number of my favorite subjects were bouncing around in my nugget: I decided to write about two of them: Donald Trump and the First Amendment.

Let’s jump in.

As most of you know, Donald Trump is embroiled in a dizzying array of  legal proceedings: a civil lawsuit in New York involving allegations the former president deceived banks, insurers and others by exaggerating the value of his assets, and four pending criminal trials related to charges that he engaged in a conspiracy to prevent the certification of Joe Biden’s victory in the 2020 presidential election, mishandled classified documents, paid hush money to coverup extramarital affairs, and violated Georgia’s anti-racketeering laws by plotting to overturn his loss in the state’s 2020 presidential contest.

All the cases are enthralling because this is the first time in history a former occupant of the Oval Office has been indicted on criminal charges, but the civil fraud and federal election interference proceeding are particularly fascinating because the judges presiding over them have issued gag orders against Mr. Trump. As my regular readers know, while I’m a huge fan of the First Amendment, I do recognize that the courts may limit free speech. For example, there is this well-known passage written by U.S. Supreme Court Justice Oliver Wendell Holmes in 1919:

The most stringent protection of free speech would not protect a man falsely shouting fire in a theatre and causing a panic… The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger…

Judges are permitted to issue gag orders if they believe there is a credible fear that jurors may be swayed by statements in the media or online, if people involved in the case could be threatened or harassed, or if confidential information could become public.

Judge Arthur Engoron, the New York State judge overseeing the civil lawsuit, told all participants in the case not to smear court personnel and warned that violations would trigger serious sanctions. Shortly after the trial began on October 2 Mr. Trump posted a photo of Allison Greenfield, the judge’s principal law clerk on Truth Social, his social media platform and said it was “disgraceful” that she was working in the courtroom. The judge reacted by slapping a gag order on the former president who has violated it twice and been fined a total of $15,000.

Given the fact the Mr. Trump’s ardent supporters have a proven record of attacking people who offend him, the judge’s reaction was at the very least prudent and met the standard of preventing or in the case of the former president attempting to prevent him from making public statements that could cause harm Ms. Greenfield.

U.S. District Judge Tanya Chutkan who is presiding over the election interference case imposed a partial gag order on Trump after special counsel Jack Smith and his prosecutors argued that the ex-president’s statements about the case risked prejudicing the trial. Mr. Trump has often railed against the judge, Smith and his staff, the jury pool in Washington, D.C where the case is being tried, and potential witnesses.

The order, which is now on hold pending an appeal by Mr. Tump’s attorneys, bars him and other parties in the case from making public statements about Smith, the defense counsel, members of the court or any of their staffers. They are also prohibited from targeting “any reasonably foreseeable witness or the substance of their testimony.”

Interestingly, the American Civil Liberties Union (ACLU) has filed a friend of the court brief in which they argue that the order is too vague, broad, and is not sufficiently justified. In a press release ACLU executive director Anthony Romero noted that “No modern-day president did more damage to civil liberties and civil rights than President Trump. “But if we allow his free speech rights to be abridged, we know that other unpopular voices — even ones we agree with — will also be silenced.” 

In their brief the ACLU said Trump has made many “patently false” statements that have “caused great harm to countless individuals,” but he “retains a First Amendment right to speak, and the rest of us retain a right to hear what he has to say.” They also assert that any restraint on the former president’s speech must be “precisely defined and narrowly tailored,” and concluded that Judge Chutkan’s order “fails that test.”

Is the ACLU right? I tend to object to prior restraint, and while Mr. Trump has in the past made troubling statements, in my opinion he has yet to cross the line in this case. Of course, there’s still plenty of time, the trial is not scheduled to begin until March 2024.

Alford Pleas: understanding why innocent people sometimes plead guilty…

Attorney David Betras
BKM Managing Partner David Betras

In the tradition of popular TV series like Ozark, Succession, Yosemite, and Breaking Bad, last week’s column was a cliffhanger. As you may remember, as I signed off I was ensconced in bucolic Findlay, Ohio busily preparing for a jury trial in Hancock County Common Pleas Court that was scheduled to begin on Monday, October 2. I had done my due diligence, readied my defense, pored over the prosecution’s exhibits, and was geared up for voir dire which is fancy way of saying selecting a jury. Just wait, there’s more legalese to come in the column.

Anyway, I was fired up, ready to go and—now for the resolution of the cliffhanger you’ve all been sitting on the edge of your seats awaiting: the verdict. Was my client found guilty or not guilty by a jury of his peers? Well, you can sit back and relax there was no courtroom drama because my client was offered accepted a plea deal before the trial began.

To be more specific, he entered an Alford Plea which permits defendants to admit to criminal charges while maintaining their innocence. A defendant who enters an Alford Plea is, in essence, acknowledging that the prosecution has enough evidence to convict them even if they did not commit the crime. To understand why an innocent person would agree to plead guilty, it is helpful to examine the case of Henry Alford, the man for whom the Alford Plea is named.

In 1963 Mr. Alford was indicted for first degree murder in North Carolina where the death penalty was the default sentence for the offense at the time. Alford would probably have received a life sentence had he pleaded guilty, but he maintained his innocence. He subsequently agreed to plead to second degree murder for one reason and one reason only: to avoid the gas chamber. He was sentenced to 30 years in prison.

Alford appealed, arguing that he was forced into a guilty plea because he was afraid he would be sentenced to death. The North Carolina Supreme Court and a Federal District Court both found that Alford had entered the guilty plea voluntarily and denied his appeal. The Fourth Circuit Court disagreed and held that Alford’s plea was not voluntary because it was made under fear of the death penalty.

In a 6-3 decision handed down in 1970 the U.S. Supreme Court reversed the Circuit Court. Writing for the majority Justice Byron “Whizzer” White said courts may accept whatever plea a defendant chooses to enter, as long as the defendant is competently represented by counsel; the plea is intelligently chosen; and “the record before the judge contains strong evidence of actual guilt.” Faced with “grim alternatives,” the defendant’s best choice of action may be to plead guilty to the crime and the courts must accept the defendant’s choice made in his own interests.

Since then, the Alford Plea have become an important component of a criminal justice system in which more than 90% of cases are resolved with plea bargains. As I did last week, I have advised defendants to enter Alford Pleas. Why? Because although I revere the jury system, clients I knew to be innocent were convicted and received stiffer sentences than would have been imposed had they agreed to a plea deal.

Does the fact that the Hancock County case ended in a plea deal mean all the work I did to prepare for it was wasted? The answer is no. In the course of dissecting the prosecution’s case I discovered some evidence that I believed was inadmissible and should not be heard by the jury. Based on that discovery, I filed, and the judge granted what is known as a “motion in limine” which excluded the evidence in question from the case. The exclusion of that evidence significantly weakened the state’s case, substantially strengthened my bargaining position, and enabled me to secure the best possible outcome for my client.

Outcome of jury trials dependent on defense attorney’s experience, talent, skill

Attorney David Betras
BKM Managing Partner David Betras

As I write this week’s column, I am busily preparing for a jury trial in Hancock County Common Pleas Court which is located in beautiful, downtown Findlay, Ohio. I’ve lost track of exactly how many jury trials I’ve participated in during my more than three decades as a practicing attorney, but I can say the outcomes have provided most of the highlights and lowlights of my career—and truth be told–I remember a lot more about my losses than my wins.

Why does the angst associated with guilty verdicts last longer than the euphoria that accompanies acquittals? Because the outcome of each trial is in many ways dependent on the defense attorney’s experience, talent, intelligence, rhetorical skill, knowledge, and yes—acting ability. We select the jury, we carefully study and prepare to nullify the evidence and undermine—if not destroy—the credibility of the witnesses presented by the prosecution, we build our defense and craft a compelling narrative that will convince the jurors that our client is not guilty beyond a reasonable doubt, and then we write and deliver a captivating closing argument that will enthrall the jury and win the case.

What could possibly go wrong?

Obviously, lots, which is I and many of my colleagues sit straight up in bed at 3:00 AM and reexamine every facet of a case that ended in a guilty verdict. Did I miss something in jury selectin? Was I slow to respond to an unexpected piece of evidence or testimony. Did my exhibits fall flat. Did I fail to connect with jurors?  I’ll often replay every minute of a trial in my head to identify what I did right and what I could have done better.

While the process is agonizing it is also extremely valuable because practical experience is an indispensable asset to a trial lawyer. That is because although they teach basic trial tactics and the rules of civil and criminal procedure in law school, there is no substitute for preparing and trying cases on behalf of clients who place their freedom, their future, and in some instances their very lives in your hands. Take it from me, courtrooms, not classrooms, are the only places attorneys like me learn to ply our trade.

Yet, despite all the preparation and trepidation involved, I love jury trials and the jury system. And I’m not alone. Throughout history the jury system has been a foundational pillar of civilized societies. Nearly 3,000 years ago bodies known as dikastai composed of as many 1,501 citizens rendered verdicts by majority rule in cases ranging from mundane matters to those involving death, exile, and seizure of property.

The Roman Empire also featured a precursor of modern juries in which capital trials were conducted before thousands of citizens. Interestingly, high government officials and their relatives, people who had been convicted of felonies, gladiators for hire, and men younger than 30 or older than 60 were barred from jury service.  

The system continued to evolve though the centuries and began to resemble the process and configuration that exists today in the late 900s when King Etheired the Unready of England instituted the Wantage Code which required the 12 leading minor nobles in small districts to investigate crimes. These juries differed from modern ones because there were no trials—the jurors were responsible for investigating cases and rendering verdicts on their own.

Juries took a major leap forward during the Reign of King Henry II in the mid 1100s. He established both a process in which a jury of 12 free men arbitrated property disputes and formed grand juries whose members were to report any crimes they knew of to a judge who would then conduct a trial by ordeal. As you might imagine, the guilt or innocence of the defendant was determined by subjecting them to one or more painful experiences. This system was based on the premise that God would help the innocent by performing a miracle on their behalf. Trial by ordeal fell out of favor when Pope Innocent III prohibited priests from participating in trials by fire and water. I can say this, if they were still around, I would have found a different occupation.

The right to trial by jury, along with the entirety of British Common Law, continued to advance and served as both one of reasons for the American Revolution and the basis for the judicial system America’s Founding Fathers enshrined in the Fifth, Sixth, and Seventh Amendments to our Constitution. Thomas Jefferson specifically cited King George’s decision to deprive colonists of trial by jury as a grievance in the Declaration of Independence and John Adams wrote that “…representative government and trial by jury are the heart and lungs of liberty.  Without them we have no fortification against being ridden like horses, fleeced like sheep, worked like cattle, and fed and clothed like swine and hogs.”

I am 100 percent in agreement with Adams, which explains why I believe we all have a civic duty to vote and serve as jurors—and why I refuse to help anyone skirt jury duty. Under Ohio there are very few reasons people may be exempt from service and even those who qualify must be excused by a judge. In the interest of full disclosure, I’ve received a jury summons and duly reported for duty. Unfortunately, I was excused and denied the opportunity to get a very close look at the dynamic that takes place during deliberations. That is an experience I would have relished and used for the remainder of my career.

Atty. David Betras, family members call for independent investigation of Betty Jean Winston’s death while in custody at the Mercer County Jail, 36-year-old was found lifeless in her cell after being maced and tased by deputies

Citing serious concerns and numerous unanswered questions about the circumstances surrounding Betty Jean Winston’s death while in custody at the Mercer County Jail, Attorney David Betras and members of Ms. Winston’s family today called on Mercer County District Attorney Peter Acker to allow an independent agency to investigate the tragic incident. Ms. Winston, who was 36 years old, was found dead in her cell on Wednesday, July 26 after being maced and tased by a Mercer County deputy.

“The Mercer County Sheriff’s Department should not be conducting the investigation into Ms. Winston’s death because they will in essence be investigating their own potential misconduct,” Atty. Betras said. To avoid any appearance of impropriety or conflict of interest, my clients demand that District Attorney Acker immediately ask the Pennsylvania State Police to assume control of the inquiry. We believe that will ensure that the truth is uncovered and revealed to the family and the public”

Ms. Winston, who has a documented history of mental illness, was taken into custody on July 22, 2023 and charged with third degree misdemeanor Disorderly Conduct-Unreasonable Noise. Her bail was set at $15,000 which is more than seven times the maximum fine allowable for the offense under Pennsylvania law. She was unable to post bail and remained in jail. On July 26, deputies used a taser to subdue Ms. Winston and confined her to a cell and failed to provide her with any medical attention. She was discovered lifeless later that evening in the same location where deputies had left her earlier.

“We are disturbed by the fact that this African American woman died in and was spirited out of the Mercer County Jail in a manner that appears to have been designed to avoid media and public scrutiny,” Atty. Betras said. “This family and this community need and deserve answers from all involved and we will do whatever is necessary to obtain them.”

Text of the letter sent to Mercer County District Attorney Peter Acker:

RE:     The Estate of Betty Jean Winston, Deceased

            Date of Death: July 26, 2023

Dear Attorney Acker:

As you know, I represent the family members of Betty Jean Winston who tragically died while being held as a prisoner at the Mercer County Jail on the above date. Ms. Winston, a 36-year-old African American woman with documented history of mental illness, was taken into custody on July 22, 2023 on charges of third degree misdemeanor Disorderly Conduct-Unreasonable Noise, 18 Pa. C.S. § 5503(a)(2). Ms. Winston’s bond was set at $15,000 which is more than seven times the maximum fine allowable for the offense by Pennsylvania law.

While the facts have been limited, it has come to my attention that Ms. Winston was suffering from a schizophrenic episode throughout the time she was an inmate at the County Jail. On July 26, 2023, deputies used a taser to subdue Ms. Winston and confined her to a cell without any medical attention. Ms. Winston was discovered lifeless later that evening in the same locations where deputies left her.

It is my understanding that the Mercer County Sherriff’s Department is currently investigating the circumstances surrounding Ms. Winston’s death. This includes an inquiry into the Department’s own potential misconduct. To avoid any impropriety, my clients are demanding that the investigation be conducted by an independent agency such as the State Police. This act of transparency will allow Ms. Winston’s family to uncover the truth and ensure the public that the Mental Health Procedures Act of 1976 is being properly implemented at the Mercer County Jail.

I appreciate your prompt attention towards addressing my clients’ concerns.

Sincerely,

David. J. Betras, Esquire

What were they thinking? Why did Alex Murdaugh’s lawyers allow the now convicted killer to testilie for hours on end?

Attorney David Betras
BKM Managing Partner David Betras

Judging by the number of people who have yelled, “Hey Betras, what the xxxx (readers are free to insert the word of their choice) is up with that Murdaugh trial?” I am not the only person who has been obsessed with the sordid saga of the once prominent South Carolina trail lawyer who was recently found guilty of murdering his wife and his son.

Okay, I wasn’t “obsessed” with it, I was consumed by it. I watched every moment of the trial, hours of analysis of each day’s proceedings offered by “expert” criminal lawyers, as well as all of the documentaries, docudramas, and special reports that streamed into my smart TV, smart phone, and laptop.

The discussion and speculation that raged during the trial continues today—much of it focused on Murdaugh’s decision to take the stand. In the immediate wake of his testimony, in which he basically admitted to being a pathological liar who couldn’t tell the truth if his life depended on it, which it did, a number of talking head criminal lawyers told the media the defense team had to allow the accused killer to look the jurors in their collective eyes and refute the charges. One of the pundits, criminal attorney and former prosecutor Mark Eiglarsh told CNN “If you’re going to have somebody testify, having a lawyer who’s smart, who’s been in the courtroom, who’s lied for 20 years … that’s the guy you want on the stand…all it takes is one juror to connect with him emotionally.” 

To be frank, Mr. Eiglarsh and anyone else who thought it was a good idea for Murdaugh to hitch up his pants, take the stand, and admit to being a drug-crazed criminal who did everything but murder his wife and son is just plain stupid—a fact underscored by the verdict.

During my career I have represented numerous clients charged with murder and I have never put one of them on the stand, including those who have literally begged me to allow them to proclaim their innocence in open court. I have adopted this strategy for a number of reasons beginning with the fact that it is not my job to prove my client is innocent, it is the prosecutor’s job to prove they are guilty, and I refuse to do anything that will make that job easier.

And permitting a client to give up their Fifth Amendment protections against self-incrimination by testifying does exactly that.

Think of it this way: the accused takes the stand, I ask them if they committed the crime, they emphatically say no. This has absolutely no impact on jurors who fully expect defendants to say they didn’t do it. I sit down, the prosecutor stands up and immediately begins tearing my client apart limb from limb. Check the video of the Murduagh cross and you’ll see how this works—or I should say how it doesn’t work for the defense.

Clients also ask to take the stand because they fear the jury will believe they are guilty if they just sit quietly as I defend them. I point out that this is, for the most part, not true and that judges are required to instruct jurors that they may not draw any inference from the fact that a defendant does or does not testify—the presumption of innocence that is the beating heart of our judicial system stands.

Whether Murdaugh would have benefited from keeping his mouth shut is a question that will be debated in legal circles for years. One thing is certain, however, testilying for hours on end didn’t help at all.

A message from David Betras to anyone who is being questioned by the police: Shut Up!

Attorney David Betras
BKM Managing Partner David Betras

On a number of occasions, I’ve addressed what people should do if they are stopped and questioned by the police. Here’s an excerpt from an August 2021 blog post on the topic:

“First, if you are stopped by law enforcement and questioned you are under no obligation to do anything other than provide your name and ID.
Second, remember, the police will delay placing you in custody so they can use what you say to establish probable cause for arrest.
Third, your pre-arrest statements are admissible in court.
Fourth: Shut up. What you do not say cannot be used against you.”

That’s right I said just shut up.

I raise the topic today because as New York Times columnist Faraj Manjoo points out in his most recent piece, prosecutors in New Mexico plan to charge actor Alec Baldwin with involuntary manslaughter in the death of cinematographer Halyna Hutchinson. Hutchinson was working on the set of the movie rust when Baldwin pulled the trigger of a gun that was not supposed to be loaded with live ammunition. She was struck by a bullet and died shortly thereafter.

After the shooting Baldwin agreed to be interviewed by police without his attorney present, waived his Miranda rights, and did anything but shut up: “Still, for about an hour, Baldwin not only answered detectives’ many questions about the shooting but also offered his own theories about the incident and suggested the next steps the police might pursue in their investigation.”

As Manjoo notes, “The Fifth Amendment of the Constitution allows Americans to refuse to answer questions from law enforcement. Yet despite the ritualistic incantation of the Miranda warning on every TV police procedural, silence is a right that people can find hard to accept. If you’re convinced of your innocence, aren’t you obligated to help the police solve the matter under investigation? Refusing to talk to the police seems like something people do only when they’ve got something to hide.”

I’ve lost count of how many clients I’ve defended in court because they decided to abandon their Fifth Amendment rights and “help” the police who in turned helped themselves to an arrest.

In the column Manjoo praises the work of law professor and former defense attorney James Duane, one of the nation’s leading proponents of just shutting up when questioned by law enforcement. The video of his lecture “Don’t Talk to the Police,” has been viewed millions of times on YouTube, you should make it millions plus one by watching: https://youtu.be/d-7o9xYp7eE

In his lecture Duane offers this quote from former US Attorney General Robert Jackson: “Any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to the police under any circumstances.” It’s good to know that AG Jackson, one of the most respected lawyers in the history of American jurisprudence would think I am worth my salt.

“The average American — even if they’re a highly sophisticated college graduate or a law school student — really doesn’t know an awful lot about the many different ways in which even innocent people can regret for the rest of their lives the biggest mistake of their lives, the decision to waive their Fifth Amendment right and agree to talk to the police,” Duane said.

Duane argues that a key danger is that in trying to defend yourself to the police, you may unwittingly admit some wrongdoing. Navigating around such dangers is made all the more difficult because courts have given the police wide leeway to lie to people being interrogated.

“They will lie to you about what crime they are actually investigating,” Duane writes in his book, “whether they regard you as a suspect, whether they plan to prosecute you, what evidence they have against you, whether your answers may help you, whether your statements are off the record, and whether the other witnesses have agreed to talk to them — even about what those witnesses have or have not said.”

Manjoo closes his column with this passage: “The Fifth Amendment is no mere formality. It is among the best defenses against government overreach that Americans enjoy. We should guard it vigorously. Anytime you’re asked to talk to the police about an incident you are involved in, there are just four words you need to say: “I want a lawyer.”

And then please for the love of God, shut up.

By defending people charged with crimes I protect justice for all

During my career as a criminal defense attorney, I have represented hundreds of people who have been charged with serious offenses. From time to time either the nature of a particular case and/or its outcome will attract the attention of MahoningMatters and other media outlets. I know this will come as a shock, but I […]

You have the right to remain silent…Use it because what you don’t say can’t be used against you in a court of law.

Attorney David BetrasIf you have viewed Law and Order, Law and Order SVU, Law and Order Organized Crime, Law and Order LA, Law and Order Def Comedy Jam or one of the dozen or so other iterations of the franchise, you have undoubtedly heard a cop recite the following to a suspect as they slap on the cuffs:

You have the right to remain silent.

Anything you say can and will be used against you in a court of law

You have the right to talk to a lawyer and have him or her present while you are being questioned.

If you cannot afford an attorney, one will be appointed to represent you before any questioning if you wish.

You can decide at any time to exercise these rights and not answer any questions or make any statements.

Do you understand each of these rights I have explained to you? Having these rights in mind, do you wish to talk to us now?

Just a hint: the answer to the last question is always “no.” I will expand on this point shortly.

After watching Lenny Briscoe “Mirandize” a couple thousand criminals, people think they understand what the warning means. Believe me, they do not because this area of the law, like most, is extremely complicated. And that explains why 90% of criminal cases are solved when people who think they know their rights tell on themselves.

Man in handcuffsFor starters, according to the Supreme Court’s 1966 ruling in Miranda v. Arizona, law enforcement officers do not have to issue a Miranda warning unless they are conducting a custodial interrogation. In plain English, that means suspects do not have to be advised of their right to keep their yap shut unless and until they have been deprived of their freedom of action in a significant way.

In light of this fact, police officers often delay placing a suspect in custody and tell them they are free to go. They then begin asking questions that can lead to an arrest. For example, a police officer stops a driver who is swerving and asks, “Have you had anything to drink tonight?” More often than I care to remember, the driver, who I am almost invariably standing next to in front of a judge, will answer, “Well, I’ve had a couple of beers,” as if the officer will be satisfied by the qualifier “couple of beers” and happily send the driver on his or her way with a friendly wave.

Uhm, not so much. At that point, the officer, who was not required to issue a Miranda warning when he posed what amounts to the $10,000 dollar or so question, will ask the driver to exit the car, submit to a field sobriety test, and then a breathalyzer exam. At the end of the process, the driver will be arrested and Mirandized—which does not mean much at that point.

So, here are the takeaways from this week’s column:

First,  if you are stopped by law enforcement and questioned you are under no obligation to do anything other than provide your name and ID.

Second, remember, the police will delay placing you in custody so they can use what you say to establish probable cause for arrest.

Third, your pre-arrest statements are admissible in court.

Fourth: Shut up. What you do not say cannot be used against you.