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 […]
If 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.
For 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.
In his most recent MahoningMatters column, BKH managing partner David Betras, one of the area’s leading criminal defense attorneys, discusses prosecutorial misconduct and the threat overzealous prosecutors pose to every American’s freedom…
Prosecutors in the United States wield awesome power and have access to immense resources that dwarf what is available to criminal defendants and defense counsel. The lawyers who represent the people of the United States or the people of Ohio have near-total discretion to decide who is charged and with what—the old saying that a prosecutor can convince a grand jury to indict a ham sandwich is basically true, they are funded by taxpayer dollars, work hand-in-hand with the law enforcement officers who investigate crimes and have unlimited access to state-of-the-art forensic science.
To balance the legal playing field and protect society, the rules of criminal procedure, the law, and codes of conduct administered by the courts and bar associations have established strict guidelines and boundaries designed to prevent prosecutors from abusing their authority. Chief among them is the admonition that a prosecutor’s job is to secure justice, not convictions. This principle is embodied in Ohio’s Code of Professional Conduct which states:
“A prosecutor has the responsibility of a minister of justice and not simply that of an advocate.”
It is also included in the American Bar Association’s (ABA) Criminal Justice Standards (CJS):
“The primary duty of the prosecutor is to seek justice within the bounds of the law, not merely to convict… The prosecutor should seek to protect the innocent and convict the guilty, consider the interests of victims and witnesses, and respect the constitutional and legal rights of all persons, including suspects and defendants.”
Along with defining prosecutors’ role, the rules, laws, and Supreme Court decisions also set forth their responsibilities, which, according to the ABA’s CJS include the duty to “…make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense…”
This standard encapsulates the Supreme Court’s 1963 decision in Brady v Maryland, In that case, a 7-2 majority held that “…the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment… Society wins not only when the guilty are convicted, but when criminal trials are fair.” The Court has revisited Brady numerous times over the years, including in 1985 when the justices ruled in United States v. Bagley that a prosecutor’s duty to disclose material favorable evidence exists regardless of whether the defendant makes a specific request.
Despite the guardrails that have been erected, some prosecutors misuse their power and abuse their discretion. They place more value in securing convictions than preserving justice. They commit what are known as “Brady Violations” by refusing to turn over or concealing exculpatory evidence to the defense and violate defendants’ due process rights in other disturbing ways.
This matters for two reasons. First, because when prosecutors violate the rules, innocent people go to jail for decades or are executed. Some of the wrongful conviction cases have penetrated the national consciousness: the Central Park 5, Walter McMillan, the Brown brothers, and Anthony Ray Hinton. Thousands of others, however, suffer in silence outside the spotlight, hoping that justice will be done.
Second, each case of prosecutorial misconduct, each Brady violation, each wrongful conviction weakens the criminal justice system and puts every American’s freedom at risk.
As a criminal defense attorney, I watched with great interest the trial of the former Minneapolis police officer convicted of murdering George Floyd.
Here are my thoughts on the case that has mesmerized the nation and the world since May 25, 2020.
The visual evidence secured the conviction. Creating reasonable doubt in the mind of at least one juror is a defense attorney’s No. 1 task. In this case, the astounding amount of video and audio evidence available to the prosecution made that task extremely difficult if not virtually impossible.
The defense attorney could not afford to lose all credibility with the jurors because he needed at least one of them to buy into the arguments he made on his client’s behalf.
First, he claimed that Mr. Floyd died because of the drugs in his system and because of his diseased heart — rather than the knee on his neck. In the practice of law, this is known as the principle of causation and it was a dead-end for the defense because the prosecution had effectively proven that “but for” the actions of the officer Mr. Floyd would still be alive.
Next, he contended that the members of the crowd who were begging for Mr. Floyd’s life were at fault because the defendant felt threatened and turned his attention away from the person he was obviously killing — even though he could clearly be heard talking to Mr. Floyd while he had him pinned to the ground.
The jury did its job. In an earlier column, I said I was confident extensive voir dire had yielded an impartial jury capable of reviewing the evidence and rendering a just verdict. I believe the diverse group of 12 men and women who sat in judgment of what is undoubtedly the case of the 21st century did exactly that.
The system worked — this time.
That outcome would have been tragic for Mr. Floyd’s family and our nation.
Ohio’s state correctional facilities are COVID-19 hotspots. If you have a relative or friend incarcerated at one of these dangerous facilities Betras, Kopp & Harshman may be able to help by securing their judicial release from prison.
Call us today at 330-746-848 or 800-457-2889 to learn more!
Under Ohio law, qualifying inmates may ask their trial court judge to grant early “judicial release” from prison. The procedure is complicated and requires the preparation and filing of motions and court hearings, but it does offer a ray of hope for people trapped in the state’s COVID-19 ravaged correctional facilities.
An inmate is eligible if the following apply:
☑️He or she was sentenced in Ohio state court for Ohio state offenses.
☑️The sentence includes a “non-mandatory” prison term.
☑️The offender is not imprisoned for a felony related to and committed while he or she held public office in Ohio.
Eligible inmates may be granted judicial release according to this time-served schedule:
☑️Sentence of two years or less: eligible for immediate release.
☑️More than two years but less than five: must serve six months.
☑️Five years: must serve four years.
☑️More than five years but less than ten: must serve five years.
☑️More than ten years: the greater of half the time sentenced or five years.
Don’t delay, contact us today to learn more about the judicial release process. If your relative or friend is eligible Betras, Kopp & Harshman’s experienced criminal defense team will go to work immediately to secure their release from Ohio’s COVID-19 ravaged prisons.
Don’t delay. Contact us TODAY!
Series featuring lawyers have been a staple on television since the first set flickered to life decades ago. Along with attracting millions of viewers, the shows shaped America’s perception of the criminal justice system. For instance, according to TV, crimes were committed, investigations conducted, and trials held in an hour, minus 14 minutes of commercials.
Those devoted to Perry Mason, the Defenders, Judd for the Defense, LA Law, the Defenders, or Matlock believed defendants would always be acquitted in the last five or ten minutes of the show—usually as the result of the real villain being unmasked in court. Fans of the various iterations of Law and Order know one thing for sure: the bad guy or guys are going down and then they’re going up the river—usually for decades.
After 34 years of practicing criminal law, I’ve learned one thing: the legal world portrayed on TV is a fantasy. First of all, it can take years to investigate a criminal case, research the applicable law, file briefs and motions, consider plea deals, and if necessary try the case in court.
Second, winning a criminal case is not anywhere near as easy as Perry Mason makes it seem. I’ve won hundreds, but each one has been a long, uphill battle waged against talented prosecutors who walk into court confident they have the evidence that will convict my client.
And, I can tell you from personal experience U.S. attorneys, who have all the resources of the federal government at their disposal, are the most confident of all. There may only be one or two lawyers from the Justice Department in court, but when I look over at the prosecution table, I see thousands of FBI/DEA/ATF agents, forensic experts with PhDs from Harvard and MIT, and an army of highly trained paralegals who do nothing but help the attorneys I’m facing prepare the government’s case. It’s an intimidating situation to say the least.
But even though Jack McCoy may win every time on TV, it is possible to mount a defense that results in the dismissal of the charges filed against my client or a “not guilty” verdict from a judge or jury. It’s important to note, however, that I’ve never achieved that outcome by cross-examining a witness so adroitly that they break down and confess to the crime while on the stand.
So what does it take to win? Hard work, knowledge of the law and how to apply it, a fair amount of theatrical skills, and total commitment to seeking and securing justice for my clients.
Here’s an example of how the legal system works in the real world.
In the early morning of June 1, 2016, Warren, Ohio police officers who had responded to a house alarm entered the home in question to investigate a burglary and shooting incident that had taken place at the residence. While walking through the home they noticed what they believed was evidence of narcotics trafficking. Based on that observation, the police obtained a warrant, searched the home and found drugs, drug paraphernalia, money, and loaded firearms. I’m sure you won’t be shocked to learn that the homeowners were soon indicted and charged with a number of drug and firearms-related offenses.
So far so good, right?
Well, actually no, because after reviewing the facts and the law, I concluded that the police had violated my clients’ Fourth Amendment rights. Just about everyone is familiar with the First and
Second Amendments, but believe me, the Fourth is just as important because it’s the one that protects all of us against unreasonable searches and seizures.
In light of the Fourth Amendment violations, I filed a motion in Federal Court to suppress the evidence in the case. Not surprisingly, the Justice Department opposed my motion. On August 7, 2019, more than three years after my clients were arrested, Federal Judge Christopher Boyko conducted an evidentiary hearing on the matter. On August 21, he issued this ruling:
Law enforcement did not have consent to enter the Residence a third time and process the scene for evidence related to the burglary and assault on police. And since police did not have a warrant, the third reentry was unreasonable and therefore a violation of the Fourth Amendment. Since Detective Gambill based her Affidavit for a search warrant on facts she uncovered during the third reentry, those facts must be excised from the Affidavit. Finally, the Government failed to establish by a preponderance that the evidence it seeks to introduce would have been inevitably discovered in a lawful manner. Thus, any evidence uncovered or learned about during Detective Laprocina’ s search of the Residence must be excluded. Defendants’ Motions to Suppress are GRANTED. You can read Judge Boyko’s order in its entirety here: Opinion and Order (002)
What does the decision prove?
It proves that cases can take years to work their way through the criminal justice system.
It proves that the government must play by the rules. Please don’t underestimate how important this is. As I noted earlier, the government possesses awesome power. If police and prosecutors abuse it by ignoring the Constitution they are undermining the rule of law, endangering the freedoms we hold dear, and placing all of us, including law-abiding citizens, in jeopardy.
It proves that a skilled, knowledgeable, experienced, and dedicated attorney can take on the federal government and prevail.
Victories like this, which demonstrate the fundamental strength and fairness of our judicial system, make me proud to be an American and an attorney.
And I have to admit, as I read Judge Boyko’s order, I could swear I heard the Perry Mason theme song playing softly in the background…
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