In the criminal justice system, especially when dealing with felonies, there seems to be a disturbing trend regarding the “bad guys”. Our system is set up so that a person is presumed innocent until proven guilty but this is not the way that most judges view defendants. As a criminal defense attorney in Tulsa, OK I have seen it over and over again where I have a rightous motion that should be sustained but is overruled by the judge because they don’t want to let the “Bad Guy”, my client, go free. This puts a slant on our system that is overwhelming to a criminal defendant and I am sick and tired of it. Our criminal justice system was designed to protect the accused from an overbearing government and Judges were put in place as the gate keepers of fairness, but in reality many judges are nothing more than yes men for the government. Until we have Judges that are willing to follow the law and hold those charged with enforcing the law accountable for their actions our system will be forever flawed and criminal defendants, whether guilty or innocent, will continue to pay the price with their lives and freedom.
PUNISHMENT vs. JUSTICE
THE AMERICAN WAY
Main Entry: pun·ish·ment
Date: 15th century
1 : the act of punishing
2 a : suffering, pain, or loss that serves as retribution b : a penalty inflicted on an offender through judicial procedure
3 : severe, rough, or disastrous treatment
Main Entry: jus·tice
Etymology: Middle English, from Anglo-French justise, from Latin justitia, from justus
Date: 12th century
1 a : the maintenance or administration of what is just especially by the impartial adjustment of conflicting claims or the assignment of merited rewards or punishments b : judge c : the administration of law; especially : the establishment or determination of rights according to the rules of law or equity
2 a : the quality of being just, impartial, or fair b (1) : the principle or ideal of just dealing or right action (2) : conformity to this principle or ideal : righteousness c : the quality of conforming to law
3 : conformity to truth, fact, or reason : correctness
IN AMERICAN CULTURE punishment and justice are used as interchangeable, and almost synonymous, terms within the context of the criminal “justice” system. Yet, the two terms could not be more different.
Punishment is suffering pain or loss that serves as retribution for some transgression perpetrated by the individual being punished. Where justice is the conformity to truth, fact or reason, or administering the appropriate punishment or reward. The distinct definitions of these two words clearly show that they are not meant to be synonymous. Justice is the horse that is used to drive the cart carrying punishment. Put simply, justice should dictate the punishment dolled out by the American criminal justice system, although it rarely works that way.
The American criminal “justice” system seems to have lost the dichotomy that is punishment and justice. The two words have merged in the politically minded District Attorneys who care more about a headline than they do about doing right and dispensing just sentences. The maximum sentence is not always a just sentence; which is a concept that is severely lacking in today’s criminal “justice” system.
I can only speak from personal experience, from the jurisdiction that I practice in, but it has been my experience that the district attorneys care less about justice than they do about punishment. To the District Attorney’s Office it is a numbers game, how many years in prison can I hand out this year? How many people can I put in prison? These are the principals that drive the very people that our society charges with dispensing justice.
I ask You, is this the type of system that you want to be a part of? A system that has become a game of numbers instead of Justice?
“Just Say No”
The Golden Rule
“Just Say No” was a popular ad campaign in the late eighties and early 90’s aimed at keeping children off drugs. Since then “Just Say No” has been applied to many other areas including Domestic Violence, Premarital Sex, and Underage Drinking etc. Well it is time to add one more category to the “Just Say No” campaign, Police Interrogation and Searches.
“Just Say No” is a term that was meant to empower young children to have the courage and resolve to say no to drugs. The slogan continues to be one of empowerment today except when it comes to the Police. When Police are involved people often do not feel that they have the power to ”Just Say No” to a request from the Officer; but there are many instances, especially pertaining to searches, that a citizen has the absolute right to say no to the officer’s request. As a citizen, with constitutionally protected rights, you should absolutely use your right to “Just Say No” to the Police when questioned or asked to consent to a search.
“Just Say No”
To Police Questioning
The 5th Amendment to the United States Constitution provides that “No person…shall be compelled in any criminal case to be a witness against himself”. In plain English, the police cannot force you to talk. Police offers can lie, manipulate and trick a person into talking but they cannot force someone to talk. Police will work very hard to get a subject to talk because, often, the most damaging evidence against a person is their own statement. Here are some tactics that the Police will employ to try and obtain a statement from a subject. Police will often tell a suspect that:
- It will be better for you if you cooperate.
- We can help you if you cooperate.
- We have all the evidence that we need to convict you already so this is your opportunity to help yourself.
- We have your DNA, fingerprints, hair etc. so we know you were there, just tell us what happened.
- We understand why you did it we just need to here it from you.
- We only have one side of the story and this is your opportunity to tell us yours.
- There is a chance that this case could go away if you just tell us what happened.
These are all LIES!!!! The Police are not there to help a suspect out they are there to make an arrest that will lead to a conviction. The use of any of these statements by the Police indicates that they suspect that the person they are talking to has committed a crime. Do not help them make their case; “Just Say No” and ask for an attorney.
A person has the absolute right to request an attorney when interrogated by the Police. In fact, upon arrest, or prior to a custodial interrogation the Police are required to read Miranda Warnings to the person being questioned. Miranda Warnings inform the individual in question that they have the right to remain silent, that anything they say can and will be used against them, and that they have a right to an attorney. USE THESE RIGHTS. “Just Say No” to any further questioning until an attorney is present; and always remember to use the magic words “I Want an Attorney”.
The situations that have been discussed above generally apply to more serious crimes, such as felonies, but the “Just Say No” attitude should be used in any dealing with Police. For example, when a person is stopped for speeding the officer will almost always ask, “do you know why I pulled you over”? Once again, “Just Say No”. The reason the officer asks this question is because the prosecution can use the driver’s answer against them. Put simply, if the driver makes the comment that they were “probably going a little to fast” the prosecution can use this as an admission of guilt or in other terms a confession. Talking to the Police never pays off, “Just Say No”
“Just Say No”
To Request to Search
The 4th Amendment to the United States Constitution provides that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated”. Police will attempt to bypass this clause by gaining consent to search. A person’s 4th amendment rights can be waived if they consent to a search. If the Police ask to search it is usually because they do not have grounds to obtain a search warrant and are looking for a way around the law. Do not help the Police build a case by consenting to a search, “Just Say No”.
Police will attempt to manipulate a person into giving consent to search; be aware of these manipulative tactics. If a person does not immediately consent the Police will often engage that person in the following conversation.
- Officer: Do you mind if I take a look (look is code for search) around your vehicle.
- Driver: I don’t know? Why do you want to search my car?
- Officer: You don’t have anything to hide do you?
- Driver: No
- Officer: Then what is the harm in letting take a look around?
- Driver: I’m not sure I’m comfortable with you looking in my car.
- Officer: You said you have nothing to hide. If that’s true then there shouldn’t be a problem. It will only take a minute.
This is textbook manipulation, the officer is attempting to insinuate that only guilty people, or people with something to hide, refuse to give consent to search. The fact is that the officer did not have a valid reason to search and was attempting an end around by asking for consent. An easy response to the officer when he asks why the person wont allow consent is “I think all people should exercise their constitutional rights so I am going to have to “Just Say No”.
Search and Seizure law in the United States is very complicated and often misunderstood, even by attorneys. The facts are, that there are very limited circumstances in which the Police are allowed to search, that searches generally, not always, require a warrant signed by a judge, and that consent can waive a persons constitutional rights against illegal search and seizure. Bottom line, all that a non-attorney needs to know about search an seizure law; don’t consent, “Just Say No”.