K.Anderberg: Police Questioning and Plea Bargains: RNC Aftermath
Now that mass arrests and criminal injustice processing has begun in NYC from the RNC protests, I want to review a few legal things for everyone. I want to make sure everyone understands what police questioning is, how plea bargains work, etc. And that SILENCE IS GOLDEN!
Police Questioning and Plea Bargains: Keeping It Safe in the Aftermath of RNC Protests
By Kirsten Anderberg (www.kirstenanderberg.com)
Now that mass arrests and criminal injustice processing has begun in NYC from the RNC protests, I want to review a few legal things for everyone. I am not an attorney, I am not giving legal advice. I am giving practical advice based on personal experience and what I learned in law school. I want to make sure everyone understands what police questioning is, how plea bargains work, etc. I want people to know that ANYTHING you say *can and will* be used against you later. SO DO NOT TALK about ANYTHING but the weather once in custody. Police like to give arrestees an illusion of privacy so they will talk together while the cops tape record it, and then they use that in court against us later as evidence. There is NO expectation of privacy in a cop car, in a holding cell, in a jail cell, in a courtroom. Do not even think you are alone. They are tape recording EVERYTHING people. Basically, if you cannot LEAVE of your own volition, DO NOT TALK AND ASSUME YOU ARE BEING RECORDED.
Police questioning. I recommend NOT DOING THAT. Police questioning evades your right to an attorney, so skip it. When one is under arrest, cops read the victim their Miranda Rights. You have the right to remain silent. You have the right to an attorney. If you cannot afford one, one will be appointed to you...But the Miranda Rights are only read to people who are CHARGED with crimes. There is a little no-man's land, in between being named a "suspect," and being "charged" with a crime, called "Police Questioning." This line of questioning is ripe with ABUSE.
If you are named a "suspect" in a crime in Seattle, for instance, the Seattle police will ask you to come to their station for "questioning." If you request a public defender be present, to protect you during the cop questioning, you will be told NO. If you go to the public defenders' office and request one for questioning, they will tell you to come back when you are "charged." The cops WANT TO GET YOU ALONE, WITHOUT REPRESENTATION, BEFORE you get a right to a public defender. When I asked for a public defender when a Seattle pig wanted to "question" me, and was denied a public defender, I refused "questioning." I was told I could only get the public pretender if I was "charged." The Seattle cop became insensed and quipped "Why do you WANT me to CHARGE you?" Undaunted, I replied, "I refuse to talk to cops without representation, so do what you must." This pig got angry and replied, "You can bring an attorney!" I REPEATED that I could not afford an attorney for pig questioning. The pig kept oscillating between threats, "Then I will just charge you," and insanity "You can bring an attorney." I refused to play these little piggy games.
I feel people need to be warned to NEVER cooperate with police questioning without an attorney present. EVER. Yet you need to know that pigs will take revenge on you for robbing them of questioning without Miranda Rights. THEY HAVE A VESTED INTEREST IN GETTING YOU TO TALK WITHOUT AN ATTORNEY. THEY WILL THREATEN YOU with "charges." They may even "charge" you SIMPLY OUT OF REVENGE. But whatever the scene, it cannot be GOOD to have an interview on record when you were ALONE with pigs. It cannot help you. Plus, you cannot trust cops. They steal, sneak and entrap. DO NOT give them ammunition. As the proverb goes, "It is never wrong to lie to cops." Or, in the immortal words of Eldridge Cleaver, "A laughed-at pig is a dead pig." Deprive cops of their "police questioning" unless you can afford an attorney to take with you. Stay out of this no-man's land is my advice to the average citizen on the street. This is not legal advice. This is merely observation of cop politics and our criminal injustice system.
Another completely corrupt behavior in the area of "criminal justice" is the arena of Plea Bargains. We can expect plea bargains to be FLYING all over NYC's courtrooms at protesters now. This will be a very large bulk of what the NYC prosecutors will use to coerce people into guilty pleas. My guess is more people will plea bargain out than not after these protests. So, I want to review what a plea bargain IS.
I believe plea bargaining is torture for confessions. I am talking about America here, not Iraqi prisons. Can torture produce a legitimate confession? The debate is ancient, worldwide and ongoing. Most respected authorities agree that confessions made under duress have serious problems. Basic American contractual law acknowledges the problems therein, and thus contracts must be made with an "arm's length" bargaining, meaning parties must have a somewhat uncoerced negotiating positionality. Due to this standard, contracts made under duress are often found to be void.
Ironically, most of us can see the apparent problems in tortured confessions, and also in contracting at less than an "arm's length" bargaining, yet that logic stops suddenly when it comes to plea bargains and the criminal justice system. We've all heard it on the news. Someone admits guilt to a crime, and then a day later, takes back their guilty plea. This is how that happens. When someone is charged with a crime in my city, Seattle, for example, the prosecutors trump up the biggest charge they can squeak through. For instance, First Degree Assault and robbery, etc. as opposed to misdemeanor theft. The prosecutors puff the charges up to be the toughest, most severe criminal category possible to scare the defendant and give them bargaining power later. The overwhelming amount of charges that are reduced via plea bargain PROVES beyond a doubt that these prosecutors could charge defendants with lesser and more realistic charges from the get go, but opt to bluff bigger crime charges to use in the bullying later.
When a person is charged with a crime in the criminal justice system, the system presents a false storefront of "equal representation" by offering the poor a Public Defender (PD). PDs came to be when a nearly illiterate black man in the South, wrote on a napkin, in pencil, his argument that he never even had a chance to represent himself and now he was in jail, and mailed it to the Supreme Court. The Supreme Court read this and instituted the Public Defender system, a system that is so degraded and crippled now, that it barely resembles the original legislative intent. Legislators continually approve twice the working budget for prosecutors that it approves for PDs. Often young lawyers take their first jobs as PD's and pay for PD's is so low, few good attorneys stay on as PD's. Suffice it to say, the system is as dysfunctional as an old Russian nuclear reactor.
Once you are charged with a crime, you are assigned a PD. But the PD never returns your calls, never has time to meet with you or explain to you the charges, the evidence, or your personal options. In addition, there is a mass of evidence against you that your PD can see, and YOU CAN'T. So the day of trial, your PD finally has time to meet with you, right before trial! He tells you to meet him in the law library at the courthouse instead of the courtroom. He shows up at the last hour with a "plea bargain" offer from the Prosecutor. The Prosecutor now is offering to charge you with a lesser crime, a misdemeanor instead of a felony, IF you admit guilt to the misdemeanor and waive all rights not only to a trial, but to any appeal also. THAT in a nutshell is the plea bargain system. You are not allowed to see a mass of the "evidence" against you, so you have to rely on this third party, the PD, for advice. You weigh it out...this incompetent, unavailable, overworked, underpaid PD going to TRIAL to save you against a felony charge, or give up and take the misdemeanor. Many people give up and take the plea bargain, and admit guilt, but not because they are guilty. Because they are SCARED, bullied, lied to and kept from making their own informed choices, dependent on a PD who never answers any calls or questions. To many, it is worth feigning guilt to a lesser charge to get the hell out of the criminal injustice system.
How is this different than torturing for a confession? Scaring the living daylights out of low-income folks with trumped up charges, lack of representation, and plea bargains is less than a noble system. One PBS documentary I saw on Public Defenders said 90% of those arrested needed PD's. That says a lot about WHO they arrest. Guilty pleas all over America are now suspect, due to the way they were negotiated. If Prosecutors cannot charge people initially with a reasonable charge, and get guilty pleas with an "arm's length" bargaining, instead of this current bullying bargaining, then the system is laughable, at best. So the next time you hear someone admits guilt, and then retracts it, it probably means they finally got a private attorney, as opposed to a Public Pretender, to represent them! I am ashamed of how the American criminal justice system is currently functioning, criminalizing the poor and minority populations, bullying for guilty admissions, thereby rendering the admissions useless. I do not believe there is any good in torturing for confessions or bullying for guilty pleas.
The biggest problem with plea bargains is you seal your fate. There is no appeals process allowed in plea bargained cases, which is why prosecutors love them so much. You give up all rights to appeal the judge's decisions and let me tell you, the judge IS NOT under ANY obligation to follow what the prosecutor recommends as your sentencing. The prosecutor can offer to recommend two weeks jail time to the judge in return for your coerced guilty plea, and then the judge can sentence you to two months anyway. And you signed away your rights to appeal. You must really think your legal strategy out, people. Do not let FEAR dominate. Think about who is offering you what and why. There is no such thing as a good cop. There is no such thing as a just plea bargain. There is no such thing as a fair prosecutor. Think on that long and hard when they play good cop/bad cop games with you. Remember, the "good" cop, is still a COP. No, they are not trying to be nice or helpful. Their agenda is the COP agenda. Do not buy into their fear. Do not buy into their trust. Do not cooperate with them. Do not talk to them without an attorney present at all times. Do not speak about anything but the weather once in custody. That is my advice, again, not legal advice, but advice based on what I have experienced personally and have learned in law school. I *do* care about you. The cops, prosecutors, judges do not. Really think through each step you take here as they dance you through cops and courtrooms. Also, take very precise notes with dates, times, etc. the whole time on the behaviors of your public defender. If he acts completely incompetent and you have it well documented, you may be able to get some leeway through that later as well.
Don't be afraid. We are with you. We love all of you who were arrested. We will help get your stories out. We will help put out the call for legal support and jail support. Keep strong. And use your head. But remember, once in custody: SILENCE IS GOLDEN!
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