Sunday, February 27, 2005

BTK SUSPECT CONFESSING? WAIVING MIRANDA RIGHTS?

There are news reports today that the accused who was arrested in Kansas on BTK murder charges has begun to talk to the police. He is reported to be telling them about several murders, over a period of years. The officers will testify that BTK was given his Miranda rights, that the ritual of "advice of rights" was followed to the letter. They may even have a taped (video or audio) record of the statements, but less likely of the advice and "knowing and intelligent waiver." BTK had a right to have an attorney present during questioning. He has the right just like Timothy McVeigh did when he was questioned about the bomb and the Oklahoma federal building. They waive the right to the attorney.

They know that if they want an attorney, to consult with before questioning, or if they want to have an attorney during questioning, they can merely say so. They know that it is not proper for the police to use force or violence, or threats of force or violence, to get a confession. They know that the police cannot use any mental coercion, such as sleep deprivation. They know that the police cannot use a promise of reward or leniency. [In the case of David Cooper Nelson (1959), the one and only to ultimately get the gas chamber in New Mexico, the Chief of the New Mexico State Police told the accused that ". . . he would not fry if he copped a plea." A confession followed, and was used at trial. The first conviction was reversed. The second conviction, without the confession, resulted in death in the gas chamber.]

The accused persons know that mistreatment by police, as in New York Blue television, will not be permitted in a Court of law. They know that if they ask for an attorney, there will be no questioning until an attorney is obtained for them, free of charge. The best possible thing for them is to ask for an attorney. The attorney will surely tell them to remain silent. The attorney can also contact the authorities and say I represent the accused and I do not want you to question him unless I am present, and that will be never. TV shows lawyers sitting by while officers question their clients. Where does this actually happen?

What the prisoner does not know, and the police will not tell him, is that if he asks for a lawyer [I hate that term, "lawyers up."], and remains silent, his silence and his request for a lawyer can never be mentioned to the jury. What the prisoner does not know, and the police will not tell him, is that when they say that an attorney will be provided for him to be with him during questioning, the police have no intention of providing him an attorney. If he waives his right to an attorney, they will go ahead and take the confession. If he says he wants the attorney, he is returned to his cell and questioning stops. No force; no theats; no physical nor mental coercion; no cajolery; and no comment to the jury later.

If no taped record is made of the "waiver," we must take the word of the officers as to whether the accused waived his rights, gave a "knowing, intelligent waiver" of his rights to an attorney and to remain silent. The reason we have a Miranda case (June 13, 1966) is because we do not trust the officers to refrain from beating confessions out of prisoners. We do not trust the officers to testify truthfully as to whether they beat Joe Blow, but we do trust the officers to testify truthfully as to whether Joe Blow was advised of his rights and knowingly and intelligently waived his rights.

There is no requirement that the advice and waiver be recorded by any means. Why is that? The Miranda rule penalizes the weak, the ignorant, the stupid, the frightened, the mentally ill, and those overcome by guilt. Are we proud of a procedure which accepts confessions from such people, but prohibits us from drawing an inference of guilt from silence and failure to testify (for example, O. J. Simpson and Robert Blake)? Miranda v. Arizona (1966) and Griffin v. California (1965) are a one-two punch to common sense and fairness.

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