Joe Bob's America: Wrong answer go to jail

NEW YORK, May 7 (UPI) -- How many decades have we had the Miranda Warning now?

How many TV shows and movies have we seen it used in? (My favorite was the poster for "Maniac Cop": "You have the right to remain silent. Forever.")

And yet we still have criminal cases that turn on words uttered by the defendant immediately after being arrested.

What this tells me is that it's a sort of Stupid Tax. It's a tax on people so devoid of intelligence, life experience and exposure to the popular culture that they think TALKING TO THE COPS is going to help them.

Maybe we should change the whole warning to read as follows: "Anything you say BEFORE you're arrested can possibly help you. Anything you say AFTER you're arrested can only mess you up. Do you understand this?"

All I can figure out is that some people are unaware of the actual moment of arrest. They have these iron manacles on their wrists, but somehow they think that, a few minutes from now, the police officer will slap his forehead and go, "Oh! I see! Now that you put it that way, you're not under arrest after all! Here, lean over so I can unlock you."

Listen up, people: NOT GONNA HAPPEN.

EVER!

Not even once.

For starters, you can't get arrested unless the cop has probable cause. That means he thinks you're guilty. Now let's assume that the cop made a horrible mistake. He responded to a domestic dispute, couldn't figure out exactly what was going on, and arrested the wrong person.

HE'S STILL NOT GONNA LET YOU GO!

The judge might let you go. The assistant prosecutor might let you go. Or the grand jury might let you go. But the COP, the guy who's driving you to jail, has already FINISHED his legal decision-making. Even if he listens to what you say and decides, "Yep, I think I got the wrong guy," he can GO TO JAIL HIMSELF if he uncuffs you and lets you walk. He would be setting himself up, and setting his department up, for a false arrest lawsuit, at the least.

Shouldn't we teach this in school or something?

But even if the arrestee is a blabbermouth in the squad car -- maybe he's angry, maybe he's excited, maybe he's drunk – you would still expect that, an hour later, when he's taken into the little cubicle and offered a diet soda, he would understand that it's time to CLAM UP.

Apparently not. We still have thousands of cases that are based on nothing more than what the accused says AFTER he's arrested, Mirandized, booked, jailed and arraigned. The only psychological reason I can possibly come up with for this is: hallucinations and delusions of grandeur. He should be given an automatic insanity plea for being unaware of where he is.

There are a couple of reasons that all this is being debated again right now. One is that the Supreme Court is about to review a case that would weaken the Miranda Warning itself. Most people don't even realize that it already WAS weakened in 1994, in the case of Davis v. United States, when the court ruled that the suspect must make an unambiguous unequivocal request for a lawyer, or else the cops can continue questioning him.

For example, if you say "Can I get a lawyer?" -- that's not enough.

If you say, "I think maybe I should get a lawyer before I talk to you" -- that's not enough.

If you say, "I don't think it's in my best interests to be talking to you, I want to wait on my lawyer" -- that's STILL not enough.

Apparently the only thing you can say is, "Give me a lawyer. I'm demanding a lawyer. And until I get a lawyer, I'm not talking."

You have to say both things -- that you want a lawyer, AND that you're exercising your right to remain silent -- or else they can say, "Sure, we'll get you a lawyer," but then CONTINUE TO GRILL YOU.

This is bad law. It's bad law because it requires the defendant to know how to speak like a lawyer. The whole reason for the Miranda rule in the first place is so that the defendant's presumption of innocence will be preserved while the lawyer is ON HIS WAY TO THE JAIL. A more civilized standard would be: once the accused uses the word "lawyer," in any context, the examination should stop.

We've already seen this come up in the John Lee Malvo, the teenager involved in the Washington area sniper case. His lawyers claim that he requested a lawyer during the interrogation, but his request was ignored.

In this case we happen to know exactly what he said. At one point he said, "Do I get to see my attorneys?" Later, during the same interrogation, he said, "My attorneys told me not to say anything to the cops until they got there."

So in both cases, it's clear that he knew what the situation was and he ATTEMPTED to exercise his Miranda rights. But when it came up in court, his statements were used against him. The legal reasoning goes: he showed a knowledge of his Miranda rights, but he didn't demand those rights. Therefore, he was an informed defendant who willingly spoke to cops without his lawyers present.

In other words, it's a lawyer's argument. It's insisting on the letter of the law instead of the spirit of the law. Here you had a 17-year-old who was obviously uncomfortable speaking to cops without his lawyer present, but he failed to say the secret code words that would have stopped the interrogation. What if the defendant is simply inarticulate? What if he's retarded?

Shouldn't we assume that if he gets into the general vicinity of asking about a lawyer, we should at LEAST act as though he's representing himself? If a man represents himself in the courtroom, but fails to make his motions in the proper form, the judge always helps him state them correctly. This is no different. Instead, the system says, "Sorry, Malvo, you guessed wrong. Shoulda gone to law school."

Many people assume, much to their later horror, that, if they're innocent, it doesn't do any harm to talk to the cops.

Once again, they're victims of the Stupid Tax. As our legal system grows increasingly complex, increasingly devoid of any human judgment -- there are no kindly gray-haired elders who show up and sort out the obvious injustices -- you can MAKE YOURSELF GUILTY during the interrogation.

This is what happened, in fact, to many of the innocent people in the 1980s who ended up serving 30-year terms, life sentences, even death sentences, before DNA evidence eventually cleared them. Some of them even confessed to crimes they didn't commit, because they thought it would shorten the interrogation and allow them to go home. (Like I say, it's a Stupid Tax.)

The law is not made for lawyers. The law is made for people. So if we're going to insist on tiny little verbal technicalities that are slanted in favor of the authorities, then we should even the playing field by having lawyers talk to lawyers. You can still interrogate the suspect. You just have to do it in such a way that he always understands the questions and always understands the implications of his answers. It seems to me that police officers would even welcome this. It would make every case clean as a whistle, and we wouldn't have all these Miranda motions in the first place. Surely the police aren't arguing for the right to confuse someone into saying things he doesn't mean. They aren't saying that suspect interrogation is a kind of carnie game -- are they?

Because if that's what they're saying, we could just do it the French way: presumed guilty until proven innocent. What traitor would want that?

(Joe Bob Briggs writes a number of columns for UPI and may be contacted at [email protected] or through his Web site at joebobbriggs.com. Snail mail: P.O. Box 2002, Dallas, Texas, 75221.)