Issues of first impression? Analysis and suggestions

We here at Long Island (criminal) Trial Law have been scanning the advance sheets to find cases of interest to lawyers who try cases. We have found a few criminal cases of note. Our goal here is to provide you with a description and a citation. Occasionally we may add a comment or a practice tip too. If you have an idea, or a comment, or even a tip, feel free to leave it here. If you want to contact us, you can reach us at http://www.colleluorilaw.com/ and go to the comment page. Finally, we invite you to read our other blog http://www.thatlawyerdude.com/. Now for today’s thoughts:

I. People v. Barham 2004 WL 1949049, (Nassau County District Court Gartner J.) 2004 Slip Op. 24318.

In the Barham case, Judge Kenneth Gartner was faced with (what he termed) a matter of first impression. Should the court suppress as involuntary, a statement given to a private (non-governmental) employer’s detective, made under the penalty of job loss? The court began its analysis by acknowledging that involuntary statements, given under the penalty of job loss to public employers are deemed constitutionally “involuntarily” made. The court noted that the same constitutional protections are not available to private employees because their employers are not acting as an “arm of the state.”

Barham was an employee of Lowes Department Store. Private detectives interrogated him regarding a scheme to steal from the store. He allegedly had to either speak to detectives or terminate his employment. He gave the statement and thereafter left the store’s employ. Months later during a routine traffic stop, two warrants for his arrest hit. One was for the larceny scheme at Lowes, the other was for an unrelated domestic dispute. After receiving Miranda warnings, police questioned the defendant about the domestic dispute. Some hours later, police questioned him about the larceny charge. He was not re-Mirandized at that time.

At bar, the defendant seeks to suppress both statements. The first for being involuntary, the latter for being given without receipt of fresh Miranda warnings. The government objects, and notes that since private employers are not an “arm of the state” the private employee has no protection from a statement he gives under the penalty of job loss. See People v. Advant, 33 NY2d 265, 352 N.Y.S.2d 161, 307 N.E.2d 230 (1973). It also objects to the second rung of defendant’s motion arguing that the police did not have an obligation to re-administer the Miranda warnings before expanding the scope of continuing interrogation to encompass another crime. See People v. Lopez, 116 A.D.2d 592, 497 N.Y.S.2d 452 (2nd Dep't 1986).

The court held that the legislature in New York had created a protection through the language of CPL § 60.45. CPL § 60.45(1) states that a defendant’s statement “…may not be received in evidence against him in a criminal proceeding if such statement was involuntarily made." CPL § 60.45(2) provides that a statement is "involuntarily made" if it is obtained "[b]y any person by the use of ... improper conduct or undue pressure which ... undermin [ed] his ability to make a choice whether or not to make a statement" (emphasis added).

The court cited the relevant legal reasoning behind the public employee’s need for protection ("the choice given petitioners was either to forfeit their jobs or to incriminate themselves. The option to lose their means of livelihood or to pay the penalty of self-incrimination is the antithesis of free choice to speak out or remain silent.... The statements were infected by the coercion inherent in this scheme of questioning and cannot be sustained as voluntary under our prior decisions." Garrity v. State of New Jersey, 385 U.S. 493, 497-498, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967). Then, while agreeing with the reasoning that denies a constitutional protection to the private employee noted the state’s statutory protection under CPL § 60.45.

Now for quite a while, prosecutors have successfully argued that the statute did not cover private employees who give statements but their reasoning completely eschewed the plain wording of the statute. The court reasoned, if a defendant is entitled to a hearing to determine the voluntariness of a statement physically beaten and coerced out of him (by private parties)” People v. Grillo, 176 A.D.2d 346, 574 N.Y.S.2d 583 (2nd Dep't 1991); and Garrity holds statements given under the threat of loss of livelihood are involuntary; then it is reasonable that the same protection is available under CPL § 60.45. The court also held the defendant entitled to a hearing to see if there was a reasonable time passage between the warnings and the statement given. The court did not use a strict time limit to determine the reasonableness of the break. (In fact, it noted cases hold twelve hours passage reasonable) but applied a “totality of the circumstances” test to the situation. In that test the court held that duration; conditions of detention; attitudes of the police toward the accused; and the age, physical state and mental state of the defendant, must all receive consideration.

Judge Gartner, considered by many to be a conservative jurist, used the plain language of the statute to preserve what the legislature clearly meant when it sought to keep involuntary statements from the jury. In today’s economic condition (especially as it exists among young people and minorities), job loss is as significant as jail. It has ramifications beyond the individual and onto his family. Judge Gartner gets kudos from those of us at Long Island (criminal) Trial Law for accomplishing the right result without bending the law (or ignoring it) to arrive at a substantially and legally correct result.

II. US v. Nelson ---F.Supp.2d---, 2004 WL2091020 (S.D.N.Y.) A warning to practioners.

Pleading a motion to suppress tangible evidence is often a dicey proposition. It requires pleading with particularity. In Federal Court the exercise is even more difficult. It requires supporting affidavits be made by one with personal knowledge of the facts underlying the motion. That usually means the defendant has to aver to the facts, something most of us loath. In Federal practice it gets worse, if the court finds after a conviction that the defendant perjured himself in the motion it usually adds an upward enhancement to the Federal sentencing guidelines. Nevertheless, this reticence can cause us to take our eyes off the ball. If we want suppression or need the hearing we are going to have to give something up. Failure to do so could lead to a charge of incompetence of counsel.

In Nelson, Police arrested the defendant after obtaining consent from a co-tenant to search, and then asking defendant if he had anything in the apartment that might hurt the officers. Defendant gave up two guns. The defendant alleges that neither he nor his co-tenant gave voluntary consent to the search, although the police produced a signed consent form. If nothing else, defense counsel was attempting to get a hearing on the matter. His pleadings however fell short of the necessary allegations to obtain the hearing much less the suppression.

The motion to suppress contained an affidavit from the both defense counsel and the defendant. In order to trigger a hearing to suppress evidence, a defendant must present his claim through the affidavit of someone with personal knowledge of the facts. The attorney’s affidavit did not allege personal knowledge of the disputed facts, and was inadequate to warrant a suppression hearing. This would have been okay since the pleadings included the defendant’s affidavit, but this was not only an illegal search case. In fact, the defendant had given up the weapons before the search began. This was an illegal entry case too. Nelson’s affidavit alleged neither he nor his co-tenant “gave the police permission or authority to search [their] apartment.” The court held that the Fourth amendment did not apply to entry with the consent of an inhabitant. The attorney’s affidavit alleged that police threatened the co-tenant with arrest if she did not sign a “consent to search” form. The court however noted that the lawyer’s affidavit was not based on his personal knowledge of the facts in the case. The motion to suppress was therefore defeated without hearing.

The lesson here for all defense counsel is that our affidavits (should we chose to file one) require personal knowledge. A better course is to include all the “facts” in the defendant’s affidavit (unless there is a witness available), then offer a brief with an attorney’s affirmation describing the importance of exhibits if any. Additionally, defense counsel should be very careful in the precision he uses in drafting pleadings. Here counsel probably meant to say that police coerced the co-tenant into signing the “consent to search” and into giving them the right to enter under threat of arrest. He did not say it and the court hung him for it. In fairness, I am not sure many attorneys would have picked up the significance of the difference in the drafting stage of the motion. It is axiomatic to us that if the consent to search is coerced so is the entry. We however live in the real world where we hear these things from clients all the time. They are probably often true. Nevertheless, a court is not about to throw out two guns without being forced to do so. Flawed pleadings gave the court an easy out. In the future, it would probably baud well for us all to object to both the entry and the search in our pleadings unless the facts preclude it.


III. US v. Copeland et.al., ---F.Supp.2d---, 2004WL2093483 (EDNY): Breaking up is hard to do… but not impossible.

In another case of apparent first impression, the District Court (Block J.) held that a third-party exculpatory identification which one co-defendant would present warranted severance of that co-defendant.

In Copland, police arrested three individuals for robbing a bank. The prosecution claimed that Defendants Vasquez and Rivers allegedly entered the bank and Defendant Copeland allegedly drove the getaway car. The problem was the prosecution had witnesses that said that Vasquez never entered the bank and Copeland and Rivers were the stickup men. Of course, since these witnesses didn’t back up the Government’s theory of the case, they were not going to call them as witnesses. Vasquez’s lawyer felt differently about that and intended to ask everyone he could about the apparent … uh...discrepancy.

The court had earlier held that the defendants could not have a severance just because they were pointing fingers at each other. See United States v. Haynes, 16 F.3d 29, 31-32 (2d Cir.1994) (affirming denial of severance where defendant was implicated by co-defendant's testimony); United States v. Diaz, 176 F.3d 52, 103-04 (2d Cir.1999). Here, however, the witnesses that the government intended not to call turned Vasquez’s lawyer into a second prosecutor against Copeland. The court noted that while "mutually antagonistic defenses are not prejudicial per se; the Second Circuit has determined that "mutually antagonistic or irreconcilable defenses may be so prejudicial in some circumstances as to mandate severance." United States v. Salameh, 152 F.3d 88, 116 (2d Cir.1998). One such case may be where, as here, "in effect, a defendant's counsel becomes a second prosecutor...." United States v. Volpe, 42 F.Supp.2d 204, 210 (E.D.N.Y.1999) (quoting United States v. Tootick, 952 F.2d 1078 (9th Cir.1991)) (internal quotations omitted).”

Finding that a jury could not logically accept both Copeland’s and Vasquez’s defenses as true (Copeland: I didn’t do it; Vasquez: I didn’t do it, Copeland did), the court ordered the cases severed. As a side note, but apropos of the notations about pleading thoroughly in the Nelson case above, Judge Block was careful to note that the attorneys here did not make vague, unsupported allegations. Rather they averred to specific facts elicited from neutral witnesses.

Ok ‘nuff said for tonight… “Let’s be careful out there.”