Should Michael Jackson’s doc have kept his mouth shut after superstar’s death?

Should Michael Jackson’s doc have kept his mouth shut after superstar’s death?

Philippine News Monday, October 17 2011

Some individuals believe that they can ‘talk themselves out of criminal prosecution.’

For the first time, jurors in the Michael Jackson death heard the tapes of Murray when he spoke to the police, just two days after Jackson’s death. Many TV legal analysts including myself, conclude that the statements will be a benefit to the prosecution. What do we know now after the defendant himself spoke and not invoke his constitutional right to remain silent and against self-incrimination?

We know that Murray administered propofol for nearly two months in a home-setting rather than the hospital setting which it should be. We also know that he also administered numerous and continuously on June 25, 2009 (day of Jackson’s death) other potent tranquilizers.

He contradicted prior witnesses of the timeline that he precisely detailed in his taped conversation with the police. For example, he states he only left Jackson for “2 minutes” to go use the bathroom for the approximately 10 hours he was at or near Jackson’s bedside. Murray’s admission contradicted tangible evidence like the phone records and testimonial evidence including and especially his girlfriend.

Some legal analysts state that it is good for the defense since it “humanized” the doctor. But I anticipate the defense bringing in other witnesses to state that he is a good and caring doctor and just like one of the prosecution’s witness state “he saved my life.”

Keep in mind as well, that just like the detectives that spoke to Murray with his attorney Chernoff present, the investigation was at its inception. The defense had no police reports, toxicology reports or any documents from the state since no charge has been filed. So in essence, Murray and his attorney went in to this interview with no prior “discovery” which would allow a defense team to review what the state’s case is all about.

Some individuals believe that they can “talk themselves out of criminal prosecution.” But what more likely occurs is they “talk themself to being arrested.” Moreover, if Chernoff wanted the cops to get an insight of how “humane” their client is, they could always bring Murray in at a much later time —I question their decision of having him speak just 2 days after the death.

A defense attorney is the conduit to the state. I always tell my client, I am their “mouthpiece.” This right to remain silent is one of the hallmark rights of a defendant in the criminal case. Once you invoke it and do so clearly, the police must honor it.

The landmark case Miranda v. Arizona 384 U.S. 436, 86 S.Ct. 1602 (1966) continues to evoke confusion by many individuals confronted by the police. Ernesto Miranda, a rape suspect, was arrested and taken to the police station. After two hours of questioning, he signed a written confession and was subsequently found guilty. Miranda appealed his conviction on the grounds that prior to confessing, he had not been informed of his Fifth Amendment right against self-incrimination or his Sixth Amendment right to counsel.

The United States Supreme Court overturned Miranda’s conviction, finding that the coercive nature of detention in a police situation necessitates certain safeguards in order to ensure that suspects that do not intelligently waive their rights. The ruling held that when law enforcement officers take a suspect into custody with the intention of conducting an interrogation, they must advise the suspect of certain fundamental rights.

(1) The right to remain silent;

(2) Anything you say will be used against you in court;

(3) The right to have an attorney present;

(4) If you cannot afford an attorney, one will be provided at no cost to you.

This case had broad ramifications for all police officers who are now required to issue these warnings when a person is placed under arrest and will be interrogated. Note also that the officers are required to make sure you understand either each right specifically or in its entirety. In practice, many officers will state, “do you understand” after each right or at the end of the warning—either way has been held to be proper.

We are all aware of the contents of Miranda. It is recited on police shows everyday and many can repeat it verbatim, though often without a clear understanding of its significance. More importantly, as I have seen in my criminal cases, simply ignored, misunderstood or feared. Simply stated, many either turn a “blind eye” or disregard the best course of action for any arrestee: say nothing or seek the help of an attorney.

Keep in mind that the environment that Miranda must be invoked requires custody (arrest) and interrogation (questioning) by law enforcement officers. Hence, if they are not cops, Miranda does not apply. Moreover, statements “volunteered” by the suspect at any time; “spontaneous” statements, or providing basic personal information such as name, address, social security does not require the advisement. I placed quotes on the words volunteer and spontaneous. As a criminal defense attorney, these types of statements are subject to analysis and should be carefully scrutinized if they are truly voluntarily or spontaneously given.

Police are trained in interviewing and interrogating suspects. They are required to study interview techniques, interviewing psychology, body language, tone of voice, phrases to be aware of, discrepancies and changes in answers. Believe me these observations are all memorialized in the police report. It is a common practice for me to advise my clients charged with a crime that the police report will not put them in the best light. They are very skilled in obtaining statements that can incriminate yourself which you believed absolved you of all guilt.

Miranda waivers must be unequivocal. It must be a clear invocation—answers such as “Maybe I should talk to a lawyer” have been analyzed in court. This was examined in Davis v. United States 114 S.Ct. 2350 (1994). Agents of the Naval Investigative Services interrogated the defendant in connection with a beating death of a sailor. Initially, the defendant waived his rights but 90 minutes into the interview, he states, “Maybe I should talk to a lawyer.” The agents asked clarifying questions and the defendant replied, “No, I don’t want a lawyer,” the interrogation continued with resulted in incriminating statements. The court rejected the defendant’s argument that any mention of a lawyer, however ambiguous is insufficient to invoke the right to counsel and that questioning must cease. The lesson here is that make your requests clear and simple—no wavering is allowed.

The Miranda warnings are short and simple. They are not complicated. A one sentence statement of “I want to remain silent and I want an attorney” will suffice. I can not emphasize enough that many defendants “bury” themselves with their own statements. The protection afforded by Miranda should not be ignored but taken advantage of and invoked.