The City of Troy, New York, "Where Henry Hudson Turned Around."

Monday, January 22, 2007


By now, everyone has heard that three detectives are suspended, without pay, pending a February hearing. All three face possible termination. We have compiled some background on the legal issues involved as well as newspaper accounts. If there are any lawyers out there, please feel free to add your two cents worth.

When we talk Miranda, we're talking heady, 5th Amendment stuff. Here's how the Amendment reads:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

To start with, who is Miranda and why should we be warning her?

Both the State and Federal Constitutions guarantee that individuals shall not "be compelled in any criminal case to be a witness against" themselves (NY Const, art I, § 6; US Const 5th Amend). In Miranda v Arizona (384 US 436, 461), the United States Supreme Court held that the privilege against self-incrimination protects individuals from "informal compulsion exerted by law-enforcement officers during in-custody questioning" as well as from legal compulsion to testify in court. In order to preserve this right, the Court prescribed "procedural safeguards effective to secure the privilege against self-incrimination" in the form of the now-familiar Miranda warnings.

There are two significant limitations on the application of Miranda. First, while an accused may not be compelled to "provide the State with evidence of a testimonial or communicative nature," a person can be forced to produce " 'real or physical evidence' ". Second, because the privilege applies only when an accused is "compelled" to testify, the safeguards required by Miranda are not triggered unless a suspect is subject to "custodial interrogation".

For evidence to be testimonial or communicative, it "must itself, explicitly or implicitly, relate a factual assertion or disclose information". While evidence that "reveal[s] a person's subjective knowledge or thought processes" is testimonial or communicative such is not the case when a suspect is "not required 'to disclose any knowledge he might have,' or 'to speak his guilt' ". This is because the policies behind the Self-Incrimination Clause "are served when the privilege is asserted to spare the accused from having to reveal, directly or indirectly, his knowledge of facts relating him to to the offense or from having to share his thoughts and beliefs with the Government" - from People v Berg, NY Court of Appeals, 1999

The aforementioned Miranda was Ernesto Miranda. Ernesto, in 1963, was twenty-two years old and unemployed. He was arrested for stealing $8 from a bank employee. One year later he was picked out of a lineup by a young woman who accused him of kidnapping and rape. Miranda denied guilt, but two hours worth of police interrogation resulted in a signed confession.

The police did not inform Miranda about his right against self-incrimination. The case went to the Supreme Court to determine whether 5th Amendment rights extended to custodial interrogations. They did.

Miranda was not in the clear. He was tried and his common-law wife testified that he had confessed the rape to her. Ernesto was convicted and sentenced to twenty-to-thirty years in Arizona State Prison. He was paroled in 1972. Three years later, Ernesto got into a dispute over a card game in a Phoenix bar and was stabbed to death. Those arrested were duly Mirandized.

The 5th Amendment gained fame during the 1950's when Americans watched men with names like Jimmy "The Cheese" Calamari and Frankie "The Nose" Scungilli invoke their 5th Amendment Rights before Congress.

The 5th Amendment should not be confused with the 6th. The 5th Amendment is sandwiched between the 4th and 6th Amendment, but the print can be small and without glasses it gets confusing. The 6th Amendment provides a right to counsel:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

As an aside, the first cases in New York State involving Miranda warnings came out of Rensselaer County. DA's M. Andrew Dwyer and Con Cholakis often locked horns with Public Defender Thomas O'Connor, Mary Donohue's father, when these Federal Rights became applicable to the states. (People v Sayers and People v La Belle).

For those of you not up to speed, we've linked to the related stories on this saga. Jim Franco of The Record has followed this story closely.

Rosa indicted for selling gun used in Burns murder - from The Record, 2/16/06;

Brian Benoit goes on trial - from The Record, 5/16/06;

Benoit statements come under scrutiny - from The Record, 5/19/06;

Benoit acquitted - from The Record, 5/23/06;

In early August, Judge McGrath denied a defense request tosuppresss the confession of Akbar Hemingway - from The Record, 8/8/06;

Hemingway is acquitted - The Record, 8/17/06;

Statement made by Jason Jones in the Dougrey murder questioned - The Record 9/8/06;

Judge McGrathsuppressess Jones confession - The Record 9/9/06;

Bouchard, Centanni and O'Neil reassigned - The Record 9/15/06;

Jones acquitted - The Record 10/19/06;

Rosa to plead to lesser charge - The Record, 10/26/06;

Rosa pleads to Third Degree Criminal Sale of Firearm - The Record, 10/27/06;

Bouchard relieved of duty - The Record 11/10/06;

Thompson confession tossed - The Record 12/6/06;

Three officers suspended without pay - The Record 1/20/07;

It's a start to some of the things we'll discuss in the future.

No comments: