By Mark David Blum, Esq.

As a general rule, I do not comment here on cases in which I am personally involved because in doing so, I must be careful to remember that what I say, I do not only as a citizen, but also as an attorney and advocate for a party. Yet, there are those rare occasions that require me to speak up because an issue involved in the case has great public importance. (Also, the matter is widely discussed in the newspapers and on public bulletin boards and thus, here, the defense side can also be made public in a clear, complete, and concise manner).

Such is the case in a matter pending in Oswego County. There, I am the attorney for the defendant in a felony criminal matter pending before Hon. Walter Hafner. A critical question arose in context of that case about the admissibility of statements made by the Defendant. After two days of hearings, some very startling facts were uncovered. In my opinion, this discovery not only impacted my case, but could impact hundreds of convictions in Oswego County. There is a very real possibility that many people are serving time in prison or have been convicted of crimes as a result of tainted and illegal interrogations.

To set the scene: (All from the testimonial record of the hearing and referenced in the subsequent Decision by the Court). A low level public official was being investigated for allegedly engaging in illegal internet conversations while using City computers. Police approach the target’s fiancé and share with her all the ugliness that they believe is true. She gets so upset, she runs from the police station to the office of an attorney; sharing her belief that an arrest is imminent. The attorney calls the investigating officer who confirms they are looking at the target and want to talk to him. Attorney makes an appointment for her and the target to appear at the police station to answer questions.

At the police station, attorney and client are told by investigator that client is going to be charged with a couple of felonies. If the client cooperates “truthfully” and gives a statement, the investigator (and later the District Attorney by telephone) promised the client and attorney that the client will not be charged with another 15 felonies. Attorney then tells client “he is basically screwed” and “he had better cooperate or they would arrest him in front of (the attorney’s) son”.

The investigator then takes client back into an interview room, tells attorney she cannot be present, and proceeds to interview client for about an hour. Attorney returns to her office.

Investigator then decides to get written statement and starts to type up a statement. Client calls attorney who returns to the police station. After a statement is written, client is allowed to show statement to attorney, attorney encourages some changes and then encourages client to sign.

The rest is well known. Client was arraigned that night on two felonies and later indicted on 7 felonies and 7 misdemeanors. The investigator testified he believed the client had told the truth. Nowhere in the statement is there an admission of guilt.

Lesson #1: New York and the Indelible Right to Counsel Rule.

For all of you who watch the television series ‘Law and Order’, this is not news. In Oswego, it apparently is something of a novel concept.

Simply put, under New York Law, once you have an attorney representing you in a case, police cannot talk to you under any circumstance nor can you volunteer to speak with police without your attorney present. You cannot even waive your right to have your attorney present without your attorney actually being present when you consent to that waiver. This is called an “indelible” right to counsel because when your rights to counsel attach, they stick to you like glue.

At the hearings and while they were on the witness stand, I asked every witness the same question. “Are you familiar with the Indelible Right to Counsel Rule?” The investigator “of many years” who has conducted “several hundred” interrogations never heard of it. A defense attorney of more than eight years, the then attorney for the client, also got it wrong. The District Attorney himself not only got it wrong while testifying, but despite reading the defense brief and the Court’s decision, this morning still maintains everything done was legal. During oral argument on the motion, the Assistant District Attorney got it wrong and again later in his brief where his own cases were cited by the Court to support the defense position.

What became real obvious to anybody sitting in the Court room was that the state of the art in criminal defense and constitutionally proper police investigations in Oswego is sorely behind the times. Rights are not being protected. Confessions are being taken illegally. Prosecutors, defense attorneys and police officers do not know the law. At one point, even the Judge turned and asked the officer if he ever saw an episode of Law and Order.

Lesson #2: Miranda.

I always tell people that the right to remain silent is not a right; it is an obligation. When confronted by a police officer, I strongly advise people to just shut the hell up until their attorney is present. Never in all my years as an attorney have I ever heard of someone talking their way out of or lessening a charge without the assistance of counsel. Everything that is said ultimately is either discarded or used against the accused.

In New York, the magic word is “lawyer”. Once you ask for one, once one has appeared, or once you have been charged, you have the absolute right to have an attorney present. Despite what Detective Brisco always says, having an attorney with you will not worsen the ultimate outcome. Police are allowed to lie to you and are trained to elicit confessions. Do you really want to be alone against those odds?

So in Oswego, the client had an attorney with him and despite that, the investigating officer told the attorney to go away. He saw nothing wrong with that. If the news accounts are true, the Oswego County District Attorney has no problem either with police separating attorneys from their clients. While on the stand, the investigator testified, “sometimes I even let defense lawyers sit in on my interviews.” Perhaps this officer needs some vacation time so as to catch up on some reruns.

As Judge Hafner well noted, “[t]he presence of counsel during questioning is a right guaranteed by the United States and New York Constitutions. That right should not be regarded as lightly as the evidence at the hearing demonstrated it was during the questioning of the Defendant at the Oswego City Police Station on August 3, 2005. The employment of the exclusionary rule in this case is not only warranted, it is mandated.”

What more needs to be said?