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May 26, 2006

I’m a little more dubious than I was yesterday
Posted by Teresa at 08:20 AM * 81 comments

Update: On the other hand, DNA evidence. (Thank you, Julia.)

(—-)

This morning I find myself with an odd thought about that story I posted yesterday.

Stephen Sakai’s shootings on Tuesday night were loud, gratuitous, public, and heedless, done in the heat of the moment using a big-ass .45. Irving Matos’ murder was quiet and tidy, done with a real economy of method and means. I suspect it was also dispassionate. Matos’ door was unlocked. He was shot from behind while sitting on his sofa, watching TV. That’s not what you do if the other person seems threatening.

One of these things is not like the other.

I don’t know. Maybe it’s legit. Maybe Sakai just up and started boasting about other people he’d killed. Maybe the police have ballistic evidence tieing the three unsolved murders to a gun Sakai owns. On the other hand, there’s this bit in Forbes:

Police also were probing whether Sakai was involved in three other fatal shootings, law enforcement officials said Thursday.

The officials, who spoke on condition of anonymity because the investigation had not been completed, said the suspect made statements implicating himself in those slayings.

One of the victims had worked as a bouncer at a topless bar in Brooklyn, one official said. His body was found Nov. 16 in a basement apartment; he had been shot in the back of the head.

Sakai’s lawyer, Edward D. Wilford, said Thursday police and prosecutors had interrogated his client for 21 hours without allowing him to see a lawyer.

Asked about reports that the bouncer had confessed to several killings, Wilford said, “As far as I’m concerned, it is a false confession.”

Sakai was taken into custody early Wednesday morning after a manhunt, but wasn’t formally charged by police until late at night.

I don’t know anything more than I knew yesterday. I just have a lot more doubts.
Comments on I'm a little more dubious than I was yesterday:
#1 ::: Xopher ::: (view all by) ::: May 26, 2006, 10:48 AM:

And he shot those others with a .45, but Irving Matos with a .22? Where is the .22 in question?

Sounds an awful lot like "get him to confess to all our open cases" to me.

#2 ::: Cassie ::: (view all by) ::: May 26, 2006, 10:50 AM:

Ick.
It stinks. I'm sorry.

#3 ::: Avery ::: (view all by) ::: May 26, 2006, 10:55 AM:

The problem with looking at the different natures of the crimes is that we, the bystanders, can't talk to Sakai and find out what kind of wacko he is.

One assumes he's easy to enrage, but does he internalize that and carry it around with him? Is he the sort who would see killing your neighbor with a .22 as more impressive and on Tuesday he was just winging it?

It's easy to come up with logical naratives, but we aren't in a position to test them.

#4 ::: Greg London ::: (view all by) ::: May 26, 2006, 10:59 AM:

By the time I was finished with jury duty, I wasn't all too interested in looking at yet more of the seedier side of life. But I did a google about the case I was just on and found a newspaper article published the week the murder occurred. (The trial was several years later.) The article was completely clueless, full of baseless conjecture, and forwarding all sorts of conspiracy theories. Crap. crap. crap.

conjecture bad.
doubt good.

#5 ::: Scott H ::: (view all by) ::: May 26, 2006, 11:46 AM:

Question for you lawyer types out there:

I'm sort of curious about the "without allowing him to see a lawyer" part of Teresa's post.

Based on a casual reading of the news, it seems like a substantial portion of the people who go to trial have, at some point during the investigation, confessed to investigators.

My understanding is that during the interrogation process, all a detainee has to do is say "I want to talk to a lawyer," and the interview was over--past that point, any statements they might make are inadmissible at trial.

But it seems like an awful lot of people, for whatever reason, end up having stuff they say used against them in a court of law.

So, what am I missing? Is there some sort of workaround that enables the detectives to continue questioning even after the interviewee asks for a lawyer? Are the detectives so charming that people don't realize they're being interrogated? Is there some sort of exclusion period during which the interviewee isn't entitled to an attorney? Are people just really, really, dumb?

I don't get it.


#6 ::: Greg London ::: (view all by) ::: May 26, 2006, 11:56 AM:

like an awful lot of people, for whatever reason, end up having stuff they say used against them in a court of law.

the jury will probably never hear whatever was said without a lawyer. I believe, the police can use it for investigation purposes, as in where to focus their attention, but if it is objectionable to the defense attorney, and there is any way to suppress it, it will never come out to the jury. Not even in a "didn't you confess to police?" "I object!" cornball way. It would be something that happens between lawyers and judge while the jury is out of the room and if it IS brought up, the defense may call for a mistrial.

#7 ::: Fragano Ledgister ::: (view all by) ::: May 26, 2006, 11:57 AM:

I think it's sensible to have doubts in this case. Something about this story isn't quite right. It may well be that, as Xopher says, all the open cases are being blamed on him.

#8 ::: P J Evans ::: (view all by) ::: May 26, 2006, 12:15 PM:

Are people just really, really, dumb?

Frequently. All of us, at least once.

#9 ::: Greg London ::: (view all by) ::: May 26, 2006, 12:25 PM:

It may well be that, as Xopher says, all the open cases are being blamed on him.

Or maybe he's guilty and some reporters figure they can sell more papers with the bad-cop conspiracy theory story.

that's the problem with conjecture. any friggen thing is possible.

#10 ::: Xopher ::: (view all by) ::: May 26, 2006, 12:39 PM:

Another meaningless conjecture: he killed Irving Matos in a quiet, tidy way because he had the urge to kill someone, but didn't want to get caught; he's spent the intervening time getting progressively crazier, until Tuesday when he went on a rampage with a much more destructive weapon.

Addicted to killing; needs higher doses of adrenalin to feed his bloodthirst.

Just speculation of course. But it's one of many, many possible explanations for why the murder of Irving Matos was so different from the others.

#11 ::: David Dyer-Bennet ::: (view all by) ::: May 26, 2006, 01:06 PM:

Seems likely he's crazy. Crazy people often follow their own logic but it's often not visible to us -- especially if we don't know them well.

So, yeah, the murders don't seem to connect in a logical way that I understand. That's not much evidence that a crazy guy didn't do them all, and no evidence at all that he did.

#12 ::: Fragano Ledgister ::: (view all by) ::: May 26, 2006, 01:13 PM:

Greg London: You're right.

#13 ::: Dave Bell ::: (view all by) ::: May 26, 2006, 01:29 PM:

Two of my great-uncles were police officers, and some of the stories which have come down through the family seem relevant here.

People will confess to crimes they didn't do. Criminals will sometimes willingly allow themselves to be arrested in one jurisdiction, leaving everyone wondering if somebody somewhere else is looking for them.

So there's this guy, apparently caught dead to rights on a murder and other shootings; why shouldn't he boast about others.

No, I'm not going to second-guess the psychiatrists. I'm going to hope that the Police, as my great-uncles did, know things about the other crimes which haven't been published. So if he is boasting, they can find out.

As for the press reports; you trust the press?

#14 ::: Xopher ::: (view all by) ::: May 26, 2006, 01:36 PM:

As for the press reports; you trust the press?

Why yes, I do. As far as I can throw the Iraqi WMDs.

#15 ::: Annie G. ::: (view all by) ::: May 26, 2006, 01:52 PM:

Scott H. asked: So, what am I missing? Is there some sort of workaround that enables the detectives to continue questioning even after the interviewee asks for a lawyer? Are the detectives so charming that people don't realize they're being interrogated? Is there some sort of exclusion period during which the interviewee isn't entitled to an attorney? Are people just really, really, dumb?

In order: I'll get to that in a minute, No, Probably, No, and Yes.

It is true that all that anybody who is in police custody has to say is, "I want a lawyer;" that can be literally the first and only thing that you say to the police and they cannot question you after that. But then you have to shut up completely after that. If you talk to the nice police officers after you have requested a lawyer-- if, while you're hanging out waiting for your attorney to show up, you say something that's incriminating-- you have not been interrogated in the eyes of the law. You have volunteered information, which can then be used against you.

There's also the 'people are dumb' factor, which you pointed out. And, for good or ill, police officers are presumably pretty good at convincing those in their custody to talk to them, sometimes not even in their interest.

(NB: Although I am a lawyer, I am not a criminal lawyer, so if I'm incorrect in some particular, please somebody correct me!)

#16 ::: bonniers ::: (view all by) ::: May 26, 2006, 02:02 PM:

Dave Bell: my neighbor the cop says the same thing. He said that after one high-profile murder a few years back, they had a dozen people in the station the next day confessing.

They weren't all crazy, either. Some of them just want the attention, some of them feel guilty and want to be punished even if it's for something different than what they really did, some of them are afraid they might really have done it in a blackout or something, and on and on.

He says it's very easy to make somebody believe they did something even if they know they didn't. After that I stopped believing torture was even useful, let alone justified.

This guy -- who knows? He sounds nuttier than a fruitcake and probably doesn't even know what he did.

#17 ::: Diana Rowland ::: (view all by) ::: May 26, 2006, 02:03 PM:

I am a police officer/crime scene investigator, and pretty much everything that Annie G said is spot on. However, I do want to add that Miranda rights do not "officially" kick in until the person is detained and being interrogated. There's a lot of wiggle room in there as far as detention and interrogation. If someone is not under arrest and is free to get up and leave at any time--whether he is being questioned or not--he is not being officially detained. Just because he doesn't get up and leave, does't mean he was not free to, and is not the fault of the police. And, like Annie said, if the suspect talks on his own, that is not an interrogation. Voluntary statements are certainly admissable.

That being said, physical evidence is far far more desirable, e.g. baliistics, fingerprints, gunshot residue, blood spatter, fiber transer. Confessions, lineups, and eyewitness identifications are notoriously crappy and inaccurate.

#18 ::: rhandir ::: (view all by) ::: May 26, 2006, 02:05 PM:

Scott H asked
Based on a casual reading of the news, it seems like a substantial portion of the people who go to trial have, at some point during the investigation, confessed to investigators.
Yes.
...
But it seems like an awful lot of people, for whatever reason, end up having stuff they say used against them in a court of law.
So, what am I missing? ... Are people just really, really, dumb?
Yes, as others have said.

Two things:
1. People feel a need to tell their side of the story, to justify their actions. Watch little kids after a fight sometime. They'll spontaneously tell it their way. I'm not sure why, but it seems like a compulsion. The writers on here could tell you lots about being internally compelled to tell stories.

2. People feel a need to cooperate with authority, even when it isn't in their (or other's best interests.) See Milgram, et. al.

Here's a sideways example of #2: The Detroit City Comic-Con was raided by the local cops in cooperation with the RIAA looking for pirated DVDs. One of the dealers tells his story on ICV2 as follows:(via)

As always, I found that complete cooperation with the police paid off. The police said they would have to open up every DVD I had on the table, to insure none were pirated discs -- I said go ahead. They said they would need to inspect my vehicle in the lot. I informed them we had two vehicles in the lot, one we drove up as the big carrier, and one for driving back and forth to the hotel and that they had my permission to inspect both. Satisfied, they didn't open one DVD, and didn't inspect either vehicle.
People who cooperate sometimes gain from the transaction.

Some months ago, I listened to a DA and an FBI agent talk on NPR about crimes and confessions, and the upshot was that almost everyone who does get convicted gets convicted because they blab - that even slam-dunk physical evidence cases aren't necessarily convictable unless someone confesses. E.g. OJ.

Nor does a conviction based on a confession mean what we think it means - the kids who were convicted for attacking the Central Park Jogger were pressured to turn one another in, and so they did, and recanted. This meant the actual killer got away.

The closing advice from the FBI guy was that if never talk without a lawyer present, and never confess to anything you will never be put in jail.

-r.
I am not a lawyer. I am not your lawyer. This is not legal advice. Results may vary for non-U.S. citizens and locations where the Constitution is not valid.

#19 ::: Xopher ::: (view all by) ::: May 26, 2006, 02:12 PM:

rhandir...the CP jogger was not killed. In fact I think she's still alive.

And as for "locations where the Constitution is not valid" apparently that includes Washington, DC!

#20 ::: Annie G. ::: (view all by) ::: May 26, 2006, 02:54 PM:

Thank you, Diana, for clarifying the custodial aspect of the interrogation; that's an important part and I shouldn't have skipped over it.

and rhandir, can I steal your disclaimer?

#21 ::: Scott H ::: (view all by) ::: May 26, 2006, 03:18 PM:

Annie G / Diana Rowland / rhandir / Greg London

Thanks to all of you--I often wondered about that.

#22 ::: Terry Karney ::: (view all by) ::: May 26, 2006, 04:02 PM:

I m ust confess I had some reservations about those aspects of things.

I can speak to some of the apparent contradictions.

It seems, from the events described in the public shooting that Sakai carried a "cachét weapon (at the risk of sidelining the conversation to neepery on guns, I think .45 ACP is a fine round, but overrated. For the way in which Sakai used it, it's great, but it's not the uber-powerful, one-size fits all weapons its afficianados believe), and for the situation in which he used it (public, visible, and needing solid impact) it was pretty good for the job (from a purely results driven outcome, one dead, two in critical condition and one severely injured, even though his foot wound isn't life-threatening; all of that from one shot to each of them).

If we accept, prima facie, that he is willing to tailor his equipment to the needs of the moment, a .22 at close range is just the thing (there are reasons the mob prefers that caliber for executions). Quiet, not messy, and a lot easier to conceal.

On the other hand, give me someone for 24 hours, and I can pretty much get them to confess to anything I want them to confess.

A few leading questions, a hint of other possible crimes, some way to connect him to the victims (no matter how tenous) and there's a couple more cases cleared, and a more solid case against him (no way to plead temp. insanty, crime of passion, or fear of his life to a trio of disaparate killings, aparently in cold blood) and "everybody " wins.

Esp. the reap perp, if he didn't do it.

#23 ::: David Dyer-Bennet ::: (view all by) ::: May 26, 2006, 04:05 PM:

On the subject of the interaction between police and suspects -- one of the amusing aspects of teaching civilian handgun carry permit classes (which I'm not doing any more, but did for a few years) is that I get to explain to a bunch of straight white guys from the suburbs just how important it is that they *not* regard the police as their friends if they ever shoot anybody (or expose their weapon at all). Chapter and verse, with chorus and grace notes. Important things their mother would have taught them -- if they hadn't been born pigmentally challenged.

"I need to speak to my attorney, and I do not consent to any search." I tell them it's their mantra (stolen from Joel Rosenberg).

#24 ::: Teresa Nielsen Hayden ::: (view all by) ::: May 26, 2006, 04:09 PM:

I was hoping people would pop up who know about this stuff.

As I understand it, one of the ways people get themselves into trouble is not realizing they're a suspect in a case. They tell the police everything they know.

A while back, on one of the Sunday-afternoon forensic pathology shows, they did a segment on a murder in the Norfolk area. Three different guys confessed and are serving time, even though only one person could have done it. From what the show was saying, it seemed likely that a fourth person was actually the killer. I concluded that the Norfolk police are far too good at conducting productive interrogations.

#25 ::: julia ::: (view all by) ::: May 26, 2006, 04:10 PM:

fwiw, they say they have DNA evidence

#26 ::: Teresa Nielsen Hayden ::: (view all by) ::: May 26, 2006, 04:34 PM:

Thank you, Julia. I feel much better about DNA evidence than about incriminating statements made in the course of a 21-hour interrogation.

#27 ::: Terry Karney ::: (view all by) ::: May 26, 2006, 04:46 PM:

David Dyer-Bennet: I learned the hard way that the police are not only not one's friends, but are to be treated as inimical to one's liberty, at all times.

The only answer to any question they ask is often, "I'll talk to you as soon as my lawyer gets here."

If they try to imply that if I didn't do anything there's no need for a lawyer, the only response is "I'll talk to you when my lawyer gets here."

If they don't suspect you of anything, you have nothing to lose. If they do, you have everything to lose.

I've taught all sorts of people how to avoid giving up anything in an interrogation (military, POW). In response to any question you are not obliged to answer (of which there are four, name, rank, DOB, and service number) the only answer one gives is, "I cannot answer that question."

It doesn't matter what the question is, be it military, or personal. "Would you like a cup of coffee?", gets the same answer as, "What was your mission when you were captured?"

"I'll answer all your questions when my lawyer is present," is the equivalent when dealing with the police. Cops have an agenda, and if it looks like you might be good for the crime, you often move to the top, and become the focus of the ivestigation.

#28 ::: Greg London ::: (view all by) ::: May 26, 2006, 05:10 PM:

objective evidence is good.
usually a lot harder to come by than they make out on the TV shows.

#29 ::: Ty Johnston ::: (view all by) ::: May 26, 2006, 05:29 PM:

Unfortunately, many folks aren't aware of their rights, especially concerning the police and attorneys.
I've known more than one defense attorney who has told me to never allow a police officer to search your vehicle, yourself or your home without a warrant. Even if they threaten to get the warrant, make them do it. Even if you have nothing to hide and have done nothing unlawful, make them get the warrant. More than likely they won't unless they think they've really got a suspect in you.
But I'm in Ohio. Things could be different in NYC and elsewhere, but I doubt it.

#30 ::: rhandir ::: (view all by) ::: May 26, 2006, 05:32 PM:

Annie G,
Feel free to steal the disclaimer. I stole something similar from Slashdot to make it.

Xopher,
you're right, I posted in haste. Ooops. I've had a nap now, I'm much better.

Further, post-nap speculation:
The scenarios where saying nothing vs. saying something/cooperating are advantageous match up with the difference standards of proof in civil vs. criminal law. Criminal law=guilty beyond a reasonable doubt. Civil law=preponderance of evidence.

If you are suspect in a crime it doesn't make sense to say anything that might push the amount of evidence (fabricated, circumstantial or real) against you past that high threshold of "beyond a reasonable doubt."

If you are a retailer pushing questionable merchandise (see above), you are in a Civil Law situation - not saying anything isn't going to reduce the preponderance of the evidence against you if they find anything else. Otoh, if you are nice and cooperative, you might reduce the number/kinds of charges against you, and even avoid criminal charges like "resisting arrest". Check out the rest of that comic book dealer's description of the raid for what that looked like. Besides, all you have to lose is all your money vs. your freedom. It's your call. [Call your lawyer first, though. That's what cell phones are. Oh, and aparently apologies are bad. Who would have thunk it.]

-r.
I am not a lawyer. I am not your lawyer. This is not legal advice. Results may vary for non-U.S. citizens, naturalized citizens, and locations where the Constitution is not valid.

#31 ::: Kathryn from Sunnyvale ::: (view all by) ::: May 26, 2006, 05:35 PM:

Terry- agreed.

If you're being questioned downtown, then you're a suspect.

If you're a suspect, then the police have invested psychological time and real reputation into the concept that you're a suspect.

If the police are invested in the concept that you're a suspect, then more of their time and energy will go into showing they're right.

If the police are trying to prove they're right about you, then anything you say will be used by them to prove you're the right suspect.

Therefore, don't say anything if you're innocent but a suspect.

#32 ::: James D. Macdonald ::: (view all by) ::: May 26, 2006, 06:19 PM:

It's interesting that DNA is now while-you-wait, rather than taking months to get a result back.

#33 ::: Terry Karney ::: (view all by) ::: May 26, 2006, 07:23 PM:

Kathryn: I don't care if I'm downtown. If they are questioning me, I might become a suspect, at which point all that stuff which seemed harmless to me becomes "voluntary admission."

The only thing insisting on a lawyer does is make them more suspicious. If I've not done anything then seeing to it they don't lead me down a garden path to the hoosegow is in my best interest.

It's also in the system's best interest.

The best/worst thing about being an interrogator is I know how easy it is to get information from someone. The risk (and why I have to be adamant in not talking without a lawyer) is that I may try to play games and not give anything up, and they may see that as me toying with them because I'm guilty. If I merely seem like a guy who's paranoid about the ability of the police to screw up my life (which is basically the case) then so what? The lawyer gets there, we talk, they decide there's nothing more than my being a nutjob, and they go back to looking for the real perp.

Oh yeah, never take drink, or insist on a straw and keep it.

#34 ::: Kathryn from Sunnyvale ::: (view all by) ::: May 26, 2006, 07:46 PM:

Terry- agreed.

I was fleshing out one reason why a person ought to consider not talking to police without a lawyer.

Years ago I worked for a forensics researcher. From that I saw how easily an innocent person's activities can be made to look suspicious.

Motor oil? Could be making a fuel oil device.

Matches, bbq equipment? Ninja costume? Multiple online personas? All can look really bad, once you're a suspect.

Or, say a person decides to be nice and talkative because they know they're innocent and they think they can prove it themselves, sans lawyer. This also can go very wrong, very quickly.

For example, their alibi is really good, and they're willing to prove it, so they prove everywhere they've been between 5am to 2am the next day. And the questioner knows the crime happened at 5:30am, plus or minus a half hour.

If the questioner mentally commits to thinking of the innocent person as a suspect, then how hard is it to either 1. weaken the 5am alabi just by a little bit or 2. push the crime-time back by just a little bit? Not very hard.

#35 ::: Kate Nepveu ::: (view all by) ::: May 26, 2006, 08:09 PM:

I don't practice criminal law, but I did take a class in law school called "Convicting the Innocent."

All me to nth the advice that you never, ever, ever talk to the police without an attorney. Ever.

The end. Seriously.

#36 ::: Terry Karney ::: (view all by) ::: May 26, 2006, 08:24 PM:

Kate and Kathryn: If I'd had any doubts about the wisdom of not talking to the police, the book, "Mean Justice" about Bakersfield, Calif., in particular, and Kern County in general would have been enough to correct it.

Even good cops, with no fell intent, are not your friends, bent ones are a nightmare. Crooked ones are in another league altogether.

Add the DA's interest in convictions, and there can be holy hell to pay for the least inference of guilt.

#37 ::: Teresa Nielsen Hayden ::: (view all by) ::: May 26, 2006, 09:17 PM:

Funny, I just gave the quick "what to do if the police question you" tutorial to a young reporter; also a couple of other useful survival tips, plus directions on how to find Wayback. Oh, and I told her that DNA tests can now be done while you wait. Nice kid.

As you can probably guess, I'm continuing to get reporters at the door. Should be interesting to see what turns up. If anyone says I volunteered information about Irving Matos beyond gardening and neighborhood history, they're fibbing.

#38 ::: CHip ::: (view all by) ::: May 26, 2006, 10:39 PM:

Anyone doubts the mantra "say nothing to the police" should consider Martha Stewart; every story I've seen said she was stupider than the dumbest street perp for the amount she said to investigators, and probably talked herself into a conviction

#39 ::: Madeline F ::: (view all by) ::: May 26, 2006, 10:49 PM:

I don't know about how they do it at forensics labs, but I do DNA extraction and testing to genotype mice...

The steps are:
1. Extract the DNA from the cells. For cells found in the saliva I'm guessing that takes about half an hour from cup to DNA.
2. Set up a few PCR reactions to amplify different regions of the genome. This would take roughly 15 minutes.
3. Cook for about an hour and a half. It might be less, depending on how short the sequences are that they're amplifying.
4. Run the results out on a gel to separate the bands. That might take an hour and a quarter, though it might take longer, too, since I don't imagine humans have greatly different sizes of their variable points.
5. Enter the data into the database to find matches.

So I'd guess 4 hours from cup to results. But then again, they probably have a machine to do it to cut down on variability and error, which would cut out a lot of the prep time, so perhaps 3-3.5 hours?

In California you can't have your DNA collected unless you're arrested for a felony or donate it... I suppose if you were just a person of interest they might save the cup from your interrogation and only extract the DNA when you were arrested, but that seems unlikely, since they could just get fresh DNA at the arrest. Still, maybe leaving them a cup is volunteering the DNA.

#40 ::: James D. Macdonald ::: (view all by) ::: May 27, 2006, 12:19 AM:

The Green River Killer, Gary Ridgway, was nailed by DNA, a technology that didn't even exist when the police got his saliva sample. (He was one of three suspects the cops got search warrants for back in the early eighties. They got a saliva sample to see if he was a secretor (that is, if his blood type could be determined from his bodily fluids).

Years pass.

DNA testing becomes available.

His saliva sample is checked for DNA, and various samples saved from some of the Green River victims turn out to have the same DNA on them. Bingo. He pleads guilty, and leads the cops to more skeletons. (No doubt about him being the right guy.)

#41 ::: Sandy B. ::: (view all by) ::: May 27, 2006, 01:20 AM:

Oh yeah, never take drink, or insist on a straw and keep it.

Is this a "DNA" thing? Or a "make sure you can prove what was in that cup" thing?

#42 ::: Greg London ::: (view all by) ::: May 27, 2006, 01:23 AM:

Anyone doubts the mantra "say nothing to the police" should consider Martha Stewart

Martha Stewart was guilty.

and what I doubt is the immediate conjectures that say maybe the guy is innnocent and the police are lazy and just want to pin their open cases on someone, or that the police will be emotionally invested in proving you're the guilty one and so will overlook actually getting the right guy.

I'm not saying there are no bad cops, but if every cop is bad, then, well, you're paranoid delusional.

I don't mind the advice "don't talk without a lawyer" on the reasoning that "the cop you're talking to may be a bad cop", but to say "don't talk without a lawyer because every cop is simply looking to pin the crime on the nearest patsy" is simply horseshit.

Yeah, I get nobody's saying "all cops are bad", but a lot of people are being imprecise in what they're not saying, either.

#43 ::: Dave Bell ::: (view all by) ::: May 27, 2006, 03:15 AM:

The DNA-on-a-cup business sounds like an update on the fingerprints-on-a-glass trick, which I'm sure I've seen mentioned recently.

What is worth remembering is that Sakai is already a very strong suspect for one shooting. So why do they need to be sneaky about getting a DNA sample?

Legal differences? Here in the UK they wouldn't have a problem; it's possibly too easy for the Police here. But even if they have to wait until some formality is completed, what's the hurry?

#44 ::: Kathryn from Sunnyvale ::: (view all by) ::: May 27, 2006, 03:29 AM:

Greg-

(Without going into too much explanation, because its late)

The reasons I'm giving for 'not talking if there's any chance you're a suspect' are entirely orthogonal to whether or not a cop is a good cop. Of course most cops are good cops, are hard-working, and all that. Irrelevant to whether or not even the most lightly suspected person ought to talk to them without a lawyer.

#45 ::: Paul A. ::: (view all by) ::: May 27, 2006, 03:55 AM:

fwiw, they say they have DNA evidence

But not for this murder in particular, unless I missed something in the linked article. For that matter, it appears to say that he specifically denied being the man who killed Irving Matos.

#46 ::: James D. Macdonald ::: (view all by) ::: May 27, 2006, 07:12 AM:

...it appears to say that he specifically denied being the man who killed Irving Matos.

If I'm reading it right ... there were two guys there, and each of them is claiming that the other one was the actual killer.

#47 ::: Scott H ::: (view all by) ::: May 27, 2006, 10:48 AM:

OK, I've got to ask: Diana Rowland, what's your take on the talk-v.-no-talk debate?

Let's say that some private citizen with no previous criminal record becomes a person of interest in a fairly serious criminal case. Let's further say that this person is completely innocent, but doesn't have much of an alibi. They were home alone, watching TV.

Are there some circumstances under which the person might do himself some good by talking to you the investigator, or are the chances of clearing his name so remote that it's more or less always a bad idea to talk?

#48 ::: Rebecca ::: (view all by) ::: May 27, 2006, 12:49 PM:

In biology, we got cheek cell DNA by swabbing our mouths with a qtip. Hard to believe that there wouldn't be some of that transferred to the dregs of a cup. I think it'd be safer not to have a drink at all, straw or no.

#49 ::: tavella ::: (view all by) ::: May 27, 2006, 01:30 PM:

Scott, it's my understanding that you may occasionally wish to speak with the police to try to de-suspectify yourself, but you always,always do it with your lawyer present.

#50 ::: Terry Karney ::: (view all by) ::: May 27, 2006, 02:19 PM:

Greg: Even the best of cops will make assumptions.

Even the most innocent of people will make mistakes.

Do I think all cops are out and out bad? No. I do think the vast majority of them see the world in terms which make the relationship between them and the public primarily adversarial. (NB, My dad is a deputy sherrif in Tenn., my unit has a large number of cops, both local (city and county) as well as federal (mostly DEA, but some Border Patrol).

The simple fact of the matter is one prepares for what the enemy can do, not what he will do, and assuming the cop is willing to make a snap decision and then find the facts to support it is a safer way to deal with them than to trust that they will bend over backwards to clear you once they have decided to suspect you.

The vast majority of people (from both my conversations and the polls, over years, which I have read) think that being arrested puts the burden of proof on the accused.

They watch shows like NYPD Blue, where the right guy is gotten all the time. They see Law and Order and believe that all prosecutors are after the truth. They see Forensic Files and think all technology is easy, and foolproof.

They also believe cops, who have an advantage at trial, because they, unlike most people; which includes the defendant, have not only been trained to testify, they have lots of practice.

The state has a lot of money it can spend; it has lawyers who are paid just to put people away, and those lawyers are biased by the information the cops give them.

Most people can't afford a lawyer good enough to go head to head with the state (how many millions were spent on the trials of "statanic cult" child molesters, a la McMartin? How many of the dozens of such trials resulted in acquittal? Not all, because there are at least four people from Calif. who are still behind bars because of their convictions, on evidence no better than that of McMartin.).

We have an adversarial system. I prefer to see a cop who might think me guilty of a crime as an adversary.

If that makes a paranoid delusional, so be it, but I am, empirically, of the opinion that such an attitude is safer than not.

I was arrested once, for something which happened when I wasn't home. Had I been willing to speak to the police (more than to answer the door and have the "eyewitness" point the finger at me) I might have spent 7-15 years in prison.

Do I think those cops were "bad?" No. Do I think I could have talked myself into a world of hurt? Yep.

#51 ::: Robert L ::: (view all by) ::: May 27, 2006, 09:46 PM:

Coincidence or conspiracy? You be the judge:

http://www.nypost.com/news/regionalnews/69241.htm


BOUNCER IS OFF THE WALL

CLUB 'KILLER' IS CRAZY FOR CHAUCER, KUNG FU

...At first, Sakai, 30, appeared normal, but the longer the 40-minute interview went on, the more he grew deceptively unhinged.

The 5-foot-11, 180-pound he-man claims to be a student of philosophy - particularly Taoism - and loves Chaucer's "The Canterbury Tales," but admitted dropping out of high school.

"Um, Ms. Nielsen Hayden, just a few questions, strictly routine...Um, I understand that when you're under the influence, you claim to write like this, uh, Chaucer guy? But you claim you've never met Mr. Sakai? Uh, you can account for your whereabouts the night of the murder, I'm sure...?"

#52 ::: Diana Rowland ::: (view all by) ::: May 27, 2006, 10:47 PM:

Diana Rowland, what's your take on the talk-v.-no-talk debate?

Weeeellllll.... I remember when I first joined the force, one of the older guys on my team told me, "If you ever get called to IA just remember: Admit Nothing. Deny Everything. Demand Proof."

If you are actually guilty of a crime, the above advice is actually pretty darn good. While it might not be possible to get a conviction based solely on an incriminating statement, interviews and statements are powerful evidence that can lead investigators to areas where actual physical evidence can be obtained, or at the very least will provide enough probable cause to allow the investigator to get the warrants he needs to find that physical evidence.

If you're NOT guilty of a crime... well, unfortunately, being closed-mouthed and uncooperative will cast you in an unfavorable light. But. That being said, if it appears that you might be under true suspicion of a crime, you're really a flipping idiot if you talk to the police without a lawyer. You're a flipping idiot if you consent to a search, any search, without consulting with your lawyer first. This doesn't mean that you should never talk to the police. I'm just saying you need to take advantage of the rights that are yours under our constitution, get solid advice from a good lawyer on what to say, know your rights, and use lots of common sense.

If you don't know your rights, then you don't have any, and you have no one to blame but yourself.


Also, in response to a different post: Not every jurisdiction has access to same-day DNA results (despite what that stupid CSI show depicts.) For us, it usually takes several weeks to get results back. Also, if the police want a DNA sample from you, they just have to get enough probable cause for a warrant to get a buccal swab (inside of the cheek.) I would have an extremely hard time believing that a sample obtained from a used glass would be at all admissable in court since I don't see how chain of custody could be verified. When we collect buccal swabs it is documented and tracked, with no doubt about from whom the sample was obtained.

#53 ::: Dave Bell ::: (view all by) ::: May 28, 2006, 05:53 AM:

Robert L, what you quote just goes to show how a newspaper report can latch on to something unusual, and spin it into something strange and somehow sinister.

I would be surprised if Sakai was exposed to Chaucer or Taoism at High School, whether he "dropped out" or not. People have strange hobbies. And, from the outside, every hobby can seem strange.

From here. it looks like a "this guy is not like us" report. Look at how many high-profile killings have provoked panics based on some "not-like-us" feature of the killer. Look at what wearing black, being a teenager, and listening to the "wrong" music led to after Columbine.

#54 ::: P J Evans ::: (view all by) ::: May 28, 2006, 12:09 PM:

Well, I was exposed to Chaucer in high school. I'll admit it was senior English (English Lit), but it possible could have been earlier.

#55 ::: Lucy Huntzinger ::: (view all by) ::: May 28, 2006, 02:35 PM:

But I don't have a lawyer! I mean, how many people do? Does saying, "Not without my lawyer" really mean "appoint one and we'll talk?"

#56 ::: Larry Brennan ::: (view all by) ::: May 28, 2006, 03:08 PM:

Lucy - Most people don't have lawyers. Really, the only thing you should ever say to a cop who gets in your face is, "Am I free to go?" If they say no, you probably will need to find a lawyer, or have someone find one for you.

This no-extra-speech rule applies to accident reports as well. About five years ago, I got rear-ended and pushed into the car in front of me. A CHP officer spent 30 minutes haranguing me, trying to get me to say something that would let him ascribe some of the blame to me. I think I said, "I've already given you my statement." about 20 times.

#57 ::: Larry Brennan ::: (view all by) ::: May 28, 2006, 03:11 PM:

Oh, and the way to find a lawyer is to either follow the guidance of the local Bar association, or get a savvy, trusted person to help you find one. I hope never to need a criminal attorney, but I know the first people I'd contact to help me find one.

#58 ::: Clifton Royston ::: (view all by) ::: May 28, 2006, 04:33 PM:

Plug: The ACLU gives out cards with "What to do if you are questioned or arrested", drafted by scholars and experienced defense lawyers. Terry has it exactly right.

"The innocent have nothing to fear" is wrong. Lots of innocent people have been convicted of major crimes on bad evidence, and probably far more have been convicted of things that were not what the police were looking for when they began questioning or made a search. It may be no consolation that you were cleared of theft or murder, if you end up convicted of possession due to that bag you forgot in the back of your bedroom dresser.

If you don't already know the stuff that Terry is telling you, contact your local ACLU and ask for one of those cards. (A donation to the ACLU would not be amiss either.)

Important magic phrases include: "Am I under arrest?" "Then am I free to go?" "I want to speak to a lawyer." And, "I do not consent to a search."

If you have excellent social skills, you can do this while smiling regretfully at the policeman, and letting them know "I'd really like to help you, but..." If not, it's better to seem uncooperative than to seem eager but guilty.

#59 ::: P J Evans ::: (view all by) ::: May 28, 2006, 05:18 PM:

There are a surprising number of people who figure that being arrested means that you're guilty, because you wouldn't have been arrested if you hadn't been doing something wrong. Your friends and family will hear from them. They'll turn up on a jury, if it gets that far.

If you don't know a lawyer, have a friend who does.

#60 ::: Terry Karney ::: (view all by) ::: May 29, 2006, 02:01 AM:

Lucy Huntzinger: Does saying, "Not without my lawyer" really mean "appoint one and we'll talk?"

No, what it means is, if you aren't willing to charge me, you don't get anything.

I happen to have a lawyer, but it's a quirk of circumstance, more than something I sought out. If you want, you can probably find one, and give him a nominal retainer (50-100 bucks will probably do), and; push come to shove, call him and it will cost you a touch more, but if it comes to that, the money will be more than well spent.

On the prosaic note, if they don't have enough to charge you, then you can bluff/bluster your way out of the immediate hassle by standing on your rights. That is the safest course.

#61 ::: Kevin Riggle ::: (view all by) ::: May 29, 2006, 06:12 PM:

So, if a person says "Not without my lawyer", are they going to need to have a quick response to "Okay, call him/her up"? What's the best course of action if you don't already have a lawyer on retainer?

#62 ::: Terry Karney ::: (view all by) ::: May 30, 2006, 01:10 AM:

Kevin Riggle: If you aren't being charged, you leave. Make an appointment to come back with a lawyer at a later date.

If you are being charged, then you get a PD, or arrange to hire a defense att'y.

#63 ::: Randolph Fritz ::: (view all by) ::: May 30, 2006, 02:10 AM:

By the way, you can download [PDF] the ACLU bust card.

#64 ::: Diana Rowland ::: (view all by) ::: May 30, 2006, 10:22 AM:

Oh, yikes... If you can at all avoid it, do NOT use a public defender. Mortgage your children if you have to, but hire a lawyer if you are in real threat of going to jail. Even a cheap crappy lawyer is often better than an overworked, underpaid, uninspired, burned-out public defender. I'm not saying all PDs are bad lawyers, but they ARE hideously overworked. To put it into perspective, before Katrina there were ~30 lawyers in the Indigent Defenders Office in New Orleans. At present there are ~7. For the whole city.

And yes, most people don't have a lawyer on retainer, but all you really need is the business card of one in your wallet so that if you ever do get into a jam, you at least know who to call.

#65 ::: Wim L ::: (view all by) ::: May 31, 2006, 01:07 AM:

There are a surprising number of people who figure that being arrested means that you're guilty

I'm annoyed by the way that cop shows seem to have taken to calling all the possibly-suspicious characters "perps" right out of the gate, regardless of evidence or situation.

#66 ::: Terry Karney ::: (view all by) ::: May 31, 2006, 02:19 PM:

Wim L: But that mindset is rife among cops. Hard to see otherwise. They have to believe they only catch the guilty, because to do otherwise is to go to court and try to put innocent people in jail.

Tangiental story (and part of why Idon't trust cops as much as I used to): I had a student (Interrogation) about six years ago. He was a cop (LA County Sheriff). His ideas of what ought to be a valid search were scary enough, if a cop wanted to search it, that defined probably cause. When I talked to him about it his argument boiled down to, "Innoncent people have nothing to fear, and putting the guilty away is good for everyone, so it's a small price to pay."

That was bad enough. It was the statement that, "We have to lock up some innocent people because so many guilty ones go free," which really bothered me.

Not an acceptance that the system isn't perfect and that some innoncents do get wrongly convicted, but rather that convicting innocents is a positive good. I fail to see how locking up the innocent because guilty people are getting away with things benefits society, but hey I'm a member of the "lunatic Left," so what do I know.

I don't think all cops think like this, but if the one who sees me as a "perp" is the one I'm dealing with, thinking of him as am impartial seeker of truth is gonna get me screwed.

No, btw, he didn't pass the course.

#67 ::: Xopher ::: (view all by) ::: May 31, 2006, 02:38 PM:

Glad he didn't pass. Oy.

Am I the only one who feels that cop shows (with the occasional exception in the form of a Very Special Episode) are designed to promote the idea that the cops generally get it right? This is far from the case in reality, of course...and convicting the wrong person means the right person goes free (it being almost impossible to convict two people of the same (one person) crime).

#68 ::: bryan ::: (view all by) ::: May 31, 2006, 04:00 PM:

"Am I the only one who feels that cop shows (with the occasional exception in the form of a Very Special Episode) are designed to promote the idea that the cops generally get it right?"

what is the meaning of "generally" in that sentence, a percentage would be helpful.

#69 ::: Xopher ::: (view all by) ::: May 31, 2006, 04:04 PM:

That it's weird and unexpected when they're wrong. That if they "like" someone for it, they're almost certainly the real perp.

#70 ::: roundy ::: (view all by) ::: May 31, 2006, 05:09 PM:

"Am I the only one who feels that cop shows (with the occasional exception in the form of a Very Special Episode) are designed to promote the idea that the cops generally get it right?"

On CSI, that's true, but I think it's a function of timing. They spend the first half-hour finding the suspect, then the second half proving how he/she did it. Not enough time to nab the wrong guy and still resolve the case by the end of the episode.

That's true for the original "Law & Order" too, which splits the time evenly between the cops and the lawyers. But on L&O:SVU, which generally spends more time on the investigation than it does in the courtroom, the formula usually requires their first suspect to be cleared, and only the second (or sometimes third) suspect will be the guilty one.

Of course, the conviction rate on L&O is awfully low, which reinforces the mindset that police always get it right, but are foiled by those pesky Constitutional protections.

#71 ::: Harry Connolly ::: (view all by) ::: May 31, 2006, 05:17 PM:

That it's weird and unexpected when they're wrong. That if they "like" someone for it, they're almost certainly the real perp.

Actually, in most of the shows I watch, the cops "like" the wrong person for most of the first two acts.

#72 ::: Kevin J. Maroney ::: (view all by) ::: May 31, 2006, 10:24 PM:

The New York Tabloid had a big article about the strip club at the center of the case on page 1 of the Metro section today.

#73 ::: Xopher ::: (view all by) ::: May 31, 2006, 10:39 PM:

Harry, those sound like my kinda shows. Which ones are they?

But...they still get it right eventually. Hmm. I need to think about this.

#74 ::: Diana Rowland ::: (view all by) ::: June 01, 2006, 12:15 PM:

But...they still get it right eventually. Hmm. I need to think about this.

Ummm... maybe because it's a fictional show?? Most "cop" shows are in essence mysteries, and if they didn't eventually get it right and find the bad guy by the end of the hour, the viewing audience would probably be mighty disappointed. Personally, I can't stand watching most crime/cop shows (especially that gawdawful CSI), but I do read the occasional mystery and pretty much all of them have the cops catch the bad guy by the last page. Go figure.

Terry--It's unfortunate that you had such an unpleasant experience with this particular cop, but I would like to defend the vast majority of police officers by stating that any cop who's worth a crap is going to know his constitutional law backwards, forwards and sideways, because when it comes right down to it you won't keep your job if you keep having your cases throw out due to probable cause errors, or at the very least you'll lose all credibility in court. And, trust me, the vast majority of cops do NOT want innocent people to go to jail. Pretty much everyone I work with or know in police work believes that it's far better for a guilty person to walk free than to send an innocent party to jail.

#75 ::: Terry Karney ::: (view all by) ::: June 01, 2006, 07:04 PM:

Diana: I wish it were just the one. This one was egregious (and I know that most are trying to do a good, and fair job) but the idea that the world is divided into three categories (cops, perps and people who haven't become perps) is all too common in my experience.

The LASD has a terrible history of doing things which violate the 4th amendment. In the nineties they had to pay out millions of dollars on dozens of suits about warrants wrongly obtained, or wrongly served.

I'm not so certain about the loss of credibility in court, as the State has a huge advantage, and people are trained to trust cops. Cops look good on the stand, and the accused rarely does (and if he does that just shows he was coached, or lying, because if he was innocent he'd be nervous. If he's nervous, it's because no one can lie smoothly). That the accused need not take the stand doesn't mean the jury doesn't hold that against them.

Don't get me wrong, I think the system we have is about as good as it gets. My recent experience with being called (but not empanelled) has only strengthened that belief.

But I also think we need to make it more plain, somehow, that the State has to prove guilt, and that the police have to be sanctioned for playing at all fast and loose.

Honestly, if cops were held to account, things would be better.

But how do we measure bad faith? Right now (with Alito on the bench) it pretty much takes a confession that the cop knew the accused wasn't guilty, and went ahead anyway.

#76 ::: Clark E Myers ::: (view all by) ::: June 01, 2006, 07:42 PM:

Law enforcement typically meets community standards. FREX according to published reports Ramparts Division operated in a community that wanted the peace kept even at the price of Constitutional violations and that's what they got.

My stopped car with an out of state plate was hit in Chicago a long time ago and the responding officer tried hard to find something he might charge me with IMHO in the process of soliciting a bribe. As it happened I had my witnesses lined up before he got to the scene and it worked out OK. Chicago of course is not part of the United States for purposes of law enforcement. I know a man who was hit by a city inspector for no tax stamps on the vending machines in his break room - gave the inspector a bottle of booze and called the vending company - discovered the machines were fully tax stamped and perfectly legal and the inspector knew it.

I know a - long retired - officer who long ago had a job in Wallace Idaho - he stopped erratic drivers and wandering or loitering males and asked them if they needed directions to the local sporting attractions and escorted them to the action never to the lockup - the community gets what the community wants.

Same officer got tired of a woman who never followed up on her complaints of abuse - the officer carefully picked a chrome plated GI .45 that had little value and would survive in the evidence locker and walked in on the next beating - pointed the chrome plated .45 between the man's eyes and did his best Jack Benny - now cut that out - imitation. Officer and batterer both knew the officer would as soon shoot as not but this time he didn't. The next time would be suicide by Cop. Excessive force? Not by the standards of that time and place.

In my experience generally prosecutors have been much more concerned with rights and shown a better sense of discretion generally. I dealt with a prosecutor who would repeatedly suggest defense attornies make an issue of any officer imperfections to the point of highlighting it in disclosure.

Just as I learned long ago when pulled over driving to hop out of the car and walk back to meet the officer and have since learned to stay in the car and turn on the overhead light and keep both my hands on top of the steering wheel even if I know it's just a courtesy stop for a bad bulb so too I have learned that society today is one where each of us is wiser not to volunteer anything. Of course it's nicer to live in a small town where the response to being pulled over speeding is to jump out of the car and say: Hi Pete, it's a gotcha - (can we make it an energy law violation)?

#77 ::: Marilee ::: (view all by) ::: June 01, 2006, 08:40 PM:

The WashPost reported today that a Wizards player was arrested in Miami Beach because he got out of his limo. They asked him if he had tattoos (3) and what his street name was (he laughed and said Zero Hero because his number is 0) and arrested him. He was going out to dinner.

#78 ::: CHip ::: (view all by) ::: June 01, 2006, 10:57 PM:

Marilee -- call me a regionalist if you must, but that doesn't much surprise me in Miami. When it happened in a liberal Boston suburb, then I was surprised. (There was "probable cause" -- a bank robbery -- but the cops jumped a Celtics player who was about a foot taller than the reported robber.) On subsequent thought, I shouldn't have been surprised; other stories out of Wellesley suggest they talk liberal but like an orderly town.

#79 ::: Paul A. ::: (view all by) ::: June 04, 2006, 08:58 AM:

Xopher: I can think of a recent TV miniseries (British, of course, not American) which starts off murder-mystery shaped but ends in such a way that, although the audience are given all the answers, the policeman never finds out who did it, and in fact remains convinced - incorrectly - that his favourite suspect was the one.

(Having said that much, I am uncertain whether to say which series it was. Would it be considered a spoiler?)

#80 ::: Vicki ::: (view all by) ::: June 04, 2006, 10:34 AM:

Yes, the public defenders are overworked. But if you don't already have a lawyer to call, they can be there when you say "I'm not answering any questions until my lawyer gets here" and won't mind if you call a private lawyer afterwards.

Some years ago, I remember reading that the Bronx DA and the police considered criminal cases in that county tricky because it was one of the few places where juries wouldn't automatically believe a police officer's testimony.

The story arc of a detective novel is that the story doesn't end until the mystery is solved. There may be numerous twists, turns, red herrings, and dead ends, but the contract between writer, reader, and publisher is that the story doesn't end unresolved. Sometimes it starts with a detective being asked to look into something that's been in the cold case file for thirty years--but those thirty years aren't the focus, because that's not the shape of the story. Expecting otherwise is like expecting a story of the form "boy meets girl, girl joins the Marines and dies in combat, boy becomes a bachelor farmer" to be sold as a romance.

#81 ::: Randolph Fritz ::: (view all by) ::: June 04, 2006, 12:23 PM:

"Of the first 77 wrongful convictions overturned by DNA evidence, 65 resulted from witness error." People who care about the reliability of convictions might wish to read the book True Witness, which discusses the accuracy and reliability of eyewitness evidence.

The argument I want to make here is different and broader than that of that book: in many cases in the USA the presumption of innocence is a legal fiction. The problems of eyewitness evidence have been known for a century, yet the legislature, courts, and police did nothing. Prosecutors have the easier task in a prosecution; it is easy to tell a persuasive story about how someone is a criminal than it is to cast doubt on such a story. Add in the human capacity for error and it is easy to get confident, persuasive, wrong witnesses. There are many other sources of error in a criminal prosecution and there are very few efforts made to root them out.

All of which, from the viewpoint of a suspect, means that it is important to make every effort to make the case for your innocence; one cannot assume that the police and courts are on your side, even if one is entirely in the right. When facing the police, remember that the police have already made a judgement; if it's not in your favor, they will treat you like a criminal. Especially, they are willing to deceive and threaten to get you to say something that can be used in a trial, and you can't predict what will be persuasive. "Anything you say can be used against you." Exercise your rights.

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