DogofWar1 Posted July 24, 2015 Share Posted July 24, 2015 This has been bothering me. She is representing him, therefore he is her client. Do lawyers not have the right to tell their client not to talk to the police? Yes and no. Yes, in that any questioning tied to anything post arrest/Miranda has to give the client the opportunity to have an attorney present to advise the client. No, in that consensual questioning tied to a matter where the individual has not been arrested/Mirandized is outside of the right to have an attorney. If police walk up to you on the street and start asking questions, and you answer, it's consensual. If you stop answering, police, in order to further question, need to arrest you and therefore Mirandize you, in which case you get the right to have an attorney present. Of course, that right can be waived if the client starts talking on their own. Anyways, in this case, the attorney was completely right to step in between the cop and her client, in that the situation objectively looked like the former situation, questioning regarding a current, post-arrest, charge. certainly... but not to stand in front of them or refuse a lawful order to move....in doing so you are obstructing justice ,no different than preventing a booking ect not even lawyers are above the law You keep missing the fact that the police did not explain their presence. They rolled up, started trying to interact with a client, on his court date, in front of his attorney, with no explanation for what they were questioning him/taking his picture for. It is NOT a lawful order to order an attorney to stop representing their client's interests and protecting their client's rights. That is what the officer told the attorney to do, as far as anyone on the scene (except that one cop) knew. Had he verbalized his subjective intent better, mentioning the separate investigation, then you'd have a point. But he didn't. Bad cop is bad. Link to comment Share on other sites More sharing options...
twa Posted July 24, 2015 Share Posted July 24, 2015 you are missing the fact the lawyer showed up after he was already questioning them and had no right to interfere and specifically to block him taking pictures. nor is she entitled to a explanation.....doing so would be a courtesy Link to comment Share on other sites More sharing options...
DogofWar1 Posted July 24, 2015 Share Posted July 24, 2015 (edited) you are missing the fact the lawyer showed up after he was already questioning them and had no right to interfere and specifically to block him taking pictures. nor is she entitled to a explanation.....doing so would be a courtesy She is definitely entitled to an explanation. Officers are not allowed to begin interrogating a person charged with a crime about said crime without having their attorney present. Interrogation is any express questioning. The police began expressly questioning her client. Without being offered an alternate explanation, it was entirely reasonable to believe the questioning was in connection to the present case, which means she had a duty to stop the officer's inference with her client's right, since any interrogation regarding the case she represented him on was in violation of her client's rights. Without further explanation by the police, there is no way for her to have been given a reason to not think her client's rights were being violated at that very instant, and that her duty to stop the officer's interference did not invoke. If we apply this line of thinking to other cases, that attorneys must not intervene in police interrogation of an attorney's client, then you're going to end up with a TON of rights violations by the police of the clients' rights, because plenty of cops DO attempt to question clients regarding existing charges, as well as a ton of attorneys getting disciplined by their state's respective bar for failure to protect their client's rights. You're asking attorneys to play russian roulette with their client's rights, and their own freedom, for that matter. Cop comes up to talk to your client, but doesn't say what about. If you stay, and it's about the case for which you represent the client, cop has to leave. If you stay, and it's about a separate case (again, without telling the attorney that), attorney gets arrested. If attorney leaves, and it's about a separate case for which no charges have been filed, then it's fine. But if the attorney leaves and its about the case he's represented on, the client's rights have been violated and the attorney is subject to discipline. It's an absurd situation to put attorneys in, and one that will definitely lead to abuse and client right violations. If you're a cop investigating a separate matter, say it. Then all the problems go away. It's simple and easy. Edited July 24, 2015 by DogofWar1 Link to comment Share on other sites More sharing options...
twa Posted July 24, 2015 Share Posted July 24, 2015 She is definitely entitled to an explanation. she is entitled to be cuffed and led away. simply and easily pretty sure someone said they were conducting a investigation, no more explanation is needed.....as she found out. Link to comment Share on other sites More sharing options...
steve09ru Posted July 24, 2015 Share Posted July 24, 2015 I think what people are missing is that one of those individuals wasn't her client. She can't interfere with someone that isn't her client so being detained for doing so was obstruction. If it was her client then I would agree with her being present during questioning for the case she was assigned to him on. The thing is, the video starts after the questioning has occurred. The PO could have said 'it's not related to the case you are working with him on' instead of brushing that aside. 1 Link to comment Share on other sites More sharing options...
Kosher Ham Posted July 24, 2015 Share Posted July 24, 2015 I agree with you mostly Steve09. I see that there is really zero talk of either though. Link to comment Share on other sites More sharing options...
PleaseBlitz Posted July 24, 2015 Share Posted July 24, 2015 (edited) certainly... but not to stand in front of them or refuse a lawful order to move....in doing so you are obstructing justice ,no different than preventing a booking ect not even lawyers are above the law This is complete bull****, yes they absolutely can. A person is entitled to legal counsel in most cases, police can't just say "go away, you are stopping us from working this guy over." THIS IS WHY the charges against the lawyer were dismissed and a counter complaint was filed. This is taught the first year of law school. And its not like the police were in hot pursuit of the guy, they were STANDING IN A COURT HOUSE. Edited July 24, 2015 by PleaseBlitz Link to comment Share on other sites More sharing options...
PleaseBlitz Posted July 24, 2015 Share Posted July 24, 2015 (edited) I think what people are missing is that one of those individuals wasn't her client. She can't interfere with someone that isn't her client so being detained for doing so was obstruction. If it was her client then I would agree with her being present during questioning for the case she was assigned to him on. The thing is, the video starts after the questioning has occurred. The PO could have said 'it's not related to the case you are working with him on' instead of brushing that aside. Well, as you can see at the end of the video, after the cops take the lawyer away, they take photos of both of the black guys and then also question BOTH guys. Per Above the Law: And, of course, witnesses report that Inspector Stansbury did go ahead and ask questions after the guy’s lawyer gets led away. There’s the subtlety of the job right there: do something that won’t raise the ire of a court to get a foot in the door, use that to intimidate, then get the target to start volunteering information in a vain effort to make the intimidation end. Standard procedure. Tillotson knew what was going down and got chained to a wall for an hour for her efforts. "The thing is, the video starts after the questioning has occurred." I heard the same argument when Walter Scott got shot in the back 8 times while running away. Edited July 24, 2015 by PleaseBlitz Link to comment Share on other sites More sharing options...
twa Posted July 24, 2015 Share Posted July 24, 2015 This is complete bull****, yes they absolutely can. A person is entitled to legal counsel in most cases, police can't just say "go away, you are stopping us from working this guy over." THIS IS WHY the charges against the lawyer were dismissed and a counter complaint was filed. This is taught the first year of law school. And its not like the police were in hot pursuit of the guy, they were STANDING IN A COURT HOUSE. they can say move out of my way and arrest your interfering ass if ya don't. the matter of how any information is obtained (and it's use in court ect) is a different matter. a lawyer cannot obstruct a police investigation,they may advise their client of their rights.....in the proper manner Link to comment Share on other sites More sharing options...
PleaseBlitz Posted July 24, 2015 Share Posted July 24, 2015 (edited) they can say move out of my way and arrest your interfering ass if ya don't. the matter of how any information is obtained (and it's use in court ect) is a different matter. a lawyer cannot obstruct a police investigation,they may advise their client of their rights.....in the proper manner Do you have anything to back this assertion up? I don't believe what you are saying is true (and I am a lawyer). If someone is in custody, and they ask for a lawyer, the cops have to stop interrogating that person until the lawyer arrives. There is a ****ton of case law on this, including Miranda v. Arizona, which is where the Miranda Warning comes from, which includes "You have the right to speak to an attorney, and to have an attorney present during any questioning." Edited July 24, 2015 by PleaseBlitz Link to comment Share on other sites More sharing options...
DogofWar1 Posted July 24, 2015 Share Posted July 24, 2015 she is entitled to be cuffed and led away. simply and easily pretty sure someone said they were conducting a investigation, no more explanation is needed.....as she found out. Conducting what investigation? Because if it's an investigation into the case they're about to go into court on, you've just violated the client's rights. And yes, cops do pull that. All the darn time. I interned at a public defender's office, and their clients are basically treated in subhuman fashion by the cops. The number of times cases got thrown out because a cop questioned someone when they should have Mirandized them first, or lied to clients to get them to confess was mind boggling. A public defender's job is to protect her client. If a policeman rolls up and starts questioning your client, you're at least going to ask why, and are very much entitled to do so, as per the 6th Amendment. If the police offer some half-ass explanation about "an investigation" without actually explaining what investigation, that's pretty much code for "we're gonna nail your client to the wall in some shifty way as soon as you leave." I know everything starts to look like toilet paper when we start running low, but the 6th Amendment is going a little far. What you're suggesting should be the standard is basically police state 101 material. I think what people are missing is that one of those individuals wasn't her client. She can't interfere with someone that isn't her client so being detained for doing so was obstruction. If it was her client then I would agree with her being present during questioning for the case she was assigned to him on. The thing is, the video starts after the questioning has occurred. The PO could have said 'it's not related to the case you are working with him on' instead of brushing that aside. They were questioning both individuals. The fact they were going after both made it a grey area a little more, but she still had a right to step in for her client. Moreover, if their unexplained "investigation" was related to ongoing criminal charges for the other guy, and again, there's no way to be sure, they'd be violating that other guy's 6th Amendment rights too. Unless he expressly waived his right to an attorney, any interrogations must happen only with an attorney present. If both were indigent, it's very possible that the other guy was represented by the public defender's office too, or by a court appointed private attorney. Attorneys cover for each other all the time. Just because their specific attorney isn't around that minute doesn't mean their 6th Amendment rights evaporate. So she definitely had a right to intervene with relation to her client, and she probably had a right to intervene in relation to the other guy too. 1 Link to comment Share on other sites More sharing options...
DogofWar1 Posted July 24, 2015 Share Posted July 24, 2015 Do you have anything to back this assertion up? I don't believe what you are saying is true (and I am a lawyer). If someone is in custody, and they ask for a lawyer, the cops have to stop interrogating that person until the lawyer arrives. There is a ****ton of case law on this. Technically, during a "consensual" pre-arrest encounter, the police may question an individual. So long as the person keeps answering questions, it's "consensual." Of course, the line gets very blurry very quickly. I've seen situations where cops will have a guy handcuffed and sitting in a cruiser, but since the door to the cruiser was open, they weren't "under arrest," were still free to leave, and therefore not entitled to Miranda rights. General District Court in Fairfax is really bad about these things, because clients have a no questions asked right to appeal to the Circuit Court of the county de novo. The judges err on the side of the cops, knowing that they'll probably get overturned on appeal, but better to look tough on crime rather than lenient on it. And of course, it's not interference to protect someone's 6th Amendment rights, especially your client's. The cop screwed up. Plain and simple. Your investigation is not some James Bond "I could tell you why I'm questioning your client but then I'd have to kill you" thing, explain yourself or wait until the court date is finished. Jeez. Link to comment Share on other sites More sharing options...
twa Posted July 24, 2015 Share Posted July 24, 2015 Do you have anything to back this assertion up? I don't believe what you are saying is true (and I am a lawyer). If someone is in custody, and they ask for a lawyer, the cops have to stop interrogating that person until the lawyer arrives. There is a ****ton of case law on this, including Miranda v. Arizona, which is where the Miranda Warning comes from, which includes "You have the right to speak to an attorney, and to have an attorney present during any questioning." they were not in custody, nor were they being charged for the crime actively being investigated. Once charged or arrested the lawyer can require being present,but even then they cannot prevent access or the pictures I'd suggest reviewing when miranda comes into play investigation differs, just as a grand jury does not allow lawyers in the room while ascertaining facts Link to comment Share on other sites More sharing options...
PleaseBlitz Posted July 24, 2015 Share Posted July 24, 2015 (edited) Technically, during a "consensual" pre-arrest encounter, the police may question an individual. So long as the person keeps answering questions, it's "consensual." Of course, the line gets very blurry very quickly. I've seen situations where cops will have a guy handcuffed and sitting in a cruiser, but since the door to the cruiser was open, they weren't "under arrest," were still free to leave, and therefore not entitled to Miranda rights. Yup, thats why i said "if they ask for a lawyer" and I didn't think it was necessary to get into what "in custody" and "interrogation" means, the two requirements that trigger Miranda rights. I think those are both pretty clearly met in this case. they were not in custody, nor were they being charged for the crime actively being investigated. Once charged or arrested the lawyer can require being present,but even then they cannot prevent access or the pictures I'd suggest reviewing when miranda comes into play investigation differs, just as a grand jury does not allow lawyers in the room while ascertaining facts They were almost certainly in custody, which doesn't mean handcuffs, it means the person does not feel free to leave. See Beckwith v. United States, 425 U.S. 341 (1976). Pretty sure being in a courthouse surrounded by police would meet this test. "Being charged" has literally nothing to do with anything. The rest of your post is just incorrect, and i have no idea where you are coming up with it, please feel free to cite to anything to back up your statements. Edited July 24, 2015 by PleaseBlitz Link to comment Share on other sites More sharing options...
tshile Posted July 24, 2015 Share Posted July 24, 2015 Does not feel free to leave? Or is not actually free to leave? Seems like there's an important difference there. 1 Link to comment Share on other sites More sharing options...
PleaseBlitz Posted July 24, 2015 Share Posted July 24, 2015 (edited) Does not feel free to leave? Or is not actually free to leave? Seems like there's an important difference there. The first one. The test is whether a reasonably prudent person would believe that his/her freedom of movement is significantly restrained, given the totality of the circumstances. Stansbury v. California, 511 U.S. 318 (1994). Edited July 24, 2015 by PleaseBlitz Link to comment Share on other sites More sharing options...
tshile Posted July 24, 2015 Share Posted July 24, 2015 The test is whether a reasonably prudent person would believe that his/her freedom of movement is significantly restrained, given the totality of the circumstances. Doesn't a reasonably prudent person know that: a - police use intimidation b - unless the police tell you you cannot leave, you are free to leave c - you can ask the police if you're allowed to leave d - when in doubt, ask/wait for a lawyer ? Link to comment Share on other sites More sharing options...
twa Posted July 24, 2015 Share Posted July 24, 2015 The rest of your post is just incorrect, and i have no idea where you are coming up with it, please feel free to cite to anything to back up your statements. I cite years of experience .....be sure and let me know how that lawyers complaint works out. the right to counsel does not mean they can prevent access as she was doing. Link to comment Share on other sites More sharing options...
PleaseBlitz Posted July 24, 2015 Share Posted July 24, 2015 (edited) I cite years of experience .....be sure and let me know how that lawyers complaint works out. the right to counsel does not mean they can prevent access as she was doing. Years of experience doing what? Violating people's civil rights, im guessing? Perhaps years of experience commenting on the internet about stuff you have no clue about? Regardless, I know (and have cited to) the actual law, which is way better than your "experience," no matter what it is in. Edited July 24, 2015 by PleaseBlitz 1 Link to comment Share on other sites More sharing options...
DogofWar1 Posted July 24, 2015 Share Posted July 24, 2015 And again, TWA is ignoring that without telling the attorney what they're investigating for, there's a very real chance a 6th Amendment violation is happening. It, as I said yesterday, is forcing attorneys to play dangerous games with their client's rights. It is flatly unconstitutional to interrogate a client represented by an attorney on a charge. It is, however, fine to ask them questions about a separate matter in a hallway (provided the person is "consensual" in answering). If you're their attorney, and you don't know which it is, what exactly should one do? You're suggesting they should step aside and let the police go. And that's utter garbage. If you don't know if your client's rights are being violated or not, you darn well better inquire, and if the explanation is unsatisfactory ("we're doing an investigation" "About what!? My client's current charges?" "Uh...we're not gonna say.") then you better step in the way. You're not "interfering," you're "protecting." Link to comment Share on other sites More sharing options...
steve09ru Posted July 24, 2015 Share Posted July 24, 2015 so running through the video again; the PO says, "I'm just going to take a couple pictures and you are free to go to the individual on the right. " The PD then steps in and says "no, no..he's not represented by us." So she was in fact obstructing. I don't even see her client being asked anything or acknowledged during this. She was interfering with someone who wasn't her client. And PleaseBlitz, no where at the end of the video does the questioning start AFTER she is taken away. Link to comment Share on other sites More sharing options...
PleaseBlitz Posted July 24, 2015 Share Posted July 24, 2015 And PleaseBlitz, no where at the end of the video does the questioning start AFTER she is taken away. Yep, that was stated by the news reports that accompanied the video. They are linked above. Link to comment Share on other sites More sharing options...
DogofWar1 Posted July 24, 2015 Share Posted July 24, 2015 so running through the video again; the PO says, "I'm just going to take a couple pictures and you are free to go to the individual on the right. " The PD then steps in and says "no, no..he's not represented by us." So she was in fact obstructing. I don't even see her client being asked anything or acknowledged during this. She was interfering with someone who wasn't her client. And PleaseBlitz, no where at the end of the video does the questioning start AFTER she is taken away. If someone is being interrogated in relation to a charge without an attorney present, another attorney is allowed to step in and ensure the client's rights are protected. Your 6th Amendment right doesn't evaporate because your attorney went to the bathroom, or is stuck in traffic. If you're charged with something, police cannot question you about it, and an attorney is perfectly justified to step in. Happens all the time. PDs covering for other PDs, private attorneys handling cases for other private attorneys, etc. If an attorney reasonably believes an individuals rights are being violated, they can and should step in, whether they represent that person or not. With a vague explanation of the purpose of the "investigation," it was reasonable to believe that a rights violation was occurring. 1 Link to comment Share on other sites More sharing options...
steve09ru Posted July 24, 2015 Share Posted July 24, 2015 Yep, that was stated by the news reports that accompanied the video. They are linked above. Sorry was just watching the videos you referenced it being shown in, didn't look at the article. But either way, from my post above, you cannot interfere with someone who isn't your client. She was rightfully arrested for obstruction because it wasn't her client (if it was her client then yes, she could question it further). Through the link below, it lists that they were being questioned for an unsolved burglary which wasn't related to the case that they were currently at the courthouse for. In this situation, as far as I know, when assigned a public defender, it is for a specific case so if the case isn't related to what they are at court for then she isn't technically her client. http://www.sfgate.com/crime/article/S-F-police-won-t-press-charges-against-6063816.php Sources told The Chronicle that Stansbury had been in court for a separate case when he heard that the two men, who were being eyed as suspects in an unsolved burglary, were in the same building and wearing similar clothing to when they allegedly pulled the heist. The men have not been arrested. The men could have also not answered the questioning and stated that 1.) the one was going to wait for his lawyer or the 2.) I want a lawyer. What she did would be no different than me or you stepping between a cop while he was questioning someone and telling him he can't do that. She was NOT his client. Link to comment Share on other sites More sharing options...
steve09ru Posted July 24, 2015 Share Posted July 24, 2015 If someone is being interrogated in relation to a charge without an attorney present, another attorney is allowed to step in and ensure the client's rights are protected. Your 6th Amendment right doesn't evaporate because your attorney went to the bathroom, or is stuck in traffic. If you're charged with something, police cannot question you about it, and an attorney is perfectly justified to step in. Happens all the time. PDs covering for other PDs, private attorneys handling cases for other private attorneys, etc. If an attorney reasonably believes an individuals rights are being violated, they can and should step in, whether they represent that person or not. With a vague explanation of the purpose of the "investigation," it was reasonable to believe that a rights violation was occurring. Interrogation or Questioning? I doubt they would hold an interrogation out in the hallway. Link to comment Share on other sites More sharing options...
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