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Attention lawyers re: Walker and Miranda(25 posts)

Attention lawyers re: Walker and MirandaBikingViking
Jan 24, 2002 10:39 AM
Listening to the news, it seems that out Taliban traitor has changed his mind, sought legal counsel and now says he asked for a lawyer during his interrogations in Afghanistan, potentially throwing out any confessions he made. My questions are as follows:

1. Once you have waived your Miranda rights, are you still able to invoke them at any time? Is anything you say up until you invoke your rights again still admissible as confessed evidence?

2. How could any confession be held up in court if all a defendant needed to do was tell the judge they asked for a lawyer, but that right was denied them?

3. Being on the other side of things, is there any real way to obtain an AIRTIGHT confession?

39 year old AF Master Sergeants are good at many things, but these minute details of the law are best left to experts!

Thanks
I'll take a shotDog
Jan 24, 2002 10:59 AM
First, I'm not familiar with how these things work on an international scale; not sure if the same rules apply.

Assuming they do, let's take a look.

1. I'm fairly certain you can re-invoke your right not to talk without counsel even after waiving it. Confessions made before re-invoking may well be admissible.

2. This is a matter of proof. They probably have a signed or video taped waiver. Nonetheless, the testimony of an interrogator might well suffice, if believed.

3. Sure, they get airtight confessions all the time. Video tape works great. While that may not prevent some guy from concocting some story later about how he was coerced, it's possible no one will believe him.

Keep in mind that even if there is a confession made in violation of Miranda rights, all the court may do is to throw out that confession and possibly any evidence obtained via the that confession or conversation, not the whole case, if there is other evidence to support a conviction. I have a feeling that here there is plenty of other evidence.

Doug
Miranda may not applymr_spin
Jan 24, 2002 12:56 PM
Part of all the fuss is what law applies. Is it international law, is it military law, or is it US law. Miranda does not necessarily apply to the first two.

As for throwing out any confessions, so what? He could only confess to the obvious, which certainly would qualify for inevitable discovery. He was captured fighting for the Taliban, taking up arms against his country, after a well documented journey of seeking out the most extremist form of Islam he could find. Given what he is actually charged with, what else could he have confessed to?
Very good questions!TxTarpon
Jan 25, 2002 8:15 AM
1. Once you have waived your Miranda rights, are you still able to invoke them at any time?

Only a fool would ever waive those rights. In my expirence, (usually on the "other" side of the badge) most police officers only want a body.

Is anything you say up until you invoke your rights again still admissible as confessed evidence?

Depends on the judge and any filed motions to supress.

2. How could any confession be held up in court if all a defendant needed to do was tell the judge they asked for a lawyer, but that right was denied them?

Usually they don't. Again, it depends on the judge.

3. Being on the other side of things, is there any real way to obtain an AIRTIGHT confession?

Sometime the guilty party wants to come clean. He/she confesses and then gets the punishment. The best way is to have the crime on video, catch the perp in a lie, then show them the video and tell them the only way to prevent big jail time is to confess and hope for mercy. Walker was on video with the Taliban. He was captured during a firefight in a "war", yet they are not prisonsers of war. The US never signed the Geneva convention so we can pretty much treat these people as we wish. The "conspiracy" charge against Walker is very obtainable. That means the prosecution does not have to show that he actually "harmed" Americans, but was part of the "conspiracy" to harm them. The prosecutors should be able to convince a jury beyond a reasonable doubt that Walker was part of the conspiracy.
re: Levenworth....Biiii-ooootch..jrm
Jan 25, 2002 8:28 AM
I Side with the case being one of National Security.
if so then he was captured, debriefed and held. The treatment of him is guided by the geneva convention. Not common law.

If he's imprisoned he doing some hard time in Levenworth. If hes set free he isnt going to be a very popular guy amoungest the militant set. He's Focked either way...yup pun was intended..haha
re: Levenworth....Biiii-ooootch..TxTarpon
Jan 28, 2002 7:55 AM
The US never signed the Geneva Convention.
re: Attention lawyers re: Walker and Mirandamerckx56
Jan 25, 2002 8:30 AM
I talked to a trial lawyer buddy of mine yesterday. he said that miranda does not apply because he was not actually arrested. he was detained by the military. the military was obliged to turn him over to the federal government for trial. while he does have right to counsel, the miranda rule doesn't apply in this circumstance.
you can invoke your right to counsel at ant time, even after you've waived it.
actuallymr_spin
Jan 25, 2002 10:14 AM
All Miranda does is force the authorities, when arresting you, to explain your 5th amendment right not to incriminate yourself, and your 6th amendment right to have counsel. Anyone who paid attention in civics class knows this already and really shouldn't need a Miranda warning.

Miranda aside, if you are subject to the laws of this country, your 5th amendment rights always apply, regardless of the situation. The only exception is when you have been granted immunity, in which case you cannot incriminate yourself.
re: Attention lawyers re: Walker and MirandaBikingViking
Jan 25, 2002 10:54 AM
Thanks for all of the guidance. It sounds like our little traitor will be sharing a cell at Leavenworth with his new "friend" Hughe P. Enis.

Even the military criminals at Leavenworth are sure not to appreciate the presence of such a vile person. Perhaps someone will "take care" of him, like what happened to Jeffrey Dahmer. What goes around, comes around...

Scott
Nobody else bothered by the denial of counsel?Retro
Jan 25, 2002 3:09 PM
Is it just my natural distrust for government, or is anybody else bothered that while John Ashcroft has maintained Lindh isn't represented by an attorney, the attorney his parents hired to represent him wasn't allowed to see him for nearly two months?

I've been involved in military interrogations, and they can be VERY persuasive even when they don't draw blood. Fifty-four days is enough time to get anybody to confess to anything. A wounded 20-year-old isn't likely to have the presence of mind or the experience to defend himself. Which, if you've forgotten, he has a legal right to do since, if you've forgotten, he's innocent until proven guilty. Or is that just idealistic crap that has no place in the New America?
Not memr_spin
Jan 25, 2002 4:12 PM
As far as I can remember, the boundaries of America don't include any part of Afghanistan. Therefore, the laws of America do not apply. A lot of arrogant and/or clueless travelers find this out the hard way, like that punk who got his ass caned in Singapore a few years ago.

You might be able to say that the laws of Afghanistan apply, except that at the time, Afghanistan was operating under laws that were universally condemned as archaic. Only one country in the world, Pakistan, recognized the Taliban as the government.

So, American laws don't apply, and Afghanistan was effectively in a lawless state. What do you do? You take your time figuring it out. If it takes 54 days, then that's what it takes.

Once they did figure it out, Lindh was transferred to America so he could be charged in an American court, and he was allowed to have counsel. It all seems reasonable to me.

Besides, the whole confession thing is a non-issue for me. We don't know what he confessed to, if anything. And even if he did, what is he going to confess to that they can't already prove far beyond all reasonable doubt? Have you looked at the charges?

By the way, aren't you also bothered that all the other detainees don't have counsel either?

Furthermore, there are many countries represented in the captives. Doesn't it seem strange to you that none of these countries seem bothered by lack of counsel? Britain and Australia are content to sit back and watch.

I'm not one who blindly accepts everything the government says and does as right, but I also recognize that this is a very unusual situation. In the past, we fought wars against specific nations, and the rules for captives were quite clear. This isn't the case in this current war. We are fighting armies and organizations who took over control of a nation, but not the nation itself. I can't think of any precedent in history where this was the case. So I'm inclined to give the government all the time it needs to figure this out, especially since first priority is to win the war. Captives are normally held until the war is over, and the war isn't over yet.
Not meTxTarpon
Jan 28, 2002 8:28 AM
Mr. Spin said: As far as I can remember, the boundaries of America don't include any part of Afghanistan. Therefore, the laws of America do not apply.

So you forfeit your rights as a US citizen when you leave US soil when in the custody of the US govt? If that is the case, then why not move ALL US prisons to Mexico or Cuba? Then we can not have meddlesome Federal judges dictate how to treat prisoners. Example: In Texas, Federal Judge William Wayne Justice prohibted prisonsers from being housed in tents. He claimed it was "inhumane".

MR. Spin said: By the way, aren't you also bothered that all the other detainees don't have counsel either?

Nope, they are not US citizens, therefore are not covered by the US Constitution. If they are from Saudi, UK, France, Germany, Boogaland, etc. then who cares.

Mr. Spin said: I can't think of any precedent in history where this was the case.

I can think of a few similar ones:
How about the Fenian invasions of Canada? (They don't teach this one in many schools.) Irish US Civil War vets invaded Canada to pressure the British govt to get out of Ireland.

How about the British invasion of South Africa? The last gasp of colonialism to obtain wealth. The long time Boers are just terrorists, even though it is THEIR land. This war brought about the first concentration camps when civilians were rounded up to prevent them from helping the terrorists, err Boers.

How about William Walker and his "take over" of Nicaragua?
Did he do it for a power trip, Cornelius Vanderbilt, or the US govt?

Johnny Bin Laden is going to jail for at least 20 years. He is on video, the conspiracy charge will stick. Even if he had an an atty present, this dude would/is still going to prison.
Still not memr_spin
Jan 28, 2002 9:06 AM
If you are a US citizen and you commit crimes outside of the US, then yes, your US rights do not apply. You are completely subject to the laws of whatever territory you are on.

Being in the custody of the US government does not guarantee sanctuary. If I rob a liquor store in Paris, then run into the American Embassy, what do you think is going to happen? I might be able to stay inside a few days through legal maneuvers, but eventually the US Marines are going to throw me out the gate on my ass. And the gendarmes will cart me off to jail, and maybe even put me in an iron mask. The Embassy grounds are American soil and I'm in US custody, but my crimes were committed in France.

By the way, you don't have to be a US citizen to be covered by the US Constitution. You just have to be on American soil.

Therefore, if Citizen Lindh is entitled to any rights because he is in US custody, so is everyone else. The qualifying factor is not citizenship. So if you are going to be upset about this whole situation, at least be upset equally. Otherwise your bias really becomes clear. Just because Lindh is American doesn't mean a thing. It certainly doesn't to him.
Still not meTJeanloz
Jan 28, 2002 9:14 AM
You do actually have to be a US citizen or resident alien to be completely covered by the US Constitution. Illegal immigrants don't have any of the rights afforded by the Consititution (like the 2nd amendment right to bear arms), nor do they have the right to vote (niether do legal immigrants). Some, but not all of the constitution applies to non-citizens.

As for Mr. Lindh, I'm not disturbed by his not seeing counsel. First, how could the military be immediately certain that he was, in fact an American? He could well have renounced his citizenship (and taking up arms may have been enough to do that)- or he could have been an imposter altogether. Do we think he was carrying his California driver's license? Furthermore, who is to pay for this legal visit, and how is his lawyer supposed to go to the USS Bataan? This was a very logistically difficult case, and I think it was handled appropriately.
Still not memr_spin
Jan 28, 2002 9:28 AM
Yeah, OK. I was really talking about the rights in question, which are the 5th and 6th (and 14th) amendment rights concerning self-incrimination, due process, and right to counsel. Those rights apply to all, even illegal aliens.
Brillant points!TxTarpon
Jan 28, 2002 10:00 AM
Still not me said: You do actually have to be a US citizen or resident alien to be completely covered by the US Constitution.

Big time correct!

Still not me said: First, how could the military be immediately certain that he was, in fact an American? He could well have renounced his citizenship (and taking up arms may have been enough to do that)- or he could have been an imposter altogether.

This is a great point. Presently the INS is having a problem in Texas because many Hispanics are US citizens and are being told to produce proof of citizenship while riding on buses within US borders. It is being challenged in Federal court because no "non-hispanic" looking people are being asked to produce proof of citizenship while riding buses within US borders. Sounds like it would be in the best interest for the US Govt to prove that Johnny Bin Laden is NOT a US citizen.

Still Not Me said: Do we think he was carrying his California driver's license?

Dunno, but you have have a US driver's license and still not be a US citizen.

Still Not Me Said: Furthermore, who is to pay for this legal visit, and how is his lawyer supposed to go to the USS Bataan?

Reporters were all over the ships reporting. The US govt pays for atty's.

All this sounds great to hate Johnny Bin Laden, but the slippery slope may come to our house some day.
Still not meTxTarpon
Jan 28, 2002 9:50 AM
Mr. Spin said: If you are a US citizen and you commit crimes outside of the US, then yes, your US rights do not apply.

Then would US laws apply? Remember, he did the deed in Afganland, but ended up in US custody. If a US citizen kills someone in El Savador, the US Navy gets custody of of them, the Navy then transfers them to a US Courthouse to be tried in a US court. Does this US citizen have their Constitutional rights suspended? Where in the US Constition is that written?

Mr. Spin said: If I rob a liquor store in Paris, then run into the American Embassy, what do you think is going to happen?

Dunno, depends on our treaties with them. Remember, France did not let go of Ira Einhorn for years.

Mr. Spin said: The qualifying factor is not citizenship.

Where is that written in the Constitution? Seems to me, under your logic, Johnny Bin Laden should have been left in Afganland.
Still not memr_spin
Jan 28, 2002 10:18 AM
Why if a US citizen kills someone in El Savador, would the US Navy get custody of of them? Assuming there is a legitimate government in El Salvador, extradition treaties exist, and El Salvador requests extradition, the US has no choice but to return him to El Salvador to stand trial in an El Salvadoran court. That's international law. Some countries flaunt it, saying they won't extradite someone who will face the death penalty.

This is all a totally different issue. No one has requested extradition in the Lindh case. At the time he was captured there was no country to request extradition. The US had no choice but to take him into custody, because they couldn't leave him there. And that's the bottom line here. The US was unprepared to deal with this situation, has almost no precendent to fall back on, and is therefore figuring it out as they go. I'm inclined to give the government a lot of leeway here. These guys were cold and eating dirt. At least now they are warm and well fed.
Still not meTxTarpon
Jan 28, 2002 11:25 AM
---Why if a US citizen kills someone in El Savador, would the US Navy get custody of of them?

Fleeing the juridiction by boat.

---That's international law. Some countries flaunt it, saying they won't extradite someone who will face the death penalty.

Not international law, but contract, via treaty, law. Nicaragua will not extridict its national to the US for even murder. How much foreign aid do they get?

---The US had no choice but to take him into custody, because they couldn't leave him there.

Why not? Why do we want him bacK? He wanted to become a Muslim and die for Allah, why do we need him back here?

My point is that US citizens are given certain rights under the US Constitution. Was he "arrested"? He was an American citizen on a US ship. Bringing him back to the US was bound to create some problems. He should have been left in Afganland.
Nobody else bothered by the denial of counsel?merckx56
Jan 26, 2002 4:56 PM
he had the presence of mind to travel to the middle east and become involved with terrorists! his father should be charged as an accessory before the fact as well, for supporting him financially while he was living over there!
I love these cartoonsDog
Jan 28, 2002 6:41 AM
That's an interesting point,TJeanloz
Jan 28, 2002 9:58 AM
I'm sure it won't happen, but I could see, and support a charge to his father for aiding and abetting. The question would really be whether his father knew what the purpose of the money he was sending was- and I think that would be hard to prove.
Nobody else bothered by the denial of counsel?TxTarpon
Jan 28, 2002 8:03 AM
You should distrust the govt. Did you watch "60 Minutes" last night? After reading Ronald Kessler's book on the FBI, I have thought that J. Edgar Hoover was nothing more than a shadow dictator who scared presidents, even LBJ.

"Fifty-four days is enough time to get anybody to confess to anything."

You got that right. What is scary to me is the number of people who WANT torture now.

"Or is that just idealistic crap that has no place in the New America?"

Nope. Public opinion rules. This weekend a janitor in a local high school was busted for having sex with a 14 year old girl. If I were his atty I would bring up how Jerry Seinfeld is walking free today after a long term sexual affair with a 15 year old.
What's he need a lawyer for if he's guilty?Dog
Jan 28, 2002 10:02 AM
And another one, this one from a district attorney: "Defendants don't need discovery. They were there. They know what happened."

(discovery is the legal procedure of finding out what the other side or someone else knows about the case)

Doug
All suspects are GUILTY, otherwise they would not be suspects.TxTarpon
Jan 28, 2002 11:30 AM
And another one, this one from a district attorney: "Defendants don't need discovery. They were there. They know what happened."

Damn that is funny, yet scary.

My fav was the grand jury that was investigating an employer that was not remitting payroll taxes to the federal govt. These are remitted on forms 940 and 941. After 3 weeks into the investigation a grand jury member finally asked, "What is a 941?" What was more shocking to me was that this employer had been doing this since before I was born, and all she received was 5 years in the pen.