Monday, January 5, 2009

Role of Defense Attorneys

Last week the Tennessee Supreme Court ruled on a suppression issue in a murder trial. The defendant had been convicted on the basis of a confession obtained without benefit of the Miranda warnings. Basically, the police interrogated the defendant, obtained a confession, then obtained a waiver of rights and obtained a second confession. Both confessions were suppressed and the case was dismissed.

The noteworthy thing about this case, from my point of view, comes in the last couple of paragraphs, where the court discusses the fact that, although it is certainly bad to let the guilty go unpunished, it is worse if we permit the government to run roughshod over our rights. If the government itself cannot conform to the law, what authority does it have to compel law abiding behavior from its citizens?

In my opinion, the court didn't go far enough in this case in condemning the interrogation tactics used by the police. In the un-Mirandized interrogation, the police lied to the suspect by informing him that they had his fingerprints at the crime scene and employed other psychological techniques to entice the suspect into confessing. Even when properly Mirandized, it is simply human psychology to fall victim to these techniques and talk. And the police interrogators are being trained in how to break down a person's free will and obtain confessions.

This comes into play in the motion to suppress that I have filed in the Lauren Morrow case and her statement should be suppressed. One of these days I hope that the court takes up the issue of the use of psychological interrogation techniques in someone who has been properly Mirandized and gives us some guidance as to what is appropriated.

Until then, it is up to defense attorneys to do what we must to protect people's rights. I have another case that is quite troubling - the Jaron Taylor case. Mr. Taylor is charged with aggravated sexual exploitation of a minor for receiving, and remailing, child pornography on the internet (AOL). How did they catch him? Well, the US Congress established what they call an independent company - the National Center for Missing and Exploited Children. They say that it is not a government agency, despite the fact that high level justice department officials sit on its board of directors. The NCMEC has agreements with the internet service providers that the ISPs will scan people's e-mail and tip them whenever they find child pornography. The NCMEC then informs the local authorities, who obtain search warrants and seize the suspect's computer.

Since everyone maintains that the NCMEC is not a government agent, there is no Fourth Amendment violation. The central issue in the Taylor case is going to be whether the NCMEC is simply a disguised government agency.

It is unfortunate that we live in a time in which our essential and fundamental rights are being eroded. Often, the only thing standing between the awesome power of the state and the lowly defendant is the defense attorney. If we stop doing our job, everyone loses.

The Tennessee case can be found here:


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