Good Advice

 Posted on March 30, 2007 in Uncategorized

A Houston Police Department homicide detective wrote the following in the report of the investigation of a shooting death:

I knew [the accused] had an attorney, but he never invoked his rights and as a thorough investigator I thought I would at least try to talk to [him] and I also knew the booking information needed to be filled out. I went in the room to interview him and asked him if he wanted to talk. He said that he wanted his attorney. He kept repeating himself. He then tried to get up out of his chair and was told several times to sit down that he still needed to give information for the booking blotter. Once again he disobeyed the order to sit down and he got out of the chair and told me to just take him to jail he was done. Again, he was told to sit down and he did not. I then applied my thumb to a pressure point on his chest and told him to sit which he complied. Once the information was gathered for the booking blotter he was handcuffed and transported to the jail. He did happen to see [an acquaintance] as he was walking out and in Spanish he told him ‘do not say a word.'"

Note: I expected this response from [the accused] especially since he obtained Mark Bennett as an attorney.

That account is not entirely true, but it's interesting for several reasons.

First, I don't advise anyone to do anything physical to resist questioning. If the accused tried to get out of his chair (as I said, the detective's account is not entirely true), he shouldn't have. He should have sat and politely continued to refuse to answer any questions until he had me present.

Second, the detective seems to be under the impression that a defendant can be compelled, using a "pressure point," to "give information for the booking blotter." To the contrary, under Texas law the only obligation a person who has been lawfully arrested has is not to intentionally refuse to give his name, residence address, and date of birth. The refusal to give that information is a class "C" misdemeanor with a maximum penalty of a $500 fine. If a person under arrest gives his name, residence address, and date of birth, he has complied with the law. If he refuses, the cop can write him a ticket; that's all. If the accused asks to see his lawyer first, he isn't refusing to give the information, and can't even be ticketed. This might be frustrating to the cop (and this particular detective seems to have problems handling frustration), but that doesn't entitle him to use physical force to get the information he wants.

Third, several other people talked with the police during the same investigation. Some of them told the truth and some lied. Everyone got charged with murder and aggravated assault. Whether they were truthful or not, talking to the police didn't help them. This is almost inevitably the case. If you were going to get charged with murder whether you talked or not, why would you talk to the cop, who has likely already made up his bind before arresting you?

Finally, this case validates the million-dollar legal advice that I consistently give: don't talk to the police without the advice of a defense lawyer. I watched the videotape of the interrogation of another of the defendants. He thought he could outsmart the detective; he told some lies, which the detective was able to show were lies; he then told another story, and the detective twisted his words ("he took the gun from me" became "you handed him the gun") to make them more incriminating.

When you sit down in that little room with a homicide detective, you're dealing with someone who has the training and the motivation to get you to say the things that will get you in the most trouble. You are not trained to resist interrogation. That detective may not be a rocket scientist, but you're not going to outsmart him in an interrogation.

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