28.6.06

And Justice for All: On the Job

In the coming paragraphs, I will show a motion that I have prepared for a case I am working on.

I show it for a number of reasons. One, I need something to write for this evening and this fits it well; I will appreciate people looking at it and saying how good it is (or how bad it is); and three, it will allow me to reflect.

I am really convinced that what I have written in this motion has a chance to change the way defendant's statements are used in court. Not just in kentucky but across the nation. I feel that this is the kind of thing I can do in law, and I enjoyed writing this because it is one of those great things. And those are the kind of thigns (as I have mentioned before) that I love and am destined to do.

My boss called it brilliant multiple times. And I was so proud of myself.

Now, I"m not trying to be perfectionist about it (or maybe I am , i don't know). But I do enjoy getting complements, and having my work recognized as such. I don't need it, but it always feels good. For example, I didn't ask my boss "did you think this is any good?" I simply brought up the idea one time about writing a motion like that, and started working on it. SHowed it to my boss, that he could offer input (i.e. to help expand the reasoning, help with research exactly).

So, though, this motion is written by me, and I'll receive alot of the credit for it. It really is a product of the whole DPA. I may not have been able to find/cite the cases I did, had my boss not contacted all the DPA attorneys to help out. And he's editing HELPED OUT SOO MUCH.

So, what are some of the lessons I've learned since I last wrote an entry on here?:

One, as a prosecutor, you attack a witness to destroy that credibility and ability to help the defense. If you make the guy look bad, often times the jury will see the defendant as looking worse.

If you have a confession more or less, make sure the jury knows about it.

As a defense attorney, try to not do what your client asks you to do, if you know it's not in your best interests. Even if you have to be frank about it. The witness for this lady's DUI make her look horrible. The jury saw him as a husband who just thought he wife was innocent no matter what any of the evidence, or she, said. But, not in an impassioned sense, but in an ignorant sense. They saw the guy as

Whatever the the prosecution will use as evidence, try and come up with an explanation of it on your own.

Also, the client you talk with will talk so fucking much. Try to convince you off your innocence (even if their more or less lying, or have thign confused). Cause, it's a pride thing, and, two, NOBODY (with a few exceptions), wants to go to jail.

Now, sometimes, this may only be temporary as reality/logic of the situation hits in (i.e. why you see you many damn plea bargains in the system. )

Next lesson: Judges want you to plea, proseuction wants you to plea, and defense attorneys, alot of times, want you to plea. Cause, one, if you don't: their's so much fucking work to do; and, two, if ur a defense lawyer, you know you coudl very well loss in alot of situation cause the person actually did do what they are being charged with.

But the name of the attorney/client is game is plea barganing. It's called bargaining for a reason: people are haggling to get the best deal for their clients (prosecution or defense).

As a lawyer, make sure you communicate with other lawyers, because they can serve as invaluable tools in research and case law.

And, alotta times, you don't really have to say much to your client to earn their trust and respect. You can listen. That's what I've found out recently. When you take an active role in listening their gonna respect and listen to you more. Which would make your advice more takeable. For example, this one guy who plead to some drug charges...I and another two person were interviewing him at the beginning.

And then two of us, were at his PSI report review with the attorney, just kinda watchign/listening. And, when the attorney introduced us, the guy said he remembered me from earlier interview. THe other guy was there, but he didn't remember him (at least not at first glance, anyways). I took an active interest in the client in the interview, and listened, and asked questions that showed I cared and wanted to serve him.

So, I guesss I realized I do have passion for this profession, and my clients can feel it. That's part of why i'm going to be successful: because i'm so enamoured and in love with what I'm doing, and I love all my clients, and I want to do all I can for them.

And lastly, don't be afraid of your clients. You really have no reason too. For a huge majority, they aren't cold blooded, they are just people too. SO, treat 'em like such,a nd you'll be a much better lawyer.

And, as for being an actor in front of the jury and attacking the opposing witnesses, absolutely. That's just what you got to do. The acting is part of the passion that you excude to the jury, so that they begin to feel for you and your client, and possibly come down with a verdict on your side.


I've probably learned a few more thigns, but that's all I think of right now.

So, without further ado, here is my motion:

COMMONWEALTH OF KENTUCKY
LAUREL CIRCUIT COURT
DIVISION I
INDICTMENT NO. 05-CR-15



COMMONWEALTH OF KENTUCKY PLAINTIFF

VS.

SLIM SHADY DEFENDANT
………………………………………………………………………………...
MOTION TO SUPRESS

Comes Slim Shady, the defendant, by counsel, and moves this honorable Court to grant an order suppressing statements made by Slim Shady to Kentucky State Police Detective Crazy Man and Laurel County Sheriff’s Department Detective Evil Policeman on August 26, 2005. Admission of these statements would violate the defendant’s right of Confrontation at trial as interpreted by the United States Supreme Court in Crawford v. Washington 124 S. Ct. 1354. This motion is made pursuant to amendments 5, 6 and 14 of the United States Constitution and the section 11 of the Kentucky Bill of Rights.
In support of this, defendant offers the following:

1. Pursuant to the United States Constitution’s Fifth Amendment Slim Shady can choose to remain silent during his trial. So he will be unable to cross-examine the declarant in the above statements, for he is the delcarant.
2. These statements are hearsay. However, there is no doubt that the Commonwealth will seek their admission to prove the truth of the assertions in the statements.
3. The United States Supreme Court in Crawford v. Washington 124 S. Ct. 1354 (hereto referred to as “Crawford”) overruled its earlier ruling of Ohio v. Roberts 448 U. S. 56 (1980) and stated that confrontation issues as to whether something that is hearsay would be admissible would not be determined by the “firmly rooted hearsay exception” or if the statement has “particularized guarantees of trustworthiness.” Rather, the Confrontation Clause as interpreted by the Supreme Court was aimed at ex parte examinations such as affidavits and depositions that were used against defendants without opportunity for cross-examination of the witnesses. Accordingly under the 6th amendment, Slim Shady will be unable to cross-examine an unavailable declarant. If Slim Shady chooses not to testify and his statements are admitted, it patently violates his Confrontational rights as set out in Crawford.
4. The Supreme Court in Crawford interpreted the Confrontation Clause of the 6th amendment to be aimed at ‘testimonial’ hearsay. In Davis v. Washington S.Ct., 2006 WL 1667238 (In Davis,The Supreme Court clarified the rulings of Crawford. Davis was decided jointly with Hammon v. Indiana S.Ct., 2006 WL 1667238). Davis says statements “are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution (pg. 1).” Slim Shady’s statements obtained here fit precisely into the category of testimonial statements. Testimonial statements are the statements the Supreme Court judged to be inadmissible hearsay.
As evidence of this, defendant submits that he was arrested for charges based on statements he made. Slim Shady’s statements to Detectives Trosper and Phelps fit into this category because statements gained by law enforcements are generally made for the purpose of testimony in later criminal prosecution.
5. KRE 804 A defines unavailability of a witness. The definition of ‘unavailable’ does not specifically include Slim Shady’s right to avoid self incrimination; however, Slim Shady contends his status as an “unavailable witness” is stronger than a mere privilege granted by an evidence rule. His Constitutional right (except in extreme circumstances) cannot be suspended like a privilege can. Slim Shady is unavailable as a witness, until and unless he chooses to testify on his own behalf.
6. Defendant does acknowledge, however, that KRE 801A (b) (1) indicates that his statement is not excluded by the hearsay rule because it qualifies as “the party’s own statement, in either an individual or representative capacity.” However, defendant contends by virtue of the decision of Crawford v. Washington, and the latter clarificatory cases of Davis v. Washington and Hammon v. Indiana S.Ct., 2006 WL 1667238, and the Federal Supremacy Clause of the United States Constitution, KRE 801A (b) (1) has been overruled, and, thus, defendant’s statements to police should be suppressed.
7. Should the Commonwealth argue that admission of the statements is determined under the analysis in Miranda, defendant maintains that his argument to suppress, if granted, would not involve or overrule Miranda v. Arizona 384 U.S. 436. This is apples and oranges. Obtaining a proper Miranda waiver does not guarantee that a statement is admissible. Rather getting a waiver affirms that the statement is given knowingly, voluntarily and intelligently and, thus, could be admissible. However, a waiver does not guarantee it is admissible.
Even if Miranda rights are “present”, statements have been suppressed on other grounds. For example, Brown v. Illinois, 422 U.S. 590 (1975), the United States Supreme Court held that a confession must be suppressed even after a proper Miranda waiver if it was the fruit of an illegal arrest. Also, United States v. Reed, 349 F.3d 457, 464 (7th Cir. 2003) further validated suppressing a statement after proper Miranda waivers.
Clearly, then, when a defendants rights were violated, even after proper Miranda waivers are present, these defendant’s statements were suppressed. Miranda is one issue but not the only issue in terms of constitutional analysis; once a defendant has been properly mirandized there are still constitutional questions that have to be answered. Defendant’s position on Crawford is that the issue of “May the government introduce a defendant’s testimonial statement if he chooses not to testify?” has not been answered so Miranda is not the issue before this honorable Court.
Furthermore, Slim Shady contends the aforementioned suppression cases are similar to his. His Constitutional rights will be violated if his testimonial statements are admitted to his jury. He moves this Honorable Court to prevent such a violation of his Constitutional rights.
8. Slim Shady acknowledges that if he were to testify, then under most circumstances, his statements to law enforcement would then be admissible. However, Slim Shady claims that, though this might be the case, the possibility that he might testify should not dissuade this honorable Court from ruling in his favor.

Admission of Slim’s testimonial statements puts him in a precarious position: either he takes the stand to refute these statements, essentially giving away his right against self incrimination, or the statements are presented into evidence without any opportunity for cross examination (a patent violation of the Confrontation Clause).
Defendant claims this precarious position is the same as that in
Simmons v. United States, 390 U. S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247
(1968), in which the United States Supreme Court found “it intolerable that one constitutional right should have to be surrendered in order to assert another (394 U.S. 377).”
Also, Slim Shady’s precarious position is similar to but stronger than the precarious position as found in United States v. Jackson, 88 S.Ct. 1209 in which the court ruled that “Congress cannot impose such a penalty in a matter that needlessly penalizes the assertion of a constitutional right (1217, italics added).” The intention of the Supreme Court is clear: penalizing a defendant for exercising his constitutional rights is not permissable. See also, Hunt v. Mitchell 261 F. 3d 575, *584 (C.A.6 (Ohio), 2001); Minnesota v. Murphy 465 U.S. 20, 456-457, 104 S.Ct. 1136, 1157-1158; Chaffin v. Stynchcombe, 412 U.S. 7, 30-32, 93 S.Ct. 1977, 1984-1986; Michigan v. DeFillippo, 443 US. 31, 43-46, 99 S.Ct. 2627, 2635-2637.
Slim Shady does not have to decide or announce his intention to testify in advance. However, if circumstances change during the trial, this honorable Court could revisit the admissibility of the statements.

9. Defendant acknowledges that his statements do differ slightly from those in Crawford in one respect: he will be the one on trial. However, defendant’s right to remain silent makes that difference moot, and otherwise the similarity between his and other testimonial hearsay is marked.
10. His statements should not be viewed in a different light than other potential witnesses who are unavailable to testify. Finding his statement admissible even if he chooses not to testify per his Constitutional right against self-incrimination, discriminates on a “peculiar” basis without good reason per Crawford.
11. The issue here in his motion to suppress does not involve a misinterpretation of the Confrontation Clause. If one argues that the Confrontation Clause was never meant to apply to the defendant then why is the most damaging piece of evidence often the defendant’s own statement to the police? Rather the issue is how might the defendant cross examine the statement without having to give up his constitutional right to remain silent. There is no way of escaping the ‘precarious position’ of choosing between two valid constitutional right claims (self incrimination, and Confrontation). The only way to remedy this malady is to grant this motion to suppress.
12. In granting this motion, this honorable Court will not drastically alter the legal landscape of the admissibility of statements. Rather, this honorable Court would affirm Supreme Court decisions that are the cornerstones of the American judicial system.
13. Under the Common Law which the founding fathers used to write the Constitution, certain types of statements (i.e. confessions) were inadmissible in English courts. Defendant claims a ruling in his favor sustains the spirit of this cornerstone of the American judicial system in that, when an inalienable right is or will be violated, it is up to the Court’s interest in justice to remedy that by its own proper avenues. And defendant claims that granting his motion will do precisely what justice demands the Court to do.
14. Defendant acknowledges that under KRE 804 (b) (3) statements against his penal interests are an exception to the hearsay rule. However, under Crawford, his statements are testimonial hearsay and not admissible. So KRE 804 (b) (3) does not apply to Slim Shady’s statements to law enforcement because Crawford has made statements to law enforcement officials subject to different standards than other statements against interests.
15. The Commonwealth may argue that Crawford is the not the law to apply to Slim Shady’s statements.
Crawford has a “three pronged” test to determine if something is inadmissible as hearsay: the evidence is a testimonial statement; the declarant is unavailable as a witness; and the defendant has had no prior opportunity to cross examine the declarant. Defendant maintains that he meets all three of these criteria and thus Crawford is the law to apply.

16. Admission of Slim Shady statements to law enforcement is a violation of his Confrontation rights under Crawford, and thus defendant moves this honorable Court to sustain a motion to suppress those statements.






WHEREFORE, the defendant respectfully requests this honorable Court to grant an order to suppress statements made by the defendant to above named Law Enforcement officials.

June 27, 2006
Respectfully submitted,


____________________
Counsel for Slim Shady