Very close to what I would say. TV shows have lawyers showing up at police stations to get their clients all the time. That never happens. If you say “I want a lawyer” questioning will stop. If you call your lawyer he’s going to tell you not to talk. Maybe they will send a fax saying don’t question my client. Then they will send a bill. If you are arrested a lawyer is not going to be able to do anything for you at the police station unless you do want to give an interview. They wouldn’t even be allowed past the lobby.
For most arrests at the local level you aren’t even going to be questioned. There is a warrant or something happened in view of the officer. Miranda doesn’t have to be given if there is no questioning. You will be provided a lawyer sometime in the legal process but not at the time of arrest.
The only time I get to see the process of asking for a lawyer is in municipal court. That is for traffic offenses and what other states call misdemeanors. A lawyer will only be provided for offenses with “consequences of magnitude.” That is loss of license, high fines or possible jail time. If you have a parking ticket you will not get a public defender. The first time in front of a judge he asks if they have a lawyer. If they request a public defender they get some forms to fill out. At the end of the court session the judge brings them back up and rules if they are eligible. They are given a new court date with the public defender.
I guess they can make it hard on you but my own experience is that you will get that one phone call, and they’ll have names and phone numbers of lawyers available, which was the Yellow Pages at one time. Since they need to let you talk to a lawyer before they can ask you anything else then in most circumstances they want to get you a lawyer and get on with their job. I wouldn’t be surprised if they can make it difficult for you, requiring you to spend a night in jail or even a whole weekend in jail.
In my jurisdiction, they never asked anything about citizenship. I represented many undocumented immigrants as a public defender.
And I think a defendant would have a fifth amendment right not to answer the question (if here illegally, as many are)
Anyone present in the country (whether legally or illegally) has all Constitutional protections except for the fact that they can be deported.
So if a prosecutor intends to prosecute someone without means, the state must provide a lawyer. The significant difference would be that that they could decline to prosecute and hand them over to ICE for deportation instead.
I can’t read the entire article , but from the title and what I can read , it appears that the article is about immigration law , not immigrants. There’s a difference - for example, according to the ACLU article someone facing deportation is not entitled to a lawyer at government expense , but that same person would very possibly be entitled to a public defender if they were charged in a criminal case.
I’m not seeing any conflict between theory and reality here. The courts have consistently held that non-citizens inside the U.S. have full Constitutional protection, except with regard to the implementation of immigration policy.
It’s a matter of considerable dispute what protections should apply with regard to immigration (especially asylum seekers), but I don’t think it’s in question whether other Constitutional protections apply.
Once you ask for a lawyer they aren’t even going to think about you and your lawyer, probably ever. Depending on the charge a detective might contact the lawyer at a later date to ask to set up an interview. Your lawyer probably won’t let you except under very specific circumstances and doing it without a lawyer even if you waive your rights later is difficult. There is no need to stand in your way to get a lawyer but a lawyer isn’t going to do anything for you until arraignment. When that is will depend greatly on the jurisdiction.
In my state we have had so-called bail reform for several years. In reality there is no bail except for if you don’t show up for traffic court. If you are arrested for a crime it is presumed to go on a summons. Even if a lawyer wants to come down he’s not going to get there before you are released. If certain criteria are met a warrant will be requested from a judge. Even if a lawyer wants to come down you will probably be sent to the jail before he can get there. Nothing he could do at that point anyway. By law there has to be a status conference before a judge within 48 hours to determine if you will be released with a court date or stay in jail. I suppose a lawyer can help there and they are certainly allowed to attend but most defendants are released anyway with few conditions with or without a lawyer.
We can get into the nuts and bolts but basically I’m trying to say is a lawyer has very little to do in the initial phase after an arrest. In almost every episode of any fictional crime series there is the scene of the lawyer bursting in to pull his client away. I’m not going to say it’s impossible for a lawyer to show up at the station when someone is arrested. I am saying in 25 years I’ve never seen it. Maybe twice I’ve had a lawyer show up with a client to turn himself in. When that happened the lawyer sat in the lobby while we processed the defendant just like anyone else. Except for those times when someone is being asked to give a statement everything the cops have to do with a defendant is routine procedure that won’t involve a lawyer at all.
As for the mechanics of getting your phone call, it’s 2023. We give you your cellphone. You don’t get to keep it while in custody but we will allow you the time to make your arrangements. When you get to the jail you won’t have your cellphone.
In 30-some years of criminal law experience here in Ohio and thousands of cases, I can remember only a handful in which a defendant’s incriminating statements to police were at issue. It’s much more Hollywood than reality, in my experience.
You’re entitled to a free lawyer, either a public defender or appointed private counsel, for any case in which you could go to jail (local incarceration) or prison (a state facility, for felonies), if convicted. Often the mere assertion of indigency will lead to the appointment of counsel, but there are forms to be filled out. Ohio requires payment of a $25 application fee, but that is routinely waived for the indigent.
Interesting. ISTM (a total non-expert) that we could break the causes of that rarity down into 3 categories:
The police / prosecutors have plenty of evidence anyhow already and the defendant’s statements or lack is simply irrelevant to the outcome of case.
The police are scrupulous about not questioning after Mirandizing a suspect and suspects know to a) ask for the lawyer, and b) shut up at that point.
Defendants are pretty much non-stop liars and if they do say anything, it’s a) totally exculpatory, and b) totally non-credible BS.
Does this taxonomy make any sense to you? If so, how would you break down your collective defendants’ actions along these categories. Or am I totally full of BS myself here?
Although there are always a few rocket surgeons amongst the assorted low-lifes who bring a smile to prosecutors’ faces:
There’s another great case he cites in another blog post that I couldn’t search up right now where the victim is in court testifying to the attack upon her and the defendant decides now’s the ideal time for an unrehearsed outburst IIRC close to this:
I shoulda killed the bitch when I had the chance! <pregnant pause> … If I’d been there.
The trial took an unfavorable turn for the defense right about then.
Not disparaging court appointed attorneys but in the first few days after arrest, do they do anything beyond telling you to STFU and plead not guilty at an arraignment giving you time to get your own attorney?
There is the famous YouTube video about not talking to the police (which has been posted here loads of times) where the former police officer says he has had suspects talk to him all the time and it never worked out for them (except maybe once).
I guess that is anecdotal but not sure how to square that with your experience.
Until they see the police reports and have had time to digest them, it’s impossible to give meaningful advice. The court appointed attorney will sometimes (very rarely) notice a significant deficiency in the charging document and make a motion to dismiss. In some instances the attorney needs to do some investigation that is time sensitive (go to the scene before it’s altered, or talk to a witness who might be hard to find later).
