January 8th, 2018

Finding anyone in America, or anyone who has ever watched American television, that cannot recite the Miranda Warning must be nigh on impossible. And the first seven words—You have the right to remain silent—come first for a very good reason: they are the only words you must hear, understand and follow any time find yourself in police custody. As Homicide: Life On The Street, Season Five, Episode 11 of Homicide: Life On The Streets The Documentary preached.

I do wish that I could believe the myth that the police are our friends and they exist to protect and serve us, and I’m certain that many fine and dedicated men and women in both our police forces and our district attorney offices are our friends and do exist to protect and serve us. That is not, however, enough. If events in the 21st century have taught us anything, they have taught us this: police can fuck you up regardless of your guilt.

Take the case of Kirsten Lobato. Jordan Smith, writing in 17 Years After Being Convicted of a Grisly Murder in Vegas, Kirstin Lobato Sees Her Charges Dismissed for The Intercept, explains:

On December 29, more than a decade after she was first sent to prison in Nevada for a murder she did not commit, Kirstin Blaise Lobato saw the charges against her dismissed. “It is the end to her nearly 17-year nightmare,” said Vanessa Potkin, director of post-conviction litigation for the Innocence Project, which took on Lobato’s case. “It’s over.”

Lobato was twice convicted of the gruesome murder of a 44-year-old homeless man named Duran Bailey, whose body was found behind a dumpster off the Las Vegas Strip just after 10 p.m. on July 8, 2001, covered in a thin layer of trash. Bailey’s teeth had been knocked out and his eyes were bloodied and swollen shut; his carotid artery had been slashed, his rectum stabbed, and his penis amputated. It was found among the trash nearby.

Despite a crime scene rich with potential evidence, Las Vegas detectives Thomas Thowsen and James LaRochelle ignored obvious leads and instead focused their investigation on 18-year-old Lobato, based solely on a third-hand rumor.

There is the problem. Our justice system is not interested in justice. Rather, those involved need, demand, closure rates and convictions because those are the scores by which they are judged. And everyone involved, except the accused, are trained well on how to achieve those goals. Consider this earlier scene where Detective Frank Pembleton demonstrates how to get a confession from an innocent man. Or for a longer version, you might watch how Morgan Freeman destroys Gene Hackman in the 2000 movie Under Suspicion. Police and prosecutors—Dick Wolf’s famous duo—bring their prejudices and preconceptions to every crime scene and work out from there to prove themselves right.

Consider the cases of of George Papadopoulos and Reality Winner. Peter Maass, writing in How the Interrogation of Reality Winner Reveals the Deceptive Tactics of “Exceedingly Friendly” FBI Agents for The Intercept, begins:

In late January, George Papadopoulos did what a lot of Americans do when FBI agents ask for a few minutes of their time—he agreed to talk. It’s a decision he likely regrets, because in October the former adviser to President Donald Trump’s election campaign pleaded guilty to making false statements to the FBI. He is now a key figure in special counsel Robert Mueller’s investigation of Russian interference in the 2016 election.

The court files in the Papadopoulos case say little about the conditions of his chat with the two FBI agents. We don’t know how long it lasted, where in Chicago it took place, what its tenor was, or whether Papadopoulos was aware the agents probably knew the answers to most questions they asked. One thing, though, is clear: Papadopoulos engaged in a form of self-harming behavior that defense lawyers always advise against—saying “yes” when a pair of friendly FBI agents knock on your door and ask to chat.

His interrogation was recorded but the transcript has not been released, so it’s impossible to know precisely what the FBI agents might have said that gave Papadopoulos the impression it would be in his interests to talk and to lie. But in another high-profile case, involving former NSA contractor Reality Winner, the government released a transcript of the interrogation. It provides a verbatim example—and a rare example—of how FBI agents ingratiate themselves with unsuspecting suspects and intimidate them into saying things that bring doom upon them.

The interrogations of Winner and Papadopoulos were what the FBI likes to call “noncustodial,” so they were not read their Miranda rights—because, the FBI claims, they were not arrested or detained at the time of the interrogation. (Winner’s lawyers have argued in court filings that she was effectively detained and should have been Mirandized.) By avoiding the obligation to inform suspects of their right to a lawyer and the right to stay silent, the FBI makes it easier to get Americans to say things—whether truths or lies—that will be used against them. The Fifth Amendment protects people from testifying against themselves, of course, and the Sixth Amendment provides the right to legal counsel, but law enforcement authorities get around these constitutional protections by contending that some interrogations are noncustodial. The result is that suspects are enticed into talking before they realize the jeopardy they face and the rights they possess.

“Because warnings are only required prior to custodial interrogation, one way to minimize the impact of Miranda on investigations is to try to conduct interrogations whenever possible in noncustodial settings (such as the suspect’s home or on the street, without arrest-like restraints),” notes an article in Police Magazine, which caters to the law enforcement community. The article bore the headline “How to talk to suspects without Mirandizing.”

There’s a problem with that kind of advice—the presence of law enforcement officers can turn homes and sidewalks into coercive environments, making the distinction between “custodial” and “noncustodial” a murky if not artificial one. The Winner transcript, which was released in September, offers an unusual look inside one of these home interrogations. In its early we’re-on-your-side phase, the interrogation pivoted on Winner’s love of dogs and her CrossFit workouts.

Innocent people are detained, charged, imprisoned, summarily executed in the United States. This recent events have taught us. We continue to suffer these crimes upon our persons today and the only reasonable response to any law enforcement request for assistance might be this: I certainly want to assist you in any way I can, and if you’ll leave me your cards, I’ll have my lawyer schedule an interview in his office as soon as is possible. Good day.


  1. Jeff Hess says:

    Yes, I know that this, like the Homicide clips, is fiction, but there is a clarity in fiction that often cannot be found in journalism. Reading this morning I came across this in James Lee Burke’s Robicheaux:

    Clete Purcell normally referred to cop shows on television as the most recent shit Hollywood is foisting on really stupid people. Clete’s intolerance aside, the facsimile has little to do with the reality. Probably one third of cops are dedicated to the job; one third eat too many doughnuts; and one third are people who should not be given power over others. Female detectives do not show off their cleavage. Many cops carry a drop or throw-down. Cops plant evidence and lie on the stand. In our midst are sadists and racists who taint the rest of us.

    So, by Burke’s fiction reckoning, we have a 1-in-3 chance of getting competent protection. Not great odds.

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