Attorney Scott Campbell

Criminal Defense Attorney

Category: Scott Campbell

A New Reason You Need a Lawyer When Talking to the Police

Most people think they have a Constitutional right to remain silent.  That is close, but the correct right is not to be compelled to be a witness against oneself.  The Supreme Court made that right clearer when it required police to tell people under arrest that they have the “right to remain silent.”

But, what if you are not yet under arrest?  What if you don’t answer police questions, but just choose to say nothing?  Can that be used against you?  Well, what the Supreme Court gives, they also take away.

In a recent case (Salinas v. Texas for those of you who want to read it), the Supreme Court said you have to not answer questions in a specific way in order to not have your silence used against you.  If you just remain silent, a prosecutor can later tell a jury to infer that you are guilty because you remained silent.  That is, unless you say you are not answering because you are claiming your 5th Amendment right not to say anything.

Confused??  That’s the point.  The Supreme Court has made a simple right not to say anything to the police, and not have it held against you, so difficult that you need to have legal training to understand how to do it.

Specifically, The Supreme Court now says it is a “simple matter” to say that you are “not answering the officer’s question on Fifth Amendment grounds.”  Right.  Lawyers and judges debate what the 5th Amendment means, but it is a “simple matter” for ordinary citizens to know when the 5th Amendment applies, and how to correctly assert the rights it contains.

Again, rights we fought a revolution for are being eroded.  The lesson to be learned is to get a lawyer before talking to the police.  Just refusing to talk can be as bad as saying the wrong thing.  Make sure you are staying silent the right way.

Do Cops Lie?

Of course they do.  Everyone lies at some point, even if they justify it as a “little white lie.”  Cops are no different, though they want to be thought of as somehow above being human.

I break down the lies cops tell in three categories: the outright lie, the situational lie, and the unintentional lie.  All are just as bad when someone’s freedom is on the line, but it helps to understand the motivation for the lie so an attorney can counteract it.

The Outright Lie.  I have seen this.  It can be the planting of evidence.  It can be the lie that cannot be disproved.  It is intentional, and justified as “he is bad, I am good, and he deserves to be punished because he is bad.”  It is intended to convict someone who has done nothing but attract the attention of a cop who thinks he is a bad person.  It happens more than even police departments think it does.  It happens because the people who do it plan the lie, swear to the lie, and it can’t be disproven.

The Situational Lie.  Police sometimes lie on purpose.  They will tell you they lied and they are allowed to.  Actually, the Supreme Court of the United States has approved a lie in pursuit of the truth.  Frazier v. Cupp, 394 U.S. 371 (1969).  They will tell you that a lie in pursuit of the truth is a “good lie.”  They justify lying because, in their mind, the ends justifies the means.  I think this is just as wrong as the outright lie.  It turns the cop, who is entrusted to tell the truth, into a liar—whether intentional or not.

The real problem comes when they are testifying in court.  Can they turn it off?  Can they admit that they lied while they were doing their job?  It is human nature to say “I always tell the truth, that is why you can believe me now.”  It is much more difficult to admit to lying, then say “but now I am telling the truth.”

The Unintentional Lie.  This one is usually chalked up to different people seeing the same thing and having different points of view.  It involves shading words, hedging on accuracy, and presenting something that can be seen in two ways as absolutely one way—obviously the one that convicts the person on trial.

This lie is the hardest to deal with.  The argument will be “hey, they just see things two different ways.”  But what happens when your side is absolutely true, and the cops testimony is of this type.  It crosses over to the situational lie.

The end result, no matter how it is characterized, is that cops lie.  The next step is to deal with it.  The best was is not to even talk to the cops. (see the post below titled “Don’t Talk To The Police!”)  But, if you just can’t resist talking to someone whose sole purpose at that moment is to put you in jail, at least record the entire conversation.  Don’t rely on them to do it.  All they have to do is say they didn’t record it, or they thought they did but the recorder malfunctioned.  They will lie then lie about lying.  Record it, download it, and email it to your attorney or yourself so it doesn’t disappear.  From an attorney’s point of view, there is not much more satisfying than cramming a lying cop’s words down his throat.

The Border Patrol Video

Scroll down and you will see a video of me cross examining a Border Patrol Agent.  I am often asked about the case and how the cross examination of the State’s witnesses went, especially Agent Gomez.

Agent Gomez was in an impossible position.  He was a well-meaning Agent doing what he was told.  The problem for the government was they were running the checkpoint in a manner counter to the Constitution.  This was not Agent Gomez’s fault.  Any agent sitting in that chair would have looked just as foolish because I knew where I was going to take him…the case was there.

For those wondering what happened after Agent Gomez testified, the answer is that the K-9 handler was coming up next and was going to have to explain how his dog could tell the difference between a concealed human and an unconcealed human.  That would have been interesting, but we never got that far.  The Judge dismissed the case on an evidentiary matter (a classical technicality).  The State appealed the dismissal, the case was reinstated, and Pastor Anderson got a jury trial.  The verdict was not guilty.

For Agent Gomez, if you ever read this, my cross examination was not personal to you.  Someone was going to look foolish on the stand, it just happened to be you at that checkpoint that night.

To any potential client, you see my style.  Prepared and direct.  If that is what you are looking for in your attorney, give me a call.

Gideon Should Be Expanded

I recently read an article about the 50th anniversary of Gideon v. Wainwright.  For those not familiar, it is a Supreme Court decision that says that a person who is charged with a crime and faces a jail or prison sentence has a right to a lawyer, even if he can’t afford one.  This decision gave rise to our Public Defender system.  Prior to Gideon v. Wainwright, a person who could not afford his own lawyer on ly got a free lawyer in certain circumstances.

Prior to Gideon, many poor defendants were railroaded into convictions and imprisoned, even executed, without having any legal assistance.  Now, if you are facing even one day in jail you are entitled to a public defender if you cannot afford your own lawyer.

As far as it goes, Gideon was a landmark and correct decision, and a great advancement in our legal system.  The system, however, has found an oft-used bypass to Gideon.  The prosecutor simply tells the judge that the government will not ask for jail time, and the judge tells the defendant that regardless of the outcome he will not impose any jail time.  This leaves the defendant who cannot afford a lawyer to make legal decisions and even go to trial without a lawyer.  It is wrong, just plain wrong.

The government spends a lot of money for police, investigators, and prosecutors.  A person accused of a crime, even one where there is no possibility of going to jail (for this particular crime), is completely out gunned and out spent.  Even a minor crime can have consequences far beyond some jail time, but these are seldom told to the defendant and often even unknown to the prosecutor or judge.  A couple examples:

Some misdemeanors become felonies if there are prior convictions for the same offense.  This is routinely told to a defendant who is pleading guilty, but often only then.  He has not had enough time to consider this impact and factor it into his decision whether to go to trial.

A DUI conviction can keep you from being allowed into a foreign country.  Canada can and does exclude even tourists who have a DUI conviction.  In most states, a first offense DUI does not require jail time, and therefore does not require a lawyer be appointed.  Has anyone heard of a DUI defendant being told of this consequence?

I am sure I could come up with more collateral consequences to a “minor” criminal conviction.  As I see it, any criminal charge should entitle a person to a lawyer even if he cannot afford one.  If the government wants to spend money on enforcement and prosecution, why should it not be required to spend some on the other side?  Seems fair to me.

Defending Guilty People

Another question I, and I am sure every criminal defense lawyer, am asked is how I can defend people who I know are guilty.  I think I speak for all defense lawyers when I say that first it is standing up for the “little guy” against a massive prosecution machine, and second it is helping someone at a time that they need help the most.

The government, whether it be State or Federal, is well equipped to investigate and prosecute people.  They have unlimited resources in time, equipment, and investigators.  Many times, a person gets arrested after this massive investigative and prosecutorial machine has already done most of its work.  Other times, a person is arrested then the machine spends its resources justifying the arrest and prosecution.  No one, except the very rich, has resources to match the government’s effort to put them in prison.  So what is a person to do?  Most others would say he should just roll over and take what’s coming.  That, though, is not part of our adversarial justice system and would ultimately lead to a government running roughshod over the rights we fought to guarantee.

The answer is for a defense lawyer to represent the accused.  Someone to stand up and say “hold on, if you’re going to try to put my client in a cage, you’re going to do it by your laws and your rules,” (the government does, after all, pick its own playing field).  Also, someone needs to question whether the zealots that are police and prosecutors are being truthful.  It is sad, but we too often find them fudging the truth, or even outright lying, in their crusade to rid the world of “evil.”  The defendant does not have the knowledge, training, or often the freedom to do this.  It is his lawyer, most of the time a lone wolf, who protects his rights.

The other reason to defend those who a lawyer knows to be guilty is that the lawyer is a professional, and with that comes helping people when the help is needed most.  When people suggest I should not defend someone who has committed a crime, I ask if a doctor should treat a person who has lung cancer after a lifetime of smoking.  Their answer is always “yes, the person is sick, that’s what a doctor does.”  Exactly.  Doctors do not make moral judgments about how their patients came to need their help.  Accountants do not make moral judgments trying to extricate people from self-created tax problems.  Priests don’t judge those with moral issues.  If they did, there wouldn’t be much work to do—for the doctor, the accountant, or the priest.

I don’t make moral judgments either.  Many of my clients, maybe most of them, I wouldn’t mind being neighbors with.  They are good people who did something momentarily dumb.  Some I don’t want to know where I live or anything else about me.  But that does not make a difference in how I, or any good defense lawyer should, defend them.

We all do stupid things; some deliberately and some in a weak moment.  But just like needing a doctor, accountant, or priest, we sometimes need a lawyer, one who does not judge, to stand up and make an argument.

We Do It To Ourselves

People fight wars against tyranny and to gain freedom, then spend the ensuing years making laws that take that freedom away.  I heard that a long time ago, and don’t recall the source so I can’t properly cite it, but it is oh so true.  Our system is set up to elect lawmakers year after year and they dutifully go off to our City halls, County seats, State capitals, and Washington DC, and create laws.  When they can’t make laws fast enough, or want to avoid the work and political heat for creating them, they simply authorize administrative agencies to create regulations.  I heard a story about a cab driver in Singapore, when asked how things were in his country, who said “fine…for everything you do, there is a fine.”

When is it enough?  When will our lawmakers look around and say “Ya know, I think we have enough laws.  Let’s just do nothing.”  The obvious answer is never.  There will always be some interest group, or some politically strong faction, who will want to impose their idea of what is good for the rest of us on all of us.  The lawmakers will pass the laws, slap themselves on the back for doing good, then go on to their main business; getting reelected.  That is, after all, what they are really interested in.  Just like the rest of us, they want the steady income and benefits that their job comes with.

When does it stop?  The next revolution.  Sooner or later, all the laws and regulations that accumulate become our own self-made tyranny and a large enough group will revolt.  I am not advocating violence.  I hope any “revolution” in the future can be done peacefully.  But even if it is peaceful, the result will be a new order with new lawmakers.  And so it will start again.  We do it to ourselves.

How Can I do It?

I am often asked how I can represent those accused of crimes after I spent so many years as a police officer.  The answer is twofold – I believe the Constitutional rights of people are being eroded and I believe some police officers abuse their authority.

Our Constitutional rights, in my opinion, are the most important aspect of being an American. Our forefathers fought a war to guarantee them and protect people from government.  Since then, and especially in the past few decades, Congress, legislatures, and the courts have marched ahead with laws and court decisions that have eroded those rights in a misguided attempt to punish all “bad people” with little regard for the privacy of the general public.  The most significant encroachment in our rights is the reduced protection we have from unreasonable searches.  The law seems to be constantly changing giving the government, through the police, more and more legal ability to search people and their possessions in an effort to discover illegal activity.  What this does, however, is allow more and more searches that find nothing because there was nothing to be found.  I simply believe that the attitude of “if you don’t have anything to hide, why should you mind me looking” is wrong.  I am committed to be part of the resistance to this destruction of our Constitutional rights.

I know that police officers are entrusted with a great deal of authority and more power than any other actor in government.  They have the power to take away your freedom by arresting you.  They have the power of life and death with no prior review of their actions.  I know that while most police officers are honest, hardworking people, some are on a crusade to try to punish everyone who commits even the smallest infraction. Those crusading  officers will do anything, legal or illegal, to do that. But more than that, even the ones who consider themselves honest will occasionally bend the rules (our Constitutional rights) because they think a small violation of someone’s rights is justified in the pursuit of discovering what they think is obvious criminal activity. This “bending of the rules” is just plain wrong.  Yes, some people commit crimes, even horrendous crimes.  But when rights and laws are violated in the pursuit of arresting those who may be committing crimes, the ultimate result is a police state where no one has any protection from government or its agents.  I believe that, if there is no “push back” against this abuse, our rights will slowly but surely disappear.

The Exclusionary Rule – Half a Loaf Leaves Us Starving

In 1949 the Supreme Court of the United States announced what has become known as the “Exclusionary Rule.”  The Rule says that when police perform a search or seizure later determined by a court to be illegal, any evidence discovered as a result of that search or seizure is suppressed, or not allowed to be used as evidence in a trial.  The Rule extends to evidence discovered as a result of the illegal evidence, such as when an address book is illegally seized the contents cannot be used to find additional evidence against the owner of the address book.  This is commonly known as the Fruit of the Poisonous Tree Doctrine.

Prior to the Exclusionary Rule, the victim of an illegal search or seizure could sue the offending officer in civil court.  This was not effective because those found with something illegal do not make very sympathetic plaintiffs, and trying to put a dollar figure on damages for violating Constitutional rights is very difficult.  The Supreme Court recognized this when they created a new remedy for illegal searches and seizures – the Exclusionary Rule.

The Rule, as far as it goes, is good.  It is supposed to keep police honest in their search tactics because if they cross the legal line, all their efforts are wasted.  But does it.

There are two glaring problems with the Rule.  First, it does not stop police from crossing the line, and second it does not protect the innocent.

Those who know me or who have visited my website know that I am a retired police officer with many years spent in major crimes investigation.  I have performed thousands of searches.  I have obtained hundreds of warrants.  I know where the grey areas are.  The grey area exists when an officer does not think he has enough information to get a warrant or does not think the suspected crime is worth the time and effort to get a warrant.  He then reverts to the police saying that “there is no such thing as an illegal search, just suppressible evidence.”  This statement may seem odd to some, but to an officer who knows that he faces no legal consequences (to himself personally) the only risk is having evidence suppressed.

Let me explain further.  Many years ago when I was taking a beginning class in homicide investigation, a very experienced homicide investigator taught that we should gather all the evidence we could, in the best way we could, then leave it to the lawyers to figure out what was admissible.  This seemed like good advice – if you didn’t have the evidence in the first place, it could never be ruled admissible.  But think of the consequences of this advice.  I was being told not to worry about the legality of the search; I was being told not to worry too much about where the legal line was.  Why?  Because there were no personal consequences to me for crossing it.

More than police having little regard for the legality of their actions, what about all the illegal searches that turn up no evidence, suppressible or not?  What about the police illegally searching your car and finding nothing?  Where are the restraints there?  What are the consequences to police?  There is no chance for a civil suit to succeed and very little chance that a complaint to the police agency will go farther than a first line supervisor blowing off any complaint.

If you or I did what the police do with impunity, we would be arrested and prosecuted.  If I went into your house looking for drugs, I would be charged with burglary.  If the police go into your house without a warrant looking for drugs, the drugs – if any are found – get suppressed.  If none are found, the police attitude is “oh well.”  Why do the police get a pass?

The Exclusionary Rule is not enough.  Yes, illegally obtained evidence should be suppressed.  However, there should be some consequences to the police officer for performing an illegal search, whether evidence is found or not.  Historically, search warrants were a time-consuming thing to get.  It would literally take hours to type an affidavit and warrant, drive to meet a judge, have the judge consider the circumstances, perhaps revise the affidavit, have the judge sign the warrant, then drive back to the location of the search.  Today, officers get warrants in minutes, either through fax or even by a recorded telephone conversation with a judge.

Why then shouldn’t officers be getting pre-approval for even routine searches as a way to protect our right to be free from “unreasonable searches and seizures.”  Why shouldn’t officers who refuse to have a neutral judge determine before a search whether probable cause exists be subject to the same laws and consequences as the rest of us?  Why should police be able to root through our things for no reason, not find anything, and just walk away?

Why not prosecute police officers for searching without probable cause, just like you or I would be prosecuted?  Why not put a statutory value on our Constitutionally protected rights – a civil punishment for police officers violating our rights?

We give immunity to judges for their actions.  We give immunity to prosecutors for their actions.  With nothing beyond the Exclusionary Rule to protect us, we are giving de facto immunity to police also.  Where is the accountability for government and its agents when our Constitutional rights are violated?

Some will read this and think me radical.  I think a government whose actors do not face the same consequences for their actions as those governed is abusive and on the way to being totalitarian.  It’s not King George, it is King Government with a million princes.  We fought a revolution against one, and we are just rolling over for the other.

Pastor Anderson Trial Excerpts

 

 

Attorney Scott Campbell Gets Acquittal

 

Douglas Gilford was acquitted of all charges today at a trial in Quartzsite Municipal Court. First all the prosecutor’s witnesses were heard. Thereupon, Gilford’s attorney, Scott Campbell, motioned for acquittal because he felt the State had not made a sufficient case to continue the trial. Judge Sherwood Johnston III recessed for 20 minutes to consider, then returned the verdict. Less than three hours were consumed with the proceedings.

 

Gilford is a local blogger, videographer, and openly critical of Town Hall administration and Quartzsite Police Chief Jeff Gilbert and officers.

 

Judge Sherwood Johnston III made no statement on his ruling, however arguments made by Gilford’s attorney, Scott Campbell, focused on the constitutional right to video record in a public place. Town Manager Alex Taft stated she was the person who made the rule not to allow video taping at the front desk of Town Hall, to “protect the privacy of our customers”. Taft also said she didn’t consider the constitutionality at that time, but said she “considered the rights to privacy, that videos could capture private information.”

 

Witnesses for the State included Town Manager Alex Taft, Assistant Town Manager Al Johnson, QPD Officer Rodriguez, Sgt. Frausto, Sgt. Garcia, and former Mayor Jose Lizarraga (who was not called to testify).

 

Officer Rodriguez stated he was sent to Town Hall Sept. 1, 2011 with orders from Sgt. Frausto to arrest Gilford. A text message was also sent to him listing the charges. An audio of that arrest was presented, as well as two other videos taken at Town Hall on Sept. 1st and July 11th.

 

Regarding the charges of false reporting to law enforcement officers, Gilford’s defense attorney Scott Campbell argued that what Gilford said on the report was true; while Prosecuting Attorney Thomas Jones responded that Gilford called 911 when there was no actual emergency.

 

Gilford’s attorney Scott Campbell motioned for acquittal because he felt the State had not made a sufficient case to continue the trial. Judge recessed to consider, returned and announced acquittals on all charges.

 

 

Scott Campbell performed spectacularly today.

 

Your company motto is not an overstatement.

 

My expectations were exceeded

 

as soon as Scott began in court.

 

Doug