Court Calls Out Cops For Altering Interrogation Transcript To Hide Suspect's Request For A Lawyer

from the inconvenient-facts dept

The opening of this recent decision [PDF] by the Maryland Court of Special Appeals is eye catching. It quotes Breaking Bad prequel, Better Call Saul. More specifically, it quotes Jimmy McGill, who gradually morphs into the more-huckster-than-lawyer Saul Goodman over the course of the series. The case has to do with a murder suspect's request for a lawyer, one that was ignored by law enforcement. The quote sets the stage, letting readers know anyone accused of anything by law enforcement is better off exercising their right to be represented. (h/t Keith Lee)

Craig Kettleman: I just think I'd look guilty if I hired a lawyer.

James McGill: No, actually it's getting arrested that makes people look guilty, even the innocent ones, and innocent people get arrested everyday. And they find themselves in a little room with a detective who acts like he's their best friend. “Talk to me,” he says, “Help me clear this thing up. You don’t need a lawyer, only guilty people need lawyers” and BOOM! Hey, that’s when it all goes south. That’s when you want someone in your corner. Someone who will fight tooth and nail.

Mynor Vargas-Salguero was arrested and convicted of second-degree murder, robbery, and theft. The lower court sided with the government, finding his demands for a lawyer "ambiguous." The Appeals Court disagrees, finding it clear enough, especially when the recording of the interrogation is compared to law enforcement's transcript of the recording's contents.

That's where the real ambiguity lies. Or rather, there doesn't seem to be much ambiguous about law enforcement's attempt to retcon the post-arrest questioning to make Salguero's request for a lawyer vanish into the ether.

There was a language barrier but not an insurmountable one. Salguero's first language is Spanish but he knows some English. Two of the detectives present spoke Spanish. One spoke only English. Occasionally, translation was needed for the single English-only speaker in the room. But, for the most part, the interrogation flowed. The detectives told Salguero he wasn't being charged with anything, despite hauling him in with an arrest warrant. Salguero made it clear he wasn't interested in talking if he didn't get a lawyer.

The first demand came early in the interrogation when the detectives tried to determine Salguero's daily routine.

[DETECTIVE DELEON]: Okay. Tha—that’s why I asked you.

A: At 5:30 my ride wakes me up, there at the house where I live—lived right now with my sister, that I just moved in. [DETECTIVE DELEON]: Right.

A: And I go to work. That’s all I have to say to you. And if you accuse me of something I better want an attorney. (underlining added).

The detectives apparently understood this as a request for a lawyer. But they forged ahead with the interrogation after a brief pause. One of them acknowledged this during the interrogation, but that was conveniently left out of the transcript prepared for the court.

A: Right. Ask me whatever you want.

[DETECTIVE BELLINO]:Okay. Maybe…

A: People confuse me and—this has to be this way, man.

[DETECTIVE BELLINO]: Hold up, just a moment ago you said you wanted a lawyer but you’re willing to talk to us right now, right?

The footnote exposes the alteration by law enforcement.

The bolded text represents the words Mr. Vargas-Salguero spoke during the interrogation—as the circuit court and we can see on the video—that the police left out of the transcript they prepared and submitted to the court.

[...]

The record does not reveal, nor do the police explain, why their transcript deviates from the interrogation. The discrepancies were not identified to the circuit court, and the court made no findings about them; the court reviewed both the transcript and the video, and thus could consider the full interrogation, but didn’t address the differences. We cannot help but notice, however, that the officers’ transcript omitted words Mr. Vargas-Salguero in fact said at two critical points in the interrogation, and that the omitted language bears directly on whether the officers understood that Mr. Vargas-Salguero invoked his rights to counsel and to remain silent.

Here is the second critical point where the transcript deviated from the video:

A: In what moment did – did – I don’t want to say anything else now. Because I have nothing else to say. I have nothing else to tell you. Me, killing a poor man. (unintelligible.)

[DETECTIVE BELLINO]: Go ahead here.

[DETECTIVE DELEON]: Here.

A: There, what? Go ahead, what? What you got in there? What do you say? I don’t see anything there. Nothing.

[DETECTIVE BELLINO]: Look are you willing to talk to us? I thought you said you didn’t want to talk. Do you want to talk to me? Are you willing to talk to me?

A: Yeah.

The cop version:

The police-prepared transcript says only “I understand you want to talk.”

The transcript also fails to show what actually occurred during this moment. The Spanish-speaking detectives chose not to translate this assertion of Salguero's right to remain silent for Detective Bellino. Instead, the Detective DeLeon decided to stand back and let Bellino keep hammering away at Salguero in the suspect's non-native language.

The government argued Salguero's statement was ambiguous. The court points out it wasn't -- not when the context is considered.

Now back to Mr. Vargas-Salguero. The condition “if you accuse me of something” in the first half of his statement had indisputably been met, at least in the way that a normal person—and a reasonable police officer—would consider himself “accused of something.” At the time he made these statements, he had been arrested at his home in the middle of the night pursuant to an arrest warrant, issued by a court, that included serious crimes, and was being questioned in an interrogation room by three detectives. He mentioned (and lamented) several times that he felt like he could be going to jail for a crime he didn’t commit. It doesn’t matter for these purposes whether the charging documents had triggered his Sixth Amendment rights (we’ll deal with those below), or that the detectives claimed that he wasn’t being accused of anything. Maybe he “sought to couch [his] request [for an attorney] in polite or (more likely, given the context) deferential terms,” Ballard, 420 Md. at 493, but he was there because he had been, and was being, accused of serious crimes.

With that condition met, Mr. Vargas-Salguero’s statement that he’d “better want an attorney,” the officers’ translated understanding of his statement in Spanish, sufficiently invoked his desire for an attorney. Other cases have held “I think I want an attorney” or “I’d rather have an attorney” was sufficient. See, e.g., Harris, 305 S.W.3d at 489 (suspect invoked right to counsel by stating “I’d rather appoint a lawyer”); McDaniel, 506 S.E.2d at 23 (suspect invoked right to counsel by stating “I think I would rather have an attorney here to speak for me”). This statement was at least as strong as those.

Furthermore, the detectives' own actions indicate they at least thought Salguero had exercised his right to demand an attorney. They stopped the interview and stepped out of the room to discuss his "if you accuse me of something…" statement before apparently deciding they might be able to get away with ignoring his request. Detective DeLeon's statement -- conveniently excised from the official transcript -- further indicates he understood Salguero's statement to be a request for a lawyer. ("Hold up, just a moment ago you said you wanted a lawyer…")

The same goes for Salguero's right to remain silent. This was invoked when he said he had nothing more to say and pushed back from the table. This statement -- made in Spanish -- went conveniently untranslated and the Spanish-speaking detective too pushed back from the table to let the single non-Spanish person in the room override the invocation of a Fifth Amendment right.

The Appeals Court reverses the lower court's decision and sends it back, pointing out it clearly erred by allowing the government to submit an illegally-obtained confession as evidence. No evidence is as harmful to a criminal defendant as a confession, so there's no chance the lower court can claim the two violations of Salguero's rights were "harmless."

The examination of the transcript and the recording by the Appeals Court clearly indicates why all in-custody interrogations should be recorded. Relying only on a version of events written by those with a stake in the outcome results in the sort of malfeasance exposed here. The court won't go as far as to accuse law enforcement of lying, but it does make it clear it will trust videotape more than it will trust cops.


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  • icon
    Anonymous Anonymous Coward (profile), 6 Jun 2018 @ 3:25pm

    Well, it's better than the FBI

    Even in this day and age of recording devices in almost everyone's pockets the FBI still relies on two agents in the room taking notes...notes that may or may not reflect the actual conversation. In this case they had a recording, and then took notes to reflect what they wanted the notes to reflect. The big problem...they got caught. Oh, and what the hell was the lower court doing? Extended nap?

    And the really, really sad part? The cops and prosecutor will suffer little if any consequences due to their illegal acts.

    reply to this | link to this | view in chronology ]

    • icon
      mhajicek (profile), 6 Jun 2018 @ 11:15pm

      Re: Well, it's better than the FBI

      What will we do when falsifying audio recordings becomes trivial enough that even cops can figure it out?

      reply to this | link to this | view in chronology ]

      • identicon
        stine, 7 Jun 2018 @ 8:43am

        falsifying recordings: was Re: Well, it's better than the FBI

        I hate to say it but I think it means that no-one speaks to a law enforcement officer, but instead writes 'i demand a lawyer' on the table in Sharpie.

        reply to this | link to this | view in chronology ]

    • icon
      Anton Sherwood (profile), 7 Jun 2018 @ 5:35pm

      Re: Well, it's better than the FBI

      I once heard a lawyer say that when he switched on his tape recorder the FBI agents suddenly decided they didn't need to chat with his client after all.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Jun 2018 @ 4:31pm

    Check prior cases

    Generally, once you start violating peoples rights, it becomes a slippery slope of good intentions. The end result just like the Stanford Experiments shows us is injustice on a wholesale level.

    reply to this | link to this | view in chronology ]

    • identicon
      norahc, 6 Jun 2018 @ 5:50pm

      Re: Check prior cases

      And aspects of our criminal justice system are barrelling head first down that slope like it's a slip and slide.

      reply to this | link to this | view in chronology ]

  • icon
    discordian_eris (profile), 6 Jun 2018 @ 5:48pm

    “When someone shows you who they are, believe them” - Maya Angelou

    Law enforcement at all levels have shown us who they are. Unreliable, unprofessional, undisciplined, and corrupt to the depths of their souls. Unfortunately this is America, so there really isn't a viable solution.

    The cops are too cowardly to clean up their act. Legislators are too cowardly to pass reforms of almost any kind. And the judiciary, all the way up to the Supreme Court is too cowardly to do their fucking jobs and actually enforce the constitution. District attorneys can have video and audio of cops murdering people in cold blood and refuse to bring charges.

    Every single time the list of the most corrupt countries comes out, I am astonished that the US is considered one of the least corrupt. Until, of course, I remember that the list is compiled by Americans.

    reply to this | link to this | view in chronology ]

    • identicon
      Christenson, 6 Jun 2018 @ 8:53pm

      Re: List Compiled by *rich* americans

      That is, the average compiler of the list is rich enough not to have to much real contact with corruption unless they are doing the corrupting.

      Two counterexamples in my experience lately: The Verizon store and the DMV or County Clerk's office when purchasing a vehicle; in both cases it's a few hundred bucks and a few hours and no worse than that.

      reply to this | link to this | view in chronology ]

    • identicon
      Andy, 7 Jun 2018 @ 8:25pm

      Re:

      Remember when you see the riots and cities burning to the ground , this is why that happens, the population has had enough and in some cases the outrage results in violence, understandable when you know for a fact that the cops lie and do more harm than good getting away with theft of money and possessions and even outright videotaped murder.

      What is scary is that in America everyone has he right to a gun..what happens when cops are attacked by thousands of protesters that are armed and willing to use there weapons.

      There could be a total breakdown of the rule of law and police and judges and any typical law enforcement targeted, starting a war that could end up with many dead on both sides and both sides blaming each other.

      reply to this | link to this | view in chronology ]

      • icon
        Shaun Wilson (profile), 8 Jun 2018 @ 6:14am

        Re: Re:

        So... a second "American Revolution"?

        As an outsider, it's my understanding that this is precisely why you guys have your second amendment - so that a second revolution, if needed, had a chance of succeeding. Or am I missing something here?

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 8 Jun 2018 @ 12:10pm

          Re: Re: Re:

          Well, there is that bit about a well regulated militia, as without organization all you have is mob violence an opportunity for a tyrant emperor to seize power.

          reply to this | link to this | view in chronology ]

    • icon
      jupiterkansas (profile), 10 Jun 2018 @ 2:36pm

      Re:

      For something to be called "corruption" it has to go against the legal system. If the legal system permits it, it's not "corrupt" but "unjust."

      The U.S. isn't corrupt, it's unjust.

      reply to this | link to this | view in chronology ]

      • identicon
        k, 10 Jun 2018 @ 7:17pm

        Re: Re:

        Nonsense, Louisiana didn't have a law against bribing state officials until the mid-20th century, but bribing a public official is inherently corrupt.

        reply to this | link to this | view in chronology ]

  • identicon
    Docrailgun, 6 Jun 2018 @ 11:52pm

    Law enforcement doesn't have to stop talking to anyone just because they ask for a lawyer. They SHOULD, if they want to use anything they get from the person in court after that request, but they don't have to... especially if they can convince a judge later that whatever was said wasn't important to the investigation.

    This is why police spend so much time "detaining" people and questioning them without arrest, because the Miranda warning only happens after arrest.

    Let's also remember that the Miranda warning isn't some magical "get out of jail free" card like on TV. You won't be set free if a cop forgets to recite it and their case isn't ruined. It doesn't protect you from interrogation or near-torture tactics like keeping a suspect in a room for hours, not giving them water or food, and so on. All the Miranda warning does is remind the person that they have a right not to incriminate one's self.

    The police can do anything they want to do to you, include hold you incommunicado and uncharged for as long as they want. All you can do is sue them... but what if you don't have any money, or don't speak English well, or noone knows where you are? The police aren't going to go find you a pro-bono lawyer if you don't ask for one... and what if you get one? They're so overworked that maybe suing the police force isn't high on their priority list then they're just trying to keep from losing people in the legal system.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 7 Jun 2018 @ 4:39am

      Re:

      Chicago is famous for this kind of thing. They even have black site buildings where beatings and other rights violations are intended to be done, outside of any documentation of course.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 7 Jun 2018 @ 11:00am

    And as usual, doesn't go far enough. The court ignores the issue that usually it is the State's Attorney who provides the transcript.

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 7 Jun 2018 @ 2:05pm

    'Now, I'm not saying you're lying, just that I don't trust you.'

    The court won't go as far as to accuse law enforcement of lying, but it does make it clear it will trust videotape more than it will trust cops.

    The court needs to grow a spine and call them out on their actions. If the tape/recording shows/says one thing, and the police claim another, then they are lying.

    By giving them the silk-glove treatment the court provides no incentive for police to not lie, as worst-case scenario their claims get tossed and no-one gets punished. Either hand out some punishments or quit and let someone who is willing to do so take the job.

    reply to this | link to this | view in chronology ]

  • icon
    Shaun Wilson (profile), 8 Jun 2018 @ 6:37am

    That's a new one

    The court ... does make it clear it will trust videotape more than it will trust cops.

    I pretty sure it was on this site only a few years back that we heard that a cop's recollection could be trusted more than a video. If I remember right it involved a camera in a police van showing a prisoner being assaulted by a cop and the court deciding that the cop's memory (of "helping") was more reliable than the video of the assault.

    reply to this | link to this | view in chronology ]


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