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?
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.