Patriots' Hernandez questioned by police in homicide probe

[SB39]

So I am no lawyer and haven't pretended to be one, but I have a question about this...are you basically saying that in the picture you painted above that the person answering the door doesn't have the right to remain silent?

The right to remain silent means you have the right not to incriminate yourself. But if Joe Smith is hiding in your house and the police come to your door and say "we're looking for Joe Smith as the suspect in a murder case, do you know where he is?" then you're sure coming awfully close to being an accessory if you don't give Joe Smith up.

 

[BradyFTW!]

And you don't know our criminal justice system . . . if actually did you would not have made such a response, and you claim to be an attorney . . . if you did understand our system you would realize that there times when your fate is in the hands of the cops, whether you like it or not . . . if you are caught speeding on 128 doing 66 mph, the cop can let you go or give you a ticket, which you cant defend, for going 66 mph . . . when a cop arrives on a scene of a bar room fight he can either calm the situation down or arrest everyone in the building for A&Bs who was claimed by a witness they threw a punch . . . and so on . . .

. . . there are many example where a cop has the discretion to hall your behind into jail and charge with something that you will very likely not be able to defend or he can let you go . . . at times it is best to not come off like an internet ***** can help the cop err on the side of discretion and let you walk . . . so I repeat contrary to the absolute 100% talk to the hand comments by the want-a-be criminals lawyers here sometimes it helps to have some level of conversation and cooperation with the cops . . .

btw I am an attorney and my practice focus on the appeal of criminal trials, I also practice in the areas of immigration and IP . . .

btw, I know you mentioned you were a lawyer and were asked what areas you practice . .. would you care to answer the question? . . . I have not seen your answer as of yet . . . if you have posted I apologize, but I don't not recall seeing your answer to what areas you practice . . .

The fact that you keep drawing analogies between a speeding ticket and a murder investigation is all that I need to know to determine that you (and a few other clowns on this thread) are hopelessly out of your depth in discussing this stuff.

Analogy is pretty much the weakest form of argument.

 

[PatsWickedPissah]

I eagerly await Patsfan poster Jack Bauer weighing in with his unique expertise and perspective in the next 24 hrs

 

[BradyFTW!]

This does not look good. From the CBS article, it says that the victim was a football player for the Boston team in the Arena league or something. It also said it looks like the victim was shot somewhere else and brought to the area he was found. I certainly hope Hernandez and the two knuckleheads in his house weren't involved. It also says he is not cooperating with police.

"Not cooperating" could basically mean that he didn't invite them into his house and serve them coffee. It's a meaningless statement that gets thrown around when the police are bothered by the fact that you know your rights.

 

[Deus Irae]

No it isn't. If you are a criminal lawyer then you would know much more about criminal law (which is what we are discussing here) than if you were a divorce lawyer.

What a silly notion. What matters is that I'm in the field and that I know the relevant law. Hell, being in the field only matters because you made it an issue. Again, your post:

That's a great post for an internet forum but meanwhile in the real world, a lawyer would advise an innocent client to allow the search and arrange for it to be done (with the lawyer present, of course).

Actually, that's exactly what you were doing. But, when pressed for details, you got awfully quiet.

It's not at all what I was doing. You were being an ass, and then you cracked out the "in the real world" nonsense about what a lawyer would do, so I pointed out that I am a lawyer. Nothing more.

So obviously you're not a criminal lawyer because if you were, you'd be waving that in front of our face too.

I've not waved anything in your face here. You're just clowning yourself.

 

[JackBauer]

So obviously you're not a criminal lawyer because if you were, you'd be waving that in front of our face too.

I'm pretty sure he is, actually. Perhaps a prosecutor, though I could be making that up.

 

[BradyFTW!]

The right to remain silent means you have the right not to incriminate yourself. But if Joe Smith is hiding in your house and the police come to your door and say "we're looking for Joe Smith as the suspect in a murder case, do you know where he is?" then you're sure coming awfully close to being an accessory if you don't give Joe Smith up.

The right to remain silent only becomes a relevant issue after you've been arrested. Prior to arrest, it's presumed. Frankly, if the police haven't placed you under arrest, you're free to turn around and walk away without saying a word to them beyond getting confirmation that you're not under arrest ("Am I free to go?").

 

[SB39]

Spitting into the wind. people should really wait for some actual facts to emerge before reaching conclusions about what happened and what hernadez role in this was, although regardless of what his involvement was opposing fans will label him a murderer for the rest of his life, just as opposing fans of the Ravens have done to Ray Lewis, who while guilty of obstructing a murder investigation was never a murderer. Hopefully those who root for the Patriots and did just that will now get some understanding of just how irresponsible that really was.

There's an awful lot of evidence that Ray Lewis had, shall we say, a much more "hands on" role in that murder case than he was formally accused of.

I won't let my loyalty to a sports team blind my vision with regards to someone's activities. If Hernandez is directly involved, I'll call him what he is. But for now, there's just not enough facts known... though I agree with you that, at best, we are seeing grossly irresponsible behavior.

 

[SB39]

Guess detectives were back at his home this morning. CBS reporter said one of the cops was holding a court document, maybe another search warrant?

Your phrase "another search warrant" implies that they had one last night, but I can't find any reports saying that last night they were executing a warrant when they searched his house.

Do we know whether or not that is the case?

 

[JackBauer]

I eagerly await Patsfan poster Jack Bauer weighing in with his unique expertise and perspective in the next 24 hrs

Sorry to say I got nuthin'! Been too busy filming season 9.

 

[SB39]

The fact that you keep drawing analogies between a speeding ticket and a murder investigation is all that I need to know to determine that you (and a few other clowns on this thread) are hopelessly out of your depth in discussing this stuff.

Sorry, but when you (and a few other clowns in this thread) make blanket statements that people should "NEVER" talk to cops, and "ALWAYS" get a lawyer before saying ANYTHING to a cop, then you invite any type of analogy that proves you wrong (and you have been proven wrong many times already in this thread).

Now, if you want to amend your statements that someone should "NEVER talk to a cop without a lawyer in an investigation of a capital offense" then that would be perfectly fine. But for now, all you people who are boasting about telling cops to **** off even when you get pulled over for speeding are just not living in the real world.

 

[QuantumMechanic]

The right to remain silent only becomes a relevant issue after you've been arrested. Prior to arrest, it's presumed. Frankly, if the police haven't placed you under arrest, you're free to turn around and walk away without saying a word to them beyond getting confirmation that you're not under arrest ("Am I free to go?").

SI's Michael McCann (who is an actual lawyer) said today on D&C and on Twitter that as of this Monday, in a non-custodial situation (i.e. a situation in which you are free to leave) you need to explicitly invoke your 5th Amendment rights if you want to prevent your silence from being used against you. If you just stay silent without explicitly invoking the 5th, your silence can be used as evidence against you.

That said, I wonder if Hernandez really was in a non-custodial situation. If he had said to the cops "Am I free to go?" when they showed up, would they really have said "Yeah, sure." ? I have my doubts..

 

[SB39]

What a silly notion. What matters is that I'm in the field and that I know the relevant law.

Except, "counselor" you're forgetting that when you responded to me, we were not talking about the relevant law, we were talking about legal strategy. Oops!

It's not at all what I was doing. You were being an ass, and then you cracked out the "in the real world" nonsense about what a lawyer would do, so I pointed out that I am a lawyer. Nothing more.

Quite honestly, given your complete lack of professionalism and maturity, not to mention your total evasiveness when challenged on the issue, I doubt you're even really a lawyer in the first place. Just another internet poser wannabe trying to pretend he has credentials he doesn't.

I'm sure you're next response will be how much you don't care what I think, coupled with a silly attempt to further establish your questionable credientials. Of course, if you really didn't care what I thought then you wouldn't bother responding to me. So we'll just have to see how you handle it, "counselor".

 

[BradyFTW!]

Sorry, but when you (and a few other clowns in this thread) make blanket statements that people should "NEVER" talk to cops, and "ALWAYS" get a lawyer before saying ANYTHING to a cop, then you invite any type of analogy that proves you wrong (and you have been proven wrong many times already in this thread).

Now, if you want to amend your statements that someone should "NEVER talk to a cop without a lawyer in an investigation of a capital offense" then that would be perfectly fine. But for now, all you people who are boasting about telling cops to **** off even when you get pulled over for speeding are just not living in the real world.

Considering that murder isn't a capital offense in Massachusetts, I don't know I'd possibly even consider doing that.

Meanwhile, I dunno what you think you've read me saying, but at no point have I even suggested that I ever told a cop to **** off. In fact, the only interaction with cops that I did mention was one where I allowed them to question me when I didn't have to, and that ended very badly for me.

Now, despite the fact that you're clearly having a ton of trouble remembering what anyone actually said on this thread, I'll tell you: If I were to be pulled over, then I'd answer any question with either a "Yes, sir" or a "No, sir". The reason why is because I'd figure that the chances of the cop deciding that he didn't give enough of a **** to write me up would be greater than the chances of avoiding incrimination for a minor infraction that they don't really give a **** about. In other words, the downside to self-incrimination is so negligible that I barely even care if that's the end result. Actual police investigations of almost any kind, obviously, are a completely different story, because innocent or not there's huge downside there that you have to protect yourself against.

I know that you seem to think that that last statement is some kinda 'gotcha' that proves my prior statements wrong, but it simply isn't. Not my problem that you seemingly can't understand basic, simple differences between two premises that have virtually nothing to do with each other.

 

[primetime]

You can keep up the awkward ad hominem attacks all you want, SB39, but your initial post was so misinformed and incorrect that you're just digging yourself into a deeper hole. Cooperating with the police is a bad idea when there is no lawyer present.

 

[PATS68]

It is a little tricky and somewhat involved . . . but criminal law is procedural in that things need to follow a certain order and also there are landmarks if you will in the process that will trigger rights and make actions by the cops unconstitutional . . .

the right to remain silent is not absolute . . . well not absolute in the sense that you can't barred all silent actions from a court of law . . . although most are . . .

Just because you remain silent does mean you have can't be questioned. You have to say it and new case law out of Texas has gone one step further and you have to say to affect something along the lines of your 5th amendment rights

one key landmark in the police inquiry is whether or not the questioning of the cops has rose to the level of custodial interrogation, with interrogation being you are being questioned by the cops, and custodial being whether or not you feel free to leave . . . with the latter being the battleground as the cops questions prove the interrogation prong . . . the custodial is the battleground, at one end a person staying in his doorstep being asked question is not in custodial as he is free to leave as he can tell the cops to leave and close his door . . . at the other end of the spectrum is a defendant in handcuffs answering questions in a 8x8 room at the police station is in custody as not reason person would feel free to leave in that situation . . . fact pattern in between are the battleground, but the two examples above are clear case of each side of the coin

and the rules are different regarding statements and actions before and after custodial interrogation . . . actions prior to custodial interrogation are admissible . . . however with respect to statements the DA here in Massachusetts needs to show that the statements are voluntary (humane practice rule) . . .

You only listed one of the three prongs and there are two others. Knowingly, voluntary, and intelligently. You could have a drunk guy give you a voluntary statement but it does not meet one of the other two prongs that's why there are three prongs and not the one you have laid out


so bottom line although we have the 5th Amendment in this country and the "right to remain silent" . . . non responsive conduct prior to custodial interrogation is admissible . . .

given a fact pattern that AH is being asked entry level questions on his door step, and thus is free to leave and close the door, he is not in custody so there is no custodial interrogation even though there are questions being asked . . . and as such his non response is admissible in court if, as in this case, it is relevant to a crime,

of coarse not all non responsive actions are relevant . .. a non response to a question do you smoke pot is not relevant for anything really, but when the crime is you having the intent to harbor a criminal and prevent the police from finding him a non response to a inquiry of their location is relevant to you intent to keep there location from the cops . . .

What is key for me being a cop and having done several warrants is that a judge agreed with the detectives that there is PC for the search warrant. What must be proven for a search warrant is that a crime was committed and evidence of that crime can be found at X location and in this case it is at AH residence.

 

[BradyFTW!]

SI's Michael McCann (who is an actual lawyer) said today on D&C and on Twitter that as of this Monday, in a non-custodial situation (i.e. a situation in which you are free to leave) you need to explicitly invoke your 5th Amendment rights if you want to prevent your silence from being used against you. If you just stay silent without explicitly invoking the 5th, your silence can be used as evidence against you.

That said, I wonder if Hernandez really was in a non-custodial situation. If he had said to the cops "Am I free to go?" when they showed up, would they really have said "Yeah, sure." ? I have my doubts..

I agree that it's necessary to affirm with the police that you are free to go, as mentioned in my last post. If they say yes, and you leave, then you've committed no crime. Similarly, refusing to speak until a lawyer is present is 100% acceptable.

 

[SB39]

Considering that murder isn't a capital offense in Massachusetts, I don't know I'd possibly even consider doing that.

I did not mean for that term to be taken literally. I just meant to use it as "major offense." I apologize for not being clear.

Meanwhile, I dunno what you think you've read me saying, but at no point have I even suggested that I ever told a cop to **** off.

Oh, I was just referring to the general chest thumping in this thread from clowns relating stories about how they've dealt with police in the past.

 

[Deus Irae]

Except, "counselor" you're forgetting that when you responded to me, we were not talking about the relevant law, we were talking about legal strategy. Oops!

That changes nothing. You made a claim

but meanwhile in the real world, a lawyer

I pointed out that I was a lawyer. End of story

Quite honestly, given your complete lack of professionalism and maturity, not to mention your total evasiveness when challenged on the issue, I doubt you're even really a lawyer in the first place. Just another internet poser wannabe trying to pretend he has credentials he doesn't.

I'm not being evasive, immature, or anything but honest. I'm flat-out telling you that my current job/field/area is none of your business and that it's irrelevant to your question.

I'm sure you're next response will be how much you don't care what I think, coupled with a silly attempt to further establish your questionable credientials. Of course, if you really didn't care what I thought then you wouldn't bother responding to me. So we'll just have to see how you handle it, "counselor".

While it's absolutely true that I don't really care what you think beyond you polluting the waters of the discussion, I don't need to establish anything. You've clowned yourself enough already, and I'm not about to give bar information over the internet.

The reality is that, despite the initial claims of yourself and Yehoodi, attorneys tell their clients not to talk to the police until they've spoken to the attorney. You claiming otherwise flies in the face of what people have posted here, what attorney websites all over the internet say, what the reasoning behind Miranda is, and other clear examples that run contrary to your position.

 

[BradyManny]

And people thought Tim Tebow was going to be a distraction.

:bricks:

Come on, this is the NFL, and the Patriots - we can't go two minutes without media attention.

Granted, in this instance, it's seemingly warranted.

I won't get involved in this legal discussion. I'll just say it would appear Hernandez - like many athletes - is a poor judge of character of the people he keeps close to him. Given the contract Kraft handed to him last year, that is very disappointing to me. Hernandez seems like a good guy. He should keep better company.