Monday, August 25, 2008

Texas Executive Clemency

Several potential clients have called recently asking about applying for a pardon. In Texas, the governor has the authority to grant clemency (a pardon) upon the written recommendation of a majority of the Texas Board of Pardons and Paroles. Clemency includes full pardons, conditional pardons, pardons based on innocence, commutations of sentences, and emergency medical reprieves. Capital cases are an animal all their own and won't be discussed in this article.

A full pardon restores certain citizenship rights forfeited by law as the result of a criminal conviction, such as the right to serve on a jury, the right to hold public office, and the right to serve as Executor or Administrator of an estate. A full pardon removes barriers to some, but not all, types of employment and professional licensing. Licenses are granted at the discretion of the state licensing boards of each profession, and it's advisable to contact those boards directly to learn whether a pardon is necessary or sufficient to restore licensing eligibility. A person who is convicted and who receives a full pardon is entitled to an expunction of all arrest and court records relating to the conviction. Importantly, an arrest is not automatically expunged upon the grant of a full pardon.

Interestingly, in Texas voting rights are automatically restored when a person discharges a felony sentence. Effective September 1, 1997 the legislature restored voting rights to felons convicted in Texas once a person fully discharges the felony sentence, including any term of incarceration, parole, or supervision, or completes a period of probation ordered by any court. See Texas Election Code, sec. 11.002.

A person with a conditional pardon remains subject to conditions of release. A conditional pardon does not restore civil rights or rights of citizenship, and the governor can revoke the pardon if a person does not comply with the conditions of release. A pardon based on actual innocence exonerates the person of the crime and erases the conviction. To consider a pardon for innocence, the Board requires either evidence of actual innocence from at least two trial officials, or the findings of fact and conclusions of law from the district judge in a state habeas action indicating actual innocence.

Applying for executive clemency is a service many Texas criminal defense attorneys provide for prospective clients.  Next time we'll look at the application process and how a good defense lawyer can help the client navigate these tricky waters.

Tuesday, August 19, 2008

Miranda and the Psychology of the Confession

Last week we looked at police interrogation techniques as they related to Miranda.  We learned police interrogations were carefully designed, guilt presumptive processes which worked by increasing a suspect's anxiety, instilling a feeling of hopelessness, and distorting their perception of choices . . .  all leading them to believe they will benefit by making a statement to the police.  

In review, we learned the police wanted to first isolate a suspect, allowing them to sit alone and in sparsely furnished surroundings.  This increased stress and increased the person's incentive to free themselves from the situation.   Then by confronting the suspect outright the police hoped to increase anxiety and induce a sense of hopelessness.  

Investigators regularly confront suspects and emphasize to them the only question remaining open is "why" (and not "whether") they committed the crime. In other words, the police presume the person under interrogation is guilty. Additionally, some of the most common police tactics include appealing to the person's self-interest, confronting them with actual (or purported) evidence of guilt, undermining their confidence in denials, appealing to the importance of cooperation, offering moral justifications for committing the crime, and minimizing the seriousness of the offense.

The Miranda court recognized the prevalence and use of these police interrogation tactics and concluded isolation was one of the most significant aspects of these methods.  They concluded custodial interrogations contained inherently compelling pressures that undermined a person's ability to make free and informed choices whether to speak to the police. 

So, never talk to the police when you are the focus of a criminal investigation without the aid of a qualified criminal defense lawyer.  You have the right to remain silent.  Use it! People commonly underestimate the investigator's ability to obtain their incriminating admissions.  So don't feel compelled to discuss your case with anyone except your attorney. 

Thursday, August 7, 2008

Except For My Confession . . . I Have Nothing To Say

I've lost count of the cases that would go much smoother for clients had they not confessed to the police.  I've lost count of the cases in which the police had no case at all . . . but for my client's confession.  DWIs, burglaries, sexual assaults, drug cases. It doesn't matter.  A confession kills the case.  And like the title says, if not for a confession, many people accused of crime would have nothing to say at all.  With so many cases going south because of confessions, it's a wonder why people talk to the police at all. 

I've been reading an excellent paper on police interrogation tactics to help shed light on the confession.    Mourning Miranda by Charles Weisselberg.   Others have commented on this writing here and here.   My hope is to educate potential clients about police tactics and the psychology of the confession.  This knowledge might help them say NO when the police ask whether they want to "waive their right to remain silent."   We'll start with this introductory post to kick-off  a short series on police interrogation and tactics.

Weisselberg started by distinguishing between an “interview” and an “interrogation.” An interview is non-accusatory. It's “free-flowing and relatively unstructured.”  Its purpose is to gather information.  An interrogation, on the other hand, is “accusatory,” conducted “in a controlled environment,” and involves “active persuasion.”  Officers are trained and understand the difference between an interview and an interrogation.  During an interview police establish rapport with a suspect and use verbal and non-verbal information to decide whether, in their view, a suspect is telling the truth.  If officers become “reasonably certain of the suspect’s guilt,” they may initiate an interrogation.  Consequently, an officer’s initial judgments about truth, guilt, and culpability determines whether the suspect will be interrogated.  In contrast to interviewing, interrogation is a “guilt-presumptive" process.

Next consider the nine potential components, or steps, used in many police interrogations.  First is the confrontation statement by the interrogator. Then the interrogator interjects a reason for the commission of the crime, usually a morally acceptable one.  Then the interrogator prepares to overcome the suspect's denials. Steps four through six guide the investigator in overcoming the suspect's reasons why he would not, or could not, have committed the crime.  In step seven the police offer a statement supporting the suspect's morally acceptable reason for committing the crime.  And the final steps are take the oral statement and convert it into a written confession. 

Next time we'll look at these components in more detail.  In the meantime, check out this Brazos County criminal defense article on how to handle encounters with the police.