COLUMBIA — You have the right to remain silent. Anything you say can and will be used against you in a court of law.
You also have the right to an attorney — just not right away.
In fact, if you're arrested and ask for a lawyer, there's no guarantee you'll see one promptly. Police don't have to let an attorney come in and talk with you unless you're being questioned nor do they have to let your family see you. They don't even have to tell anyone what crime they are investigating until they charge someone with an offense.
And it's perfectly legal.
Two incidents at the Columbia Police Department have left some in the Columbia legal community questioning whether the department sometimes wades into murky waters. The department doesn't think so, saying it respects all its detainees' constitutional rights — leaving the two sides standing on opposite sides of an ambiguous legal divide. When is seeing an attorney a right, and when is it merely a courtesy?
In the case of Sanders
On the evening of Aug. 14, 2008, Columbia Police officers pulled over 19-year-old Daniel Sanders for driving erratically. He didn't have a license, and after officers arrested him and called for a tow truck, they discovered his mother's body in the trunk next to a brand-new shovel. The arresting officers later testified in a pretrial hearing that Sanders requested an attorney.
The next morning, public defenders Jennifer Bukowsky and Michael Byrne went to see Sanders at the police station.
"One of the news reports said he had asked for a lawyer," said Byrne, who is now in private practice. "(Bukowsky) and I felt it was important to see if he wanted to have a public defender."
Public defenders are attorneys provided by the state for anyone who can't afford a lawyer; before a person can get one, he or she first must fill out an application to determine eligibility. Byrne brought the form with him when he went to see Sanders.
Bukowsky said that on big cases the public defender's office tries to get involved as soon as possible. In particular, she tries to warn clients about the recording devices on the phones at the Boone County Jail.
When Byrne and Bukowsky got to the police station, some members of Sanders' family had already arrived that morning and were waiting in the lobby: Sanders' grandparents and Mike Harris, Sanders' second cousin who is a civil attorney in St. Louis.
Harris said police had called Sanders' grandmother to the station so police could interview Gary Sanders, Daniel Sanders' 16-year-old brother, who was also being held. A parent, guardian or attorney must be present when police interview a minor.
But when Sanders' grandmother arrived with Harris and said she'd like Harris to be present for the interview of Gary Sanders, they weren't allowed in, Harris said.
Detective Bryan Liebhart came out to see Bukowsky and Byrne, and the public defenders were also turned back from seeing Daniel Sanders.
"(Liebhart) was perfectly nice about it, but he was insistent that he was not going to give the application to Mr. Sanders," Byrne said.
According to Byrne, Liebhart said the public defenders "knew better" than to just show up at the station. Byrne said Liebhart denied that Sanders had asked for an attorney and told the public defenders not to believe everything they heard in the news.
"Because of the ongoing investigation we did not want someone from the outside speaking to him," Liebhart later told the Missourian in an e-mail. "That includes friends, family, and attorneys." Liebhart said the reason was to prevent anyone from hampering investigators or destroying evidence. He also said Sanders had not requested a specific attorney.
Frustrated, Bukowsky and Byrne took the family members back to the public defenders' office, where Bukowsky drew up a writ of mandamus against the Police Department — a legal filing intended to force then-Acting Chief Tom Dresner to allow the attorneys access to Sanders. "We were trying to compel him to do his duty to allow an American citizen his right to see an attorney," Bukowsky said.
After filing the writ, the public defenders were able to get a hearing late that afternoon in front of 13th Circuit Court Judge Deborah Daniels. Dresner appeared with Cavanaugh Noce, an attorney for the city.
The two sides agreed not to go through with the hearing if Noce delivered the application to Daniel Sanders — which Noce did immediately, walking down to the police station with Dresner and handing Sanders the application. (It turned out that someone had already given Sanders an application, Noce said.)
By then, it was after 4 p.m. on Friday — 20 hours after Sanders had been arrested and requested an attorney.
When asked about what happened that day in court, Dresner referred all questions to Noce.
A constitutional issue
Under the Sixth Amendment, defendants are guaranteed the right to legal counsel: No one can force you to go to trial without a lawyer. And following the landmark 1966 U.S. Supreme Court decision Miranda v. Arizona, the right to a lawyer was extended to include police interrogations.
But the image of an attorney bursting through the door of the interrogation room is pure television.
"The law doesn’t say everybody who gets arrested is automatically a de facto client of the public defenders' office," said Frank Bowman, a professor at the MU School of Law. "That just ain’t so. When (lawyers) step in and try to initiate contact from outside, they really don’t have any standing."
Even if someone has requested an attorney?
"It’s a little bit tricky," Bowman said. "If he asks to see an attorney, at that point they can no longer question him." But the police don't have to provide an attorney or facilitate a meeting at that instant, he said.
The right to a lawyer early in an investigation was originally intended to preserve a citizen's Fifth Amendment right against self-incrimination — which in practice means interrogations and little else.
"You don’t have a right to counsel when they search the scene, do forensic tests, a whole host of pretrial events that are important," Bowman said.
And the right to an attorney during police interrogations is actually a relatively new — and controversial — development in American law.
One of the precursors to the Miranda ruling was a 1960 case in which police repeatedly denied an attorney access to his client, Danny Escobedo, who was a murder suspect. The attorney, Warren Wolfson, even glimpsed his client through an open door, and the two waved at each other — but police quickly ushered Wolfson away. The interrogation continued.
Escobedo asked for his attorney, but the detectives interrogating him told him that Wolfson didn't want to see him. Police then extracted an acknowledgment of complicity in the crime from Escobedo, and he was later convicted of murder.
The Supreme Court overturned the conviction in 1964, using bold language to assert that Escobedo's rights were violated when police deprived him access to an attorney who could have helped him understand those rights during an interrogation.
"No system worth preserving should have to fear that if an accused is permitted to consult with a lawyer, he will become aware of, and exercise, these rights," the court wrote in its decision. "If the exercise of constitutional rights will thwart the effectiveness of a system of law enforcement, then there is something very wrong with that system."
Escobedo, exonerated of murder, appeared on the cover of Time Magazine beneath the words "Moving the Constitution Into the Police Station." And in 1966, the revolution taking place in the American criminal justice system reached its high-water mark when the Supreme Court introduced Miranda rights — the instructions of your right to remain silent, et cetera — into the lexicon of detectives and TV cops everywhere.
But today, that still doesn't mean your attorney has the right to walk into the police station and see you immediately. Even if both of you ask.
Turned away from a client
On the station's surveillance footage, Nicole Palmer is sobbing when the detectives put her in holding cell No. 4.
It was shortly before 2 a.m. on Oct. 9, 2009. Palmer had been arrested with her boyfriend, Blake Logan, 18. Logan was picked up on suspicion of murder in the shooting of a woman in the parking lot of the Red Roof Inn.
Palmer, 19, told police she was asleep when Logan came home and told her he had hit something with the car they shared. The two phoned family and friends, saying there was an emergency and they had to leave Columbia. Shortly after, the pair were arrested at a gas station outside town.
The holding cells at the Columbia police station are equipped with land-line phones, but police said the one in holding cell No. 4 was turned off so that Palmer couldn't potentially warn any accomplices. Along with 113 grams of marijuana, detectives had found a spent 9mm casing in the backseat of Logan and Palmer's car .
But they hadn't found Palmer's cell phone; she'd smuggled it into the police station.
After detectives left her in the holding cell, Palmer covered herself with a blanket and began making calls. Less than half an hour later, after 2 a.m., her parents and her attorney, Stephen Wyse, arrived at the station and asked to see her.
What unfolded next was captured by station surveillance footage, which was obtained by the Missourian through a Sunshine Law request.
On the video, Detective Jeff Westbrook comes out into the lobby and tells Wyse that Palmer has not asked for an attorney and chides Wyse for showing up at the station unasked. As Wyse leaves Palmer a voice mail telling her to specifically ask for him, Westbrook tells Palmer's parents he's "not at liberty to discuss if she's being charged with anything at this time."
"If she asks for an attorney, we'll come out and get you first thing," Westbrook says.
Later, after Westbrook leaves the lobby, Wyse gets another call from Palmer.
"Did you tell them that you want to speak to your lawyer?" Wyse says. He listens for a moment. "No, I'm standing right here. Who said that your lawyer went home?"
Wyse goes to the reception window and asks for Westbrook again, who comes out shortly later. "She's saying she's telling your cops she wants to talk to me, and they're telling her that I went home," Wyse tells Westbrook.
Westbrook calls it "a lie" — twice. The two begin to argue, and Westbrook again says he will get Wyse if she asks for him.
Wyse speaks with Palmer on the phone multiple times while in the lobby and tells her to tell every cop she sees that she wants her attorney. Wyse writes down the names and descriptions of the officers Palmer says she's spoken to.
"You've told those detectives, right?" Wyse asks.
Palmer can be heard saying "yeah."
Palmer also twice calls her mother, who is also still waiting in the lobby.
It isn't until officers make Palmer strip in her holding cell and put on a Boone County Jail uniform that they discover the small pink cell phone.
After asking for Westbrook again and not succeeding and after no longer hearing from Palmer, Wyse and Palmer's parents leave the station two and a half hours after they arrived.
In an interview with the Missourian, Wyse said he didn't see Palmer until the next day — and only after he'd arranged the meeting through Boone County Assistant Prosecuting Attorney Richard Hicks.
Striking a balance
The incident with Wyse in the lobby made headlines after he sued the Police Department. He filed a Sunshine Law request with the department for footage of Palmer and of the incident in the lobby, and he alleged that police committed multiple violations of the Sunshine Law, including trying to overcharge him. The department wanted a total of $2,854.04 for the footage.
After making a similar Sunshine Law request — minus the request for video from the station's booking room — the Missourian obtained footage of the lobby and Palmer's holding cell for $15.10.
Wyse said he still hasn't seen the footage and that the lawsuit is still pending.
After the incident, Westbrook previously told the Missourian that Palmer had not asked for an attorney. Westbrook later acknowledged that she had, saying he didn't know because he wasn't actually the officer interviewing Palmer.
Although department spokeswoman Officer Jessie Haden chalked up the incident to confusion caused by Palmer smuggling the phone into the station, she said that sometimes police are too busy to accommodate attorneys during an investigation. "Circumstances, practicality and common sense" dictate when attorneys are allowed access, Haden said, and the station isn't equipped to handle attorney-client interviews, which are normally conducted at the county jail.
Under Missouri law, the department can only hold someone for 24 hours; after that, you have to be charged with a crime or released. But Haden said the time limit doesn't normally get tested at the Police Department.
"When people are here (at the department), they're not here for very long at all," she said. "Twenty-four hours is just completely stretching it. Usually the processing here is very quick."
And if suspects don't want to talk, there's little reason to keep them at the station. "If they want to talk to an attorney, what reason is for them to stay here?" Haden said.
Lt. Ken Hammond of the Police Department was supervisor of the Major Crimes Unit in 2008 when Sanders was arrested. Hammond was adamant that the department respected the constitutional rights of the people it holds and that attorneys can't see detainees whenever they please.
"Just because he’s asked for an attorney doesn’t mean we have to allow an attorney into a secured area of the police station," Hammond said. "You're dealing with inmates and prisoners, and it's a secured area."
But several local attorneys such as Bukowsky are concerned that denying lawyers quick access to their clients can have a damaging effect on their ability to provide an adequate defense. Many also said they worry that skilled interrogators can find ways to push constitutional law to its limits in order to extract confessions.
In a notable 2004 case, Missouri v. Seibert, the U.S. Supreme Court narrowly found unconstitutional the "two-step," a tactic by which interrogators extract confessions from suspects without reading them their rights — and then get the suspects to repeat the confessions after telling them they had the right to remain silent and the right to an attorney.
While the philosophy of the American legal system is that all suspects are innocent until proven guilty, many of those arrested are eventually found guilty of the charges against them.
Ernesto Miranda — whose confession was thrown out by the Supreme Court in Miranda v. Arizona — was eventually convicted of the same kidnapping and rape he was originally charged with. Escobedo, who was denied access to his attorney, followed his 1964 exoneration with a checkered career of at least a dozen felony convictions, including the molestation of a 12-year-old and two counts of attempted murder.
Daniel Sanders invoked the right to an attorney almost immediately and later pleaded guilty to reduced charges in the slaying of his mother. The prosecution said the Sanders family's "cloistered lifestyle" and the Sanders brothers' silence made it hard to find evidence; rather than risk losing a trial, they offered Sanders a 19-year sentence.
Palmer was not found to be a suspect in the Red Roof Inn slaying but is accused of a felony drug charge and hindering prosecution for providing the getaway vehicle. Her trial is set for March 18 in Callaway County. Logan, her boyfriend, still faces a charge of second-degree murder.
Regarding the controversy with Palmer — and Wyse's ensuing lawsuit — Haden was circumspect.
"The poor woman that was shot and killed was taking second seat to this woman and this attorney," Haden said. "We're going to protect everyone's rights, but that doesn't mean we have to stop what we're doing in an investigation. We gotta do what the community would expect."