Natty Shafer Law

Utah lawyer for criminal and immigration cases


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Proper Etiquette When You’re Under Arrest

The Atlantic Wire has a good article called Proper Etiquette for When You’re Under Arrest. My friend and fellow attorney Dietrich Epperson is quoted in the piece. The article highlights one of the few times someone may plan on getting arrested. When engaging in protests, arrests are fairly common even for people who haven’t done anything illegal.

It’s worth reading the whole article, but the first two points it makes are particularly important: be polite, respectful, and professional with the police, even if they’re being jerks to you, but don’t say anything that you don’t have to. These points may seem at odds, but they really aren’t. You can politely tell the police that you aren’t going to answer their questions. In Utah, you’re required to give your name and some identification. The article also recommends that you supply your address and your social security number if the police ask for it, but beyond that, you really want to have an attorney present for any and all questioning.


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It’s Uncomfortable to Exercise Your Rights

Yesterday, a law school friend of mine sparked a facebook discussion about talking to the police. He linked to a Maine case where the defendant got herself into trouble by admitting to the officer that she had had a martini several hours previously. (It’s not necessary to read the case to understand this post, but you can reference the case here.)

The defendant was stopped at a routine DUI checkpoint, and the only evidence that she could be intoxicated was her statement and the officer’s estimation that she was speeding upon her approach to the checkpoint. Her speech was normal and she didn’t smell like alcohol, but the officer decided to put her through additional screenings to check for intoxication. It’s important to note, she said that she had engaged in a completely legal activity—drinking a single martini several hours before driving.

On the facebook discussion, the consensus among the non-lawyers was that it would be impossible not to talk to an officer in that situation. Telling the officer you aren’t going to answer him would raise his suspicions, or it would be socially awkward as you quietly ignore the questions. It’s unfortunate, but the courts haven’t left us many options for dealing with police. Lying to police can lead to new criminal charges, and telling the truth has its own problems. Answering questions gives officers information to further conduct their investigations, and once you start start answering questions, as far as courts are concerned, you are engaging in a “voluntary” conversation, which prolongs the traffic stop just a bit longer. The law has left us with this bizarre situation where we either quietly ignore officers’ questions or tell them point-blank that we are not going to answer. Counter-intuitively, officers cannot use our silence as evidence of anything.

Even though it happened in Maine, I have little doubt that a Utah court would also rule that an officer has probable cause to conduct a DUI screening based an admission that the driver had a drink several hours before. It’s uncomfortable and socially awkward, but when you encounter police officers, it’s best not to answer their questions.


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Without a Sponsor, It Can Be Hard to Get a Green Card

Immigrating to the United States is a lot easier if you have a family member or employer eligible to sponsor you. The U.S. Congress has made a policy choice that makes it straightforward for employers and U.S. relatives to sponsor immigrants seeking green cards (or permanent residency), but difficult for everyone else. Most immigrants either need a sponsor or they need to fit into one of the narrowly defined exceptions. This includes immigrants who came to the U.S. as young children and have lived here for as long as they can remember. If no one in their family is a U.S. citizen, they remain in the precarious position of every other undocumented immigrant, regardless of the U.S. being the only home they remember and speaking English as a first language.

There are exceptions, of course. Citizens of specific countries get preferential treatment. For example, Cuban nationals who manage to set foot on U.S. land have a relatively easy path toward permanent residency. (If, however, they are stopped while still at sea, they are sent home or to another country.)

U.S. Citizenship and Immigration Services (USCIS) has a tiered system for family sponsorship. The first tier is for immediate relatives of U.S. citizens, and there is no limit or quota on the number of green cards that can be issued each year. USCIS defines an immediate relative as a spouse, an unmarried child under the age of 21, or the parent of a child over the age of 21. The wait for immediate relatives is only a few months.

Other relatives are subject to quotas, if they are eligible for sponsorship at all. Relatives such as grandparents, cousins, aunts, and uncles are not eligible for sponsorship. Because of the quotas, the wait for a green card is several years for the children of U.S. citizens that are already over the age of 21, and the wait is currently well over a decade for the brothers or sisters of U.S. citizens. That’s one of the reasons that marrying a U.S. citizen is a common method for acquiring a green card.

You can also be sponsored through an employer or through a job, or if you have enough money to invest in the United States, you can sponsor yourself. Entrepreneurs who invest at least $1 million in the United States are eligible for a green card. Obviously, not many immigrants qualify for that category. Generally, employer based sponsorships go to immigrants with advanced degrees or who have “extraordinary ability in the sciences, arts, education, business, or athletics.” The category is vague enough that many skills qualify, but it does require some specialized ability. Although there are quotas for employment based sponsors, the wait times tend to be significantly lower than many of the relative-based ones. So if you have an employer who is willing to sponsor you, that may be an attractive option.

As I mentioned before, there are a few narrowly defined exceptions that exist for humanitarian or policy reasons, such as for refugees seeking asylum. In future posts I will delve into those exceptions, but the largest category of green cards are given to immigrants who have someone to sponsor them.


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Everyone Should Care About My Sacred Cows

It’s been over a week since the Supreme Court heard oral arguments about Obamacare. The news coverage on the networks and cable news focused on the result of what the Court will do, with decidedly less coverage going to the logic of how the Court will get there. I understand why most people are results oriented, but for lawyers like me, that’s frustrating because I believe deeply that the Court should rule based on principles. Unfortunately, it’s an all-too-common occurrence for an academic to lecture the general public for not caring enough about their sacred cow.

That’s why the warning of some Democrats that the Court striking down Obamacare would undermine the legitimacy of the Court strikes me as particularly hollow. Rightly or wrongly, polls continue to show that the majority of people disapprove of the Affordable Care Act, and particularly the individual mandate. If/when the Court strikes down the mandate or the whole act, the majority of people will focus on the result rather than the Court’s rationale.


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Strip Searches: or How Being Arrested Can Still Get Worse

On Monday, the Supreme Court ruled that police departments can now strip search literally everyone they arrest, regardless of the seriousness of the crime. The case, Florence vs. Board of Chosen Freeholders of Burlington County, was brought by Albert Florence after he was strip-searched at a New Jersey jail when the police computer erroneously showed that he had an outstanding warrant. (He had actually paid his fine several years before the officer pulled him over for a traffic offense.) The Court ruled that Mr. Florence can’t sue the government for subjecting him to a strip search.

Lest anyone get the wrong idea that a strip search isn’t that bad—that it’s just momentarily unpleasant—I should point-out how awful it is to be strip searched. The strip search takes several minutes while the guards carefully examine any place that a weapon, drugs, or other contraband could be stored. This includes inside a woman’s vagina, behind a man’s testicles, and everyone’s anus. Mr. Florence had to go through this twice, as he was moved from a first jail to a second, and he also had to endure a delousing at the first jail.

Generally, I’m of the opinion that certain Supreme Court members are deferential to police departments because they can’t picture themselves ever being subjected to the procedures they approve. But in this case, anyone can be incorrectly arrested, because that’s exactly what happened to Mr. Florence.


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Why You Shouldn’t Talk to the Police, Part 5: Reasonable Inferences Make You Look Guilty

Part 1: They Take Your Comments Out of Context
Part 2: There’s No Reward for Admitting Guilt Early
Part 3: You Create More Witnesses for the Prosecution
Part 4: Everything Is Illegal Now

When the police question you, they’re going to carefully note what they have told you and what they haven’t. Any new facts you mention will be used as evidence that you have firsthand knowledge of the crime, but psychologically speaking, it’s nearly impossible to remember exactly what the police have told you. For the same reason that eyewitness testimony is suspect, people employ gap-filling when they encounter new information. They make reasonable inferences based on what they know or have been told and extrapolate further.

For example, let’s say the police tell a suspect during a murder investigation that neighbors heard shouting and some sort of scuffle and then a series of loud bangs. Many people would interpret those loud bangs in their mind as gunshots, but the police haven’t mentioned anything about a weapon, a gunshot, or bullets. As soon as the suspect mentions gunshots, the police will use that as evidence that the suspect had firsthand knowledge of the murder. In court, the police officer and prosecutor can make a convincing display for the jury. A talented prosecutor will build tension in the courtroom leading up to this moment. She will ask the police officer, “Is there anything about the defendant’s statement that confused you or interested you?” The officer will answer matter-of-factly, “I never said anything about a shooting or a gun. I said we were investigating a murder.”

It’s nearly impossible to keep straight what the police have told you, and this holds true even if the police are investigating you for a petty misdemeanor instead of murder. Intelligent people are possibly more susceptible to gap-filling because the more intelligent a person is, the more inferences they will draw. All of this can be avoided if you simply refuse to talk to the police without your lawyer present.


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Why You Shouldn’t Talk to the Police, Part 4: Everything Is Illegal Now

Part 1: They Take Your Comments Out of Context
Part 2: There’s No Reward for Admitting Guilt Early
Part 3: You Create More Witnesses for the Prosecution

Okay, not everything is illegal, but a lot is. So many things are illegal that literally no one knows how many acts are illegal. The American Bar Association estimated that Congress alone has made about 10,000 acts illegal. Add in the ever expanding number of state laws, city laws, and government agency regulations, and the number of ways you can incriminate yourself is limitless. A person could spend all their life studying the various ways it’s possible to commit a crime, and still not be sure whether or not a particular act is a crime.

While many crimes, such as violent crimes, are intuitively illegal, many are not. There is no way that someone unfamiliar with the law can know the many ways there are to incriminate yourself. The police probably couldn’t care less if you keep your prescription drugs in little containers marked with the days of the week, but if you throw away the original prescription bottles, you’ve violated Utah Code §58-37-7. Even though that probably has nothing to do with the crime the police are actually investigating, you don’t want to give the police leverage to further their investigation. You could spend the night in jail while the police conduct their real investigation. Similarly, the prosecutor could add a seldom prosecuted crime to the indictment to pressure you into taking a bad plea deal.


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Be Like Bill Clinton

Last night I watched Clinton on the American Experience. Putting aside his womanizing, I realized that Bill Clinton is the perfect model for “The Lawyer Who Hugs.” Bill Clinton has a preternatural ability to empathize and care for people who have vastly different lives. He meets people, and he cares for them deeply. People strongly feel his empathy and understand that he cares about them. While I would never presume to compare myself to the master, that is what I aspire to do with my law practice—to make my clientele understand how deeply I want the best possible outcome for both them and their case.

The other thing about Clinton, though, is that he has an ability to stand-up to his detractors and enemies. While he was in office, he prevented his political opponents from rolling-over him. During the American Experience episode, Sidney Blumenthal says that Clinton’s opponents “believed that he was soft, that he could be pushed around, and that they could have their way. They believed that he lacked the confidence to stand up to them.” Newt Gingrich thought that Bill Clinton would capitulate to his legislative agenda, but Clinton persevered; Gingrich thought he had the upper-hand during the government shutdown of 1995, but Clinton won that particular showdown. I, too, endeavor to be strong when negotiating with my legal opponents.

The American Experience also has a cautionary tale. Clinton was most effective when he was pragmatic and worked towards accomplishing modest, feasible goals. After his political defeat with his health care bill, he went back to more modest goals, like trying to hire more local police officers. I want to remain grounded in pragmatism as well. I promise to work hard to get the best possible outcome for my clientele, but sometimes the best possible outcome is not a perfect outcome. From time-to-time, that may entail urging a client to take a plea or to accept the slow deliberation of U.S. Immigration and Customs Enforcement. But always, I will care about my clientele.


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Why You Shouldn’t Talk to the Police, Part 3: You Create More Witnesses for the Prosecution

Part 1: They Take Your Comments Out of Context
Part 2: There’s No Reward for Admitting Guilt Early

When the police tell you anything you say “can and will be used against you in a court of law,” they mean it. You have no way of knowing what, exactly, you will be eventually charged with, and just about everything you tell a police officer could help a prosecutor in some fashion.

Many cases are simply the word of one person against another. The police are prevented from testifying about what a complaining witness told them by the Confrontation Clause of the Constitution and by the rules of evidence, but the police are allowed to testify about what a defendant says. If you tell the police anything that can help the prosecution, you’ve just given them more witnesses. Most laypeople are not very good at testifying in court. They get nervous, they’re unsure of themselves, and they wander off topic. Police officers, on the other hand, make very good witnesses. As part of their training, they take classes on how to be better witnesses, and they’ve testified in court many times before.

Take, for example, the crime of making criminal threats (covered by Utah Code §76-5-107, but illegal in nearly every state.) Let’s say that Mr. Jones is accused of threatening to punch Ms. Miller. As is often the case for this particular crime, the only corroborating evidence is the phone record, which only proves that a telephone call occurred. Fundamentally, the case boils down to Ms. Miller’s word against Mr. Jones’s. The judge or jury must believe Ms. Miller beyond a reasonable doubt, but she might have a hard time remembering the exact words that made up the criminal threat. The police officer, however, took copious notes. Because Mr. Jones talked to them, the police have pages of notes to remind themselves of what exactly he admitted, and they are able to tell the court in detail. So even though Mr. Jones denied making any threats, the police are able to testify that Mr. Jones admitted they had an argument over the phone. The confident, polished police officer will seem very credible to fact-finder, and Mr. Jones now has twice as many witnesses against him.

Also, police officers, like everyone else, are prone to error. Police officers sometimes mis-hear or mis-remember what they are told during interrogation. Through no malice on the part of the officer, they can testify that you said something you haven’t. If you never talk to the police in the first place, there will be no question about what you did and did not say during the interrogation.


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Why You Shouldn’t Talk to the Police, Part 2: There’s No Reward for Admitting Guilt Early

Part 1: They Take Your Comments Out of Context

Anytime you talk to the police, there is a chance you will admit guilt without any benefit in return. Police commonly give a vague promise to put in a good word with the prosecutor for people who cooperate. The police may indeed tell the prosecutor that you cooperated with them, but that just will not get you a deal any better than what a lawyer could get for you. Allow your lawyer to extract concrete, definitive deals from the prosecutor instead of vague promises.

Also, with how many laws are on the books these days, you may unintentionally admit guilt to crimes that the police had not been previously investigating. Even if you are innocent of the original charge, that gives the government leverage against you, which they can use to conduct further investigation. Information you divulge gives the police tools to request search warrants, wiretaps, or other investigative tools to further incriminate you. Instead of ending the investigation, it will be prolonged.

If you feel you must admit guilt—you need to get something off your conscience—you’re better off telling a member of the clergy or your therapist. Confession may indeed be good for you, but that’s a matter between you and your conscience or your God. Talking to the police will do little to assuage your conscience.

Some people feel that there is no harm to admitting guilt if it only tells police what they suspect or know already, That simply isn’t true. For any number of reasons, witnesses and police officers are frequently unavailable to testify. If a key witness is unavailable, your lawyer may be able to negotiate a better deal, or perhaps the government will be forced to drop the case altogether. However, if you have already admitted guilt, it doesn’t really matter if key witnesses can’t testify. A confession is sufficient by itself to get a conviction.

There’s simply no rush to admit guilt. You can always take a plea offer from the government later, but you cannot take back your impetuous decision to tell the police everything. Most criminal proceedings end in a guilty plea anyway. If you allow your lawyer to do their job, you can extract some sort of promise from the government in exchange for your confession. Regardless of the reason you want to talk to the police, you’ll be better served if you wait until time has passed and you have had a chance to talk to a lawyer.