Tag: criminal defense attorney

It’s Friday night in Miami. You’re wearing your nice brown loafers, good pair of jeans, white button-down shirt, and a navy blazer. You look good. You feel good. And you’re ready for dinner with that young lady you’re meeting at that Italian restaurant in the Grove. After dinner, you both decide to grab a drink at a local Miami spot.

You walk in. People are standing shoulder to shoulder. Live music playing somewhere in the background. You and your date decide to take the plunge into the crowd as you walk hand-in-hand, trying to squeeze through the wave of people on your way to the bar.

When you both make it to the bar, she orders a dirty Martini with bleu cheese olives, and you take a glass of scotch, straight up…something at least 12 years old. As you both stand face-to-face slightly leaning on the bar, you’re chatting, flirting, and shyly touching one another as you both feel the alcohol begin to take hold. By the time she slowly runs her fingers down your left arm she has your undivided attention, and you’re thinking you’re not doing too bad, so you start to wonder what the rest of the night has in store.

Meanwhile, you fail to notice the intimidating looking dude staring at both of you 25 feet away at the other end of the bar because you’re so fixed in the moment.

Your date sees him. Immediately, her mood changes. She backs away. She pulls her hand back, and looks visibly scared as she leans in and whispers, “that’s the guy I was telling you about. That’s my ex-boyfriend. I keep telling him it’s over, but he doesn’t believe me. I’ve had to call the cops 10 times already.”

You’re now thinking, “ ex-boyfriend? What the hell is she talking about? She never said anything about an ex-boyfriend.”

You try and tell her not to worry, but nothing you say matters. She looks like a deer in headlights.

Just as you turn to take a look at this dude, she says, “we should probably go, he put my last date into the hospital for two weeks, and he’ll probably mess you up worse because you’re even smaller than he was.”

“What?!”

By now, you’ve turned to take a look at this guy, you both lock eyes, and you see him. He looks f*$&ing nuts. He’s standing 6’,4” 245 lbs., looks like a middle-line backer for the Dolphins, and he starts walking towards you. You have zero doubt that he could put you in the hospital.

In seconds, he takes four feet towards you, grabs a beer bottle, breaks it on the bar, and just when he looks like he’s about to lunge at you from 6-10 feet away, you take out your stainless steel .45 and shoot him twice in mid-section.  Everyone is screaming.

Your date calls out, “Johnnie!” And because she’s not talking about the scotch, and your name is Jason, you realize things just got complicated.  You’re standing over scary, 6’,4” 245 lbs Johnnie laying on the floor in a puddle of his own blood, and as your date is crying on the floor next to the guy that almost killed you with a broken beer bottle, you realize your date who helped put the fear of god in you may no longer be on your side.

Fast-forward…what has only been ten minutes feels like hours, and your date is still crying. The bar empties out, there are broken beer bottles and glass all over the floor as everyone left the scene. You’re waiting for the police.

As you wait, no one seems to have witnessed what you thought you saw with your own two eyes (Johnnie breaking a bottle over the bar and that he was just a few feet away from you when you had to make the hardest/scariest decision of your life).

Regardless, you think you’re good, because you haven’t done anything wrong. You were defending yourself. Your date told you about Johnnie’s crazy past, which affected what you reasonably believed when Johnnie broke the beer bottle over the bar and came at you. You see security cameras in the bar. You think you’re good because there’s no way the video would not support your claim of self-defense.

The cops arrive, take your gun, and start talking to everyone at the bar. They want to talk to you too. So, what do you do? You voluntarily go with the officers to the station. They say they just need you to help with the paperwork, and you’ll be on your way.

When you get to the station, because you’re convinced you were in the right and have nothing to fear, you talk to the detective assigned to the case about what happened.

You never thought about whether there were any cameras. You never thought about whether they worked, and, you never thought about whether you misremembered any of the details because you were convinced you had it right. So….

Scenario 1—what you did

You tell them your date told you about Johnnie’s violent past. You tell them that he grabbed a bottle, broke it over the bar, rushed through a crowd of people and was just three feet away from you when you shot him twice in the midsection. You tell them that you never saw Johnnie before that day, and that you were afraid for your life because of what your date told you and what you saw him do with the beer bottle.

The officers watch the video. They don’t see Johnnie break the beer bottle because the crowd blocked everything from the shoulder down. While the video shows Johnnie making a weird movement, they can’t tell whether he broke a bottle. In fact, to them, the video just shows some big dude walking normally in your direction, and they see you pull your stainless steel .45 pistol out of your holster, and fire four times into Johnnie. When crime scene goes to the scene to collect evidence, they don’t find Johnnie’s bottle, and because there was broken glass everywhere, they start to doubt Johnnie even had a bottle.

The detective takes notice of the fact that while you say Johnnie was approximately three feet away from you when you shot him, it looked like Johnnie was no closer than seven feet.  Last, because Johnnie survived, when the detective spoke to Johnnie, Johnnie stated that he was simply walking over to say hi to you and your date when he was shot for no reason. He also stated that he never broke his bottle on the bar to stab you in the neck, but that he fell after he was shot, which caused the bottle to break.

Your date isn’t very helpful either. She’s made the decision to get back with Johnnie, so she is unwilling to provide a statement in your defense.

Detective’s analysis

The detective has a decision to make as a result of what he sees on the video, heard from the witnesses, and what your inconsistent statements suggest. To the Detective, what you say sounds logical, but based on the video, and some of the discrepancies in witness testimony he doesn’t want to risk letting a killer go free, so he arrests you and lets the State Attorney’s office decide whether to file charges because: 1) you said Johnnie was three feet away when it looked like more on the video, 2) you said you shot Johnnie only twice, when it was far more, 3) you said Johnnie broke a bottle on the bar, but they have no evidence of that, and 4) Johnnie says he was shot unprovoked.

Because you made a statement, and that statement was inconsistent with some of the other evidence, the detective has no choice but to look suspiciously on your version of events. If you stayed silent, perhaps he could have rationalized certain events in your favor. But now, due to the inconsistencies in your statement, the detective may think you lied to justify your use of deadly force.

Scenario 2—What you should have done

The Detective offers you something to drink and asks you to tell him what happened. You ask the officer whether you’re under arrest, and he says no, but he just wants to get your side of the story. You then tell him that due to the gravity of the situation, you do not feel comfortable speaking to him without an attorney. He tries to convince you otherwise, but you say, “Detective, I appreciate you’re just trying to help, and get to the bottom of everything, but I’d rather speak to my attorney before I do anything else.”

As a result, there are no inconsistencies. No one can twist your interpretation of events regarding Johnnie’s distance or the number of shots you fired. No one can say that the reason you said it was a shorter distance was because you were trying to justify your actions when you really knew you were in the wrong and never should have shot Johnnie.  No one can say that you were lying about the distance because you wanted to make it seem like you were the victim when you really were not.

Conclusion

While in both scenarios you have an argument for self-defense, scenario 2 is far stronger than scenario 1 because you kept your mouth shut, and respectfully asked for an attorney. When you can control the outcome, do not allow your statement to the police be a basis of probable cause to arrest you or what the government uses to try and convict you.  When you make a statement, you risk it being contradicted or misinterpreted. Do not gamble with your future. Do not gamble with your freedom. Keep your mouth shut. Get an attorney, and let your attorney be your voice to protect you.

* This article is not a self-defense article. It is simply meant to highlight the risks you take when speaking to the police about your involvement in an event without consulting an attorney. Accordingly, you should keep in mind Florida Statutes 790.06(12)(a) states it is unlawful “to openly carry a handgun or carry a concealed weapon or firearm into any portion of an establishment licensed to dispense alcoholic beverages for consumption on the premises, which portion of the establishment is primarily devoted to such purpose.” 

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Standing with cold, stainless steel handcuffs around your wrists, sitting in the back of a police cruiser, or being stuck behind bars as you think about what you face to lose on the outside—EVERYTHING—are just a few thoughts running through your head as you decide whether you speak to the police or keep your mouth shut.

To make it more difficult, the police officer puts his hand on your shoulder, and assures you, if you cooperate, and answer his questions, he’ll let you go. So you think, just like the thousands arrested before you, “it sounds like he understands. He’s on my side. He really wants to help me.”

And, because you believe the officer when he says, “I don’t see a case here. I just need to hear your side of the story so I can write my report, and close the case,” you think it is a good idea to speak.

I mean, you haven’t done anything wrong and you definitely don’t want to sleep in a cold jail cell on a concrete slab with no blankets as corrections officers bark orders in the background when you think you can be under the covers in your own bed in your own home. So, in that life-altering moment, rather than thinking, “call my attorney, or shut my mouth,” you play Russian roulette with your freedom, and decide to explain your side of the story without an attorney present. Bad idea.

Without an attorney, it is hard to see that your words can be, and will be used as evidence against you, because to you, you didn’t do anything wrong. Without an attorney, you are not thinking about whether your actions give the officer probable cause. And without an attorney, you are definitely not thinking that if the officer had probable cause he would have arrested you already. It is hard to see the damage your words can do, because first, you have not been trained to examine the facts of a situation for the elements of a crime. And second, even if you were a trained attorney with experience in dissecting each set of circumstance for the elements of a crime, when you are dealing with a pressure packed situation where your freedom hangs in the balance, to say it is difficult to think and speak rationally when your freedom is on the line is an understatement.

The reality of the situation is this… if the officer wants a statement from you, a potential suspect, he is either 1) trying to gather additional evidence to help the State build a case against you, or 2) he is still investigating to see whether you did something wrong. Either way, nothing you say will help your cause in the long run.

While you undoubtedly will feel concerned that if you do not say anything, you will look guilty. Trust me, it is better to feel guilty in a constitutionally protected environment where your silence cannot be held against you, than to be convicted of a crime because your words made it impossible to defend you at trial.

Officers know that you want to tell your side of the story. In fact, police officers are trained to exploit it. The officer has a job to do. It is not to be your friend, and it is not to be your buddy. For him, it is to find out whether a crime has been committed. When you make a statement that risks being contradicted or misinterpreted, like it or not, that very statement will likely be what the officers use as probable cause to arrest you or what the government uses to try and convict you.

Remember, your “truth” of what happened does not necessarily conform to the officer’s “subjective” analysis of the facts. Trying to explain to an officer who is attempting to determine whether a crime has been committed when day-in and day-out he is trained to suspect the worst as he steps out on the streets is a risky game. You are not just competing with the other witnesses that the officer spoke to, but unfortunately, you are competing against something way more complicated…a lifetime of experience and unconscious bias that that particular officer is subconsciously relying upon to analyze your version of events. The truth, and what the officer perceives to be the truth are two very different things. As a result, the last thing you want are for your words to provide a reason to prosecute you because your words fit his version of the truth.

While there is a chance that you can talk yourself out of the situation, and there are even people that have survived the experience just to be arrested another day, that small possibility is not worth risking your present and future freedom. Do not gamble with your future. Do not gamble with your freedom. Keep your mouth shut. Get an attorney, and let your attorney be your voice to protect you.

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