Fairfax trial judge gets reversed for not treating defendant’s Miranda rights response as precluding police questioning, says Virginia criminal lawyer

Fairfax trial judges — and all judges — must follow the requirement of Miranda v. Arizona to preclude trial testimony and evidence from being presented by the commonwealth’s attorney about the defendant’s answers to questioning after asserting their right to remain silent under the Constitution’s Fifth Amendment or to the assistance of a lawyer under the Sixth Amendment. Miranda, 384 U.S. 436 (1966). As a Fairfax criminal lawyer, I am delighted about every aspect of a recent Court of Appeals Miranda-based reversal of a Fairfax felony conviction, except that this case merited the status of published rather than its being issued as unpublished. Bermudez v. Commonwealth of Virginia, Record No.  0769-21-4 (Va. App., June 28, 2022) (unpublished). I regret that Bermudez probably remained in incarceration at least until this appellate opinion was made available.

Considering this Fairfax trial court result, make your Miranda right to remain silent with the police and for a lawyer clear, unambiguous, and unequivocal

Bermudez’s Fairfax trial judge has an impressive resume and compelling life story about leaving his native Vietnam, and I have appeared before him. Nonetheless, one’s resume does not decide whether a judge will get reversed on appeal. Here, Bermudez got detained by police on an open arrest warrant. The police team of a lead cop and a bilingual law enforcement officer interpreting between Spanish and English apparently correctly advised Bermudez of his Miranda rights. The police erred by questioniong Bermudez after this exchange immediatley before he was advised of his Miranda rights: “[Lead police officer]: And this is the only chance that you and I are going to get to talk. Comprende, does that make sense? [Why is this police officer peppering his questioning with any Spanish, when he knows he can turn to his fellow interpreting cop for using any Spanish?] [Appellant]: Yes, but, no, I have to explain to a lawyer because I can’t be answering things.” Bermudez (emphasis added.) Bermudez’s judge did not consider his foregoing bolded words to have sufficiently asserted his Miranda rights. Bermudez. 

The “invocation of the right to counsel must be clear, unambiguous, and
unequivocal.”

The “‘invocation of the right to counsel must be clear, unambiguous, and unequivocal.'” Zektaw v. Commonwealth, 278 Va. 127, 136 (2009). Whether a suspect’s statements meet that standard is ‘an objective inquiry,’ where this Court asks whether the suspect ‘articulate[d] his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.’ Davis [v. United States], 512 U.S. [452,] at 459 [(1994)].  Bermudez’s Fairfax trial judge did not see his foregoing statement as a clear, unambiguous and unequivocal assertion of his Miranda rights. Fortunately, the commonwealth’s court of appeals ruled the opposite, thus reversing Bermudez’s conviction. In response to being Mirandized, Bermudez replied: “‘es, but, no, I have to explain to a lawyer because I can’t be answering things.” Bermudez confirms: “Viewed objectively, this was a clear, unambiguous, and unequivocal invocation of the right to counsel. The first part of appellant’s statement was ‘Yes,’ which confirmed he understood what Bryant had said to him previously. After that confirmation, appellant’s next words ‘but, no, I have to explain to a lawyer because I can’t be answering things’ clarified that notwithstanding what Bryant said to him, he wanted—in fact, needed—to speak to a lawyer in light of the rights just explained to him.”

What should I do if investigated or arrested for an alleged Virginia criminal offense?

Whether your case is destined for a trial in Fairfax or another commonwealth courthouse, you are on an extremely unlevel playing field until you obtain a qualified lawyer to cover all essential aspects of your defense. Bermudez’s Fairfax trial judge declined to suppress the defendant’s answers to police non-Mirandized questioning. If a qualfied lawyer had been by Bermudez’s side during police questioning, that lawyer would have assured Bermudez’s silence. Howerver, police ordinarily prefer to have no lawyer present at all with a person they want to question. You do not need a lawyer to know how to remain silent, You need a qualified Virginia criminal lawyer to help fully assert your Consittutional and other rights, and to defend you well against criminal accusations.

Fairfax criminal lawyer Jon Katz repeatedly and successfully defends criminal defendants against Virginia DUI, misdemeanor and felony charges. Find out the great work that Jon can deliver for you, with a free in-person initial consultation with Jon about your court-pending case, by calling 703-383-1100.