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For the ten thousandth time, don’t waive your right to remain silent

Apr 02, 2008 For the ten thousandth time, don’t waive your right to remain silent

Bill of Rights (Image from the public domain.)

Susan Smith apparently would not have been convicted had she not spoken to the police. Mark Castillo smoothed prosecutors’ path towards a murder conviction — unless he successfully argues insanity — by calling the police this past weekend to tell them he had killed his three children, who lived in the town where my law firm is located. Wilbert Abney, Jr., would have avoided conviction in Virginia of strangling his wife to death in 1978 had he kept his mouth shut with the police; instead, he kept singing like a bird, changing his story all the more damningly each time he realized his previous stories were not coming across as believable.

As I have said before, countless people sing again and again and again to police. It reminds me of the following scorpion story told by Forest Whitaker’s Jody in The Crying Game (thanks to Robert Yahnke for posting excerpts

A scorpion wants to cross the river.  But he can’t swim.  He goes to a frog, who can.  He asks for a ride.  Frog says, "If I give you a ride on my back, you’ll go and sting me."  The scorpion says, "It won’t be in my interest to sting you, since I’ll be on your back and we’ll both drown." The frog thinks it over and accepts the deal, takes the scorpion on his back,  braves the waters, halfway over feels a burning spear in his side, and realizes the scorpion has stung him after all, and as they both sink beneath the waves, the frog cries out: "Why did you sting me, Mr. Scorpion? So now we both will drown!" The scorpion replies, "I can’t help it.  It’s in my nature."

Likewise, cops and prosecutors can rely that it continually will be in the nature of countless people, even when properly advised of their right to remain silent (they often are not so advised, and need not be so advised when questioned without being in custody) and not coerced at all into talking (since when is any police encounter completely uncoerced?).

Wilbert Abney, Jr.’s wife was strangled to death in 1978. He denied to the police that he was with her near the time of her death. His wife was found to have had sexual intercourse near the time of her death, and semen was found in her body. Mr. Abney denied having had sex with her for a few weeks, due to a gynecological problem he claimed she had. Her homicide case with the police became cold. Abney v. Virginia, ___ Va. App. ___ (March 4, 2008).

Mr. Abney did something suspicious, having taken out a life insurance policy on his wife around two months before her death, and then suing the life insurance company for denying a payout to him for her death. In stepped L. Davis, who was having an affair with Mr. Abney at the time of his wife’s killing. She provided an affidavit for the civil case of their affair. Years later, DNA testing and matching had advanced by leaps and bounds. The police re-interviewed Mr. Abney, who changed his story to saying he may have had sex with his wife near the time of her death. He later changed his story to saying his wife was strangled during consensual sex during which she asked him to asphyxiate her (which apparently many people — but likely a minuscule percentage of people — do practice during consensual sex), whereby she was to tap him on the leg to let him know when to stop. He said he used his belt around her neck, not being able sufficiently to get the desired effect for her with his bare hands. He said that it all backfired when she went limp and dead without tapping him on the leg. He said he previously lied, in conjunction with seeking insurance money. Not surprisingly, a jury convicted Mr. Abney of first degree murder.

Reading the gruesome rundown of Ms. Abney’s death in this lost criminal appeal in Virginia’s intermediate appellate court, it looks clear that Mr. Abney would not have been convicted had he kept his mouth shut.

Some might say that society is better served when those guilty of such heinous crimes confess. However, confessions and other forms of tongue-wagging are sought by police for just about all criminal investigations, including for drug cases, where I long have advocated marijuana legalization and heavy decriminalization of all other drugs. The safest bet is for suspects to keep their mouths shut, and also to keep their mouths shut if they are not sure they are suspects. Silence is golden. Failure to remain silent with the cops tastes and smells no better than vomit for the sake of the suspect. This image is gross, but the fallout for the tongue wagger can end up making vomit seem like delicious candy by comparison.

Jon Katz.

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