Wagging tongues are the risk to any perpetrator who lets others know of their crime, says Fairfax criminal lawyer

Wagging tongues abound around criminal defendants like vultures around a dying cow. As a Fairfax criminal lawyer, I know that such behavior can take the form of arrestees trying to dig themselves out of long prison sentences by setting up drug dealers to sell to police, and to testify against others at trial; and also for arrestees to desperately attempt to minimize their role in the alleged crime, through post arrest confessions to police, with the accused not recognizing that their desperate verbal diarrhea sinks them into a deeper hole than if they had simply asserted their Fifth Amendment right to remain silent with law enforcement officers ( LEO ). Add to the mix the law-abiding citizens who act out of a sense of duty in reporting actual and suspected criminal activity to cops. All of the sudden, those who have bragged to others about their crimes would prefer to have been born without tongues in the first place.

Wagging tongues will not be slowed enough by the Constitution’s Sixth Amendment confrontation protection

This week, the Supreme Court further protected prosecutors to prejudice criminal defendants, by making it all the harder for them to get their trials severed from their co-defendants, even on the argument that the wagging tongue non-testifying co-defendant’s post-arrest confession to the police will incriminate the remaining defendant in violation of his or her Sixth Amendment right to confront his accuser. Samia v. U.S., ___ U.S. ___ (June 23, 2023). Samia affirms murder-for-hire-related convictions against the defendant that resulted in part from the trial court’s allowing LEO to testify about the non-testifying co-defendant’s post-arrest confession to being present during the lethal shooting of the victim, where the court-ordered redaction of Samia’s name from the confession barely if at all masked that Samia was the remaining vehicle passenger referenced in the confession. Samia erodes (at best) the Supreme Court’s warning in Bruton v. U.S., 391 U. S. 123 (1968), about the serious prejudice that can result to the non-confessing criminal defendant from the jury’s hearing a non-testifying co-defendant’s out-of-court statements. Instead, Samia favors giving wide latitude to prosecutors to present codefendants at trial to the same jury,  In reaching this result, the court references the notion jurors are presumed to “follow their instructions”, so that they simply need to be instructed to consider such a confession to the declarant. How on earth does this presumption have a basis in actual human natue, thought, perception and action?

Once the ink gets into the milk, good luck removing all the ink

Don’t visualize a rabbit beheading an elephant. How is a jury to follow the latter hypothetical court instruction, when the word image it paints is so stark as to challenge human nature to forget for a very long time? The same goes for a trial judge’s telling a jury to be able to consider a wagging tongue criminal defendant’s confession to the police against the declarant, but not as to his codefendants being prosecuted at the same trial. Once ink gets released into milk, that ink can never get entirely removed. This is also a risk at non-jury / bench trials, because being human, judges themselves cannot erase from their minds words and data that come their way.

Let prosecutors pay the Constitutional price for joining codefendants at the same trial

Nothing bars prosecutors from presenting at trial the lawfully-obtained post-arrest confession of a criminal defendant, so long as that confessing defendant is being tried without codefendants. The price that Virginia prosecutors / assistant commonwealth attorneys should pay for seeking the convenience / reduced time and money expense / prejudice to codefendants from having joint trials of criminal defendants, is for the Constitutional Sixth Amendment’s Confrontation Clause protections to have teeth against co-defendants’ wagging tongues. However, Samia most regrettably — to say the least — tilts that ballfield in favor of prosecutors.

When more former criminal defense lawyers sit on appellate courts, criminal defendants will get more Constitutional protection

Samia comes from a Supreme Court that has only one former criminal defense lawyer, and only one other justice with trial experience, albeit as a prosecutor, both of whom dissent in Samia — knowing the dangers of wagging-tongued confessions to jointly-tried co-defendants — with dissenting former criminal defense lawyer and now-Justice Ketanji Brown Jackson aptly underlines that Samia “assumes that there is no Sixth Amendment problem in the first place, which then allows for an unwarranted expansion of what should be a narrow exception to the default principle of exclusion. In other words, the Court has now turned our Bruton cases on their head in a manner that risks undermining a core Sixth Amendment right.” Samia (Justice Brown Jackson dissenting). Virginia criminal defendants will suffer under Samia’s boot for years — if not decades — to come.

Fairfax criminal lawyer Jonathan Katz recognizes the possibilities and hurdles in Virginia criminal court, and relentless pursues expanding the possibilities and shrinking the hurdles. Be ready for an eye-opening experience with your first consultation with Jon, emboldening your confidence and enhancing your knowledge about your defenses against the prosecution proceeding against you. Call 703-383-1100 for your free initial in-person confidential meeting with Jon about your court-pending case.