I frequently hear attorneys say, “I don’t care if my client gets arrested, I care that my client doesn’t get convicted and sentenced to a long term in prison.”

Easy for them to say. They’re not the one sitting behind bars, perhaps with some of the most dangerous individuals in the community. They’re not the ones whose kids are going to be taunted by their schoolmates who read in the paper that Daddy or Mommy was arrested for Murder after defending themselves. They’re not the ones who’ll be interviewing for their dream job and asked, “Have you ever been arrested?” and have to answer in the affirmative.

I recently saw a commenter write, “I don’t care if I have to spend a couple of days in jail.” What on Earth made him think it would be only a couple of days? If you’ve shot an assailant and hewed to the typical “never talk to the police” advice, does anyone seriously think the cops are gonna say “Oh, OK, go home now and maybe the prosecutor can call your attorney later for an interview?” No, you’re going to be arrested and presumption of guilt will take over from presumption of innocence. It will be a while before you get a bond hearing. Bond in a homicide case often runs a million dollars, and guess what? Some judges in some jurisdictions simply aren’t giving bail at all under such circumstances.

The Chicago Tribune wrote of the case of Jovan Mosley, who spent nearly six years in Cook County’s maximum security jail, without bail, awaiting trial.

In the same article we find, “As of March of (2007), there were 24 inmates in Cook County’s jail who had spent more than five years waiting to be tried, according to Paul Biebel, chief judge of the criminal division of the Circuit Court of Cook County. At least one defendant had been waiting more than seven years, and 710 had been locked up more than two.” This is one of the reasons my practical advice (I don’t give legal advice) for situations like this is to tell the first responding officers, “This person tried to (rob/kill/rape/whatever) me.” Promise future cooperation. Point out evidence and witnesses before they disappear, and then invoke your right to remain silent. Now, from the beginning, your claim of self-defense is out there and won’t look like something  your lawyer thought up later.

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8 COMMENTS

  1. Great advice! And don’t forget the ‘attitude test’.
    If you are stroppy and obnoxious. Guess what? The police are going to be less sympathetic. Amazing, I know, but police are human beings and don’t like being given attitude or lectured at. “Haven’t you got anything better to do? You should be after real criminals”. Is a guarantee of having the book thrown at you.
    I reversed into my neighbours fathers car. Completely my fault and all was going well until I heard the words concerning the insurance claim; “People have responsibilities; especially police”.
    Strangely enough; we don’t hold the common belief that we are sub-human, without the rights of everyone else.
    In the UK the ‘civil liberties’ groups are simply anti-police organisations who would never stand up for say; a cops right to silence.
    Don’t know if it’s true, but I heard your civil liberties people actually believe in rights.
    But not without a sense of humour. So a klan member in Alabama gets sent a gay jewish lawyer.
    I always imagined the scene when a klan member looking at 25 years sharing a cell with three crips gets his lawyer.
    “Come in Mr Bernstein you are welcome! And this is your husband? Well I’m glad to see you!
    🙂

  2. The little card I made up after I got my first carry permit sits behind my current permit, and says:
    – “I was attacked, that’s the person who attacked me.”
    – “There is the evidence, and there are the witnesses.”
    – “I will file a criminal complaint after I have talked with my attorney. Until then I will not be answering any questions.”
    – “I do not consent to a search of my person or property.”
    The last one is pointless since they’re going to search anyway, but it establishes that it was without consent.

    Here’s a question: As a person with extremely limited police contact (the only parking ticket I ever got was when they installed a parking meter WHILE my car was at least initially legally parked…the hearing officer sighed and voided it):
    – How do I find a GOOD criminal attorney for a potential self-defense issue, like being arrested for murder after defending my life?
    We live in TinyTown™ in NW Wyoming, and there probably aren’t that many criminal defense attorneys from which to choose in the entire county.

    • Check with whatever union or fraternal organization represents your local police or sheriff’s deputies and ask them what attorney they would retain for a member if the member was criminally charged over a use of force. That will be an attorney familiar with the subtleties of justified shooting cases.

    • Blackwing1,

      When I read you live in Wyoming, I just wanted to get some perspective. Wyoming is 13 times larger than New Jersey, and has a population of 587,618.

  3. I originally thought Illinois doesn’t have a speedy trial law. But, the article makes clear it does, but-at least in Cook (one wonders if that’s incorrect spelling) County- it appears the PD office may, ah, have issues.

    My only direct experience with Chicago was a nightmare at O’Hare Airport enroute to LA, but that was due to weather. At least they didn’t lose my luggage.

  4. Wisdom. Cultivated from decades of pertinent experience. That’s what I appreciate about you Mas.

    This rule of thumb of never talking to the police has exceptions. One of them is in the case of a use-of-force incident.

    I am convinced that your take on this is right on the bull’s eye.

  5. I have read your advice enough times to have it pounded into my head. State what happened, point out evidence and witnesses, promise to be cooperative, then as for a lawyer. Thanks!

  6. Some “well-known” lawyers on the internet have been known to say that. I called them out on it as bad thinking, whenever I saw it. Adam Kraut (think NRA/SAF) was one such.

    I care if my client gets arrested. Very much so. If arrested on scene, law enforcement then has access to everything the client had on him/her at the time, including of course, the cell phone. Without a warrant. Jail time, no matter how short, is obviously not a picnic.

    In Florida we have a statute which makes a lawful force user usually immune from detention or arrest: Fla. Stat. 776.032. I teach it to those on both sides of the aisle. It has a double probable cause requirement and clearly disfavors on scene arrest unless there is clear and convincing evidence that the force threatened or used was not justified.

    I have seen or participated in (and written articles about) several cases where a jailed defendant waits two or more years to be released — until an appellate court finds him immune from prosecution. Any recompense (or bucks) for the time spent in jail? Probably not.

    Check out this one, written for judge and attorneys local to me, at p. 4.:
    https://www.8jcba.org/resources/Documents/Sep%202024%20Newsletter.pdf

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