Paul Ciancia, the man accused of a shooting rampage at Los Angeles International Airport, has been in a hospital since Friday. He's been charged in a rather brief and perfunctory complaint, but he hasn't made a court appearance. Since he hasn't made a court appearance, an attorney hasn't been appointed to represent him. Since an attorney hasn't been represented to appoint him, law enforcement can continue to try to question him.
The Los Angeles County Federal Public Defender's Office – which has some of the best trial lawyers I've ever seen — thought that maybe Ciancia could use a lawyer. They filed an application to be appointed in the case.
The government swiftly opposed the motion. Some of their arguments purport to be about conservation of court resources — the Public Defender can't show yet that Ciancia's family wants them appointed or that he qualifies for a court-appointed lawyer. But the heart of the government's opposition is the passage in which it shows that it understands what defense attorneys do, and what defendants do when they don't have attorneys:
The practical effect of appointing counsel at this time – other than prematurely selecting the FPD as Ciancia's legal counsel without input from Ciancia – would be to prevent the government from questioning Ciancia, as he would then be a represented party. Significantly, this would also preclude the government from questioning Ciancia, pursuant to the recognized public-safety exception to the Miranda rule, on the possible existence of co-conspirators, organizational support for his actions, and other violent plots about which Ciancia could have knowledge. . . . Moreover, the United States Supreme Court has created an investigative framework, notably in Massiah and Miranda, in which the government may question a defendant without counsel after an arrest and prior to arraignment in order to obtain information important to the investigation and to public safety. The unilateral action by the Court now urged by the FPD would foreclose the opportunity — should Ciancia so choose — to waive his constitutional rights and speak to the government about the offense prior to his arraignment. In most other cases, that brief window between arrest and arraignment would have already closed by the time of the FPD request. Ciancia’s injuries, which have prevented him from speaking with anyone and thus have enlarged that window, should not alter the investigative framework constructed by the Supreme Court.
The government is right that it can't question represented defendants without their attorney's consent. The government is right that there is a (much-abused) public safety exception to Miranda allowing very limited questioning to assess an imminent threat to public safety. The government is dead wrong — in fact, it's lying — when it says that appointing the Federal Public Defender would "foreclose" Ciancia's ability to waive his rights and talk to law enforcement. What the government means is that the government's ability to coerce Ciancia into waiving rights without the advice of an attorney will be foreclosed by the appointment of a lawyer.
The government knows very well that only a damn fool in Ciancia's position answers law enforcement questions without legal advice. The government knows that a lawyer may advise Ciancia to shut up. The government knows that advice might be in Ciancia's own best interests. The government knows that Ciancia's best play may or may not be to shut up, and that only an experienced criminal defense attorney can give him reliable advice on that decision.
The government doesn't want someone looking out for Ciancia's best interests any earlier than is absolutely required. When Paul Ciancia is questioned in a hospital bed, the government doesn't want him to make decisions based on good legal advice. The government wants Paul Ciancia to make decisions based on fear and pain, and the threats, lies, half-promises, and bullshit that law enforcement will throw at him.
Paul Ciancia is an extreme case, but an illustrative one. Remember: law enforcement officers asking you questions are not looking out for your best interests. They're often asking you to do things that they know are not in your best interest, and that they know any attorney would tell you not to do.
Edited to add: either I missed this on the docket before, or it was just added:
The Magistrate Judge has read and considered all documents submitted or filed in this case, including all documents submitted or filed in support of and in opposition to the Application. The Magistrate Judge has taken the Application under submission without oral argument. The Application is granted. It is ordered that the Office of the Public Defender is provisionally appointed to represent Defendant.
Last 5 posts by Ken White
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