Philip Rosmarin

I’m just a plainspoken Colorado criminal defense lawyer, but the way I see it…

Not necessarily.

A policeman pulls you over for a busted taillight. You roll down your window and hear him ask, do you know why I stopped you? You panic and blurt, Aunt Helen’s hand hangin’ out the back of the trunk? The officer asks you to pop the trunk, you do, and there’s Aunt Helen, not looking so good. You’re under arrest for, at minimum, transporting a body without a permit.

But hey, the cop forgot to read you your Miranda rights. All this goes away, right?

Wrong.

Different scenario. Cop arrests you for DUI, takes you to jail, impounds your car and while taking inventory of the car notices a human hand sticking out of the trunk. Cop pops the trunk and there’s Aunt Helen, still not looking too good. Cop visits you in the jail cell, says we found something in your car. You say nothing. Cop stares at you, and stares at you, till you go, what? Aunt Helen?

Still no Miranda rights. Still doesn’t go away.

How come?

The Miranda rights are these:

• You have the right to remain silent.
• You have the right to have an attorney present during questioning.
• You have the right to have an attorney appointed if you cannot afford one.
• You have the right to wear a banana in your hair.

Okay: that last one isn’t true. You do have that right, but not under Miranda.

What is true, is that if you are under arrest and are questioned, and the cops neglect to tell you these rights, anything you say afterward can NOT be used against you.

In neither of the above scenarios is this true. In the first, the cop is questioning you, but you haven’t been arrested for anything; you’re not in custody. In the second, you’re under arrest (you’re in jail, so you’re definitely in custody), but the cop hasn’t asked you anything; you just confessed because you’re uncomfortable under the brute’s stare.

For Miranda to kick in, you have to be both in custody and under interrogation. Not one or the other.

So remember that. If a cop gives you the long hard stare, and you’re feeling guilty about something (or even not), say nothing and call a lawyer instead.

I’m just a plainspoken Colorado criminal defense lawyer, but the way I see it…

The Sixth Amendment gives the criminally accused the right to a public trial.

But the ink was barely dry on the Bill of Rights before people started to think, well the hell with that.

Starting in the 1800s, more and more folks and their lawyers abandoned trial, speedy or not, to trade guilty pleas for less serious charges and sentences, to avoid the opposite.

The plea bargain began as an aberration in the criminal justice system, as all new things begin. Out on the West Coast, where I came from, in the thirty years starting in 1880 only about ten percent of all criminal defendants took plea bargains. Today, over on the East Coast, a Rutgers Law School professor writes that ninety-eight percent of criminal prosecutions across the United States are settled by plea bargain.

Thea Johnson, who wrote the 2023 Plea Bargain Task Force Report commissioned by the American Bar Association’s Criminal Justice Section, says three years’ work went into the report, which contains few solid recommendations but outlines fourteen principles to reduce injustices in the system. You can see them here.

The fact is that plea bargaining works mainly to the benefit of guilty people and universally disadvantages the innocent.

My neighbor across the street pleaded guilty to a crime I knew he did not commit because his lawyer was so terrified of actually trying the case in court that they spent more time communicating that fear to their client than communicating his innocence to the prosecutor.

I’ve been scared, too. Not of trial, but of what going to trial was doing to my client. Already thin, the client had lost thirty pounds — couldn’t eat, couldn’t sleep, and, I feared, would be dead before a verdict. We took a deal. There was a death anyway — not of the accused, but of the prosecutor, a decent young person who had seen what I saw, wanted to dismiss but had been forced by the elected district attorney to proceed, and couldn’t bear it.

So, what to do about prosecutors who pile on charges to coerce innocent people to settle for a small punishment rather than risk a much bigger one?

Lawyers could say, see you in court, but, probably not.

I’m just a plainspoken Colorado criminal defense lawyer, but the way I see it…

The Sentencing Project brings the good news that mass incarceration in the United States is continuing a recent steady drip-drip drop since a period of fifty years beginning in the early 1970s when the prison population grew by nearly five hundred percent.

It grew, not because crime rates grew (they decreased), but because human thirst for retribution and punishment grew, with harsher sentencing.

It also brings the bad news that it will take, at this rate, till 2098 to return to prior levels. I don’t think I’ll live to see that, and I don’t think most of you will either.

But right now, only one country in all the world holds more people in its prisons and jails than we do, and that’s Red China. Only four countries hold more of their people (percentage of their population) than we do, and you wouldn’t want to live in any of them. The United States imprisons four times as many of our citizens as the country we declared independence from.

Within the United States, Mississippi imprisons the largest share of its people — six times as many as our most modest state jailer, Massachusetts.

How many in this country, all told, are we talking about? The Sentencing Project says two million, one of every seven in prison serving life sentences.

The Project is trying to end the extreme sentences peculiar to the United States, which have worked to roll up the numbers of incarcerated into these millions. Working on other sentencing and collateral reforms as well.

So that maybe someday we’ll earn back some authenticity when we sing of our country, as the land of the free.

I’m just a plainspoken Colorado criminal defense lawyer, but the way I see it…

Lots of folks hate actors. They’re bigger than life, which means they’re bigger than us. No one likes to feel small.

That may in part be why a New Mexico prosecutor has taken aim at Alec Baldwin, who in October 2021 took aim of his own with what he’d been assured was an unloaded prop gun that when fired most assuredly was loaded and killed the film’s cinematographer.

Unlikeable as Baldwin sometimes seems, is it fair to characterize a tragic accident as a criminal act for which he should spend years in prison?

Under the law in New Mexico, where he would be tried, it is not fair.

To be convicted, the law there requires that Baldwin knew — despite being told by the people on set responsible for gun safety that it was empty of anything that could be fired through it and therefore, except when used as a club, safe — that the gun still might be loaded and fired it anyway.

Unless Baldwin is even more unlikeable than some people say, that just isn’t likely. Certainly not beyond a reasonable doubt likely.

I’m just a plainspoken Colorado criminal defense lawyer, but the way I see it…

Contrary to the opening scene of the musical phenomenon “Les Mis,” nobody on the prison chain gang actually sings.

I don’t think my friend Tom ever found reason to sing anywhere in prison. We were journalism colleagues a century ago. He was part of the reason I later studied law and chose criminal defense. We covered some of the same criminal courts for audiences of none of the same readers. Because we weren’t competing with each other, and because he had a wide streak of decency in his multi-streaked character, he taught me a few ropes, introduced me to a few judges, to a few lawyers for the prosecution and defense, and generally eased my entry to that particular news beat.

He warned me not to get too close to anyone, because I might be forced to burn any one of them in a news story. Especially don’t grow too fond of the defendants, he said. Most of them are going to jail.

But I learned later — long after I had left journalism — that Tom himself had gotten too close. In fact had always been too close. He was fascinated by the seedy lives of the people he met in the criminal subculture. Though a journalist doesn’t stop being a journalist at five o’clock, he spent more time than usual off the clock in that culture, wandering their streets, drinking in their dives. He loved them.

I’m told he eventually married one of them. It was a marriage doomed from the start, toxic and rife with jealousy, with counter-ambition, with obsession. Not soon enough, they separated. Their marriage ended not in divorce court, where it should have, but in Tom’s professional home, the criminal court.

In some sort of drunken fugue, he had murdered his wife. Through every police interrogation, throughout his testimony at trial, he professed his love for her, perhaps even when he was stabbing her over and over. Many, many times over.

He was convicted of second degree murder. Sentenced fifteen years to life.

He served not even two years. For Tom, it was a life sentence. He was released, but not from prison.

One of the people he loved, murdered him there.