The Winner Goes to Jail. . .

[Roy Bedard]

If you are confronted by a law enforcement officer or any other person immediately after a self defense use of force the most important thing to develop is a reflexive action to not answer any questions or make any statements at all. That is, not until an attorney is present. Don't talk to cops, to witnesses or even to your friends. They will all be called as witnesses in your trial. If you don't have an attorney's phone number AND after-hours number in your phone, stop reading this and get one NOW. You need to have an attorney who is a phone call away or you will be tempted to talk to police. In critical moments it will seem easier to do that - remember human nature is to help, and the officer will tell you that he needs your help. He will also convince you that talking to him is a good thing right now and every moment of delay just makes it get worse. Remember that he is eager to conclude this case and get on to the next one. For him, it is a job. For you it is your life. During the Lopes case, the investigator spoke with me outside of the courtroom. He got was the one who got Lopes to "confess" but reflected on it later by saying, "You know, I feel bad for the poor bastard." This investigator is an honest, upright, professional cop who knew that Lopes used force to defend himself. But it wasn't his job to defend Lopes. That is an attorney's job and Mr. Lopes didn't have one at that moment.

Do yourself a favor and avoid the hassle of finding an attorney under dire circumstances. You don't need to pay him now, but find one who specializes in criminal defense and get his number in your phone. If you can take a day to go meet him--even better. Don't fall for the retainer pitch, it isn't necessary. Attorney's are eager for work just like the rest of us. Most will take your call and assist you . It isn't a bad idea, regardless of your socio-economic status to begin building a modest defense account. You'll need to have at least enough money for the original meeting--think around several hundred to one thousand dollars. If you are going to get a court ordered attorney because of indigency, he will be assigned to you by the court later (another Constitutional right). Your biggest problems are going to happen within the first several hours of a use of self-defense and you are going to have to supply your own legal counsel to shield you.

If after a use of self-defense, particularly when you may have had to take a life and are now confronted by law enforcement you must immediately say "I WANT AN ATTORNEY" repeat it to youself over and over,"I WANT AN ATTORNEY!"

This puts the officer on notice that you have invoked a guaranteed Constitutional right and any statements after that are not admissible against you in court. If you are asked to go on video and give a statement--even better. Agree to the request. Wait until the investigator finishes with the preliminaries. He will start with the basics, tell you who he is and what he is investigating. He will then make a record of who is in the room. He might have you introduce yourself to the camera by saying and spelling your name. He will then read you your rights per MIRANDA. As soon as he is finished he will say to you, do you want to tell me what happened? This is your big moment! Turn your head to the camera and look into the lens. Then say loudly and surely "I WANT AN ATTORNEY."

Know however that if you make extemporaneous or spontaneous comments or utterances that might incriminate you, these are all admissible. This is no time to get on a phone at the police department and tell your mother what you have done. Nothing in a police department, jail or prison is secret (unless an attorney is with you). These statements can and will be used against you. If you are in the police station, you must remain silent. If your attorney arrives and you are provided an opportunity to consult with him you wil be given a private room where you can speak freely. This interview is protected and can not be used against you under the attorney/client privilege.

Under most circumstances, attorney's will advise you to not speak with the police, but remember, self-defense is not illegal. If your story is a clear representation of the facts as you recall them, and it clearly shows you were defending yourself, the attorney may advise you to conduct an interview with him present. This is a gamble of course, but one that may be worth taking if your statement is powerful enough to convince the investigating officer to not pursue charges. Having your attorney there during the interview will force you to be kept on a short leash and you will need that.

You are NOT trying to be uncooperative. Your behavior does matter. Don't be angry with law enforcement. Don't curse the system and don't be a jackass. Like any other of life's unexpected consequences, you are going to have to deal with the process and manage it appropriately. You can't just go home, and it is not just going to go away. You are gong to be there awhile, accept it and calm down. On a positive note, chances are you will be treated very nicely--that's one of the interview tactics police use to make you feel comfortable and more encouraged to talk. Appreciate the sentiment but don't get lulled in to the imaginary comfort zone and start believing it's real. Ask for a pad and paper so you can make your own notes of what is going on around you, record statements that police make. If they are rude, unprofessional or threatening, write it down. If you aren't given a writing tool under the guise that you might use it for a weapon, request a crayon. If you are still refused. Make mental notes and record them as soon as your attorney arrives.

Cooperate fully. Tell your attorney to speak with the officer. Have him inform the investigator that you just experienced a life and death incident and you need some time to gather your thoughts. Your attorney can elaborate on fight/flight phenomena if they are properly schooled. Make sure the officer knows that you want to cooperate fully and are just as eager to resolve this circumstance. You can state that whatever you did or might have done (cause you don't always remember under stress) was done in an act of self-protection. This begins the process of an affirmative defense for which good investigators will pick up on. This will help to influence the possibility that the officer will make a fair review of the facts in light of your claim.

If you don't agree to be interviewed at that moment, chances are that you are going to jail. What else can a cop do with a "might-be" murderer? This is why I think that some attorneys will roll the dice and let you speak. Just make sure that you give it at least one night of sleep ( I know it might not be too restful in a jail cell). You might think you are in charge of your faculties, but you might also think that when you are drinking. When the neocortex is not fully functioning, things aren't as they seem.

If you have a medical need --officers are obligated to oblige your request for assistance. They will likely call an EMT who will make the determination of whether you need to go to the hospital or not. If you need meds, this will likely be taken up with the jail staff once delivered there, who will refer you to the medical section once you have been processed through booking.

Failure to provide you medical attention is a violation of a Constitutional right and is actionable under Federal Tort Law. Most officers know the problems that Civil lawsuits bring and are programmed at the academy to avoid them when possible.

These are all great questions Van and I appreciate you asking!

[Bill Glasheen]

Several comments.

First... You are a great writer, Roy. I've always known you were a charismatic speaker. I didn't know you had this storytelling ability in you. Perhaps it was the systems physiologist in me who appreciated the attention to detail you put in your description of the victim's neurohormonal status. Coming from someone with a doctorate and publications in the field (particularly sympathetic vs. parasympathetic control), you nailed it. And you communicated in layman's words in the context of a story. Well done!

Second... I like your description of "the system." We all have stories. I'll let sleeping dogs lie.

And finally... I realize this is off topic. But it is worth mentioning. I have a few maxims I teach my students about avoiding trouble. Never allowing bad things to happen in the first place is a higher order of self-defense. Rory Miller himself speaks to it in his own works. That said, this young gentleman violated two of Bill Glasheen's maxims.

1) Avoid going where alcohol and mating rituals mix. And if you must, do so with friends.

2) Never, ever mess with a couple.

Those are my choices anyhow. And while I'm not going to tell others how to live their lives, people need to know that some choices in life involve calculated risks. I rode a motorcycle for two years (my only means of transportation 365 days of the year) knowing that I risked donating my organs to someone at a very young age. I knew that there was a chance that I could be in an accident and be in the right, but be dead right. The same holds for hanging out at bars where testosterone and estrogen are in play. Do it if you want, but by all means do it with your eyes wide open.

And for God's sake... don't be a jerk.

All that said, your legal points are all well taken, Roy. I hope I never am put in that situation. But I'm better informed because of the messages you have reinforced in my brain. Perhaps I'm not as likely to tempt fate, but poo happens to the best of us.

- Bill

[Van Canna]

Roy,

Thank you again for this priceless information.
You are indeed a great writer and speaker...and your field experiences in the subject matter truly invaluable and convincing.

Your book should be of great value to so many of us in so many ways.

Here are some observations on what you wrote...maybe you can expound

The most important thing to develop is a reflexive action to not answer any questions or make any statements at all. That is, not until an attorney is present.

I am sure you have read other opinions where it is advocated to tell the police very important basics...then shut up until your lawyer tells you otherwise: i.e.,

> Say that you are the victim, that you are in an extreme state of shock at the moment_ that you are not feeling well...that you need to rest...that you fear medical conditions complications, if you have them_that you would like to see a doctor immediately because you feel sick, hyperventilating, chest discomfort...all things that will probably happen anyway...

...that you were in fear of your life and had to defend yourself_

...that the evidence "the assailant's weapon, etc. is here/there in the bushes" or point where the police can find more evidence at the scene_ that the witnesses 'are there' _ and other evidence related things to make the police solidify a scene investigation that might exculpate you_

Then, tell the police you want to see a lawyer before answering any more questions_outright refuse to answer any more questions, politely...._no matter how innocent_

~~

This of course means that you will have to do some talking....with the danger that you will keep on talking without realizing it...becoming a human chatter box...unable to stop the 'logorrhea' a Mas Ayoob puts it.

I remember Mas even showing us to place fingers against our lips and twist them in order to stop the blabbing...a good move to practice.

~~

But the police at the scene do need help in securing evidence and who's to give them this vital information if you don't ?? Again the danger is you will give more than information than evidence without realizing it.

Another question that has been asked: should you be allowed to talk to the police at all, even with your lawyer present, or is it best for your lawyer to do all the talking in relating what happened?

As you indicate, you need to be on a short leash_ but even so...chances are you might say things you should not have before your lawyer can shut you up.

I have seen this happen in civil depositions where the deponent did some terrible damage to the case by shooting off his mouth.

[Van Canna]

If you don't agree to be interviewed at that moment, chances are that you are going to jail.

Will the police jail you while awaiting the arrival of an attorney that you are in the process of hiring and must wait for the long weekend to pass, for example, because you don't have anyone you can reach right now?

But again, as you indicate, this initial detention you must think you will do standing on your head...given the alternative of spending the rest of your life in a cell if you make the mistake of talking your way into one.

And your advice of keeping your mouth shut in the station, not telling even your family and friends the details of what happened, in or out of the station...in the immediate aftermath ....is golden...

People may ask why would any 'hearsay evidence' be allowed.

This might help as you know.

http://legal-dictionary.thefreedictiona ... Res+Gestae

[Panther]

I think some of us reading this might have experienced what you write here, and possibly in retrospect will tend to deny it.

No denying it... Until I learned better (after being told to STFU by the right people and told what the consequences of not doing so could be), I had survived bouts of "logorrhea". Fortunately, only one of those times was directly with a responding cop (other times I usually started blabbing to others that were more sympathetic) and that one time, as you recall, I just happened to get lucky with a veteran officer who (looking back all these years later) knew a lot more about things than he let on and didn't just cut me loose, he told me in no uncertain terms to go home (meaning get the eff outta here and go away now).

It takes a lot of mental effort to do this simple sounding thing... STFU. For awhile I had it printed on a card that I carried with me. That had my attorney's name & numbers on one side and this on the other side: "I am willing to speak with you and eager to tell my side. I will do so after I have had time to compose myself from the events and ONLY with my attorney present. For now, I must exercise my Right to remain silent and immediately request legal counsel."

I only actually used that once. I didn't even say it, I just handed the card to an officer. He read it, chuckled, handed it back and walked away...

I think one of the biggest misrepresentations that works against someone who's just been successful in a self-defense situation is the verbalization of that "euphoria" at surviving that is then presented in court as "witnesses heard the defendant say, 'I got them! they didn't get me! I'm still here!' ..." <fill in other verbiage that works...> In reality the comments come from the survival "euphoria", but the "perception" based on lack of understanding isn't a good one. Thoughts?

Then again, am I the only one that feels like when I get the upper-hand, I have to be careful of the consequences, but when some punks have the upper-hand on me, they seem to disappear and not have to face any of those same consequences? (granted, this is from my limited experience... fortunately).

[Van Canna]

I think that another very serious problem in the aftermath of a violent encounter, especially if you used weapons on your assailant[s] and either severely injured or killed someone_ is that soon after it is over…you no longer are the same person.

You will be dismayed by this realization…and you will begin to feel very depressed…it is almost as though, in a surreal dream, you stand there watching the real calm, collected, in control 'real you' _ tip his hat as he somberly walks away in the sunset, leaving behind a 'you' mostly unrecognizable_

_ as you begin to be assailed by Common symptoms after an ugly confrontation that may include shortness of breath, dizziness, headache, chest pain, irregular heartbeat, nausea and fatigue…all the while under a 'hammering' of the police.


In the short or long following hours, while in police custody, you may even experience symptoms including stomach cramps, diarrhea, gas and nausea.

During the terrible experience you just went through, your body will have transitioned to 'protective mode' changes that can include an increase in the breathing rate; a faster heart rate; higher blood pressure; increased muscle tension; increased pain tolerance and more.

The opposite occurs when the threat is gone or has been significantly diminished. The body’s relaxation processes will kick into action and halt or reverse the bodily changes that prepared for protection.

In the process, you may find that your extremely intense exposure to the body stress response may have temporarily or permanently damaged the creation of memories and the formation of emotions.

You will feel terribly confused…you will feel the lingering terror of the event…with bedeviling flashbacks consuming you…while in the clutches of the law trying to squeeze a confession out of you.

You will lose track of the sense of time, and this will lead to disorganized, non-chronological and fragmented memories that can be incomprehensible.

These memories also tend to lack accompanying words that make it difficult or even impossible to talk or write about the experience leaving you with a sense of terror that is speechless. You will wonder why you can't even talk straight, and be further depressed by it.


Your own lawyer will have to put up with these changes and try to get you to calm down before you begin to make any sense at all.

When extreme stress is present, the individual also struggles with the management and formation of emotions as brain chemicals which are needed to calm and regulate emotions become more active and thus, more difficult to control.

This increased state of emotional distress can keep the body’s stress response from fully turning off.

[Van Canna]

It is here that I ask the question to Roy:

Can the argument be used by the person now in police custody or his lawyer, as soon as he can get involved, that he has been hurt by a traumatic injury, mentally and possibly physically because of the physical manifestations as outlined above [shortness of breath, dizziness, headache, chest pain, irregular heartbeat, nausea and fatigue]...

...that should reasonably require the person to be taken to the hospital overnight under observation, lest something serious develops health wise...

... thus removing him quickly from under the 'hammers' and placing him in a restful safe place where he can be looked after and calm down under medical care.

I would argue an Emt, the police may call in for an opinion, is not medically qualified to render an opinion, especially if the person reports some pre-existing medical condition that might trigger something serious under the extreme stress and complications of an 'emotional injury' just as potentially serious as a physical injury.

The objective here being …for the person to avoid being kept in the clutches of the police grilling him…and most likely spending days in jail before he can arrange for an attorney to come to the station.

A way to get out of that bleak interrogation room and out to be looked after medically.

Could this happen, perhaps with the assignment of an officer to stand guard at hospital?

Just random thoughts.

[Van Canna]

Panther

I think one of the biggest misrepresentations that works against someone who's just been successful in a self-defense situation is the verbalization of that "euphoria" at surviving that is then presented in court as "witnesses heard the defendant say, 'I got them! they didn't get me! I'm still here!' ..." <fill in other verbiage that works...> In reality the comments come from the survival "euphoria", but the "perception" based on lack of understanding isn't a good one. Thoughts?

Yes, and imagine the 'perception' if in 'euphoria' the words commingle with racial expressions.

Here Mas says

Ayoob turns to a subject not specifically related to the physio-psychological aspects of violent encounters, but certainly related to "surviving the aftermath," and that is preconditional bias and prejudice.

He points out that, if one in the habit of using terms such as nigger, wop, spic, etc., and if -- to defend innocent life -- one has to kill a African-American, Italian, or Hispanic, such verbal habits will come back to haunt you in the courtroom.

[another good example of operant conditioning...you keep doing/saying the same thing over and over...and it will come out of you without your realizing it.]

Ayoob advises his students to lose such verbal habits, and to learn verbal crisis de-escalation instead. Being able to demonstrate that one attempted to verbally de-escalate a situation goes a long way towards defeating the other side's allegations of malice.

What about the 'F' word and other similar words we all utter under stress?

Scatological language is less of a problem, but is still not a good idea. In your self-defense case, you want to be able to present yourself as the innocent victim, not as a foul-mouthed roughneck who enraged the deceased by verbal abuse.

[Bill Glasheen]

It is here that I ask the question to Roy:

If you don't mind, I think I have a useful comment here. I analyze health care data for a living, so know how the system works.

Can the argument be used by the person now in police custody or his lawyer, as soon as he can get involved, that he has been hurt by a traumatic injury, mentally and possibly physically because of the physical manifestations as outlined above [shortness of breath, dizziness, headache, chest pain, irregular heartbeat, nausea and fatigue]...

...that should reasonably require the person to be taken to the hospital overnight under observation, lest something serious develops health wise...

... thus removing him quickly from under the 'hammers' and placing him in a restful safe place where he can be looked after and calm down under medical care.

Getting taken to the emergency room is a piece of cake. All you have to do is say either one or both of the following:

• I am having difficulty breathing.
  ...
• I am experiencing chest pain.

If an EMT hears this, (s)he is obligated to take you straight to the ER. Whether or not you can convince the officer to call an ambulance is another story. Probably...

Here's the tricky part though. While it is perfectly reasonable for even a healthy person to experience chest pain and/or shortness of breath under extremes of neurohormonal stimulation, getting admitted is a bit trickier. Once in the ER they are going to do a basic exam and probably do an EKG. Now if you're strong enough to have kicked booty, you're not likely to show the symptoms and/or have the risk factors to require further tests and/or observation. Fifty and fat? Sure. Thirty and fit? No way. The doctor will likely conclude that you've just been through a traumatic event and were experiencing a normal response to it. So you'll be out in an hour or so, and back in the clutches of the law.

I think you're better off with the STFU mantra and a call to the lawyer whom you've pre-arranged to meet under the circumstances.

- Bill

[Van Canna]

Very good points Bill.

Is it possible for someone to suffer continuing chest pains without any of it registering under examination?

I suppose it would be difficult to pull such an act to begin with and further antagonize the police. Surely they must see this in their work.

[Bill Glasheen]

Is it possible for someone to suffer continuing chest pains without any of it registering under examination?

I suppose it would be difficult to pull such an act to begin with and further antagonize the police. Surely they must see this in their work.

EMTs have stories of bums who want a free room on the taxpayer's dime. They fake a heart attack on the street. They know what to say and what to do when the EMTs arrive. And while the medical professionals recognize the act, they are compelled to bring them to the ER.

Chest pain that is worth worrying about is associated with ischemia (low blood flow) in a region of the myocardial (heart muscle) tissue. For someone who has a critical stenosis or a narrowing of a coronary artery, stress creates uneven flow to the heart tissue and can precipitate angina and possibly a heart attack.

There's also a "sudden death" syndrome that is not very well understood, and some unusual congenital conditions that can lead to sudden death (via electrical abnormalities in the heart). So all chest pain needs to be taken seriously. A good doctor knows first to listen to the heart, and take an EKG. That can reveal a lot of obvious stuff. They might order a sonogram, which gives a fuzzy image of the beating heart. If there are any obvious issues, then they might hold for observation and possibly may go straight to a cardiac cath where they inject a dye into the coronary circulation to look for narrowings.

For the strong young buck, they'd be looking for "zebras" or unusual conditions. These days they might play it safe and hold for observation (sometimes in the ER) if the chest pain doesn't go away. But they'd have the person on constant EKG monitoring. A fellow wouldn't be able to fake things for too long.

- Bill

[Van Canna]

Here's the thing though_

Just imagine surviving a situation involving a street attack, where most likely you will experience both physical and psychological trauma being forced to defend yourself empty handed and or with some sort of weapon and someone is hurt bad.

There surely will be manifestations on the coat-tails of such unnerving incident...some people will vomit...wet themselves...and try to get over the fear of something strange happening to them, never before experienced.

I have handled cases where terrible arguments in the work place, sans physical violence, have led employees straight to the ER because of the worrying manifestations of it...physical and emotional...resulting in claims of work related 'emotional injury' claims.

I also had two fatality cases that I will never forget.

One involved this young 35 yo lawyer, who while at his desk got a phone call from an irate client who berated him. Fifteen minutes later he keeled over and died at his desk from a myocardial infarction, that doctors related to the phone call.

The other was this gentleman, who had a pre-exisiting heart condition...being called to testify at an Industrial accident board hearing.

After he was vigorously cross examined....he went back to his seat next to a defense attorney...ten minutes later he collapsed and died from an MI.

I have also seen deponents in legal depositions, break out in cold sweats, cry and ask to go see a doctor.

In my work I have seen some very complex emotional distress claims related to intentional infliction...and it is scary and expensive.

For example we know that often when people hear disturbing news about a loved one or _have endured a traumatic experience, they also suffer from shock.

This type of shock is usually referred to as psychological shock and occurs after a physically or emotionally harrowing incident.

The state of mind is affected and in more severe cases, professional help may be required.

In many cases there will also be physical manifestations...not very easy to discern even by medical professionals or testing machines.

A person may keep it all bottled up inside, only to suffer a heart attack/stroke or die a bit later or the next day.

i have had too many of those cases.

Anyway, this is also of interest.....

http://www.legal-aid.org/en/ineedhelp/i ... ested.aspx

[Van Canna]

Bill

For the strong young buck, they'd be looking for "zebras" or unusual conditions. These days they might play it safe and hold for observation (sometimes in the ER) if the chest pain doesn't go away. But they'd have the person on constant EKG monitoring. A fellow wouldn't be able to fake things for too long.

I think that people in such a situation are just hoping to get a 24 hours rest to compose themselves away from the police 'interrogation chambers' until their lawyer gets there.

[Bill Glasheen]

Van

I understand what you're saying.

I don't know to what degree the medical establishment would cooperate in giving a person "down time" if all tests indicated that the cardiac system was fine. I have my suspicions. There are a lot of forces at play here, including a hospital's concern that a person's medical benefit would pay for a high-priced night in a hospital. It ain't cheap, and everyone is pushing for their self interest in this world.

I do know that there's a chance that a person may get a sympathetic medical ear. But remember that coming in the ER, they've seen it all. It would have to be a sympathetic ear. But they exist.

I guess there's just one other thought that comes to mind, Van. If one makes it abundantly clear that THEY WANT TO SPEAK TO A LAWYER, then what does a person have to be afraid of? A night in prison? Two nights? Time there until the lawyer arranges bail? It may be jail, but it could be worse. They could be... dead. Considering the alternative, I'd take it.

Just thinking out loud, my friend.

- Bill

[Roy Bedard]

Before we talk to much longer about this strategy, know that law enforcement officers will be at the hospital with you if you are a suspect of a crime. If you are committed for the night, they will be there all night with you. Try not talking to an officer who will be sitting at the foot of your bed for 12 hours. You'd do better in the police station interview room. My guess is that before you leave the hospital he'll be on your Christmas card list--a good cop is going to make you his friend.
Going to the hospital after an alleged crime does not parlay the investigation or the custody.

Police are not restricted from nearly any area of the hospital and are frequently there conducting investigations for all manner of law enforcement concerns. On a Friday night the local ER is usually packed with blue, green, and brown polyester uniforms - officers following up on batteries, shootings, traffic crashes, etc.

I have conducted interviews on victims and suspects while doctors have worked diligently to keep them alive. Cops will work around ambu bags, IVs, even respirator masks hoping to get a nod of the head or hand signal to affirm or deny certain questions. We will put a pen in a persons hand and ask him to write, where he might not be able to speak. I've done it in the back of ambulances, in the emergency room and in patient care quarters. The important thing to remember is to get an attorney present with you if you think you might be the subject of an interview that might be focused on a crime. Until one arrives, stall any interview by telling the officer that you are happy to cooperate, but you would like your attorney present.