Tag Archives: neil rockind

The Reid Interrogation Technique OR How to Elicit a False Confession

Unless you are a police officer you probably haven’t heard of the Reid Interrogation Technique. I don’t want to re-invent the wheel, so instead of trying to explain what exactly this technique is, I’ll simply direct you to the Wikipedia page – which gives a pretty good explanation:

http://en.wikipedia.org/wiki/Reid_technique

“In the Reid technique, interrogation is an accusatory process in which the investigator tells the suspect that there is no doubt as to his or her guilt.” Further, during the interrogation, the cop (or interrogator) repeatedly tries to separate the accused from “people who are even worse” and tries to minimize the alleged conduct of the accused. For example, if the allegation is that the accused raped someone, the interrogator will repeatedly tell the accused that he believes the accused is not a serial rapist, but only someone that did it one time and therefore it’s not that bad.

The interrogation itself can last for several hours, and the goal is simple: To wear the person down and get them to confess.

But herein lies the problem.

If I told you that you murdered someone, of course you would adamantly deny it, because it’s simply not true. But if I kept you in a room, and told you that there were witnesses, and that I knew for a fact you have murdered someone, and I gave you explicit details about how you had done it, and I sympathized with you (“well, the person you murdered was a horrible person”), and I promised leniency (“if it was only one time, the prosecutor will go easy on you,” and “we won’t let the details go outside this office”), and I kept you there for hours – repeatedly telling you that I know you did it, and I told you that this interrogation would stop as soon as you admitted what you had done, you may eventually admit to something that you HADN’T ACTUALLY DONE just to make the interrogation stop.

Right now you may be thinking, “but I would never admit to something that I hadn’t done.” Yet, the fact of the matter is that people do. The Technique plays with your mind, alters your sense of what is right and wrong, repeatedly accuses you of something, wears you down, and eventually convinces you that you are guilty; that you actually did do what the police are accusing you of having done.

This is the Reid Technique.

The problem is that we know that the Reid Technique has produced numerous false confessions. There are many, many cases where a person confessed, and later the confession was found to be false. If you want to read a very good article about some of these false-confession cases, click here —> http://www.newyorker.com/magazine/2013/12/09/the-interview-7

In fact, the use of the Reid Technique has been banned in several countries because it routinely produces false confessions. “In Canada, a Provincial Court judge ruled in 2012 that “stripped to its bare essentials, the Reid Technique is a guilt-presumptive, confrontational, psychologically manipulative procedure whose purpose is to extract a confession.” This is scary stuff!

Neil and I, and another attorney – Shannon Smith, began the defense of a case a few months ago in which the Reid Technique was utilized by local police. After doing a lot of research, we believe that the police officer improperly utilized the Technique and that his improper use resulted in a false confession. Now we have to prove it.

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NOT GUILTY!

Nearly a year ago we began representing a young woman who was charged with Operating While Intoxicated. When she came to our office she was scared and vulnerable. She was worried about how the conviction would affect her schooling, her future career, and the rest of her life. We sat down with her and after hearing her story, we told her that we would fight as hard as we could fight to get her case dismissed and clear her name.

Yesterday, after a hard fought battle that took nearly a year – including a 2-day jury trial, we delivered: The jury returned a verdict of NOT GUILTY.

For months she had cried tears of sadness – knowing that there was a possibility that she could be wrongly convicted and sent to jail. Yesterday she cried tears of joy – knowing that she had finally received the justice that she deserved.

Here is her story:

A little more than 1 year ago, our client – S.J. – had gone out to a bar with her underage (19 year old) cousin. S.J. and her cousin (who at the time had a fake ID) decided to go out in downtown Rochester Hills to celebrate the passing of a school examination. They went to Fuse Bar in downtown Rochester at approximately 11pm. Her cousin drove her own vehicle and picked up S.J. at her home before heading downtown. While at the bar, both girls consumed several drinks. A couple of hours later they decided to leave. S.J. got back into the passenger seat and her cousin drove. They left the parking lot and were immediately pulled over due to the fact that her cousin had gone the wrong way down a one way street.

Immediately after the police officer flipped on his emergency lights, S.J.’s cousin abruptly stopped the vehicle and hopped into the passenger seat with S.J. while repeatedly saying that she was on probation and couldn’t get in trouble again. Our client, S.J., in a chaotic moment of desperation switched into the drivers seat a couple of seconds before the police officer approached the front window.

The decision by S.J. to switch seats with her cousin would prove to be the biggest mistake of her young life. The cop, who hadn’t been paying close attention, rightly presumed that S.J. had been the driver of the vehicle. Based on his preliminary assessments that S.J. was drunk (red and watery eyes, odor of intoxicants) he required S.J. to exit the vehicle and perform some field sobriety tests. S.J. performed the field sobriety tests terribly, yet in an attempt to salvage the situation she repeatedly told the cop that she had only had one drink and was not drunk. Further, she stated that she had been driving the vehicle and that her cousin was the passenger. Ultimately, S.J. was taken down to the police station and given a Datamaster Breath Test and tested at a .12 Blood Alcohol Content. Based on all of this, S.J. was charged with Operating While Intoxicated.

Meanwhile, her cousin gave the police a fake name and a fake date of birth and was ultimately charged with only Minor in Possession – due to the fact that she had consumed alcohol while underage.

Her cousin went to court and was advised by her lawyer to plead guilty to the MIP, despite the fact that she admitted to him that she had been the driver.

At the same time, we went to court with S.J. and from the very first court appearance we never wavered in her innocence. We told the prosecutor that they had switched seats. We told the police officer that they had switched seats. We presented the prosecutor with a copy of the polygraph that S.J. had taken showing that she was being truthful with regard to the switching of the seats. We tried everything we could to convince the prosecutor that S.J. had NOT BEEN THE DRIVER OF THE VEHICLE. It was all to no avail and ultimately we ended up scheduling the case for trial.

During trial prep we had to figure out how to overcome a number issues. First, we knew that the prosecutor was going to call her cousin to testify that she wasn’t driving the vehicle. Therefore, we had to make the jury believe that her cousin was a liar. This was no easy task, but we were prepared and Neil skillfully got her to admit to several lies (1. that she had violated her probation several times; 2. that she had lied to the police; 3. that she had misled judges; 4. that she had even lied in court).

After demonstrating that S.J.’s cousin was a liar and not a credible person, our next challenge was convincing the jury that the switch had actually  taken place. In order to do so, we spent several hours analyzing the in-car video from the police cruiser and eventually were able to spot some movement that had taken place inside the vehicle immediately before the officer walked up to the window. We then hired a video specialist to enhance the image and slow it down so that we could show the jury exactly when the switch had taken place. This was a key piece of the defense – because it gave the jury a piece of hard evidence that could corroborate S.J.’s claim that the switch had taken place.

Our next issue was to deal with the fact that our client was technically operating the vehicle for a few seconds after the switch had taken place. In other words, pursuant to a number of cases, if a person is sitting in the drivers seat of a running vehicle they are technically guilty of operating that vehicle. So, we had to convince the jury that S.J. had never “operated” or “taken control” of that vehicle despite sitting in the drivers seat. We did this through testimony of the cop (“I directed her to turn off the vehicle”, “She never put her foot on the gas or the break”, “She never put her hands on the steering wheel.”)

We also had to deal with the fact that S.K. was intoxicated (she blew a .12 on the Datamaster Breath Test) and the fact that she had lied to the police about the number of drinks she had consumed (she told the police it was only one drink, when in fact it was several.) We did this by addressing it head on: S.J. testified that she had intentionally tricked the police officer in order to protect her cousin, and that she had lied about the number of drinks she had consumed in order to try and convince the officer that she wasn’t drunk. No double talk, no manipulation of words, no squirming out of truth – she had to admit she lied and own up to it.

Lastly, we had to put S.J. on the witness stand to testify that she wasn’t driving and to testify that the switch had taken place, despite the contrary testimony by her cousin. This was the biggest gamble, because S.J. was going to be subject to cross-examination by the prosecutor and we were not sure how well she would hold up. Our worries were for naught: She testified beautifully. She never wavered from the truth: That she had been the passenger and that her cousin convinced her to switch seats.

Neil sealed the case with his extremely engaging opening statement that focused on a girl charged with a crime that she had not committed and a fantastic closing statement that focused on how S.J.’s loyalty to her cousin had put her in such a terrible position.

In the end, the jury believed that the switch had taken place and did not believe that S.J. had ever operated or been in control of the vehicle. It took us countless hours of preparation, but this is exactly what we needed to get the jury to believe and ultimately all of our hard work payed off.

From all of us at Neil Rockind, P.C., we wish S.J. our sincerest congratulations.

Justice once again prevails at the hands of Neil Rockind, P.C.

Neil Rockind in the News

Lawyer says client’s rights were violated in drug bust

A judge granted a defense attorney’s request Thursday for a hearing to determine if police violated his client’s rights when they seized marijuana from his home in December 2011.

Southfield attorney Neil Rockind is asking a Livingston County judge to dismiss the felony charges against his client, Dennis Keith Towne, because he says police violated his client’s rights by crossing into the curtilege around his home.

The issue was argued at the District Court level, and after hearing testimony, Judge Carol Sue Reader bound the case over to Circuit Court. Rockind now wants Circuit Judge Michael P. Hatty to quash Reader’s bind-over.

“I think you will see she made the wrong call and without all the evidence,” Rockind said.

At the March preliminary hearing, the defense did not present any witnesses, which is standard. However, Towne and his wife are expected to testify at the Feb. 26 evidentiary hearing, which will determine if police violated Towne’s Fourth Amendment rights by entering the curtilage.

Curtilage is a legal term for the area surrounding and associated with the domicile where the owner may have an expectation of privacy. Courts have disallowed evidence when they find an officer’s movements violate the curtilage of a defendant’s home.

Towne, of Hamburg Township, is charged with delivery or manufacture of a controlled substance.

A Michigan State Police trooper testified at a March hearing that officers went to Towne’s home in the 6500 block of Cunningham Drive in December 2011 because they were looking for the defendant’s son, who was wanted on an unrelated 10-count felony complaint.

The trooper said he began to see “an excessive amount of smoke coming from the chimney” as officers staked out the home after learning from Towne that his son was not there. He said the smell of “freshly burned marijuana” began to fill the air.

The trooper said he then saw Towne “literally shoving handfuls of marijuana into a fire.”

Officers immediately entered the home by breaking a window, and once inside found an 18-gallon plastic tote about one-quarter full of “processed marijuana” as well as 50-100 live plants in the basement, according to testimony. The marijuana — from seeds to full-grown plants — were found throughout the house, including in a toilet, the trooper said.

Authorities said they seized 75 marijuana plants along with 41 bags of marijuana and marijuana suckers that amounted to “pounds” of the illegal drug.

Meanwhile, the prosecution also wants the judge to consider a motion that prohibits the defense from mentioning medical marijuana at the trial.

Rockind said he will file a response arguing Towne is immune from prosecution under under the Michigan Medical Marihuana Act.

via Livingston Daily

Updated Doctor-Patient Relationship Laws – Going into Effect on April 1st, 2013

Here are the new rules regarding MMJ Doctor-Patient relationships. These go into effect April 1st, 2013.

NEW RULES ———> Doctor-Patient Relationship

PEOPLE v. MCQUEEN – Neil Rockind analyzes Supreme Court opinion – “Relax, it isn’t that bad.”

McQueen Is Not A Death Notice – It Is Just An Opinion

In a disappointing but not surprising opinion, the conservative branch of the Michigan Supreme Court found in favor of the State of Michigan against the Compassionate Apothecary in a civil injunction case that required the Compassionate Apothecary to close as a public nuisance.   Newspapers, journalists and headline writers are creating dramatic headlines and sub-headlines about the meaning of this opinion.  Put down the hari-kari knife, step away from the ledge and put down the cyanide kool-aid.  This opinion has very limited meaning for the vast majority of medical marijuana patients and caregivers and has very limited meaning in most of our cases.  How can that be, you might ask?  Let me explain.

Immunity Was The Issue in McQueen – Not The Affirmative Defense

The McQueen case was in the context of a civil case.  Not a criminal case.  This is extremely important.  In civil cases, which are different from criminal prosecutions, other issues at play.  In the McQueen case, the issues at play were whether the dispensary or club violated the public nuisance law and thus could be shut down.  It was not a criminal prosecution.  No one, not McQueen, not Taylor, the individuals behind the club, were charged with crimes.  McQueen involved a §4, i.e., claim pursuant to MCL 333.26424, immunity claim onlyThe McQueen majority focused its opinion on the immunity provisions contained within Section 4, i.e., MCL 333.26424, of the Michigan Medical Marijuana Act.  It went to great lengths to distinguish between §4 immunity and the §8 medical purpose affirmative defense”

Absent a situation triggering the affirmative defense of § 8 of the MMMA, § 4 sets forth the requirements for a person to be entitled to immunity  for the “medical use” of marijuana.  It is entitlement to that immunity—not the definition of “medical use”—that demonstrates that the person’s medical use of marijuana is in accordance with the MMMA.  Therefore, we turn to § 4 to determine whether patient-to-patient sales are entitled to that section’s provision of immunity.

In a footnote, footnote 52, the Court explained that this opinion was focused exclusively on §4 immunity and not §8, the medical purpose or affirmative defense:

These situations are limited to “any prosecution involving marihuana,” MCL 333.26428(a), a “disciplinary action by a  business or occupational or professional licensing board or bureau,” MCL 333.26428(c)(1),  or “forfeiture of any interest in or right to property,” MCL 333.26428(c)(2).  For further discussion of the § 8 affirmative defense, see part III(C) of this opinion.

In other words, the section that defense lawyers and those unfortunate enough to be charged with crimes have relied on in defense of cases, i.e., §8, were not at issue in the McQueen case.  At issue in the McQueen case, as I have been explaining for some time to those interested in listening, were whether “registered qualifying patient transfers of marijuana to another registered qualifying patient” were entitled to immunity protection under §4 of the Medical Marijuanat Act.  I was emboldened by the recent opinion of People v Green, and thought that the Green case was perhaps a harbinger of good things to come but , as it turns out, it was not.   The McQueen majority opinion ruling addresses these transfers but in a nuanced way.  It focuses on whether the transferring patient may claim immunity for the transfer and whether the receiving/acquiring patient may claim immunity for the transfer.  The McQueen majority concluded the transferring patient is not immune but that the acquiring patient may claim immunity but that the transferring patient may not.   As it explains in footnote 62:

Of course, a registered qualifying patient who acquires marijuana—whether from another registered qualifying patient or even from someone who is not entitled to possess marijuana—to alleviate  his own condition can still receive immunity from arrest, prosecution, or penalty because the § 4(d) presumption cannot be rebutted on that basis.  In this sense, § 4 immunity  is asymmetric: it allows a registered qualifying patient to obtain marijuana for his own medical use but does not allow him to transfer marijuana for another registered qualifying patient’s use.

As for the transferring patient, the McQueen majority makes clear that he/she is not entitled to immunity.  The Court focused on specific language in §4 to conclude that immunity is only available when the marijuana transfer is to alleviate the transferring patient’s debilitating condition and that only two (2) individuals are entitled to be presumed to have engaged in a lawful transfer entitled to immunity for the “receiving patient’s medical relief”:  1) the patient’s registered primary caregiver and/or 2) the receiving registered qualifying patient can claim immunity for a transfer.  Why?  Because, the Court says, any other individual transferring marijuana is not entitled to immunity because their transfer was not, per §4, for the receiving patient’s medical benefit.   In other words, transfers that comply with MCL 333.26424 are presumed to be for the benefit of the receiving patient’s medical benefit and the only people entitled to this presumption or immunity are the patient’s registered primary caregiver or the patient himself.  Anyone else transferring to the patient, cannot claim the immunity:

Defendants’ business facilitates patient-to-patient sales, presumably to benefit the transferee patient’s debilitating medical  condition or symptoms.  However, those transfers do not qualify for § 4 immunity  because they encompass marijuana-related conduct that is not for the purpose of alleviating the  transferor’s debilitating medical condition or its symptoms.  Because the defendants’ “medical use” of marijuana does not comply with the immunity provisions of §§ 4(a), 4(b), and 4(d), defendants cannot claim that § 4 insulates them from a public nuisance claim

In other words, the transferee can say that it was to alleviate his/her debilitating condition but another patient cannot say that is so for purposes of §4:  “Thus, § 4 immunity does not extend to a registered qualifying patient who transfers marijuana to another registered  qualifying patient for the transferee’s use because the transferor is not engaging in conduct related to marijuana for the purpose of relieving the transferor’s own condition or symptoms.”  McQueen opinion, p 18.  It is a personal right of the receiving patient and his primary caregiver.  No one else may claim that the transfer was for that patient’s medical benefit under §4.  In other words, the transferring patient is not transferring it for his own benefit.

Don’t Panic – It Isn’t As Bad As It Sounds

McQueen directly contradicts and I would suggest overrules Green.  So a transferring patient or other caregiver are not entitled to immunity under §4.  But what does it all mean?  Very little other than that transferors of marijuana other than a registered primary caregiver to his registered patients are not protected when they transfer or deliver marijuana.  Period.  Those acquiring marijuana may still receive immunity.  Registered primary caregivers may still transfer to their patients.  Registered primary caregivers may still grow for their patients.  Registered qualifying patients may still engage in medical use.  All of the above and more are entitled to immunity under MCL 333.26424.  McQueen does not alter the state of the law in this regard at all.

In fact, McQueen disabuses the Court of Appeals and many prosecutors in another important area as well – sales.  The McQueen majority specifically disagreed with the lower courts and prosecutors who contended that the fact that money exchanged hands renders any transfer or delivery unlawful.  According to the Supreme Court, the fact that money exchanged hands or that a sale took place, does not render the transaction or transfer unlawful.  McQueen page 12-13.  Sales do not violate Michigan Medical Marijuana Act.  McQueen 12-13.

What is important to important to remember is that even if these transfers are not protected under §4, they may be entitled to protection under MCL §333.26428, i.e., the affirmative defense section of the Michigan Medical Marijuana Act.  In other words, let’s be careful not to read the McQueen opinion as stating that all transfers of marijuana between patients or by individuals not connected through the registry are illegal.  The McQueen opinion does not state that – it does not even come close to stating as much.

SECTION 8 AFFIRMATIVE DEFENSE

Any transfer, even one that involves the transfer of money, may be entitled to protection under §8.  McQueen explicitly says as much:

Finally, even though § 4 does not permit defendants to operate a business that facilitates patient-to-patient sales of marijuana, our decision in Kolanek makes clear that § 8 provides separate protections for medical marijuana patients and caregivers and that one need not satisfy the requirements of § 4 immunity to be entitled to the § 8 affirmative defense, which allows “a patient and a patient’s primary caregiver, if any, [to] assert the

medical purpose for using marihuana as  a defense to any prosecution involving marihuana . . . .” However, by its own terms, § 8(a) only applies “as a defense to any prosecution involving marihuana . . . .”

Why didn’t McQueen and Taylor get to argue and why didn’t the Court address whether their conduct was protected by §8?  Because, the Court stated, §8 only applies in criminal prosecutions involving marijuana and neither McQueen nor Taylor were prosecuted.   Accordingly, they could not assert a defense under §8.

CONCLUSION

In short, had McQueen or Taylor been criminally prosecuted, they couldn’t claim immunity under §4 but they could assert a defense under §8.   Their transactions would not deemed unlawful or illegal merely because they occurred and the fact that money exchanged hands is meaningless.  They just can’t wave their cards and claim to be immune – they will have to come to court and defend themselves but, and this is a very important but, they will have the opportunity to do so.

The Entire McQueen Opinion Can Be Found Here

When Police Lie, How Should The Criminal Justice System React?

What happens when a police officer lies?  That question has caused a myriad of litigation, debate and discussion because when the police lie it is the equivalent of kicking sand in the eyes of the referee in a game.  The challenge?  How do we determine that the officer has lied? How do we discover that an officer lied in a particular case?  Sometimes it is possible through diligence and investigation.  For example, several times within the past year, Neil Rockind and Colin Daniels of Neil Rockind, P.C., have discovered and proven that a police officer lied, either in court or in an affidavit for a search warrant.  On one such occasion, Rockind proved that a narcotics detective lied twice: once in an affidavit for search warrant and again in court during a preliminary examination.  The detective testified in an affidavit that he got information from an unknown source that our client was growing marijuana. Based upon this allegation, the detective went to our client’s house and claimed that he could smell an odor of marijuana emanating from a vent.  Rockind and Daniels proved that there was no “unknown and confidential source” but rather that the detective found a medical marijuana patient certification form, with our client’s name affixed, in a warehouse and used it to investigate our client. The detective lied.  We also proved that there was no odor of marijuana coming from the condominium — another detective unwittingly admitted that there was no odor of marijuana from the vent as he stood right in front of it waiting to execute a search warrant.  The Detective lied there also.

In another case, a road patrol officer claimed that she arrested our client based on certain driving behavior (alleged weaving).  Through the use of videotape, a measuring program, and cross examination, we proved that the officer was lying.  She lied and the judge dismissed the case.

In yet another case, a well-known marijuana case in which Neil Rockind cross-examined a police detective and proved that: 1) he has “mad cross examination skills”, according to court watchers and observers, and 2) the detective  testified untruthfully in both district court during a preliminary examination and in an affidavit for a search warrant.  That case was dismissed as well.  The problem is not what happens when Rockind or other lawyers can prove that a police officer lied (it’s not a problem because the case gets dismissed); the problem is what happens when we cannot prove lies in our case, but the officer in our case has lied in other cases … What then? 

The law requires that this information be turned over to the defense.  Yes, you read that correctly.  The law requires that this information be turned over to the defense.  It cannot be hidden; it cannot be brushed under the proverbial rug.  This material and information is referred to as Giglio and Brady material and so known is this obligation that even police organizations such as The International Association of the Chiefs of Police acknowledge this duty.  Here is an article in which the International Association of the Chiefs of Police acknowledges this duty.

The police and prosecutors are tasked with policing themselves.  Does it happen?  Can they be trusted to do this difficult task?  Rare is the case when a prosecutor approaches the defense attorney and says, “here is a file on a police officer in our case who was disciplined for lying or we think lied previously.”  While that should happen every time, it doesn’t. We suggest that a prosecutor has a duty to disclose that information even absent an official disciplinary finding — they should disclose the information when in their experience and/or knowledge a police officer has lied or given false testimony.  The International Association of the Chiefs of Police (“IACP”) even acknowledges that any acts of untruthfulness of a police officer should be disclosed.  This means that when a prosecutor dismisses a case or even dismissed a single count due to a lie, the prosecutor should thereafter disclose that information to the defense in every case.  Period.  Voluntary disclosure of that information should come with the police reports, records and witness statements in the case — no different than turning over a witness statement or any other discovery.  It should be standard.  Sadly, it is not and the stories of the failure to disclose are legendary.  Sen. Ted Stevens’ prosecution comes to mind.

In US v Stevens, the federal government prosecuted Ted Stevens, the sitting Senator from Alaska.  The prosecution obtained a conviction.  The conviction was overturned and the prosecutors were investigated.  The prosecutors had withheld evidence favorable to the accused. National Public Radio summarized the Brady and Giglio violations.  In a highly publicized opinion, the trial judge, the Hon. Thomas Sullivan issued an opinion finding misconduct on the part of the prosecutors.

While Senator Stevens’ story is well-known and publicized, others are less so.  Prosecutors often fail to identify information as Brady or Giglio material and instead do the opposite — they proceed with new cases with the same detectives, never tying the previous misconduct to a continuing duty to disclose.  Others play “cute and clever” with the materials — they sit on it, stay mum, and wait for individual defendants to enter pleas of guilty or otherwise.

Is Stevens’ the only example?  No.  Does the prosecution disclose it willingly?  Experience reveals that too often they do not.  Justice deserves better.

If you or a loved one believe that a police officer has lied in a case that is important to you, please contact Neil Rockind, P.C. to see if we can be of assistance in your case.