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Anything you say (or don’t say) can be used against you

 Cover image copyright AP Images. Cover design by Nicole Sommer-Lecht. Cover design copyright Prometheus Books.

(Cover image copyright AP Images. Cover design by Nicole Sommer-Lecht. Cover design copyright Prometheus Books)

When confronted by the police, innocent suspects often want to talk in order to clear up things on the spot. But in many cases, the police will only hear what they want to hear, and will spin an innocent person’s denial into evidence of guilt.

This is what happened in the wrongful conviction of Steven Avery for the rape and attempted murder of Penny Beerntsen. Below is an excerpt from Chapter 6 of my newest book, “Convicting Avery: The Bizarre Laws and Broken System behind Making a Murderer” (Prometheus Books, April 4, 2017). The excerpt is reprinted with permission from the publisher. Two footnotes have been omitted.

… What if an innocent person wants to waive his Miranda rights, talk to the police, and adamantly deny any involvement in the crime? In this situation, the suspect is better off talking to the police, isn’t he?

… [T]he reality is that even when a suspect is actually innocent, resists the interrogation tactics designed to get him to confess, and adamantly denies any wrongdoing, his words can simply be cherry-picked—or even outright fabricated—and then used against him at trial as evidence of his guilt.

For an example of this, we must now leave Brendan Dassey’s interrogation and travel back in time about twenty years to Steven Avery’s first case, where he was charged with the rape and attempted murder of Penny Beerntsen. This is a case where we know, for certain, that Avery was innocent: in addition to his sixteen alibi witnesses, serial rapist Gregory Allen’s DNA — not Avery’s — was found in the samples taken from the victim’s body. (This is why even the prosecutor joined in Avery’s request for freedom eighteen years after his wrongful conviction.)

Yet despite Avery’s actual innocence, his statement to the police at the time of his arrest was still used against him, at trial, as evidence of his guilt. Here is what the appellate court wrote in 1987 when denying Avery’s first appeal:

Michael D. Cicchini is a criminal defense lawyer in Kenosha. He is also the author or coauthor of two books and 15 law review articles on constitutional law, criminal law and procedure, and other topics. Visit www.CicchiniLaw.com for more information.

Michael D. Cicchini is a criminal defense lawyer in Kenosha. He is also the author or coauthor of three books and 19 law review articles on constitutional law, criminal law and procedure, and other topics. Visit www.CicchiniLaw.com for more information.

We also note that [Beerntsen’s] identification of Avery was corroborated by Avery’s statements at the time of his arrest. Although the testimony [at trial] indicated that the police told him only that he was under arrest “for attempted first degree murder,” Avery told his wife [who was present at the time of his arrest] that “they say I murdered a woman” and asked [the police] where “the lady” lived. Since no one had mentioned the fact that the victim was a woman, the jury could properly deem Avery’s statements to be inculpatory, corroborating the identification.

Now, it is possible that the cops suffered from faulty memories at Avery’s trial. When arresting Avery, maybe they really told him that he was under arrest “for attempted first-degree murder of Penny Beerntsen,” and then forgot the last part of this sentence when they testified about it in court. That would explain why Avery referred to the victim as “a woman” at the time he was being arrested.

But let’s assume that everything the appellate court wrote is exactly what was said when the cops arrested Avery. In that case, the prosecutor successfully used an innocent man’s statement against him as evidence of his guilt. The argument, as the appellate court stated, takes the form of a question: how else could Avery have known that the victim was a woman unless he actually committed the crime?

The answer is innocent and simple. Even if the police did not mention that the victim was a woman, Avery probably assumed so because in his mind—whether correct or incorrect—murder victims are typically women. And when he asked “where the lady lived,” he was obviously hoping to clear up the situation by offering his alibi to the police, thereby proving that he was nowhere near the lady’s home (which he obviously, but incorrectly, assumed was the crime scene). Yet, despite these innocent explanations for his statement — and despite his actual innocence — the government twisted his words and used them as evidence of his guilt not only at trial, but also throughout the appeals process.

The point, of course, is that speaking to the police, or even within earshot of the police, is fraught with peril. In that respect, the Miranda warning, despite its numerous flaws, is correct: anything you say can and will be used against you in a court of law.

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