Lawyers: Suspects can stop questions
03/27/2012 12:01 PM
03/27/2012 12:01 PM
Richard Ney entered the Sedgwick County Jail on a Sunday, as he's often done, and asked to speak to his client.
On this day, Feb. 27, his client was Dennis Rader, arrested two days earlier and questioned at length by Wichita Police, whom he'd already told he was the BTK serial killer.
Rader's family, shocked by his arrest, had been calling top Wichita criminal defense lawyers, asking them to intervene on his behalf in the hours following his arrest.
Recently, Ney and Dan Monnat read an assertion made by BTK task force commander Lt. Ken Landwehr: If defense lawyers hadn't intervened, Rader would have continued to talk to investigators.
Although Monnat and Ney could not discuss particulars about conversations with Rader or his family because of confidentiality concerns, they did say that lawyers don't have the authority to interfere in police investigations.
"I'm told when police went back the next day, on Monday, to talk to Mr. Rader, he declined," Ney said. "And I would assume that was based at least partially on our conversation. But it was his decision."
Lawyers say they often advise clients to assert their Fifth Amendment right to remain silent under police interrogation, or at least ask to have legal counsel present during questioning. But clients often ignore the advice.
"Defense lawyers do not have the power to deny police access to the jail or prevent the accused from talking to law enforcement if the accused chooses to do so," Monnat said.
Police, however, have the power to deny a lawyer visitation with someone in custody.
The U.S. Supreme Court has said that someone under arrest must personally request an attorney.
Ney and Monnat said they have often been hired by families, only to be rebuffed at the interrogation doors because the person being questioned hasn't asked for a lawyer.
"Families often begin contacting lawyers if a loved one is arrested," Ney said. "Police denied access to both Dan and I to Dennis Rader even though his family had contacted us and asked us to inform him of his rights. Now I haven't seen the tapes, but I assume that if Mr. Rader had asked for a lawyer, the police would have immediately ceased questioning him, as they're required by law."
Detectives could have kept questioning Rader as long as they wanted, had he not asked for legal representation or stopped talking voluntarily.
Once clients ask for legal counsel, lawyers are obligated to inform them of their rights.
"Lawyers usually tell clients not to talk to police, and there are reasons for that," Ney said. "Police can and have interrogated people for hours, late into the night, when people aren't thinking straight, and they can say things that will later be used against them if they later remember things differently. It would be an extreme case if a lawyer agreed to let a client speak to law enforcement."
Added Monnat: "A lawyer has a duty to make sure a client is aware of all the ramifications involved in speaking to law enforcement, against their own best interest."
Ney stood beside Rader when he made his first appearance by video camera to hear the charges against him.
Sedgwick County District Judge Greg Waller then appointed the public defenders office to represent Rader.
The nation's high court said more than four decades ago that defendants have a right to legal counsel, even when they can't afford to hire their own.
Three public defenders have since represented Rader at his arraignment and his subsequent guilty plea. They will be by his side again at his sentencing Aug. 17.