January 5, 2007

The folk literature of those who choose not to exercise their right to remain silent.

It's the People’s Voluntary Disclosure Form, the VDF:
For many people, the urge to explain, if not to confess, is as urgent as it was for Raskolnikov in “Crime and Punishment.”

“My name is Paul Cortez,” is the Melvillian first sentence of the V.D.F. statement handwritten by Mr. Cortez, a yoga teacher who is awaiting trial as the suspect in the fatal stabbing of a dancer in her Upper East Side apartment.

What follows is a three-page roller coaster ride of love, sex and betrayal, culminating in an alibi. On the day of the victim’s death, Mr. Cortez wrote, “I knew something was wrong, so I called back several times.” When she didn’t answer, he called clients, watched a football game with a friend, “then read a little and went to bed. The next morning about 10:30 I found out from my mom Catherine was Dead.”

The last word, “Dead,” is capitalized for emphasis.

Prosecutors love to have defendants volunteer an alibi because it shows what they call “consciousness of guilt.”...

“Everybody talks,” said Daniel J. Castleman, chief of investigations for the Manhattan district attorney. “Almost nobody doesn’t talk. And the reason for that is that people think they can either talk their way out of it or mitigate the crime. It’s human nature.”
Human nature. Without it, there'd be no crime in the first place. The defense lawyers will keep their jobs, and they will tear their hair out forever over all those confessions. Go ahead. Confess! It's good for the soul. But that's not why they're doing it -- according to Castleman. People think they can either talk their way out of it.

12 comments:

Dave said...

Which is why Verbal Kint's dialogue is so brilliant.

Pogo said...

Just like a three year old explaining to Mom about the broken cookie jar, the crumbs on his shirt, and how it was really the dog, it is the narcissistic error of the exceptional I, that is,
Even though everyone else screws this up, I am smarter and better and will not -cannot- fail.

Yet the police-court system is as impervious to BS as any decent mother, who taps her foot and shakes her head and says, What am I going to do with you? and you think How can she read minds?

Troy said...

Miranda and zealous defense cannot usually override our inclination to confess through guilt, rationalize through narcissism, or lie through pride.

It is a Catch-22 though. If he stays stone silent then he's a remorseless psychopathic killer.

Anonymous said...

Castleman is right.

Anonymous said...

Once Martha Stewart went to jail for lying about something that wouldn't have been illegal even if she had done it I have come to the conclusion that I will not talk to investigators for any reason. Let them talk to my lawyer.

Dave said...

"If he stays stone silent then he's a remorseless psychopathic killer."

I don't know about that. I knew a kid in high school who got drunk, stole a car, crashed it into another car and was subsequently arrested.

He stayed silent, but he was no psychopath, or even a killer. Why did he stay silent? His father was a lawyer.

Anonymous said...

Troy said, "It is a Catch-22 though. If he stays stone silent then he's a remorseless psychopathic killer."

He's assumed to be a remorseless psychopathic killer. Shhhh...

paul a'barge said...

Betrayal, sex ... mom?

Argh, I don't think I'm going to follow this link.

tjl said...

"If he stays stone silent then he's a remorseless psychopathic killer."

The Constitution bars the prosecution from using defendants' silence against them. Jurors are also firmly instructed not to consider defendants' silence for any purpose.

But the NYT article is correct -- many defendants can't shut up, no matter how many Miranda warnings they get. Defense attorneys find it's depressingly common to open a file and find that a new client has been singing like a canary. Typically, they make what they fondly think are exculpatory statements, which in fact help the DA prove up all the elements of the charge.

dick said...

What do you think the likelihood of the defendant's silence being ignored by the jury is given that most people just try to justify as much as they can?

tjl said...

"What do you think the likelihood of the defendant's silence being ignored by the jury is"

During the jury selection process, the defense attorney typically will question prospective jurors about their ability to follow the law on this point. Any who admit that they can't will be struck for good cause by the judge.

In reality of course they do think about it. But the amazing thing about jurors is that they really do try to do their duty as they understand it.

Troy said...

Dave... I miswrote a bit. I was not saying I would take silence as an admission of guilt (at least not legally though a gut reaction to lean that way is not beyond the pale), but that cops, media, general public and perhaps the jury would likely take silence that way.