Government Opposes Early Appointment of Public Defender to Accused LAX Shooter Paul Ciancia

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58 Responses

  1. Sweetchuck says:

    I don't fully understand why law enforcement would continue to question Ciancia without providing him with counsel. I gotta think there is tons of video and physical evidence that this guy was the shooter. Why push on his civil rights, and give him a possible means of wiggling out of his crime, when there would be sooo much evidence that he did indeed do the crime?

  2. Ryan says:

    @Ken

    The government is right that it can't question represented defendants without their attorney's consent.

    Say what now? Does US law seriously preclude investigators questioning a potential accused without the consent of the accused's lawyer, regardless of the wishes of the accused?

    I'm also a little surprised that a public defender can petition the court to be appointed without a potential accused exercising their right to legal representation. Then again, I'm similarly surprised that the government would oppose that appointment – doesn't the US have similar protections regarding voluntariness of statements to other democracies wherein the prosecution must prove that statements were made under informed consent?

  3. Michael says:

    When will we know the results of this motion and opposition?

  4. Ken White says:

    @Ryan

    Say what now? Does US law seriously preclude investigators questioning a potential accused without the consent of the accused's lawyer, regardless of the wishes of the accused?

    A defendant can fire or ignore a lawyer. But the government can't do an end run around the lawyer and contact the defendant directly and ask them to do so.

  5. Shane says:

    What @Sweetchuck said. Why walk all over this guys civil rights when the state has such a seemingly slam dunk case. This only ensures to further erode everyone else's rights and expand the exception for questioning based on emergency. :(

  6. mcinsand says:

    Can the government really make moves like this without endangering their own case against Ciancia? Granted, my only legal experiences are with corporate attorneys and mainly IP law, but they have always stressed that the best way to win a case if the facts are on your side is to act in good faith, honestly, and without trying dirty tricks.

  7. Shelby says:

    Sweetchuck: The prosecutors probably aren't looking for evidence he was the shooter, rather for info about others who may have been involved or other crimes he committed or knows about.

  8. Luke G says:

    I must be getting cynical from reading too much Popehat. The same question occurred to me, about why bother to jeopardize such a good-seeming case? And then the answer dawned: Because they can. Because they don't like having to obey a single stricture or limit. Because they don't see this as risky ground, they see it as just getting all they can out of another scumbag perp.

    Right now Ciancia doesn't have a friend in the world, and almost noboy thinks THAT kind of person deserves robust legal representation. What a perfect opportunity to whittle away at the rights of the accused- to reinforce the idea that you should talk to the cops, that defense attourneys only get in the way of the good guys doing their jobs.

  9. Chuck says:

    Shelby has this right, IMO. The feds don't care about Ciancia per se; they care about getting him to name every person he's ever talked to about anything, then arresting certain of those people in the name of public safety.

  10. Justin says:

    @Shane

    Why walk all over this guys civil rights when the state has such a seemingly slam dunk case.

    You answered your own question:

    This only ensures to further erode everyone else's rights and expand the exception for questioning based on emergency.

  11. JonasB says:

    "In most other cases, that brief window between arrest and arraignment would have already closed by the time of the FPD request. Ciancia’s injuries, which have prevented him from speaking with anyone and thus have enlarged that window, should not alter the investigative framework constructed by the Supreme Court."

    It sounds like the gov't wants to use the pre-arraignment window to question Ciancia, but can't due to his current condition, and so wish to have the timeframe extended so that they can use the window when he becomes possible to question.

  12. Paul Z says:

    I'm with Luke G on this one. Why are they pulling this stunt? Because it's an opportunity to build a precedent expanding the public-safety exception farther. Since the government probably can't lose this case no matter how bad they screw it up procedurally, they can use their guaranteed win to push the edges of procedural precedent, such as the public-safety exception. Good on the FPD for trying to put a stop to it!

  13. shg says:

    It unclear whether the full import of this argument is clear:

    Moreover, the United States Supreme Court has created an investigative framework, notably in Massiah and Miranda, in which the government may question a defendant without counsel after an arrest and prior to arraignment in order to obtain information important to the investigation and to public safety.

    In other words, two decisions which putatively limit the government's authority to question defendants are being used as a sword rather than a shield, as if the Supreme Court decided them to create new authority for law enforcement to interrogate the accused that neither court nor defense counsel should be allowed to impair.

    If the government has such a thing as rights, they would claim that appointment of counsel impairs its right to interrogate. A fascinatingly bizarre use of Massiah and Miranda to preclude appointment of counsel and impairment of the government's "right" to interrogate under their "investigative framework."

  14. Quiet Lurcker says:

    Please pardon my cynicism showing when I wonder aloud whether, since at least one victim was a TSA, the government is maybe trying to get Mr. Ciancia to name accomplices/supporters/co-conspirators in an attempt to prove that this was terrorism, thereby supporting their (in my opinion probably specious) claims in the interest of keeping the security theatre going a bit longer. Seems a bit more convoluted than previous experience with the government, but….

  15. JonasB says:

    Its also incorrect to say that the gov't is lying when it talks about foreclosing–the quoted passage specifically refers to foreclosing the opportunity for Ciancia to speak to the gov't prior to arraignment, not to speak to the gov't at all.

  16. Dr. Nobel Dynamite says:

    @ Sweetchuck

    Why push on his civil rights, and give him a possible means of wiggling out of his crime, when there would be sooo much evidence that he did indeed do the crime?

    Because these are the kinds of wedge cases that prosecutors/police use to set the precedent. Because there is so much other evidence, if and when an appeal is raised re: the issue, the appellate court will just shrug its collective shoulders and say "oh well, they would have convicted him anyway, no harm done," and the door will be opened that much further for this kind of practice.

  17. melk says:

    Since an attorney hasn't been represented to appoint him,

    Strike that. Reverse it. Thank you.

  18. Ken White says:

    Its also incorrect to say that the gov't is lying when it talks about foreclosing–the quoted passage specifically refers to foreclosing the opportunity for Ciancia to speak to the gov't prior to arraignment, not to speak to the gov't at all.

    Nothing prevents a defendant from speaking with the government prior to arraignment with the advice and consent of an attorney. It happens all the time.

  19. Dan Weber says:

    Isn't this exactly what we were talking about when they got the Boston bomber? (That's rhetorical.)

    And didn't Ken warn us about how "public safety exemption" would be abused in other cases? (That's only partially rhetorical, as I'm not sure who said exactly what, and I'm too lazy/busy to go look up the old thread. I'm pretty sure I said something like "any prosecutor who can't get this bomber based on existing evidence needs to be fired.")

  20. ZarroTsu says:

    I keep running the idea of law enforcement trying to ask questions, and I'm not entirely sure how it should be phrased to oppose them without a lawyer.

    The simple starting point is "I'm not answering any questions", but I have the sneaking suspicion they'd follow up with bullshit in the lines of "If you don't comply to answer our questions we'll ______", which I have trouble thinking of a way to respond to without possibly crossing the 'shut up' line.

    What would be the best way, short of slamming the door in their face, to tell law enforcers to fuck off without crossing that line?

  21. JonasB says:

    "Nothing prevents a defendant from speaking with the government prior to arraignment with the advice and consent of an attorney. It happens all the time."

    A person has the right to waive an attorney. The gov't also said that appointing one when Ciancia wasn't able to ask for one would prevent him from exercising that right. Or maybe there is a specific attorney Ciancia knows who he wants to hire, or some other reason why he wouldn't want a public defender. Maybe he has some ideological spiel he wants to make and thinks a public defender would stifle him (for the record I have no basis to assume he has such an ideology or spiel, only that it is a hypothetical reason why one would decline a public defender). Obviously, the gov't is making its argument in order to make its eventual questioning easier, but that doesn't automatically invalidate their reasoning.

  22. GragSmash says:

    Wouldn't it be tragic if one of these mass-shooters got off on a technicality because of the police messing around on this?

  23. Ken White says:

    @JonasB:

    A person has the right to waive an attorney. The gov't also said that appointing one when Ciancia wasn't able to ask for one would prevent him from exercising that right. Or maybe there is a specific attorney Ciancia knows who he wants to hire, or some other reason why he wouldn't want a public defender. Maybe he has some ideological spiel he wants to make and thinks a public defender would stifle him (for the record I have no basis to assume he has such an ideology or spiel, only that it is a hypothetical reason why one would decline a public defender). Obviously, the gov't is making its argument in order to make its eventual questioning easier, but that doesn't automatically invalidate their reasoning.

    Jonas, you're trying very hard to defend the government from my accusation of lying, but you're not succeeding.

    1. Having a lawyer doesn't legally or physically prevent you from cooperating immediately. It just means if you do so it will after listening to apt advice.

    2. Appointing the PD when Ciancia wanted a different lawyer would not prevent Ciancia from cooperating, either by ignoring the advice of the PD or by firing the PD and hiring his own lawyer.

    3. Yes, the PD might "stifle" him — in the sense that the PD may give him advice and he might listen to it. That's just another way of saying "if you let him have a lawyer the lawyer may advise him to remain silent." It's still a lie to say it forecloses him from cooperating.

  24. Luke G says:

    Lawywer question- is there any possible good-faith logic behind this? I understand that I might want to hire my own lawyer rather than having a court-appointed one, but is there any downside to getting a court appointed lawyer and then later saying "thanks for the help but I hired my own guy"?

  25. Dirkmaster says:

    And not to belittle this tragedy, but isn't this also exactly the sort of thing that the NSA is telling us they have to have access to all our records to prevent? Well, you had it, and by my count this is the second one in a row you have missed.

    Back to the topic at hand, I agree that they are just 'tryin to get a passel of time without them pesky lawyers gettin' in the way of them squeezing the good dirt out of this scumbag'

  26. tom says:

    @GragSmash Failure to punish a guilty party is not a tragedy. The tragedy was the original offense. Tragedy would be punishing an innocent party.

  27. Artor says:

    I'm with Sweetchuck @ #1. I'm scratching my head as to why the gov't is trying to keep this guy from getting a lawyer. Is there any way possible that he might get free, with the tons of video and forensic evidence, and hundreds of witnesses? I'm not terribly concerned about the fate of a murdering lunatic, but I'm very worried about the state of the rule of law. If the gov't is willing to go to these ends against a slam-dunk case like this, what extents will they go to when there's a real dispute to be settled?

    Duh, why am I asking? Eventually it will be drones, of course.

  28. Dr. Nobel Dynamite says:

    @Artor

    is there any downside to getting a court appointed lawyer and then later saying "thanks for the help but I hired my own guy"?

    There's lots of downside. But none of it is for the accused.

  29. Chris says:

    Couldn't the family put a stop to this while mess by hiring an attorney on Ciancia's behalf?

  30. rsteinmetz70112 says:

    Since Ciancia was seriously injured and is unable to speak, doesn't that imply that when he first becomes conscious (if he ever does) he will be impaired either by his injury or by medication?

    Unless he is able to speak and they are questioning him now.

    Also can't his family ask for a lawyer for him? News reports seem to indicate the family was concerned about him.

  31. John Cunningham says:

    Why is the govt taking this course? why do dogs lick their balls? Because they can. these Stasi and their stormtroopers want to extend their power constantly. Ken, is it the case that the percentage of convictions and guilty pleas in the USA is higher than the level in Communist China? I read that somewhere, will try to track it down.

  32. Rhonda Lea Kirk Fries says:

    @ZarroTsu

    Never dignify a threat with a response of any kind. Just because someone is talking at you does not mean you are required to respond. I would say, "I want a lawyer." After that, my only response would be "lawyer" or nothing at all.

  33. Malc says:

    @ZarroTsu,

    The simple starting point is "I'm not answering any questions", but I have the sneaking suspicion they'd follow up with bullshit in the lines of "If you don't comply to answer our questions we'll ______", which I have trouble thinking of a way to respond to without possibly crossing the 'shut up' line.

    You can always do the "I totally understand your urgency, so in order to make progress it would be great if you could expedite GETTING ME MY LAWYER so we can discuss this further…."

    (Being oblique as to that "we" refers to: you and the cops, or you and your lawyer.)

  34. cpast says:

    @John Cunningham

    No. The US rate is around 93%; the Chinese is 99.9% or so.

    @Rhonda:

    "Goodbye." also works.

  35. Michael K. says:

    @Sweetchuck (and everyone else asking the same question)

    I don't fully understand why law enforcement would continue to question Ciancia without providing him with counsel. I gotta think there is tons of video and physical evidence that this guy was the shooter. Why push on his civil rights, and give him a possible means of wiggling out of his crime, when there would be sooo much evidence that he did indeed do the crime?

    Yes, I'm sure they have plenty of eyewitness and video evidence. But the legal code is full of so many charges and enhancements to charges based on intent, mindset, prior planning, and other things frequently bundled under the heading of "thoughtcrime," that they could very well want to go fishing for more stuff to add to the charges, or statements to back up the ones that depend on Internal Brain Stuff the cameras can't see.

  36. Nik B. says:

    A person has the right to waive an attorney.

    Right, but the decision to appoint him a Public Defender doesn't infringe on that right. He can waive his right to an attorney.

    The gov't also said that appointing one when Ciancia wasn't able to ask for one would prevent him from exercising that right.

    How much do we need to stretch of the words "prevent" and "exercising" to make this statement by true?

    Or maybe there is a specific attorney Ciancia knows who he wants to hire, or some other reason why he wouldn't want a public defender.

    He can, promptly, fire the Public Defender and get his own lawyer. He's not stuck with them.

    Obviously, the gov't is making its argument in order to make its eventual questioning easier, but that doesn't automatically invalidate their reasoning.

    No. Their bogus, nonsense arguments do that very well on their own.

  37. cpast says:

    @Michael K.

    This is one of the stranger things, for me. Based on what I've seen in the media, there seems to be clear enough evidence of premeditation. If he's convicted of first-degree murder, that's already life in prison, right? What more do they want? Adding 25 years to a life sentence gives you the same life sentence.

  38. Dave says:

    In most other cases, that brief window between arrest and arraignment would have already closed by the time of the FPD request. Ciancia’s injuries, which have prevented him from speaking with anyone and thus have enlarged that window, should not alter the investigative framework constructed by the Supreme Court.

    That is one of the whiniest passages I have read in a court filing in some time.

    The Application is granted.

    Score one for sanity.

  39. Hasdrubal says:

    Could it be that opposing the Public Defenders is a strategic move: Probably won't work but it sends the message that the prosecution will fight every step of the way and not give the defense any rest. Is there any downside for the prosecution? The up side being the off chance that they do win and get access to him without an attorney.

    And/or, it could be political: "Look, we're doing stuff! And things! We're making motions and opposing his motions and fighting crime!" It gives the prosecutors a concrete answer when (tough on crime) politicians and the news ask what is going on.

    Not being a lawyer, I have no idea how realistic those ideas are, but saying the primary reason is to erode defendants' rights seems a bit too nefarious to swallow. That's a really long view, hubris, politics, or strategery on the case seem more reasonable for primary motivations. Eroding civil liberties seems more like icing on the cake. Then again, not a lawyer so I don't get to see the inner workings of things to judge on my own.

  40. Matthew Cline says:

    @Dirkmaster:

    And not to belittle this tragedy, but isn't this also exactly the sort of thing that the NSA is telling us they have to have access to all our records to prevent? Well, you had it, and by my count this is the second one in a row you have missed.

    To them, that just proves that they don't have enough information.

  41. Shelby says:

    To them, that just proves that they don't have enough information.

    There is no such thing as a failed government program, only one deprived of adequate resources to succeed.

  42. JRM says:

    Ken: The government is right that it can't question represented defendants without their attorney's consent.

    Antonin Scalia: With this understanding of what Jackson stands for and whence it came, it should be clear that Montejo’s interpretation of that decision—that no represented defendant can ever be approached by the State and asked to consent to interrogation—is off the mark.

    –JRM

  43. Justin Kittredge says:

    I grabbed this from Miranda Warning Wikipedia page so that no one would ask me for a source after I said it, but even I, regular schmuck that I am, knew this already.

    While arrests and interrogations can legally occur without the Miranda warning being given, this procedure would generally make the arrestee's pre-Miranda statements inadmissible at trial.

    It's under Confusion regarding use, second paragraph. http://en.wikipedia.org/wiki/Miranda_warning#Confusion_regarding_use

    It's my thought whatever questions they ask Cianca are going to regard if he has associates or anyone of similar mindset he planned this with. If he knows of any more such planned shootings. Sometime after he answers these questions he will be mirandized.

  44. En Passant says:

    Hasdrubal Nov 5, 2013 @4:54 pm:

    Not being a lawyer, I have no idea how realistic those ideas are, but saying the primary reason is to erode defendants' rights seems a bit too nefarious to swallow.

    Because government never ever tries to erode defendants' rights? It's a nice wish.

    Paul Z Nov 5, 2013 @1:04 pm nailed it:

    Why are they pulling this stunt? Because it's an opportunity to build a precedent expanding the public-safety exception farther.

    There is no exigent public safety concern by now. The only questioning useful to the government would be to obtain testimonial evidence to enhance charges, or to stack charges — evidence of other crimes he may have committed in the course of the crimes for which he is already charged. But the crimes for which he is charged already are slam dunk provable.

    For government, too much is never enough.

  45. Chad Miller says:

    I just tried to link someone to this blog's "shut up" tag only to find myself surprised that it didn't exist yet.

    (and then I looked at one of the old posts and see that you yourself opened with the same thing! I agree, it would be appropriate!)

  46. Michael K. says:

    @cpast

    This is one of the stranger things, for me. Based on what I've seen in the media, there seems to be clear enough evidence of premeditation. If he's convicted of first-degree murder, that's already life in prison, right? What more do they want? Adding 25 years to a life sentence gives you the same life sentence.

    Stats. Sure, you can get the win, but without without the bonus charges and enhancements, you'll never become a first round pick in next year's Prosecutor Fantasy League.

    Sadly, I'm only slightly kidding.

  47. Sami says:

    Disclosure: When Ciancia started shooting at LAX, I was on a plane that was supposed to land there just over an hour later. That afternoon, I was supposed to be catching the first of a chain of flights that would get me home to Australia.

    So setting aside the more abstract (in that I didn't know any of them) issue that he murdered one person and wounded others, I kind of have a grudge against that asshole because, due to his actions, my journey home took a full 24 hours longer than it was supposed to, and was a chaotic nightmare of uncertainty – plus going through the TSA checkpoints at LAX was a little bit tense for everyone.

    (I will say, though: despite the fact that we passengers all seemed braced for the TSA to be twitchy and defensively hostile, I found the TSA agents on duty the day after the shooting were actually incredibly courteous.)

    So: fuck that guy. I hope he goes down hard for this. I was hoping he'd go down hard for this while we were still checking news feeds at Oakland for what scant information was available in the first hours, trying to work out what the hell was going on and how our travels would progress. (In fairness to myself and the other passengers, in the first couple of hours, information available – at least in Oakland Airport – was that no-one had been killed or seriously wounded, so at that point it did seem like the biggest problem was that the terminal was closed and all our flights were cancelled.)

    Having said that: Good on the magistrate judge. "But we want to coerce him and stuff" is not a good argument for him not to get a lawyer.

    I think I have as much in the way of grounds to hate this guy as anyone who didn't end up with bullet wounds in the family, but there is no claim to civil society if vengeance overrules law.

  48. Cervisia says:

    The prosecutiongovernment does not want to get evidence to be used in a trial.
    It wants to get leads to go after the rest of the anti-TSA terrorist conspiracy (because it is inconceivable that the TSA would abuse somebody so that he went postal).

  49. Austin says:

    Is there anything inappropriate about the government not looking out for the defendant's best interests in opposing the application? Clearly lying while doing so is a no no, I get that, but otherwise isn't their role in an adversarial proceeding to advocate only the state's interests and let the Judge do the balancing? Public Defender's office filed an application presumably to protect the defendant's interests, they opposed it to protect the state's interests, the Judge weighed the interests and decided.

    IANAL, so I may well be misunderstanding or missing something. I do understand that prosecutors have different obligations/duties than do defense attorneys…is that what makes their opposition objectionable?

  50. Damon says:

    Totally not OT but frankly, when I heard the news about this guy, my initial response was "Why did it take so long for some nut to do this?" I really expected that I'd see this type of thing in the news much earlier given the dislike for the TSA and the security theatre.

  51. Dan Weber says:

    Generally, asking for a lawyer means the cops stop questioning you immediately (and can't for X weeks, as decided in a recent SCOTUS case). This may vary by state.

    Source: my extensive legal training from Law & Order reruns.

  52. Adam says:

    I feel pretty shitty using this case to ask this question, as it may seem I'm on the governments side on this. I'm not. It's just a question that has bugged me for some time.

    Is it not the governments job to defend against any sort of petitioning of the government through the court system, regardless of what it is, or the personal feelings behind either the department or the individual lawyer?

    If I (hypothetically) brought a petition through the courts asking for legal rights over my mothers medical decisions as she is in a coma, even if i was the best possible person to make said decisions, would it not be the governments job to argue against that?

    I may be trying to justify a shitty action done by the government here, but I can't see any court petition being one-sided. There's nothing adversarial about that.

    Maybe someone can shed some light on that, and correct any misconceptions I have.

  53. Dr. Nobel Dynamite says:

    @Adam

    Is it not the governments job to defend against any sort of petitioning of the government through the court system, regardless of what it is, or the personal feelings behind either the department or the individual lawyer?

    It definitely isn't. There is no duty of the state to reflexively oppose petitions from citizens. A prosecutors' job is (supposed to be) to seek justice, not convictions.

  54. John says:

    It is no longer surprising when police and law enforcement in general try to wiggle the rules to their advantage. What is frightening is it's getting even further out of hand before we even get to the arrested stage. Apparently in New Mexico you have to know how to stand when answering questions.

    http://www.huffingtonpost.com/2013/11/05/david-eckert-enema-colonoscopy-drugs-traffic-stop_n_4218320.html

  55. David C says:

    The government is right that there is a (much-abused) public safety exception to Miranda allowing very limited questioning to assess an imminent threat to public safety.

    Except that after the entire weekend has passed, you can no longer say that any threat that might exist is "imminent". If there was going to be a somewhat coordinated attack it would have happened by then.

  56. perlhaqr says:

    So, Ciancia is probably on pain meds. I mean, he got shot, so, I'm guessing.

    Is there any sort of legal doctrine about questioning suspects, without their lawyer, when they're under the influence? Can he be reasonably considered to have consented to waiving his right to remain silent if he's on enough drugs that a woman on a similar quantity of intoxicants would be considered incapable of consent to sexual activity?

  57. Jerry S says:

    Too bad Ciancia isn't a Muslim Jihadi. If he was, say, an underwear bomber, Eric witHolder would have lawyered him up pronto.