You have the right to remain silent…Use it because what you don’t say can’t be used against you in a court of law.

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Attorney David BetrasIf you have viewed Law and Order, Law and Order SVU, Law and Order Organized Crime, Law and Order LA, Law and Order Def Comedy Jam or one of the dozen or so other iterations of the franchise, you have undoubtedly heard a cop recite the following to a suspect as they slap on the cuffs:

You have the right to remain silent.

Anything you say can and will be used against you in a court of law

You have the right to talk to a lawyer and have him or her present while you are being questioned.

If you cannot afford an attorney, one will be appointed to represent you before any questioning if you wish.

You can decide at any time to exercise these rights and not answer any questions or make any statements.

Do you understand each of these rights I have explained to you? Having these rights in mind, do you wish to talk to us now?

Just a hint: the answer to the last question is always “no.” I will expand on this point shortly.

After watching Lenny Briscoe “Mirandize” a couple thousand criminals, people think they understand what the warning means. Believe me, they do not because this area of the law, like most, is extremely complicated. And that explains why 90% of criminal cases are solved when people who think they know their rights tell on themselves.

Man in handcuffsFor starters, according to the Supreme Court’s 1966 ruling in Miranda v. Arizona, law enforcement officers do not have to issue a Miranda warning unless they are conducting a custodial interrogation. In plain English, that means suspects do not have to be advised of their right to keep their yap shut unless and until they have been deprived of their freedom of action in a significant way.

In light of this fact, police officers often delay placing a suspect in custody and tell them they are free to go. They then begin asking questions that can lead to an arrest. For example, a police officer stops a driver who is swerving and asks, “Have you had anything to drink tonight?” More often than I care to remember, the driver, who I am almost invariably standing next to in front of a judge, will answer, “Well, I’ve had a couple of beers,” as if the officer will be satisfied by the qualifier “couple of beers” and happily send the driver on his or her way with a friendly wave.

Uhm, not so much. At that point, the officer, who was not required to issue a Miranda warning when he posed what amounts to the $10,000 dollar or so question, will ask the driver to exit the car, submit to a field sobriety test, and then a breathalyzer exam. At the end of the process, the driver will be arrested and Mirandized—which does not mean much at that point.

So, here are the takeaways from this week’s column:

First,  if you are stopped by law enforcement and questioned you are under no obligation to do anything other than provide your name and ID.

Second, remember, the police will delay placing you in custody so they can use what you say to establish probable cause for arrest.

Third, your pre-arrest statements are admissible in court.

Fourth: Shut up. What you do not say cannot be used against you.

Society wins not only when the guilty are convicted, but when criminal trials are fair

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Attorney David BetrasIn his most recent MahoningMatters column, BKH managing partner David Betras, one of the area’s leading criminal defense attorneys, discusses prosecutorial misconduct and the threat overzealous prosecutors pose to every American’s freedom…

Prosecutors in the United States wield awesome power and have access to immense resources that dwarf what is available to criminal defendants and defense counsel. The lawyers who represent the people of the United States or the people of Ohio have near-total discretion to decide who is charged and with what—the old saying that a prosecutor can convince a grand jury to indict a ham sandwich is basically true, they are funded by taxpayer dollars, work hand-in-hand with the law enforcement officers who investigate crimes and have unlimited access to state-of-the-art forensic science.

To balance the legal playing field and protect society, the rules of criminal procedure, the law, and codes of conduct administered by the courts and bar associations have established strict guidelines and boundaries designed to prevent prosecutors from abusing their authority. Chief among them is the admonition that a prosecutor’s job is to secure justice, not convictions.  This principle is embodied in Ohio’s Code of Professional Conduct which states:

“A prosecutor has the responsibility of a minister of justice and not simply that of an advocate.”

It is also included in the American Bar Association’s (ABA) Criminal Justice Standards (CJS):

“The primary duty of the prosecutor is to seek justice within the bounds of the law, not merely to convict… The prosecutor should seek to protect the innocent and convict the guilty, consider the interests of victims and witnesses, and respect the constitutional and legal rights of all persons, including suspects and defendants.”

Man in handcuffsAlong with defining prosecutors’ role, the rules, laws, and Supreme Court decisions also set forth their responsibilities, which, according to the ABA’s CJS include the duty to “…make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense…”

This standard encapsulates the Supreme Court’s 1963 decision in Brady v Maryland, In that case, a 7-2 majority held that “…the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment… Society wins not only when the guilty are convicted, but when criminal trials are fair.” The Court has revisited Brady numerous times over the years, including in 1985 when the justices ruled in United States v. Bagley  that a prosecutor’s duty to disclose material favorable evidence exists regardless of whether the defendant makes a specific request.

Despite the guardrails that have been erected, some prosecutors misuse their power and abuse their discretion. They place more value in securing convictions than preserving justice. They commit what are known as “Brady Violations” by refusing to turn over or concealing exculpatory evidence to the defense and violate defendants’ due process rights in other disturbing ways.

This matters for two reasons. First, because when prosecutors violate the rules, innocent people go to jail for decades or are executed. Some of the wrongful conviction cases have penetrated the national consciousness: the Central Park 5, Walter McMillan, the Brown brothers, and Anthony Ray Hinton. Thousands of others, however, suffer in silence outside the spotlight, hoping that justice will be done.

Second, each case of prosecutorial misconduct, each Brady violation, each wrongful conviction weakens the criminal justice system and puts every American’s freedom at risk.

Libel, slander and why Facebook can’t be held accountable for outrageous statements posted by users

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Attorney David BetrasIn his most recent blog post/Mahoning Matters column, BKH Managing Partner David Betras defines defamation, libel, and slander and explains why it is virtually impossible for public figures to win defamation suits and the legal shield that protects Facebook and other social media sites from being helped accountable for statements posted by users…

As I have noted in previous columns, the rights enumerated in the U.S. Constitution are not absolute.

For example, the Supreme Court ruled in 1919 that yelling “fire” in a crowded theater is not protected speech under the First Amendment. Not surprisingly, this one exception has given rise to many questions and hundreds of cases regarding what type of expression is shielded by the Bill of Rights. For example, can a person in that hypothetical crowded theater stand up and accuse another of a crime or pass out a leaflet that impugns someone else’s character?

As is often — and often maddeningly — the case with issues involving the Constitution, the answer is, “It depends.”

In this instance, it depends on the laws governing defamation which is defined as a false statement presented as a fact that injures or damages a third party’s reputation. There are two types of defamation: slander, an untrue statement made orally; and libel, an untrue statement made in writing. And, since the dawn of the computer age and the internet, that includes email and social media posts.

While defamation is not considered a crime at the federal level or in Ohio, both libel and slander are civil torts which means victims can sue for damages. To win in court a plaintiff must prove:

1.) The statement was reported as fact to another person;
2.) The statement was false;
3.) The plaintiff suffered damages;
4.) The person making the statement was negligent.

Seems pretty straightforward, except we are talking about the law so nothing could be further from the truth. And speaking of the truth, it is an absolute defense to defamation because if what is said or written is true, it cannot be false, and therefore, it can be neither libelous nor slanderous no matter how much damage it may cause.

Here is another fun fact: Public figures have virtually no chance of winning defamation suits thanks to New York Times v. Sullivan, a unanimous 1964 Supreme Court ruling that established the “absent malice” standard. Under this legal principle, the target of a defamatory statement must prove the person or entity that wrote or uttered it did so with knowledge of or reckless disregard for the fact that it was untrue.

Who qualifies as a public figure? Politicians, celebrities, business, labor, and community leaders, and, well, me. This means Mahoning Matters can publish just about anything they want to about me and there is not much I can do about it.

Finally, consider this scenario: two neighbors who are not public figures have a contentious relationship. Neighbor A posts on Facebook that Neighbor B beats his wife and kids and kicks his dog. The statement is false, but people believe it and ostracize Neighbor B, he is fired from his job and suffers other torments.

Neighbor B can sue Neighbor A, but can he sue Facebook for providing a platform for the lies?

No, because Section 230 of the Communications Decency Act (CDA 230) holds that Facebook and other computer service providers are not considered publishers of content posted by users and are not responsible for it.

So while Neighbor B may be able to wring a few bucks out of Neighbor B, he will not be getting a check drawn on Mark Zuckerberg’s multi-billion dollar account

David Betras: I’ve never filed a frivolous lawsuit…

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Medical MalpracticeFrivolous, adjective: not having any serious purpose or value.

My decades-long legal career has been filled with interesting cases, challenging litigation, and high-stakes trials. But in all my years as a member of the bar, there is one thing I have never done: file a frivolous lawsuit.

That makes me an anomaly in the eyes of the insurance industry, the American Medical Association, the U. S. Chamber of Commerce, and others who claim frivolous lawsuits filed by ambulance-chasing attorneys clog our courts, are responsible for skyrocketing insurance premiums and health care costs, force doctors to practice “defensive medicine” and generally make the world a horrible place to live.

At least that is what they say when they are pushing the passage of tort “reform” legislation that slams the courthouse door in the face of Americans seriously injured or killed because someone else was negligent or reckless.

Along with venting my resentment at having my life’s work denigrated and dismissed as frivolous, a number of things motivated me to once again note that restricting access to the civil justice system makes the world a more dangerous place for our families: The drive to enact tort reform laws is continuing unabated in state legislatures across the nation.

Iowa, Missouri, Texas and Florida, where I will soon be licensed to practice, are among the states attacking victim’s rights. Here in Ohio, an effort to reverse a Draconian cap on non-economic damages is being blocked by the special interest groups and Republicans who imposed the limit in 2004.

A new report issued by the Center for Law and Justice at New York Law School thoroughly debunks many of the myths obscuring the truth about medical malpractice in the U.S. This free-to-download, 172-page publication provides a comprehensive review of the latest statistics about litigation, cost, access to doctors, insurance and patient safety.

I found the following facts to be especially compelling:

  • Experts agree that when cases are filed, they are not “frivolous.” Among the experts is Victor Schwartz, General Counsel of the American Tort Reform Association who admitted in 2011 that “It is ‘rare or unusual’ for a plaintiff lawyer to bring a frivolous malpractice suit…”
  • Litigation and settlements enhance patient safety. Tort reform laws put patients at risk.
  • Neither “tort reforms” nor “caps on damages” lower insurance premiums for doctors.
  • Stripping away patients’ legal rights will not reduce health care costs and may actually increase them.

Finally, a case being litigated by our office underscores how serious and difficult our work is.

While I am unable to discuss the matter in detail, it involves a client who was horribly injured during a medical procedure some time ago. Since agreeing to represent the victim, we have devoted hundreds of hours and tens of thousands of dollars to trial prep and gone toe-to-toe and face-to-face with insurers, defense attorneys and health care providers determined to trivialize our client’s life-altering, lifelong injuries.

Whenever I look at the photos of this client or the hundreds of others we have represented over the years I am reminded of the fact that “frivolous” is the last word that can be used to describe what we do.

The George Floyd murder trial: the justice system worked–this time…

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Attorney David BetrasAs a criminal defense attorney, I watched with great interest the trial of the former Minneapolis police officer convicted of murdering George Floyd.

Here are my thoughts on the case that has mesmerized the nation and the world since May 25, 2020.

The visual evidence secured the conviction. Creating reasonable doubt in the mind of at least one juror is a defense attorney’s No. 1 task. In this case, the astounding amount of video and audio evidence available to the prosecution made that task extremely difficult if not virtually impossible.

The cellphone video of Mr. Floyd’s killing captured by Darnella Frazier combined with newly released police body camera footage painted a stark and irrefutable picture of the incident. The defense attorney would have lost all credibility with the jury if he had asked them to disbelieve what they were seeing with their own eyes and hearing with their own ears: the defendant’s knee squarely planted on Mr. Floyd’s neck, the look of utter disdain on the officer’s face, Mr. Floyd’s pleas for his life and the defendant’s derisive and snide replies.

The defense attorney could not afford to lose all credibility with the jurors because he needed at least one of them to buy into the arguments he made on his client’s behalf.

First, he claimed that Mr. Floyd died because of the drugs in his system and because of his diseased heart — rather than the knee on his neck. In the practice of  law, this is known as the principle of causation and it was a dead-end for the defense because the prosecution had effectively proven that “but for” the actions of the officer Mr. Floyd would still be alive.

Next, he contended that the members of the crowd who were begging for Mr. Floyd’s life were at fault because the defendant felt threatened and turned his attention away from the person he was obviously killing — even though he could clearly be heard talking to Mr. Floyd while he had him pinned to the ground.

Finally, he said the defendant’s use of force was justified because he could not control Mr. Floyd, a statement directly contradicted by both the video evidence and the numerous law enforcement officials and experts who testified the officer’s actions were excessive and unjustified.

The jury did its job. In an earlier column, I said I was confident extensive voir dire had yielded an impartial jury capable of reviewing the evidence and rendering a just verdict. I believe the diverse group of 12 men and women who sat in judgment of what is undoubtedly the case of the 21st century did exactly that.

The system worked — this time.

That outcome would have been tragic for Mr. Floyd’s family and our nation.

Complex deliberative process, legal doctrines drive Supreme Court rulings in controversial cases

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Attorney David BetrasThis week the U.S. Supreme Court handed down decisions in two closely watched controversial cases: June Medical Services LLC. et al. V. Russo and Seila Law v. Consumer Financial Protection Bureau. Along with being among the most highly anticipated rulings of the term, the opinions in the cases provided valuable insight into both the intricacies of the Court’s deliberative process and two legal precedents, stare decisis and severability, that played a critical role in the outcome and future impact of both cases.

Because the justices discuss and vote on cases in secret, most people have a simplistic view of their decision-making process which, in reality, is extremely complex. The nine members of the Court don’t sit around a table, consider the arguments and issue a ruling when five or more members side with the plaintiffs or the defendants. Discussions go on for months. Memos fly back and forth. Clerks argue with their justices. Positions change. Votes change until a solid majority in favor of an outcome emerges. This is an important point: justices only have to agree on how they are ruling, not on why. The same holds true for dissents.

The decision in June Medical v. Russo illustrates this point of law. The five justices who held that Louisiana’s law requiring doctors who perform abortions to have admitting privileges at local hospitals is unconstitutional did so for different reasons. The Court’s four liberals, led by Justice Steven Bryer based their ruling on the fact that Louisiana’s law, like a nearly identical Texas statute struck down in 2016, put an undue burden on a woman’s right to choose.

Chief Justice John Roberts, the fifth vote in the case, based his concurrence on the doctrine of “stare decisis” which means “to stand by things decided.” This doctrine obligates courts, including the Supreme Court, to follow historical cases when making a ruling on a similar matter. Ironically, Roberts had voted to uphold the Texas law in 2016, but his respect for precedent proved more compelling than his opposition to abortion.

Seila Law v. CFPB is also interesting and instructive. After being cited by the CFPB for ripping off thousands of homeowners in a mortgage scam, Seila Law filed suit against the agency alleging that its governance structure was unconstitutional and the Bureau should, therefore, be abolished. Not surprisingly, banks and big business interests who have sought to destroy the CFPB since it was created, filed briefs supporting Seila’s position.

The Court’s five conservative justices, including Roberts, agreed with the plaintiffs but only in part due to the doctrine of severability which states that if a provision of a piece of legislation is found to be illegal the remainder of the law may remain in effect. In this case, the majority rejected the agency’s governance structure but said it could continue to operate. This means that although Seila won the battle on its primary contention, it lost the war against the CFPB because the ruling protects the agency from future constitutional challenges–an outcome that clearly illustrates the way in which the doctrine of unintended consequences can really be a punch in the gut.

Sunshine Laws enable citizens, media to expose government corruption, mismanagement, and malfeasance

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Attorney David BetrasOhio’s Open Meetings Act enacted in 1954 and Public Records Act passed in 1963 known collectively as the state’s “Sunshine Laws,” are based on the belief that government belongs to the people. I couldn’t agree more, and, as a member of the Mahoning County Board of Elections a public body subject to those laws, I believe anyone and everyone should have access to our meetings and the documents we produce.

I’m in good company. The Founders including James Madison, one of the primary architects of our Constitution, clearly understood that public trust was critical to the survival of our democracy:

“A popular government without popular information, or the means of acquiring it, is but a prologue to a farce or a tragedy, or perhaps both. Knowledge will forever govern ignorance; And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives”

Over the 66 years since their enactment, Ohio courts have repeatedly recognized the importance of open government when asked to arbitrate Sunshine Law disputes. In 1976 Justice William B. Brown writing for a unanimous Ohio Supreme Court in Dayton Newspapers, Inc. v. Dayton set the standard for record production that has also been applied to cases involving public meetings:

“The rule in Ohio is that public records are the people’s records, and that the officials in whose custody they happen to be are merely trustees for the people; therefore anyone may inspect such records at any time…”

Given the Dayton Newspapers decision and the fact that both laws empower “any person” to enforce their provisions, one could assume that obtaining records or forcing public bodies to actually meet in public would be a simple, straightforward process.

One would, of course, be wrong.

That’s because we’re dealing with government and the legal system which means these critically important acts are wrapped in miles of red tape. For example, the Sunshine Law Manual published by the Attorney General’s office contains 35 pages of exemptions to the open records law that have been enacted by the General Assembly—including the one that exempts the General Assembly itself from the law. In addition, the courts and the AG’s office have issued numerous opinions that shield records and officeholders from public scrutiny. As a result, forcing government officials to operate in the open can be an arduous, time-consuming endeavor.

But it’s an endeavor that is well worth the effort. In case after case, citizens and the media have used the Sunshine Laws to expose government corruption, mismanagement, and malfeasance and to ensure that bad actors are held accountable for their misdeeds. Ohio is a better state, our democracy is stronger because a concerned resident or inquisitive reporter exercised their right to examine what our elected leaders are doing and how they are doing it.

Because we believe transparency and accountability are essential to the efficient operation of government, you can access a readable/downloadable version of the Sunshine Law Manual here: 2020-Sunshine-Manual_WEB  It’s an A to Z guide that will enable “any person” in our community to utilize the Open Records and Public Meetings acts.

Take a look and then let the sunshine in…

TV Law is Easy, We Win the Tough Ones in the Real World

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Series featuring lawyers have been a staple on television since the first set flickered to life decades ago. Along with attracting millions of viewers, the shows shaped America’s perception of the criminal justice system. For instance, according to TV, crimes were committed, investigations conducted, and trials held in an hour, minus 14 minutes of commercials.

Winning on TV takes half-way decent acting and an hour. Winning a case in the real world takes years, knowledge, dedication and a highly skilled attorney like David Betras.

Those devoted to Perry Mason, the Defenders, Judd for the Defense, LA Law, the Defenders, or Matlock believed defendants would always be acquitted in the last five or ten minutes of the show—usually as the result of the real villain being unmasked in court. Fans of the various iterations of Law and Order know one thing for sure: the bad guy or guys are going down and then they’re going up the river—usually for decades.

After 34 years of practicing criminal law, I’ve learned one thing: the legal world portrayed on TV is a fantasy. First of all, it can take years to investigate a criminal case, research the applicable law, file briefs and motions, consider plea deals, and if necessary try the case in court.

Second, winning a criminal case is not anywhere near as easy as Perry Mason makes it seem. I’ve won hundreds, but each one has been a long, uphill battle waged against talented prosecutors who walk into court confident they have the evidence that will convict my client.

And, I can tell you from personal experience U.S. attorneys, who have all the resources of the federal government at their disposal, are the most confident of all. There may only be one or two lawyers from the Justice Department in court, but when I look over at the prosecution table, I see thousands of FBI/DEA/ATF agents, forensic experts with PhDs from Harvard and MIT, and an army of highly trained paralegals who do nothing but help the attorneys I’m facing prepare the government’s case. It’s an intimidating situation to say the least.

But even though Jack McCoy may win every time on TV, it is possible to mount a defense that results in the dismissal of the charges filed against my client or a “not guilty” verdict from a judge or jury. It’s important to note, however, that I’ve never achieved that outcome by cross-examining a witness so adroitly that they break down and confess to the crime while on the stand.

So what does it take to win? Hard work, knowledge of the law and how to apply it, a fair amount of theatrical skills, and total commitment to seeking and securing justice for my clients.

Here’s an example of how the legal system works in the real world.

In the early morning of June 1, 2016, Warren, Ohio police officers who had responded to a house alarm entered the home in question to investigate a burglary and shooting incident that had taken place at the residence. While walking through the home they noticed what they believed was evidence of narcotics trafficking. Based on that observation, the police obtained a warrant, searched the home and found drugs, drug paraphernalia, money, and loaded firearms.  I’m sure you won’t be shocked to learn that the homeowners were soon indicted and charged with a number of drug and firearms-related offenses.

So far so good, right?

Well, actually no, because after reviewing the facts and the law, I concluded that the police had violated my clients’ Fourth Amendment rights. Just about everyone is familiar with the First and

It may be the Fourth Amendment, but it is every bit as important as the First and Second…

Second Amendments, but believe me, the Fourth is just as important because it’s the one that protects all of us against unreasonable searches and seizures.

In light of the Fourth Amendment violations, I filed a motion in Federal Court to suppress the evidence in the case. Not surprisingly, the Justice Department opposed my motion. On August 7, 2019, more than three years after my clients were arrested, Federal Judge Christopher Boyko conducted an evidentiary hearing on the matter. On August 21, he issued this ruling:

Law enforcement did not have consent to enter the Residence a third time and process the scene for evidence related to the burglary and assault on police. And since police did not have a warrant, the third reentry was unreasonable and therefore a violation of the Fourth Amendment. Since Detective Gambill based her Affidavit for a search warrant on facts she uncovered during the third reentry, those facts must be excised from the Affidavit. Finally, the Government failed to establish by a preponderance that the evidence it seeks to introduce would have been inevitably discovered in a lawful manner. Thus, any evidence uncovered or learned about during Detective Laprocina’ s search of the Residence must be excluded. Defendants’ Motions to Suppress are GRANTED. You can read Judge Boyko’s order in its entirety here: Opinion and Order (002)

What does the decision prove?

It proves that cases can take years to work their way through the criminal justice system.

It proves that the government must play by the rules. Please don’t underestimate how important this is. As I noted earlier, the government possesses awesome power. If police and prosecutors abuse it by ignoring the Constitution they are undermining the rule of law, endangering the freedoms we hold dear, and placing all of us, including law-abiding citizens, in jeopardy.

It proves that a skilled, knowledgeable, experienced, and dedicated attorney can take on the federal government and prevail.

Victories like this, which demonstrate the fundamental strength and fairness of our judicial system, make me proud to be an American and an attorney.

And I have to admit, as I read Judge Boyko’s order, I could swear I heard the Perry Mason theme song playing softly in the background…