Police and Other Government Agents Are Not Your Friends or Lawyers When Arresting You
By Don Murray, Esq.
It is impossible to count the number of times I have had to spend time explaining to my clients why the legal advice provided to them by the nice police officer who arrested them or the nice prosecutor who "interviewed" them was wrong. Almost inevitably, I am cast in the role of the bad guy, full of unpleasant realities and predicaments, while the Detective or nice prosecutor who filled their heads full of optimistic outcomes without the need even to seek legal advice is remembered as the good guy.
Recently, while viewing a video of a pre-arraignment "interview" conducted by a District Attorney's Office in New York City, I ran across a beautiful illustration of this sort of thing. The relevant portion of the "interview" is reproduced here (blurred and made black and white to protect client confidentiality, and used with permission of my client). My client was arrested for criminal possession of a weapon, although the circumstances under which she was arrested were somewhat exceptional. Have a look at the video to see what she was told by a District Attorney:
About four hours later, at the arraignment, the District Attorney's Office asked the Judge to set $10,000 bail.
Now mind you the Judge chose NOT to listen the District Attorney's Office in question here. Instead, the judge agreed with my argument that bail was unnecessary in this case. Therefore, the Assistant District Attorney's prediction that my client would not be held did come true - but only because the Judge who happened to be at arraignments chose to reject the Assistant District Attorney's arguments. Judges have a wide range of discretion when making the decision about whether to set bail, and it is certainly possible that some Judges would have taken a District Attorney's request for $10,000 quite seriously.
Also, to be fair, the prosecutor who told this to my client was not the same prosecutor who four hours later requested $10,000 bail. This could be explained if you think that the prosecutor here simply has no clue about what goes on in arraignments or her own office's policy with respect to requesting bail at arraignments. Or it could be explained if you think that the prosecutor here was speaking in a sort of technical way describing the likely outcome but not strictly speaking discussing her office's policies. In other words, the prosecutor pictured here could have known full well that her office would request $10,000 bail, but had every honest and good faith confidence that the judge would ignore that request and decline to set bail.
Of course, the person she tells this to is not going to understand that this is what is going on or be in a frame of mind to parse the words being spoken to her to such a fine degree. My client, and anyone else but a criminal lawyer will hear the words and assume that the prosecutors are not going to be requesting to hold her at all.
In this case, familiar with these sorts of issues, I prepared my client for the possibility that the prosecutor's office would request bail. Even so, given what she was told by the prosecutor pictured above during her "interview" pre-arraignment, she was flabbergasted when the prosecutor asked for $10,000 bail. She later told me that she will never forget that terrible moment, even though I had prepared her for the possibility and even though I told her that the fact that the Government requests bail doesn't mean that the judge will always set bail.
There is nothing illegal about this. They can pretty much be as truthful or as untruthful with you as suits their personal moral code or the needs of a particular investigation. Therefore, there is no way to be sure that what you are being told by the people arresting you is true and from the heart, or something else. Therefore, it is in your own best interests not to give too much credit to what you are being told during your arrest processing. If you have any doubts about this, have another quick look at the video above.