A criminal defense attorney was arrested for resisting arrest in the hallway of the courthouse where she has worked for the past 18 years. Jami Tillotson, a Deputy Public Defender for the San Franciso Public Defender’s office was arrested this week right outside the courtroom as she was trying to defend the rights of her client. Other attorneys with the public defender’s office filmed the whole thing, and the Office put it on YouTube with subtitles.
Let’s break down what happened in the video. Public Defender Jami Tillotson was in court when a police investigator attempted to photograph her client and a co-defendant in the hallway. Tillotson steps in and attempts to prevent the investigator from taking photos of her client. She is then arrested by the plain-clothes police investigator for resisting arrest.
You may be wondering how Tillotson can be arrested for resisting arrest if she was not being arrested prior to the actual arrest caught on film. Although I am not familiar with California law and do not practice there, from what I can gather from news articles about this incident, it seems that California law on resisting arrest is broad and encompasses interfering with a police investigation, which according to the San Francisco police, Tillotson was. In Massachusetts, the law is narrower.
Tilloston later stated that she was simply talking to her client and explaining to him his rights, at which point she was told she was interfering and then arrested. At a press conference, another public defender with the San Francisco Office, Jeff Adachi, said, “This is not Guantanamo Bay. You have an absolute right to have a lawyer with you when you’re questioned. Ms. Tillotson was simply doing her job.”
Although it’s wonderful to see passionate and dedicated criminal defense attorneys, the rights of Tillotson and her client may not be as clear cut as it first appears. The public defender’s office argues that Tillotson’s client had a right to counsel. A UC Hastings law professor, Hadar Aviram, however, suggests that for the right to counsel to apply in this situation, the police need to be investigating the defendant for the specific theft that Tillotson was representing him on. Police officials stated that they were investigating Tillotson’s client for a separate, unrelated crime where he is suspect, so the right to counsel would not apply.
Although Professor Aviram is correct, it is not the full story. It is true that you have a Sixth Amendment right to counsel only for the specific crime you were charged with and only during formal proceedings. In this case, it appears that Tillotson represented her client on a separate case, and the police here were investigating a unrelated incident where no charges have been brought yet. Moreover, a seemingly impromptu hallway investigation would not qualify as a formal proceeding. Professor Aviram does not address, however, whether the client had a Fifth Amendment Miranda right to counsel. The Fifth Amendment right to counsel applies when a suspect is in custody, is subject to police interrogation, is read his Miranda warnings, and invokes his Miranda right to counsel. Miranda warnings are the classic “you have the right to remain silent…” warnings you hear Olivia Benson give after she arrests a suspect on Law and Order: SVU.
In this case, it is wholly unclear from the video whether Tillotson’s client had a Fifth Amendment right to counsel. Although it does appear that the client was in custody and subject to police interrogation, it is doubtful that he was read his Miranda rights. Not all is lost though. Any incriminating evidence obtained from this interrogation (if it was in fact an interrogation) cannot be used in court if Miranda warnings were not read to the client. Whether or not this client had the right to counsel in this particular situation, it does seem that the police investigator’s actions were inappropriate and crossed a line.
The right to counsel is a fundamental right in our Constitution. If you are a suspect in a case and the police want to interrogate you or if you have been charged with a crime, it is important to consult with an experienced, dedicated criminal defense attorney so that you know your rights.
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