Can you find a case somewhere in the United States where a legal
guardian of a mentally handicapped adult spoke on behalf of the ward
during a police investigation of a criminal case (I have been charged
with "obstruction" for advising my ward to not talk to the police.) 
The judge is asking my attorney for precedents.

You might check out www.findlaw.com

You should be protected under the U.S. Constitution, your state's
constitution, and U.S. Law, regardless of any precedents, though some
precedents probably exist.  Your ward has the right to "remain silent"
as the rule provides, because anything he said could be used against
him in court.  In fact, police are bound by this rule to inform
arrested individuals of their right to remain silent, "If you cannot
afford an attorney, one will be provided", etc.  The advice you cited
is consistent with the "Miranda Rule" and the Constitution, because
the burden of proof only falls upon the state.  Your ward can legally
remain silent, for example, some people claim Fifth Amendment
protection as rationale for not giving testimony that might
incriminate them, like Kenneth Lay or Oliver North, among others.

Your case likely falls under the Federal "Miranda" precedents and
federal substantive due process.  The local prosecutor and police
could likely be ignoring Federal and state due process in order to
coerce you into some kind of action, or they are merely acting out of
pure malice because you could have hindered their investigation, or
simple unawareness.  This judge and district attorney sound like an
appellate court's nightmare.  Creating frivolous unnecessary work for
appellate judges to reverse or remand.  Some police, as likely in this
case, are more concerned about getting information even if it costs
violating someone's due process rights.  Each state's constitution is
similar to the U.S. Constitution almost like a mirror when it comes to
Constitutional rights, regardless the U.S. Constitution should provide
you sufficient protection in state court.

Many precedents like "Miranda" apply Federal Constitutional rules to
protect people whose process rights have been denied.  Surely even
without precedent the judge and the prosecutor should realize that any
information submitted through police interrogation of a mentally
handicapped person without counsel is going to be troublesome in
court, it could very likely be inadmissible.  Seeing how you are a
guardian for the person the police wanted to interrogate only
strengthens your case.  Argue that the legal rules in the Fifth and
Fourteenth Amendments as applied in the "Miranda" precedents
sufficiently protect you from any obstruction of justice charges in
this case.  You probably felt intuitively that you were right in
giving your advice and you are justified.  I think you did the right
and legal thing.  You should have no problem winning this argument in
court, but hopefully you do not have to go all the way to your state's
appellate court or federal court to find a knowledgeable judge.  Any
competent judge or district attorney should have dismissed this charge
immediately.  The fact that this judge and the state did not dismiss
should raise some concern.  The judge and state attorney might not
know the law or they are being malicious because you questioned the
legitimacy of the local authorities.  The judge and district attorney
are making you work harder, spending money, time, and effort.  You
should seriously consider filing a civil suit of procedural negligence
against the police department or prosecutorial misconduct against the
district attorney, if you feel the need for compensation of the time
and money that they have cost you in defending this frivolous charge. 
Let them pay the court costs they have wrongly imposed upon you.  If I
represented you they would quickly drop the charge or they would
eventually lose and become publicly ridiculed.

Feel free to use my remarks above in any legal or court discussion.


I'll quickly scan through findlaw.com, Cornell, WestLaw, or LexisNexis
Call your ACLU office.  They probably have stuff already in their
files.

Keep us informed.

Kairos

DICKERSON v. UNITED STATES

certiorari to the united states court of appeals for the fourth circuit

No. 99-5525. Argued April 19, 2000--Decided June 26, 2000 

Kairos

Thanks to both of you who sent me comments.  Kairos, you sound like my
lawyer -- he thought the case would be open and shut. Our one judge
who hears criminal cases favors police and pretty much does what the
county attorney wants.  My lawyer's latest argument to the court is
based on another Kansas case where you can't be chaged with felony
obstruction if there is no felony conviction in the case -- my son's
case was dropped.  I formerly refused to plead guilty to a misdemeanor
obstruction because I am appalled at the rate the mentally handicapped
and mentally ill are being incarcerated in this country, and want the
courts to look at it.  I certainly hope I don't get a felony
conviction (never having been in any sort of trouble in my 60 years)
but it almost seems like the police prey on the weak.  You were
absolutely right about the police not liking any challenge to their
authority in our little town.  If I had the money I would bring suit
against them because they have done worse things to my son.  He was
once shouting on the porch that he was going to kill himself, had a
small paring knife which he threw down when the police told him to and
ran into the house.  3 policemen kicked open my door (which wasn't
locked) and drew guns on him in my kitchen.  When I'm pleading with
them to stop, they threatened to arrest me that time.  They claimed to
have been worried about the safety of our family!!  "We didn't know if
he was going to get a gun"--  We have no guns in our house and my son
is no threat to us -- he just gets noisy and crazy talking.  All they
did was take him to the station, put him on suicide watch and call
mental health, who called me to find out what was going on.  My family
has been traumatized by the police in this town.  After I went and
talked to the chief they haven't broken my door any more, at least.

I think it would  be good if every police call were videotaped,
because they seem to get power-happy.  I know they feel justified
because they feel in danger, but its interesting that more salesmen
than policemen are injured in this country, according to a report I
read.

Well, thanks again for your advice.

The Wilson case gives specific support to your argument.  These
precedents show what happened to mentally handicapped defendants who
spoke without counsel. Wilson was pardoned by the Governor.  He sued
Lawrance County, MO for damages:

State of Missouri v. Johnny Lee Wilson, 813 S.W.2d 833, 834 (1991);
Murder Charge;Governor Pardon, 1997.

Johnny Lee Wilson v. Lawrence County, Missouri; September 16, l997 in
U. S. District Court for the Western District of Missouri Southwestern
Division in
Agency Case No. 96-5026-CV-SW-1; Wilson sues the county and the police
who coerced him into a confession, thereby depriving him of due
process
/*See attached story*/

Bob Perske has researched this. Two other precedents are:

"Richard Lapointe" and "Peter Reilly".

Johnny Lee Wilson v. Lawrence County, Missouri; September 16, l997 in
U. S. District Court for the Western District of Missouri Southwestern
Division in
Agency Case No. 96-5026-CV-SW-1; Wilson sues the county and the police
who coerced him into a confession, thereby depriving him of due
process.


Judge clears way for civil lawsuit by Johnny Lee Wilson


AURORA, Mo. (AP) -- A mentally retarded man who spent nine years in
prison for murder before being pardoned will get his day in court over
a civil rights lawsuit he filed against Lawrence County authorities.

A federal judge in Kansas City denied immunity to investigators of the
Lawrence County Sheriff's Department, who are named in Johnny Lee
Wilson's lawsuit alleging violation of constitutional rights,
malicious prosecution and false arrest.

U.S. District Judge Dean Whipple said in the ruling last month that if
Wilson's allegations are true -- including that the officers fed him
details on the murder to get a forced confession -- a jury might
determine that the investigators deliberately railroaded the case.

Named as defendants are former Sheriff David Tatum, former deputy and
current Sheriff Doug Seneker, and officers Bill Wegrzyn, Steve Kahre
and Arthur Owens.

Bill Merritt, an Aurora Police Department officer who participated in
Wilson's arrest, has been dismissed from the lawsuit.

Wilson was a mentally retarded 20-year-old who lived with his mother
and worked as an assistant to a school janitor when he was charged
with the April 1986 murder of Pauline Martz.

Martz, a 79-year-old widow, was bound and gagged in her home and her
house set ablaze to dispose of evidence that she was murdered,
authorities said.

Wilson confessed to the crime and later pleaded guilty to first-degree
murder charges. His pardon came in 1995 after a year-long
investigation by the governor's chief legal counsel.

The governor's investigation found that Wilson's diminished mental
state made him susceptible to aggressive police interrogators eager to
solve the Martz case.



Kairos

Quandry, 
I hope things turn out good for you.  Your lawyer might also argue the
Constitutional points about due process and "Miranda" in addition to
the discrepancy he found with the state felony obstruction code. 
"Miranda" and due process give you the big federal double whammy to
snuff out any doubt from the judge. Maybe the judge would dismiss all
charges after he reviews due process through the "Miranda" cases, and
precedents like "Missouri v. Johnny Lee Wilson", and that local case
your lawyer cited. In fact any obstruction charges, felony or
misdemeanor, against you might be moot, since your son's charges were
dropped.  The court's behavior here would be seen as unreasonable by
most if not all higher courts.  Special circumstances exist with your
son's condition, and you have a special relationship with your son. 
Reasonably advising him, due to his condition, to exercise his Fifth
Amendment right by maintaining silence cannot be an obstruction of
justice in this case.
The behavior of the authorities in your town is shocking, incredible. 
I can see them now from your description. Maybe you can work with them
and the judge, showing them the legal rationale, and subtly persuade
them to back off, giving them an opportunity to learn a lesson about
the law, or else you could sock them with a lawsuit.  You have the law
on your side on this one.  I just hope your local court applies it
correctly.  They should drop all charges.
You may want to contact Bob Perske.  He is an advocate for mentally
handicapped convicts, who have been wrongly convicted.  He might
direct you to some support groups, resources, or even federal funding
for defense.  You might check with the National Health Organization
for federal aid.  The news media would be another possible outside
recourse.  A little news broadcast about police unawareness, exessive
force, and prosecutorial misconduct all aimed against a handicapped
person and his father might be a hot news item in the cities,like
Kansas City or Topeka, and it might reverberate through the legal and
government circles all the way back down to the judge, giving him a
little extra incentive to play fair.  Also try to meet or talk with
your Governor, seriously, giving him or her a detailed brief of your
situation.  Ideally, he or she should be accessible.  These would be
good outside avenues of recourse before or as you roll up your sleeves
to go to appellate court, and file a lawsuit of your own. Hopefully it
will be dropped before it goes that far.  Good luck, I think you're
doing the right and natural thing by fighting this.

Kairos