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couple of questions

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crookshank

Junior Member
What is the name of your state? Kansas

My fiance was arrested. Now I understand that even though he was handcuffed and taken in he wasn't under arrest. He was told he needed to answer a few questions. So he was never read his rights. I do know that his rights don't have to be read until he is arrested. He was questioned for eight hours, asked is he was arrested because he felt he was being accussed of the crime.
He was told no, he still asked for a lawyer. He then asked if he could call his mother. He was handed a phone, he called his mom, told her what he was being acussed of. The conversation was taped and used against him in pree trial

Is this legal?
 


calatty

Senior Member
If he was handcuffed, taken to the station, and questioned for 8 hours, he has a strong argument that he was in custody and entitled to Miranda warnings. If they continued to question him after he asked for a lawyer, that is another constitutional violation.
 

crookshank

Junior Member
also wanted to know

I also wanted to know if it is a violation of rights, or failure of counsel to tell the defendent that it is better to plead guilty because after the media coverage he wouldn't get a fair trial. He was also shown pictures of the girl he killed. Now it was all over the front page of the paper that he was charged with the crime when he actually was at the time only taken in for questioning. Couldn't the lawyer asked for a change in venue. My fiance had never heard of one and never asked to have on filed. In fact he did ask his lawyer to file a motion to have everything that he said to the cops before he was formally arrested to be tossed out.
He was informed that there was no need since he was willing to accept a plea bargin. Could anything he said before his arrest be taken into account by the D.A. since there was no motion to toss the evidence out.
Finally looking at the report from the D.A it clearly states that the act seems to be an accident. The D.A. states that although a psychiatrist was hired to tst the mental capacity of the defendent the defendent didn't speak. So it is stated that there was no compentacy hearing yet he was give a full exam. Is he entitaled to a hearing to determne compentacy. The D.A and the psychiatrist both advised that he needed to be on suicide waatch which he was for seven months.
Any advise is helpful. I am doing the best that I can with the court papers but.....well I am not an attorney.
 

HomeGuru

Senior Member
crookshank said:
What is the name of your state? Kansas

My fiance was arrested. Now I understand that even though he was handcuffed and taken in he wasn't under arrest. He was told he needed to answer a few questions. So he was never read his rights. I do know that his rights don't have to be read until he is arrested. He was questioned for eight hours, asked is he was arrested because he felt he was being accussed of the crime.
He was told no, he still asked for a lawyer. He then asked if he could call his mother. He was handed a phone, he called his mom, told her what he was being acussed of. The conversation was taped and used against him in pree trial

Is this legal?
**A: OK, lets cut to the chase. What crime is he accused of?
 
R

Ramoth

Guest
I'm guessing from the line "he was shown pictures of the girl he killed" that it's a murder or manslaughter charge. ANd if he's willing to accept a plea bargain, there's no point in worrying about admissible evidence, since a plea means no trial.


Edit to add - since I searched the OP's posts, I now know that the boyfriend was charged with 2nd degree murder after trying to kill himself and missing.
 
Last edited:

crookshank

Junior Member
Your right

your right, it was second degree murder. Sorry that I didn't mention it. Honestly from what I read from the court papers and the reply to the papers he has filed. The only place I see where he may have had his right violated was the taping of the phone call made to his mother and using it against him in pre-trial. The reply from our complaint says that since it was made from a the county jail then he should have known it would be taped. Also it wasn't made on a public phone but from a cell phone, if that makes a different. Possibly not having his rights read could be a violation but I don't have the police transcripts yet to verify it. It was stated by the D.A. that they " possibly were never read" but until we get copies of the tape we don't know for certain.
Honestly this may be mean but I don't want him to actually get out. I just want to see if perhaps his rights were violated in some way either through the fact that he didn't fully understand his options, his lawyer failed to give him all options or he was declared mentally unstable at the time. With both his lawyer and the D.A having stated that that he didn't respond to the doctor should they have had a compentecy hearing.
Also finally I guess the one question I want to know is how do you decided to file for 2nd degree murder. In the statement from the D.A. the only plea they would take is second degree murder.
Yet the D.A. clearly states that "There is no reason to conclude that this was not an accident." So what can I do to get him a trial to change his plea from "No Contest" to "Not guilty" and perhaps get the sentence changed to involuntary Manslaughter"?
 

HomeGuru

Senior Member
Re: Your right

crookshank said:
your right, it was second degree murder. Sorry that I didn't mention it.
Honestly this may be mean but I don't want him to actually get out.

**A: and I totally agree with you. I don't want him to actually get out too.
 

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