The right to an attorney

THANKING GOVERNOR JACK AND CAYMAN ISLANDS LAWYERS FOR PROTECTING THE RIGHTS OF THE ACCUSED - THE RIGHT TO AN ATTORNEY

The citizens and residents of the Cayman Islands give thanks to the Governor Jack for stepping up to the plate in the interest of the people of the Cayman Islands who narrowly escaped the plight of victimization in being denied legal aid representation. This is unheard of in any democratic society. We thank the Cayman Bar Association, the Cayman Law Society, the HRC,  and all those that were responsible for bringing this to the attention of the public. This can only mean one thing, to prevent this from ever happening again by any elected leader taking such a serious matter into their own hands to hold hostage the basic fundamental and constitutional right of the accused, whether guilty or innocent.. That it is now time for the Cayman Islands lawmakers to take a close look at the US Miranda rights that protect the rights of the innocent, the accused, and that section relating to the accused in the new Cayman Islands constitution enacted on November 6, 2009.  Amendments and corrections must be made instantly. The Attorney General opposes  Freedom of Information to persons in custody,  recently the new Premier objected to granting legal aid to the accused or those in custody, this is serious, and not consistent with a democratic society.. Correction to these aspects of the Bill of Rights and the Constitution affecting the lives and future of the people and our society as a whole can be enhanced by re-drafting the Law, patterning those aspects relating to legal aid  in the  Cayman Islands constitutional draft after the legal language used in the US Miranda Law outlined as follows:- 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 an attorney. If you desire an attorney and cannot afford one, an attorney will be obtained for you before police questioning. Anyone who has watched a TV police drama has heard this speech or one similar to it. Every day police throughout the United States recite these words of warning to suspects before formally questioning them about specific crimes. The “you have a right to remain silent” speech is known as the Miranda warning because its legal requirements was established in groundbreaking US Supreme Court case Miranda-vs-Arizona. In that case the court ruled that the statements made by the person accused of a crime could not be used as evidence at his or her trial unless the accused “voluntarily, knowingly and intelligently” waived the constitutional right to remain silent. It was a revolutionary and highly controversial decision. Until that time the right to remain silent had been thought to apply only to trials. The Fifth Amendment to the US Constitution guaranteed criminal defendants the right not to testify against themselves in a court of law. In Miranda however the Supreme Court extended the right to remain silent beyond the courtroom to the police interrogation room. (This was necessary.) The US Supreme Court had a major impact on law enforcement, creating a new procedure protecting the rights of the innocent or the accused that has often fallen victim to police interrogation. In Cayman’s case fallen victim to powerful political leaders. We must be careful not to allow a repeat of this high risk abuse of power.  What are the Miranda rights really saying? What the Miranda rights say:The exact wording of the “Miranda rights” statement is not specified in the Supreme Court’s historic decision. Instead, law enforcement agencies have created a basic set of simple statements that can be read to accused persons prior to any questioning. Here are paraphrased examples of the basic “Miranda rights” statements, along with related excerpts from the Supreme Court’s decision. 

1. You have a right to remain silent you in a court of law.
    The court”  at the outset, if a person in custody is to be subjected to interrogation, he must first be informed in clear and unequivocal terms that he has the right to remain silent. (some individuals don’t know how to respond during interrogation)
2. The Court: “The warning of the right to remain silent must be accompanied by the explanation that anything said can and will be used against the individual in court.”
3. You have the right to have an attorney present now and during any future questioning.
   The Court: “...the right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege under the system we delineate today ... [Accordingly] we hold that an individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation under the system for protecting the privilege we delineate today.”
4. If you cannot afford an attorney, one will be appointed to you free of charge if you wish.
5. The Court: “In order fully to apprise a person interrogated of the extent of his rights under this system then, it is necessary to warn him not only that he has the right to consult with an attorney, but also that if he is indigent a lawyer will be appointed to represent him. Without this additional warning, the admonition of the right to consult with counsel would often be understood as meaning only that he can consult with a lawyer if he has one or has the funds to obtain one ”The Court continued by declaring what the police must do if the person being interrogated indicates that he or she does want a lawyer. If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning. If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent.    ” But…you can be arrested without being read your Miranda rights The Miranda rights do not protect you from being arrested, only from incriminating yourself during questioning. All police need to legally arrest a person is “probable cause” – an adequate reason based on facts and events to believe the person has committed a crime. Police are required to “read him his (Miranda) rights,” only before interrogating a suspect. While failure to do so may cause any subsequent statements to be thrown out of court, the arrest may still be legal and valid. Also without reading the Miranda rights, police are allowed to ask routine questions like name, address, date of birth, and Social Security number necessary to establishing a person’s identity. Police can also administer alcohol and drug tests without warning, but persons being tested may refuse to answer questions during the tests.

This is a perfect draft for the Attorney General and the Premiere to re-consider, and it is crucial to make the necessary corrections to those sections in the Constitution and Bill of Rights they both oppose; government as a whole in the interest of the citizens of the Cayman Islands to act intelligently, and not recklessly in making sure that everyone the innocent and the guilty to have their day in court.. The United States with all its sophisticated legal technological systems in place has still failed even with sufficient DNA to convict the accused. Too many innocent persons have been convicted for crimes they did not commit even under circumstances where an attorney was provided to represent the accused. Some innocent victims have even been put to death. In light of the ongoing corruption probes in this jurisdiction; how much more should the Cayman Islands a small community where execution of the law for crimes committed  have a greater impact on families, then our leaders are expected to  carefully look at and study to the fullest extent all the legal and moral elements necessary in decision making.. The ramifications within the judicial systems should be tailored to avoid making such horrible mistakes and at the end of the day our local Attorneys, and our members of the Judiciary and the Jury as well can  sleep at night with a good conscience that after making sure that the best and the worst accused individuals amongst us have had their day in court had been privileged to a fair trial, with the  right to an Attorney. This is his or her constitutional and human rights both locally and internationally, as an accused person.

Florence Goring-Nozza