Case o' The Week: Charley, detention vs. arrest and confessions
This tragic case is an appeal from three federal murder convictions and six consecutive life sentences. In United States v. Charley, __ F.3d. __, 2005 WL 246347 (9th Cir. Feb. 3, 2005), the Ninth Circuit holds that a Native American woman "detained" in a police car and driven to the crime scene was not "arrested." The disappointing decision also holds that a "Sixth Amendment" invocation of the right of counsel is not a "Fifth Amendment" invocation, preventing further law enforcement interrogation.
Players: Judge Gould + totality of circumstances = defense loss.
Facts: Elvira Charley, a Native American, shot her three children with a .22 rifle, called the police, and went to her relatives’ house. 2005 WL 246347 (WL page numbers not available at writing). A deputy responded, and Charley said that he needed to check on her children and "that she’d done something very bad." The deputy told her she was being "detained," and took her to her house in a patrol car. She said, "You’re going to have to take me away for a long time." She ultimately appeared in tribal court and asked for a lawyer. After this appearance, a federal agent interviewed her on her way to federal court, where she made another confession. She was convicted of federal murder charges and received six life sentences.
Issue(s): 1. Should the initial statements to the deputy be suppressed because Charley was unlawfully arrested without probable cause? 2. Should the second set of statements to the federal agent be suppressed, because Charley had asked for counsel at the tribal court?
Held: 1. The defendant was not "arrested" but "detained" during the initial confession."[T]he district court did not err in finding Charley was not in custody when Sergeant Billie detained her and escorted her from the Begay residence to her own home." Because there was reasonable suspicion for the detention, there was no Fourth Amendment violation. 2. The second confession was not tainted, because Charley invoked her Sixth Amendment right to counsel at the tribal court appearance, but did not invoke her Fifth Amendment right to counsel. "Invocation of the Sixth Amendment right to counsel alone does not constitute an invocation of the Miranda-Edwards Fifth Amendment right to counsel."
Of Note: Charley is most likely to be cited against the defense for its analysis of the "detention/arrest" distinction. Judge Gould applied a "totality of circumstances" approach to determine that this woman, who was told she was detained and who was put in a patrol car, was not "arrested" and therefore was not entitled to a probable cause showing. A week after Charley, Judge Gould applied another "totality of circumstances" analysis to deny a different Fourth Amendment claim. See United States v. Martinez-Garcia, __ F.3d __, 2005 WL 326844, *1 (9th Cir. Feb. 11, 2005).
Equally unpersuasive is the Court’s holding on the second issue, regarding invocation of counsel. Charley successfully invoked her right to counsel before being interrogated by the federal agent, but this emotionally distraught Native American woman invoked her Sixth instead of her Fifth Amendment right. In other words, she would have had constitutional protections, but she was one amendment off.
How to Use: Distinguish Charley in Fourth Amendment cases by the unique facts of the case; the defendant called police dispatch, she made a number of inculpatory statements before being detained, the deputy clearly informed her that was detained, not arrested, and he explained that the trip in the patrol car was only to "find out what’s going on." Anticipate the government’s distillation of Charley for a blanket rule that being placed in a patrol car is only a detention, not an arrest – and fight this oversimplification with these unusual aspects of the case.
For Further Reading: This case is almost too tragic to report. Not reflected in the decision is Ms. Charley’s repeated pleas with Indian Social Services as her life, and her ability to provide for her children, spun out of control. A victim of domestic violence, she lived in a 600 square foot house with her three children, and with no utilities. For a moving description of the unwritten background of this case, visit the Indian Country Today article here.
Steven Kalar, Senior Litigator ND Cal.
Players: Judge Gould + totality of circumstances = defense loss.
Facts: Elvira Charley, a Native American, shot her three children with a .22 rifle, called the police, and went to her relatives’ house. 2005 WL 246347 (WL page numbers not available at writing). A deputy responded, and Charley said that he needed to check on her children and "that she’d done something very bad." The deputy told her she was being "detained," and took her to her house in a patrol car. She said, "You’re going to have to take me away for a long time." She ultimately appeared in tribal court and asked for a lawyer. After this appearance, a federal agent interviewed her on her way to federal court, where she made another confession. She was convicted of federal murder charges and received six life sentences.
Issue(s): 1. Should the initial statements to the deputy be suppressed because Charley was unlawfully arrested without probable cause? 2. Should the second set of statements to the federal agent be suppressed, because Charley had asked for counsel at the tribal court?
Held: 1. The defendant was not "arrested" but "detained" during the initial confession."[T]he district court did not err in finding Charley was not in custody when Sergeant Billie detained her and escorted her from the Begay residence to her own home." Because there was reasonable suspicion for the detention, there was no Fourth Amendment violation. 2. The second confession was not tainted, because Charley invoked her Sixth Amendment right to counsel at the tribal court appearance, but did not invoke her Fifth Amendment right to counsel. "Invocation of the Sixth Amendment right to counsel alone does not constitute an invocation of the Miranda-Edwards Fifth Amendment right to counsel."
Of Note: Charley is most likely to be cited against the defense for its analysis of the "detention/arrest" distinction. Judge Gould applied a "totality of circumstances" approach to determine that this woman, who was told she was detained and who was put in a patrol car, was not "arrested" and therefore was not entitled to a probable cause showing. A week after Charley, Judge Gould applied another "totality of circumstances" analysis to deny a different Fourth Amendment claim. See United States v. Martinez-Garcia, __ F.3d __, 2005 WL 326844, *1 (9th Cir. Feb. 11, 2005).
Equally unpersuasive is the Court’s holding on the second issue, regarding invocation of counsel. Charley successfully invoked her right to counsel before being interrogated by the federal agent, but this emotionally distraught Native American woman invoked her Sixth instead of her Fifth Amendment right. In other words, she would have had constitutional protections, but she was one amendment off.
How to Use: Distinguish Charley in Fourth Amendment cases by the unique facts of the case; the defendant called police dispatch, she made a number of inculpatory statements before being detained, the deputy clearly informed her that was detained, not arrested, and he explained that the trip in the patrol car was only to "find out what’s going on." Anticipate the government’s distillation of Charley for a blanket rule that being placed in a patrol car is only a detention, not an arrest – and fight this oversimplification with these unusual aspects of the case.
For Further Reading: This case is almost too tragic to report. Not reflected in the decision is Ms. Charley’s repeated pleas with Indian Social Services as her life, and her ability to provide for her children, spun out of control. A victim of domestic violence, she lived in a 600 square foot house with her three children, and with no utilities. For a moving description of the unwritten background of this case, visit the Indian Country Today article here.
Steven Kalar, Senior Litigator ND Cal.
posted by Steve Kalar at 2/20/2005 11:43:00 AM
12 Comments:
"The disappointing decision also holds that a 'Sixth Amendment' invocation of the right of counsel is not a 'Fifth Amendment' invocation, preventing further law enforcement interrogation.
DUH!
Ms. Charley was too stupid to think about anyone other than herself. It was extremely selfish of her to commit this crime. She could have, at least, turned the gun on herself.
I'm glad her res gestae statements got her what she deserved.
"In other words, she would have had constitutional protections, but she was one amendment off."
Why not give her the protection if she were invoking her right not to quarter troops? If she's off by one, then why not be off by two more?
Elvira is my sister, she's 14 months older than me. It's been 4 years since that horrible day. I have such sadness in my heart for her and her children. We barely survived growing up, I escaped and left the reservation. Elvira stayed for reasons I'll never know. I only hope that others will learn from this tragedy. Be proactive!! If you sense that something just isn't right, do something!! Don't look the other way. I'll carry the guilt of not being aware of what was going on with my sister, for the rest of my life. I believe in our justice system, and Elvira will serve her time and hopefully find some peace in her life. I pray for all the women and children out there who feel just as hopeless and helpless as Elvira did. Please seek help.
To Elvira Charley's sister: I am the Executive Director for an organization that provides advocacy, training and technical assistance on domestic violence, sexual assault, stalking, elder abuse and dating violence issues in Indian country nationally. I am also a survivor of child abuse, domestic violence, dating violence, sexual assault and stalking crimes. I am of Scotch/Irish, Choctaw and Cherokee descent, an enrolled member of the Cherokee Nation of Texas. I have followed Elvira's story closely for four years and have tried to find which prison she is in so that I may attempt to reach her. Hers is a story that haunts me. Her story needs to be told, but from her perspective, not Navajo social services' perspective or a federal criminal justice perspective (although I do not wish to imply that these other perspectives aren't also valuable). However, like you, I too have a sister that is 13 months older than I and having been a survivor of intimate partner violence myself, I cannot judge Elvira's choices or circumstances without first judging my own choices and circumstances. I come to you with no hidden agendas, just an earnest desire to know where Elvira is, how I might be able to reach her (IF she is willing to be reached), and whether or not she would be willing to tell someone her story--someone who will not judge her, condemn her, or blame her for the circumstances she found herself in. Hers is the most serious case of what I can only term "victim neglect" that I've ever encountered in the more than ten years of working in the battered women's movement, and I pray for her, for you, and for her children. She was truly boxed into a corner, deprived of all help, all means of support, all resources, and from what I can tell, almost all options. I do not blame Navajo Nation for the lack of resources they could provide her, but hers is a case that SHOULD change how those in the dominant society view resources available to Native battered women. If you are willing to respond to me personally, instead of through this Blog, my e-mail address is nac@ionet.net.
Jo Hally, (Adnvwvsti Awvholi--Running Eagle), Executive Director, Native American Circle, Ltd.
Ms. Charley is in federal prison in Ft. Worth:
INMATE NAME & REGISTER NUMBER
FMC CARSWELL
FEDERAL MEDICAL CENTER
P.O. BOX 27137
FORT WORTH, TX 76127
why is it that everyone feels sorry for Elvira? She is a very vindictive person who tormented her husband, to the point that he had to leave the family. But, he did not leave her and the kids without financial assistance. He sent her money on a regular basis and even asked to take the kids from her so she can do what ever it is that she wanted to. She refused his offer but gladly took the money, and to get back at him she took the lives of the children. She has no consideration for anyone other than herself. She deserves what she got. How does one kill not only one person but four people and not pay with her own life? It just does not seem fair, where is the justice?
I was Ms. Charley's lawyer at trial. We spent more than a year and hundreds of hours together in jail cells, getting to know each other and sharing the pain of her existence. It was painfully obvious that somewhere in the midst of being beaten, abused, laughed at, and scorned by her husband and those who should have been closest to her, she broke into little pieces. At least the surviving children will escape a lifetime of abuse at the hands of their "loving father" -- he committed suicide by cop a few months after trial.
To "Anonymous" of September 18th, thank you for providing me with Ms. Charley's current location and address. I will attempt to establish contact with her. To Deborah Williams, thank you for the work you did on Ms. Charley's behalf and for the compassion you showed her. I did not know that Tommy Charley committed suicide by cop after the trial. I would very much appreciate any practical tips or guidance you have for me in contacting Ms. Charley in FMC Carswell. I would also very much like to establish contact with you. My e-mail address is nac@ionet.net. Thank you again!
Poor little abused woman. Did anyone think about the 3 kids that made it out before she killed them, or the Officer who had to shot the Dad?
I am surprise by some of the nagative comments that has been made against this lady; you don't know the circumstances that she was in; perhaps you were never abuse by your spouse and who are you to judge? You are not GOD. She had her reason; although it was not the correct one but I pray for her, and her pain. God is a forgiving and I'm sure he will forgive you for all your sins!
This is to all of you that have no heart for abused women,i pray for you all,that you never have to go thru what my sister and her childred had to go thru,there has been times that i visited her in new mexico where that evil man lived,i remember one visit,when my sister must have just gone thru a beating,because her right ear was all bruised,i ask what happen she look at that man and just said she ran into something,i know something was wrong,but she would not leave with us,because she said he would find her and kill her,everyday i ask myself why,she once told me it was her pride that kept her from asking us for help.There is a story about how she was rasied,but i have always been told not to turn unwanted stones over,but one of these day the truth well be told,i think if the truth was told she would maybe be here not there,and about the comment about her getting all of that mans money,THATS A LIE!,she had to beg him to send her money for the kids,NEVER DID HE SAY THAT HE WELL TAKE THE KIDS!he just left ed her for another woman,and left his kids with nothing but memories of the sbuse that there mother had to go thru,im so sick of hearing that she was a bad mother,selfish and all that other stuff,i think she would have ran circles around all that think bad about her.yes you all are thinking how come you didnt get her help,i tried ,and alot of other people,family and friends,but she was so headstrong that she tought she could handle this way of life,abusive life,i am pretty sure abused people always think that it well get better,but it doesnt,once they start hitting on you,it NEVER STOPS,UNTIL SOMETHING BAD HAPPENS!KEEP your prays going for my sister elvira,she need all our support now and for ever,thank you
Children learn what they live. In this tragic case, Violence is what Elvira learned as normal in her adopted family. Substance abuse is a contributing factor but it would seem that there was planning involved in these murders.
I was with Elvira in Cars well in 2005, Perez my last name. What I saw was a very fragile woman full of remorse and deeply repented for what she had done. I was there for about six months and during that time she opened up to me expressing how sorry she was for what she had done! I felt very bad just knowing that she would have to carry with all that pain for the rest of her life. Six years have gone by and I still remember all the conversations that we had and the very few times that I didn't see her depressed!
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