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State v. Tillman, decided February 17, 2021, illustrates why you should get an attorney before talking to police.
Tillman (according to him, not according to police) came home after work one day to find his live-in girlfriend dead of a gunshot in their home. He dialed 911 and explained to them that he believed she had killed herself. After an investigation, however, it did not appear to be a suicide.
He then continued to talk to the police, agreed to multiple interviews, was charged with murder, and was convicted at trial based on circumstantial evidence that included inconsistent statements that he made to police investigators…
If Tillman had come home, found his girlfriend’s body, called the police, and then refused to answer questions until he consulted with a criminal defense lawyer, would he have been found guilty at trial?
That’s impossible to say, but a competent defense attorney would certainly have advised him not to subject himself to multiple interrogations, he would not have made multiple statements to the police, and there would have been significantly less circumstantial evidence presented at his trial.
If you must call the police to report a dead body in your home and you don’t want to be convicted for murder, you should also assume that you will need to go ahead and retain an experienced criminal defense lawyer who can speak to the police for you.
Obviously, dial 911 and report what has happened, but don’t volunteer additional information and do not answer any questions until you have consulted with an attorney about the situation.
If you are innocent of the crime, you just need to explain yourself to the police, right? I mean, you are an intelligent person who can explain what happened.
The problem is, most people are thinking, “the police will not get me to confess to a crime I didn’t commit.” That may be true (or it may not be true – one in four wrongful convictions involves a false confession or incriminating statement).
But law enforcement investigators aren’t necessarily expecting you to confess to the crime. Although they might be happy if you do, they are more often looking for you to make inconsistent statements – inconsistent with things you’ve said in prior interviews, inconsistent with things that other people have said, or inconsistent with physical evidence that they found at the scene.
Those inconsistent statements will later become “circumstantial evidence” that is admissible against you at your trial. Did you know that without any direct physical evidence connecting a person to a crime, the state can convict you based solely on circumstantial evidence?
I’m not saying call your attorney before you call the police, but maybe it should be your next phone call. If you are unable to talk to your attorney before the police arrive, you should not make any statements to them until you have met with your attorney.
Beginning with the 911 call, Tillman told police:
All these statements were taken by the police and used by the prosecutor as evidence against Tillman – evidence that may not have existed if he had talked to an attorney before talking to the police.
Tillman was convicted based on what looks like circumstantial evidence, including his inconsistent statements made to police – that is legally acceptable if the jurors believe that the circumstantial evidence points to guilt beyond any reasonable doubt.
Other circumstantial evidence that could have been challenged at his trial includes:
Tillman’s appeal was denied by the SC Court of Appeals – what’s next? The SC Supreme Court may hear his case, but, after that, his only state-court option left is post-conviction relief.
If his trial attorney did not consult with a GSR (gunshot residue) or ballistics expert, that could be grounds for post-conviction relief (PCR) if the resulting testimony would have made a difference at trial. If there are witnesses who could have explained the bruises and burns or who could have provided additional information, that could also be grounds for PCR if the information is exculpatory.
Whereas Tillman’s direct appeals determine whether there were legal mistakes made by the judge, the PCR hearing which may follow determines whether there were mistakes made by the attorney – whether that was a failure to object, to preserve issues for appeal, to present certain testimony, or to consult with experts.
If you think you may be a suspect or even just a witness to a crime, you should always talk to your attorney before you answer any questions.
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