Anyone who’s seen a cop show knows: When the cuffs come on, you have the right to remain silent.

The so-called Miranda warning is old hat. Less familiar and less straightforward are the rights defendants have once they’re formally charged.

A Bend defense attorney, Jamie Gerlitz, has raised questions about the interview practices of Redmond Police in two recent cases, alleging violations of the constitutional right to legal counsel once judicial proceedings have been initiated.

Redmond Police Capt. Brian McNaughton contends that in the one case he could discuss, the officer’s interview practices were lawful.

Case law has said police can’t deliberately elicit information about current criminal charges from a defendant who is represented by an attorney without notifying the attorney and giving him or her a chance to be present. An exception exists in a situation where a defendant initiates the contact with police and intentionally waives the right to have counsel present.

The two cases raise questions about the limits of that law and the burden on officers, defendants and defense attorneys to uphold it.

The mystery gun

On a January day two years ago, Redmond Police Sgt. Hank Majetich donned a pair of latex gloves and dismantled a car door in the parking lot of the Deschutes County District Attorney’s Office.

The Honda sedan was allegedly stolen. According to police reports released to The Bulletin by Gerlitz, Majetich was at the courthouse to testify to a grand jury about the alleged theft when the owner mentioned to a deputy district attorney that the car hadn’t been the same after it was recovered. She said there was a strange lump in the driver’s side door, and the window wouldn’t roll all the way down.

With the owner’s permission, Majetich took apart the door. He found a 9 mm handgun.

About a month after finding the gun, Majetich went to the Deschutes County jail to interview and get a DNA sample from Theodore Jokinen, the Metolius man charged with stealing the car.

Jokinen was known by law enforcement in the area; Majetich referred to him as “Ted” in his report. As a convicted felon, it would be illegal for him to have a firearm, and Majetich had applied for a search warrant to get a DNA sample. Jokinen consented to a swab but told Majetich he didn’t own any firearms and that he knew nothing about the gun found in the car.

By the time Majetich interviewed him at the jail March 4, 2014, Jokinen had been indicted and was represented in the unauthorized use of a vehicle case by Gerlitz. Gerlitz contacted Deputy District Attorney Matthew Nelson, concerned the interview violated her client’s rights.

Though Jokinen hadn’t been indicted on a weapons charge, she said, interviewing him about the gun found in the car would imply that he had stolen the car. Therefore, any information he gave police about the gun found in the car could implicate him in the stolen vehicle case, she argued.

Carrie Leonetti, an associate professor of constitutional law, criminal procedure and evidence at the University of Oregon, wrote in an email Friday that a narrow decision in the U.S. Supreme Court in 2001 rejected a similar argument.

In that case, Texas v. Cobb, the defendant, Raymond Levi Cobb, had argued that two separately charged offenses were so connected that an interrogation about the other would violate his rights.

“For what it’s worth, lower courts have had a great deal of difficulty applying Cobb over the past decade or so since it was decided,” Leonetti added.

And state law has provided guidance that differs from the federal court. In separate interviews, both Deschutes County Chief Deputy District Attorney Steve Gunnels and Gerlitz pointed to an Oregon Court of Appeals opinion from 2011, State v. Potter.

In that case, the appeals court reversed a circuit court decision not to suppress evidence yielded during an interrogation that was factually related to a case in which the suspect had already been charged. However, Gunnels noted that felon in possession of a firearm is a crime that can also be prosecuted federally.

McNaughton, the Redmond Police captain, said Thursday that if Gerlitz believed the interview was unlawful, she had recourse through the courts. McNaughton asserted that in Jokinen’s case the officer “did nothing wrong.” He said the court sided with the police with respect to the jail interview.

In fact, a judge didn’t have the chance to make a decision on the matter, court records show. Gerlitz did not file a request to suppress — or prevent a jury from hearing — the evidence yielded during the jail interview.

She said in an interview Thursday that she did not file a request to suppress the evidence of the jail interview because there just wasn’t much evidence.

“The fact that (Jokinen) was interviewed never came out in the trial,” Gerlitz said. “It wasn’t an issue at all.”

Deschutes County District Attorney John Hummel said Friday the DNA recovered from the gun didn’t match Jokinen’s.

Jokinen was found guilty by a jury and sentenced to four years in prison for unauthorized use of a vehicle Oct. 23. He is serving time concurrently for three other convictions in the same case. Court records show he has appealed the conviction.

The eyeglass case

Though the Jokinen case has been resolved for now, another case gives Gerlitz cause to believe the problem may be ongoing.

On Nov. 27, Joanie Carmichael was stopped by Redmond Police north of Terrebonne. Police had received citizen reports of a domestic dispute in the car she was driving, which they believed, based on the license plate, was stolen.

About six months earlier, Carmichael had been charged with one count of methamphetamine possession; she requested an attorney, and Gerlitz was appointed.

During the November traffic stop — which police classified as high risk because they believed the vehicle was stolen — Redmond Police Officer Cory Buckley interviewed Carmichael while she was handcuffed in the back of his patrol car. After he read her Miranda rights, they talked about the car she was driving and how she obtained it. Then they talked about her previous court case.

According to the police report on the incident, released to The Bulletin by Gerlitz, Carmichael told Officer Buckley she believed she was a “truthful individual with good morals and standards.”

The police report does not indicate who started the conversation — if Carmichael had just spoken about her current court case without prompting, it would not have been Buckley’s responsibility to stop her from talking about it — but Gerlitz said Buckley asked her client about the ongoing case.

McNaughton could not confirm Buckley initiated the conversation, saying he could not discuss Carmichael’s case because it has not been resolved.

According to the report, Carmichael told Buckley that during the previous incident, she went to visit a friend. Getting no response when she knocked on the door, she saw an eyeglass case on the porch.

“… and although she believes she is an honest individual, she grabbed the case and left,” the report states. “She thought she had scored a new pair of glasses, not looking in it at the time, and she placed it in her pocket and drove away. Shortly thereafter she (was) stopped by DCSO who stated she was seen leaving a known drug house. A subsequent search of her vehicle yielded the eyeglass case, which apparently contained two meth pipes.”

Another Redmond Police officer searched the car during the Nov. 27 stop, finding methamphetamine, two meth pipes, a snort tube and a scale with suspected meth residue on it, the report states. Carmichael was charged again with possession of methamphetamine Dec. 2, court records show.

Gerlitz said she planned to file a motion to suppress the evidence of the conversation during the traffic stop. Carmichael’s next court appearance is to address another motion and is scheduled for March 7.

Leonetti, the law professor, said a summary of the Carmichael incident brought her some concern. “… it seems from the limited information that I have that the officer was not legally allowed to ask the suspect about the pending meth case after she had been indicted and had counsel appointed,” Leonetti wrote.

“I can’t, of course, analyze the specifics of a case — that’s the lawyer’s job — but there certainly is a real problem if an officer set out to talk to her about a case she had already invoked counsel in,” said Phyllis Mann, a senior program associate at the Sixth Amendment Center, a nonprofit that represents the rights of the indigent to effective counsel.

Legal tangles

Above all, the cases demonstrate the complexity of a defendant’s rights under interrogation, according to Leonetti.

The right to effective counsel is constitutionally protected, but it’s often complicated by systemic limitations — lack of funds and large caseloads for both public defense attorneys and prosecutors.

And, Mann said, police officers have to think on their feet. They may not be well-versed in the precise ways the right to counsel may apply in unique situations.

McNaughton, the police captain, reiterated his confidence in his officers, noting they receive training on lawful interrogation every year by Gunnels, the chief deputy district attorney.

“Many of our officers have gone to specific trainings on advanced interrogation,” McNaughton said.

Gunnels said he has rarely seen this specific issue. He regularly gives case law updates during patrol briefings and conducts some longer legal trainings for police officers.

“I don’t remember a case other than these two … in my career, and that’s a pretty long career,” Gunnels said. “I’m sure it happens sometimes.”

He surmised that after the State v. Potter decision, there was likely some reference to the issue of interviewing represented suspects during training but that the complexity of the issue doesn’t lend itself to a “brief” discussion.

To Leonetti, the cases also demonstrate the minimal constitutional regulation of police conduct when it comes to interrogating suspects.

The appointment of counsel is not a “magical force field,” she wrote, stressing that attorneys must inform their clients that the police may contact them about other crimes they haven’t been charged with. Furthermore, defendants should know that they have the right to have an attorney present.

“(Defendants) have to invoke those rights unequivocally in order for the police to respect them,” Leonetti wrote.

Gerlitz sent a letter on Dec. 30 to two police supervisors — McNaughton and Lt. Mike Kidwell — outlining her concerns about the Jokinen and Carmichael cases . She asked for more education for officers. She received no response until Thursday, a day after The Bulletin contacted the police department to inquire about the cases.

“To send threatening letters and contact the media, that’s just not right,” McNaughton said Thursday.

Gerlitz said she spoke to McNaughton on Friday and said he told her he intended to file a complaint with the district attorney’s office against her. Hummel said his office has no such system for fielding complaints about defense attorneys, and he had not heard of a complaint against Gerlitz. McNaughton could not be reached Friday to confirm this account.

— Reporter: 541-383-0376,

cwithycombe@bendbulletin.com