By George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law

On August 6, 2021, federal prosecutors pushed back on claims that government agents tricked a Harvard University professor into making incriminating statements during his interrogation by federal agents. Agents with the Federal Bureau of Investigation (FBI) said a Harvard nanotechnology researcher fighting federal charges of grant fraud never asked to have an attorney present during his interview.  As you probably know, the Fifth Amendment to the U.S. Constitution and U.S. Supreme Court cases such as and Miranda vs Arizona and Gideon vs. Wainright require that a suspect of a crime being questioned must be read their “Miranda rights” and then given an attorney if they request one.

On January 28, 2020, Charles Lieber was arrested for allegedly lying on federal grant forms about his research funding and his alleged ties to China. He claims federal agents ignored his request for legal counsel and then “unlawfully employed tactics of trickery and coerced involuntary statements” from him.  Click here for more information on the case.

What Language Is Considered a Clear Request For An Attorney?

According to prosecutors, FBI agents didn’t violate his Fifth Amendment rights when they continued questioning him despite what they claim was an “ambiguous” statement about having an attorney present to represent him.

Prosecuors argue:  “The defendant’s statement about an attorney at the outset of the interview, ‘I guess, I think probably I should have ah, an attorney‘ was replete with ambiguous and hedging language that could not reasonably be construed as a clear request for an attorney.” This argument seems to beg the question:  “What language is considered a legitimate request for an attorney?”

In supporting their arguments, the government attorneys listed off several similar statements that also fail to meet the standard of an “unequivocal” request to have an attorney. The examples included:  “Maybe I should talk to a lawyer,” “Can I talk to a lawyer first?” “Can you call my attorney?” “I guess you better get me a lawyer,” “I think I need a lawyer,” “I should probably get a lawyer, I guess,” “I think I would like to talk to a lawyer,” and “Maybe I ought to see an attorney.”  Prosecutors argued that the Harvard Professor’s statement was equally vague, in the same vein as the prior statements quoted.

Defendant’s Motion to Suppress Post-Arrest Statements.

In July 2021, the Harvard professor asked a Massachusetts federal court judge to suppress all statements he made after he asked for a lawyer, along with all evidence the government derived from that interview including the videotape of the questioning. Lieber’s attorneys claim that on the morning of the interrogation, he was in physical pain from his battle with cancer, hadn’t eaten yet, and was “blindsided by federal agents who ransacked his office, arrested him and hauled him off for questioning.”  These seem like pretty good arguments.  The defendant argued that the federal agents responded to his request for an attorney by repeating his Miranda warnings until he waived his rights.

Is this the same as repeating back the defendant’s own words to him over and over, like we see many young children do in arguments, until finally the defendant just gives up?  Is this fair?  Does this comply with the spirit of the Fifth Amendment and Miranda?

To view Dr. Lieber’s motion in full click here.

In response, the government argued that his cancer diagnoses had no impact on the voluntariness of what he said that day.  For the government’s full legal arguments and legal authority (Memorandum of Law) click here.

As You Can See From this Case Above, Research Fraud, Grant Application Fraud, and Scientific Misconduct Allegations Can Have Very Serious Consequences.

An accusation, even if later proven to be unfounded, may unfairly tarnish the personal and professional reputation of any scientific, medical or clinical researcher. It can cause the researcher to lose grants, bonuses, and promotions;  his or her employment may be terminated;  and, as in this case, he or she may face criminal prosecution for fraud, theft, or other applicable crimes.

To learn more on clinical research fraud and misconduct, click here to visit website information page. To read one of my prior blogs on this topic, click here.

Contact Health Law Attorneys Experienced in Defending Against Allegations of Clinical Research Fraud and Misconduct.

The Health Law Firm and its attorneys have experience in representing researchers, investigators, academicians, and clinicians who are the subject of clinical research fraud and misconduct allegations, sometimes called “misconduct in science charges (MISC).”  The Health Law Firm and its attorneys also have experience in representing students, employees, researchers, investigators and “whistle blowers” who report such matters including those who become the victim or reprisals and retaliation by the person against whom the report is made.

Don’t wait. Obtain the advice and counsel of experienced attorneys who are familiar with such matters and can assist you before it is too late.

If you are facing allegations of research misconduct, research fraud, medical investigation misconduct, please visit our website for more information at www.TheHealthLawFirm.com or call The Health Law Firm at (407) 331-6620 or toll-free (888) 331-6620.

Sources:

Dowling, Brian. “Feds Say Harvard Prof Didn’t Request Lawyer For Interview.” Law360. (August 6, 2021). Web.

Dowling, Brian. “Harvard Professor Says FBI Tricked Him During Interrogation.” Law360. (July 14, 2021). Web.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law.  He is the President and Managing Partner of The Health Law Firm, which has a national practice.  Its main office is in the Orlando, Florida, area.  www.TheHealthLawFirm.com  The Health Law Firm, 1101 Douglas Avenue, Suite 1000, Altamonte Springs, FL 32714, Phone:  (407) 331-6620 or Toll-Free: (888) 331-6620.  Fax (407) 331-3030.

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