Posted on 01/14/2014 8:09:01 PM PST by Behind Liberal Lines
ALBANY - The constitutional limits of police deception, and the potential for trickery to cause a false confession, seemed to trouble the judges on New York's highest court Tuesday as they heard two appeals challenging nearly 150 years of jurisprudence.
For more than an hour, the judges engaged in a lively give-and-take with defense and prosecution attorneys in two cases that are unrelated except for the fact that both involve defendants who confessed after they were tricked by police. The Court of Appeals has long held that police can resort to deceit and subterfuge to persuade a suspect to confess
But People v. Thomas, 18, and People v. Aveni, 19, arise at a time when it is now well documented that people have been wrongly convicted of crimes, and most of them falsely confessed during police interrogations.
Adrian Thomas and Paul Aveni both claim their confessions were coerced and involuntary as a result of police deceptions. In Thomas, the defendant goes a step further and alleges that his confession was not just coerced, but patently false.
Chief Judge Jonathan Lippman ( See Profile), who has made righting wrongful convictions a priority of his tenure, repeatedly expressed concern over the fairness of deception, and several judges suggested they are looking for a rule or a line distinguishing permissible deceptiveness from unconstitutional coercion. Thomas was convicted in Rensselaer County of second-degree murder on the strength of a confession he yielded after a 9 1/2 hour interrogation.
After repeatedly denying that he harmed his 4-month-old baby, Thomas told detectives he roughly threw the infant on a mattress several times. But the admission came only after police threatened to "scoop up" the defendant's wife, wrongly told him that doctors could save his brain-dead child if they knew exactly what happened, and suggested how the "accident" may have occurred.
With police prompting, Thomas threw a binder on the floor, demonstrating how he had abused his baby. But the defendant immediately recanted the confession.
Medical proof at trial suggested the baby was gravely ill with pneumonia and sepsis. Defense and prosecution witnesses differed on whether the baby suffered a head injury and, if so, whether injury or illness led to the child's death.
The Appellate Division, Third Department, upheld Thomas' conviction and also affirmed Supreme Court Justice Andrew Ceresia's refusal to allow expert testimony on the link between coercive interrogations and false confessions. Ceresia held that the theories of Richard Ofshe, an expert in psychological coercion who frequently testifies in criminal trials, did not meet the Frye standard for admissibility (see Frye v. United States, 293 F. 1013 (1923)).
Defense attorney Jerome Frost was pressed on what exactly he wanted from the court, not just in this case, where he obviously wants a reversal, but in a broader sense. He was asked several times to define a proposed rule.
Frost said Thomas was subjected to a "cruel hoax," namely that his child could survive if only he "bought into" the detective's theory. "You don't threaten a person's vital interests, such as the freedom of the spouse, taking away his children," he said.
The prosecutor, Assistant Rensselaer County District Attorney Kelly Egan, faced by far the most aggressive questioning from the court from the moment she walked to the podium. She didn't get beyond "may it please the court" before questions came fast and furious from every judge on the bench.
"Counselor, what about the officer saying 67 times that we know what happened was an accident and 140 some odd times that he wouldn't be arrested. How do you square that with a voluntary statement on his part?" Lippman asked.
Egan urged the court to look at the totality of the circumstances. "They were certainly applying pressure to him and they wanted him to speak with…," Egan said before the chief judge cut her off. "Well, what is acceptable pressure?" Lippman asked. "What is okay and what is not okay in terms of deception?"
Egan said deception is acceptable as long as it doesn't override a suspect's free choice or create a substantial risk of a false confession. She disputed that police threatened to arrest Thomas' wife.
"They said they would speak to his wife and scoop her up," Egan said. "They did not say they were going to arrest her."
Judge Robert Smith ( See Profile) immediately cut her off. "You're saying, 'We're going to scoop your wife up' is not a threat?" he asked incredulously.
Smith, who had granted leave in the case, pressed Egan on the detective's misrepresentation of the baby's condition.
"What about telling him falsely, 'Your child will die unless you talk to us.' Is there anything that can possibly overbear the will more than that?" Smith asked. "What were they trying to accomplish when they told him the child was still alive?"
Egan said police were hoping that Thomas would reveal what had happened.
"How can it not overbear your will if you think there's even a small chance of saving your child's life?" Smith asked.
Aveni is a Westchester County case involving the death of a woman who died in 2009 from a fatal combination of heroin, ecstasy and the anti-anxiety drug Xanax.
When police questioned Aveni, the victim's boyfriend, they knew the woman was dead but told the suspect she was alive and that doctors needed to know exactly what drugs she had taken to save her life. Police also suggested to Aveni that he would be charged with murder if he didn't provide the information and the woman died.
The Appellate Division, Second Department, unanimously reversed Aveni's conviction, finding that police "not only repeatedly deceived the defendant" but implicitly threatened to charge him with murder unless he confessed
Assistant Westchester District Attorney Raffaelina Gianfrancesco argued that the Second Department erred in failing to consider the totality of the circumstances.
"This confession was voluntary and the deceptive practices used did not fall under circumstances" likely to induce a false confession, Gianfrancesco argued. "Clearly, this is not a false confession case." Aveni's attorney, David Weisfuse of White Plains, said the defendant's Miranda rights were violated when, on one hand, police told his client he could remain silent, and on the other hand told him that it was imperative he tell them what happened to the victim.
Ingrid Effman also argued for Thomas.
@|John Caher can be contacted at jcaher@alm.com.
I had a friend unlucky enough to find a woman’s body while hiking near the Blue Ridge Parkway. They isolated him and told his wife he had been having an affair with this woman. They told his employer the same.
From the dog catcher to the President, THEY ARE ALL LIARS.
Close. Under some circumstances, I suppose that a lie could be “delaying or obstructing” but it’s the obstruction, not the lie itself that is illegal. A fine distinction, perhaps, but material.
You are quite correct that lies told to federal agents are themselves crimes under federal law. You’ll look long and hard to find a similar state law that applies to your local constabulary.
Having been accused of a serious crime I didn't commit I *would* get myself a lawyer and have him/her present during any questioning.However,I *would* answer all questions put to me *regardless* of any advice my lawyer might give.I'd also give them my fingerprints,DNA,computers,phone records,etc,etc...despite any advice my lawyer might provide.
OTOH,if I'm guilty I don't say a word to the cops or turn over *anything* to them without my lawyer's approval....or a court order.
This wall between a police officer and the citizen is growing by the day and with the police paramilitary buildup places most Americans on their guard against the coming assault upon them!
Never speak to a cop, he or she is not you friend. Wait until the 2nd Revolutionary war begins and most Americans will discover just how much they hate most American citizens, especially those who are armed and are individualist who want to be left alone!
Absolutely no disrespect intended. But what’s your reasoning? I’m curious. And, I daresay, educatable.
I suspect that mine is a minority opinion so I don't read any disrespect into those who question or disagree.
But what’s your reasoning?
Simply put...my reasoning behind my attitude when *wrongly* accused is that I'm reasonably articulate and can be pretty convincing when I'm telling the truth about something.That fact combined with a (possibly naive) faith in the system would bolster my basic "if you have nothing to hide you have nothing to fear" philosophy.
My attitude regarding having been justifiably accused...I'm a *terrible* liar,not even slightly convincing and easily tripped up.As a kid,I was always amazed by how my mother could almost always figure out when I was lying (not that I lied all that often).So it's highly unlikely that I could even fool a jury with a collective IQ as low as OJ's first jury.
I bet 99% of the cops in this country have never seen a copy of the constitution. I’ll also bet a huge majority of big city cops can’t read above eighth grade level.
Fair ball. Different strokes for different folks, I guess. Thanks for the reply!
The DA is the case should have been referred to the State Bar on an ethics case.
I have told people who were not in law enforcement the same thing.
"Their goal is not to get “the truth”. It is to arrest someone."
My goal was to try to arrest the person responsible. If, in my mind, there was not enough to make the arrest, I let the person go. I remember a case that another officer wrote and the charges were very serious felonies according to the report. As it happened, the two individuals involved contacted me and I interviewed them both, and I didn't arrest either. I wrote a follow up to the report of what they told me, and in the end, the District Attorney filed misdemeanor charges. The easy thing would have been just to make the arrest and not talk to them. I chose the harder way.
Regardless, the point of the scenario is for you to choose your response to the actions of the police. The police found your missing family member alive. You must choose to thank them or curse them.
But in the scenario your missing family member WAS found - ALIVE - because of the work of the detective who lied to the parolee. Sure the parolee was nervous. It's very common when officers contact parolees.
Choose your response. Thank the detective or curse him. It's a simple choice.
Regardless, the scenario stands as is. The detective found your missing relative alive. Do you thank him or curse him.
No, it doesn't, because it presumes no other possibilities and is therefore a false premise. It is artificial because the cop would not be fool enough to try it under a Constitutional justice system; else he would lose the conviction. Yet to play your game by the Constitutional standard, I would thank him for my relative safety and curse him for getting the crook off with his clumsy handling of the case having produced inadmissible evidence, leaving the perp free to trouble my family and his in retaliation. Your cop would be prosecuted and land in jail. I would then console his family pursuant to the perp's calculated retribution having shot the SOB for trying it with mine.
You lack creativity, which is why you resorted to the easy, familiar, and dishonest gambit.
Citizens are not sheep. The justice system has made the people into sheep. It was not originally intended to run this way, and didn't for most of the first century of this nation's life until communist lawyers started to mess with it with the goal of a police state making citizen law enforcement virtually impossible. They succeeded. Apparently you like it that way. Unfortunately, it has made police officers perjuring themselves a daily occurrence (and yes, I do know police officers and this is from what they say, even in tony Silicon Valley).
It’s a hypthotical
mark
Where did you learn that? You aren't paraphrasing Aristotle. You're getting this from someone else or making it up yourself.
Reading Ethics. It's a condensation of about three pages.
You aren't paraphrasing Aristotle. You're getting this from someone else or making it up yourself.
Nope.
You don’t care to discuss it?
Aristotle: "If, then, there is some end of the things we do, which we desire for its own sake (everything else being desired for the sake of this), and if we do not choose everything for the sake of something else (for at that rate the process would go on to infinity, so that our desire would be empty and vain), clearly this must be the good and the chief good. . . . Since there are evidently more than one end, and we choose some of these (e.g. wealth, flutes, and in general instruments) for the sake of something else, clearly not all ends are final ends; but the chief good is evidently something final. Therefore, if there is only one final end, this will be what we are seeking, and if there are more than one, the most final of these will be what we are seeking. Now we call that which is in itself worthy of pursuit more final than that which is worthy of pursuit for the sake of something else, and that which is never desirable for the sake of something else more final than the things that are desirable both in themselves and for the sake of that other thing, and therefore we call final without qualification that which is always desirable in itself and never for the sake of something else.
Now such a thing happiness . . "
That’s part of it.
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