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.
This was a simple question of gratitude. It had nothing to do with whether or not it went to court. You pass on gratitude, but you fail on the law. Under my scenario, I would make the point that the parolee was not under arrest nor was he being detained, because that WOULD definitely require Miranda and would raise the issue of admissibility of any statements he made. I would absolutely testify that he gave the information voluntarily. A conviction would stand all the way to the USSC.
Yes. Out of the several people I put the hypothetical to, only one replied that they would thank the officer for locating a missing relative. Only one. So I hypothesize that their hate of the police outweighs their love for a missing relative.
If a cop found my lost relative, and that is a big if, because more than likely they would simply accuse the first person they could, I too would thank him
There once was a guy named Nicolai Berdayev . . .
You are a saint among mankind.
you forgot the sarc tag
Same way with job applications, I doubt that I have ever seen a job application that did NOT say that furnishing false info was grounds for termination if discovered after hiring but I doubt that I ever accepted a job offer that did not turn out later to involve some misrepresentation on the part of the employer and sometimes blatant lying on the part of the person doing the hiring.
Obama is running a close second.
LOL - No I didn’t.
OK, now I have an hour or so to address your "correction." I am working 16-20 hours a day writing another book and restoring our land. I don't have time on FR for much more than catching up on news and a few quips and certainly not the time to go back and read the whole of Book V. Realize, I read the Ethics 25 years ago. The conclusion I cited was what I regarded at the time as the most valuable thing I learned from it, and is what I remembered from reading it.
Look at Aristotle's language. He is admitting that "ends" are constructs, valuable only for positioning in conversation as a good. They do not functionally exist. Why? When one selects an end it is a means; wherein it does not function as an "end." While one maintains said "end" is one chooses yet again to maintain it. Thus, it still remains a means. In fact, said "end" is never achievable in perfection any more than is a purpose. This is as distinct from a goal, which is an achievable thing. I can have a goal of buying a book, with the supposed end of reading it. When I have paid for the book and taken possession, I have achieved that goal. By contrast, "reading it" as an end entails that I have mastered said book in total, far beyond its author. Getting through the process of reading to the end of the book is a goal, not an end. Mastering it is not achievable to perfection; I must keep choosing to pursue it, at which point it becomes yet again a means as there must be a purpose to my pursuit. Else I could decide that I will read it but once and take my lumps for my misunderstandings, which then becomes a goal. Aristotle can't get away from the principle no matter how he tries. Goals are attainable. Purposes are not. Ends function only as means and he effectively admits it. They are virtual, and not representative of virtue.
There are functional attributes to this distinction. Look at the posting of Respond Code Three. He asserts that it is permissible to deceive to attain an arrest. My reply is that it builds within the officer the propensity to deceive in order to gain convictions (for which the officer is rewarded), which too often entails an act of perjury. It inculcates dishonesty in law enforcement, which is a terrible hazard to liberty because the officer focuses upon incarcerating the "bad guy" as an "end" to which the means have clearly ceded beyond consideration. The assertion that such was necessary presumes no other alternative. One need not even consider positing said alternatives once the "end" has justified the means. It makes for intellectual laziness, habitual dishonesty, and false imprisonment. Injustice served ends up used to justify a backlash, especially among the habitually criminal.
Aristotle talks his way around the conundrum he sets for himself. It's too bad really, as his first observation that ends function as means was absolutely brilliant. This is the failure of rationalization as one's only means, to presume that reason alone is sufficient to achieve the good.
When one lives in the Kingdom of G_d there is instead but one purpose that remains tantalizingly unrealizable: to bring glory to He who has no such need, with our own baggage out of weakness in faith being our biggest challenge. Hence the need for repentance as the first requirement to enter the Kingdom, with reconciliation as the second, followed by an act of faith. Such cleansing of baggage in pursuit of the knowingly impossible leaves one in the "here and now" which is what the Kingdom is to live.
You were correct in pointing out that my conclusion as to what he effectively admitted is probably not correctly paraphrased. Twenty-five years of musings on the point had clouded that recollection. I would have had more to say about why I reached this conclusion had I concluded that conversation with you was worth the time to go back and read Book V as I have a half dozen technical papers and a couple of books to read so as to finish the section upon which I am working.
Every art and every inquiry, and similarly every action and pursuit, is thought to aim at some good; and for this reason the good has rightly been declared to be that at which all things aim. But a certain difference is found among ends; some are activities, others are products apart from the activities that produce them. Where there are ends apart from the actions, it is the nature of the products to be better than the activities. Now, as there are many actions, arts, and sciences, their ends also are many; the end of the medical art is health, that of shipbuilding a vessel, that of strategy victory, that of economics wealth. But where such arts fall under a single capacity- as bridle-making and the other arts concerned with the equipment of horses fall under the art of riding, and this and every military action under strategy, in the same way other arts fall under yet others- in all of these the ends of the master arts are to be preferred to all the subordinate ends; for it is for the sake of the former that the latter are pursued. It makes no difference whether the activities themselves are the ends of the actions, or something else apart from the activities, as in the case of the sciences just mentioned.
Takeaway: There are kinds of ends. Some are products, some are activities (maintained for a time, if you will).
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. Will not the knowledge of it, then, have a great influence on life?
Takeaway: There is a hierarchy of ends. An end can and also a means to a higher end, but not infinitely so. Ends are subordinated. (The most final end is often called the summum bonum).
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.Takeaway: A distinction between kinds of ends does not alter the language. A subordinate end is no less an end than a final end. Some are simply more final than others.
Now such a thing happiness, above all else, is held to be; for this we choose always for self and never for the sake of something else, but honour, pleasure, reason, and every virtue we choose indeed for themselves (for if nothing resulted from them we should still choose each of them), but we choose them also for the sake of happiness, judging that by means of them we shall be happy. Happiness, on the other hand, no one chooses for the sake of these, nor, in general, for anything other than itself.Takeway: Happiness is the final good.
You say: ends do not functionally exist. But Aristotle does speak of ends a that exist, such as a boat, health, and wealth. And the highest end, happiness, is a state of being. Do I not exist? Is my happiness an illusion? I'll leave it to other readers who have better insight why you are denying existential reality to the purposes of our actions, whether speaking of ends attained or yet to be attained. They exist, as a purposed end and as an attained end.
You say goals are attainable and purposes are unattainable. First, Aristotle calls both goals and purposes ends. Some are just more final than others. I don't think Aristotle is concerned about unattainable ends. Of course, someone like yourself could argue that happiness, is unachievable, because it is imperfect and temporary. (I smell the ghost of Plato.) But I have admired Aristotle because he teaches a human or provisional ethic, knowing full well we are not omniscient. His ethic is circumscribed. Knowing in part is also part of Aristotle's ethics. Are people happy after they die? They might be, he says. Hard to tell, he says, and then goes on. This view seems to make humility rather than certainty the crucial criterion for knowledge. Much like Socrates. Aristotle is to be admired outlining a workable ethic inside a mystery. There is a great line of his in the Nicomachean Ethics: "it is absurd to think that Political Science or Prudence is the loftiest kind of knowledge, inasmuch as man is not the best thing in the world." This makes law provisional, practical.
Actually, you raise a serious metaphysical conundrum for the possibility of a human ethic without omniscience. Neither you or Aristotle have it, calling into question our ability to know the highest good. But Aristotle is an ethic of the possible--it's what makes you happy.
You claim that for Aristotle reason alone is sufficient to achieve the good. But I never considered Aristotle an enlightenment rationalist. Even Plato is more the intellectualist, just as the famous painting by Raphael symbolizes. Could you please show me the passage where Aristotle prefers Plato's intellectualism?
Carry_Okie, thanks for your reply. I jumped in as a matter of principle. Getting Aristotle right is the prerequisite to quoting him. I know this discussion backs away from the theme of original thread, but if a mistaken understanding of someone else is used to justify our view of criminal justice, I trust that I have achieved a good purpose in finishing this reply. AMDG!
Let us return to the scenario. What the officer did in the scenario was to construct a story to recover a missing relative. No mention of an arrest or prosecution was made because that wasn't the point, and you know it. You assumed things not stated. Now, deception to obtain an arrest is another matter and will not be dealt with by me on this thread.
But know this, the scenario was MY construct, and because it is MY scenario, I can designate any outcome I desire. My outcome will be that all actions of the officers were constitutional and if subjected to intense judicial scrutiny, will be upheld eventually be the USSC. Good night.
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