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.
Cops are allowed, even encouraged, to lie to you to get what they want. If you lie to them, it’s a crime.
Therefor, it’s safe to assume that all cops are liars.
Looks like a pretty clear violation of the spirit of the Fifth and Sixth Amendments:
In all criminal prosecutions, the accused shall... be informed of the nature and cause of the accusation;
But this case is not about what is allowable under the United States Constitution. The states can give citizens more rights than the ones enumerated under the federal Constitution. As such the issue here is whether or not New York State’s Constitution provides greater protection for citizens then does the federal rule
I want an attorney should always be the only answer
Sounds like the wussification of New York State is in full swing.
Coddling criminals! Disgusting!
What are those wussy judges going to do when they have to preside over a Police Sting Operation?
The FBI KNEW Richard Jewell was a lowly security guard who idolized them:
After initially sweating him, they pretended to drop their suspicions and then warmly buddied up to him over the course of some hours.
AND THEN:
They claimed they were making a training video, and they needed some character that would play the role of a perp who broke down after some questioning about “a bombing”, and then confessed to the crime.
“Would ya feel up to that, just to, like, help us out with that silly task, Dicky, ole buddy ole pal....?”
And Richard Jewell was within a whisker of doing just that. Then he remembered his college buddy from over a decade ago had become a lawyer, and Richard called him up:
“GET OUT OF THERE, FAT-A$$, IT’S A TRAP...!”
And his old roommate from college was right —the FBI intended to frame Richard Jewell for the Olympic Park Bombing, under pressure from Bill Clinton, who basically ORDERED an arrest.
THAT is your FBI.
“I want an attorney should always be the only answer”
I once read where one guy made that request, and the cops sent in an ASSISTANT DA. Well, he DID get an attorney, didn’t he? ;) Forgot how the appeals court ruled, but that trick doesn’t seem to happen any more, so maybe the cops were barred from employing it....
cops lie to me all the time and I am a lawyer
they really are twisted
I know the facts before I talk to them but they still lie, they are tiresome and think they are smart
but they are just not
once one of them offered to lie on the stand
I pled that case out. I was not putting a liar on the stand and I never trusted that dude again
If so, I’m guessing that he wasn’t allowed to discuss the case with the police or other DAs.
It is certainly the prudent thing to do.
Listen to the lawyers, do not talk to cops.
“Fabrication Of evidence during an investigation does not, by itself, iolate the Constitution” -Elena Kagan, then Solicitor General of the US (2009)
“We do not see how the existence of a false police report, sitting in a drawer in a police station, by itself deprives a person of a right secured by the Constitution and laws.” (Pottawattamie vs. McGhee)
Really? Where is it a crime to lie to the police? And what is the crime? Certainly not the case in California, but perhaps in other states. Would be curious to learn where this obtains.
You have a young family member who is suddenly missing. You call the police and an officer comes out. After you give the officer the information he requests assistance from the detectives. A detective arrives and listens to the information. As it turns out the detective recently had contact with a guy who lives in the area who is on parole for child molestation. He locates the guy and of course the guy nervous.
On a hunch the detective tells the guy that he was taped on a remote video taking the child. He tells him that the life of the child is important and he should tell where the child is. The guy hesitates, and then tells the detective the child is in a house a few blocks away. He leads the detective to the house and the child is found. The child is alive and basically ok but still needs medical treatment.
Do you - thank the detective, even though he LIED to the suspect?
Do you - curse the BEJESUS out of the detective because he lied to the suspect?
I remember reading about that case. The judges were not amused and unanimously threw the case out. I’m sure they didn’t come out and say that the ruse was stupid, but I’m sure that they had to be thinking it.
Second, I'm going to paraphrase Aristotle from the Nichomachean Ethics: 'No one selects an end unless it is a means to something else. There are no ends; there are only means.'
It is our means that distinguish us. While it is ethical to lie to save a life, it is not if there is an alternative.
Here is a proposed rule:
1. It is permissible for police to lie about the circumstances of the crime in order to solicit a confession.
2. It is not permissible for police to lie, or to make false threats, about collateral matters where doing so might induce a person to confess to the crime for reasons other than his own guilt.
3. In any criminal prosecution in which police are found to have lied about a material matter to a defendant, and the defendant is subsequently acquitted, the police shall be required to reimburse the defendant for the reasonable attorney’s fees and costs incurred defending himself against the charges for which he was indicted.
“Coddling criminals! Disgusting!”
Huh?
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