May
02

Why Do We Permit Police To Play Games With The Truth?

Perhaps the most telling moment in Ken Burns’ new documentary on the Central Park Five case is when a juror explains why he voted guilty.

The kids confessed to the brutal rape of a jogger in Central Park in 1989. Why, he wondered, would innocent kids confess to something they did not do?

The five young men were convicted despite the absence of physical evidence corroborating their involvement. Their confessions, the product of long and secret custodial interrogations, were the centerpiece of the prosecution.

The convictions were ultimately set aside many years after the fact when the man who actually raped the woman confessed. His confession was consistent with the physical evidence that existed at the scene.

Why would an innocent person confess to a crime he did not commit?

Police officers work hard to get confessions from suspects before their targets can “lawyer up.” Although the days of the “third degree” are over, and police rarely resort to physical force to get a confession, the fact remains that lawmen are trained to use psychological stress and pressure to force confessions. The good cop/bad cop routine of Hollywood policing has a foundation in the reality of rapport-building that good interrogators bring to every interview.

There’s something perverse about the encounter between trained lawmen and a frightened suspect. Claims that confessions are coerced by psychological pressure, subtle promises, fear and intimidation are common. They are central, for example, in the Amanda Knox case in Perugia, Italy. The young American’s words were used to convict her of the murder of a flatmate. When Ms. Knox claimed coercion, the Italian court scoffed, and police threatened new charges against her for defaming them. She faces a retrial after lengthy appeals.

What goes on in a police interrogation? How are confessions obtained? How reliable are confessions?

We will never really know because most police departments refuse to electronically record interrogations in their entirety. All too often, officers sit alone with the accused for hours, peppering him with questions, cajoling her to confess, subtly insinuating that confession is, after all, good for the soul.

But police officers aren’t priests; theirs is not the task of caring for souls; they want bodies behind bars. The dark arts of overcoming a suspect’s will to resist are performed in secret. Only when a confession has been practiced and put in proper narrative form is it recorded for later demonstration to the world at large.

What are lawmen trying to hide by refusing to make a complete recording of their treatment of suspects during interrogations? As evidence mounts that innocent people can be coerced into confessing, we ought to require that interrogations be recorded in their entirety. The refusal to record them is a reason to doubt the integrity of those who refuse to submit to transparency.

Few will be concerned about the treatment of Dzhokhar Tsarnaev by federal lawmen in Boston. The suspected marathon bomber was hospitalized after his capture. A special federal group of interrogators camped out at the hospital. Their goal? Question him as soon as he could respond.

A nervous world wondered in the wake of the Boston Marathon bombing whether there were other explosives set in the city. Were the brothers Tsarnaev part of a larger conspiracy, with associated cells ready to strike? Lawmen skilled at interrogation invoked the so-called public safety exception to the Miranda warnings customarily given to a custodial detainee in order to question Mr. Tsarnaev.

Television has made everyone aware of Miranda warnings. You have a right to remain silent. Anything you say can and will be used against you. If you cannot afford a lawyer, a lawyer will be appointed for you.

These rights flow from the Fifth Amendment right against self-incrimination.

The lack of a reading of these rights does not invalidate an arrest.

The rights must be read if the prosecution wants to use statements made by an accused person after he or she has been taken into custody.

Reading the rights is usually done as a prudential matter, just in case an arrestee decides to talk.

In the Tsarnaev case, lawmen refused to read him his rights initially.

They relied on a body of case law that carves out an exception to the requirement to Mirandize a suspect. Officers can both question a person in custody, and use the words he utters in a subsequent prosecution, when there is an immediate threat to public safety and questioning the arrestee will help assess that threat.

We’re told that federal interrogators questioned Mr. Tsarnaev for some 16 hours before he was given notice of his right to remain silent.

According to one report, he initially denied that the brothers had any intent to bomb another location. After hours of interrogation, Mr. Tsarnaev then allegedly told interrogators the brothers were headed for Times Square in New York City. The New York press had a field day with that information. So did New York Mayor Michael Bloomberg. Public hysteria was fanned anew: We need the police to keep us safe from secret threats.

But who keeps us safe from secret interrogations?

I can’t help but wonder whether the reports about Times Square are true. I’d love to see a videotape of the interrogation. But odds are none was made, or, if it was made, it will be deemed too hot to show to the public — national security requires secrecy you see.

Sure, I am afraid of terrorists. But I am more concerned about the ordinary terror of folks all-too-often held in secret and brow-beaten to say things that simply make no sense. Terrorism is rare; secret interrogations are common.

I would have voted to convict the Central Park Five after seeing the final products of their long interrogations replayed in court. Why are we not entitled to see all that police do in the dark of a station house? Why are we afraid of the whole truth, and nothing but the truth?

Related topics: Journal Register Columns
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About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis

Disclaimer:

Nothing in this blog should be considered legal advice about your case. You need a lawyer who understands the context of your life and situation. What are offered here are merely suggested lines of inquiry you may explore with your lawyer.

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