In about a month, the Second Battle of the Lies* will be fought in Albany. The battle comes in the appeals of Adrian Thomas**, the trial having been a fiasco of experts that disgraced anything remotely resembling reason. The appeal is gearing up to be a battle of amicus as well, with the District Attorney Association of New York fighting for hegemony.
The first battle was fought in 2001, when the New York Court of Appeals rejected its historic jurisprudence of providing greater protection under Article 1, Section 12, of the state Constitution than the Supreme Court under the Fourth Amendment. In People v. Robinson, New York adopted the holding of Whren v. United States.
This was a watershed decision, where the court upheld “pretext stops,” a benign phrase that meant that police could use a lie to eviscerate a person’s right to be left alone. Lies were elevated above constitutional rights, because it was an effective law enforcement tool.
Appellate Squawk provides the short version of the Thomas case:
Next month, the case of Adrian Thomas will be heard in the NY Court of Appeals. Mr. Thomas was sentenced to 25 years to life for the murder of his infant son despite overwhelming medical evidence that the baby had suffered no abuse but had died of natural causes. Why was the father convicted? Because of his confession extracted by 9 hours of relentless interrogation deploying all the standard tricks and lies with some threats thrown in. All recorded on videotape.
This is the case that the District Attorneys Association of the State of New York (DAASNY) has chosen for an amicus brief to the Court of Appeals praising deceptive interrogation tactics as a “desirable investigative tool.” The brief is a product of the Manhattan DA’s Office (under the leadership of DAASNY President Kathleen Rice), which found deceptive interrogation tactics extremely desirable in the Central Park jogger case. A minor problem with this fabulous investigative tool was that it extracted false confessions from five teenage boys who spent years in prison as a result.
The amicus brief submitted by the DAASNY couches its attack smoothly.
No involuntariness should be found simply because the police by one means or another manage to persuade a guilty defendant to make “a declaration naturally born of remorse, or relief, or desperation, or calculation.” Culombe v. Connecticut, 367 U.S. at 576. A defendant’s statement will be deemed involuntary only if, considering all the relevant circumstances, “his will has been overborne and his capacity for self-determination critically impaired.”
Falling back on the gift of Miranda warnings, DAASNY argues that once a suspect has waived his right to remain silent, which people continue to do despite our best efforts, whatever follows is “strongly indicated” to be voluntary.
Indeed, there may be times when deception is a desirable investigative tool. After all, it is a legitimate and laudable goal of law enforcement to interrogate suspects and to persuade the guilty ones to confess.
The problem, of course, is that deception has proven just as useful a tool for getting the innocent ones to confess as well. What DAASNY calls “persuasion” is what people of good will and reasonable intelligence would call carefully crafted psychological manipulation and coercion.
Innocent people confess to acts they didn’t commit. Most people who aren’t in the position of an innocent person under interrogation after a tragedy refuse to believe it can happen, but it does. Of that there is no doubt, as the proof is conclusive. Knowing this only too well, amicus tries to sneak this under the tent by flattery.
All of this is not to say that courts must endorse the use of deception. But the typical deceptive interrogation stratagem should not be presumed to be coercive. The identification of a deceptive stratagem should be seen as the starting point of an inquiry into the totality of the circumstances, not the end of it – not all deception is coercive, and even the inappropriate use of deception comprises only one coercive circumstance among the many that relate to voluntariness. Trial judges are well equipped to make these inquiries, to find those police practices that are inappropriately deceptive to be a negative component in the weighing of the totality of the circumstances, and to make rulings that the appellate courts can review. [Emphasis added.]
Among the many problems is that trial judges are exceptionally poorly equipped to discern coercion, both by training and bias. That doesn’t seem to prevent judges from believing in their magical ability to understand things beyond their ken, or just as troubling, shrug them off when they’re inconvenient.
But nothing in the DAASNY’s brief addresses the core issue at stake, and despite the efforts to reduce the complex problems to a self-serving simplistic nullity, no suspect consents by his waiver of the right to remain silent to being lied to, manipulated and coerced. To trivialize the effects of carefully honed interrogation techniques designed for the specific purpose of eliciting confessions by comparing them to whether a suspect has been given a drink or allowed to go to the bathroom is so outrageously absurd as to defy reason.
The goal of interrogation is to obtain a confession, regardless of whether it’s true or false. And lies, manipulation and coercion has proven remarkably effective at doing so.
The Constitution does not exist to assure law enforcement’s authority to be most effective at the risk of innocent people being manipulated. It exists to protect the rights of the People not to be coerced into false confessions by police. It protects the right of the People to be left alone.
We may have lost the first battle of the lie, but the Court of Appeals has another chance to reject the rampant use of lies at the expense of constitutional rights. It made a terrible choice before, but it can do better this time. Let New York reject the jurisprudence of lies.
* It may well be argued that this isn’t the Second Battle, but the Second Millionth Battle. I’ve chosen to call it the second. You may disagree, but not here.
** The Thomas appeal is joined with that of Paul Aveni, whose confession was suppressed.