Adrian Thomas Wins, But What Of The Rest Of Us?

The initial reaction to a huge win is always the same: Elation. It doesn’t happen often, and it means one more innocent life is snatched from the belly of the beast. And so the Court of Appeals decision in People v. Adrian Thomas, suppressing his confession made after hours of coercive interrogation, was cause for celebration.

Inasmuch as we conclude that defendant’s inculpating statements were not demonstrably voluntary, we reverse the order of the Appellate Division affirming defendant’s conviction (93 AD3d 1019 [3d Dept 2012]), grant defendant’s previously denied motion to suppress those statements, and direct a new trial.

Sure, it would have been sweeter had the Court phrased it differently, that the “inculpating statements” were the product of manipulation, coercion, compulsion, but “not demonstrably voluntary” will do. After all, without  the confession, there is no evidence of guilt. The “new trial” is a formality. They’ve got nothing.

The opinion by Chief Judge Lippman goes on at length, and in detail, about the interrogation.  Somebody was made to watch the video over and over, counting the number of times the chief interrogator, Troy Police Sergeant Adam Mason, lied, twisted, fed, cajoled, threatened and lied again to Thomas, a distraught and unsophisticated father whose baby was, as far as he knew, dying in a hospital room.

The premise of the interrogation was that an adult within the Thomas-Hicks household must have inflicted traumatic head injuries on the infant. Indeed one of the interrogating officers told defendant that he had been informed by Matthew’s doctor that Matthew had been “slammed into something very hard. It’s like a high speed impact in a vehicle. This baby was murdered . . . This baby is going to die and he was murdered.”

The interrogators, however, repeatedly reassured defendant that they understood Matthew’s injuries to have been accidental. They said they were not investigating what they thought to be a crime and that once defendant had told them what had happened he could go home. He would not, they reassured over and again, be arrested. When, however, defendant continued to deny having hurt Matthew, even accidentally, the officers falsely represented that his wife had blamed him for Matthew’s injuries and then threatened that, if he did not take responsibility, they would “scoop” Ms. Hicks out from the hospital and bring her in, since one of them must have injured the child.

By the end of the initial two-hour interrogation, defendant agreed to “take the fall” for his wife. He said that he had not harmed the child and did not believe that his wife had either because “she is a good wife,” but that he would take responsibility to keep her out of trouble. (Broken into paragraphs for readability.)

And that was just the first two hours of questioning. The second period of interrogation lasted another seven and a half hours.  The opinion goes on to list how many times lies were repeated, how many inducements to falsely agree were offered, how the love of his wife and child would overcome his will, the truth, and reality to give Mason the only thing he wanted: a confession.

And with this opinion, the Court of Appeals has unanimously confirmed that false confessions happen.  And in doing so, falls far short of what could have been accomplished in this decision.

The Court did not hold that lying during interrogation was wrong, and indeed, held just the opposite:

The choice to speak where speech may incriminate is constitutionally that of the individual, not the government, and the government may not effectively eliminate it by any coercive device. It is well established that not all deception of a suspect is coercive, but in extreme forms it may be. Whether deception or other psychologically directed stratagems actually eclipse individual will, will of course depend upon the facts of each case, both as they bear upon the means employed and the vulnerability of the declarant.

While the Court held that the coercion in Thomas exceeded the permissible, and that the prosecution failed to prove beyond a reasonable doubt that the statements “were not products of coercion, either physical or psychological,” the opinion offers no guidance as to where the line is drawn.

So what we’re left with is that cops can continue to employ the Reid Technique, continue to lie, manipulate, deceive and coerce, but there is some unknown point beyond which it all becomes more than the law allows, rendering the statements the product of psychological coercion.

The hopes for this case were big, starting with reversal for Adrian Thomas himself, but going much farther, to a point where some limits might be applied to the use of sophisticated techniques crafted for the sole purpose of obtaining a confession from an unwitting suspect.  False confessions are one of the most disturbing problems of the system, as jurors’ “common sense” ignorance prevents them from believing it happens.

It happens. Just because someone who has never been the target of the psychological manipulation of the Reid Technique doesn’t comprehend how or why doesn’t change it. Jurors don’t get it, as it doesn’t conform to their projections of what they would do.

But jurors can be taught, you say?  An expert can enlighten the jury and make them understand how and why people falsely confess?  Yes, that’s true, but then the trial judge, after permitting the prosecution to put on its “expert,” Paul Cassell, to testify that false confessions are malarkey, refused the defense’s efforts to do the same. The trial judge decided that the prosecution’s expert was all the jury needed, and refused to allow an honest-to-god false confessions expert, Richard Ofshe, to testify.

Had Ofshe been allowed to testify, perhaps the case would never have made it to the Court of Appeals because the jury would have acquitted, recognizing that the only evidence against Adrian Thomas was the product of lies, manipulation and coercion, and that the confession was worthless.  But Ofshe wasn’t allowed to testify, and the jury convicted.

On this aspect of the appeal, Judge Lippman wrote:

Inasmuch as we conclude that defendant’s confession should not have been placed before the jury, there is no need to address whether defendant’s expert should have been permitted to testify about the phenomenon of false confession and the interrogation techniques employed to elicit defendant’s admissions.

And so we celebrate a big win, a good win, for Adrian Thomas, while the law of the State of New York remains as mired in fuzziness as it did before.  And when the next coerced confession is permitted to come before the jury, and the next defense expert is precluded from testifying, the next defendant will suffer the same wrongful conviction as Adrian Thomas, and hope that he too eventually gets a good win as well. Or he will just rot in prison for lack of guidance on how to end the plague of false confessions.

[I've written numerous posts about this case, which can be found here.]

52 comments on “Adrian Thomas Wins, But What Of The Rest Of Us?

  1. Kathleen Casey

    Good for Adrian Thomas. But we should have gotten a rule and that was the tone of the panel’s questions. What happened among them panel since to broker this was very ordinary I’m guessing. Thinking like legislators, politicians, not jurists.

    EW testimony for the jury about involuntariness, as a backstop against wrong suppression decisions, would be due process, protecting the right to a fair trial. But no, won’t happen.

    Second-rate legal thinking from the premier common law court of the country. And what’s wrong with paragraph breaks?

  2. Vincent

    Scott, what does our system have in place to punish the law enforcement agents who do this to suspects as a way to either make their job easier OR win a local election.

    John Douglas, the former FBI profiler wrote a great book about a few cases where this type of conduct was demonstrated by investigators, forensic experts, prosecutors and judges. Why doesn’t out system punish this type of conduct when it is clearly evident?

    1. SHG Post author

      Punish? I don’t think you appreciate the gravamen of the decision. Sgt. Mason’s zealousness may have exceeded what the Court found tolerable, but they never suggested he did something wrong. He just did his job too well.

    1. SHG Post author

      Perhaps you can use your own time to read the opinion to find the answer to your question? It’s in there. (Hint: Sepsis)

          1. Byron Warnken

            No. But it makes a far more significant point when the individual is actually innocent of the crime. I’m sure you don’t see it that way, but you’re the choir. You don’t need the preaching to.

            I’m the masses. I need the sermon.

            1. SHG Post author

              This isn’t television, where, as the jury returns it’s verdict, the camera cuts to the scene and shows you what really happened. This is real life. Having read the briefs, the better evidence of cause of death by far was the defense’s side that the infant died of sepsis.

              So why didn’t the jury acquit? Because bolstering the head trauma view was the confession. Without the confession to a head trauma, the med evidence was very weak.

              And yes, whether he was innocent or guilty, a coerced confession is still coerced, and no, it doesn’t matter if he was guilty or innocent. I understand that the masses only care about rights when it’s theirs at risk, and couldn’t give a rat’s ass about hanging anybody else, but do you expect me, here, to embrace such a view, that only those who can convince you of their innocence deserve constitutional rights? Come on.

              According to your website, you do criminal defense (although I see you’re also general counsel to the Maryland State Troopers). I can’t believe that you don’t know better.

            2. Byron Warnken

              Of I course I know better. However, you paint his innocence on top of the coerced confession. You advocate in small ways, such as failing to state where he spent the 15 hours between the two interrogations. You are an advocate. I get it.

              I wish I had more to go on than your reading of both briefs with respect the factual guilt or innocence. I know it’s not relevant. It’s relevant to me.

            3. SHG Post author

              That it’s “relevant to” you scares me. And don’t try to attribute my position to advocacy. It’s not. There is nothing controversial about affording constitutional rights to the guilty and innocent alike, and that you don’t agree (and try paint me as the advocate) tells me that you have no respect for constitutional rights and believe the end justifies the means. I find that intolerable.

            4. Byron Warnken

              That’s not what I was attributing to advocacy, or are you unable to distinguish? People’s perceptions of the rights afforded us by our Constitution matter almost as much as the rights themselves. In this particular situation, it would help the American people climb aboard the obvious position (Constitutional rights are for all) if he was in fact incontrovertibly innocent. You may not want to acknowledge that, but you already know it, as your description of the “facts” shows.

            5. SHG Post author

              On the contrary. you are trying to play the troll here as if nobody is aware of that. You’re new here, so I’ll forgive you your remarkably ignorance, though I can’t promise others will be as kind.

              We are painfully aware of reality, which is why we try to educate rather than pander to stupidity and ignorance. This is what makes your comments foolish. It’s easy to note that the American public gets most of this wrong, but it’s hard to change that and make it better. If you want to be the poster boy for mainstream stupidity, then you’ve certainly taken the right path here. I hope to accomplish something better.

            6. Rick Horowitz

              It is amazing to me that someone who apparently practices law — and if I got it right, even practices some criminal defense — doesn’t understand that it’s not a matter of “I don’t have proof that he’s innocent, therefore I can’t really get on board the whole ‘what happened to him is wrong’ wagon.”

              The burden of proof, last I checked, is legally still on the prosecution to prove a case; not on those who confess after being coerced to prove their innocence.

    2. vin

      Byron, Is this question yours? Is it the first question you asked as part of this discussion? Is it derived from a curiosity about the innocence of the accused, or more accurately, can we infer that it is derived? Is it also true that what you are curious about is often the same as what you care about?

      Seriously man. Do you have this kind of memory loss during a trial?

      Why would anyone who read your initial entrance into this post as anything other than you think innocence or guilt matters? To say nothing of the fact that I said, perfectly clearly, that the boss here took offense at even the possibility that it mattered. Ergo, and I am with him, it doesnt matter!!!

      1. SHG Post author

        Had Byron chosen to make a point by noting how unfortunate it is that non-lawyers will be less concerned with the violation of Adrian Thomas’ constitutional rights if they feel he is guilty, then that wouldn’t have been controversial. We would all commiserate with such foolishness, and what a shame it is that most people are concerned only with the ultimate question, ignoring the importance of assuring that constitutional rights were respected in the process.

        But that’s not what happened, and that’s not what Byron has argued since.

        1. vin

          “Perhaps” is a dangerous word to use as the first word in your opening assertion or, as in this case, question.

          Its condescending.

          To me, a lawyer would understand the implied tone behind such words.

          1. SHG Post author

            Not at all condescending. An intentional swipe: Want to know something, go look. It’s not my job to spoon feed every dope with a question. It’s not like you’re paying for this, you know.

  3. pml

    Of course this means there will be less video taping of interagations, they won’t turn thr recorders on untill they are ready to have people receite the confession. If there was no video, I could see this would have gone the other way.

    1. SHG Post author

      The only reason this case became a cause célèbre was because of the video. It would have died with a unanimous affirmance at the Appellate Division otherwise, never to be heard of again.

  4. RKTlaw

    [Ed. Note: This was meant as a reply to Bryon Warnken.]

    If you do criminal defense, stop now. Really, is it that hard to understand that issues of guilt or innocence should have no bearing on analysis of Constitutional rights?

  5. John Barleycorn

    The appellate judges had the descriptive center piece of the quilt they were knitting staring them right in the face all along too.

    “Depraved Indifference”

    It’s a shame they didn’t choose to use it. Far be it for them to start infringing on the dainty sensibilities of the prosecution and cops though. I guess?

  6. Byron Warnken

    To the educated and the knowledgable, guilt or innocence has no bearing on Constitutional analysis. Pretend, for a moment, I am not that. I would imagine it won’t be difficult for you folks to do.

    Now it matters. Now understand that I the American populace. Worse, I am increasingly the American Judiciary. I am also those two other branches as well. I often forget their names and which one is which.

    And in case you folks haven’t noticed, they repealed the Constitution.

    And while you folks engage in your heady dialogue about the sliver of the Constitution that might not have been repealed, I’m in it for the story. Did he do it. Sorry for being such a human and actually wanting to know. Many coerced confession cases have underlying factual guilt. I thought this one was different. Maybe it is. When I actually asked my original question, it was not to poke. I actually wanted to know. Where is the evidence of his innocence? I suppose: “After all, without the confession, there is no evidence of guilt” will do for me.

    And Mr. RKTLaw, if I judged you as such after reading your two blog posts, I might suggest you cease practicing law as well. See I “work around murder and mayhem and those that are involved in it” also.

    For what it’s worth, if you’re a criminal defense lawyer and you’ve never considered Mr. Blackstone and his ratio and wondered, if just for a second, what if it’s not true, then I’d question your ability to be a criminal defense lawyer. It’s only in the questioning that we find our truth.

    1. Kathleen Casey

      You are the American populace. What do you think? Is his guilt probable? Is there reasonable doubt? If so can you explain why? If not, can you explain why?

        1. John Barleycorn

          Go Byron! I will have to seriously consider you for my summer CDL action figure line.

          What do you think of having “Severing The Chaos Prevention Squad” as the description I put on your box?

          I will have to do some reading and check out some of your cases. I can’t believe the networks haven’t called you to do a reality TV show. I see that you get around with all of that network news analysis you do. Your sentencing predictions and critiques are just riveting.

          I can just see you down on one knee nearly in tears picking up a tattered copy of the constitution, during the trailer of your reality TV show, and then cutting to a wide shot of you marching up the stairs to the Supreme Court with a voice over triumphantly stating “not even this court can circumvent human truth”. Close that with a shot of you at a Red Socks game and you could change the world my friend.

          I bet you have some serious insight into the finer nuances of preventing disability claims being denied LEO’s too. I am looking forward to reading those. What are your thoughts on the Blackstone ratio in this arena?

          I also look forward to hearing some of your play by play analysis on the First Rule of Policing and other human interest stories that comes up around here from time to time.

          Our esteemed host is just mean and has no sensitivity to the critical importance order plays in our society never mind him. The ordinary masses like myself will bring the scotch tape and the scotch. You should come back and visit as often as your busy schedule allows.

          If you stick around, I am sure you could even give our esteemed host some pointers that you have learned over the years.

          I bet you have seen some crazy and surreal stuff eh? I have heard that when a LEO is under suspicion for potential administrative or legal discipline that prosecutors and other LEO’s will push the ethical boundaries to ensure a conviction.

          How do you deal with it?

          My hats off to you and I must say your annunciation and emphasis while speaking is outstanding. I will include a link of you, displaying your impeccable presentation and communication skills so all the mean people that hang out around here have more robust appreciation of your mojo.

          It will take a few months of research and development but I will send you off a few of my action figure prototypes of you when they are done. A licensing contract for your review will also be enclosed.

          1. SHG Post author

            “What I like best about representing the police is that they are the fine line between an orderly society and chaos.”

            Perfect.

          2. Byron Warnken

            Thanks for the compliments, my whisky drinking friend. I will certainly pass them on to their intended recipient – my father. He is too balanced, reasonable and kind for the Internet. I’m the family troll. He and I are actually both relatively short. Keep in mind when casting the super hero.

            That said, I think I may have found a blog worthy of my father’s time. I’ll pass it along. (Not meant for you, dear host. I know how you hate compliments.)

            I don’t want to make people more stupid. People generally seem to want to make themselves more stupid. I’m simply aware of it, as you are. People read, think, listen and respond in two second bites.

            Personally, I don’t mind having an anecdote or two regarding Constitutional rights or the lack thereof. Mr. Thomas’s innocence makes the anecdote better. (I tell my anecdotes to those who might appreciate them. Non-lawyers.)

            My personal cocktail party conversation aside, what does it take for Americans to have an opinion on Constitutional rights? In our two second bite world, (http://blog.simplejustice.us/2013/12/21/the-snowden-prize/) seems like an eternity ago.

            And before you go blaming me for hijacking your thread, all I asked was where I could find some specifics on underlying factual guilt or innocence. “Appellate briefs is the best I have” may have sufficed. Of course, “It doesn’t matter you j@ck@ss” was another way to go with it.

            1. SHG Post author

              I see you’re sequence-challenged, or seem to have posted a few mind-numbingly stupid things in the middle in a drunken stupor that you’ve since forgotten. Someone once explained, if you don’t want to be called an ass, don’t be an ass. I commend it to you.

            2. John Barleycorn

              No worries Byron the Hulk was short too besides throwing a Jr. in will improve the marketability.

              So you are Byron Jr.( B) not Byron Jr.( L) I take it? And just for the record how many generations of juniors are we dealing with here?

              Just out of curiosity, seeing as how this is the intertubes and all why don’t you post with your initial when you are out riding around the unincorporated territories without an alias? You could end up riding into a card game in Dodge City someday and I am certain you wouldn’t want any confusion as to just which Byron you are.

              So, Byron( B) when are you going to put out some marketing videos of your own? You can’t keep hiding behind the old man forever. I think your cntrl/alt/delete six-shooter is ready to dance to the clanking of your own spurs.

              Cheers and don’t worry our esteemed host is meaner than a snake if he does not have a nutritional breakfast but he rides a pretty fine horse just don’t spit chewing tobacco on his back porch and expect him not to notice although you can carry on and swill a few beers on his back porch from time to time as long as you don’t piss off too many of the scholarly types that hang out around here.

              And never, and I mean never, assume he can’t shoot straight. I once saw him purposefully ricochet a bullet, from that old lever action 1873 ctl/alt/delete rifle he sometimes carries around, off a boot spur, which hit a rock no bigger than the size of my thumbnail which ricocheted off the hook of a hanging pot full of dandelions beside this guy’s head as he was walking down the boardwalk. Which put a fistful of dirt right on the back brim of the guys hat and as he turned his head to look where the shot came from every last clump of that dirt rolled off the guys hat and went down his left boot.

              Figured you ought to know.

            3. Byron Warnken

              Just B, no Jr. I generally ride around without an alias because it seems a little presumptuous of my folks to force me to call myself anything by other than my given name. And they don’t much mind what I call myself. As for likelihood of confusion, we both quell it at the slightest hint of it. Neither of us want to dilute the others trademark.

              I had the hint of what was going on around here. I certainly only intended to throw a few back, not spit on anyone’s porch!

              And in reading this whole thread again, I can suggest only that the mob mentality is a dangerous thing. My words have been twisted. It’s as though I’ve said a thing I didn’t say! And no one even read me my rights. Isn’t that a thing?

              Ahh, so that’s what you guys mean.

              (Anyone, please, before replying again or attributing the loss of hope of America directly to me. Please read http://dictionary.reference.com/browse/sarcasm.)

              And one last thing before I go…for those of us who are lawyers…do you not believe in the law? Could you not always represent the other side?

            4. SHG Post author

              You have the right to remain silent, but I have no duty to warn you of this. It’s a bit too facile to see this as a “mob mentality,” rather than individuals all coming to the same conclusion about what you wrote. Maybe the fault isn’t others’, but yours?

              In any event, to answer your question, of course we believe in the law. We have cops and prosecutors who comment here, without attack. You did something different (and no, I won’t repeat it), and got the reception it deserved. Nothing more.

            5. vin

              Sir you seem like a decent guy. Have zero idea if you are a good or a bad lawyer. But Ive now read this post along with the comments a few times. Whether you meant it or not, your question about the true innocence or guilt, given that you are on a DEFENSE lawyers blog, was truly not smart. And, what the masses believe, ignorantly or not, should have no bearing on your opinion as a law professional, which should be, people have rights, PERIOD. We cant be flogged because the mayor is having a bad dad, whether we did something wrong or not.

              Seems to me that the brains behind this operation was rightfully offended, and scared, that you think truth matters as it pertains to rights.

              Isnt our entire legal system based on the presumption of innocence so that we, the truly innocent cant get flogged without cause?

              Frankly, I am ok with the guilty getting off when law enforcement screws up. Why? Because it means I am protected.

            6. SHG Post author

              Whoa. While it might have been better received on, say, a cop blog, the law doesn’t change according to whose blog it is. The law says that everyone, guilty or innocent, is entitled to constitutional rights. Prosecutor, defense lawyer or judge, it’s the state of the law, and any lawyer suggesting otherwise deserve to be spanked.

              Lawyers have an ethical duty to help people understand the law, and that makes it wrong and unethical to pander and reinforce ignorance. In other words, it’s not okay anywhere, not just here.

            7. vin

              Agreed, I just feel like it adds stupid frosting on the ignorant cake because this is infact a defense lawyers blog.

            8. Byron Warnken

              “And, what the masses believe, ignorantly or not, should have no bearing on your opinion as a law professional, which should be, people have rights, PERIOD.”

              Who said what the masses believed had a bearing on my opinion as a law professional? I find what the masses believe to be interesting, a kind of science experiment. What the masses believe only has bearing on my opinion (of potential tactics) as a marketer, a storyteller. It’s not relevant to me as a lawyer and it’s not relevant to me as a human being (other than to, 85% of the time, head the other direction).

    2. SHG Post author

      We’re all well aware of Blackstone’s ratio, which has nothing to do with your behaving like an dumbass. People try to make people smarter. You seem to indulge people’s stupidity, as if you’ve found some magic secret to being persuasive. It’s not that everyone isn’t aware of the fact that people aren’t inclined to embrace constitutional rights. That you think you’ve stumbled on a secret is just mind-numbing. It seems impossible that you could be that big a moron.

      As points go, we would all be better off without straining to make people stupider, especially while suggesting they have had the singular epiphany that people may not love the Constitution too much.

  7. BNeeson

    Huge problems with the prosecution medical case in People v. Adrian Thomas are well presented in the documentary “SCENES OF A CRIME.” The film shows how medical mistakes fueled the focus on Adrian Thomas, and it was only after he confessed that medical tests revealed his son’s terrible septic infection. The film also features long & revealing excerpts of the grueling interrogation. But you can also sift through the NY COA’s filings in the case for more detailed information – just check out their website, and download hundreds of pages. With these resources available at your fingertips, there is really no basis for pleading ignorance about whether the prosecution had a solid medical foundation for its claims about homicide. But if you’d rather not know, that’s up to you.

    1. SHG Post author

      Yeah, we’re kinda familiar with that movie around here. I’ve deleted the promotional part of your comment as it’s not allowed and, frankly, quite inappropriate.

      However, your comment misses Byron’s point. He’s not interested in the answer to his question, watching Scenes of a Crime or reading the papers in the case. He’s stumbled on a magic secret that he thinks no one else knows: that “regular people” don’t really care about the law or constitutional rights. They only want to know if people are guilty or innocent.

      And so, Byron’s point is that I should “prove” Adrian’s innocence here and pander to people’s prejudice and ignorance. Byron thinks that would be more persuasive to people discinlined to thought than trying to illuminate why it’s irrelevant, and why “proving” innocence isn’t usually possible or an appropriate burden.

      In other words, Byron argues that people are too stupid to get it (as he thinks we must be as well for not appreciating his brilliance) and so the path to persuasion is to indulge people’s ignorance, play to it, and perpetuate it. Byron wants to make people stupider, because he thinks it’s the way to go. And indeed, he does it well.

  8. Kee Kee

    Mr. Greenfield – I wish to say I enjoy your blog and your wit. I have been following the Adrian Thomas’ case here and elsewhere. I guess you could say I do my research. It seems to me that if Mr Warnken has to ask for proof of Adrian Thomas’ innocence, he has not. The State’s cause of death was blunt force trauma/abuse. Abuse was first suspected due to the misdiagnosis of a skull fracture. There was no evidence of that. No bruises, abrasions, broken bones, etc. According to what I have read, there was no mention of sepsis in any of the Albany Medical Center Hospital medical records, nor the autopsy report.

    In fact, I believe the sepsis was discovered by defense medical experts. When cross examined the medical examiner said he didn’t think it was important to mention that the baby had a deadly infection. At the same time he (and the state’s other experts) admitted septic shock presents the very symptoms they associated with the non existent trauma. I am not a lawyer. I am the ordinary masses Mr. Warnken appears to mock and I wish not to be made stupider.

    Instead, I wish Mr. Warnken would enlighten me and explain why the medical examiner and the hospital would neglect to mention the sepsis. By Mr. Warnken’s logic, any parent that brings a child to a hospital with an illness whatever it might be should be suspected of abuse. And if that child should die, the parent should be charged with murder. Afterall, what proof would they have of their innocence. Lack of any signs of abuse and the presence of a deadly infection are not enough for Mr Thomas, I suppose it should not be for any one of us.

    I am not nearly as smart as Mr. Warnken and don’t get all of his fancy schmancy talk, but that is what I was able to gather from his comments. Perhaps Mr. Warnken could explain what evidence he expects Mr. Thomas to provide in addition to what he has already provided.

  9. josh

    My denoument was last year, when I called the cops after being attacked in a bar, wanting to charge the fuckers with assault, and ended up spending the next 12 hours in jail, including a cut lip from getting my face smashed up against a brick wall by one of the jailers. Prior to this, I thought cops were grand, “the fine line between chaos and order”.

    I’m a white guy in my thirties; a software architect. I have an (ex) girlfriend who’s a lawyer. I know the mayor, and many local business people. My family is very community oriented – a cousin is the president of the local little league team, my aunt runs an important charity, etc. So it was a little like that judge getting chopped in the neck in NY for no reason, only worse, because I actually got cuffed and taken in, too.

    They took my jacket and shoes, and put me in a 60deg room at 11pm. It was brightly lit, without a clock. It’s surprising out disorienting that is. I was never told my rights. I tried to sleep but there was no bed. I tried to meditate and wait it out, but it was impossible to keep warm, and I shivered violently for much of the time. I asked to call my lawyer, and was ignored. Eventually I screamed to call my lawyer and was ignored. The only response I got from a jailor was laughter, and when I asked “what right do you have to keep me in here?” he said, “because I’m on this side of the door and your on this side,” and laughed.

    I was never issued a ticket or arrested, as far as I know. When they let me out the only thing the officer said was, “I don’t want you in my jail anymore.” He said it with hate.

    This all happened to me last January, and for many months I told no-one. I was ashamed. I was in *jail*! But lately I keep reading more and more stories about police around the country abusing people. That Peretz case in SF really inspired me. I was not alone. And I was not alone, too, in fearing most the incredulous, apathetic public. Before last January, I was one of them – the last thing on my mind was the criminal justice system, or the behavior of police. Sure, I was vaguely aware of some troubling incidents with a SWAT team breaking into a suburban home, killing the family dog, tracking the blood everywhere and laughing about it. And that killing of the homeless guy in Orange. Or that woman pleading with a judge to protect her from the sexual assaults of the officer beside her, who was then arrested by him for “false accusations”. Heck, Rodney King is still in the zeitgeist. But compared to global warming, or the health of the economy, or the NSA stuff, it just didn’t seem that important.

    But you know what, it is important. In fact, I’m coming to realize that it’s the most important issue facing America today. My brush with the (so-called) criminal justice system was a real eye-opener, and has inspired me to think deeply about what it means to be an American, just as Bush’s torture policies and domestic spying and preemptive war doctrine made me think deeply. This is clearly not a bad apple problem, but a problem with the system. The simple truth is that I will never, ever call the police for anything, because the likelihood of me or someone I love getting hurt or themselves arrested by the people who were supposed to help is just too high. I do not trust their judgement – they are thugs in uniforms. I do not trust that that system will hold LEOs accountable for their actions. I do not trust that LEOs will hold each other accountable (in the January incident, the other office just stood and watched as his partner decided to take me in because I had the chutzpah to insist on filing charges, or at least filing a report on my assailants).

    Warnken is an apologist, but he’s hardly alone, and he’s the one that makes it *feel* so much harder. He’s the one that, if I make the mistake of for one moment believing that he speaks for the American people, makes me lose hope. It makes me think that I really am alone, without options, and with only unsympathetic, “tough shit” responses from the community at large – not just to my story, but to the whole class of stories. Well, there’s either the cynical “the system is broken, tough shit, only morons call the cops for any reason”, or the Warnken, “it’s not about how the police do their jobs: that’s boring. let’s focus on measuring just how bad the person is that they abused. Because everyone knows that abuse is justified if the abused is a bad person it’s just common sense!”

    I’m writing this because I want to DO something. I want to change the way police do their jobs. I want to see real accountability. I want to impose mandatory surveillance on all officer encounters with the public. I want to educate the public about why “innocent until proven guilty” is one of our most important principles and should serve as the backbone of police interaction with the public. I want to live in a society where I don’t have to fear the police, and where my children shouldn’t either.

    In my dark moments, I can’t believe anything will change – the system is just too perfectly defended. Indeed, it’s defense-in-depth. The first layer is ‘other cops’, who don’t want to “snitch” on their fellows. Second is the police leadership who have learned over the last few years that to admit any fault is death at the polls. Third biased judiciary – the judges are part of the system, and think much like the Warnkens do. Finally, there is the slumbering, ambivalent public, blissfully unaware of what’s going on, of how things have changed. They don’t notice that, now, cops have their hand on their gun when they do traffic stops. I notice that, now.

    1. SHG Post author

      Ordinarily, I wouldn’t allow a comment like yours to post, as it’s off-topic and a long personal story, but you needed to get it out and that’s good. Read some old stuff and you’ll find you aren’t alone. It’s all here.

      1. josh

        Thanks, I appreciate your forbearance. But the connection with your original article, and the ensuing thread, is, more succinctly, that there seems to be a tremendous disconnect between how people perceive American police methods, and actual American police methods. Our police do things routinely that I believe most Americans would only associate with third world despots. The Adrian Thomas case is merely the most egregious example of this disconnect.

        Crime happens, but police methods endure, which is why I share your disappointment that the outcome of this case was merely the exoneration of Thomas. Clearly the police deserved a severe reprimand for this behavior as a second outcome. But I would go further than disappointment, and say that I am disgusted and enraged that we are, as a people, so beaten down that we accept only the exoneration, and indeed feel lucky and grateful that the system worked to give us even that. That we who have had contact with the system have lowered our expectations to such depths, and have done so rationally, based on the system’s incredible, almost implacable power, is the greatest tragedy of all.

        1. SHG Post author

          Yeah, perhaps I’ve been unclear. I’ve dealt with all of this in detail, and often many times, here. As someone who has been involved, you are one of about, say, a million people here who has come to the same epiphany. In other words, you think you are telling us something new and valuable, because you are new here. The rest of us, not so much. We’re all well aware, far more so than you could possibly realize at this point.

          This is a law blog, and I’m a criminal defense lawyer. If you want to comment again, please limit it to the topic of the post, and please bear in mind that you likely know less than anyone else here about the subject. It’s not that your thoughts aren’t welcome, but focus them, deal with specific, discrete issues and bear in mind that just because you’re new here, that doesn’t mean everyone else is as well. Thanks.

  10. AOC

    Agree with your assessment – a missed opportunity. In some ways, the Thomas decision could hurt if its outrageous facts are misinterpreted by lower courts as an appropriate yardstick for judging when cops have gone too far.

    “But then the trial judge, after permitting the prosecution to put on its “expert,” Paul Cassell, to testify that false confessions are malarkey, refused the defense’s efforts to do the same. The trial judge decided that the prosecution’s expert was all the jury needed, and refused to allow an honest-to-god false confessions expert, Richard Ofshe, to testify.”

    I enjoy reading your blog so please don’t think I’m just looking to fact-check. Paul Cassell did not testify at the trial. He testified at a Frye hearing.

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