When the Supremes created a bunch of warnings to be given suspects in advance of custodial interrogation, they assumed that would be the end of anyone spilling their guts to the cops.  After all, how much clearer could they be, starting with “you have the right to remain silent.”  Did they really need to include, “use it, you moron”?

Experience says they did, as defendants talk anyway.  In fact, it’s almost impossible to shut them up.  Lawyers tell them constantly to say nothing and invoke their rights, and still they talk.  Yes, Miranda was not clear enough.

But in the County of Queens, New York, former politician, appellate judge and now District Attorney Richard Brown doesn’t want to take any chances.  While the Supreme require the administration of the warning, nowhere do they say that Brown can’t start off with a warning of his own.  From the New York Times :

But in Queens, prosecutors take an additional measure, which is not used in other boroughs. Before an interview is conducted, a prosecutor reads defendants a prepared script, notifying them, among other things, that they will have an opportunity to give as much information about their alibis as possible and that the office will investigate anything about the case they request. The script also instructs defendants that this is their only chance to speak with the prosecutor before arraignment.

After these remarks are read, the defendants are read their Miranda rights, as required before any suspect is questioned.

According to Brown, it’s not that they’re subtly persuading defendants to try to talk their way out of the arrest and prosecution (as if defendants would ever try to do that), and in the process creating statements that “can and will be used against” the defendant.  No, no, no.  Brown cares deeply for justice.

“The purpose of the program is to determine the truth at the earliest possible moment,” Mr. Brown wrote, adding that it did not matter if the suspect’s statement hurt the prosecution’s case.

“It was out of these concerns and with the goal of doing justice that the interview program was born, to join the other things that my office does to make certain that we get it right,” he wrote.

Is this an empathetic guy or what?  Unfortunately, some judges don’t think the use of this script to massage a statement out of the quiet defendant is as thoughtful and fair as Brown does.

The issue received renewed attention after a judge questioned the ethics of the process in Queens, and the district attorney’s office responded by filing a lawsuit against the judge, Joel L. Blumenfeld, of State Supreme Court in Queens.

Justice Blumenfeld said he was concerned that part of the script could be a misrepresentation that persuades the suspect to talk, a sentiment shared by some defense lawyers in Queens.

And the last thing Brown needs is a judge who isn’t on board with the program, leading to the action against Justice Blumenfeld.

The Queens district attorney’s lawsuit against Justice Blumenfeld is an Article 78 petition, a device used to challenge the actions of an administrative agency or court. It asks that Justice Blumenfeld be prevented from discussing, as part of a decision on whether to suppress a statement, whether the interview program violates ethics rules. Queens prosecutors say a suppression decision is not the right forum for that discussion.

In short, Brown is trying to obtain a decision from the Appellate Division dictating what a Supreme Court Justice may state in his own decision.  If this works out, I plan to argue against judges using the word “denied” ever again.  It hurts people’s feelings.

The problem is fourfold, in that it not only serves to pressure a defendant to speak rather than exercise his right to remain silent (“this will be your only chance”), but it misleads a defendant into believing that any exculpatory statement will be in his best interest, when in fact a false exculpatory will most assuredly be used against him, it happens when a defendant (especially an indigent defendant) is unrepresented and the time used to interview the defendant delays the assignment of counsel and his appearance before the court for arraignment. 

And why is Brown so adamant?  Because it works.

Since the program officially began in 2007, of the more than 6,000 people whom Queens prosecutors have attempted to interview, three-quarters gave statements. About a quarter of those made confessions.

Notice that this program has been going on since 2007?  Since that time, not a single statement has been suppressed on the basis of the script.

A judge has never thrown out a statement given in such an interview on the basis that the program was improper, the Queens district attorney’s office said. Several judges, however, have been critical of the procedures used in Queens, especially the prepared remarks.

Of course, judges can be as critical of the program as they want, provided they don’t actually act upon it.  One judge tried, adopting the position of former prosecutor, judge and current judicial hearing officer, Thomas Demakos. Inexplicably, after suppressing a statement, he withdrew his decision and allowed the statement. Go figure.

As for the “organized” defense bar, nary a word of criticism (forget about action) has been heard until this Times’ article:

“What differentiates Queens is the script and the trickery,” said George R. Goltzer, the president of the New York State Association of Criminal Defense Lawyers. “They’re tricking these folks into giving up their rights, and they’re delaying their access to the attorney.”

No doubt that’s got Brown shaking in his boots.  Trickery! Take that, you prosecutorial fiend.

What’s quite amazing is that this procedure, clearly designed to elicit statements from unrepresented defendants during custodial interrogations by carefully influencing their exercise of their constitutional rights and suggesting, ever so artfully, that they have a chance to talk their way out of prosecution (or into prison) has never been properly challenged, approved or rejected. 

And yet the only person doing much of anything about it is Queens District Attorney Richard Brown, who knows how to protect his turf, to stop Joel Blumenfeld from being a judge.

Update:  And a paragraph from a brief by our hinterlands correspondent, Kathleen Casey:

Voluntarily or not, people subject to interrogation talk.  Investigators are trained to bear down on and intimidate suspects with psychological pressure to talk from the first moment of an encounter. See generally Miranda v. Arizona, 384 US 436, 445-458 (1966), in which the Supreme Court recognized, astutely, that “[i]nterrogation still takes place in privacy.  Privacy results in secrecy and this in turn results in a gap in our knowledge as to what in fact goes on in the interrogation rooms.” 384 US at 449.  Police interrogation manuals freely explain that the “‘principal psychological factor contributing to a successful interrogation is privacy — being alone with the person under interrogation'” Id. quoting Inbau & Reid, Criminal Interrogation and Confessions 1 (1962).  The Court documented “representative samples of interrogation techniques” and concluded from them that “the setting prescribed by the manuals and observed in practice becomes clear.  In essence, it is this:  To be alone with the subject is essential to prevent distraction and to deprive him of any outside support.  The aura of confidence in his guilt undermines his will to resist.” Id.

It’s not like this crazy notion is anything new, kids.  We try to shut them up.  They try to make them talk.  Inertia is on their side.