The limits of deception: an end to the use of lies and trickery in custodial interrogations to elicit the "truth"?

• Author: Heyl, Dorothy
• Position: Miscarriages of Justice

The State of New York has a long and ignominious history of wrongful convictions related to false confessions. From George Whitmore, a nineteen year old eighth grade drop-out who was watching Reverend Dr. Martin Luther King Jr.'s "I Have a Dream" speech in Wildwood, New Jersey at the time two "career girls" were murdered in a Manhattan apartment, (1) to the five young minorities wrongfully convicted for raping a jogger in Central Park, (2) scores of innocent people have confessed during custodial interrogations in New York to committing brutal crimes. (3) In fact, after Illinois, New York has the most wrongful convictions based on false confessions in the nation. (4)

And the shocking number is likely to grow. In Brooklyn, the District Attorney's Office has reopened as many as fifty trial convictions involving a detective named Louis Scarcella, whose overbearing and allegedly illegal tactics may have sent innocent men to prison. (5) A panel has been appointed to review the convictions (6) and the Legal Aid Society is coordinating with a large group of Manhattan law firms that have taken on individual cases involving Scarcella. (7) Case files relating to Scarcella have been subpoenaed and are being reviewed by a state supreme court justice. (8) As chronicled in the New York Times, Scarcella and others in Brooklyn precincts appear to have used especially coercive techniques to induce confessions in the 1980s and 1990s. (9) But the problem of false confessions is not limited to Brooklyn. In fact, none of the six cases involving disputed confessions heard by the New York Court of Appeals over the past three years involved interrogations by Brooklyn detectives. Interrogations in these cases: Warney v. State of New York, (10) People v. Bedessie,n People v. Guilford, (12) People v. Oliveras, (13) People v. Aveni, (14) and People v. Thomas, (15) took place (respectively) in Rochester, Queens, Syracuse, Bronx, Westchester, and Rensselaer Counties. The phenomenon of unreliable, coerced confessions is as broad in New York State as it is deep and longstanding.

That may well change, after a landmark decision by the Court of Appeals this term in People v. Thomas. (16) While the court broke no new ground conceptually--following its own and U.S. Supreme Court precedent--the court announced that some police interrogation tactics, when used in combination, cross the line between "voluntary" admissible confessions and "involuntary" or coerced inadmissible confessions. (17) In particular, three types of deception used in the Adrian Thomas case were found by the appellate division to pass muster under the conventional analysis of voluntariness, and defended by the District Attorney's Office, as perfectly acceptable uses of deception by the police officers. (18) The three lies told to Thomas with which the court took issue were

that his wife would be picked up for questioning; that Thomas could save his child's life by confessing; and that the police viewed what happened to his son as accidental. (19) After this decision, police departments will need to exercise caution in conducting interrogations, and should not assume that any form of deception is permissible. (20)

1. PEOPLE V. THOMAS: BACKGROUND

   Adrian Thomas, a twenty nine year old African-American man from Douglas, Georgia, with a tenth-grade education, met his wife Wilhemina Hicks of Troy, New York, at a chicken processing plant in Douglas where they both worked on the production line. (21) They married, moved to Troy, and together had seven children. (22) The last two, twins, were born two months premature, when Mr. Thomas was twenty five years old. (23) The family lived in a two-bedroom apartment, with the five oldest children sleeping in one bed, and the twins sleeping in bed with the parents. (24) The apartment was neatly maintained and the children clean and well behaved. (25) There was no history of hospitalizations or medical records indicating suspected child abuse of any of the children. (26)

   On the evening of Saturday, September 20, 2008, one of the twins, Matthew, was feverish, wheezing, and crying excessively. (27) The parents cooled him down and comforted him, and put him to bed with his twin brother at around 11:30 p.m. (28) At around 3:00 a.m., Matthew woke up with a fever, and Mr. Thomas prepared formula for the twins. (29) After the feeding, Mr. Thomas fell asleep, assured by his wife that Matthew's fever had gone down. (30) The next morning, Mr. Thomas was awakened by his wife, who told him that "the baby is not moving [or] breathing." (31) As his wife performed CPR, he called 911 and the baby was taken in an ambulance to the emergency room at nearby Samaritan Hospital. (32) There, he was found to have hypotension and extremely low blood pressure, white blood cell count, and temperature. (33) The emergency room physician ordered a blood test and gave septic shock as the most likely explanation of her differential diagnosis. (34) Matthew was transferred to the pediatric intensive care unit at Albany Center, arriving there shortly after noon on Sunday, September 21, 2008. (35) A CT scan found fluid collections in his brain, but no skull fracture. (36) That afternoon, the baby was put on life support. (37) Even though the CT scan found no skull fracture, a physician at Albany Medical believed initially that Matthew's symptoms and condition were the result of a skull fracture. (38) He told the Troy Police, "This baby has a fractured skull. This baby was murdered." (39) He said, "The baby was slammed into something very hard like a high speed impact in a vehicle." (40)

   On Sunday evening, the Troy Police and Child Protective Services (CPS) visited the Thomas apartment, where Mr. Thomas was caring for his children and took the six children from the home. (41) At midnight, the police returned to the apartment and Thomas agreed to accompany them to the police station. (42) At trial, the prosecution contended that the interrogation that followed was not "custodial," triggering no Miranda rights. (43) Presumably, since Thomas was given Miranda warnings, the Court of Appeals did not express any view on the custodial nature of the interrogation. (44)

   Over the next two hours, the police questioned Thomas in a room set up for video monitoring on the events leading up to Matthew's hospitalization. (45) At around 2 a.m., Thomas expressed a suicidal urge, and the police had him committed to a psychiatric ward. (46) When he was released the next evening, the police resumed the questioning for over the next seven hours, videotaping throughout. (47) Thomas signed three statements over the course of the interrogation, admitting in the last one that on three occasions "he [had] 'slammed' Matthew down on a mattress just 17 inches above the floor." (48) Counsel for Thomas sought unsuccessfully to have the statements excluded from evidence at trial, and Thomas was convicted, following a jury trial, of murdering his son. (49) He was sentenced to a term of twenty five years to life and had served over five years of the sentence before the Court of Appeals' decision, which ordered a new trial with the statements excluded from evidence. (50) On June (12), (2014), Thomas was acquitted by the jury in the retrial, and is now a free man. (51)

2. PSYCHOLOGICAL INTERROGATION, MIRANDA AND THE VOLUNTARINESS STANDARD

   The psychological techniques employed in the interrogation of Adrian Thomas have been used for decades. These techniques are designed to convince a person who is believed to have committed a crime that it is in his or her best interest (rather than a self-destructive decision) to give in to police demands for a confession. (52) Social scientists specializing in the phenomenon of "false confessions" have explained that "[a]n interrogator strives to neutralize the person's resistance [to confessing] by convincing him that he is caught and that the marginal benefits of confessing outweigh the marginal costs." (53) To accomplish this, the police isolate a suspect from family and friends in a police-dominated environment that is "stress-inducing by design." (54) The interrogation is "structured to promote a sense of isolation and increase the anxiety and despair" arising from continued assertions of innocence. (55) The strategies to achieve this result with presumably guilty suspects are explained in police manuals, the most prominent of which is Inbau & Reid, Criminal Interrogations and Confessions, published in 1962, revised over the years, and still in print. (56) The psychologically based Reid Technique, which has replaced the brutal means of persuasion found unconstitutional in Brown v. Mississippi, (57) has been widely adopted by police departments (58) and has not been viewed by courts as impermissibly coercive. (59) That is, courts have generally found that confessions elicited using the Reid Technique are "voluntary," absent some other circumstance indicating that they were coerced and thus "involuntary." (60)

   To understand why an overtly manipulative method of obtaining confessions has usually been viewed as not "coercive," it is necessary to understand two developments in the jurisprudence on the due process rights of defendants in criminal cases (and, correspondingly, rights under New York Criminal Procedure Law, which has followed the same pattern). (61) The first development is Miranda v. Arizona, (62) and the related case of Colorado u. Connelly. (63)

   In Miranda v. Arizona, the Supreme Court acknowledged in dicta that police-dominated interrogation can "undermine the individual's will to resist and ... compel him to speak where he would not otherwise do so freely." (64) However, even while explaining how the Reid method psychological techniques can overcome a person's will to refrain from self-incrimination, the Supreme Court addressed the problem of psychologically coercive techniques only by seeking to eliminate the "police-dominated" atmosphere needed for...