Tuesday, December 4, 2012

False Confessions and the New York Court of Appeals

When Chief Judge Jonathan Lippman stepped into his role, he urged his colleagues to accept more criminal cases.  As an Appeals ADA, I had a vested interest on a couple of levels in Judge Lippman's announcement.  It meant that I would have more opportunities to argue before the New York Court of Appeals, an exciting proposition for any young attorney.  On the other hand, however, I knew full well that appellate courts of discretionary review generally do not announce they will re-examine a whole entire body of law just so they can reaffirm settled precedent.  The import of the Chief's statement was clear: change was in the offing.

While I don't have the statistics in front of me, they do bear out the widely held belief that the Lippmann Court has decided more criminal cases than it did under Judge Judith Kaye.  Some of those cases present more arcane legal issues (such as the propriety of joinder of offenses and post-release supervision), but they do include a headliner in People v. Thomas, and if it takes the case, People v. Aveni.  Both cases wrestle with the hot topic of coercive interrogations and false confessions.

Anyone who has watched Law and Order, or any other crime drama for that matter, has seen the police use trickery, deception and psychological mind games to elicit a confession.  In these shows, the police often misrepresent the strength of their case ("you better talk now and cut yourself a deal because we have DNA evidence and four eyewitnesses who identify you as the shooter"), or play the old good cop, bad cop routine in the hopes that the defendant will confide in the good cop.  On occasion, the police will isolate the defendant emotionally ("your best friend is rolling on you as we speak.  Heck, even your mother thinks you did it.").  Such tactics, however, are not per se improper (see People v. Tankleff, 84 N.Y.2d 882 [1995]).  The salient question is whether the subterfuge is so fundamentally unfair that it could induce a false confession or deny the defendant due process.  See id.  

It should hardly surprise, therefore, that application of this broad legal standard begets different outcomes on similar facts.  Hence, the divergent opinions in Aveni and Thomas.  In Aveni - which I discussed in a previous post - the female victim died of a drug overdose.  The police suspected the victim's husband, and brought him into the station house for questioning.  After reading the defendant his Miranda rights, the police, knowing the victim was dead, explained to the defendant that his girlfriend was at the hospital and it was imperative that the defendant tell them whether the victim ingested any drugs because "whatever medications the doctors giver her now could have an adverse effect on her medical condition."  The police further explained that if the defendant refused to "tell . . . the truth" and "[the doctors] give her medication, it could be a problem."  The detective's implicitly threatening the defendant with a homicide charge if he refused to admit to the killing worked: shortly thereafter, the defendant penned a written statement admitting he killed his girlfriend by injecting her with heroin. 

The Appellate Division, Second Department reversed, finding this tactic so unconstitutionally deceptive that it overcame the defendant's will.  At this point, the Court distinguished a seemingly dispositive precedent in People v. McQueen, 18 N.Y.2d 337 (1966).  As the Court explained:

[In McQueen,] the officers used mere deception by telling the defendant that "she might as well admit what she had done inasmuch as otherwise the victim, who she had not been told had died, would be likely to identify her," but did not threaten her with repercussions if she chose to remain silent.  In this case, by contrast, the detectives not only repeatedly deceived the defendant by telling him that [defendant's girlfriend] was alive, but implicitly threatened him with a homicide charge by telling the defendant that the consequences of remaining silent would lead to [her] death, since the physicians would be unable to treat her, which "could be a problem" for him. While arguably subtle, the import of the detectives' threat to the defendant was clear: his silence would lead to [his girlfriend's] death, and then he could be charged with her homicide."

Meanwhile, in Thomas, the defendant, who was charged with depraved indifference murder for the killing of his four month old son, "was interviewed by police on two separate occasions: for about two hours beginning around midnight on Sunday, September 21, 2008, and the next day, Monday, for approximately seven hours - from around 6:00 p.m. until 1:00 a.m. on Tuesday, when he was arrested."  During the first interview, defendant stated that he might have accidentally bumped the infant's head, but otherwise denied any knowledge or wrongdoing in harming the boy.  After expressing suicidal thoughts, the detectives took him to the local hospital's mental health unit.  Upon his discharge fifteen hours later - the doctors concluded he did not present a harm to himself or others - the defendant agreed to the detective's request to answer more of their questions at the police station.  Five hours later, the defendant confessed to killing the boy.  

The Appellate Division, Third Department found that the defendant's confession was voluntary.  In particular, the Court noted that the length of the interrogation, which spanned over two days and nine hours of questioning, but which included a fifteen hour break in between, was not so long as to render the defendant's statement involuntary.  The Court also found that a detective's misrepresentation - that the defendant better tell the truth about what he did to the boy so doctors could effectively treat him when, in reality, the boy was dead or likely to die - did not overcome the defendant's will because appealing to the defendant's parental concerns would make it more likely that the defendant would accurately describe how he killed the boy.

Hence, Aveni presents the question of the extent to which police may lawfully procure a confession by threatening repercussions against the accused while Thomas raises the issue of how long a police may question a defendant until they overcome his will.  Length of an interrogation and the environment under which it takes place, are the two main considerations courts use in assessing whether the defendant's resulting statement is the product of coercion.  It could be argued that, if the Court agrees to hear Aveni, it will signal a desire to give a more holistic explanation for what constitutes an unlawful interrogation.

Notably, Aveni and Thomas conflict with each other in a fundamental way.  In Aveni, the Second Department held that the detectives coerced the defendant into incriminating himself by threatening him with additional charges and the likelihood of his girlfriend's death should he remain silent.  Yet, in Thomas, the police used the very same tactic - i.e., tell us what you did to the boy so doctors could have a chance at saving his life - but the Court found the threat permissible.

Where, then, will the New York Court of Appeals draw the line between mere deception and coercion?  That line is extremely thin, and the Court, now more than ever, must carefully protect the rights of the accused while also ensuring that law enforcement is not unfairly stripped of the important tools it needs to arrest and prosecute guilty offenders.  This is not an area of law that lends itself to bright line rules so it is questionable whether the Court can provide any meaningful guidance to the lower courts in how they should assess the outer boundaries of a lawful interrogation.  Confusion may result; controversy almost certainly will. I look forward to seeing how these cases will shape the growing body of New York's false confession jurisprudence.  

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