Tagged: police investigation

An Act of Courage: Bronx Criminal Court Judge John H. Wilson

Former United States President Theodore Roosevelt Jr., once stated that “justice consists not in being neutral between right and wrong, but in finding out the right and upholding it, wherever found, against the wrong.”  Recently, Bronx Criminal Court Judge John Wilson heeded Roosevelt’s command of justice when he took the courageous step in barring  Assistant District Attorney Megan Teesdale from ever appearing in his courtroom as a result of her failure to provide exculpatory evidence to a defendant charged with rape. Judge Wilson, who formerly served as an Assistant District Attorney in Bronx County and graduated from Pace Law School in 1986, ruled that ADA Teesdale had taken part in one of the worst Brady violations that he had witnessed after serving more than nine years on the bench, bringing about great disgrace to both herself and her office.

During pre-trial proceedings, the defense had requested that the prosecution turn over all notes regarding the alleged victim’s initial statements to police. However, the prosecution rebuffed the defense’s request claiming that it did not possess any interview notes or exculpatory evidence that it was required to produce under its Brady obligations.  Judge Wilson explained that the prosecution’s representation “turned out, unfortunately to be a lie,” as the prosecution’s file had contained memorialized statements of the victim initially telling police that the sexual encounter with the defendant was consensual.

Judge Wilson noted that the prosecution’s failure to honor its Brady obligation amounted to “gross negligence,” requiring that the case be dismissed in its entirety. He further informed ADA Teesdale that

You are going to leave this courtroom and you are never going to come back. You can’t appear before me anymore. I’ll tell you why, because I cannot trust anything you say or do. I can’t believe you. I can’t believe your credibility anymore. The only thing a lawyer ever has to offer is their integrity and their credibility, and when you’ve lost that, there is no purpose in your appearing before this court.

Judge Wilson deserves great praise for his bravery to faithfully uphold the law. His actions are truly exemplary, and should be followed by all judges when dealing with prosecutors that play “fast and loose” with their Brady obligations. It has become all too common for prosecutors to go unpunished when failing to honor their duty to provide exculpatory evidence to the defense. Judge Wilson’s decision to bar ADA Teesdale from his courtroom was not only proper in this case, but was done in the best interest of the criminal justice system. Indeed, the only thing a court has to offer is its integrity and its credibility, and when it loses that, there is no reason to believe that there will ever be “justice and liberty for all.”

As a result of Judge Wilson’s decision, one must not wonder too far as to whether ADA Teesdale will be more likely to ever commit another Brady violation; or if she will take her Brady obligations more seriously. I would propose that there would be far less Brady violations if all judges took the approach that Judge Wilson did in barring the culpable ADA from ever appearing in his court. For that reason alone, he deserves this honorary salute.

Related Readings:

NY Court of Appeals Upends Police Tricks Behind Interrogation Doors

False confessions have long been recognized as one of the leading causes of wrongful convictions. Case studies have proven that an individual’s confession to a crime is not always indicative of the confessor’s actual guilt. In fact, a number of external factors may lead an individual to falsely confess to committing a crime. According to studies conducted by the Innocence Project, many false confessions have been prompted by conditions in which the confessor was placed under  duress during police interrogations, or was prodded to give false information as a result of police coercion or subterfuge tactics. Laurie Shanks, clinical professor of law at Albany Law School in Albany, recently explained that “[t]here’s a perception that people don’t confess to crimes they didn’t commit, [b]ut the science is that absolutely they do.”

Yet, the rule of law determining the voluntariness of a confessor’s statement, when such statements are adduced by police subterfuge, has remained a vital and perplexing issue within our criminal justice system. The admissibility of such confessions has been a hotly debated topic among criminal defense practitioners and prosecutors, irrespective of recent case studies proving the fallibility of such confessions. In spite of recent findings, prosecutors have continued to hold the upper hand when arguing that such confessions are voluntary and admissible at trial, relying on the proposition that certain police ruses are essential to conducting meaningful interrogations of suspects, and vital to the police’s ability to expeditiously solve certain crimes.  Under this guise, the Courts have heeded to the government’s “demands” and have consequently become more laxed in uprooting such questionable police tactics –noting that confessions are “essential to society’s compelling interest in finding, convicting, and punishing those who violate the law.” McNeil v. Wisconsin, 501 U.S. 171, 181 (1991). As such, courts around the nation have routinely accepted that “deceit and subterfuge are within the ‘bag of tricks’ that police may use in interrogating suspects.” State v. Schumacher, 37 P.3d 6, 13-14 (Idaho Ct. App. 2001); See also United States v. Bell, 367 F.3d 452, 461 (5th Cir. 2004) (observing that deception is “not alone sufficient to render a confession inadmissible”).  

In New York, however, it appears that the courts are becoming less reluctant to address this significant legal issue , and more inclined than many of their sister state courts to fully determine on a case by case determination whether a confession could be deemed involuntary when police misrepresentations work to overcome a confessor’s will. See N.Y. Criminal Procedure Law § 60.45 [2][b][i]  (treating as “involuntarily made” a statement of a defendant that was  elicited “by means of any promise or statement of fact, which promise or statement creates a substantial risk that the defendant might falsely incriminate himself”).

Notably, the New York Court of Appeals has recently made clear that not all police subterfuge is acceptable during the interrogations of suspects. People v. Thomas, 2014 WL 641516 (N.Y. 2014). In Thomas, the defendant had been prodded by police to take responsibility for injuries suffered by his four-month-old son, who died from intracranial injuries purportedly caused by abusively inflicted head trauma, in order to save his wife from arrest. The Court held that the defendant’s confession,  admitting that he had inflicted traumatic head injuries on the infant, was involuntary as a result of “[t]he various misrepresentations and false assurances used [by] [police] to elicit and shape [the] defendant’s admissions.” Id. The court explained that the police officers false representations to the defendant had manifestly raised a substantial risk of false incrimination. The Court was extremely troubled by police lying to the defendant “that his wife had blamed him for [their] [son’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.” Id.  The Court also observed that “there [was] not a single inculpatory fact in defendant’s confession that was not suggested to him. He did not know what to say to save his wife and child from the harm he was led to believe his silence would cause.” Id.

The New York Court of Appeals also recently affirmed the Second Department’s decision in People v.  Aveni, 100 A.D.3d 228 (2d Dep’t 2012) where the appellate court  had also found that the defendant’s confession was coerced  as a result of the police repeatedly deceiving the defendant about the status of his girlfriend’s health condition. In Aveni, the defendant had been prompted by police to make incriminating statements about the herion overdose of his girlfriend. During interrogation, the police had falsely told the defendant that his girlfriend was still alive, “and implicitly threaten[ed] him with a homicide charge if he remained silent.” The court explained that the police made the defendant believe that “the consequences of remaining silent would lead to the [girlfriend’s] death, since the physicians would be unable to treat her, which “could be a problem” for him.” Id. In upholding the Second Department’s decision, the NY Court of Appeals observed that “[t]he false prospect of being severely penalized for remaining silent, raised by defendant’s interrogators, was, in the court’s view, incompatible with a finding that defendant’s confession was voluntary beyond a reasonable doubt.” People v. Aveni, 2014 WL 641511 (N.Y. 2014).  It noted that “the Appellate Division used the correct legal standard in its reversal, [and] [i]ts determination that the potential to overwhelm defendant’s free will was realized was plainly one of fact.” Id.

Steven Drizin, clinical professor at Northwestern University School of Law in Chicago commented on the recent decisions in New York, noting that “[t]he court did not set any hard and fast rules, but it did issue some clear warnings that these tactics will be scrutinized closely in future.”  He explained that until now “[t]here’s been too much deference given to police officers, and they’re accustomed to having free rein with suspects behind interrogation doors.”

Related Readings

Actual Innocence: Landmark Decision Changes Post-Conviction Landscape in New York

A landmark decision by the Appellate Division, Second Department has given new hope to individuals wrongfully convicted of a crime in the state of New York, and unable to obtain post-conviction relief due to the procedural restraints statutorily imposed under New York Criminal Procedure Law. On January 15, 2014,  the Appellate Court Second Department handed down its epic decision, becoming the first New York Appellate Court to recognize a freestanding claim of actual innocence, reaffirming that the incarceration of an innocent person is inherently unconstitutional.

In People v. Hamilton, the Court ruled that a defendant’s claim of actual innocence may now be recognized as a “freestanding” ground to vacate a judgment of conviction pursuant to NY CPL 440.10. (1)(h), which provides that  a court may vacate a judgement if obtained in violation of a defendant’s constitutional rights. Notably, the Court directed  that a defendant’s claim of “actual innocence”  may be pursued  independently of the other grounds for relief prescribed by New York’s post-judgement statute, and can even be supported by evidence that may fail to survive the “newly discovered” criteria imposed under NY CPL 440.10(1)(g). The Court explained that the defendant may present a claim of actual innocence based upon  new evidence, whether or not it satisfies the Salemi factors or is barred by other legal hurdles, such as prior adverse court determinations.

The Court  directed  that relief based upon an actual innocence claim should only be granted when the court is presented with clear and convincing evidence that the defendant is innocent. The court reasoned that

Mere doubt as to the defendant’s guilt, or a preponderance of conflicting evidence as to the defendant’s guilt, is insufficient, since a convicted defendant no longer enjoys the presumption of innocence, and in fact is presumed to be guilty.

The Court also explained that an exploration into the merits of a case may be necessary when a prima facie showing of actual innocence has been made by a defendant. In this case, the court found that Hamilton had made such a showing to require a hearing.

In response to the court’s decision, Derrick Hamilton, who spent 20 years in prison for murder, stated that “it is a crime that it has taken this long for me to receive a shot at justice.” Since his conviction, Hamilton had spent the last twenty two years  battling the criminal justice system in an effort  to clear his name. All prior attempts to vacate his conviction were denied, although making a credible presentation of alibi evidence, witness recantation, and possible manipulation of witnesses by police. The Hamilton case has also been vetted for  review by the Brooklyn District Attorney’s Office, which is currently reviewing cases handled by retired detective Louis Scarcella. The Office has undertaken a review of about 50 homicide cases to determine whether the defendants were wrongfully convicted as a result of possible police misconduct.

Related Readings:

Impeaching Arresting Police Officers

In this primer, the author offers observations on successful strategies for impeaching an arresting police officer when your client claims innocence.

By Steve Cobb, Pace Law School Class of 2014

Nothing is more commonplace than a criminal defendant who claims  to be innocent.  But what can be done when it appears that the arresting officer’s testimony is in fact incorrect or false?  Criminal defense lawyers face a significant disadvantage when they seek to  discredit arresting officers.  Nonetheless, it can be done.  Here is a three-step approach that may be helpful.

STEP ONE: OBTAIN FAVORABLE POLICE TESTIMONY:  In order to expose false testimony, the arresting officers should be subjected to cross examination early in the case, when their memories are still fresh and they have not had a chance to be prepared by the prosecutor.  Preliminary hearings, suppression hearings, or refusal hearings give the defense attorney a good opportunity to acquire information and lock the arresting officer(s) into their testimony.  What we are looking for here are inconsistencies in the testimony, from the witness himself and between the witnesses if there are more than one.

The purpose of the pre-trial examination is not to make the officer look like a liar, but rather to gather information and find the truth.  Thus, direct or open ended questions should be used instead of leading ones, so that the witness can fully describe what happened in his own words.  Avoid arguing, and make a sincere effort to get complete testimony on the record.  If you are patient and courteous, you may be amazed at how readily the false testimony seems to reveal itself.  Remember Lieutenant Columbo?  He was an excellent interrogator – friendly, but very knowledgeable, and tenacious.    And effective!

I found a good resource in the Wisconsin Public Defender’s office, Cross Examining Police Officers and Agents:  Who’s in Control Now?   Here, the author mentions:

  1. Take away the police officer’s edge by being more familiar with the facts than he is – review the materials and visit the crime scene, if necessary.
  2. Try to establish that some element of the offense is missing.
  3. Force the police officer to commit to his/her version of events.

Once the (hopefully contradicting) testimony has been obtained, you may move for suppression or dismissal.  Should the judge deny your motion for pre-trial relief, as is likely, you may now go to trial.

STEP TWO: TRIAL.  The goal here is to highlight the inconsistencies in the police officer testimony.  Perhaps the testimony is self-contradictory or it contradicts the testimony of another officer.  You may also, as suggested by the Wisconsin Public Defender, try to establish that an essential element of the charge is missing.  When the prosecutor rests, you can move to dismiss the charges based on “legally insufficient evidence” pursuant to CPL 290.10.   Should that motion be denied, then move on and present your case.  In the event that you lose the trial, move on to Step Three, a pre-sentencing motion to set aside the verdict.

STEP THREE:  330.30 MOTION TO THE TRIAL COURT:  Now you can make use of all the inconsistent testimony you obtained!  Under CPL 330.30, a trial court has only limited authority to set aside a verdict (and dismiss the criminal charges), but one of the permissible grounds is that the conviction was based on “legally insufficient evidence,” that is, testimony that is “incredible as a matter of law.”  Pursuant to the statute, and People v. Carthrens, 171 A.D.2d 387 (1991), a trial court may not reverse a conviction based on the weight of the evidence, but it may set aside the verdict if the testimonial evidence was so contradictory and so insufficient that a rational jury could not have found, in any way, that the elements of the offense were proved beyond a reasonable doubt.

Obviously, the standard of proof required to win this motion is very high, and of the sixteen cases I researched involving a motion made on these grounds, only one of them People v. Quinones, succeeded.  There is also case law holding that a challenge based on insufficiency of evidence will not work where there is more than one prosecution witness.  See, e.g., People v. Ledwon,  46 N.E. 1046 (N.Y. 1897), People v. Delamota, 960 N.E.2d 383 (N.Y. 2011).

Will this approach work?  Well, it can’t hurt, and should the trial court deny your request for relief, at least you have established a good foundation from which to make a “weight of the evidence” argument to the Appellate Division after the conviction.

Related Readings:

NYPD Stop and Frisk Practice Held Unconstitutional

On Monday, August 12, 2013, Judge Shira A. Scheindlin held that the NYPD’s stop and frisk practice was unconstitutional.  Citing the large percentage of stops that resulted in no further legal action, Judge Scheindlin stated that police officers diluted the legal standard necessary to conduct a stop and frisk and, therefore, detained individuals illegally.