Tagged: criminal justice

DOJ Adopts New Policy Requiring Electronic Recording of Statements

The Justice Department has announced a new policy that will require federal law enforcement agencies to electronically record interviews with suspects.  According to Attorney General Eric H. Holder Jr.,

Creating an electronic record will ensure that we have an objective account of key investigations and interactions with people who are held in federal custody. It will allow us to document that detained individuals are afforded their constitutionally protected rights.

The new policy will require federal law enforcement agencies to record interactions with a detained suspect during the time between the suspect’s arrest and initial appearance before a judge. Notably, the new policy also suggests that officials should consider using electronic recording devices during other investigative situations, including witness interviews.

This is a stark change from the Department’s prior policy, which expressively prohibited the use of recording equipment by law enforcement agencies when conducting interviews with suspects. The Justice Department was previously concerned that the use of recording devices would undermine investigative techniques of federal agencies, and would discourage suspects from talking. The Department also once expressed that jurors may frown upon FBI interviewing techniques, and have “unfavorable impressions of agents” had they heard verbatim accounts of such interrogations.

Mr. Holder discounted these concerns, explaining that federal officials should be more committed to a process that exemplifies evenhanded enforcement of the law, and the new policy would “provide verifiable evidence that our words are matched by our deeds.” He noted that it is of great importance for federal agencies to ensure that the statements of suspects are accurately recorded, and that suspects are afforded their constitutional rights during interrogations with federal agents.

National Association of Criminal Defense Lawyers President Jerry J. Cox was pleased to hear about the Justice Department’s policy change, noting that the use of electronic recording during interviews

protects the accused against police misconduct, protects law enforcement against false allegations, and protects public safety by ensuring a verbatim record of the interrogation process and any statements.

Mr. Holder has already begun the implementation of the new policy, and has instructed United States attorneys and agency field offices to begin training sessions. As of July, the new policy will apply to the FBI, DEA, ATF and U.S. Marshals Service.

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Does this Government Conduct “Shock the Conscience of the Ninth Circuit?”

The Ninth Circuit recently upheld a due process challenge to an ATF sting that targeted the poorest minority neighborhoods in Phoenix to court individuals – with a promise of riches – to break into and rob local fictitious, non-existent stash houses.  Many of these individuals had no criminal records; almost all were out of work and poor.

Pace Professor Bennett L. Gershman analyzes the ATF’s penchant for creating fictitious crimes (see e.g., Operation Fast and Furious) in a recent Huffington Post column.  Click here to read the entire post.

A New International Focus on the Death Penalty

The botched execution in Oklahoma last week has drawn international attention.  Few countries still employ the death penalty, and the barbarity of the procedure is old news to our European Union colleagues.

The argument against the death penalty may be decided by – what else – money.  Pharmaceutical companies are refusing to produce the drugs needed for orderly executions and the botched Oklahoma execution may be an example of what will follow.

Prof. Lissa Griffin of Pace Law School recently published a blog on this subject.  Click here to read it in its entirety.

Related Reading

Many Wrongful Convictions: Not So Many Answers

Recent studies have estimated that between 2.3% and 5% of all prisoners in the United States are factually innocent. According to the Innocence Project, if just 1% of all prisoners were innocent, that would mean that more than 20,000 innocent people are currently in prison. Of course, one would assume that such staggering numbers would prompt some type of national examination to determine why the criminal justice system is continually breaking down.  At the very least, the continued unveiling of wrongful convictions nationwide must lead to some type of reform that would prevent future injustices from occurring. Unfortunately, the Criminal Justice system has failed miserably in its attempts to deal with these issues, despite its realization that wrongful convictions continue to occur. As Professor Bennett L. Gershman of Pace Law School recently noted

there is hardly ever a postmortem of a derailment in the criminal justice system, as there typically is when a train derails, or a plane crashes.

Professor Gershman’s editorial, Don’t Let the Prosecutor Off the Hook, discusses how the justice system has simply forgotten to undertake its duty to determine the causes behind this tragic epidemic that has continually plagued our justice system. Citing the recent exoneration of Jonathan Fleming, who had spent 24 years in prison for a murder that he did not commit, Professor Gershman explained

Nobody, certainly nobody in the media, has attempted to examine this case more closely and to ask probing questions about how this human tragedy could have happened? We don’t investigate how criminal cases miscarried. We don’t investigate how the system malfunctioned. And we don’t investigate those officials who caused the malfunction.

Evidently, there are probably thousands of cases in which an innocent person has been convicted. Yet, the process of finding answers or solutions to the systemic flaws causing wrongful convictions has been a snail’s race.  As Professor Gershman implicitly points out, however, the prospect of finding a solution is undermined by society’s passive approach to the problem. Moreover, the likelihood of successfully confronting this important issue can never be truly realized until the wrongdoers are actually held accountable for their actions and no longer allowed “off the hook.” Of course, as Prof. Gershman notes, the first step will be to simply “ask probing questions about how this human tragedy could have happened?”

Related Readings

Fighting for the Client in the Bronx – Reflections of a Student-Attorney

The following is a story written by a current Pace Law School student who has been working in the Pace Criminal Justice Clinic during his third year of law school. He describes the trials and rewards of representing real clients and shares with all of us what he learned – a lesson to all criminal practitioners.

POST WRITTEN BY: Christopher James Di Donna ’14

Unlike many third-year law students, I am, thankfully, not helping to keep alive that old adage about one’s final year at law school (You know the part about how your professors bore you to death after they have scared and worked you to death.). My third year has been far from boring. Instead, I have spent my final year at Pace Law School working as a student-attorney under the supervision of Professors David Dorfman and Robin Frankel at the Barbara C. Salken Criminal Justice Clinic. I still have regular classes in addition to the clinic; however, the clinic has been my primary focus.

It took my family and friends some time to understand that my peers and I at the clinic are not just doing “mock trials” with “mock clients.” Instead, we work for real clients with real problems in real court facing real consequences in the Bronx. This clinic gives us the unique opportunity to learn about and practice law before we graduate and sit for the bar exam.

Case in point (the pun was intended): I had the privilege of representing a man charged with Driving While Ability Impaired under New York Vehicle and Traffic Law (V.T.L) section 1192(1).  For over three years, this man made countless court appearances professing his innocence. This case was transferred to us from Bronx Legal Aid Society at the suggestion of Professor Frankel. I worked the case  for three and half months. I reviewed the case-file numerous times, especially the Intoxicated Driver’s Testing Unit (IDTU) video, investigated the scene of the alleged crime with my client and fellow students, and corresponded with the Bronx District Attorney’s Office.

The true highlight of this case was representing my client in a Dunaway/Johnson (probable cause for arrest) and Huntley (voluntariness of defendant’s statement) hearings. Here I was a third-year law student cross-examining a veteran highway officer of the NYPD; impeaching him on his own omissions and the inconsistencies between his testimony and his memo-book and arrest report. My cross-examination of the arresting officer and his demeanor throughout the hearings convinced the judge to suppress all the DA’s evidence. The DA’s Office was forced to dismiss the case and my client received the justice he sought after more than three years.

My work on this case and my overall experience at the clinic has had a profound effect on me. I realized the importance of persistence. To be an effective advocate you have to work a case hard. You have to think about the case often and play out all the approaches and possibilities in your mind. I thought about this case when I grocery shopped, drove, showered, and at countless other times of the day and night. The more hours I put into his case, the more sense I made of it. I learned the strengths and the weakness of the case and the law and the people involved in it. My strategy morphed over those months with each realization. Even during the suppression hearing, with the help of Professor Frankel and a fellow student-attorney at the clinic and my second seat on the case, Alexandra Ashmont, I tweaked and adjusted my cross examination of the arresting officer on the spot. Without persistence from day one to the day you go to court, I do not believe that one will achieve a palpable and just result for his or her client. And neither will you feel good about the result if you did not invest the necessary time into the case.

This experience taught me that the law, especially criminal law, is about real people in really bad binds. You as the advocate are sometimes the one person holding up the walls from crashing down on your client. You have a duty, within the confines of the rules of professional responsibility and ethics, to get the best results for your client. You have to listen to the client, chase down leads and documents, and beat your head on your desk until the best strategy falls out. The Pace Criminal Justice Clinic gave me the opportunity to learn, to help others, and to avoid being bored to death in my final year of law school.

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