As the New Year starts and Chicago is experiencing record-breaking cold weather, I find myself, like Billy Joel, in "A New York State of Mind." It's not because New York is so much warmer than Chicago. It's that New York will be "center stage" in 2014 when it comes to false confessions.
2013 ended with Mayor-elect Bill DeBlasio reiterating his promise to settle the lawsuits of the Central Park Five defendants who spent between almost seven and 13 years in prison before being exonerated by DNA evidence. And earlier this week, 2014 began with news that the state has settled one of Martin Tankleff's outstanding lawsuits seeking compensation for the 17 years he spent in prison for the murder of his parents. In both of these cases, only months apart in late 1988 and early 1989, New York law enforcement officers used deception and coercion to obtain false confessions from teenage suspects. In both these cases, these tactics were deemed acceptable by New York's state courts.
Although resolving these past cases is important, on January 14, the New York Court of Appeals will hear two cases -- those of Paul Aveni and Adrian Thomas -- in which the High Court will get yet another opportunity to define what is and what is not an acceptable level of deception and coercion during interrogations. And in Thomas, unlike Aveni, Tankleff, and the cases of the Central Park Five, the Court will, for the first time, get to decide a confession case after viewing Thomas' entire interrogation on DVD -- all nine-plus hours of it.
Let's look at the Aveni case first. Paul Aveni's girlfriend, Angela Camillo, died of a drug overdose on Jan. 12, 2009, in Aveni's mother's home. Detectives from the New Rochelle Police Department arrested Aveni and brought him to the stationhouse for questioning. At that time, detectives knew something that Aveni didn't -- that Camillo had died. To get Aveni to confess to injecting Camillo with a lethal cocktail of drugs, detectives lied to Aveni, telling him that she was alive and that her doctors might be able to save her if Aveni told them which drugs he had injected her with. A detective testified that he told Aveni that:
"[Camillo] was at the hospital and the doctors are working on her, but it's imperative; did she use any drugs or did she take anything, because whatever medications the doctors give her now could have an adverse effect on her medical condition. You--she's okay now but if you lie to me and don't tell me the truth now and they give her medication, it could be a problem."
After Aveni confessed to having purchased the drugs and told detectives that he had injected her with them, detectives turned on the cameras and can be seen repeating the same lie about Camillo's condition. Aveni was charged with, and subsequently convicted of numerous offenses, including criminally negligent homicide, and was sentenced to 15 years in prison.
On appeal, Aveni argued that his confession was not made voluntarily and that the trial court should have kept it from the jury. The appellate court agreed, holding that the detectives had coerced the defendant's confession by deceiving him into believing that Camillo was alive and then implicitly threatening him with a homicide charge when they told him that if he chose to remain silent and Camillo died, it "could be a problem."
In Thomas, Rochester detectives used the same lie -- telling Thomas that his four-month-old son was fighting for his life (when he was brain dead) and that doctors needed details of how he hurt the child so that they could save the boy's life. After more than nine hours of interrogation and dozens of denials, Thomas finally accepted the story that detectives fed to him. He confessed to killing his son by throwing the boy down on a bed with extreme force. But the police theory was based on a mistaken diagnosis that the child had suffered a skull fracture and had died of blunt force trauma to the brain. Tests completed after the child died, however, revealed no fracture and no blunt force injuries. Instead, the boy had a raging infection and likely died of sepsis.
The recording of Thomas' interrogation shows how the Rochester detectives systematically broke Thomas' will by threatening to charge his wife if he did not confess, lying to him about the medical causes of his son's injuries (telling him that the doctors determined that his son had suffered a skull fracture as a result of a high-impact head injury), and suggesting to him that his son's death was just an accident. After Thomas finally admitted to "dropping the baby" on the bed, detectives then coached him to act out just how hard he "threw" his child on the bed. They gave him a file folder as a prop for the baby and then urged him to throw the prop harder and harder on the floor until Thomas reached the approximate force that they believed must have been used to kill the baby. The trial court found these tactics were not too coercive or deceptive and held that Thomas had voluntarily confessed. The jury convicted Thomas of murder and a judge sentenced him to 25 years to life in prison. Thomas' conviction was upheld on appeal.
Of the two cases now before the Court of Appeals, Thomas' case has drawn more public attention because his plight was captured in Grover Babcock's and Blue Hadeagh's brilliant film, Scenes of A Crime. The film, like Douglas's Starr's recent New Yorker article "The Interview," explains why today's psychological interrogation tactics are so powerful that they can influence even innocent people to confess. The documentary also works as a case study in tunnel vision by showing how a medical misdiagnosis of a skull fracture set in motion the three errors that are common in all false confessions: the misclassification of Thomas as a criminal and the child's death as a crime, the use of coercion to overcome Thomas's denials and break down his will, and the contamination of his confession by feeding Thomas the details of the crime that fit the detectives' story of how the child was killed.
It is hard to predict what the High Court will do in these cases.
Deception and coercion are integral parts of most modern-day interrogations. In the past, the Court may have been reluctant to draw bright lines with regard to both coercion and deception, fearing that hard and fast rules might make it more difficult for the police to get "true" confessions. But since the Jogger cases and the Tankleff case were before the Court, New York detectives have continued to rack up false confessions. In fact, New York ranks second only to Chicago in the number of documented false confessions, several of which have led to wrongful convictions. These cases show that the traditional "totality of the circumstances" test for assessing the voluntariness of confessions has done little to stem the tide of false confessions and prevent wrongful convictions. I hope the Court will draw some lines in a way that will not only grant both Mr. Aveni and Mr. Thomas new trials but will reduce the risks of future false confessions. Here are some suggestions.
First, the Court should consider barring police from lying to suspects about the health and well-being of their loved ones in order to induce them to confess. Such lies are so devastating that they can plunge an innocent suspect into such a desperate state that he or she can be easily manipulated into falsely confessing. For example, Teresa Sornberger of Illinois falsely confessed to robbing a bank with her husband Scott after interrogators hinted the child welfare authorities might have to take custody of her children while she remained in jail. Similarly, telling Martin Tankleff that his father had been pumped with adrenaline, had awakened from a coma, and had identified Martin as his killer, caused Tankleff to doubt his own memory and eventually led him to agree to a story police constructed about how he killed both his parents. The lies in Aveni and Thomas -- especially when coupled with claims that the police needed the defendants to provide incriminating details so that doctors could save their loved ones -- are highly coercive and deceptive tactics that pose an unacceptably high risk of false confessions.
Second, the Court should consider excluding confessions when police lie to suspects about medical diagnoses. As Judge Richard Posner of the Seventh Circuit Court of Appeals recognized in Aleman v. Village of Hanover Park (2011), telling a suspect that "the doctors have determined a cause of death" and that they have excluded any cause of death other than a homicide, can destroy a suspect's rational ability to choose not to confess. This is because most suspects lack the knowledge to question the so-called settled medical opinion and cannot refute the scientific conclusion that their actions caused the victim's death.
Third, I hope the Court takes the opportunity to recognize, as the lower court in Aveni did, that even subtle, implied promises and threats may be as coercive as direct ones and just as likely to produce false confessions. In particular, it's time for the Court to acknowledge that when a police officer suggests to a suspect that an action or a result was an "accident," that this an implied promise of leniency. Even the venerable John E. Reid and Associates, the leading trainer of interrogators in the United States, has recognized that the "accident scenario" can lead suspects to infer that what they are confessing to is not a crime. In its most recent edition of Criminal Interrogations and Confessions (5th ed. 2013) on page 218, often referred to as the bible of interrogation manuals, Reid et al. write:
"A caution is warranted concerning the use of a theme that suggests a morally acceptable motive for the crime. As previously indicated, an interrogation theme should not absolve the suspect from legal consequences associated with his crime. Consequently, an investigator should not suggest, as a primary theme, that the conduct was committed accidentally."
Finally, here's hoping that the Court takes again takes aim at police contamination. In an earlier case involving false confessor Douglas Warney's claim for compensation, the Court recognized that feeding crime facts to a suspect during interrogations is a kind of manipulation that can lead juries to convict the innocent. Without a recording of the entire interrogation, juries cannot spot contamination and too readily credit police testimony that the suspect volunteered the details that "only the true perpetrator could have known." Contamination is present in every false confession and makes the suspect's confession appear to be more credible than it actually is. Thomas and Aveni give the Court a golden opportunity to instruct lower courts that they may factor evidence of contamination in their assessments of the voluntariness of confessions and that judges and juries may weigh the inexcusable failure by police to record interrogations against the State in assessing whether a suspect's confession is voluntary and reliable.
The New York Court of Appeals is a bellwether court, meaning that High Court's decisions in Aveni and Thomas are bound to have influence well beyond New York's borders. I'm hoping that the Court not only provides justice for Messrs. Aveni and Thomas, but crafts its decision in a way that helps to prevent future coerced and false confessions.
Sometime after 2 p.m., on the afternoon of January 14, I'll be watching the arguments in Aveni and Thomas and then will wait on pins and needles to see how the Court rules. You too can watch the arguments streaming live online at: http://www.nycourts.gov/ctapps/