Legal Aid's Chief Attorney Calls Slow Progress Of NYPD To Record Some Interrogations Of Suspects "Extremely Distressing"

Despite the fact that the New York Police Department announced more than two years ago that it would begin a pilot program to video tape some interrogations in their entirety, progress is slow and very little has been done to track results, according to a story in yesterday's Wall Street Journal. Steven Banks, Attorney-in-Chief of The Legal Aid Society, told the WSJ that "it's extremely distressing that apparently the pilot never really got off the ground."

The NYPD has said it is expanding the pilot from two precincts-- Bronx's 48th and Brooklyn's 67th --to an additional three precincts. Banks said that "any expansion of the City-wide initiative is a good thing, assuming it happens." The WSJ reported that after more than a dozen requests, police were unable to provide the total number of fully recorded interrogations, the dispositions of those cases or a comparison of conviction rates in the last two and one half years.

NYPD Videotaping in Virtual Pause
Pilot Program to Record Some Interrogations of Suspects Is Widened a Bit After a Slow Start; 'It's Extremely Distressing'
By Sean Gardiner
The Wall Street Journal
August 12, 2012

When New York Police Commissioner Raymond Kelly announced in February 2010 that his agency would begin to video record some interrogations in their entirety, defense lawyers and civil-liberties groups were guardedly optimistic: The test suggested the NYPD may eventually embrace a practice already used by the majority of police forces in the state.

Some 2 ½ years later, that is not the case. The department now is expanding the pilot program, but minimally: to five precincts from two.

At the same time, the NYPD appears to have done little to track results. After more than a dozen requests over the course of a month, police and court officials were unable to provide the total number of fully recorded interrogations, the dispositions of those cases or a comparison of conviction rates.

"It's extremely distressing that apparently the pilot never really got off the ground," said Steven Banks, attorney-in-chief at the Legal Aid Society. "Nevertheless, any expansion of the citywide initiative is a good thing, assuming it actually happens."

NYPD spokesman Paul Browne said the agency is widening the program from a precinct each in Brooklyn and the Bronx to one in each of the remaining boroughs. Once that happens, he said, "we'll have a better understanding of how it's working."

The NYPD has videotaped some confessions for years. But it has been slow to agree to record a messier aspect of policing: the precarious and confrontational nature of interrogations. Supporters say the practice protects both defendants and investigators, acting as a shield against coercion techniques that can lead to false confessions, and later, against untrue claims that suspects were pressured into admitting guilt.

A taped confession is "worthless" to a jury without the run-up, said veteran New York defense attorney Robert Gottlieb. Jurors who see the interrogation can judge the value of a confession and the methods used to get it, he said.

Currently, 341 of the state's 509 police agencies are recording suspect interviews in some crimes, typically in at least murder and rape investigations, according to the state Division of Criminal Justice Services. By virtue of its pilot program, the NYPD is included among them.

Nationwide, 18 states and Washington, D.C., mandate the complete recording of interrogations for some crimes, said Rebecca Brown, director of state policy reform for the Innocence Project. A bill requiring either audio or video taping of interrogations in New York has passed the state Assembly but not the Senate.

New York City's test has been limited in scope: It involves only suspects arrested on felony assault charges in the Bronx's 48th Precinct and Brooklyn's 67th Precinct. They began taping interviews in 2011 after outfitting interrogation rooms with recording equipment.

"Anything that supports the integrity of a criminal confession and ensures justice is served should be thoroughly evaluated, which is what we intend through this pilot program," Mr. Kelly was quoted as saying in a December 2010 news release from the New York State District Attorneys Association, which was calling for wider implementation of the practice.

It is not clear how the pilot program has been evaluated. To date, no case with a fully taped interrogation has gone to trial, said spokesmen for the Bronx and Brooklyn district attorneys.

Steven Reed, a spokesman for the Bronx District Attorney's Office, referred questions to the NYPD. Jerry Schmetterer, a spokesman for Brooklyn District Attorney's Office, said the office has received copies of 181 fully recorded interrogations from the 67th Precinct and that some of them were distributed to prosecutors.

In some cases, he said, defense attorneys also received copies, though he couldn't provide specific numbers or the disposition of those cases.

"We don't have the answer to that at this time," Mr. Schmetterer said.

He added, "We just haven't tracked it."

The NYPD also couldn't provide similar information. Mr. Browne said a Brooklyn judge reviewed the tape of one interrogation in March during a hearing over whether a confession could be admitted as evidence.

When the judge ruled that the statement could be allowed at trial, the suspect chose to plead guilty, Mr. Browne said. Neither he nor the Brooklyn District Attorney's Office provided the name of the defendant despite requests.

Measuring the program's effectiveness likely has been hampered by the choice to tape interrogations in felony assault cases instead of in murder or rape arrests, said Dennis Kenney, a criminal justice professor at John Jay College of Criminal Justice who for five years was associate director and director of research for the nonprofit Police Executive Research Forum in Washington, D.C.

The relatively low-profile cases are unlikely to attract much attention should the pilot program fail, he said. At the same time, they aren't likely to provide much useful statistical data, since most assault cases end in plea agreements, Mr. Kenney said.

In addition, assault cases don't tend to encourage the kind of strong-armed or manipulative interrogation techniques that can lead to false confessions, Mr. Kenney said.

With a $4.6 billion annual budget, the NYPD is the largest police department in the country. Taping an array of interrogations in all 76 precincts and another 21 commands would be a financial and logistical challenge, Mr. Browne said. Police made 28,000 arrests for violent crimes last year.

Instead, the NYPD has chosen to move slowly. Manhattan's 7th Precinct began conducting fully recorded interrogations for felony assault cases in July, Mr. Browne said. Next on board: the 107th Precinct in Queens and the 122nd Precinct in Staten Island.

"You're dealing with thousands and thousands of interviews and hundreds of thousands of [recorded] hours," said Broome County District Attorney Gerald Mollen, an outspoken proponent of recording interrogations in their entirety. "It's just a logistical nightmare down there."

Michael Palladino, president of the NYPD's Detective Endowment Association, said he is concerned about how juries would react to seeing the gritty back-and-forth of police interrogations. Even court-approved police techniques, such as lying, could be seen by juries as underhanded, Mr. Paladino said.

In addition, he said, "I just think every time we show one of these things, it's going to be like an educational video for criminals, teaching them what to expect in an interrogation room and how to get around it."

Mr. Mollen said there was initial resistance from police in his upstate jurisdiction. But most investigators have come to support the effort, he said.

Jurors have seen countless television police dramas and expect police may have to be relentless or use trickery, he said. Investigators don't have to rely on notes or memories during trials, he said, and rarely have to defend themselves against charges the confessions were made up or coerced.

"It's all on the tape," Mr. Mollen said.

Even though the NYPD doesn't tape interrogations in murder cases, one of its biggest homicide investigations could involve one. The initial questioning of Pedro Hernandez, now charged in the infamous 1979 disappearance of 6-year-old Etan Patz, was done in New Jersey, which requires interviews to be recorded in some crimes.

Police said Mr. Hernandez, 51 years old, confessed to murdering the boy; he hasn't yet entered a plea.

The 3 ½-hour recording could play a significant role for the defense if the case goes to trial. Mr. Hernandez's lawyer has said he has a history of mental illness, including hallucinations. The NYPD declined to comment on the tape.