New York’s Stop and Frisk Case: With Trial Over, What Should We Expect?

On Monday, May 20, Judge Shira Scheindlin of New York heard final arguments in a trial about stops and frisks by the New York Police Department (NYPD).  The Center for Constitutional Rights and a number of individuals has sued the NYPD.  They allege that the NYPD has used stops and frisks for the last ten years in violation of 1) the Fourth Amendment right against unreasonable searches and seizures,  and 2) the Fourteenth Amendment right to equal protection of the laws, because stops and frisks have overwhelmingly targeted racial minorities — chiefly black and Latino men.   The judge’s decision may not  come for some months.  I discussed the case on NPR’s Tell Me More on May 21 (here) along with Delores Jones-Brown of John Jay College of Criminal Justice.

Here’s a short course on stop and frisk in American law, codified by the U.S. Supreme Court’s case of Terry v. Ohio (1968).  Generally, an arrest or a search requires that police have probable cause to believe that the suspect is involved in a crime.  Probable cause is less evidence than “proof beyond a reasonable doubt,” and less evidence than “more probable than not” (the usual 50.1% of evidence required to win a civil case in the U.S.).  A stop and frisk is less intrusive than a traditional arrest or search: it is a temporary detention (stop) and a pat down of the outer clothing for weapons (frisk).  So it requires only reasonable, fact-based suspicion — an amount of evidence less than probable cause.  To use the Supreme Court’s terminology, an officer may perform a stop when he/she has reasonable suspicion that crime is afoot and that the suspect is or was involved; the officer may also perform a frisk when he/she has reasonable suspicion that the suspect is armed.  Reasonable suspicion is a very low standard of evidence, but it is enough for stop and frisk because the stop is supposed to be brief and temporary, and the frisk is cursory and only for weapons, not a general search for evidence.

In 2002, the NYPD’s own statistics showed that officers performed 97,000 stops and frisks; by 2011, the number had increased to about 700,000.  (You can access the NYPD’s  statistics here.) Crime was already at historic lows in 2002 and is even lower now.  The NYPD claims that the continued drop in crime shows the effectiveness of its intensive use of stops and frisks, even though only about ten percent of these actions yielded any contraband or resulted in an arrest.  Over the same period, roughly 88 percent of those stopped and frisked were black and Latino men, leading to charges that the NYPD stop and frisk program was a form of racial profiling.

Judge Scheindlin’s comments during the final arguments on May 20 lead me to think that she will decide that the stop and frisk activity of the NYPD violates the Fourth Amendment requirement of reasonable suspicion.  She said she thought that getting results in only about ten percent of the cases — and finding guns (the objective of the NYPD’s stop and frisk activity) in far fewer cases than that — showed that the police were acting without even enough evidence to meet the very low standard of reasonable suspicion.  “A lot of people are being frisked or searched on suspicion of having a gun and nobody has a gun…[T]he suspicion turns out to be wrong in most of the cases.”  Proving that the racial skew in the statistics is racial profiling is more difficult, requiring both convincing statistical evidence and evidence of actions by the NYPD that target racial or ethnic minorities.

What do you think?   I’ll be keeping you posted.

Picking a New Police Chief: Design the Process a New Mayor Should Follow

How would you set up the the process to pick a new chief of police for a mid-sized city?

Amidst a corruption scandal, Pittsburgh’s police chief resigned this Spring.  (He has announced he’ll plead guilty to the charges against him.)  This happened with an election for mayor already underway; a short time later, the heavily-favored incumbent dropped out of the race and announced that he would leave the choice of a new chief to his successor.  In a post on March 6 (here), I spelled out what my criteria would be for a picking a new chief.  These included unquestioned integrity, experience as a chief or deputy chief in a police department not less than half the size of Pittsburgh, and a commitment to diversity of all kinds in the ranks.  I said that no excellent candidate, whether an insider or an outsider, should be ignored, and that the process of selection the new chief would be critical, given the circumstances of the chief’s resignation.

Imagine that you have the ear of the new mayor-to-be.  (Which candidate this is will be largely determined in the Democratic Party primary, one week from today; whoever wins the primary is overwhelmingly likely to win the general election in November.) What would be your advice on how the process of selecting the new chief should work?  I can think of a number of possibilities, including:

1) Put together a small group of experts — present and former chiefs of police, law enforcement experts, etc. — to give private, candid advice to the mayor-to-be, regarding what to look for in a successful chief.

2) Create a citizens advisory board to advise the mayor on this important choice.

3) Hold a town hall meeting or two to gather a large and wide swath of public comments on the choice.

4) Conduct focus groups, each with members drawn from all of the important stakeholder groups: citizens, rank and file officers, police union officials, the faith community, the business community, neighborhood advocates, etc., to ascertain what kind of person, with what kind of qualities, the mayor should look for.

What are your ideas?  Have you been through this process before, in any role?  I would very much like to hear from anyone and everyone with thoughts on this.  The choice is coming for Pittsburgh, and it’s going to be crucial.

Thanks for your help.

Brooklyn DA’s Probe of 50 Convictions Featuring One Detective: Conviction Integrity Unit, False Confessions in the Spotlight

With the news that the District Attorney of Brooklyn is re-examining convictions in 50 cases featuring the work of one particular detective (see stories here and here ), we see two issues that have surfaced on the Failed Evidence blog before: false convictions and Conviction Integrity Units (CIUs).

First, the cases under re-examination all involve retired NYPD Detective Louis Scarcella, who had a penchant for getting confessions out of suspects when other detectives could not. According to Scarcella, “there were cases where suspects talked to one detective and they got nothing, and they called me and I got statements. A lot of guys don’t know how to talk to people.”   Some of these suspects who allegedly confessed said that they had told Scarcella nothing.  Scarcella also relied regularly on testimony from one particular drug-addicted prostitute; among the many times she served as Scarcella’s “go-to witness,” she gave crucial eyewitness testimony in two separate murder cases against the same man.  According to one prosecutor who had the woman testify in two trials, “It was near folly to even think that anyone would believe [her] about anything, let alone the fact that she witnessed the same guy kill two different people.”

But there is also this: the re-examinations are being handled by the Brooklyn DA’s Conviction Integrity Unit (CIU), which I wrote about in connection with the exoneration and release of David Ranta, here.  As readers of the Failed Evidence blog know, CIUs are  dedicated units within prosecutors’ offices, just like  homicide or fraud units, that take on the task of re-opening old convictions now in doubt.  The first CIUs were established by DA Craig Watkins in Dallas and former DA Pat Lykos in Houston, and they have begun to pop up in other places.  In New York, both the Brooklyn DA and the Manhattan DA have established CIUs.

The CIU model for examining possible wrongful convictions isn’t perfect; a CIU is, by its nature, not independent of the DA’s office, and could be stopped in its tracks or dismantled completely just as easily as it could be created.  But as I’ve argued here before, they at least represent a step toward accountability for wrongful convictions, in a field in which too few elected prosecutors will touch prior convictions at all.  We should pay careful attention to how this large-scale investigation by the Brooklyn DA’s CIU works out; it will say a lot about whether CIUs can be part of the solution going forward.

 

Long Range Acoustic Device (LRAD): Looking for Information, Policies, Training, or Experience From Police Departments.

I’ve been asked to study the use of the Long Range Acoustic Device, or LRAD, by domestic police departments.  The LRAD is an apparatus that is used to communicate or make sounds at very high decibel levels.  The manufacturer calls it “a high-intensity directional acoustic hailer [sic] designed for long-range communication and issuing powerful warning tones.”  You can see the manufacturer’s information and a picture here.

My information indicates that the LRAD was developed by the military for (among other uses) communication at sea in certain contexts.  In the last few years, I understand that there have been uses of LRADs by domestic police departments; the one I am familiar with was by the Pittsburgh Police Bureau, at the G-20 summit meeting in 2009, in connection with demonstrations there.

If your police department has or has used an LRAD, I would be very happy to hear from you.  I am interested in police policy, experience, and training with the LRAD, and also in any model policies that may be available.

I look forward to any and all responses.  Of course, feel free to respond by contacting me directly at daharris@pitt.edu.

Many thanks.

The Reid Technique Bites Back. You Decide.

In my previous post, I included a link to Psychology Today’s Shadow Boxing blog, which carried a brief interview in which I was critical of the Reid Technique, the most commonly used technique for interrogation taught in American police training.  This prompted an email to me from Joseph Buckley, the President of John T. Reid and Associates, Inc., in which he defended the Reid Technique.  I advised Mr. Buckley that I could not include his entire missive, but would be glad to include some of it.  He said, in part:

False confessions are not caused by the application of the Reid Technique, they are usually caused by interrogators engaging in improper behavior that is outside of the parameters of the Reid Technique – using improper interrogation procedures – engaging in behavior that the courts have ruled to be objectionable, such as threatening inevitable consequences; making a promise of leniency in return for the confession; denying a subject their rights; conducting an excessively long interrogation; etc.

…

Mr. Harris suggested that the goal of the Reid Technique is to get a confession – that is not correct; it is to learn the truth.

On page 4 of our training manual and page 5 of Criminal Interrogation and Confessions (5th ed, 2011) we state that the objective of an interrogation is to elicit the truth from a subject, not a confession.

In a subsequent email, Mr. Buckley suggested this link to his web page,  particularly the entry for March 11, 2012.

For my part, I stand by what I told Shadow Boxing, and I stand by everything I said about the Reid Technique in my book, Failed Evidence: Why Law Enforcement Resists Science.

For starters, I did say that the goal of the Reid Technique is to get a confession.  Mr. Buckley says that isn’t true.  What he doesn’t say is that until 2011′s fifth edition — through all of the previous editions — what the book said was “an interrogation is conducted only when the investigator is reasonably certain of the suspect’s guilt” (or words to that effect). This statement was changed after many commentators quoted it as perfectly descriptive of the Reid Technique’s reliance on an underlying assumption of guilt for all interrogations.  But even after changing the statement, the presumption of guilt underlying the whole process did not change.

But to me, what this comes down to is which side, Mr. Buckley or his many critics, have the science behind them.  On this dimension, it’s not a close call.  Rather than pull all of this out here, take a look at an excellent article by Keith Findley and Michael Scott, “The Multiple Dimensions of Tunnel Vision in Criminal Cases.”  (The link is to the abstract; you can then download the article for free.) Go right to page 333–340, where the authors lay out the case against the Reid Technique and (unlike Reid’s own materials) support their arguments with a vast amount of research literature.  Here’s a small slice (with footnotes omitted):

[T]he process of assessing an interview is likely to produce misjudgments about the suspect’s veracity and guilt. Police are trained to look for signs of deceit in the interview process to help them determine whether to shift from an interview to an interrogation. Police also use their interpretations of guilty responses to help them shape the remainder of their interrogation, and the content of their testimony at trial. Yet, considerable research indicates that people are poor intuitive judges of truth and deception.  In clinical studies, people consistently perform at only slightly better than chance levels (with typical accuracy rates of about 45 to 60 percent, when chance is 50 percent) at distinguishing lies from truth…Indeed, most studies indicate that trained detectives and others with relevant on-the-job experience “perform only slightly better than chance, if at all,” and do not perform more reliably than untrained individuals…Additionally, the signs that police officers are trained to believe indicate lies are not empirically related to lie detection…Research confirms that most police officers rely on such indicators.  But research also convincingly shows that such cues are not indicative of fabrication, and can actually reduce accuracy.

Read and evaluate.  You decide.

Failed Evidence’s Examination of the Reid Technique Featured on Shadow Boxing

An interview with Failed Evidence author David A. Harris about the Reid Technique, the most popular method for interrogating suspects in U.S. police departments, is featured on Shadow Boxing,  a blog written for Psychology Today.  Shadow Boxing is written by Dr. Katherine Ramsland, who teaches and writes about forensic psychology.  The post was chosen as an “essential read” for the Education area of Psychology Today.  Here’s an excerpt:

The technique seems to be designed for entrapment and even a bit of brainwashing. Is this perception accurate?

I guess I would put it a little differently, though I do understand why you would see it that way. The Reid technique for interrogation is not a process designed for the discovery of facts and evidence. Rather, it is a multi-phase process, to be used when the interrogator has already concluded that the subject is guilty, and therefore simply needs the confession out of the person to confirm the guilt and prove it.

Clarity on Miranda: Why the Boston Bomber Won’t “Walk on a (Miranda) Technicality”

For those who want clarity on how the Miranda warnings, and the government’s use of the “public safety” exception, here’s my interview on WESA FM Public Radio on the program Essential Pittsburgh.  This wide-ranging discussion allowed host Paul Guggenheimer and I to thoroughly explore all the aspects of the Miranda warnings.  How it is actually used by police?  Does the warning actually stop people from talking to the police, undermining efforts to prosecute the guilty?  And how it might impact the prosecution of the Boston bombing case?

In the days since the federal government’s announcement that they would not read the Boston bombing suspect the Miranda warnings, under the “public safety” exception, I’ve had some conversations with some acquaintances — all reasonably bright, aware people.  I’ve asked them what they thought would happen to the bomber in the courts if the government did not read the suspect his rights.  The unanimous reply: the Miranda failure means he’ll be freed because some court will let him “walk on this technicality.”  Those conversations, the uninformed media coverage of the issue, and the willingness of politicians of both parties to twist the law for their own political gain are what motivated me to write an op-ed for yesterday’s Pittsburgh Post-Gazette and to discuss the issue on the radio.