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.

 

NYPD’s New High-Tech Gun Detector: Back to the Future

An article in today’s Wall Street Journal titled “Police Tool Targets Guns” says that the NYPD has taken delivery of a “T-Ray” scanner: a device that can detect weapons concealed under heavy clothing.  The device “detects terahertz radiation, a high-frequency electromagnetic natural energy that is emitted by people and can penetrate many materials, including clothing.”  The scanner “sees” the shape and size of the weapon against the body of the person carrying it, because the material of which any gun is made does not emit terahertz radiation like the human body.

NYPD Commissioner Ray Kelly said the police were very “hopeful” about the potential of the device.  While the current version of the tool is “about the size of an old-style projection television,” the NYPD would like to see the technology reduced in size so that it is “small enough to carry on an officer’s gun belt.”  Privacy advocates raised some concerns, but also expressed hope that the device could make the NYPD’s controversial stop and frisk program unnecessary — or at least less intrusive.

All very interesting — but to me, this isn’t new.  In 1996, I published an article called “Superman’s X-Ray Vision and the Fourth Amendment: The New Gun Detection Technology” in the Temple Law Review.  (The official citation is 69 Temple L. Rev. 1.)  The article highlighted a nascent technology: a device that could scan people for millimeter wave radiation, emitted by all human bodies.  The device used the radiation to produce images of weapons hidden under heavy clothing.  The article explained the technology, described how police could use it , and explored the ways that the device would fit into the Fourth Amendment and other aspects of the law.   Here’s a small slice:

[R]esearch and development efforts have begun that would give police officers something very much like Superman’s x-ray vision. Two private companies and one government laboratory, each with its own design, have started work on technology that will allow police officers to “see” through clothing to detect whether a person is carrying a concealed weapon. The idea is to produce a commercially and technologically viable device that could do an “electronic frisk” of a suspect from a distance of ten or twenty feet.

So, here we are — back to the future.  The millimeter radiation technology never achieved what researchers hoped for in terms of portability — they could never make it  small enough to be handheld — or in terms of use at a a distance.  Perhaps the terahertz technology will do better in both respects.  Assuming it does, the terahertz devices will face many of the same Fourth Amendment, legal, and privacy issues  that I pointed out almost twenty years ago.

In my next post, I’ll discuss what some of those issues are.

Why Every Prosecutor’s Office Needs a Conviction Integrity Unit — Part 1

In the course of Failed Evidence, I argue that every prosecutor’s office needs a conviction integrity unit (CIU).  And in “Exoneration and Freedom For a Man Convicted in ’10″  (N.Y. Times, Oct. 27) we get a perfect example of why CIUs are so important.

The article concerns a robbery case brought against Lawrence Williams by the Brooklyn (N.Y.) District Attorney’s office.  The only evidence against Mr. Williams was a faulty eyewitness identification, but it was enough to convict him.  Eventually, another man, already in prison, confessed to the crime.

What makes the case unusual is that Mr. Williams’ post conviction claim that he was innocent was investigated not by an outside agency, but by a CIU inside the Brooklyn DA’s own office — the same DA’s office that convicted him in the first place.  The Williams case is the first such felony case that the Brooklyn DA’s CIU dealt with.

A CIU is a specialized group of lawyers within the DA’s office — just like the ones for sex offenses or for homicide — with the special job of investigating prior convictions in which there are plausible claims of innocence.   In other words, when a real claim surfaces that a conviction that the office obtained in the past is wrong and should be investigated, the CIU attorneys investigate, and tell the DA whether or not the conviction should stand.

CIU’s are incredibly important for two major reasons.  First, they become the regular institutional mechanism for addressing claims of wrongful convictions and actual innocence.  Courts are not set up to correct these types of mistakes, and the CIUs fill this enormous gap.  Second, with a regular mechanism in place to handle this task, reform efforts can concentrate on fixing the system going forward, and they are not consumed with the important work of getting justice in individual cases.

Every prosecutor’s office should have a CIU, or at least one attorney who handles CIU-type matters.  It is an innovation that will make prosecution better, and provided DAs with a regular way to correct mistakes and learn from them.

Readers: Does the DA’s office in your jurisdiction have a CIU?  Does it need one?

Upcoming posts will discuss the history of CIUs, why the Bro0klyn CIU stands out, and other issues.

Answers From the Street: Recording Interrogations Doesn’t Slow Detectives Down

In a recent post here, I recounted the discussion about recording interrogations at the event for Failed Evidence at John Jay College of Criminal Justice in New York on September 20.  One member of the panel, himself a former NYPD officer, asserted that a recording requirement (announced just the day before by NYPD Commissioner  Ray Kelly) would cause detectives to interrogate suspects less or not at all.  I asked in that post whether other current or former detectives agreed or disagreed with that assertion.

I received some answers from law enforcement professionals, and I’ll share some representative comments here.  Here’s a typical one:  “As a Det., my Dept recorded custodial/non-custodial interviews. I do not feel that being recorded ever hampered my interview/interrogations.”  Here’s another from a former detective in for both property and major crimes units: “We have recorded interviews and I do not believe it was ever a hamper. If anything it was a great help. It showed that we the state did nothing wrong and that the interviewee was being evasive. This is like a variation of Miranda. Old school belief was that bad guys would no longer talk to us once they received Miranda….. This of course was not the case.”  A third said that he had been in law enforcement when Miranda became the law, when changes came to search and seizure law, and when departmental rules began to require recording interrogation.  Each time, he said, police said the same thing: crimes would go unsolved, and criminals would run rampant.  But each time, he said, “things remained about the same” – no changes in crimes rates, clearance rates, etc.  But, he said:

What did change were fewer miscarriages of justice involving forced confessions, illegal searches and manufactured evidence, and questionable confessions. Less false arrests and fewer law suits and subsequently less cost to the public. A change that took place was enhanced efforts by the police to develop information gathering skills and forensic science skills to gather more information to build a solid case on more than just a statement by a witness or by a suspect.

This, to me, sums it up.  Law enforcement resists change in basic procedures, predicting the worst.  But when change occurs anyway, fears prove groundless, and the changes are usually helpful.

Officers and detectives: please tell us more.  You’re the ones who can best persuade others in law enforcement.

Are Police Concerns With NYPD Recording Interrogations Valid?

At the roll out event for Failed Evidence at John Jay College in New York on Thursday, Sept. 20, I spoke about the book, and a star-studded faculty panel, moderated by former U.S. Attorney Zachary Carter, gave the audience astute and insightful comments.  The event took place just after NYPD Commissioner Ray Kelly announced an expansion of the Department’s very small pilot program of recording interrogations, so police will record all interrogations in cases of murder or sexual offenses, in every precinct.  This change in NYPD policy came up in my presentation, and in the panel’s comments.  I favor recording of interrogations and said so, but panel member Eugene O’Donnell, a former NYPD officer who now teaches at John Jay, voiced reservations. ( The recording of the event  is not yet available, so I am working from memory;  if I get this wrong, I hope that Professor O’Donnell or someone else who was there will correct me.)  Professor O’Donnell’s main concern with recording seemed to be that detectives performing interrogations would curtail their questioning, or even not attempt much questioning, if they knew they were being recorded.  I heard this same concern raised the next day, in an email I got from another attendee.  This gentleman, who like Professor O’Donnell is also a former NYPD officer, said that he had raised the issue of recording interrogations with a friend who is an active NYPD detective, and that the friend said the same thing Professor O’Donnell had:  that he would do fewer interviews if he was going to be recorded.

I disagree; the experience of police departments that have recorded for years (beginning with Alaska in 1985 and Minnesota in 1984) doesn’t support this fear.  “The Case for Recording Police Interrogations,”  published in 2008 by Thomas P. Sullivan and colleagues, carefully works through all of the objections police have raised to recording.  According to Sullivan, none of them hold water, but more interestingly, the idea that detectives faced with a recording requirement will somehow hold back or stop interrogating suspects does not even come up when talking to police who record.  On the contrary, the article contains a long list of the benefits that police get from recording interrogations: a complete record; protection against bogus charges of misconduct or illegalities like failure to administer Miranda warnings; fewer motions to suppress and more guilty pleas, to name just a few.  I have had the privilege of meeting a lot of police officers and detectives, and it is my strong impression that a recording requirement will not deter them from doing their jobs.

Failed Evidence in NY: Today, Sept. 20, 5:30 p.m. at John Jay College, NYC

Today, September 20, at 5:30 p.m., I’ll discuss Failed Evidence: Why Law Enforcement Resists Science (NYU Press) at an author’s talk and panel discussion in New York City at John Jay College of Criminal Justice today, September 20, at 5:30 p.m.  Full details are here.  The talk is free and open to the public.  The talk will be followed by a panel discussion by four members of John Jay’s faculty:  Margaret Bull Kovera (Psychology), Nicholas D. K. Petraco (Forensics and statistics), Lawrence Kobilinsky (Forensics and DNA), and Eugene O’Donnell (Police Science and Criminal Justice Administration). The panel will be moderated by Zachary Carter, former U.S. Attorney for the Eastern District of New York.

NYPD Reversal: Police Will Record Interrogations in All Murder and Sex Offense Cases

The New York Police Department has reversed itself: Commissioner Ray Kelly has announced that his Department will begin to record interrogations in all murder and sex offense cases in all of its precinct stations.

In a Sept. 2 op-ed piece in the New York Daily News, I argued that a small pilot program in which the NYPD recorded interrogations in felony assault cases in just two precincts should include serious crimes in the entire department, instead of just the small expansion to a few more precincts that the Department announced in August.   And there were reasons to expand the program that went beyond the protection of suspects from abuse.  Those resisting recording, I said, were ignoring the many benefits that police get when they record interrogations, including stronger evidence, fewer spurious motions to suppress, more guilty pleas, and protection against bogus charges of wrongdoing by detectives.

Yesterday, in a speech before the Carnegie Council for Ethics in International Affairs, Commissioner Kelly announced that the program would soon cover the entire department in murder and sex offense cases.  According to press reports, Kelly said that recording will have advantages for all involved — including the police.  “Recording can aid not only the innocent, the defense and the prosecution but also enhance public confidence in the criminal justice system by increasing transparency as to what was said and done when the suspect agreed to speak with the police.”

It’s worth noting that this won’t happen overnight.  Commissioner Kelly said that the Department was attempting to secure a $3 million grant from the Police Foundation to put the program in place, rather moving immediately using the Department’s own funds.   To some, the slow pace of change rankles.  For example, Steven Banks, the chief attorney at the Legal Aid Society in New York, told the Wall Street Journal that while the announcement shows a willingness to move in the right direction, he had concerns that “there isn’t a concrete timetable to finally put in place an initiative that could have a significant impact on wrongful convictions.”

Nevertheless, it is a significant reversal and represents real progress at one of the country’s leading police departments.  Dare we hope that this will mean that the NYPD will lead more of law enforcement in this direction in the coming years?

“Failed Evidence” New York Roll Out Event at John Jay College, Thursday, Sept. 20

The official roll out event for Failed Evidence: Why Law Enforcement Resists Science, will take place at John Jay College of Criminal Justice in New York on Sept. 20, 2012 at 5:30 p.m.  The event is free and open to the public; see the details here.

For those looking to get a sense of what Failed Evidence is about, here’s a brief video clip prepared by NYU Press, called “The Emperor of Forensic Science Has No Clothes.”  Most of us tend to think that forensic science is what makes cases these days.  But aside from DNA and chemical analysis, much of forensic science is open to question.

For members of the media seeking more information, see the Media Info page of this blog.  I will be available in New York from Tuesday evening, Sept. 18, through the event on Sept. 20.

Seven Reasons That Recording Interrogations of Suspects Will Help Police

On Sunday, my op-ed article, “NYPD, Record Your Interrogations” appeared in the New York Daily News.  Adapted from my book, Failed Evidence: Why Law Enforcement Resists Science  (NYU Press, 2012), the article points out that when the NYPD announced the recent arrest in the cold-case murder of young Etan Patz, they mentioned that the confession of the alleged killer had been recorded.  They neglected to say that this happened because the interrogation had taken place in New Jersey, and not in New York.  The piece also points out that there are at least seven good reasons to record interrogations.

NYPD, record your interrogations

Catch the guilty, protect the innocent

By David Harris/ NEW YORK DAILY NEWS

Sunday, September 2, 2012, 4:23 AM

When police officials charged Pedro Hernandez with murder in the 1979 death of 6-year-old Etan Patz, they announced that they had a videotaped confession from Hernandez.

The recording will be vital, since, according to media reports, the confession appears to be almost the only evidence implicating Hernandez.

Good thing the interrogation took place in New Jersey — where police record confessions regularly. If it had happened in New York City, where the NYPD rarely records interrogations in homicides or any type of case, there’d probably be no recording. That needs to change.

We used to think that, absent mental illness, lack of sobriety or abuse by police, no one would confess to a serious crime he or she did not commit. We know now that people do confess falsely. Of the nearly 300 DNA-based exonerations now on record, fully 25% feature a false statement of guilt by the defendant.

The NYPD has seen its share of false confessions. For example, in the notorious 1989 Central Park jogger rape case, multiple defendants said they committed the brutal assault together. Those confessions sent five young men to jail for between six and 13 years each — before DNA evidence led to their convictions being vacated. The crime turned out to have been the work of another man entirely.

Such cases have begun to change police thinking. Hundreds of police departments in 18 states now record police interrogations. It is routine in New Jersey. But the NYPD has been slow to respond.

In March 2011, the NYPD began a limited pilot program: the recording of interrogations in two precincts, and only in felony assault cases.

Recently, the department expanded the program — but to only three additional precincts. And according to published reports, the NYPD has done little to track the effort thus far: how many interrogations have been recorded, dispositions of those cases or comparisons of conviction rates.

Why this reluctant response, when recording interrogations is proving to be a crucial tool not only to protect the innocent but to convict the guilty?

Commissioner Ray Kelly has voiced concerns over the logistics of recording interrogations in such a large police department. And the Detectives’ Endowment Association, a key NYPD union, has voiced fears that when juries see the sometimes crafty tactics that police employ to get confessions, they might vote to acquit. In addition, the DEA fears that criminals will use these recordings as training videos.

Kelly makes a fair point; recording interrogations will be a considerable endeavor that will require equipment, training and logistical coordination.

But surely a police department that has risen to myriad post-9/11 security challenges, and that itself uses electronic recording at events like public demonstrations, can handle it.

As for the idea that jurors will punish the police for tough but legal tactics, or that criminals will study the recordings like NFL players studying game film, there’s no evidence these things have happened where recording is now required.

Thanks to the fact that many jurisdictions have used recordings for some time, we have evidence about how well it works. The key to breaking through the NYPD’s resistance is to get leadership to understand that departments that record reap substantial benefits.

The most comprehensive study of the recording of police interrogations, by Thomas Sullivan, Andrew Vail and Howard Anderson III, said that officers in departments that record “enthusiastically favored the practice.”

Among the pluses:

n Recording protected officers from claims of misconduct, abuse or failing to give Miranda warnings.

n Some defendants confessed more easily when recorded.

n Recording results in fewer motions to suppress, because questions about Miranda warnings or the voluntariness of a confession become incontestable.

n Recording of interrogations increases the number of guilty pleas.

n The number of guilty verdicts increases, because the recordings eliminate avenues for defense attacks.

n Recordings help to increase public trust in the police because they show that police conduct themselves properly.

n Recordings deter police abuse that sometimes takes place in interrogation rooms.

This is what is at stake: a new and better practice that will do much to help our police lock up bad guys. The focus should be not on what police might lose (which is largely an illusion); rather, it should be on what they can gain. Failing that, it’s time for New York’s legislature to step in.

Recording interrogations benefits everyone, and the NYPD needs to move to where the research points us.

A Good Idea Gone Bad, Part II: When Behavior Profiling (Good) Leads to Racial Profiling (Bad)

In yesterday’s post, I discussed the New York Times‘ article reporting that behavior profiling efforts at Logan Airport in Boston seem to have mutated into racial profiling.  Reuters has now picked up the story, too.  It seems that some  (not all) TSA agents at Logan who were trained in behavior assessment techniques have turned, instead, to the discredited tactic of stopping and searching people based on racial or ethnic appearance.  The goals of the program also seemed to have shifted: from spotting potential terrorists to looking for garden-variety criminals.  Why did it happen?

Yesterday I discussed one reason: a failure of leadership.  The TSA managers in charge of the program seem to have not gotten the message that profiling based on race or ethnic appearance does not work, but that behavior profiling does.  Today, I’d like to highlight another reason: an obsession with numbers to show results.  ”[M]anagers’ demands for high numbers of stops, searches and criminal referrals had led co-workers to target minorities in the belief that those stops were more likely to yield drugs, outstanding arrest warrants or immigration problems,” according to the Times.  In order to get the numbers, some TSA agents at Logan fell back on the same old profiling tactics: “They just pull aside anyone who they don’t like the way they look — if they are black and have expensive clothes or jewelry, or if they are Hispanic,” according to one TSA officers who complained.

When the pressure to produce numbers in order to show effectiveness drives police or security work, bad things happen.  We see this in New York City right now and for the last few years, with precinct commanders’ fixation with producing ever-higher numbers of arrests, citations, and stops driving police officers to stop and frisk more and more people every year, despite the fact that crime is falling New York and has been for some time.  The evidence of this pressure to “get the numbers” burst into the open with the wide press coverage of NYPD commanders telling officers they had to make stops and frisks, whether those actions did any good or not.

Numbers-driven police work produces no real progress toward public safety.  And it can push out or even destroy efforts to use more effective tactics.  That’s what seems to have happened at Logan.

For further explanation, look for my next post.