Posts Tagged ‘DOJ’

According to reports this morning by the Arizona Republic, National Public Radio, and other outlets, the U.S. Department of Justice has decided that federal law enforcement agencies, including the FBI, will electronically record interrogations of people in custody.  This will bring the FBI, DEA, ATF and other federal law enforcement agencies into line with the best practices in law enforcement that have been adopted (in whole or in part) in 20 states and hundreds of individual U.S. police departments, as well as a number of other countries.

Former members of federal law enforcement call this change a “radical departure” and the end of  “an insane policy.”   These descriptions seem correct, since the FBI has been one of the law enforcement agencies most resistant in the U.S. to change on this issue.  The new policy — a presumptive requirement, with exceptions for imminent, life-threatening danger and for national security intelligence-gathering interviews — will take effect on July 11.

(One important fact to note: the information available so far does not indicate whether the new policy will require recording of the entire interrogation — that is, beginning with the administration of Miranda warnings and continuing through to the end of the interrogation.  This requirement is absolutely necessary, because without it, interrogations will contain only the confession of the suspect at the end, without showing its full context.  I am looking for more information on this now and will post again when I learn something about it.)

 

As recently as 2006, the FBI said in a confidential memorandum that agents could not record interrogations without the express permission of a senior supervisor.  According to the memorandum, agents should generally not record interrogations for several reasons, among them:

[T]he presence of recording equipment may interfere with and undermine the successful rapport building interviewing technique which the FBI practices…[Additionally,] perfectly lawful and acceptable interviewing techniques do not always come across in recorded fashion to lay persons as proper means of obtaining information from defendants.

As to the first idea, there is no evidence to support the idea that recording would interfere with interrogations.  According to a 2004  study by Thomas Sullivan, former United States Attorney for the Northern District of Illinois, and his colleagues, none of the hundreds of law enforcement agencies surveyed reported that recording interfered with officers’ ability to interrogate suspects.   As for the idea that certain “perfectly lawful…techniques do not always come across” to jurors as proper, that may be because, lawful or not, any juror can see how these techniques — for example,  lying to suspects about the result of supposedly iron-clad forensic evidence or polygraph results — smack of deep unfairness and exert a degree of pressure that may — and sometimes does — resulted in false confessions.

As readers of my book Failed Evidence and this blog know, recording suspect interrogations is one of the most important safeguards against wrongful convictions and abuse during interrogations.  And law enforcement agencies that have the longest experience with recording back it enthusiastically.  For example, Minnesota has required recording of interrogations since 1994.   In a 2002 article that appeared in the Washington Post, U.S. Senator Amy Klobuchar, who was then the elected prosecutor of Hennepin County, Minnesota, argued that “videotaped interrogations have strengthened the ability of police and prosecutors to secure convictions against the guilty.  At the same time, they have helped protect the rights of suspects…”

The DOJ changed the policy with no fanfare — indeed, without even any announcement.  Nevertheless, it represents an undeniable step in the right direction.  The facts of any recorded interrogation will mostly be beyond dispute.  Needless litigation and motions will be avoided, and cases will move through the system (and usually toward guilty pleas) more rapidly.  The worst abuses will be curbed, and a better system will result.

 

The International Association of Chiefs of Police (IACP) is one of the leading organizations for law enforcement professionals in the U.S. and around the world.  I regularly turn to their model policy and training documents when working on those issues for police agencies.  So it’s a big deal to see their new report, prepared in conjunction with their partner, the U.S. Department of Justice Office of Justice Programs, announcing that their new effort in which they will play a leading role in fixing the problems in police investigation that cause wrongful convictions.

The report, titled, “National Summit on Wrongful Convictions: Building a Systemic Approach to Prevent Wrongful Convictions,” takes a full view of the issues that must be addressed to avoid convicting the wrong people, and announces a series of recommendations designed to bring the goal within reach.  It is based on work at a summit of people from IACP, DOJ, and a host of experts.  In a preliminary statement in the report, the President of the IACP and the Assistant Attorney General for the Office of Justice Programs, outlined how the report came to be and what it does.

This event gathered 75 subject matter experts from all key disciplines to address and examine the causes of and solutions to wrongful convictions across the entire spectrum of the justice system. Summit participants worked diligently during this one-day intensive event to craft 30 focused policy recommendations that guide the way to our collective mission to continually improve the criminal justice system. The summit focused on four critical areas: (1) making rightful arrests, (2) correcting wrongful arrests, (3) leveraging technology and forensic science, and (4) re-examining closed cases. The 30 resulting recommendations directly address these areas and lay a critical foundation for required changes in investigative protocols, policies, training, supervision, and assessment.

The report makes thirty recommendations on a number of topics: eyewitness identifications, false confessions, preventing investigative bias, improving DNA testing procedures, CODIS, correcting wrongful arrests, leveraging technology and forensic science, and re-examining closed cases with an openness to new information.

The report is absolutely essential reading for anyone interested in wrongful convictions and what can be done to correct them.  Readers of my book Failed Evidence will also recognize that the emergence of this consensus at the top of the law enforcement profession is exactly what I have called for: “Police and Prosecutors Must Lead the Effort” (pp. 158-159).

The U.S. Department of Justice (DOJ), in partnership with the Innocence Project and the National Association of Criminal Defense Lawyers (NACDL), will review 2,000 cases in which microscopic hair analysis of crime scene evidence was conducted by the FBI Laboratory.  The review, prompted by the DNA-based exoneration of several men convicted on the basis of hair microscopy, will focus on “specific cases in which FBI Laboratory reports and testimony included statements that were scientifically invalid.”  The Innocence Project’s announcement of the review is here; a representative news article is here.

In a move that shows just how seriously the DOJ is taking this review, it has done something unheard of:

Because of the importance attached to these cases, the DOJ has agreed, for the first time in its history, not to raise procedural objections, such as statute of limitations and procedural default claims, in response to the petitions of criminal defendants seeking to have their convictions overturned because of faulty FBI microscopic hair comparison laboratory reports and/or testimony.

Translation: DOJ is not going to fight this review in any of these cases; they’re going to be part of it.

It’s hard to describe the magnitude of the shift in outlook this represents.  Usually, as readers of Failed Evidence know, law enforcement (and I include DOJ in that phrase) resists science-based review and testing; that’s the thrust of the book.  I am happy to say that this is refreshingly different.  According to Peter Neufeld, Co-Director of the Innocence Project, “[t]he government’s willingness to admit error and accept its duty to correct those errors in an extraordinarily large number of cases is truly unprecedented.  It signals a new era in this country that values science and recognizes that truth and justice should triumph over procedural obstacles.”

Of course, this review will not affect cases in which hair analysis was handled by state crime labs.  But here’s hoping they will take this as an example, as the Grits for Breakfast blog argues ought to be done in Texas.

For a sense of the damage that sloppy hair analysis and testimony about it has done in prior cases, listen to this NPR story and interview about the case of Dennis Fritz, in Ada, Oklahoma.  John Grisham’s nonfiction book “The Innocent Man” is an excellent read about the case.

Maybe this is the beginning of a trend.  Hats off to DOJ, the Innocence Project, and NACDL.

An update on my May 22  post on the NYPD stop and frisk case: the U.S. Department of Justice has filed a “statement of interest” in the case to say that if the judge rules against the NYPD, the preferred remedy would be an independent monitor to implement changes and make sure they take root.

According to the Wall Street Journal, Mayor Michael Bloomberg reacted by saying that appointing an independent monitor for the NYPD  would be a “terrible idea.”

Independent monitors are common in cases in which the federal government has sued police departments to impose needed reforms to stop patterns or practices of constitutional rights violations in those departments.  For example, police departments in Seattle, Detroit, and East Haven, Connecticut currently have federal monitors; federal monitors have been used in now-completed cases in Los Angeles, Cincinnati, Pittsburgh, and other cities.   Samuel Walker, professor emeritus at the University of Nebraska, explained in the Wall Street Journal article that “monitoring the department would entail a team of people who would conduct audits of reports officers must file for every stop…The team would follow up by interviewing officers and their supervisors about the stops and filing reports to the judge.”

The DOJ Statement of Interest is not binding on the judge; in fact, the DOJ is not a party in the lawsuit.  It was simply used by the DOJ to say that IF the judge found the NYPD to have violated the Constitution (she has made no finding yet), the proper remedy for the violation should include an independent monitor.

Widely-circulating reports over the last few days indicate that the U.S Department of Justice has settled another police reform case, this one with the Seattle Police Department.  Details are sketchy, with much of the coverage focusing on how the mayor resisted an earlier proposed settlement as too onerous and expensive.  That’s the thrust of today’s article in the Seattle Times on the settlement.

When we finally do see the agreement, it will interesting to see whether it requires changes to how basic types of evidence — eyewitness identification, suspect interrogation, and forensics — are handled.  In last week’s posts on the subject, here and here, I reported that the DOJ/New Orleans Police Department consent decree expressly addressed both photographic eyewitness identification, and the recording of suspect interrogations.  The main issues in Seattle was the use of force and how that might be reformed, tracked, and supervised, so this agreement may not address those concerns with evidence.    When I get a look at the settlement document, I’ll report here whether those issues are included.

Whether the Seattle agreement hits those issues or not, it is refreshing to see the Department of Justice take them on in the New Orleans case.  It will be important to watch whether that happens in other consent decrees in the future.

Update, 8/1: The documents now available on the Seattle settlement indicate that it did not touch upon issues involving eyewitness identification, interrogation, or forensics.  The focus was on the use of force.

In yesterday’s post on the DOJ/New Orleans PD consent decree, I pointed out that early news reports said that the decree required a science-based best practice: audio and video recording of suspect interrogations.  Now that we can read the full consent decree itself, we can see that it requires science-based methods of conducting photo lineups with eyewitnesses, too.

Paragraphs 171 through 173 of the decree require three of the most important changes that scientists have long recommended: blind line ups, in which the administrator of the lineup does not know which of the pictures shown is the actual suspect; telling the witness that the perpetrator may or may not be present; and the proper selection of “filler” photographs.  All of these procedures are fundamental to avoiding cognitive biases, and with them erroneous identifications.

We also see in paragraph 164 of the decree that the requirement to record interrogations applies only to suspects in homicides and sexual assaults, but that the recording must include the entire questioning session between suspect and police.  Police will not be allowed to do an unrecorded “pre-interview,” which is actually an interrogation that gets the suspect to admit guilt, and then a recorded “confession” that does not show how the confession was obtained.

The consent decree ranges across a host of other subjects.  But it is truly good to see the Department of Justice put its considerable weight into moving police departments toward the best that science has to offer.  This won’t cut through law enforcement’s resistance to science all by itself, but it will help.