Videotaping police interrogations isn’t enough: Part 2

Imagine watching Shakespeare’s “Othello” without knowing what Iago is up to.   Fortunately, Iago’s soliloquies and asides clue in the audience that, while pretending to be Othello’s best friend, he’s manipulating Othello into a jealous rage so that he ends up murdering poor innocent Desdemona.  An audience taking Iago’s blandishments at face value would just go home thinking she got her comeuppance.

Unfortunately for Adrian Thomas, the cops interrogating him on videotape didn’t soliloquize or make asides.  The jury (and AD3) took at face value that the cops, like Iago, were being “friendly and supportive.”  Without an expert, the jury couldn’t know that the interrogation was a classic demonstration of psychologically manipulative techniques.

Adrian’s lawyer wanted to call Dr. Richard Ofshe, a social psychologist and expert on police interrogation techniques and false confessions, to explain to the jury that suggestions like, “we know it was an accident,” or “you don’t remember doing it because you’ve repressed the memory,” or “you won’t be arrested if you tell me ‘the truth,’”  are not friendly and supportive, but standard tactics for getting a self-incriminating statement. And that these tactics have been shown to make innocent people confess.

The court ordered a Frye hearing where the People brought in their champion,  Paul Cassell, a law professor from Utah and former prosecutor and judge, best known for his campaign to abolish those criminal-coddling Miranda warnings.  Unencumbered by training in the behavioral sciences, Cassell  asserted that he was “a practitioner of social psychology.” His psychological research consisted of collecting 219 case files from the Salt Lake County District Attorney’s Office. Lo and behold, in densely populated Salt Lake County, where the leading crime is probably having too many wives, not a single one of the 219 cases involved a claim of a false confession! From which Cassell scientifically concluded that false confessions are as rare as unicorns.

The Einstein of Utah didn’t stop with a single experiment.  He went on to calculate that, according to FBI figures, there are 900,000 arrests per year which, over a 23-year period add up to 20 million. Cassell divided this figure by 60, which was the number of confessions that Dr. Ofshe had identified as false in a 1996 article. From this, Cassell concluded that the frequency of false confessions is one hundredth of one percent. Well, yes, if 20 million arrests is the same as 20 million true confessions.

Cassell’s contribution to the truth-seeking process is his notion that nothing can be known about false confessions or their causes until we know how many there are. Just like nothing can be known about the flu until we know how many people have it. In the meantime, he wants to have videotaped confessions instead of Miranda warnings.  Needless to say,  there should be no expert testimony on the non-existent phenomenon of false confessions.

The trial judge swallowed this whole.

Appellate Squawk’s scientific studies have conclusively demonstrated that the defense can proffer the country’s leading expert and the People can proffer Howdy Doody and guess who wins out? Not science, and not the accused.

Jury note

Videotaping police interrogations isn’t enough: Part I

Squawkers and others have been agitating for years to make the cops videotape police interrogations. Not just the final confession, but the whole thing, including all that “small talk” the cops always say they spent six hours engaging in before the defendant “willingly agreed to speak to us.”

In 2008, the Troy Police Department videotaped the whole interrogation of Adrian Thomas.  The tape shows Adrian with cops in his face for 9 hours, not including a 15-hour intermission in a secure mental health facility where they took him because he was so depressed.

And no wonder.  Adrian and his wife had awakened that morning to find their 4-month old son barely breathing.  They immediately called 911 and the baby was rushed to the hospital. Although he showed no signs of abuse or neglect,  Child Protective Services swooped down on the Thomas household a few hours later and hauled away their six other children. Adrian was invited to the police station for questioning. He ended up charged with murder.

At trial the court and jury saw the cops on videotape telling Adrian (falsely) that the baby’s skull had been fractured by some tremendous force and that it was either murder or an accident. Maybe Adrian dropped the baby without noticing, they say.  If he tells them about it, he won’t be arrested. He’ll go home tonight.

Adrian was 25 years old,  with no criminal record. He and his wife had worked in a chicken processing plant in rural Georgia before coming north to Troy. He’s ready to believe whatever the cops tell him, but he doesn’t see how anyone could drop a baby on its head without noticing. “Blood would be everywhere,” he points out.  ”Babies’ heads are very soft, very pliable, so the skin doesn’t break,” the cops explain. “People drop babies all the time.” “I didn’t know that,” says Adrian.

The cops threaten to arrest Adrian’s wife if he won’t tell them about the “accident.” They’ll go “scoop her up” right now. No, no, no, says Adrian. “I’ll take the fall.”  The cops suggest that while half asleep he bumped the baby’s head when putting him into the crib. Yes, that’s probably what happened,  Adrian agrees.  He says he feels like jumping off a bridge.

The cops take him to the hospital where he’s placed in a secure unit for observation. When he’s discharged 15 hours later, the cops are waiting.

The interrogation continues for 7 more hours. Adrian is by now convinced that he must have bumped the baby’s head against the crib, or maybe against his own head. He knows he didn’t do anything intentional. Of course not, says the cop. I’m going to tell the court it was an accident. Just sign this statement.

As soon as Adrian signs, Officer Badcop who’s been monitoring the videotaping from the next room bursts in and yells at Adrian that he’s lying. “I was a Marine corpsman in Operation Desert Storm!” he shouts.  ”I saw the X-rays at the hospital and you’re lying! The cause of death was rapid acceleration and rapid deceleration!”

After the war hero leaves, Officer Goodcop says he’s deeply hurt that Adrian lied to him and violated their “trust relationship.” “I’m your only hope,” the cop says over and over.  He completely believes  it was an accident.  Adrian must have blacked out, he explains. He must have repressed the memory.  He’s suffering from post-partum depression — men get that too, you know — that made him unable to control his body. He knows Adrian would never have intentionally injured his son. But other people might not be so understanding. They might charge him with murder. That’s why Adrian needs to admit to Officer Goodcop that he slammed the baby down hard.  He’ll go to the District Attorney and see that Adrian isn’t charged with a crime.  After all, it wasn’t a crime, so long as it wasn’t intentional.

The cop demonstrates how Adrian must have thrown the baby down.  He has Adrian stand up and throw a binder to the floor as hard as he can. The videotape ends with the cop still assuring him that he’s not under arrest.

There’s one little problem:  there was no head trauma.  No fractures, no abrasions, no nothing. Two leading medical specialists testified at trial that the baby died of natural causes. The medical records, beginning with the mother’s pregnancy complications and the baby’s premature birth, showed that he died of a systemic and chronic infection.

The judge saw the whole videotape and thought the interrogation was A-ok. He wouln’t let the defense call Dr. Richard Ofshe to testify about police interrogation techniques and false confessions. False confession research is all anecdotal,  he sneered.  Besides, the jury could see the videotape for itself.

The jury thought it was rather bad of the police to lie, but the sight of Adrian throwing a binder to the floor was enough to make them ignore the medical evidence.

All of this is in a recent documentary called “Scenes of a Crime” which we saw a few months ago, shortly after the appeal was argued in the Appellate Division, Third Department, a judicial district that appears to encompass all of New York that isn’t NYC or Canada.  The decision written by Justice Spain agrees that the interrogation was tickety-boo, commenting on how “friendly and supportive” the police were.  People v. Thomas (AD3 2012).

As for sleep deprivation over a 40-hour period, Justice Spain figures out the number of hours Adrian could have slept. We’re not making this up.  He applies the following arithmetic: After the ambulance took away Adrian’s barely-breathing baby,  he most likely went back to bed and had a good snooze until Child Protective Services came for the rest of the kids (9 hours).  With the house nice and quiet, he probably felt like catching 40 winks until the cops came to take him to the precinct (5 hours). When, after the first round of interrogation, the cops took him to the hospital because he felt like jumping off a bridge, what better place to slumber than the Crisis Center while waiting to be admitted (4 hours). Okay, so the mental health unit records show that for the 12 hours he was under observation he slept only intermittently for a total of an hour and 45 minutes.  But nobody denied  ”requests for sleep” did they?

Not content with this presumption of narcolepsy, Justice Spain opines that Adrian wasn’t “particularly distraught” because the tape shows “only a few brief episodes of crying.” This in a country where no man over the age of 6 is allowed to cry.  Otherwise we might have had Senator Muskie for president instead of Nixon.

We called up the defense lawyer. “The Pain in Spain sends justice Mainly down the Drain,” he said disgustedly.

(To be continued)

Murder at the Appellate Division

It was a dark and stormy night in the City that Never Sleeps unless Medicated.

“I say, beastly weather, what?” mumbled old Westcott Wainscott, passing around a decanter of sherry to his friends gathered in his modest but comfortable study to reminisce about their glory days at the Bar. “Shall I light a fire?”

“Rum idea, old chap,” said Ainsley Ainscott helping himself to a cigar. “The room appears to be without a fireplace.”

Quincy Quainscott chuckled drily. “This storm reminds me of the mysterious Appellate Division murders back in ’09.”

“Never heard of it,” said Wainscott. “I was in India at the time, newspapers came by ship and elephant, took six months to arrive, don’t you know.”

“The affair was hushed up by the authorities,” said Quainscott leaning back in his chair and lighting a joint. “But as I happened to be present at the time, I can tell you it was one of the most sinister plots since the sinking of the Titanic.”

“That was no plot, that was an accident,” protested Ainscott. “Bally iceberg got in the way.”

“That’s what you think,” said Quainscott cryptically. “Do you want to hear the story or not?”

“Yes, yes!” cried the others. “Do tell!”

“You may recall back in ’08,” said Quainscott, “the Governor of New York had that spot of bother over his commercial transactions of an intimate nature.”

“Bloody bounder!” ejaculated Wainscott. “Refused to take off his socks, I hear. Appalling lack of chivalry!”

“Quite,” said Quainscott. “And shortly afterwards a number of new judges were appointed to the Appellate Division. At first, the public were overjoyed. The common people threw their caps in the air shouting, ‘Huzzah!’  We young fellows at the Bar felt that a new day had dawned, a Phoenix had risen from the ashes, a corner had been turned, the empty glass had been refilled -”

“In a nutshell, you thought the new judges would be different because they were liberal,” said Ainscott.

“Yes,” said Quainscott. “For about two weeks they were reading the briefs and sometimes even a case or two. But it wasn’t long before they caught the habit of reading only the bench memos written by the same old-regime fossils who merely summarize the prosecution brief and recommend affirming the conviction. And I hardly need say that prosecution briefs are singularly uninformative. ‘Issue unpreserved, Judge Blow correct, defendant a villain,’ that sort of thing. Leaving the judges untainted by any knowledge of the case.”

“Might as well talk to a cabdriver about your case as to the Appellate Division,” agreed Ainscott.

“Cabdrivers are more open-minded,” said Wainscott. “But do continue, Quainscott.  Your story interests me deeply.”

“It was a day like any other at the Appellate Division,” said Quainscott. “The lawyers gathered in the courtroom.  At 2 o’clock a door opened and the five judges came out and took their places on the bench. The presiding judge launched into the traditional speech: ‘We’ll be here for 6 hours if you each take up ten whole minutes. Trust us, we’ve read your briefs and are thoroughly familiar with the facts and the law in your case. Let’s hurry this along so we can get it over with and do something more important.’

“The words were hardly out of his mouth when suddenly there was a blinding flash and he was incinerated on the spot. Nothing was left but the smell of burned plastic.

“The other judges, being occupied with reading the bench memos, failed to notice. Finally one of the guards whispered something to Judge Number Two who took the Presiding Judge’s place after using a brief to brush the ashes off the chair.

“As soon as the appellant’s lawyer stepped up to the podium, Judge Two demanded, ‘How do you distinguish People v. Rodriguez?’”

Wainscott and Ainscott groaned. “That old dodge,” said Wainscott disgustedly. “Of course the judge had no idea what People v. Rodriguez is about.”

“Precisely,” said Quainscott. “A transparent delaying tactic so the others can read the bench memo. The lawyer explains the distinction, the judge says, “Uh huh,” and never says another word for the rest of the argument. He’s done his part. But this time he went up in smoke.

“Then Judge Number Three, having taken no notice, started reading the bench memo aloud under the pretext of asking a question. Taking up about three minutes of the lawyer’s five. When she finally let him answer, Judge Number Four interrupted with a speech about his views on sex offenders. Poof! They both evaporated into little black clouds.

“It was discovered that the light on the podium, which indicates when the speaker’s time is up, had been adjusted so as to vaporize whatever judge was speaking. Who could possibly have had a motive to commit such a devilish deed? The police were baffled.

“But,” concluded Quainscott, draining his sherry, “I know who it is.”

Ainscott and Wainscott stared at him.

“Speak up, man, for heaven’s sake,” said Ainscott. “Who is it?”

“There were five judges, but only four were vaporized,” said Quainscott slowly. “Doesn’t that tell you anything?”

“The fifth judge was a woman,” said Wainscott quickly. “It couldn’t have been her. Everybody knows women don’t understand electricity.”

“Ah, but what if she wasn’t a woman?” said Quainscott. “What if she had a twin brother who secretly took her place while pretending to be in India?”

“I see the game is up,” groaned Wainscott. “I had to do it, don’t you see? I couldn’t bear to watch my darling sister Hetty – for that was her name – turn into a smug ignoramus haggling with lawyers about whether they could have eight minutes or seven. The shame! The disgrace! And, by George, I’d do it again!”

“Easy, old horse,” said Quainscott. “The better practice would have been not to vaporize your sister and four judges. But I think Ainscott will agree with me that it was harmless error.”

But Wainscott had already vaporized himself into a pin-striped cloud.

“One small step for a shabby old man but a giant leap for justice”

Squawker-at-Large Julian P. Heicklen, arrested for distributing leaflets about jury nullification in front of the federal courthouse in Manhattan, had his jury tampering charge dismissed in Federal court today.

The Feds called him “a threat to the judicial system.” But Judge Wood (not to be confused with Judge Wool, see sidebar)  says the jury tampering statute only means messing with jurors about the case they’re on.  So if your partner is on jury duty and you say, “Are you really going to wear that?” at least you won’t end up in Leavenworth.

But no sweet-talking judge is going to make Mr. Heicklen compromise his principles. Here’s his response:

This is a great victory for the country and will keep me out of federal prison. However all the federal judges in the United States should be removed from office and tried for perjury with the intent to obstruct justice, since they all instruct the jury that it must uphold the law as they give it.  . . . 

Go, Julian! But under that crusty exterior, he can’t resist a good Chinese dinner to which we’re all invited (Dutch treat) :

On Monday, April 23, 2012, I will be distributing jury nullification literature on the plaza in front of the U. S. Federal Courthouse at 500 Pearl Street, Manhattan, NY 10007, from 12:00 noon to 1:00 pm. You all are invited to join me. At 1:30 pm there will be a victory luncheon for everyone who wishes to attend at their own expense at one of the best Chinese restaurants in near-by China Town. Please send me your suggestion for which restaurant you prefer.

The luncheon will to thank Sabrina Shroff and Steven Statsinger, my federal defender stand-by counsels, for their invaluable work to bring the case to a successful solution. I hope to see as many of you as possible at either the distribution or the luncheon, or both. If you plan to attend the luncheon, let me know, so that I can notify the restaurant of how many of us there will be.

One small step for a shabby old man, but a giant leap for justice and our country. On to Orlando on Tuesday, May 8, 2012.

Yours in freedom and justice—Julian

“A shabby old man distributing his silly leaflets from the sidewalk outside a courthouse”

And that’s his defense lawyer talking. No wonder he’s gone pro se.

Julian Heicklen, an 80-year old retired chemistry professor, looks shabby only because he keeps getting  pummeled by U.S. Marshals for handing out leaflets informing jurors of their historic right to acquit in the interest of justice.

Ever vigilant in safeguarding their right to punish ideas they don’t like, the federal prosecutors sent a wired undercover officer disguised as a passerby to talk to him as he stood outside the Southern District of New York courthouse in Manhattan. And for once, we’re not making this up. The following is taken verbatim from the prosecution brief (“available” through the SDNY’s fiendishly user-hostile website):

Heicklen: (handing the undercover a leaflet) Would you like jury information? Find out what you [inaudible]

Agent: I’m a juror, I got picked yesterday.

Heicklen: Oh good, that’ll be good for you to know. Take it home and read this. Thank you very much.

Agent: What’s jury nullification?

Heicklen: The jury has the right to judge the law as well as the facts. The judge will tell you otherwise, but there are several Supreme Court decisions which said that that was true. In other words, if you think the law is unjust you can find a person innocent. . . I‘m not telling you to find anybody not guilty, there should be a reason for it. But if there is a law you think is wrong, then you should do that. And you will be in very good company.

Heicklen then launches into the story of how a jury refused to convict William Penn of being a Quaker and acquitted John Peter Zenger of publishing a newspaper critical of the King.  Other than the laws against being a Quaker or criticizing the King, Heicklen doesn’t mention any law that this “juror” should nullify, let alone ask what kind of case she’s on. The “juror,” who can’t get away fast enough from this bo-rrrring history lesson, answers, “Ok, thank you,” and scurries back to Police Plaza.

For this, Mr. Heicklen is charged with jury tampering, defined as attempting to influence a juror “on an issue and matter before such juror.” Suppose he’d advised her not to spit on the floor during the judge’s charge. Would that have been jury tampering too?

The prosecution argues that Mr. Heicklen is advocating a crime (so no First Amendment protection), without the silly detail of showing what statute makes jury nullification a crime.  All they can say is that judges don’t like it. Well, boo hoo.

With dire warnings of what jury nullification can lead to, the prosecution trots out the acquittal of murderers of civil rights activists in the South (but not the acquittal of the cops in the Rodney King, Diallo or Louima trials) .  Of course those acquittals had nothing to do with how the prosecution handled those cases.

Naturally, the prosecution bitterly opposes a jury trial for Mr. Heicklen. What, they can’t find 12 people in Manhattan willing to throw him in jail for talking about William Penn?

But although this terrible threat to the System has been dragged off the streets, you can still find lots of seditious information at  Fully Informed Jury Association

DA Vandal’s Easter message

Squawk recently returned from a few weeks Down South, and y’all can be sure we’ll inflict our snapshots on you folks by and by.

But jiminy crickets! While we were gone, the DA’s Office, instead of being cool about our needing some extra time to file a li’l ole reply brief, screamed and kicked its collective heels on the floor and demanded that we file it by yesterday.

Now this was just plain lowdown orneriness. Hell, it’s our client not theirs who’s sitting behind bars waiting on the Appellate Division to rubber-stamp his conviction.

So we had to spend the last 96 hours plowing through the mindless rant preceded by a Table of Authorities that the People call a brief, and write a reply. On the day of the deadline, a bedraggled, sleep-deprived, over-caffinated Squawk shuffled uptown to the DA’s office to serve it, only to find it closed up tight for Good Friday. How religious!

Attached to the door was the following Proclamation:

FROM THE OFFICE OF DISTRICT ATTORNEY VANDAL

“Today we celebrate Good Friday, a commemoration of the lawful arrest, successful prosecution and appropriate punishment of the terrorist and career criminal, Jesus “Son of God” Christ.

“Good Friday stands as a shining example of a job well done by law enforcement, the prosecution and the courts.  Defendant Christ posed a grave danger to public safety. His crimes were fully documented: unlicensed manufacture and distribution of alcoholic beverages at the wedding at Cana; unlicensed practice of medicine on numerous occasions; obstruction of government administration by interfering with the stoning of a sex offender; assault and criminal mischief against small businesses operating in the Temple; overfishing the Sea of Galilee; and felony assault when his accomplice Peter cut off the ear of the High Priest’s servant in the course of resisting arrest (notwithstanding that defendant put it back on).

“Defendant Christ’s trial was a model of fairness and due process that our office strives daily to re-create in the NY courts. And, I may say, with some success.

“A handful of discontented lunatics complain that defendant was not provided with a lawyer.  Nothing in the record indicates that he was not given the opportunity to retain an attorney of his choice.  It is sheer speculation to suggest otherwise.

“After all, Justice Pilate made a thorough inquiry of defendant’s competence to represent himself by asking, “Art thou King of the Jews?” Defendant’s answer, “Thou sayest,” clearly, plainly and obviously shows that he thoroughly understood the charges against him, even if there was technically no accusatory instrument. Defendant was on full notice of the crimes he was charged with, since he had committed them himself.

“Some nay-sayers and fussbudgets whine that Justice Pilate abused his discretion by washing his hands in court. To be sure, the better practice would have been to do so in the men’s room, but defendant cannot show how he was prejudiced by this.

“In keeping with this Office’s longstanding position at the forefront of penal reform, we are tirelessly working to reinstate crucifixion as the punishment for all felonies and selected misdemeanors.

“Severe penalties will be meted out to anyone attempting to subvert the finality of the punishment by rising from the dead.”

Xerxes Vandal