Nevada law enforcement resists bill that requires interrogation recordings

Marcella Corona | Reno Gazette-Journal

Nevada law enforcement groups are skeptical of a law that would require officers to record interrogations. The effort is intended to prevent false confessions as presented in the Netflix series “Making a Murderer.”

A hearing on Assembly Bill 414 was rescheduled for Friday at the Nevada Legislature in Carson City. The bill will be heard by lawmakers in the in Senate Judiciary Committee.

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AB414 would require all Nevada law enforcement agencies to record interrogations unless the recording equipment fails or the suspect opts out of having the interview recorded. The bill, proposed by Assemblyman Steve Yeager, D-Las Vegas, passed the Assembly floor earlier this week.

Yeager said the law would create transparency in the state’s criminal justice system and protect officers from scrutiny. The bill would also protect citizens, who could falsely confess to a crime, he said.

Yeager referenced the documentary television series, which premiered in December 2015, as an example. The series tells the story of Manitowoc County resident Steven Avery, who spent 18 years in prison for a rape he did not commit. Avery was later convicted, along with his then 16-year-old nephew, Brendan Dassey, in the brutal murder of photographer Teresa Halback in 2005.

Dassey confessed to the crime after he was questioned for several hours by police. His murder conviction was overturned by a federal magistrate in Milwaukee. At a hearing in February, another judge questioned whether Dassey believed he could go home if he confessed to the crime, according to a report from USA Today.

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Judge Ilana Rovner described him as an “extremely suggestible” teenager with a low-IQ, USA Today reported. Both Avery and Dassey remain in state prison in Wisconsin.

“Really the crux of that case against the juvenile in that situation was really the confession that he made,” Yeager said. “And fortunately in that case, there was a recording of the confession, and that really helped people understand and watch that person’s mannerisms and how things were said to determine whether that confession was really voluntary.”

Local law enforcement agencies oppose the bill. Authorities said most agencies already have policies that require officers or detectives to record an interrogation.

“We feel it’s a poorly drafted attempt to put into statute what better belongs within police department (policies),” said Robert Roshak, of the Nevada Sheriff’s and Chief’s Association. “If in fact this is put into statute and then something changes that would better able us to record or deal with an issue, we can’t do anything for two years. We have to come back.”

Roshak said he believes taping policies should be left up to individual law enforcement agencies.

“All the agencies do it,” Roshak said of recording interrogations. “No one is objecting to it. Under very serious crimes like murder or sexual assault, we’re not going to do just a casual interview.

“We don’t understand why they want to have it quantified in IRS, and they can’t explain it,” he said. “We don’t know what the Innocence Project is going after.”

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The Innocence Project has been pushing to the pass bill. Twenty-four states have laws that mandate law enforcement to record interrogations, said Michelle Feldman, legislative strategist for the Innocence Project.

“Some agencies said it was up to the discretion of the officers,” Feldman said. “So the officer really makes the decision. Some agencies require it for all crimes, some for only serious crimes. So we thought a bill would be a way to achieve uniform process.”

Feldman said the Innocence Project met with the Washoe County Sheriff’s Office, the Nevada Sheriffs’ and Chief’s Association the Nevada Attorney General’s Office and the Las Vegas Metro Police Department.

“And at the Assembly Judiciary Committee, they came out in opposition,” Feldman said. “And the only real reason they had was that they don’t want the legislature telling agencies how to do their business.

“But without this law, there’s really no protection for innocent people in Nevada because if the officer chooses not to record, then nothing happens.”

Gov. Brian Sandoval recently signed a bill that would require police officers to wear body cameras starting next year.

“So it doesn’t make sense to fight against something that would require them to record one of the most important parts of the criminal investigation, which is the interrogation that happens behind closed doors,” Feldman said.

Feldman used the murder case involving Cathy Woods as an example of someone who falsely confessed to a crime because of mental health issues. Woods served 35 years in prison for the 1976 murder of a college student Michelle Mitchell. She was exonerated in 2014 after DNA evidence found at the crime scene matched someone else.

Woods is one of the longest-serving women to be wrongfully convicted and then exonerated in United State history, according to the National Registry of Exonerations database.

Three years after Mitchell was murdered, Woods confessed while in a mental institution in Shreveport, La. She was diagnosed with paranoid schizophrenia and was involuntarily committed, according to her attorneys.

“It’s first to protect the innocent, but also to ensure that the real perpetrator is caught,” Feldman said of AB414. “In (Woods’) case, there was another perpetrator who went out there to kill other women. So that’s a serious consequence.”

“But the agencies that don’t record, there’s a greater risk that suspects are vulnerable during interrogations,” she said. “It’s also more difficult in the courtroom because often defense attorneys will move to suppress a defendant’s confession or statement, and without a tape, it’s really hard for the judge to understand what really happened.”

Deputy Chief Tom Robinson, of the Reno Police Department, said he agrees law enforcement is generally under scrutiny nationwide.

“And a lot of it is done from cases that are occurring across the nation,” Robinson said Thursday. “We haven’t had those issues here in Nevada, and I think it really goes down to good practice, good policy and good training.”

Robinson said the Miranda right also protects people from falsely confessing. Individuals placed under arrest aren’t required to talk to a police officer.

“We don’t just rely on someone saying, ‘Yes, we did it,’ when we’re determining whether or not there’s enough cause to arrest them,” Robinson said. “Anybody can walk in through our door and say, ‘Hey, I killed somebody.’ We would have to back that up with proof.”

Robinson said the Reno Police Department also records interrogations, and those recordings are often presented as evidence in court.

“For us, it’s already our practice,” he said, adding Reno police is neither for nor against AB414. “If the intent is to get all the different agencies statewide onboard, then I guess a legislative mandate is necessary.”

Sgt. Corey Solferino, of the Washoe County Sheriff’s Office, said he believes the bill could jeopardize cases. If the equipment fails, people could misconstrue the situation.

“Basically, just the fact that it wasn’t recorded, now there’s some sort of conspiracy theory,” Solferino said.

He said he’s concerned about equipment failures that could create procedural issues that would lead to a case getting dismissed or placed under a cloud of suspicion.

“As technology evolves, it can change the way we do business,” he said. “We’re in the law enforcement business, not in the technology business. We don’t want to provide an otherwise solid case an avenue for dismissal.”

Both Solferino and Robinson said they were also concerned other agencies won’t be able to afford the proper recording equipment. The new equipment would also need to be compatible with the technology each agency already owns.

“It becomes an issue that each department will have to figure out how to resolve it if they don’t already have systems in place,” Robinson said.

But Feldman, of the Innocence Project, argued the bill is also a cost saving measure.

“If the agency doesn’t have a lot of money, you can buy a $30 tape recorder, and you can tape record the interview,” Feldman said. “When you compare that cost with the multimillion dollar wrongful conviction settlements, like Cathy Woods is now suing, that’s going to be a lot of money that taxpayers are on the line for.”

Law enforcement agencies also worry the bill would tie officers’ hands when it comes to interrogations. Robinson said he’s worried about giving suspects an opportunity to opt out of recording an interrogation.

“It’s the most counterintuitive,” he said. “If you’re trying to protect the citizen and that means calling into question the officer’s integrity, then you don’t want the recording turned off.”

Solferino said police sometimes end up questioning suspects outside an interrogation room.

“Our custodial interrogations are done from our detective division at the sheriff’s office versus out in the field in the back of a patrol car,” Solferino said. “But sometimes that does constitute a custodial interrogation. So it’s kind of tying a hand to law enforcement to be able to react to cases on the fly.”

“A lot of what law enforcement is about is not black and white,” Solferino said. “We operate a lot in the gray.”