Wednesday, December 10, 2014

I've done thirteen posts

(here, here, here, here, here, here, here, here, here, here, here, here, and here)

about Sarah Koenig's Serial Podcast, which deals with the 1999 prosecution of 17 year-old Adnan Syed for murdering his ex-girlfriend, 18 year-old Hae Min Lee. This post is about the eighth episode of the Serial Podcast: "The Deal With Jay." This episode deals with Jay, the key witness for the prosecution. In turn, this posts deals with Maryland law regarding the recording of police interrogations and the duty of the police to pursue "bad evidence."

The Pre-Interview

In the eighth episode, Sarak Koenig talks with Jim Trainum, who used to be a homicide detective in Washington D.C. Actually she does more than that; she gives him everything that she has on Adnan's case and asks him to grade the detectives who investigated the case. Trainum rates them "better than average," but with the following caveat:

But what I’m saying is this: the mechanics, the documentation, the steps that they took, and all of that, they look good. Okay? I would have probably followed this same route. However, what we’re unsure of is what happened to change Jay’s story from A to B, and we do not know what happened in the interrogating--those three hours and that will always result in a question as to what the final outcome should have been.

Here's what Trainum means. Jay gave one version of the events regarding the day of Hae's death during his first police interview. Then, after being shown the call records from Adnan's cell phone, Jay gave a very different version of events during his second police interview. On the day of his second police interview, Jay signed an explanation of rights form at 3:15 P.M. At the start of the recording of Jay's second police interview, a detective says, "Today’s date is the 15th of March. It’s approximately twenty minutes after six at night. "

As Sarah Koenig explains:

6:20 p.m. So from 3:15 to 6:20, three hours have gone by since Jay signed that form. This is what’s called the pre-interview, and Trainum says, that’s where the mischief can happen. The contamination. Not necessarily intentionally, but it happens. The pre-interview was when the cops and the witness kind of iron out the statement so it can be taped as a coherent thing. That was standard procedure back then. Now, like a lot of jurisdictions, Baltimore homicide detectives videotape the entire interview from the moment the person steps in the interview room. On March 15th, we know the cops had shown Jay at least some photographs from the investigation, they refer to that on the tape. And Jay says at trial that he was confronted with the cell records during that interview as well, so you have to wonder, said Trainum, whether he was massaging his story to fit what the cops wanted to hear. The inconsistencies in Jay’s statements that the cops are catching him in, Trainum says, cops are used to that. Every confession has inconsistencies. You just need to understand why they’re happening. Is he minimising his role? Is he protecting someone? In Jay’s case, yes and yes. But how do you make sense of the inconsistencies that don’t seem to have a purpose, like the one about going to the cliffs at Patapsco State Park that afternoon, how it drops out of the narrative at trial. (emphasis added)

So, let's follow up on this thread. First, what are the different approaches taken by different jurisdictions with regard to recording interrogations? Let's start at the police department level. According to the report, "Promoting Effective Homicide Investigations,"

Departments videotape different segments of interrogations. Some videotape only the confession or final statement. Others videotape the interrogation but not the pre-interview. Others videotape the entire interrogation, from the reading of the Miranda rights to the end of the interview. The criteria regarding how much to videotape are established at the departmental level or through legislation. The decisions can be based on 1. identifying what is sufficient to succeed in court or is acceptable to the prosecutor’s office, 2. a desire not to share too much of the department’s investigative techniques with juries, and/or 3. consent requirements (dual-party consent states require the suspect to consent to the videotape proceedings).

This takes us to the Baltimore County Police Department, which investigated Adnan's case. I can't find any information about when Baltimore County decided to start recording entire interrogations, but this 2012 article about the Baltimore City Police Department deciding to record entire interrogations references this already being the policy in Baltimore County. [Note: A reader informs me that, while Adnan's trial was in Baltimore County, the investigation was by Baltmore City Police. Therefore, it was in fact 2012 when the police department which investigated Adnan's case decided to record entire interrogations.]

Is this because of state law? Sort of. This takes us to the state level. Passed in 2008, Section 2-402 of the Maryland Code of Criminal Procedure provides that:

It is the public policy of the State that:

(1) a law enforcement unit that regularly utilizes one or more interrogation rooms capable of creating audiovisual recordings of custodial interrogations shall make reasonable efforts to create an audiovisual recording of a custodial interrogation of a criminal suspect in connection with a case involving murder, rape, sexual offense in the first degree, or sexual offense in the second degree, whenever possible; and

(2) a law enforcement unit that does not regularly utilize one or more interrogation rooms capable of creating audiovisual recordings of custodial interrogations shall make reasonable efforts to create an audio recording of a custodial interrogation of a criminal suspect in connection with a case involving murder, rape, sexual offense in the first degree, or sexual offense in the second degree, whenever possible.

As Michael Kiel Kaiser noted in Wrongful Convictions: If Mandatory Recording Is the Antidote, Are the Side Effects Worth It?, 67 Ark. L. Rev. 167, 174 (2014), "In 2008, Maryland made it 'public policy' for law enforcement to make an audiovisual recording of custodial interrogations involving certain felonies, although it did not go so far as to mandate recording."

While it didn't mandate recording, Maryland certainly encouraged recording, and it also created a mechanism to keep tabs on the progress of jurisdictions in complying with Section 2-402. Here's Section 2-404 of the Maryland Code of Criminal Procedure:

On or before December 31, 2009, and annually thereafter, the Governor’s Office of Crime Control and Prevention shall report to the House Judiciary Committee and the Senate Judicial Proceedings Committee, in accordance with § 2–1246 of the State Government Article on the progress of jurisdictions and the Department of State Police in establishing interrogation rooms capable of creating audiovisual recordings of custodial interrogations.

In turn, here's the latest Section 2-404 report: 2013 Report. As you can see from the report, Baltimore County currently has 10 interrogation rooms, and all 10 are capable of creating audiovisual recordings. Overall, the report pants a pretty good picture of Maryland practice: Every Maryland jurisdiction with more than 1 interrogation room has at least one room capable of creating an audio and/or visual recording. [Note: The report shows that the Baltimore City Police Department has 18 interrogation rooms, only 2 of which are capable of creating audiovisual recordings.]

So, where do Maryland and Baltimore County City fall on the state and jurisdiction spectrum? According to the Innocence Project,

To date, Connecticut, Illinois, Maine, Maryland, Michigan, Missouri, Montana, Nebraska, New Mexico, North Carolina, Ohio, Oregon, Vermont, Wisconsin, and the District of Columbia have enacted legislation regarding the recording of custodial interrogations. State supreme courts have taken action in Alaska, Indiana, Iowa, Massachusetts, Minnesota, New Hampshire, and New Jersey. Approximately 850 jurisdictions have recording policies.

In other words, Maryland is one of 21 states (plus the District of Columbia) to have law/precedent regarding the recording of interrogations, and Baltimore County City is one of approximately 850 jurisdictions with a recording policy.

This takes my to my second issue: Why have so many states/jurisdictions enacted recording laws/policies? Interestingly, this relates back to my post from yesterday about DNA testing. In large part, these recording laws/policies are a reaction to the Innocence Project securing the exonerations of individuals who were wrongfully convicted based in large part on false confessions and/or false statements by other witnesses.

This takes me back to the eighth episode because it appears as if Maryland passed its recording law after hearing testimony by Trainum. Here's part of that testimony:

Last Spring I was a participant in the Homicide Investigators Conference sponsored by the Police Executive Research Forum. The conference was attended by law enforcement agencies of all sizes from all across the country. One of the topics under discussion was the videotaping of the interrogations of suspects. The conference fell into two camps – those who videotape interrogations from start to finish and those who don’t. Those who don’t act like mandating it is the end of the world. Those who do - love it. Those who do have found that that they still get confessions, that they get better confessions and that the confessions are much easier to defend in court. The unexpected benefits are that videotaping makes their detectives better interviewers, suppression hearings are almost eliminated and the public confidence in the department increases.... Mandatory videotaping also helps to prevent the ugly side of interrogation – and that is false confessions. I have gotten two false confessions in my career. In neither did I use anything but standard interrogation techniques. In neither did I act maliciously. I feel that this is true in most false confessions. In the first case, my co-workers and I honestly believed that we had evidence linking the suspect to the crime. We went into the interrogation room with that belief and we came out many hours later with a confession. The suspect was of above average intelligence, there was no yelling, no physical abuse and no cursing. And thank God that for some reason we started the video early on in the interrogation and chose to keep it on for the duration. The case progressed – even her defense attorney believed that she was guilty because of the confession. We hit a wall when, during our follow-up work we discovered her alibi. It was iron clad. Even though the case was dismissed, we all believed that she was guilty – why else did she confess – how could she know the details that she did? And we continued to investigate her. Years later, during a review of the videotaped interrogation we discovered our mistake. We fell into a classic trap – we believed so much in our suspect’s guilt that we ignored all evidence to the contrary. And to show her the strength of our case, we showed her our evidence – and unintentionally fed her the details that she was able to parrot back to us at a later time. It was a classic false confession case, and without the video we would never have known. Videotaping interrogations from start to finish is the right thing to do. Failure to use cheap and available technology to build strong cases against the guilty and to protect the innocent is wrong. And it needs to be mandatory, and have rules and sanctions. If these are not in place, then we will fall prey to the unscrupulous of those among us who work so hard to find loopholes to take what they think is the easy, but wrong path.

The Duty to Pursue "Bad Evidence"

This flows into the second part of this post. In the above testimony, Trainum cites to a case where his team fell into the classic trap of believing "so much in our suspect’s guilt that we ignored all evidence to the contrary." This ties into a later conversation in the eighth episode in which Sarah Koenig asks Jim Trainum why the detectives didn't do more to investigate the inconsistencies in Jay's stories, prompting this give and take:

Jim Trainum No, no, you’re not at all because I think that one of the biggest problems that we have with the way that we interview and interrogate here. The fact that we have a excellent witness-- we’ve got somebody who is giving us the whole case right here, he’s broke it wide open for us, we don’t want to ruin him, you know? So how much do you want to push, how much do you want to create “bad evidence?” Sarah Koenig But, there’s no such thing-- Jim Trainum It’s an actual term, called “bad evidence.” Right. You don’t want to do something if it is going to go against your theory of the case.

At this point, you may be wondering whether police in fact can put on the blinders when they think that they have their man. The answer: Yes, they can. It's not uncommon to find quotes in cases like this one from Molnar v. Care House, 574 F.Supp.2d 772 (E.D.Mich. 2008):

"Once a law enforcement officer has 'probable cause' he is under no duty to continue the investigation to determine whether exculpatory evidence existed, and is under no obligation to investigate, or give credence to, a suspect's story or alibi. Ahlers, 188 F.3d at 371. See also Logsdon v. Hains, 492 F.3d 334 (6th Cir.2007) ('After a law enforcement officer determines, on the basis of the facts and circumstances known to him, that probable cause exists to support an arrest, the officer has no further duty to investigate or to search for exculpatory evidence.')."

Conclusions

So, where does this leave us? In many jurisdictions, including Baltimore County City, there couldn't currently be a case like Adnan's case in which we don't know what happened during the pre-interview of a witness such as Jay. In other jurisdictions, the pre-interview or indeed the entire interrogation might not be recorded. Meanwhile, in every jurisdiction, the police might refuse to pursue "bad evidence" without legal consequence or recourse.

[Note: My reader also pointed me to Cooper v. State, a case in which one of the detectives in Adnan's case, inter alia, "intentionally withheld the reading of the Miranda warnings during the first 90-minute stage of the interrogation, for fear that appellant would refuse to talk or ask for a lawyer."]

-CM

https://lawprofessors.typepad.com/evidenceprof/2014/12/ive-done-thirteen-posts-herehereherehereherehereherehereherehereherehere-andhere-about-sarah-koenigsserial-podc.html