Justice Skelos
NYLJ/Rick Kopstein
A script that Queens law enforcement officials read to a defendant in a pre-arraignment interview program rendered subsequent Miranda warnings ineffective, stripping the defendant of his constitutional right against self-incrimination and requiring a new trial, a state appellate court ruled yesterday.
"The preamble formulated by the District Attorney's office adds information and suggestion to the Miranda warnings which prevent them from effectively conveying to suspects their rights… When the clear and unequivocal warnings devised in Miranda are combined with the information and suggestion contained in the preamble, the message conveyed to suspects is muddled and ambiguous. Correspondingly, when the warnings are combined with the preamble, it cannot be said with assurance that the suspects clearly understood their rights," Justice Peter Skelos (See Profile) wrote for the Appellate Division, Second Department, panel in People v. Dunbar, 2010-04786.
He ordered the videotaped statement of defendant Jermaine Dunbar, obtained through the program, be suppressed.
Since the error in allowing the statement to be used at his trial was not harmless beyond a reasonable doubt, Skelos said Dunbar's conviction must be reversed.
Justices Ruth Balkin (See Profile), John Leventhal (See Profile) and Jeffrey Cohen (See Profile) joined the unanimous panel, which heard arguments on Sept. 4.
The case was one of three challenging the interview program. The panel reached identical results in the two other opinions, People v. Lloyd-Douglas, 2010-03736, and People v. Polhill, 2010-01680, both unsigned.
Queens District Attorney Richard Brown said in a statement that his office would appeal the ruling.
"This office is committed to doing everything in its power consistent with the law to ensure that the innocent are never wrongfully convicted and that only appropriate charges based on the evidence are filed against the guilty," Brown said. "Our Central Booking Interview Program is an integral part of our making certain that justice is done with respect to each and every one of the cases that we handle."
Brown noted that his office had dismissed charges against more than 100 "innocent people" before arraignment because of the program, and reduced charges and lowered bail recommendations against many others. More than 12,000 interviews have been conducted since the program was instituted in 2007.
Brown said the script's wording was revised since the program began and "virtually none" of the statements the panel found objectionable are in the most recent version. Moreover, the office further modified the script after yesterday's ruling.
See the original version of the script, revisions from 2009 and 2012, and yesterday's revised version.
The Second Department previously had ruled that a Queens judge overstepped his authority in questioning the ethics of the program (NYLJ, Dec. 20, 2012). But the court had not ruled on its constitutionality until yesterday.
A number of defense bar organizations and civil liberties groups filed an amicus brief supporting the defendants in the current appeal.
Under the program, as defendants await arraignment, they are read a script by law enforcement officials and given Miranda warnings.
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Mike M
Frankly, I thought the first version was the best from the standpoint of the person being charged. It clearly urges him or her to bring forth any alibi or other explanation why the charges are wrong. The later versions muddle the matter in my opinion.
Granted there may be things happening in practice that don't appear on the interview form, but I can easily understand why the DA's office thought they were doing a fair and good thing here. But, as they say, no good deed goes unpunished.
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W. Addo
I have such an enormous respect for Mr. Brown's Office for quickly revising its pre-arraingment script in conformance of the law. Good work, Mr. Brown. WA
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Michael
Silly me, I thought the ARRESTING OFFICER has to read the Miranda rights PRIOR TO ARREST/INTERROGATION (including pre-arraignment questionning). So, the DA has now taken over that role for the police? If someone requests and attorney for the Pre-Arraignment Interview, how would an attorney be assigned if the charges are not formally brought (that occurs at arraignment). So, who is the attorney that will be assigned; will they be the same attorney assigned subsequent to arraignment? It's a shame the Judge chooses to continue to protect his fellow club-member (attorney) instead of blatantly calling DIck Brown out for his hypocrisy, immorality, and plain, simple illegality of ambushing defendants JUST BEFORE they are allowed to speak to yet ANOTHER MEMBER OF THE CLUB....(defense attorney). Smart defendants will never take the advice of an 'assigned counsel'...they are strictly interested in plea bargaining and lightening their case load. When a sitting Criminal Court Judge states "Your guilt or innocence DOESN'T MATTER", on the record in a criminal proceeding (I wish I had bought the transcript), then that pretty much sums up the Judiciaries ideas of 'in'-justice.
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PeteF
The whole story is a lie from top to bottom. Mr.Brown has as much to do with his office as I have. It is nonsense. If the DA was truly interested in helping those in the pre-arraignment process he should have provided for an attorney to be present before any questioning.
The governor should step in immediately and replace Mr.Brown before his staff can do more damage than they have already done.
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