Court of Appeals to Determine Police Deception Limits

, New York Law Journal

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Adrian Thomas waits alone in the interrogation room of the Troy police station
In a still from the documentary "Scenes of a Crime," Adrian Thomas waits alone in the interrogation room of the Troy police station in 2008.

ALBANY - Just how far can police go before trickery becomes unconstitutional coercion?

Since 1867, the New York Court of Appeals has embraced the proposition that cops can mislead, deceive and lie to secure a confession.

But in an era of heightened concern over wrongful convictions, many of which involved a false confession, the constitutional limits of police deception are the focus of a pair of appeals that will be argued before the Court of Appeals Tuesday afternoon.

The two cases—People v. Thomas, 18, and People v. Aveni, 19—come from different parts of the state and arise from different legal conclusions by the respective appellate division departments. But they ask the same fundamental question: Is there a point at which police fabrications are so coercive as to render a confession involuntary and, if so, where does the court draw the line?

In Thomas, the Third Department unanimously upheld a confession Troy police obtained after interrogating a man for more than nine hours, and only after repeatedly lying to the suspect and threatening to arrest his wife for the presumed murder of their baby.

But seven months later the Second Department in Aveni seemingly held law enforcement to a higher standard, unanimously agreeing that police in New Rochelle went too far when they led the suspect to believe that the victim was alive.

Thomas centers on the 2008 death of four-month-old Matthew Thomas, one of seven children of the defendant, Adrian Thomas, and his wife.

Matthew, born two months premature, had been a sickly baby and was suffering from both pneumonia and sepsis, records show. He weighed only 15 pounds and had been experiencing fevers, vomiting and diarrhea for several days.

One Sunday morning, the baby was found unresponsive and brought to the hospital, where Matthew was close to death. A physician told Troy police, wrongly, that the infant had a fractured skull. Detectives zeroed in on Adrian Thomas.

Over the span of two days, police interrogated Thomas, and for the first time ever in Rensselaer County recorded every minute of the interrogation, providing a bird's eye view of expert detectives at work.

Jurors were able to watch Thomas constantly resist the various good cop-bad cop tactics, insults to his manhood, accusations and entreaties. They were also able to watch detectives lie and eventually obtain a confession.

Throughout the questioning, Thomas repeatedly insisted that he did not hurt his child and did not know how the boy could have sustained a head injury. He finally confessed when a detective falsely told the suspect that doctors needed to know precisely what happened so they could save Matthew's life.

At that point, the detective knew what Thomas did not, that the baby was brain dead and would not survive.

The detective suggested to the 500-pound Thomas that perhaps he had roughly thrown the baby into his crib and handed the suspect a binder to demonstrate. Thomas threw the binder on the floor and signed a confession stating that he had thrown the baby onto a mattress several times.

In a unanimous opinion by Justice Edward Spain (See Profile), the Third Department upheld Thomas' conviction to second-degree murder charges and the 25-year-to-life sentence imposed by Rensselaer County Judge Andrew Ceresia (See Profile) (NYLJ, March 23, 2012). It said the police officers' "repeated misrepresentations" were not of the sort that would "create a substantial risk that he [Thomas] might falsely incriminate himself."

Critically, the court also upheld a key ruling in which Ceresia, after conducting a Frye hearing (see Frye v. United States, 293 F. 1013 (1923), refused to allow testimony from a social psychologist.

Richard Ofshe, an expert in psychological coercion who has testified in dozens of cases, was expected to explain to the jury how police play mind games with suspects, and how those games can induce an innocent person to falsely confess to a crime. But Ceresia found that Ofshe's theories were not generally accepted in the scientific community and would not let him testify.

On Tuesday, defense attorney Jerome Frost of Troy will face off against Assistant Rensselaer County District Attorney Kelly Egan.

"The Troy Police made more promises and misstatements to Adrian Thomas than the proverbial snake oil salesman," Frost said in his brief.

Frost observed that over the course of the 9 1/2-hour interrogation, police told his client 67 times that they viewed the matter as an accident and not a crime, 21 times that the child was alive and savable, 14 times that he would not be arrested, eight times that he was going home that night and three times that he would not be held criminally responsible.

The defense attorney insists that the theory of the case, which shifted from a broken skull to shaken baby syndrome after it became obvious the initial diagnosis was inaccurate, is demonstrably wrong. Frost claims that Matthew died from septic shock, and not from anything done by his father. That issue was hotly contested at trial, with experts for the defense claiming the child died of an infection and experts for the prosecution opining that the infection was secondary to physical injuries consistent with shaken baby syndrome.

Egan, in her brief, said that "while the detectives' misrepresentations may have convinced defendant to divulge information that he otherwise might not have, it created no risk that he would provide a false statement." The prosecutor, like the Third Department, reasoned that a parent "genuinely moved by a desire to help doctors treat his child would only provide true information."

The Thomas case has generated national attention, largely the documentary, "Scenes of a Crime," that provides extensive footage of the interrogation and interviews with the detectives and jurors. "Scenes of a Crime," produced by Grover Babcock and Blue Hadaegh of California, has been shown coast-to-coast and was honored by the American Bar Association (NYLJ, July 23, 2012).

Thomas has also prompted a plethora of amicus briefs. The New York City Bar, American Psychological Association, Legal Aid Society and New York Law School Post Conviction Innocence Clinic all submitted briefs in support of the defendant. The District Attorney's Association of the State of New York is appearing amicus curiae in support of the prosecution in both the Thomas and Aveni cases.

Fatal Dose of Drugs

Aveni arose from Westchester County and mirrors Thomas in that the defendant confessed only after he was lied to by police.

Defendant Paul Aveni's 25-year-old girlfriend, Angela Camillo, died in 2009 from a fatal combination of heroin, ecstasy and Xanax, a prescription anti-anxiety drug. Shortly after Camillo's death, police interrogated Aveni, who claimed he had found the woman unconscious and called 911.

A New Rochelle detective, who knew Camillo was dead, told Aveni that his girlfriend was in the hospital and that doctors needed to know if she had taken any drugs so they could treat her appropriately. The detective also told Aveni that Camillo is "okay now, but if you lie to me and don't tell me the truth now and they give her medication, it could be a problem."

Aveni immediately admitted injecting Camillo with heroin and giving her Xanax.

After Supreme Court Justice Richard Molea refused to suppress the statement, Aveni was convicted of criminally negligent homicide and other charges in a trial before Justice Susan Cacace.

The Second Department unanimously reversed.

"The detectives not only repeatedly deceived the defendant by telling him that [the victim] was alive, but implicitly threatened him with a homicide charge by telling the defendant that the consequences of remaining silent would lead to [her] death, since the physicians would be unable to treat her, which 'could be a problem' for him," then-Justice Ariel Belen wrote for the court. "While arguably subtle, the import of detectives' threat to the defendant was clear: his silence would lead to [the victim's] death, and then he could be charged with homicide."

Assistant Westchester County District Attorney Raffaelina Gianfrancesco and defense attorney David Weisfuse of White Plains are slated to argue the appeal.

Gianfrancesco said that in the early hours of the investigation police were at a distinct disadvantage.

"So, the police used a common and judicially approved interrogation strategy in furtherance of their duty to protect the safety of the public," Gianfrancesco said in her brief. "They lied."

Gianfrancesco maintains in her brief that there was nothing coercive in the tactics used by New Rochelle police.

Weisfuse countered that detectives "eviscerated any sense that the defendant may have had that he could safely exercise his privilege against self-incrimination."

Brooklyn Supreme Court Justice Barry Kamins (See Profile) said in a Law Journal article the New York courts "have traditionally been tolerant of deception in confession cases" (NYLJ, Dec. 3, 2012). Kamins said that in a long line of cases starting with People v. Wentz, 37 NY 303 (1867), the Court of Appeals has consistently held that "deception, in and of itself, will not render a confession involuntary."

Thomas and Aveni provide the court with an opportunity to revisit the issue and revise its rules. The Court of Appeals did not have to take either case and the matters are now in Albany as a result of leave grants by Judge Robert Smith (See Profile) in Thomas and Judge Eugene Pigott Jr., (See Profile) in Aveni.

Attorneys in the two cases have been allotted a total of one hour for oral argument. The arguments, which will be webcast through the Court of Appeals' website at http://www.nycourts.gov/ctapps/, are slated to begin at roughly 2:45 p.m., but could be altered depending on the length of other arguments earlier on the calendar.

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