Police Trickery Prompts Concern From State's High Court

, New York Law Journal

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Judges of the New York Court of Appeals hear arguments about the potential of police deception to elicit a false confession in the cases of 'People v. Thomas' and 'People v. Aveni' in Albany on Tuesday.
Judges of the New York Court of Appeals hear arguments about the potential of police deception to elicit a false confession in the cases of 'People v. Thomas' and 'People v. Aveni' in Albany on Tuesday.

ALBANY - The constitutional limits of police deception, and the potential for trickery to cause a false confession, seemed to trouble the judges on New York's highest court Tuesday as they heard two appeals challenging nearly 150 years of jurisprudence.

For more than an hour, the judges engaged in a lively give-and-take with defense and prosecution attorneys in two cases that are unrelated except for the fact that both involve defendants who confessed after they were tricked by police. The Court of Appeals has long held that police can resort to deceit and subterfuge to persuade a suspect to confess.

But People v. Thomas, 18, and People v. Aveni, 19, arise at a time when it is now well documented that people have been wrongly convicted of crimes, and most of them falsely confessed during police interrogations.

Adrian Thomas and Paul Aveni both claim their confessions were coerced and involuntary as a result of police deceptions. In Thomas, the defendant goes a step further and alleges that his confession was not just coerced, but patently false.

Chief Judge Jonathan Lippman (See Profile), who has made righting wrongful convictions a priority of his tenure, repeatedly expressed concern over the fairness of deception, and several judges suggested they are looking for a rule or a line distinguishing permissible deceptiveness from unconstitutional coercion.

Thomas was convicted in Rensselaer County of second-degree murder on the strength of a confession he yielded after a 9 1/2 hour interrogation.

After repeatedly denying that he harmed his 4-month-old baby, Thomas told detectives he roughly threw the infant on a mattress several times. But the admission came only after police threatened to "scoop up" the defendant's wife, wrongly told him that doctors could save his brain-dead child if they knew exactly what happened, and suggested how the "accident" may have occurred.

With police prompting, Thomas threw a binder on the floor, demonstrating how he had abused his baby. But the defendant immediately recanted the confession.

Medical proof at trial suggested the baby was gravely ill with pneumonia and sepsis. Defense and prosecution witnesses differed on whether the baby suffered a head injury and, if so, whether injury or illness led to the child's death.

The Appellate Division, Third Department, upheld Thomas' conviction and also affirmed Supreme Court Justice Andrew Ceresia's refusal to allow expert testimony on the link between coercive interrogations and false confessions. Ceresia held that the theories of Richard Ofshe, an expert in psychological coercion who frequently testifies in criminal trials, did not meet the Frye standard for admissibility (see Frye v. United States, 293 F. 1013 (1923)).

Defense attorney Jerome Frost was pressed on what exactly he wanted from the court, not just in this case, where he obviously wants a reversal, but in a broader sense. He was asked several times to define a proposed rule.

Frost said Thomas was subjected to a "cruel hoax," namely that his child could survive if only he "bought into" the detective's theory.

"You don't threaten a person's vital interests, such as the freedom of the spouse, taking away his children," he said.

The prosecutor, Assistant Rensselaer County District Attorney Kelly Egan, faced by far the most aggressive questioning from the court from the moment she walked to the podium. She didn't get beyond "may it please the court" before questions came fast and furious from every judge on the bench.

"Counselor, what about the officer saying 67 times that we know what happened was an accident and 140 some odd times that he wouldn't be arrested. How do you square that with a voluntary statement on his part?" Lippman asked.

Egan urged the court to look at the totality of the circumstances.

"They were certainly applying pressure to him and they wanted him to speak with…," Egan said before the chief judge cut her off.

"Well, what is acceptable pressure?" Lippman asked. "What is okay and what is not okay in terms of deception?"

Egan said deception is acceptable as long as it doesn't override a suspect's free choice or create a substantial risk of a false confession. She disputed that police threatened to arrest Thomas' wife.

"They said they would speak to his wife and scoop her up," Egan said. "They did not say they were going to arrest her."

Judge Robert Smith (See Profile) immediately cut her off. "You're saying, 'We're going to scoop your wife up' is not a threat?" he asked incredulously.

Smith, who had granted leave in the case, pressed Egan on the detective's misrepresentation of the baby's condition.

"What about telling him falsely, 'Your child will die unless you talk to us.' Is there anything that can possibly overbear the will more than that?" Smith asked. "What were they trying to accomplish when they told him the child was still alive?"

Egan said police were hoping that Thomas would reveal what had happened.

"How can it not overbear your will if you think there's even a small chance of saving your child's life?" Smith asked.

Aveni is a Westchester County case involving the death of a woman who died in 2009 from a fatal combination of heroin, ecstasy and the anti-anxiety drug Xanax.

When police questioned Aveni, the victim's boyfriend, they knew the woman was dead but told the suspect she was alive and that doctors needed to know exactly what drugs she had taken to save her life. Police also suggested to Aveni that he would be charged with murder if he didn't provide the information and the woman died.

The Appellate Division, Second Department, unanimously reversed Aveni's conviction, finding that police "not only repeatedly deceived the defendant" but implicitly threatened to charge him with murder unless he confessed.

Assistant Westchester District Attorney Raffaelina Gianfrancesco argued that the Second Department erred in failing to consider the totality of the circumstances.

"This confession was voluntary and the deceptive practices used did not fall under circumstances" likely to induce a false confession, Gianfrancesco argued. "Clearly, this is not a false confession case."

Aveni's attorney, David Weisfuse of White Plains, said the defendant's Miranda rights were violated when, on one hand, police told his client he could remain silent, and on the other hand told him that it was imperative he tell them what happened to the victim.

Ingrid Effman also argued for Thomas.

What's being said

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    What a terrible situation. Tell us what happened so your child can be saved ? That crosses the line. A police force from another era engaged in such tactics; they were called "Gestapo".

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