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)).

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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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