New Trial Ordered for Suspect Tricked Into Confessing

, New York Law Journal

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Adrian Thomas in the interrogation room of the Troy police station
Still from the documentary "Scenes of a Crime" shows Adrian Thomas in the interrogation room of the Troy, N.Y. police station on Sept. 21, 2008.

ALBANY - The Court of Appeals on Thursday overturned a homicide conviction in a case where police used deception and subterfuge to trick an upstate man into confessing to the murder of his 4-month-old baby.

In a unanimous decision, the court said the sheer volume of the deceptive techniques used by Troy police to obtain a confession from Adrian Thomas overwhelmed the defendant's free will and rendered his statement involuntary. The court suppressed the statement and granted the defendant a new trial.

"The choice to speak where speech may incriminate is constitutionally that of the individual, not the government, and the government may not effectively eliminate it by any coercive device," Chief Judge Jonathan Lippman (See Profile) wrote for the court. "What transpired during defendant's interrogation was not consonant with and, indeed, completely undermined, defendant's right not to incriminate himself—to remain silent."

Police interrogated Thomas for 9 1/2 hours, playing good cop/bad cop, repeatedly promising him that he would not be arrested, falsely claiming that his wife had implicated him, threatening to arrest his wife, misleading him into thinking that his son's life could be saved if he provided information and finally suggesting to him how a 500-pound man could "accidentally" injure his 15-pound child.

Lippman said the "highly coercive deceptions" were "of a kind sufficiently potent to nullify individual judgment in any ordinarily resolute person and were manifestly lethal to self-determination when deployed against defendant, an unsophisticated individual without experience in the criminal justice system."

The ruling overturns the Appellate Division, Third Department, which had unanimously affirmed Thomas' conviction.

People v. Thomas, 18, was one of two appeals in which the court was asked to determine the point at which police deception—a law enforcement tool that the court has sanctioned for nearly 150 years—is so psychologically coercive as to render a confession involuntary and therefore unconstitutional.

In the other matter, People v. Aveni, 19, the Appellate Division, Second Department had overturned a Westchester County homicide conviction because police had lied to and tricked the defendant into confessing. The high court dismissed the appeal on technical grounds, allowing the Second Department ruling to stand.

The District Attorney's Association of the State of New York appeared amicus curiae in support of the prosecution in both the Thomas and Aveni cases.

But the Thomas case generated a plethora of amici in support of the defendant—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 Thomas—and inspired an award-winning documentary, "Scenes of a Crime."

Part of the interest in the Thomas case stems from the fact that the entire interrogation was captured on video, providing an extraordinary window into the tactics used by expert interrogators.

Expert Testimony Barred

Thomas, an unemployed high school dropout with no criminal record and no history of abusing or neglecting his seven young children, was targeted when a doctor at Albany Medical Center Hospital wrongly told police that his sickly child, who was suffering from pneumonia and sepsis when he was brought to the hospital close to death, had a fractured skull. That inaccurate diagnosis instantly put Thomas in the crosshairs of a police investigation.

Troy police, primarily Sergeant Adam Mason, spent portions of two days grilling Thomas, alternating insults and empathy, repeatedly lying to the suspect.

Thomas adamantly insisted he did nothing to harm his child, but began to waiver when Mason threatened to "scoop up" his wife, Wilhelmina Hicks. At that point, Thomas offered to "take the fall" for his wife. But Thomas maintained that he did not know what happened to the baby.

The confession came after Mason, who knew Matthew Thomas was brain dead and would not survive, told the suspect that there was a chance the baby's life could be saved if doctors knew exactly what happened. With Mason's prompting, Thomas then demonstrated how he had roughly thrown the child on a mattress several times.

The confession, which Thomas instantly recanted, became the lynchpin of the prosecution's case.

Although there was medical proof that Matthew had suffered brain trauma consistent with being thrown, that evidence was contradicted by defense experts who said the child's head injury was more likely the result of his fever and illness or the difficult vaginal delivery he had endured a few months earlier.

Rensselaer County Judge Andrew Ceresia (See Profile) refused to allow expert testimony from Richard Ofshe, an expert in psychological coercion, on how police can compel a false confession and why someone would confess to a crime he did not commit. Thomas was convicted of second-degree murder. Ceresia said Ofshe's theories, although presented in several courtrooms around the country, did not meet the Frye standard for admissibility (see Frye v. United States, 293 F. 1013 (1923)).

The Third Department, in an opinion by now retired Justice Edward Spain, approached the case from a traditional perspective: was the police trickery of a sort that would be likely to induce a false confession? Concluding that a father, eager to safe the life of his child, would be unlikely to make up a false story, Spain found it more likely that the deception would yield a true confession than a false one and the court unanimously affirmed Thomas' conviction and 25-year-to-life sentence (NYLJ, March 23, 2012).

Judge Robert Smith (See Profile) granted leave and yesterday the Court of Appeals suppressed the statement and sent the case back for trial.

No Bright-Line Rule

The Court of Appeals did not attempt to establish any bright line rule to delineate the point at which trickery becomes coercive, nor did it back away from its long history of acquiescing to police deception. But here, the court said, police simply went too far.

"Had there been only a few such deceptive assurances, perhaps they might be deemed insufficient to raise a question as to whether defendant's confession had been obtained in violation of due process," Lippman wrote. "This record, however, is replete with false assurances. Defendant was told 67 times that what had been done to his son was an accident, 14 times that he would not be arrested, and 8 times that he would be going home. These representations were, moreover, undeniably instrumental in the extraction of defendant's most damaging admissions."

Rather than focusing on whether the deceptions were likely to result in a bogus confession, as had the Third Department, the Court of Appeals stressed that a coerced statement is inadmissible whether it is true or false. Further, the court observed, "there is not a single inculpatory fact in defendant's confession that was not suggested to him" by police.

Lippman was joined by judges Smith, Victoria Graffeo (See Profile), Susan Phillips Read (See Profile), Eugene Pigott (See Profile), Jenny Rivera (See Profile) and Sheila Abdus-Salaam (See Profile).

The court did not decide whether Ofshe should have been permitted to testify on psychological coercion. Lippman said that with the confession suppressed, there was no need to address that issue.

Jerome Frost, the former Rensselaer County public defender, represented Thomas at trial and at both appeals along with Ingrid Effman of Troy. Frost said that without the confession, "they don't have a case."

"There is no evidence outside the confession that will even indicate that a crime occurred," Frost said, adding that he had hoped the court would adopt a bright-line rule. "The D.A. should do the right thing here and admit they don't have a legally sufficient case."

The prosecution was represented by Rensselaer County Assistant District Attorney Kelly Egan. Acting Rensselaer County District Attorney Arthur Glass,  who prosecuted Thomas at trial along with Assistant District Attorney Krista Book, said he expects to retry the case without the confession. Given the aggressive questioning Egan endured in arguing the appeal, and the comments from the bench, Glass said he was not surprised by the ruling. At first glance, he said, the decision appears case-specific and does not appear to establish any new law.

"I don't know if it helps or hinders police, other than reminding them to be very cautious," Glass said.

Grover Babcock, who produced the Thomas documentary, "Scenes of a Crime,' with his wife, Blue Hadaegh, said in an email that they were curious as to how police persuade individuals to confess and happened upon the Thomas case, with its nearly 10 hours of video.

"The vivid interrogation video in the Adrian Thomas case allowed us to bring to life the wrenching experience of a long police interrogation, with all of its twists and turns," Babcock said. "It was an instantly riveting experience: we see a young man accused of battering his son to death by police who, as it turns out, were operating on mistaken evidence from doctors. He resists for hours, but finally succumbs, making the audience wonder: Is this how justice should be done?"

"Scenes of a Crime" has been shown nationwide and has accumulated several awards, including one from the American Bar Association (NYLJ, July 23, 2012).

Drug Case

Aveni arose from Westchester County investigation into the death of 25-year-old Angela Camillo, who died in 2009 from a fatal combination of heroin, ecstasy and the anti-anxiety drug Xanax. Police quickly zeroed in on Joseph Aveni, her boyfriend.

Authorities knew, but Aveni did not know, that the woman was dead when they interrogated him, telling him he could save her life if he revealed what drugs she had used and possibly implying that if he did not confess, and the woman died, he would be facing a homicide charge. Aveni confessed and was convicted of criminally negligent homicide. After Supreme Court Justice Richard Molea (See Profile) declined to suppress the statement, Aveni was convicted of all the charges in a trial before Justice Susan Cacace in Westchester County (See Profile).

The Second Department unanimously reversed Aveni's conviction in an opinion by then Justice Ariel Belen (NYLJ, Oct. 18, 2012) seemingly holding police to a higher or different standard than the Third Department had embraced in Thomas.

Pigott granted leave, but over his dissent the Court of Appeals dismissed the appeal. It said in a memorandum that the Second Department's conclusion that Aveni's will was overborne was fact based, and therefore resistant to review by the high court.

Aveni was represented by David Weisfuse of White Plains. Westchester County Assistant District Attorney Raffaelina Gianfrancesco argued for the prosecution. Aveni is currently on parole.

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