The Selective Hearing of the Truth

Refusal to Hear Confession Expert Upheld
The New York Law Journal by Joel Stashenko  -  March 30, 2012

ALBANY, NY - In a case of first impression, the state Court of Appeals ruled that trial judges are not required in all matters to let jurors hear expert testimony about the reliability of a defendant's confession.  The court voted 5-2 to affirm Queens Supreme Court Justice Michael B. Aloise's (See Profile) decision not to conduct a Frye hearing into whether to admit an expert's testimony about admissions made by defendant Khemwattie Bedessie.  Police said Ms. Bedessie, a former teacher's assistant, acknowledged both touching the penis of a 4-year-old in her care and placing the boy's hand over her partially bare breast at Vada's Learning World in Queens in January and February 2006.  Ms. Bedessie, who contended that she had become worn down under police questioning and did not read the confession she signed, was sentenced to 20 years in prison for rape, sexual abuse and other charges. The woman, now 41, is is not eligible for parole until 2024.  At her 2007 trial, Ms. Bedessie's attorneys unsuccessfully sought to call an expert in false confessions, Richard J. Ofshe.  But in People v. Bedessie, 46, the Court of Appeals said on March 29 that such testimony was not germane to the case and was properly excluded.  Justice Aloise "reasoned that this was unnecessary because Dr. Ofshe's expert testimony was not relevant and [not] likely to assist the jurors in any way," Judge Susan Phillips Read (See Profile) wrote for the majority. "He noted in particular that the jurors, based on their own life experiences, were competent to assess the reliability of defendant's confession, and, indeed, the expert's testimony threatened to usurp the jury's function."  Mr. Ofshe is psychology professor emeritus at the University of California-Berkeley and the author of several books and articles on the perils of trusting in self-incrimination by defendants.  But Judge Read said the body of Mr. Ofshe's anticipated testimony in the Bedessie case was "filled with discussion of extraneous matters, speculation and conclusions based on facts unsupported even by defendant's version of her interrogation" with police.  The judge acknowledged that the "phenomenon of false confessions is genuine" and has "moved from the realm of startling hypothesis into that of common knowledge, if not conventional wisdom." But she noted the fact that only one of 28 prospective jurors assembled for Ms. Bedessie's trial said beforehand that they could not set aside the possible guilt of a defendant who admitted to a crime showed an understanding that a defendant's confession is not necessarily true.

"False confessions that precipitate a wrongful conviction manifestly harm the defendant, the crime victim, society and the criminal justice system," Judge Read wrote.  "While the expert may not testify as to whether a particular defendant's confession was or was not reliable, the expert's proffer must be relevant to the defendant and interrogation before the court. Dr. Ofshe's proffer does not meet this standard," she added.  Judge Read ruled that the template laid down by the Court of Appeals in People v. Lee, 96 NY2d 157 (2001) for the admissibility of expert psychological testimony on the reliability of eyewitness testimony is "instructive" about defendant confessions as well.  In Lee, the Court said the admissibility of such expert testimony should be at the "sound discretion" of the trial court, which is to be guided by "whether the proferred expert testimony would aid a lay jury in reaching a verdict."  Lee also directed that since expert testimony "may involve novel scientific theories and techniques, a trial court may need to determine whether the proferred expert testimony is generally accepted by the relevant scientific community."  As to the Bedessie matter, Judge Read wrote that the alleged victim's testimony essentially corroborated Ms. Bedessie's confession as to both her identity and when the molestation occurred. There was not enough evidence to show that police, the boy's mother or other adults were overly suggestive in encouraging the boy to identify Ms. Bedessie as his assailant, the Court concluded.  "Whether or not his allegation alone was sufficient reason for the judge to deny defendant's application [for a Frye hearing], Dr. Ofshe's proffer had nothing to say that was relevant to the circumstances of this case," Judge Read wrote. "The judge therefore did not abuse his discretion when he determined that Dr. Ofshe's testimony would not assist the jury in evaluating the voluntariness and truthfulness of defendant's confession or reaching a verdict."  Judges Carmen Beauchamp Ciparick, Victoria A. Graffeo, Robert S. Smith and Eugene F. Pigott Jr. joined in the majority.  In dissent, Judge Theodore T. Jones Jr. said the majority had "curiously" concluded that Mr. Ofshe's testimony was not relevant. At the least, the prospect of what the expert could add to the case should have been considered at a Frye hearing, he wrote.  "Here, the proffer was made by a highly qualified individual as demonstrated by his curriculum vitae, who had previously testified in numerous cases where defendant raised the reliability of a confession as an issue," Judge Jones said. "The proffer involved research concerning incidents that lead to false confessions and the tactics in this case that may have compromised the reliability of the confession."  Chief Judge Jonathan Lippman joined in the dissent.  Ms. Bedessie was represented by Ronald L. Kuby.  Queens Assistant District Attorney Laura T. Ross argued for the prosecution.  "We are pleased that the Court affirmed the conviction and are grateful that the child at the center of this case will not have to re-live the traumatizing experience he suffered by again having to testify in court," Queens District Attorney Richard Brown said in a statement.

'Inverse Condemnation'

In another ruling, the Court ruled 7-0 that an "inverse condemnation" claim could continue against Verizon by customers who claimed they deserved compensation for the positioning of communal phone boxes on structures.  Corsello v. Verizon New York, 51, was initiated by William and Evelyn Corsello, owners of a four-unit apartment building in Brooklyn, who claimed starting in 2007 in a putative class action suit that they should be paid for the placing of a "rear terminal" on the back wall to distribute phone lines to customers who lived in the building.  The lower court refused to dismiss the claim that the placement of the phone box represented an "inverse condemnation," which means Verizon was using the homeowner's property for its own gain without compensation. But it dismissed the Corsellos' claim unjust enrichment.  An unanimous Appellate Division, Second Department, panel dismissed the claim for inverse condemnation, but reinstated it for unjust enrichment.  The Second Department panel held that the plaintiffs had sufficiently stated a claim for inverse condemnation, but that the action was barred by the statute of limitations (NYLJ, Sept. 21, 2010). But the Court of Appeals reinstated the inverse condemnation claim, while ruling against the unjust enrichment cause of action.  Writing for the Court, Judge Smith rejected Verizon's argument that it has the power to decide to exercise its power of eminent domain over the property where the phone boxes were placed.  "Such a limitation on the rights of property owners would be not only inconsistent with modern authorities, but also unfair," Judge Smith wrote. "It would invite an entity having the power of eminent domain to occupy property without risking more than damages for a temporary trespass, and to decide at a later date whether to acquire the property or abandon it."  Judge Smith said the practice violated Real Property Law §261, which states that no grant of authority should be assumed to be given to the attachment of any "wire or cable used for any telegraph, telephone, electric light or other electric purpose" without express permission.  "The thrust" of Real Property Law 261 "is that a company may not unlawfully attach its wires or cables to private property and then, by lapse of time, deprive the property owner of any remedy for the unlawful act," the court said.  Patrick F. Philbin of Kirland & Ellis represented Verizon. David Wise of Babylon argued for the plaintiffs.

Police Perjury

Also on March 29, the Court unanimously upheld a finding by the Appellate Division, First Department, that former New York City police detective Christopher Perino was guilty of perjury for denying that he had not interrogated attempted-murder suspect Erik Crespo in the Bronx in 2005 before Mr. Crespo made what he characterized as a "spontaneous admission" to his mother.  Unbeknowst to Mr. Perino, Mr. Crespo taped the interview on Mr. Crespo's MP3 player and later caught the detective in some apparent misstatements about the conversations.  In an opinion by Justice Pigott, the Court agreed with the Appellate Division, First Department, that, while some counts of perjury should be reduced from first to third degree, the evidence pointed to misstatements that Mr. Perino made under oath while describing his interview with Mr. Crespo. The decision rejected appeals by both Mr. Perino and the prosecution.  Mr. Perino argued that the admission of Mr. Crespo's "spontaneous" statement was not material to the issues being litigated at Mr. Crespo's trial, having been settled at a suppression hearing. Therefore, he contended, his own testimony could not be considered perjury.  But the Court held that Mr. Perino's testimony was "relevant to the jury's determination on whether Crespo's statement to his mother was truly spontaneous and voluntary or whether it was triggered by police conduct that could reasonably have been anticipated to evoke such a statement."  Bronx Assistant District Attorney Christoper Blira-Koessler argued for the prosecution.  Ira Feinberg of Hogan Lovells represented Mr. Perino.  Mr. Perino, a 19-year police veteran, was originally sentenced to four months in jail, which the First Department reduced to two months, but he has remained free on bail pending appeal.  Joel Stashenko can be contacted at jstashenko@alm.com.