Judge Finds District Attorney's Interview Tactics 'Unethical'

Blumenfeld Finds D.A.'s Questioning of Suspects Violates Conduct Code
The New York Law Journal by Daniel Wise  -  April 18, 2012

Acting Supreme Court Justice Joel Blumenfeld ruled on April 16 that the Queens district attorney's program of interviewing suspects while they are awaiting arraignment is "misleading and deceptive," and violates New York State's Rules of Professional Conduct.  Blumenfeld found the interview process deceptive because it "misleads the defendant into believing that the prosecutor is there to help him out" by suggesting that the prosecution will investigate "his side of the story."  But, the Queens judge said, "none of that occurred here."

As a "sanction" for the ethics violation, Blumenfeld ruled in People v. Perez, 1202/09, that the office of District Attorney Richard Brown is precluded from using in its direct case a statement that Elisaul Perez made in 2009 during questioning at the Kew Gardens Criminal Courthouse.  Blumenfeld stopped short of suppressing the statement, ruling that he was unable to determine whether the circumstances of the interview had impaired Perez's ability to make an informed decision about speaking to a prosecutor and detective.  Though the ruling came in the case of an individual suspect, Blumenfeld found that the interview program's ethical shortcomings "appear[] to be an office failure" and "as such the sanction should apply to the office."  Perez is charged with assault and robbery of an iPod and $300 in cash. He has remained free on bail since he was arrested in 2009.  Chief Assistant District Attorney John Ryan vowed in an interview after the brief court session to pursue an appellate remedy and said the office had no intention of dismantling the interview program, which started in 2007. Since then, 9,744 suspects as of April 6 have been interviewed, of whom 63 percent either confessed or made a statement about the crime, according to statistics provided by the district attorney's office.  The D.A. previously had gone to the Appellate Division, Second Department, to block the judge's exploration of prosecutorial ethics at a suppression hearing. But the appellate court rejected the office's request for a writ of prohibition (NYLJ, Oct. 7, 2011).  In a statement issued after the ruling, Brown laced into Blumenfeld for inventing "a remedy of his own creation to 'preclude' the introduction of the statement that he could not legally 'suppress'—a distinction without a difference but one that was selected in an apparent attempt to thwart any further appellate review."  Brown continued, "His ruling is exactly as we had predicted in our prior Article 78 proceeding." He called the decision "an attack on our office's ethics done in a manner designed to prevent us from defending ourselves."  The prosecution, by statute, may not appeal from an adverse suppression ruling unless it certifies that the suppressed evidence is essential to its case.  According to the Queens office, Blumenfeld's ruling would effectively be stayed once an appeal is filed based on the required certification.  However, if a direct appeal is unavailable because Blumenfeld precluded the evidence as a sanction instead of suppressing it, the prosecution would be required to go to the Second Department to apply for a stay.  Brown said in his statement that the interview program has resulted in the dismissal of more than 100 cases before the filing of any charges and has reduced charges and lowered bail recommendations in scores of other cases to more accurately reflect credible evidence.

Script Found Flawed

In reviewing the script that is read to suspects before the start of the courthouse interviews, Blumenfeld found it contained statements that gave suspects "a false sense of urgency" that they had to talk to prosecutors "now or never."  When Perez was questioned, a detective read to him from a script that begins with a brief preface encouraging suspects to give their version of the facts. Specifically, Perez was told, "If there is something you would like us to investigate concerning this incident, you must tell us now so that we can look into it." The script was subsequently softened to replace the "you must tell us now" language with "if you tell us, we will look into it."  Perez also was told, "If you would like us to investigate an alibi, please give us as much information as you can."  Suspects are then advised that this is the "only opportunity you will have to talk to me" before being arraigned. An assistant district attorney is present at every interview.  Taken together, Blumenfeld wrote that he viewed the script as containing "a promise to the defendant" to investigate "to induce him to speak to members of the District Attorney's Office."  Even though Perez's statement "differed in most material respects from the facts as understood" by the D.A.'s office, he wrote, "no investigation was forthcoming, no effort made to reconcile the very different versions, and no good reason given for the failure to do so."  In the Perez case, the suppression hearing started in late 2009, and Blumenfeld took five days of testimony before the year was out. Then in March 2010, while keeping the record open, the judge asked Ellen Yaroshefsky, an ethics professor at the Benjamin N. Cardozo School of Law, for an opinion on the interview program.  Once Yaroshefsky issued her report in August 2010, finding the questioning was misleading and in violation of Rule 8.4 of Rules of Professional Conduct, the D.A.'s office filed an Article 78 proceeding in the Second Department to bar Blumenfeld from continuing to examine the ethics of the program.  But in a unanimous decision by Justice Ruth Balkin, an appeals panel rejected the office's request for a writ of prohibition, stating that it was an "extraordinary" remedy which is not warranted because Blumenfeld was "authorized" to examine whether the prosecution's unethical conduct caused the defendant to make an involuntary statement (Matter of Brown v. Blumenfeld, 89 AD3d 94).  Even if the prosecutors conduct had no bearing on voluntariness, Justice Balkin wrote, such an error would not call into doubt the lawfulness of the whole proceeding.  Blumenfeld ultimately ruled that he could not ascertain from the record whether Perez had given the statement voluntarily or involuntarily. He noted that Perez had never testified in the proceeding, and that "all the court was left with" to determine his mental state was a video recording of the interview. It was "impossible" to divine his mental state from the video, the judge wrote.  In any event the question of the legality of the courthouse interviews is being raised in three cases pending before the Second Department (People v. Polhill, 01680/10, People v. Lloyd-Douglas, 03736, and People v. Dunbar, 04786). All of the defendants in those cases are challenging the admission of statements they made in courthouse interrogations. The arguments are not expected to be heard until the fall.  Warren M. Silverman, who represents Perez, said Blumenfeld "had ruled in an entirely appropriate manner and issued a well-reasoned decision after considering all issues raised by both parties."  Daniel Wise is a freelance writer in New York City.