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Wednesday, April 18, 2012

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.


Anonymous said...

Good for this judge. We need more judges like this guy. Lawyers and prosecutors need to be held accountable for their illegal and unethical ways.....

stunned said...

A lawyer, who happens to be a prosecutor, acting unethically??!?!?! Impossible!! LOL

Anonymous said...

The DA is an unethical scum that criminally (official misconduct)abuses the defendants by claiming to want to help them and in the process getting them to tell him what their defense will be. Immediately after, the defendant discovers that the Police change their testimony to preclude the defense they told the ADA. These DA and ADA's violate DR 7-104 [1200.35] Communicating With Represented and Unrepresented Parties. This is a disciplinary rule and requires discipline against the DA and his ADA's. Such conduct shows the Queens courts are a corrupt joke.

Anonymous said...

What about the lawyer-prosecutor's in the false rape case where the alleged victim recanted her story one day later and one guy spent 1 year in jail???
And where's the judge in the Darrel Dula case?
Why doesn't that judge go after the lawyer-prosecutors?

Anonymous said...

In Suffolk we have Spota who is in place as D.A. to protect the criminals within the system. Cops, Sheriffs,judges etc. To make sure crooked employess in Suffolk are not held accountable.
He even looks like WEAZEL.

Anonymous said...

But isn't that what Spota is supposed to do, protect the corrupt of the Democratic Party while persecuting the innocent?

Anonymous said...

According to the DA's own figures there were 9382 persons so interviewed and 20% of them were charged. A whopping less than 100 had their charges dropped because their statements and 'demeanor' suggested they were innocent.

If they wanted to give these people a fair shot they would have made sure a lawyer was present when they took the statement. LOL.

That procedure was instituted to gather intelligence on other criminals the interviewee might have information on. Which is a good thing, but what it morphed into was a tool for the prosecution to use in making their cases.

Anonymous said...

that is their new thing, the Article 78,when they get caught lying! they use falsified psychiatric paperwork to do it, look at the cost of the defense on the case, you would have to call and sue all those doctors/DA/Judges/lawyers-remember you have to sue everyone and let each one out of it one by one! good one huh! where the hell is HIPPA!

Anonymous said...

that is their new thing, the Article 78,when they get caught lying! they use falsified psychiatric paperwork to do it, look at the cost of the defense on the case, you would have to call and sue all those doctors/DA/Judges/lawyers-remember you have to sue everyone and let each one out of it one by one! good one huh! where the hell is HIPPA!

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See Video of Senator John L. Sampson's 1st Hearing on Court 'Ethics' Corruption

The first hearing, held in Albany on June 8, 2009 hearing is on two videos:

               Video of 1st Hearing on Court 'Ethics' Corruption
               The June 8, 2009 hearing is on two videos:
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