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Criminal Justice Society at Pace hosted a Spring 2014 event dedicated to discussing solitary confinement. The event was well attended leaving the attendees with a lot to think about. Our first year students who attended this event shared some of their thoughts with us below.

POST WRITTEN BY: Alexandria Capaccio (1L), Ashley Kersting (1L), and Jake B. Sher (1L)

Loneliness is very much like pain.  It has evolved over time to change our behavior so that we reconnect with others, which is necessary for our survival. … Being ignored is so painful it’s better to be treated badly by someone than ignored….

John Cacioppo, Social Neuroscientist, City of Chicago

These words from National Geographic’s “Lonely Prisoners” Program served as the opening gambit for The Pace Criminal Justice Society’s discussion on solitary confinement, entitled Thinking Outside the Box.  The panel brought attention to the serious issues of solitary confinement in prisons. Pace’s Professor Michael B. Mushlin engaged three panelists: Sarah Kerr, Staff Attorney in the Prisoners’ Rights Project at The Legal Aid SocietyFive Mualimm-ak, a solitary confinement victim and prison reform activist; and Leah Gitter, whose family member with mental illness has been held in solitary confinement at a number of prisons including Rikers Island. The panelists drove home the central issue that the current method of solitary confinement is not working; it is both inhumane and counter-productive.

Over 80,000 prisoners in this country are living 23 hour days alone in their cells deprived of any meaningful stimulation. The panelists referred to these extreme conditions as “torture.” A former inmate, Five changed his first name to memorialize the five of his twelve years of incarceration that he spent in solitary confinement.  Five was placed in solitary confinement not as a punishment for the crime he committed or any violent behavior, but instead for minor disciplinary violations he allegedly committed while incarcerated.

Five explained that even minor disciplinary violations, such as possessing too many pencils or t-shirts, frequently subject a prisoner to an indefinite period of time in the “box.”  There are no governing time limitations or regulations on the time spent in the “box,” instead the decision about the duration of this type of confinement is left to the discretion of prison officials.

Collectively, the panel agreed with the goal of the prison system to protect, reform and rehabilitate inmates, but took the position that subjecting mentally ill prisoners to solitary confinement does not further those goals.  Instead, solitary confinement is unnecessary and inflicts further psychological damage on inmates.

The panelists stressed that contrary to the common belief that solitary confinement is used to protect other prisoners from other dangerous, violent, or gang affiliated members, the majority of prisoners spending time in the “box” are there due to the prison’s inability to deal with the inmates’ mental and physical disabilities.  These harsh living conditions remove inmates from human sensory stimulation and contact; and as such, they are directly attributable to the high recidivism rates of inmates subjected to such confinement.

The public’s attention on issues of solitary confinement tends to focus on the question of whether prisoners are serving time because they are guilty.  This focus, however, obfuscates the actual problem that solitary confinement poses to the liberty of prisoners and law-abiding citizens alike. In the seminal case on the issue, the Supreme Court held: “Prison disciplinary proceedings are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply.”  Wolff v. McDonnell, 418 U.S. 539, 556 (1974).  New York’s Appellate Division has held Wolff to mean that inmates charged with violating disciplinary hearings are entitled to minimal due process protections that do not include the right to counsel or to confront or cross-examine witnesses. Laureano v. Kuhlmann, 550 N.E.2d 437, 439 (N.Y. 1990) (emphasis added). Courts are divided as to the evidentiary standard used for disciplinary proceedings between “some evidence” and “substantial evidence” – both standards well below the preponderance of the evidence standard used in civil litigation (to say nothing of “beyond a reasonable doubt”).

American citizens who retain their “full panoply of rights” would never tolerate the loose evidentiary standard that is used when determining whether an inmate should be placed in solitary confinement.

Perhaps a better way of considering the problem revolves around Professor Mushlin’s haunting statement that some former victims of solitary confinement may be – or are – our neighbors; they are either released after their prison terms have ended, as Five was, or worse, they are exonerated innocents.  They are our fellow citizens’ cousins, friends, spouses, or parents.  If we would not tolerate the trampling of our own rights under the Fourteenth and Fifth Amendments, we should not tolerate theirs, either; the slope is slippery, and we are much closer to their plight than we would prefer to believe.

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POST WRITTEN BY: Prof. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School

On March 22, 2014, Ivory Coast authorities delivered Charles Blé Goudé to the International Criminal Court pursuant to an arrest warrant for Blé Goudé issued by the ICC. This raises an issue as to whether the ICC is the appropriate forum for the prosecution of Blé Goudé. See Ivory Coast Delivers Suspect to the International Criminal Court for additional background information.

As a result of an investigation by the ICC Prosecutor into the Ivory Coast Situation authorized in October 2011, three ICC arrest warrants have thus far been made public: for former President Gbagbo (Nov. 23, 2011), for Blé Goudé (Dec. 21, 2011), and for Simone Gbagbo (Feb. 29, 2012). All are Ivory Coast nationals potentially subject to prosecution in the Ivory Coast. The warrants for all three are based on the same four counts of crimes against humanity alleged to have been committed during the same period (from Dec. 16, 2010 to April 12, 2011). The Ivory Coast has delivered Laurent Gbagbo and Charles Blé Goudé to the ICC. However, according to news reports the Ivory Coast has stated its intention not to deliver Simone Gbagbo to the ICC but to prosecute her in its domestic courts, despite the fact that when the Pre-Trial Chamber issued the arrest warrant for her, it directed the ICC Registry to transmit a request to the Ivory Coast government to surrender her to the ICC.

This presents an interesting issue about complementarity. The Preamble of the Rome Statute “[r]ecall[s] that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes,” and “[e]mphasiz[es] that the International Criminal Court … shall be complementary to national criminal jurisdictions.” Article 17 of the Statute requires the ICC to defer to domestic jurisdiction unless the State with jurisdiction “is unwilling or unable genuinely to carry out the investigation or prosecution.”

The ICC Prosecutor addressed the Article 17 issue in January of last year reporting that the Prosecutor’s Office would open an investigation into the Situation in Mali, the most recent of the eight Situations currently before the ICC, which was referred to ICC for investigation in July 2012. The Prosecutor, finding support in ICC Pre-Trial Chamber opinion interpreting Article 17, stated in paragraph 136 that “[t]he absence of national proceedings is sufficient to render a case admissible.” By this logic, it would be appropriate for the ICC to prosecute Laurent Gbagbo and Charles Blé Goudé (because the Ivory Coast has chosen not to prosecute them) but not to prosecute Simone Gbagbo (because the Ivory Coast intends to prosecute her) – even though all three individuals are charged with responsibility for the same crimes on the territory of the Ivory Coast during the same time period.

Unless extenuating circumstances in the Ivory Coast suggest otherwise, this presents a possibility that State Parties – or non-State Parties who accept ICC jurisdiction pursuant to Article 12(3) – may choose selectively to prosecute some high authorities but not others, based on reasons of the State’s own choosing.

Such a possibility seems inconsistent with the Preamble of the Rome Statute and with policy statements issued by organs of the ICC. The Office of the Prosecutor and the Bureau of Assembly of States Parties have endorsed a “positive complementarity” policy to encourage and assist States to prosecute in their national courts crimes that may fall within the ICC’s subject matter jurisdiction.

William Schabas, a respected scholar on ICC issues, has addressed the complementarity issue as posed by Mali’s referral. Prof. Schabas stated that “[t]he profound flaw in the ‘self-referral’ model is that it flies in the face of ‘positive complementarity’. If Mali wants to ensure that its rebels are prosecuted, the Court should encourage it to do so by itself.”

An ICC Pre-Trial Chamber has scheduled a hearing for August 2014 to confirm the charges against Blé Goudé. At the hearing, Blé Goudé will have the opportunity to challenge the Court’s jurisdiction and the charges against him. Whether or not Blé Goudé, exercises his right under Article 19(2)(a), to challenge the admissibility of his case, Article 19(1) states that “[t]he Court may, on its own motion, determine the admissibility of a case in accordance with article 17.”

How the Pre-Trial Chamber deals with this matter will be important for the ICC’s complementarity jurisprudence.

The following is a story written by a current Pace Law School student who has been working in the Pace Criminal Justice Clinic during his third year of law school. He describes the trials and rewards of representing real clients and shares with all of us what he learned – a lesson to all criminal practitioners.

POST WRITTEN BY: Christopher James Di Donna ’14

Unlike many third-year law students, I am, thankfully, not helping to keep alive that old adage about one’s final year at law school (You know the part about how your professors bore you to death after they have scared and worked you to death.). My third year has been far from boring. Instead, I have spent my final year at Pace Law School working as a student-attorney under the supervision of Professors David Dorfman and Robin Frankel at the Barbara C. Salken Criminal Justice Clinic. I still have regular classes in addition to the clinic; however, the clinic has been my primary focus.

It took my family and friends some time to understand that my peers and I at the clinic are not just doing “mock trials” with “mock clients.” Instead, we work for real clients with real problems in real court facing real consequences in the Bronx. This clinic gives us the unique opportunity to learn about and practice law before we graduate and sit for the bar exam.

Case in point (the pun was intended): I had the privilege of representing a man charged with Driving While Ability Impaired under New York Vehicle and Traffic Law (V.T.L) section 1192(1).  For over three years, this man made countless court appearances professing his innocence. This case was transferred to us from Bronx Legal Aid Society at the suggestion of Professor Frankel. I worked the case  for three and half months. I reviewed the case-file numerous times, especially the Intoxicated Driver’s Testing Unit (IDTU) video, investigated the scene of the alleged crime with my client and fellow students, and corresponded with the Bronx District Attorney’s Office.

The true highlight of this case was representing my client in a Dunaway/Johnson (probable cause for arrest) and Huntley (voluntariness of defendant’s statement) hearings. Here I was a third-year law student cross-examining a veteran highway officer of the NYPD; impeaching him on his own omissions and the inconsistencies between his testimony and his memo-book and arrest report. My cross-examination of the arresting officer and his demeanor throughout the hearings convinced the judge to suppress all the DA’s evidence. The DA’s Office was forced to dismiss the case and my client received the justice he sought after more than three years.

My work on this case and my overall experience at the clinic has had a profound effect on me. I realized the importance of persistence. To be an effective advocate you have to work a case hard. You have to think about the case often and play out all the approaches and possibilities in your mind. I thought about this case when I grocery shopped, drove, showered, and at countless other times of the day and night. The more hours I put into his case, the more sense I made of it. I learned the strengths and the weakness of the case and the law and the people involved in it. My strategy morphed over those months with each realization. Even during the suppression hearing, with the help of Professor Frankel and a fellow student-attorney at the clinic and my second seat on the case, Alexandra Ashmont, I tweaked and adjusted my cross examination of the arresting officer on the spot. Without persistence from day one to the day you go to court, I do not believe that one will achieve a palpable and just result for his or her client. And neither will you feel good about the result if you did not invest the necessary time into the case.

This experience taught me that the law, especially criminal law, is about real people in really bad binds. You as the advocate are sometimes the one person holding up the walls from crashing down on your client. You have a duty, within the confines of the rules of professional responsibility and ethics, to get the best results for your client. You have to listen to the client, chase down leads and documents, and beat your head on your desk until the best strategy falls out. The Pace Criminal Justice Clinic gave me the opportunity to learn, to help others, and to avoid being bored to death in my final year of law school.

Related Readings:

Former United States President Theodore Roosevelt Jr., once stated that “justice consists not in being neutral between right and wrong, but in finding out the right and upholding it, wherever found, against the wrong.”  Recently, Bronx Criminal Court Judge John Wilson heeded Roosevelt’s command of justice when he took the courageous step in barring  Assistant District Attorney Megan Teesdale from ever appearing in his courtroom as a result of her failure to provide exculpatory evidence to a defendant charged with rape. Judge Wilson, who formerly served as an Assistant District Attorney in Bronx County and graduated from Pace Law School in 1986, ruled that ADA Teesdale had taken part in one of the worst Brady violations that he had witnessed after serving more than nine years on the bench, bringing about great disgrace to both herself and her office.

During pre-trial proceedings, the defense had requested that the prosecution turn over all notes regarding the alleged victim’s initial statements to police. However, the prosecution rebuffed the defense’s request claiming that it did not possess any interview notes or exculpatory evidence that it was required to produce under its Brady obligations.  Judge Wilson explained that the prosecution’s representation “turned out, unfortunately to be a lie,” as the prosecution’s file had contained memorialized statements of the victim initially telling police that the sexual encounter with the defendant was consensual.

Judge Wilson noted that the prosecution’s failure to honor its Brady obligation amounted to “gross negligence,” requiring that the case be dismissed in its entirety. He further informed ADA Teesdale that

You are going to leave this courtroom and you are never going to come back. You can’t appear before me anymore. I’ll tell you why, because I cannot trust anything you say or do. I can’t believe you. I can’t believe your credibility anymore. The only thing a lawyer ever has to offer is their integrity and their credibility, and when you’ve lost that, there is no purpose in your appearing before this court.

Judge Wilson deserves great praise for his bravery to faithfully uphold the law. His actions are truly exemplary, and should be followed by all judges when dealing with prosecutors that play “fast and loose” with their Brady obligations. It has become all too common for prosecutors to go unpunished when failing to honor their duty to provide exculpatory evidence to the defense. Judge Wilson’s decision to bar ADA Teesdale from his courtroom was not only proper in this case, but was done in the best interest of the criminal justice system. Indeed, the only thing a court has to offer is its integrity and its credibility, and when it loses that, there is no reason to believe that there will ever be “justice and liberty for all.”

As a result of Judge Wilson’s decision, one must not wonder too far as to whether ADA Teesdale will be more likely to ever commit another Brady violation; or if she will take her Brady obligations more seriously. I would propose that there would be far less Brady violations if all judges took the approach that Judge Wilson did in barring the culpable ADA from ever appearing in his court. For that reason alone, he deserves this honorary salute.

Related Readings:

Recently, the New York Court of Appeals affirmed the conviction of a defendant accused of killing her husband’s one-year-old daughter, although she had claimed that her counsel was ineffective for failing to object to the prosecution’s questionable PowerPoint presentation during summation. People v. Santiago, NY Slip Op 01261 (2014). At trial, the prosecution claimed that the defendant, Cheryl Santiago, had suffocated her husband’s child after becoming frustrated that the child would not fall asleep. Id. at *5. An expert witness for the prosecution testified that it would have taken the defendant approximately four to six minutes to suffocate the child by using her hand to cover the child’s mouth and nose. Id. at *6.

In summation, the prosecutor presented to the jury  a six minute PowerPoint presentation that consisted of a series of slides using a postmortem photograph of the child. Alluding to the expert’s opinion regarding the amount of time it took for the child to suffocate, the prosecutor suggested to the jury that “if there’s any question in your mind how long six minutes take, take a look at this.” Id. at *7. Without objection from defense counsel, the prosecutor proceeded to play the PowerPoint slides, “with each successive slide progressively fading, until the final slide was entirely white, thus eliminating the image of the [child].” Id.  Notably, some of the slides also contained captions that described the child’s deteriorating medical condition –stating that at one and a half to two minutes- “struggle ends;” four minutes- “brain death occurs;” and four and a half to six minutes –“cardiac death.” Id.

The Court rejected the defendant’s claim that trial counsel was infective for failing to object to the PowerPoint presentation, noting that counsel’s lapse was not a “clear-cut” or “dispositive” omission. Id. at *13. The Court observed that a postmortem photograph itself was properly admitted at trial, and that “[t]he slides depicting an already admitted photograph, with captions accurately tracking prior medical testimony, might reasonably be regarded as relevant and fair, albeit dramatic, commentary on the medical evidence, and not simply an appeal to the jury’s emotions.”Id.

The Court did note that it did not know how the PowerPoint presentation aided the jury in its fact-finding function, or how it was relevant to the cause of the child’s death. Id. Furthermore, the Court also observed that the defendant’s failure to make a timely objection to the PowerPoint’s admission –which would have required the trial court to rule on its admissibility- precluded the Court to extend its inquiry further as to whether the trial court abused its discretion and that such error required a reversal of the judgment of conviction. Id. at *14.  In noting this observation, however, the Court implicitly suggested that its inquiry of the matter was cut short due to counsel’s failure (i.e. ineffective assistance of counsel) –and, by its own admission, an objection would have placed the trial court in an unlikely situation of finding that the PowerPoint evidence had any probative value, and even if so, that its value outweighed its prejudicial impact. Id. at *15 (conceding that the Powerpoint failed to “aid[] the jury in its fact-finding function”).

In dissent, Judge Rivera observed that the PowerPoint presentation had manipulated the evidence and was “designed to inflame the passion of the jury in order to engender prejudice against the defendant.” Id. at 1 (dissent, j. Rivera). She concluded that the Court had erred in not finding that counsel’s failure to object to the PowerPoint presentation had amounted to ineffective assistance of counsel. She noted that counsel’s lapse permitted the prosecution to taint the jury’s deliberative process –which denied the defendant a fair trial. Id. at (“The prosecutor’s use of this Powerpoint imagery was an impermissible attempt to secure a verdict based on emotion and repulsion for the defendant, rather than facts.”).

Judge Rivera was also extremely troubled by the inflammatory nature of the Powerpoint, noting that “[a]ny doubts as to the emotional responses engendered by the presentation are easily dispelled by viewing the slide show, wherein the picture of a 21 month old child, in her pink pajamas, with white froth on her lips, her body prone and lifeless, is projected over and over, fading slightly with each slide, until all that remains is a white background and the memory of her tiny body. One simply cannot be but moved by this depiction.” Id. at 3.

Notably, the ever-changing dynamics of courtroom advocacy due to the technological advances in “trial presentation” software may continue to cause issues for criminal defendants when utilized in an improper fashion by prosecutors. Although such technology can provide each party a better, faster and clearer way of presenting information than conventional trial form, it can also lead the jury away from “the four corners of the evidence” and hinder the truth seeking process. Hopefully, the courts will use caution when allowing evidence to be presented in an unconventional format, and take consideration of the fact that a juror may become more occupied with the entertainment value of the presentation rather than the relevance of the information being conveyed.

Related Readings

  • People v. Caldavado, 78 AD 3d 962 (2nd Dept. 2010) (permitting a “PowerPoint presentation as to the injuries associated with shaken baby syndrome and in allowing an expert witness to shake a doll in order to demonstrate the force necessary to inflict shaken baby syndrome.”).
  • People v. Yates, 290 AD 2d 888 (3rd Dept. 2002) (finding no error in the presentation of  a computer-generated video demonstrating the mechanics of “shaken baby syndrome.”).

POST WRITTEN BY: Prof. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School

On March 22, 2014, Ivory Coast (Côte d´Ivoire) authorities delivered Charles Blé Goudé to the International Criminal Court (ICC) in The Hague, pursuant to an arrest warrant issued by an ICC Pre-Trial Chamber on December 21, 2011. The warrant was based on information that Blé Goudé bears responsibility for crimes committed by militia forces under his command in the aftermath of the Ivory Coast presidential election in November 2010. After the election, a civil war broke out between forces of former President Laurent Gbagbo (who lost his bid for re-election) and supporters of the newly elected President Alassane Ouattara. More than 3,000 people were killed during this civil war. Blé Goudé, a supporter of Gbagbo, is accused of being responsible as an “indirect co-perpetrator” on four counts of crimes against humanity: murder, rape and other forms of sexual violence, other inhumane acts, and persecution. All of these acts are listed in Article 7 of the ICC’s Rome Statute as the basis for a charge of crimes against humanity “when committed as part of a widespread or systematic attack directed against any civilian population ….”

The Ivory Coast was not a Party to the ICC’s Rome Statute at the time the crimes charged were committed. The Ivory Coast deposited its instrument of ratification of the Rome Statute on February 15, 2013.  However, many years earlier, in April 2003, the Ivory Coast Government under then-President Gbagbo accepted ICC jurisdiction over crimes committed on its territory during a previous period of violence. This was done pursuant to Rome Statute Article 12(3), which provides that a non-State Party may lodge a declaration with the ICC accepting jurisdiction over acts committed on its territory that constitute crimes within the ICC’s subject matter jurisdiction. By letters to the ICC in December 2010 and May 2011, newly elected President Ouattara reaffirmed the validity of the April 2003 Declaration (original) and his government’s willingness to cooperate with the ICC.

Following these letters, the ICC Prosecutor requested authorization from the Pre-Trial Chamber to initiate an investigation of the Ivory Coast Situation, which the Chamber provided in October 2011. The Chamber found that information submitted by the Prosecutor provided reasonable grounds to believe that pro-Gbagbo forces committed crimes against civilians that are within the ICC’s subject matter jurisdiction. Among the materials submitted by the Prosecutor were several public reports authored by Human Rights Watch and by the United Nations High Commissioner for Human Rights, informing of murders and rapes committed by pro-Gbagbo forces against civilians who were, or were suspected to be, loyal to Alassane Ouattara.

When two months later, in December 2011, the Pre-Trial Chamber issued the arrest warrant for Blé Goudé, it noted that the Prosecutor’s submission that Blé Goudé is liable as an “indirect co-perpetrator” under Rome Statute Article 25(3)(a) “may well need to be revisited in due course with the parties and participants.” Article 61 of the Rome Statute requires that within a reasonable time after an accused person has been surrendered to the Court, the Pre-Trial Chamber must hold a hearing to confirm the charges. This hearing will provide Blé Goudé an opportunity to challenge the charges against him. It will be the Pre-Trial Chamber’s duty to determine, on the basis of the hearing, whether, pursuant to Article 61(7), “there is sufficient evidence to establish substantial grounds to believe that the person committed each of the crimes charged.” If one or more of the charges are confirmed and the case goes to trial, the Trial Chamber must be convinced, pursuant to Article 66(3), of the defendant’s guilt beyond a reasonable doubt.

False confessions have long been recognized as one of the leading causes of wrongful convictions. Case studies have proven that an individual’s confession to a crime is not always indicative of the confessor’s actual guilt. In fact, a number of external factors may lead an individual to falsely confess to committing a crime. According to studies conducted by the Innocence Project, many false confessions have been prompted by conditions in which the confessor was placed under  duress during police interrogations, or was prodded to give false information as a result of police coercion or subterfuge tactics. Laurie Shanks, clinical professor of law at Albany Law School in Albany, recently explained that “[t]here’s a perception that people don’t confess to crimes they didn’t commit, [b]ut the science is that absolutely they do.”

Yet, the rule of law determining the voluntariness of a confessor’s statement, when such statements are adduced by police subterfuge, has remained a vital and perplexing issue within our criminal justice system. The admissibility of such confessions has been a hotly debated topic among criminal defense practitioners and prosecutors, irrespective of recent case studies proving the fallibility of such confessions. In spite of recent findings, prosecutors have continued to hold the upper hand when arguing that such confessions are voluntary and admissible at trial, relying on the proposition that certain police ruses are essential to conducting meaningful interrogations of suspects, and vital to the police’s ability to expeditiously solve certain crimes.  Under this guise, the Courts have heeded to the government’s “demands” and have consequently become more laxed in uprooting such questionable police tactics –noting that confessions are “essential to society’s compelling interest in finding, convicting, and punishing those who violate the law.” McNeil v. Wisconsin, 501 U.S. 171, 181 (1991). As such, courts around the nation have routinely accepted that “deceit and subterfuge are within the ‘bag of tricks’ that police may use in interrogating suspects.” State v. Schumacher, 37 P.3d 6, 13-14 (Idaho Ct. App. 2001); See also United States v. Bell, 367 F.3d 452, 461 (5th Cir. 2004) (observing that deception is “not alone sufficient to render a confession inadmissible”).  

In New York, however, it appears that the courts are becoming less reluctant to address this significant legal issue , and more inclined than many of their sister state courts to fully determine on a case by case determination whether a confession could be deemed involuntary when police misrepresentations work to overcome a confessor’s will. See N.Y. Criminal Procedure Law § 60.45 [2][b][i]  (treating as “involuntarily made” a statement of a defendant that was  elicited “by means of any promise or statement of fact, which promise or statement creates a substantial risk that the defendant might falsely incriminate himself”).

Notably, the New York Court of Appeals has recently made clear that not all police subterfuge is acceptable during the interrogations of suspects. People v. Thomas, 2014 WL 641516 (N.Y. 2014). In Thomas, the defendant had been prodded by police to take responsibility for injuries suffered by his four-month-old son, who died from intracranial injuries purportedly caused by abusively inflicted head trauma, in order to save his wife from arrest. The Court held that the defendant’s confession,  admitting that he had inflicted traumatic head injuries on the infant, was involuntary as a result of “[t]he various misrepresentations and false assurances used [by] [police] to elicit and shape [the] defendant’s admissions.” Id. The court explained that the police officers false representations to the defendant had manifestly raised a substantial risk of false incrimination. The Court was extremely troubled by police lying to the defendant “that his wife had blamed him for [their] [son’s] injuries and then threatened that, if he did not take responsibility, they would “scoop” Ms. Hicks out from the hospital and bring her in, since one of them must have injured the child.” Id.  The Court also observed that “there [was] not a single inculpatory fact in defendant’s confession that was not suggested to him. He did not know what to say to save his wife and child from the harm he was led to believe his silence would cause.” Id.

The New York Court of Appeals also recently affirmed the Second Department’s decision in People v.  Aveni, 100 A.D.3d 228 (2d Dep’t 2012) where the appellate court  had also found that the defendant’s confession was coerced  as a result of the police repeatedly deceiving the defendant about the status of his girlfriend’s health condition. In Aveni, the defendant had been prompted by police to make incriminating statements about the herion overdose of his girlfriend. During interrogation, the police had falsely told the defendant that his girlfriend was still alive, “and implicitly threaten[ed] him with a homicide charge if he remained silent.” The court explained that the police made the defendant believe that “the consequences of remaining silent would lead to the [girlfriend’s] death, since the physicians would be unable to treat her, which “could be a problem” for him.” Id. In upholding the Second Department’s decision, the NY Court of Appeals observed that “[t]he false prospect of being severely penalized for remaining silent, raised by defendant’s interrogators, was, in the court’s view, incompatible with a finding that defendant’s confession was voluntary beyond a reasonable doubt.” People v. Aveni, 2014 WL 641511 (N.Y. 2014).  It noted that “the Appellate Division used the correct legal standard in its reversal, [and] [i]ts determination that the potential to overwhelm defendant’s free will was realized was plainly one of fact.” Id.

Steven Drizin, clinical professor at Northwestern University School of Law in Chicago commented on the recent decisions in New York, noting that “[t]he court did not set any hard and fast rules, but it did issue some clear warnings that these tactics will be scrutinized closely in future.”  He explained that until now “[t]here’s been too much deference given to police officers, and they’re accustomed to having free rein with suspects behind interrogation doors.”

Related Readings

A recent decision by the Second Circuit Court of Appeals may provide guidance to criminal defense practitioners seeking to (1) suppress the involuntary confession of a client, and (2) limit the impact of a co-defendants’ redacted confession being admitted at trial. The Second Circuit, sitting en banc, affirmed a panel’s decision to vacate the convictions of three defendants found guilty of conspiring to commit a Hobbs Act robbery, among other things, and brandishing a firearm in furtherance of a crime of violence. The Court had been asked by the government to review a panel decision that had formerly held that the “confession” of one of the defendant’s was involuntary and should not have been admitted against the declarant at trial. The government also sought review of the panel’s determination that the admission of the “confession” was also prejudicial to the declarant’s co-defendants, requiring a new trial. United States v. Taylor, 736 F.3d 661 (2d Cir. 2013).

A panel of the Court had held that the defendant’s Miranda waiver was not knowing and voluntary, given that the defendant was clearly mentally incapacitated during his interview with federal agents. Id. at 669. The panel noted that the defendant had ingested a quantity of Xanax pills immediately before his arrest, and not long before the interrogation by the FBI had begun. The panel pointed out that the defendant was “in and out of consciousness while giving his statement, and in a trance or a stupor most of the time when not actually asleep.” Id. at 670. As such, the panel determined that “the officers’ persistent questioning took undue advantage of [the] [defendants’] diminished mental state, and ultimately overbore his will.” Id. The panel concluded that the admission of the defendant’s involuntary confessions was a critical part of the prosecution’s case, and could not be deemed “harmless error beyond a reasonable doubt.” Id. at 672.

Notably, the Second Circuit (en banc) withdrew the panel’s prior decision, and issued a superseding opinion. States v. Taylor, 2014 WL 814861, (2d Cir. 2014). It not only reaffirmed the panel’s prior decision in all respects, but further held that the admission of the defendant’s “confession” at trial violated the Confrontation Clause rights of the other co-defendants. The Court ruled that the redacted confession simply did not comply with Bruton, and made it obvious to jurors that the declarant had implicated his co-defendants in the crime. The Court explained that the redacted version of the defendant’s statement suggested that the original statements contained actual names.

The Court took observance of the fact that the redacted statement had contained both the declarant’s name and the name of the government’s cooperating witness (“Luana Miller”), while referencing the other co-defendants by “two other individuals” or “driver.”  Id. The Court reasoned that the redacted confession allowed jurors to notice that “Miller is the one person involved who was cooperating, and [] infer that the obvious purpose of the meticulously crafted partial redaction was to corroborate Miller’s testimony against the rest of the group, not to shield confederates.” Id. at *11. The Court noted that “[i]f the defendant had been trying to avoid naming his confederates, he would not have identified one of them-Miller-in the very phrase in which the names of the other confederates are omitted.” Id.

The Court explained that “[o]nce it becomes obvious that names have been pruned from the text, the choice of implied identity is narrow. The unnamed persons correspond by number (two) and by role to the pair of co-defendants.” Id. at *12. The Court noted that the “obviously redacted confession … points directly to the defendant[s], and it accuses the defendant[s] in a manner similar to … a testifying codefendant’s accusatory finger.” Id. (quoting Gray, 523 U.S. at 194).  The Court concluded that the “awkward circumlocution used to reference other participants, coupled with the overt naming of Luana Miller (only), is so unnatural, suggestive, and conspicuous as to offend Bruton, Gray, and Jass.” Id.

While the Second Circuit’s decision is applaudable, it may leave many criminal defense practitioners pondering over the slew of similar cases that have come before the Circuit in the past without any success on this  issue. Both the language and form (identifying by name the declarant & cooperator(s), while others as “person/individual”) that the Court identified in Taylor appears to have been customarily approved by the Courts. Indeed, Federal prosecutors have routinely been able to utilize such redacted confessions, although the defense has routinely objected to its admission based upon the obvious nature of the redaction and the likelihood that the jury will infer that their client had been implicated by their cohort.  Nevertheless, the Second Circuit has finally spoken against this once unfettered practice, and provided some much needed guidance on the issue.

Related Readings

POST WRITTEN BY: Prof. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School

On March 7, 2014, a Trial Chamber of the International Criminal Court (ICC) rendered a guilty verdict against Germain Katanga, relating to an investigation commenced in June 2004 by the ICC Prosecutor into the Situation in the Democratic Republic of the Congo (DRC). This is the second conviction achieved by an ICC Prosecutor since the entry into force of the ICC’s Rome Statute on July 1, 2002.

The ICC’s first conviction was rendered in 2012 against Thomas Lubanga Dyilo. The Lubanga Case also arose out of the Prosecutors’ investigation of the DRC situation. Lubanga, the leader of an armed group opposed to the DRC government, was convicted pursuant to Article 8 of the Rome Statute of the war crime of conscripting children into his military forces.

Germain Katanga, who also led an armed force opposed to the DRC, was also convicted of Article 8 war crimes. Notably, however, he was also found guilty on one count of a crime against humanity, pursuant to Article 7(1)(a) of the Rome Statute. This represents the first conviction the ICC Prosecutor has obtained on a charge of crimes against humanity.

Pursuing a charge of crimes against humanity requires the ICC Prosecutor, under Article 7(1) of the Rome Statute, to prove that the underlying criminal acts were committed “as part of a widespread or systematic attack directed against any civilian population ….”

During the 1990s prior to the entry into force of the Rome Statute, the United Nations Security Council, pursuant to its authority under Chapter VII of the U.N. Charter, enacted the Statutes of the International Criminal Tribunal for the former Yugoslavia and the International Tribunal for Rwanda. These statutes contain similar requirements for prosecution of crimes against humanity.

In accordance with these statutory requirements, the ICTY and the ICTR have obtained convictions against many defendants on charges of crimes against humanity. While these cases are not binding on ICC Court, when in September 2008 the ICC Pre-Trial Chamber confirmed the crimes against humanity charge against Katanga, it explicitly referenced and found guidance from the ICTY and ICTR cases regarding their interpretation of the elements required to sustain a crimes against humanity charge.

The Trial Chamber found Katanga not guilty of some of the war crimes charged and one of the crimes against humanity charged. Both the Defense and the Prosecutor have 30 days within which to appeal the judgment. The Trial Chamber will soon conduct proceedings with respect to the sentence and reparations for the victims.

The Criminal Justice Society invites you to its Criminal Defense Panel event on Thursday, March 20, 2014 at 6:00 pm – 8:00 pm. The event will take place in the Tudor Room, on the Law School Campus in White Plains. Click Criminal Defense Panel Event for more information. If anyone would like to volunteer to write a summary of the event, let us know.

Additionally, we would like to bring your attention to another networking event. Phi Alpha Delta, the Sports, Entertainment & Arts Law Society, and the Corporate and Commercial Law Society are sponsoring a Pace Alumni Networking Event. Alumni will join Pace students on Monday, March 24, 2014, from 6:00 pm – 8:00 pm in the Tudor Room to share their successes, careers, and advice with future Pace graduates. Hors d’oeuvres and beverages will be provided.

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