WHEN SHOULD COPS LIE?
NYPD detectives tweak an old approach. But lying is still lying.
For Police Issues by Julius (Jay) Wachtel. When it comes to the human costs of violent crime it doesn’t get much worse than what happened in a Harlem-area park during the evening hours of December 11, 2019. Three young hoodlums – one only thirteen, his accomplices a mere fourteen – approached a college freshman, Tessa Majors, 18, and demanded she give up her cell phone. And when she refused, one of the 14-year olds stabbed her to death.
Park video images depict three boys trailing a man, and, later, running off. Using additional videos detectives tracked the suspects to their homes. Officers subsequently spotted the youngest on the street, and when he tried to elude them by darting into a nearby building they arrested him for trespassing. After consulting with prosecutors, police summoned the boy’s uncle. In his presence they questioned the teen on video.
He initially denied everything. “I don’t know about the stabbing. I don’t know about the stabbing,” the youth protested. So the detective told some fibs:
Then Detective Wilfredo Acevedo leans over and says the police have video footage and other evidence that puts the boy and two middle school friends at the park when Ms. Majors was killed. “I’m going to be asking questions,” Detective Acevedo says. “I already know the answers.”
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Detective Acevedo didn’t simply act the tough guy. He reassured the boy that he didn’t consider him “a bad kid” and asked whether his uncle had taught him right from wrong. Lying to police, he cautioned, would bring on “a lot, a lot of trouble.”
In time the artfulness paid off and the boy talked. He and two classmates, both fourteen, went to the park to rob someone. But he didn’t stab the victim: one of the fourteen-year olds did that. Throughout, his confession was directed at the uncle. That, as Detective Acevedo later testified, was reassuring. “His response was to his uncle, not to me. I felt it was more forthcoming, more truthful.” That proved of scant comfort to the boy’s public defender, who protested that the uncle was ill-suited to oversee the interrogation, as he couldn’t be expected to know that the detective could legally lie. But the officer brushed concerns about the voluntariness of the statement and the child’s credibility aside. “I just wanted him to tell me what occurred in the park. That’s all. We can lie, yes.”
After two months of accumulating a veritable “trove of evidence,” including the murder weapon, a DNA match, and of course, an evildoers’ own words, prosecutors charged the three boys with robbery and murder: the 13-year old, as a juvenile, and his 14-year old companions as adults, as New York law allows in exceptional cases. Trials are pending.
This isn’t the first time that New York’s finest lied to kids to get them to fess up. A particularly notorious episode, the “Central Park Five,” took place in 1989. In the end, five teens ranging in age from fourteen to sixteen were convicted of assaulting and brutally raping a woman who had been jogging through the landmark Manhattan park. We reported on the fiasco nearly six years ago, on the same day that the City of New York awarded the five wrongfully convicted boys a total of $41 million, “about $1 million for each year of their imprisonment.”
No, the five weren’t total innocents. They were among several dozen young miscreants who were roaming the park that evening, assaulting and robbing innocent persons. Several of the five were also convicted in a couple of those crimes. But none were involved in the woman’s brutal rape and beating. As it turns out, the real culprit remained unmolested and went on to commit other rapes and a murder. It was only years later, after he was caught, convicted and sentenced to life on those crimes, that a guilty conscience led him to admit he alone committed the Central Park rape. He had no connection with any of the five boys, and his confession was confirmed through DNA.
Given the lack of witnesses or physical evidence tying them to the crime, how were the five convicted? By their own false admissions, in which they falsely pointed fingers at each other. Interrogators exerted subtle and not-so-subtle pressures to fess up. One boy was told that his cooperation might bring on leniency or even transform him from a defendant into a witness. Raymond Santana, the youngest, was told that police “had evidence” against fifteen-year old Kevin Richardson. But they wanted more, and if Santana “just helped them build a case against Richardson by placing himself into the crime scene, he’d get to go home.”
Officers also flat-out lied about the evidence they had. During the trial of Yusef Salaam, NYPD Det. Thomas McKenna testified that when the youth was first questioned he repeatedly denied having been in the park. So Det. McKenna warned him that if the “satiny and smooth” fingerprints found on the jogger’s pants matched his, “you're going for rape.” That lie – in fact, no fingerprints were found – changed Salaam’s tune. “Yes, I was there but I didn't rape her,'' the fifteen-year old said.
Over the years, psychological methods of interrogation have become increasingly sophisticated, employing ever-more subtle forms of manipulation, deception, and coercion. It’s no longer as apparent why innocent persons may falsely confess to crimes that carry the possibility of lengthy prison sentences or execution. New York’s detectives took an approach that closely resembles the popular “Reid” interrogation technique that we wrote about in “False Confessions Don’t Just Happen.” Among other things, Reid encourages officers to suggest “themes or reasons” that allow suspects to retain a sense of self-worth as they confess. Far removed from the nasty, old-fashioned “third degree” of T.V. and the movies, this method’s subtlety helps further the belief that the confessions it produces must be true.
As one might expect, detectives investigating the more recent Harlem attack quickly tried to distance their case from the Central Park fiasco. Prosecutors were promptly called in, and interrogators didn’t wait for arrestees to change their tune before they turned on the tapes. So we should feel better about this case. Right?
Perhaps. This time, jurors will actually hear the police lies and blandishments and have a better basis for considering any possible ill effects. There is also a lot of other evidence suggestive of the boys’ guilt. On the one hand, that’s a relief. On the other, it complicates things, as the corroborative effects of other evidence could distract jurors from considering the possible ill effects of manipulative questioning.
What does the law have to say about lying to suspects? According to the Supreme Court, deceptive questioning may not by itself be enough to render an otherwise admissible confession involuntary. In a leading case on point, the Court affirmed a murder conviction even though police “falsely told petitioner, who was reluctant to talk, that Rawls [his cousin] had confessed.” (Frazier v. Cupp, 394 U.S. 731, 1969). According to the Court, voluntariness isn’t determined by a single factor but by the “totality of the circumstances” (Schneckloth v. Bustamonte, 412 U.S. 218, 1973):
In determining whether a defendant's will was overborne in a particular case, the Court has assessed the totality of all the surrounding circumstances -- both the characteristics of the accused and the details of the interrogation [such as] youth of the accused…low intelligence…lack of any advice to the accused of his constitutional rights…length of detention…repeated and prolonged nature of the questioning…use of physical punishment such as the deprivation of food or sleep.
States are of course free to adopt stricter standards. In State v. Eskew (207 MT 36, 2017) the Montana Supreme Court reviewed the conviction of a mother who allegedly shook her infant to death. During a protracted interrogation, detectives got her to mimic shaking a baby after suggesting it was the only way she could help her child, whom they knew was no longer alive. Setting aside the conviction, the justices ruled that “confessions or admissions like the ones in this case, induced by deliberate psychological coercion, lies, and material misrepresentations to the suspect are not voluntary and should be excluded from evidence.” (Click here for the National Registry of Exonerations entry.)
Confronting an eerily similar set of facts, New York’s high court ruled in 2014 that local police went too far when they told a father that he could save his son by confessing. Their opinion in part reflected a state law that defines as involuntary “any promise or statement of fact [which] creates a substantial risk that the defendant might falsely incriminate himself.” Well, that seems pretty stern. We’ll have to see how it plays out in the Harlem case.
On the opposite coast, legal controls seem substantially weaker. California follows the Federal “totality of the circumstances” standard.” Here’s an extract from the California Supreme Court decision in People v. Farnam (28 Cal.4th., 2002):
Defendant…contends the following circumstances established the involuntariness of his confession: he was young; he had a low intelligence; he was left overnight in a cell; he was distraught; he had been smoking marijuana; and the police psychologically coerced his confession by falsely telling him his fingerprints were found on Mr. N.'s wallet…That [detective] Huff and his partner falsely informed defendant his fingerprints had been found on Mr. N.'s wallet did not render defendant's subsequent confession to the N. and Griswold crimes involuntary… Viewing the totality of the circumstances, we are satisfied that defendant's confession was the product of a rational intellect and a free will.
What’s the problem with that? “Your Lying Eyes,” one of the very first posts in our “Wrongful Conviction” section, recounts the exoneration of David Allen Jones (for his National Registry entry, click here):
A mentally retarded man with an IQ of 62, [Jones] was talked by LAPD detectives into confessing to murdering four prostitutes in 1992. Although DNA recovered from the victims was not his, Jones was nonetheless tried and convicted….Nine years later, an LAPD detective working cold cases matched the four rape/murders attributed to Jones plus six more to another man already in prison for rape.
And for a real head-shaker check out “Lying: the Gift That Keeps on Giving,” an early post in our “Conduct and Ethics” series. In 2003, LAPD homicide detectives used a purposely altered photospread to convince a murder suspect – he wasn’t in custody – that one of his acquaintances identified him as the killer. (She hadn’t.) So he killed her.
Switching gears, let’s leave the law behind and take an ethical perspective. Ought law enforcement officers ever lie? Ever manipulate? Ever bluff? Your blogger, who spent two decades as a Fed, can offer no easy solution. His post-arrest interrogation style – and that of most his colleagues – was factual and direct. But we didn’t lie, use the “Reid” technique or employ any other special approaches; for example, such as the FBI says it uses with “high value detainees.” Our work, though, was mostly about gun trafficking. We didn’t investigate murders. It wasn’t our job to catch rapists and killers before they struck again.
Still, it seems best to not lie. And especially, to avoid pressuring individuals most likely to falsely confess, such as children and the grief-stricken. On the other hand, if someone’s safety is at risk, such as a kidnap victim who’s still missing, then lie and cheat to your heart’s content.
Police lying doesn’t just happen during interrogations. Your blogger spent a couple years working undercover, posing as a buyer of stolen property, including guns. (He was known as “Jay,” and the nickname stuck.) Jay’s job was intrinsically as a deceiver, and the better his lies, the better the results. If there was a saving grace ethics-wise, it lay in the inducements. Instead of wielding the interrogator’s hammer of the state, Jay was offering a reward – cash – to persons who were ostensibly exercising free will.
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Yes, that too is morally complicated. (For more about this, check out “From Morals to Practice,” Jay’s article about the ethical dilemmas of undercover policing.) But don’t just take his word for it. Three years ago, in “You Can’t Handle the Truth: A Primer on False Confessions,” Craig J. Torcino warned, eloquently and in great detail, about the consequences of police manipulations:
There are measures to be taken to stem the tide of false confession in American courts and they are well documented. From mandatory videotaping of all interrogations to more enlightened means of interrogation beyond the Reid Technique. The causes of false confessions and their damage are known. Now is the time to stimulate efforts for remedial action.
Well, that’s it for this round. From our home in Orange County, California, where Linda and I have hunkered down against that implacable microscopic foe, we send our best wishes. Stay well!
3/29/20 In their new book, “Understanding Police Interrogation: Confessions and Consequences,” Woody and Forrest argue that false confessions can be caused by psychological manipulations; for example, techniques that “build rapport” with suspects and tricks that fool them into believing they’ve been incriminated by (non-existent) evidence.
3/27/20 Fourteen sets of well-to-do parents prosecuted for buying their children into expensive colleges are demanding that charges be dismissed. According to their court filing, prosecutors allegedly withheld notes made by their key witness, the middleman, that parents had asked him to donate to programs, but that prosecutors coerced him into telling them during taped calls that their money was bribing individuals.
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Guilty Until Proven Innocent Wrongful and Indefensible False Confessions Don’t Just “Happen”
Lying: the Gift That Keeps on Giving
From Morals to Practice: Dilemmas of Control in Undercover Policing
A RECIPE FOR DISASTER
Take an uncertain workplace. Toss in a “mission impossible”
and pressures to produce. Voila!
For Police Issues by Julius (Jay) Wachtel. Early last year a mother received a letter from LAPD informing her that her son was a gang member. Shocked by the news, the parent promptly marched off to a police station where she vehemently insisted that her kid had nothing whatsoever to do with gangs. LAPD apparently took her complaint to heart. After reviewing the reporting officer’s bodycam footage and “finding inaccuracies in the documentation,” a supervisor contacted the parent and assured her that the teen would not be identified as a gangster.
To its credit, LAPD launched an expansive inquiry. During the following months many members of the agency’s specialized “Metro” division came under investigation. Twenty were ultimately stripped of their official duties. Their alleged misconduct – incorrectly reporting on field interview cards that persons they stopped were gang members – had seriously compromised the agency’s gang database. One of eight regional systems that comprise the state’s “Cal Gang” intelligence network, its use is governed by State law. Only specially certified law enforcement officers can access the system, and adding entries is strictly regulated. Among other requirements, targets for inclusion must meet at least two of eight specified criteria, such as admitted gang membership or displaying a gang tattoo, and must have been contacted not just once but “on multiple occasions.”
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An August 2016 report by the California State Auditor revealed widespread noncompliance with these rules. LAPD, in particular, was singled out for serious and persistent lapses. Yet its problems apparently persisted. Public blowups over LAPD’s controversial stop-and-frisk campaign (see, for example, “Scapegoat,” Part I) recently led Chief Michel Moore, a veteran officer who took the helm in June 2018, to publicly announce his determination to right the ship:
I don’t mean this to go on for months or years. I will make a finding on the basis of the completed investigation as to appropriate disposition — whether that be sustained acts of misconduct, including the potential criminality....
“Criminality”? Well, fudging the facts so that a stopped person meets the criteria for inclusion into a gang database sure seems like a purposeful falsification of official records. But why would an officer do that? L.A.’s a busy place, and it’s not as though its street cops lack for things to do. Chief Moore’s angst, though, wasn’t directed at ordinary badges but members of the elite “Metro” group, which had been assigned to conduct “intensive patrol” – meaning, of course, stop-and-frisks – in neighborhoods beset by gangs and gunplay.
We’ve suggested in a string of essays (for example, “Driven to Fail” and “Good Guy/Bad Guy/Black Guy, Part II) that get-tough campaigns inevitably lead to a profusion of “false positives.” That’s created major angst among members of minority groups, and not just in Los Angeles. Still, given the high rates of violence that characterize many lower-income areas, their police feel obliged to do something. How the outcomes of that “something” get assessed and measured presents some complex dilemmas.
In a new, thought-provoking article, the L.A. Times reported that managers evaluated Metro’s cops on sixteen criteria, from arrests and citations to “field interviews of gang members.” As we mentioned in “Driven to Fail,” Metro’s teams were unfamiliar with their assigned areas’ patterns and worthy inhabitants. So they adapted, in part, by focusing on pre-identified “chronic offenders.” Finding and discreetly following noteworthy prey until there’s enough to justify a “Terry” stop, though, proved no easy task. Targets of opportunity became a fallback strategy.
Whether cops free-lance or shadow known targets, the uncertain environment of policing virtually guarantees a profusion of error. Let’s self-plagiarize:
Policing is an imprecise sport. And when its well-intended practitioners target geography, meaning, by proxy, racial and ethnic minorities, the social impact of this “imprecision” can be profound. NYPD stopped nearly six times as many blacks (2,885,857) as whites (492,391). Officers frisked 1,644,938 blacks (57 percent) and 211,728 whites (43 percent). About 49,348 blacks (3 percent) and 8,469 whites (4 percent) were caught with weapons or contraband. In other words, more than one and one-half million blacks were searched and caught with…nothing.
Not every unproductive encounter reflects an error of judgment. There were likely more than a few worthy characters among those whom Metro had to ultimately let go. How many? Lacking clear data, it’s impossible to know. Yet the abundance of apparent “false positives” created an ideal platform for critics unfamiliar with the vagaries of the police workplace to jump to the conclusion that cops are racists. That, along with relentless pressures to produce measurable outcomes, created a vicious cycle well known to cops who have participated in get-tough-on-crime campaigns. Fudging someone’s gang involvement is a lie, period. But given the intrinsic difficulties of their “mission impossible,” Metro’s officers might have thought it the surest way to score enough “hits” to satisfy superiors while keeping nettlesome citizens, reporters and civil libertarians off their agency’s backs.
Pressures to produce aren’t just a problem at LAPD and NYPD. They’re endemic to policing. Demands from the top to “give us numbers,” which ultimately land on the shoulders of those who occupy the bottom of the flow chart, were obvious to the blogger throughout his law enforcement career. So much so that it inspired the topic of his dissertation. Entitled “Production and Craftsmanship in Police Narcotics Enforcement,” it explored the tension between quantity and quality in street drug enforcement. (For an article based on this work, click here.) Here’s just one of the many memorable quotes from a “worker bee”:
Make cases, put people in jail, numbers. Our department right now is heavily into numbers. It’s not so much the quality of the case but it’s how many cases you do…because there are stat’s being taken through the chain of command.
Not even your blogger, who’s obsessed with the notion of craft, would suggest that numbers are wholly irrelevant. Citation counts, for example, can be one valid measure (hopefully not the only measure) of the quality of an agency’s traffic enforcement effort. Yet counting can easily distort what takes place. That’s not only true in policing. Unholy pressures to produce quantifiable miracles pervade government, commerce and industry. (In education, your writer’s second career, it was “how many graduates did we have this year?”) But let’s take a really long reach. Consider the Boeing 737 fiasco. Is there any doubt that pressures to maximize profits impaired the quality of engineering? Here’s an extract from the New York Times account of an official report filed by former senior engineer Curtis Ewbank:
…Ray Craig, a chief test pilot of the 737, and other engineers wanted to study the possibility of adding the synthetic airspeed system to the Max. But a Boeing executive decided not to look into the matter because of its potential cost and effect on training requirements for pilots. “I was willing to stand up for safety and quality,” Mr. Ewbank said in the complaint, “but was unable to actually have an effect in those areas. Boeing management was more concerned with cost and schedule than safety or quality.”
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All lies aren’t equal. “Why do Cops Lie?” and other posts in our Conduct and Ethics series offer eye-popping examples of bias, selfishness and greed. Perhaps some of these qualities apply to a few of Metro’s officers as well. But it seems to us that the relentless characteristics of the workplace might have led some otherwise honest, hard-working cops to justify seemingly unproductive stops by fudging their subjects’ gang affiliations. Given the circumstances, these might have seemed like only “little white lies.”
Of course, in policing there is no such thing.
2/13/20 Lawsuits and challenges by two dozen individuals who allege that they were wrongly entered into Cal Gangs has led LAPD to remove them from the statewide gang database. Police insist that they’re properly using the system. But the State AG has opened an investigation.
2/3/20 Critics claim that California’s Cal Gang database sweeps too wide. Governor Newsom and the A.G. apparently agree. But their proposal to tighten how police label gang members - say, not on clothing alone - are opposed by law enforcement. Its “solutions,” though, are being criticized by activists for creating “loopholes” that supposedly keep race and economics in the driver’s seat.
2/1/20 An in-depth inquiry by the New York Times concludes that chain pharmacists “racing to meet corporate performance metrics” pose a danger to consumers. Forced to do more with less, they make errors filling prescriptions and badger physicians for refills so they can dispense large quantities of medication, needed or not, all for the sake of a buck.
1/24/20 LAPD Chief Moore has ordered a Board of Rights hearing for one of the twenty Metro officers being investigated for purposely misidentifying stopped persons as gang members. Such hearings are a required step in the firing process. He has also referred that officer for prosecution.
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Place Matters Did the Times Scapegoat L.A.’s Finest? (I) (II) Driven to Fail Mission Impossible?
Why do Cops Lie? Good Guy, Bad Guy, Black Guy (Part II) A Very Hot Summer
The Numbers Game Quantity and Quality Stop-and-Frisk
The craft of policing (.pdf) Production & craftsmanship in police narcotics enforcement (.pdf)
External: Improving policing by integrating craft and science (James J. Willis & Stephen D. Mastrofski, Policing and Society, Vol. 28, no. 1, 2018)