Patterico's Pontifications

4/1/2007

Charlton Was Right to Demand Taped Confessions

Filed under: Crime,Current Events,General,Politics — Patterico @ 10:43 pm



The New York Times has an interesting article about fired U.S. Attorney Paul Charlton’s battle to get the FBI to record interviews with criminal suspects.

It’s frankly shocking to me to learn that the FBI is resistant to this. As a Deputy D.A., I have generally found that the more competent, hardworking, and experienced my investigators are, the more likely they are to tape-record interviews with suspects — and, often, with witnesses as well.

I don’t mean to suggest that interviews with witnesses or defendants are necessarily suspect if they haven’t been recorded. Each case is unique, and there are sometimes good reasons that a particular conversation has not been recorded. It’s often not possible to record an interview, or to do so without the interviewee knowing. In cases like that, it’s better to do a non-recorded interview than to do no interview at all.

But the FBI appears to have a general hostility to the very concept of taping statements by criminal suspects. This hostility strikes me as backward and wrong. And I’m not impressed by the agency’s reasoning:

The F.B.I., a division of the Justice Department, has strenuously resisted the practice unless special permission is granted by supervisors, under the theory that it may discourage suspects from talking and expose juries to interrogation methods that the department would rather not highlight.

. . . .

The F.B.I., in documents defending its policy, argued that taping was not always possible, particularly when agents were on the road, and that it was not always appropriate. Psychological tricks like misleading or lying to a suspect in questioning or pretending to show the suspect sympathy might also offend a jury, the agency said.

“Perfectly lawful and acceptable interviewing techniques do not always come across in recorded fashion to lay persons as proper means of obtaining information from defendants,” said one of the once-secret internal Justice Department communications made public as part of the investigation into the dismissals of the United States attorneys.

Well, my friends, if you’re going to use the statements in court, then you’re going to have to tell the jury the way you got it. If you lied to the defendant, you’re going to have to own up to it. Why not let the jury hear exactly how it was done? If you don’t think you did anything wrong, then surely the jury will agree when it hears the recording. I find myself in agreement with Charlton in this passage from later in the article:

Mr. Charlton said the most disconcerting argument to him — and apparently at least one official at the Justice Department — was the bureau’s worry that its interrogation techniques might offend juries. “So we want to hide the truth?” wrote one unnamed Justice Department official in a handwritten note, scribbled alongside the FB.I.’s defense of its policy. “Don’t want the jury to reach its own judgment?”

Exactly.

Being a prosecutor is about presenting the truth. If a defendant’s statement is critical to a case, then — if you have a choice — it’s better for the jury to hear the statement as it came out.

None of this means that Charlton was dismissed for reasons having to do with political prosecutions, as the Democrats are trying to assert with all eight U.S. Attorneys. But even if that didn’t happen, it doesn’t mean that the Administration — and clueless Dweeb-Weasel Kyle Sampson, the point man in this whole effort — didn’t make serious mistakes.

To the extent that the Administration blamed Charlton over this issue, it was wrong to do so, in my judgment.

8 Responses to “Charlton Was Right to Demand Taped Confessions”

  1. Wow. My experience is that juries have absolutely no problem when cops get confessions from people after “misleading or lying” to them.

    There just isn’t a long line of jurors going, “Oh, you said you had fingerprints of the pedophile, but you lied to him! I say, we let him go.”

    Plus, who cares if it was recorded or not? You still have to talk about how you got the confession, right? I’ve seen reports on unrecorded confessions where the cops explain that they actively misled the suspect. It’s necessary to have that to prosecute the case correctly.

    I’m 100% with Pat. Recorded statements are always better if they are available. Some situations don’t make them available, and some situations mean it’s impractical to have them, but when you can, why the heck not?

    I’m totally shocked by the FBI’s quoted reasons to resist recording. Recording is good.

    I should probably note that there are a whole bunch of deceptive/lying things cops could do which *are* improper; much of the stuff on TV is totally illegal and improper. (Providing documents forged by the cops is a big no-no, for instance.) I don’t support that. But misleading or lying to murderers as to the state of the evidence really, really does not bother me.

    –JRM

    JRM (de6363)

  2. I mean doesn’t this story kind of beg the question? Can local FBI chiefs really get USAs fired for disagreements about video recording? Was Charlton really the only USA to butt heads with the FBI or other enforcement agencies on this issue? At some point, doesn’t this whole recording issue become less and less likely to be the real explanation for Charlton’s ouster and more likely to be a minor, low-level, squabble that DOJ brass and the White House seized on when they suddenly had to come up with some performance-related issue to justify their decision publicly? Remember, no one ever said word one to Charlton about this being something that could cost him his job until he had already clearing out his desk.

    Why are the only explanations offered, explanations that just don’t make sense? Does this remind anyone else of a murder suspect who gives an alibi that doesn’t check out?

    Badger (343698)

  3. “Each case is unique, and there are sometimes good reasons that a particular conversation has not been recorded. It’s often not possible to record an interview, or to do so without the interviewee knowing. In cases like that, it’s better to do a non-recorded interview than to do no interview at all.”

    I’ll quite agree that if it is not possible to record the interview for some reasonable reason, it maybe acceptable not to. But to not do it because the interviewee might think he was being recorded … why is it that police object to being recorded when they are unaware? It would seem the same objection should be made on the “other side”.

    I should perhaps note that I have little to no faith in human memory of conversations, even those I’ve been part of. Having been a broadcast engineer and production studio guru for over a decade I have even less faith in secret recordings — and that was before digital editing.

    htom (412a17)

  4. Sometimes people are less forthcoming when they know they are being recorded.

    Patterico (04465c)

  5. I believe you misspoke–being a prosecutor is SUPPOSED to be about presenting the truth. In reality, it is far more often about “winning” and setting oneself up to run for political office at some point.

    TheManTheMyth (28d602)

  6. In reality, it is far more often about “winning” and setting oneself up to run for political office at some point.

    …or in the FBI’s case, preserving a pompous, law-unto-itself subculture that probably doesn’t care what juries think, but just doesn’t feel it should have to change.

    biwah (2dcf66)

  7. The primary reason there is still a cottage industry of TWA 800 conspiracy dweebs is the poor investigation, and extremely poor documentation of that investigation, done by FBI before turning the investigation back to the NTSB.

    Most of the TWA 800 random-thought-bots have repurposed themselves as 9/11 Twoofers. In both cases the conspiracy theory ties things up neatly for minds poorly educated in maths and sciences, and formed instead by the forty-minutes-to-the-answer conventions of television drama.

    The FBI once was my image of governmental competence, when I was a kid and “The FBI” was on the tube and the school library was full of tomes on dedicated, valorous and incorruptible G-men. Today, the FBI is still my image of governmental competence — with Zip Connolly, Robert P. Hanssen, and the incredible amateur hour that was the TWA 800 “investigation.” As you might imagine, I have somewhat less trust in government than I did at age 9.

    I was appalled when I learned about the FBI’s interrogation policy and “302s.” I imagine the real reason for 302s rather than verbatim recordings is so that the FBI agents can routinely adjust their testimony to the demands of the case without being contradicted by a contemporaneous (302s are often done long after the interrogation) or verbatim (they are never verbatim) record. (Do FBI agents lie in court…? Heck, ask a judge or any attorney… almost everybody lies in court!)

    If opposing this police-state technique is why the USA was actually fired, then the Administration deserves the shellacking it’s getting over this mini-scandal.

    Kevin R.C. 'Hognose' O'Brien (88bf29)

  8. I have analyzed the entire transcript of Kyle Sampson’s testimony before the Senate Judiciary Committee in regard to the “aggregating” of information by the Executive Office of the Department of Justice. There were some startling revelations: (This story plus updates can be found at http://misterapologist.blogspot.com )
    John Nowacki, Principal Deputy Director as well as the Acting Counsel to the Director in the Executive Office of the Justice Department, is the go-between for most of the Justice Department and all 93 US Attorney’s.(He used to work for the Wingnut group the Free Congress Foundation) He is the guy that gets letters, emails, phone calls, and other bits of information that he then passes up the chain of command. The documents contained on my website demonstrate his central role in important meetings, his role in gathering information on prospective US Attorney’s, and organizing complaints of current US Attorney’s. The final document (a portion of Nowacki’s schedule) demonstrates that his informants (Investigator Warren Hamilton) help to fulfill his obligation to the other members of the Justice Department by supplying information that fits with a specific agenda. It is extremely important that the House and Senate Judiciary Committee’s interview John Nowacki in order to establish the links
    between the Justice Department officials, the US Attorney’s in the field, and the political operatives who helped remove the targeted US Attorney’s.
    (This story plus updates can be found at http://misterapologist.blogspot.com )

    Zach Edwards (8da94c)


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