Tapes can’t lie about suspects’ statements

SCHENECTADY COUNTY — One man in a T-shirt and baseball cap enters the room, followed by another in similar attire. The walls are white, there’s a wooden door and they sit at a simple wooden table.

This is the interrogation of a drug suspect by a Schenectady police detective after a summer drug raid.

The two make small talk, and the detective reads the suspect’s rights. The suspect signs a paper acknowledging them.

“There’s no doubt about anything from this point,” local defense attorney Steve Kouray said last week, narrating the video of one of his clients. Kouray showed it on condition the defendant not be identified because the case remains pending. “If he starts talking, it’s definitely going to be admissible.”

The entire conversation was videotaped, part of a new initiative by Schenectady and surrounding departments to record police interrogations.

Under a policy instituted by the Schenectady Police Department in April, all questioning involving felonies is now recorded; the recording is in addition to any written statements produced in the interview.

The videos, experts say, provide a visual and audio record of questioning. They preserve the suspect’s rights, but they also protect detectives from false accusations.

Previously, only a written statement was produced — if the suspect talked. And then it was the suspect’s word against the detectives’ if any disputes arose later in court.

The videos preserve the exact words used, important when attempting to discern a crucial distinction between promises and offers of help, something that could derail confessions later.

“I think it’s very helpful,” Schenectady County District Attorney Robert Carney said. “It’s very hard for an investigator to convey the range of emotions and thoughts ... when you have the original record, it’s powerful evidence for a jury.”

And it’s evidence that jurors had been asking for. In two trials in particular, in early 2006, jurors questioned why statements weren’t videotaped. That helped get the district attorney’s office and the city police working on ways to do that, even visiting Binghamton that year to see a system in use there.

Since then, Schenectady, Rotterdam, Niskayuna and Glenville have all installed videotaping systems, Carney said.

Funding the effort has come through two $50,000 grants, one from the state Department of Criminal Justice Services and one from the New York State Bar Association.

Police officials had expressed reservations about the technology, though the trip to Binghamton to see a system in use there helped allay those fears. The fears had included that tactics used by detectives, though legal, might be picked apart by defense attorneys.

But police now see the videos as helpful, said Brian Kilcullen, now an assistant chief with the Schenectady department.

“It really reduces the opportunity for defense attorneys to question the validity of the confession,” Kilcullen said.

As Kouray continued to narrate the video of his client, he noted that it showed exactly what was said: This detective offered help but offered no promises. “What he’s doing is perfectly permissible and legal and would be upheld by any court,” Kouray said. “It gets close to the line, but it never crosses it.”

Indisputable account

The recordings start the moment the two enter the room and end when they leave. There are no breaks. The recording continues even when detectives have left, leaving the suspect alone.

Melanie Trimble, of the Capital Region chapter of the New York Civil Liberties Union, stressed the importance of keeping the tape rolling. Gaps, she said, can lead to ambiguity.

The program, she said, is a positive one for a Schenectady department that needs positives.

“This should help boost the confidence of the community toward the police department,” she said. “There have been so many problems in the past with individual police officers; this is one very positive thing police are doing to protect police and also those arrested.”

Stan Adelman, an Albany Law School professor specializing in criminal procedure, likened the practice to cameras in patrol cars. The Schenectady department has had cameras in cars for several years now.

And cameras have been catching on, at least in principle, Adelman said.

“It’s not required by law,” Adelman said. “It’s just a good thing in the interests of creating a record and instead of relying on one side or one party after the fact.”

The Albany Police Department has cameras available in interview rooms but uses them on a case-by-case basis, a spokesman said.

The tapes helped in some cases to get guilty pleas, observers say, with defense attorneys presented with exactly what was said.

A video — the first produced by the city police — was credited Friday with helping to add to the mountain of evidence against downtown rape suspect Brian Sullivan. After a hearing, Sullivan pleaded guilty, accepting a 20-years-to-life sentence.

Sullivan, who admitted attacking a woman and sexually assaulting her in an underground parking garage in March, was the first suspect on which the new system was used.

INCREASING USE

In the three months following, nearly 200 interrogations were recorded countywide, officials said.

Sullivan attorney Steve Signore received a copy of the video of his client’s interrogation earlier and reviewed it. Defense attorneys can then zero in on issues they intend to raise, Carney said, such as whether a suspect actually asked for a lawyer.

The suspect is not told the interview is being recorded. Officials say suspects are told only if they ask.

Sullivan’s interview took place in late March. The policy did not go into effect until a week later, but the system was available and this was a high-profile case.

Sullivan is seen, fresh from his arrest on a parole warrant, sitting at the table with Detective Loretta Marco. He admits to talking with the woman — after little prompting by Marco — but denies attacking her. That denial, Carney said, closed a key avenue for the defense and was one that would have been played for the jury.

Hearings like Friday’s center on statements, whether they were lawfully taken and whether they were voluntarily given. Detectives usually testify about the process, from start to finish.

In a recent hearing involving murder suspect Richard Heinze Jr., who is accused of killing a woman and leaving her body in his father’s basement on Stanley Street, the detective testified that Heinze broke down crying as he gave the confession.

Prosecutor Philip Mueller was helped then, as Heinze again broke down crying, this time in the courtroom. Emotions in the interview room, however, aren’t usually repeated in the courtroom.

Heinze was interrogated in February, before the system was in place.

In Kouray’s drug case, the suspect admitted nothing, finally asking for a lawyer. “Right now,” Kouray said, as the suspect on the tape spoke, “he’s invoked his right to a lawyer. Anything he says now, it’s out.”

The detective continues to ask a couple more questions, but, as Kouray explains, if the suspect said anything more, those statements would be suppressed.

“The bottom line,” Kouray said, “it’s there to see in black and white.”

The detective then left, leaving the suspect by himself.