Fourth Department upholds confession produced by continuous 49-hour interrogation

People v Guilford, 2012 NY Slip Op 04475 [4th Dept 2012] [available here]

Syracuse police detectives took James Guilford into custody at about 11:30pm on March 20, 2007, on suspicion of murdering his ex-girlfriend. He was then interrogated non-stop by a rotating team of detectives for the next 49 hours, with no sleep and little food, at the end of which he told a detective, "I'll give everybody what they want" in exchange for a plea deal and an attorney. As described by the dissenters,

The interrogation occurred inside a locked room that was 10 feet by 10 feet. Except for bathroom breaks, during which defendant was accompanied by a detective, defendant spent the entire 49 1/2-hour period in the interrogation room. As the suppression court noted in its findings of fact, the only food consumed by defendant during his continuous interrogation was a single sandwhich, which he consumed early in the evening on March 21. That was approximately 20 hours after he was taken into custody and 40 hours before he confessed on the morning of March 23, a point that bears emphasis. From early Saturday evening to Monday morning when he confessed, defendant ate not a morsel of food.

In addition, as the suppression court further stated in its findings of fact, there is no evidence that defendant slept during his 49 1/2 hours in the interrogation room. [...] The suppression court set forth in its findings of fact that defendant had an "opportunity to sleep" in th holding cell, but there was no evidence adduced at the hearing that defendant actually slept or that the conditions in the holding cell were such that it was even possible for defendant to sleep. Thus, it appears that defendant may have been awake for 50 hours immediately preceding his confession. That does not take into account the fact that defendant was picked up by the police at 10:30 p.m. on March 20 and probably had been awake for quite some time on that day.

(People v Guilford, 2012 NY Slip Op 04475 (Lindley and Martoche, JJ, dissenting.)

After talking with a lawyer and being held in a holding cell for 8 hours, defendant confessed to killing his ex-girlfriend. A majority of the Fourth Department upheld the confession, holding that the 8 hours in the holding cell and the chance to speak with an attorney was enough to cure the illegal marathon interrogation. In so holding, the Court attributed almost super-human powers to the attorney appointed to represent the defendant, and in whose presence the final confession was taken. From the majority's decision:

In particular, we note that, once an attorney was appointed for defendant and defendant had the opportunity to consult with the attorney before again speaking with the detectives, in the presence on an attorney, it cannot be said that the statements were involuntary or the "product of compulsion."

(Id. at __.)

As a criminal defense attorney, I can assure you that it is sometimes impossible to convince even well-fed, fully rested clients not to do stupid things (like confessing to murder), never-mind attempting to reason with a client who just endured almost 50 hours of quasi-torture. The investigators in this case spent an entire weekend breaking the defendant down, depriving him of food and sleep, and in the end convinced defendant to "give everybody what they want" in exchange for an attorney and a few years off his sentence. It is naive and a bit disingenuous to think that an hour or two talking to a defense attorney would be enough to repair the psychological fracture that was the intended and inescapable result of draconian police conduct. As the dissenters note, "the presence of defense counsel did nothing to improve defendant's cognitive functioning, which necessarily was adversely affected by the prolonged lack of food and sleep." (Id. at __.)

Justice Scudder filed a separate concurrence, and would have found that the presence of the attorney alone was enough to validate the confession, even without the 8 hour break in the holding cell from almost 50 straight hours of Geneva-convention-violating interrogation. I can only assume this was done to lend a patine of reasonableness to the majority's holding.

The Corasanti verdict backlash

I usually do not keep up with the news out of Buffalo, but I found myself driving to court last night in a loaner car, without my usual array of podcasts and audiobooks to pass the miles, and had to resort to the radio. Buffalo's main news station, WBEN, was dominated by the verdict in the trial of Dr. James Corasanti. This case has not received much play in Rochester, so here's a quick recap for those (like me) who have not been following the case (the Buffalo News has an entire section dedicated to the trial here, and a (arguably slanted) summary of the trial testimony here):

Dr. Corasanti had dinner and drinks at his Country Club, played a few holes of golf, had a few more drinks, and then got into his BMW and drove home. It was about 11pm when he left the Country Club. Alix Rice. an 18-year old skateboarder, was on her way home from working at a local pizza place. She was on her long-board, skating on the side of the road. Dr. Corasanti hit Alix with his car and killed her, drove home, called his attorney, and about an hour and a half later turned himself in to the police. Dr. Corsanti was charged with second-degree manslaughter (recklessly causing death), leaving the scene of a fatal accident, and driving while intoxicated.

The trial ended Wednesday with the jury's verdict: not guilty on manslaughter and leaving the scene charges, guilty of misdemeanor driving while intoxicated.

Given the optics at play in this case--rich doctor returning from a night of drinking at the Country Club, a quirky teen cut down before her prime, the doctor leaving the teen on the side of the road to die and immediately lawyering up--the backlash to the verdict was inevitable and expected. Two views seem to dominate: the jurors were gullible idiots, and the judge should whack Dr. Corsanti with the maximum possible 1-year sentence on the DWI. This column in the Buffalo News is typical of the type of overwrought rhetoric that has followed the verdict.

The jury foreman was interviewed (here), and it appears that the jury did exactly what it was supposed to do: set aside the overwhelming emotion of the case, view the facts in an objective light, and hold the prosecutor to its very high (and very appropriate) standard of proof in a criminal case. From the interview:

"We did our very best," Nixon said. "We took the law and tried to apply it to this case. It was a very emotional case. We tried to keep emotion out of it as best we possibly could.
We tried to our best to weigh the evidence and the testimony."

Most of the callers to WBEN were of the opinion that the system was broken; that lay jurors should be replaced with trained professionals; and that the defense should not be allowed to "confuse" the jury with "hired-gun" experts. It begs the question: what exactly do these people expect out of a criminal justice system? That the prosecutor's evidence and theories go unchallenged? That the defense be prohibited from calling its own witnesses, its own experts? How many of us would be content with such a system if we were the ones standing in Dr. Corsanti's shoes?

Based on the summaries of the proof I have seen, the defense had a solid argument against the manslaughter charge: that even if Corsanti was drunk, there was no evidence that he was driving erratically, and given the fact that Alix was skateboarding, apparently in a crouched position, on the side of a dark highway at 11pm at night, and there was little or no evidence to establish if she was in the lane of travel at the time of impact, there was no way for the jury to determine whether Dr. Corsanti did anything to cause the accident, or whether it would have happened to any motorist who happened to be driving on that road, at that particular time.

As to the defense's "hired gun" experts, they were called to rebut the testimony of the prosecution's own "expert," a police investigator "trained" in accident reconstruction, who opined that Dr. Corsanti was traveling at up to 52mph in a 35mph zone at the time of impact. His opinion was based on the damage to the vehicle and the position of the body--hardly the stuff of hard science. The "expert" also testified that Alix was visible at the time of impact, and Dr. Corsanti "could have or should have" seen her in time to avoid the accident--again, not exactly the type of opinion that hews closely to the scientific method.

In the face of such junk science and rank speculation, the defense was obligated to call its own experts to challenge the prosecution's version of the incident, and to de-mystify and discredit the prosecution's "accident reconstruction" expert. To do less would be malpractice. To suggest that the defense did something wrong in calling its own experts, or that the defense experts misled or bamboozled the jury into an unjust result, at once betrays a dermis-deep understanding of the adversarial system and a child-like faith in the strength of the prosecutor's proof.

Equally disturbing are the open calls to the judge to sentence Dr. Corasanti to the maximum one-year sentence on the DWI to, in the words of one particularly facile columnist, "inject into the case a measure of justice." (Here.) The point here should be too obvious to mention: you can't punish somebody for criminal conduct if they have not been found guilty. Under any definition of justice or fairness, hitting Dr. Corsanti with a maximum sentence on the DWI because he should pay for killing Alix--when the jury acquitted him of that crime--would be simply substituting the judge's opinion on what the outcome should have been for the jury's verdict.

How not to do a drive-by

People v Johnson, 2012 NY Slip Op 02965 [4th Dept 2012]

I'm no expert, but I think the drive-by shooting (as opposed to a regular, on-foot shooting) has three distinct advantages: there is a bit of intimidation involved, what with the high speed and the surprise; being in a car allows the shooter to get away from the scene quickly, and; the car provides some cover for the shooter, making identification more difficult and providing some cover from any return fire.* The defendant and his compatriot in Johnson managed to do a drive-by that accomplished none of those goals, and it was down to their choice of a vehicle: a moped. As explained by the Court, "just prior to the shooting defendant was driving a moped on which the defendant was a passenger. Immediately before the codefendant fired a shot or shot toward a vehicle, defendant stopped the moped." Probably best not to use a vehicle that you actually need to stop in order to fire your weapon. You just end up looking like these guys:



On the plus side, the moped allowed the defendant to "swerve" and "maneuver" around some police cars before being caught. The defendant--the driver of the moped--argued on appeal that the evidence was insufficient to support his conviction for possessing the weapon fired by his co-defendant. The Fourth Department held that it could be inferred from the evidence that "defendant was aware that the codefendant had a loaded firearm, and that he aided the codefendant in that possession inasmuch as he stopped the moped in order for the codefendant to be able to line up his target and fire." Ergo, accomplice liability. * It is possible I have given this too much thought.

CA: Temporary internet cache files not "possessed"

People v Kent, 2012 NY Slip Op 03572 [available here]

First, a welcome to any new readers who found me by my "Up & Coming Attorney" profile in the Daily Record. Next, an apology and a warning: my first post as an U&C'er discusses a case involving child pornography. Feel free to skip it and start with something silly. I won't be offended.

If you are still reading, chances are it is your job to defend people accused of possessing child pornography. The vast majority of prosecutions involve images and videos obtained over the internet and stored on a computer. To put it mildly, the law has not done a good job of keeping up with the pace of technology. The current statute criminalizing possession of child pornography was written, for the most part, in 1977. The definition of "possession" reflects the nature of the crime in the late 1970s, and was established if a defendant "knowingly has in his possession or control" an item constituting child pornography. When the realm of material was limited to magazines, photographs, and video tapes, this definition was perfectly serviceable and was not difficult to apply.

Enter the internet. What constitutes "possession" of child pornography when the material is accessed and viewed over the internet?

The Kent case started, like these cases often do, when Mr. Kent's computer went kaput and required repair by his employer's IT department. In the course of fixing the computer, the IT guys discovered a folder containing image files of "scantily clad, prepubescent girls in provocative poses." Creepy, but not illegal. Enough to warrant a call to your friendly neighborhood police department? Absolutely. The defendant's employer consented to a full scan of the computer's hard drive, and, well, you can guess how that turned out.

Among other things, the scan revealed child pornography images in the web browser's cache folder. As explained by the Court, a "cache contains images or portions of a Web page that are automatically stored when that page is visited and displayed on the computer screen; if the user visits the Web page again at a later date, the images are recalled from the cache rather than being pulled from the Internet, allowing the page to load more quickly." There was no evidence that "defendant was aware either of the cache function of his computer or that any of these files were stored in the cache." Mr. Kent was indicted for possessing child pornography based on the cache files, convicted after trial, and his conviction was upheld by the Third Department. That court held the cache files were proof that defendant "knowingly accessed the Web page and displayed it on his computer screen . . . establishing his dominion and control over the images."

The Court of Appeals, in a majority opinion by Judge Ciparick, disagreed and held "some affirmative act is required (printing, saving, downloading, etc.) to show that defendant in fact exercised dominion and control over the images that were on his screen. To hold otherwise, would extend the reach of article 263 to conduct--viewing--that our Legislature has not deemed criminal."

This decision will likely trigger an overdue overhaul of New York's child pornography laws. The comparable federal laws criminalize not only possession, but also accessing child pornography with the intent to view it.

But lest you think that Mr. Kent's victory was complete, he was also convicted for possessing child pornography files that he deleted from his hard drive prior to turning it over to the IT department for repair. The police forensic scan found the files in the un-allocated part of Mr. Kent's hard drive, where "deleted" files go in little bits and pieces. A computer's allocated space contains those files that have not been deleted. The Court held that, if a child pornography file is in the un-allocated space, it is reasonable to infer that, at one point, the defendant downloaded and stored that file on his computer before attempting to delete it, and that downloading the file was a sufficient affirmative act to establish possession.

Happy Friday (celebrating the right to remain silent)

With apologies to my police officer friends, family members, and clients, a funny, informative, persuasive lecture with one message: you should never, under any circumstances, talk to the police.

AD4: HGN AOK

People v Julius, 2012 NY Slip Op 02198 [4th Dept 2012] [available here]

The Fourth Department has fallen in line with the Second and Third Departments, holding that a trial court may allow a police officer to testify "regarding a horizontal gaze nystagmus field sobriety test (HGN test)without conducting a Frye hearing." What is the HGN test? Take it away, Youtube:



The Court notes that "HGN tests have been found to be accepted within the scientific community as a reliable indicator of intoxication and, thus, a court may take judicial notice of the HGN test's acceptability." The proper foundation for the testimony must still be laid by the officer, including his qualifications and training to administer the test and "the techniques he employed."

The Julius decision makes it more difficult for DWI defendants in Rochester and the surrounding counties in the Fourth Department to challenge the admissibility of HGN tests. The main attack point shifts from the nature and reliability of the HGN test itself, to whether the officer was adequately trained and followed the proper steps in administering the test.

Of course, be careful what you say while performing the roadside tests, as demonstrated by the motorist in the clip below:

Redefining ineffective assistance of counsel

People v Fisher, 2012 NY Slip Op 02416 [2012]

A defendant in a criminal case has the right to a lawyer. And not just a potted plant in a suit; an effective lawyer. A defendant's rights would mean little without a competent attorney on board to make sure that the rights guaranteed by the United States and New York Constitutions are not violated.

In the context of an ineffective assistance of counsel claim, the bar is set pretty low for defense attorneys. Courts reviewing a lawyer's performance chalk up all manner of mistake to trial strategy, or acknowledge mistakes but find enough moments of competent representation to disregard the bad moments.

But there are signs that, at least in New York, the standard is changing. The latest, clearest marker of that trend is People v Fisher, handed down last week by the Court of Appeals. The defendant in Fisher faced some pretty awful accusations that he sexually molested two of his nieces. But there were plenty of problems with the prosecution's case at trial. The mother of the alleged victims had a pretty strong financial motive to fabricate the allegations, and one of the main witnesses against Fisher was a jail-house snitch, a convicted murderer who bartered his testimony against Fisher in exchange for a favorable recommendation from the prosecutor to the parole board.

The prosecutor in Fisher gave a fairly typical closing argument in a child sex abuse case. She argued that the child had gone down a "long road" to testify at the trial, that the child had repeated her story multiple times to all sorts of people, and the story was consistent each time. One problem: there was no actual evidence before the jury that the child had made prior consistent statements, and any such evidence would have been inadmissible bolstering. The prosecutor went on to minimize the benefit the DA's office conferred on the snitch for testifying, an argument that the Court of Appeals found "less than frank" and "materially misleading." The prosecutor closed with the by-now standard line: "the day that the voice of the child is not evidence is the day that those doors [the doors to the courtroom] should be locked forever." The Court of Appeals noted that "it was not permissible for the prosecutor, an officer of the court, to admonish the jury that their acceptance of the testimony of the child witnesses was essential to the administration of justice."

What is amazing about this decision is that the Court of Appeals did not reverse the defendant's conviction based on the prosecutor's misconduct during closing argument. Indeed, the Court was without any authority to reverse on that ground, because defense counsel at trial let the prosecutor's closing argument flow by without objection. And that is precisely why the Court of Appeals did reverse the conviction. The Court held "defense counsel's failure to object to any, let alone all, of the prosecutor's egregiously improper departures during summation, particularly in the highly charged, potentially outcome determinative context in which they occurred, deprived defendant of the right to effective assistance of counsel."

This a doubly surprising result: appellate courts almost never reverse based on a prosecutor's misconduct, and a reversal for ineffective assistance of counsel is rarer still. The precedent is comprehensively laid out in Judge Smith's blistering dissent. To have a reversal, from the highest court in New York, based on ineffective assistance of counsel for failing to object to prosecutorial misconduct, is sort of mind-blowing.

The Fisher decision will change the way the Monroe County District Attorney's office prosecutes child sex abuse cases. They basically have to throw out their script and start over and try to obtain a conviction the old-fashioned way: by relying on the facts and evidence of the case, and not improper emotional pleas to the jury. Beyond that, Fisher should change the way defense lawyers practice. A lot of lawyers are taught, as a matter of strategy and courtesy, to let closing argument pass without objection unless the prosecutor does something truly outrageous. That conduct is now, according to the highest court in the state, the mark of an incompetent lawyer.

Beyond the context of closing argument, the Fisher decision could provide defendants another avenue for review on appeal. All too often, the intermediate appellate courts will refuse to reach issues that are not properly preserved for appeal by trial defense counsel. The Fisher decision gives appellate counsel the ability to argue, essentially, in the alternative: issue A should result in reversal, but if the Court finds issue A un-preserved, reversal is still required because trial defense counsel's failure to preserve the issue deprived defendant of effective assistance of counsel.

Kudos to Jan Somes, a friend and member of the excellent appeals bureau of the Monroe County Public Defender's Office, on the brief for Mr. Fisher before the high court.