US: Prosecutor dismissal issue has language policy ramifications

[Harold F. Schiffman]

[Note from moderator: 'language policy' may seem far-fetched when first
approaches this issue, but the conflict over whether to tape-record
statements by suspects, vs. provide only a transcript (in English), is
masked by federal (Justice Department) policy.  The prosecutor dismissed
in Arizona wanted to tape-record, because he deals with suspects who may
have been interviewed in Navajo or another language; the FBI disagreed,
and he was dismissed. (HS)]

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April 2, 2007

Crime Intensifies Debate Over Taping of Suspects

By ERIC LIPTON and JENNIFER STEINHAUER

WASHINGTON, March 31 The account, buried in a mountain of documents
assembled for a Congressional investigation, describes a decidedly local
yet brutal crime: a Navajo man charged with beating his girlfriend nearly
to death and then hanging her by a rope outside their Arizona trailer home
to make the attack look like a suicide attempt. The crime has none of the
political intrigue of the other cases, mainly dealing with government
corruption or voter fraud, before lawmakers as they examine the
circumstances surrounding the dismissals of eight United States attorneys.
But the Arizona case has reached all the way from the Navajo reservation
to the halls of Congress, part of a still-stewing dispute within the
Justice Department over a critical law enforcement question: Should
interviews with criminal suspects be tape-recorded?

Paul K. Charlton, the United States attorney in Arizona, was ousted after
spending months protesting a Federal Bureau of Investigation policy that,
for practical purposes, forbids the taping of almost all confessions, in
stark contrast to the practice of many local law enforcement agencies in
Arizona and other locations across the country. Mr. Charlton blamed the
F.B.I. policy for the resulting plea bargain in the Navajo reservation
assault case, as well as the acquittal of a defendant in a child sexual
abuse case and a suspect in a prison murder indictment. Eight states, by
law or court action, mandate taping of interviews with suspects in at
least serious felony cases, turning a tape recorder or video camera into
an important tool in convictions, like DNA tests, fingerprints and
ballistics. More than 450 law enforcement agencies in major cities and
smaller jurisdictions also require the taping of certain interrogations.

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.
But the inability to tape suspects, especially those accused of sexual
abuse and domestic violence, can seriously compromise a case, Mr. Charlton
and other prosecutors said. Mr. Charlton said the problem was particularly
acute in Arizona, a state with 21 Indian reservations, where federal law
enforcement officials handle major felony cases. In essence, he said,
differing investigative practices have resulted in two distinct criminal
justice systems. If a crime occurred off the reservation, the confession
would be taped, but if it happened on tribal land, it would not.

That disparity in justice is unacceptable, Mr. Charlton said in an
interview. 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.

The debate in Arizona began in early 2006, when Mr. Charlton sent a
memorandum to all federal law enforcement agencies in the state notifying
them that, as of March 2006, any cases directed to his office for
prosecution in which a statement from an investigative target has been
taken must, with few exceptions, be recorded. A defendants admission
regarding his own criminal conduct is often the most single powerful piece
of evidence in a case, he wrote, in explaining the new policy. The F.B.I.
agent in charge in Arizona offered some flexibility, approving the uniform
taping of interviews with child victims of sexual crimes. But the agency
made clear that mandatory taping of all suspects statements was a
nonstarter. A policy dispute turned into a major tug of war.

Two days before the policy went into effect, Mr. Charlton said, he was
pulled aside by an official from the deputy attorney generals office while
attending a Justice Department conference. The F.B.I. is furious, he said
he was told. You have to pull this program back. Mr. Charlton, convinced
that the dichotomy in the system was unfair to victims and suspects on
Indian reservations, refused, and threatened to resign. As a compromise,
Justice Department officials asked Mr. Charlton to submit a plan to test
the policy, which would be adopted only after the F.B.I. and other federal
law enforcement players would be given a chance to weigh in. Mr. Charlton
cited the Navajo beating case in his March 2006 petition for the approval
of the pilot project. The defendant in that case, Jimmie Neztsosie, had
been charged in 2005 with assault with intent to commit murder for the
attack on his live-in girlfriend.

After the victim refused to cooperate, and investigators determined that
she had once before tried to commit suicide, Mr. Neztsosies two-and-a-half
hour confession became the most critical piece of evidence. But that
confession had been turned into a two-page written statement, which did
not indicate if Mr. Neztsosie was intoxicated during the interview and if
he had been questioned in English or in Navajo. An audio and/or video
recording of the statement would allow the jury to hear from the
defendants own mouth what he did, the prosecutor who handled the case
wrote, explaining why the office decided to agree to a plea bargain. The
jury would be able to hear and see that the agents did not put words in
the defendants mouth, that the defendant understood English and that he
was not intoxicated.

The failure to tape suspect interviews has been blamed for several
high-profile setbacks for federal and state prosecutors, including the
failure to impose the death penalty against Terry L. Nichols, in
connection with the Oklahoma City bombing in 1995. Instead, Mr. Nichols
was sentenced to life in prison after the jury foreman questioned why his
statement to investigators had not been recorded. Having the offender
speaking and saying, Yes, I did it, helps, said David LaBahn, executive
director of the District Attorneys Association in California, where
mandatory taping statewide has been under consideration. But officials at
the F.B.I. remain unconvinced.

They disputed Mr. Charlton's claim that he lost cases, or was forced to
offer plea bargains, because of the failure to tape convictions. Officials
also questioned the cost of a broad recording and transcription effort and
the likelihood that defendants might decline to offer statements if they
knew they were being recorded. We interview thousands upon thousands of
people every day of the year, said the F.B.I. director, Robert S. Mueller
III, explaining his objection to Mr. Charltons plan during a Senate
hearing last week. And some of them may end up as defendants, some may
not. And its not a question of just recording the interviews, but also who
is going to if theyre recorded, who is going to transcribe them? 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?

The Justice Department review of Mr. Charlton's taping proposal continued
for months, even as department officials in Washington assembled a list of
United States attorneys who would be dismissed. Mr. Charlton's name was
not on the early versions of this list. It showed up only in September, as
the review of the taping policy drew to a close.  Around the same time,
Mr. Charlton had a conflict with Justice Department officials over a
homicide that he did not believe should be prosecuted as a death penalty
case. Mr. Charlton was removed before officials in Washington gave him a
final verdict on his proposal. After his dismissal they cited his adamancy
about the taping and his position on the death penalty case as two major
reasons for his dismissal. In light of Paul C.s departure, should this
initiative still go forward?  said a memorandum written by Deputy Attorney
General Paul J. McNulty in January, referring to Mr. Charlton. The
memorandum was included in the materials turned over to Congress. The
answer, as least so far, has not been forthcoming from the Department of
Justice.

Eric Lipton reported from Washington, and Jennifer Steinhauer from
Phoenix.

http://www.nytimes.com/2007/04/02/washington/02taping.html?_r=1&ref=us&oref=slogin

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