How far investigators can go in promising leniency to elicit a criminal suspect’s confession is an issue captivating the New Jersey Supreme Court.
For the second time in three months, the court on Monday heard a case in which a Department of Law and Public Safety employee claims he was lured into confessing he caused departmental printers to spew out thousands of racist flyers.
Carl Hreha claims he agreed to confess to the crime only after he was promised entry into a pretrial intervention program, that he would not be held in jail and that he would not be handcuffed.
A divided Appellate Division panel said Hreha’s confession should have been suppressed because it was coerced, and it reversed his conviction for computer criminal activity and bias intimidation and his five-year sentence.
The court on Monday heard the state’s appeal. “The Appellate Division majority didn’t apply a totality analysis,” said Assistant Attorney General Carol Henderson. “PTI may have appeared to be an option.”
Responding to questions, Henderson agreed that judges analyzing claims of coercion should look at what promises the defendant alleges were made.
Justice Jaynee LaVecchia noted that the investigator in this case has testified that he doesn’t remember what, if any, claims he made to Hreha. “He did say some of these things could have happened,” Henderson said.
LaVecchia then asked whether it would have been better for the Appellate Division to have remanded the case back to the trial court for another hearing to determine what promises may have been made.
“That would have been a good idea,” Henderson said.
Justice Barry Albin said a promise of PTI would have been improper.
“The possibility of a lenient sentence is just one factor,” Henderson replied. “No innocent person would confess to such a heinous crime just to get PTI.”
It is illegal, Albin said, for an investigator to offer PTI, since that is not his or her decision.
“They discussed the possibility of lighter sentences, including PTI,” Henderson said.
Albin said some people might be so frightened of going to jail that they would say anything to avoid the possibility.
“Then anyone can say their confession was involuntary because they were afraid of going to jail,” Henderson said.
Hreha’s lawyer, David Fassett, said the Appellate Division was correct in ordering the confession suppressed.
“There was no, zero, inculpatory evidence other than the confession,” he said. “We would not be here but for the confession, which was contradicted by other evidence.”
LaVecchia asked whether the court was obligated to believe the investigating officer made an offer of PTI because he said he couldn’t remember.
“I do,” said Fassett, of Chatham’s Arseneault Whipple Fassett & Azzarello. “There should have been some rebuttal evidence or something offered.”
Albin said Fassett was asking the justices to be the fact finders when their task is to interpret law.
Fassett said he was merely asking the court to look at the totality of the circumstances. “The promises actually induced the confession,” he said.
The Association of Criminal Defense Lawyers of New Jersey participated as amicus. Its lawyer, Joshua Gillette, said the court should fashion a rule that ensures suspects won’t be induced into confession to a crime through promises of leniency.
There is empirical evidence that promises of leniency can sway innocent people into confessing to crimes, said Gillette, of Gibbons in Newark. “Promises of leniency can overbear a person’s will,” he said.
Hreha was at lunch on Sept. 11, 2006, when the department’s printers started churning out the flyers, which included a Confederate flag illustration and epithets offensive to African-Americans.
When he returned, his supervisor, Kiran Patel, asked him to help stop the printers and to collect all copies. About 2,000 had been printed. Patel testified that at one point, he saw Hreha and another employee giggling.
Hreha was questioned by Sgt. David Dias and Det. Stanley Field and eventually confessed, saying he had wanted to create problems for another supervisor, Maria Cardiello.
Hreha confessed on a Friday, and he claims the officers told him he would be released without having to spend the weekend in jail if he told them what he did, he said. That was important to him, because he had a side job as a landscaper and had a job to finish on that Saturday, he said.
Before trial, when it became clear he was facing prison time, Hreha moved to suppress, saying he was promised an “easy sentence,” specifically PTI.
Mercer County Superior Court Judge Robert Billmeier denied the motion, finding Dias had denied any promises had been made and that Hreha’s story was not credible.