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Illinois has become the third state in the nation to require the police to tape interrogations. Starting in two years under a new state law, officers must tape interrogations of murder suspects or risk not being able to use their statements as evidence. Alaska and Minnesota already have court-imposed rules that cover all crimes, not just murder. Their requirements get mixed reviews from police officers and prosecutors in Alaska but seem uncontroversial in Minnesota. The two states require the recording of Miranda warnings, interrogation and confessions at places of detention, such as police stations and jails, and at other locations when feasible. The penalty for failure to record is that the statements cannot be used as evidence. Suspects do not always know they are being recorded. The Illinois statute, signed into law by Governor Rod Blagojevich on July 17, takes into account several of 85 reforms recommended last year by then-Governor George Ryan’s Commission on Capital Cases. The panel’s report prompted Ryan to grant clemency to all 156 inmates on the state’s death row and to suspend the death penalty. The commission was formed after 13 condemned men had been exonerated, some because of alleged police misconduct including coerced confessions. Major players in limiting the Illinois statute to homicides and adding 10 exceptions were the Illinois State’s Attorney’s Association, the Chicago Fraternal Order of Police and groups representing chiefs of police and sheriffs. “We started out opposing the bill, and then we worked to neutral,” said John Piland, president of the state’s attorney’s association, and the Champagne County, Ill., state’s attorney. He said the original bill would have “done mischief as opposed to seeking justice. “We have no problem with audio and visual recording, but the original bill made an unrecorded statement more reliable if it’s made to somebody besides a police officer.” Also objectionable, he said, was the outright suppression of any unrecorded statements. “If we’re backed up and there are no rooms available to record statements, we’re not going to wait five hours to take that statement,” Piland said. “The bill now allows for that.” The bill says untaped statements may be used in court if “electronic recording was not feasible.” Other exceptions include out-of-state interrogations and spontaneous statements not made in response to questions. Mark Donahue, the Fraternal Order of Police president and a Chicago detective, said his group tried to scale down the bill’s requirements. “In Area 4, we can have four or five active homicide investigations going on at the same time with 20 or 30 witnesses in each, any one of whom could later become suspects,” Donahue said. “Who do you tape? When do you start taping?” Another police concern is that taped interviews will impede prosecutions. “Jurors may not understand what are legitimate means of interrogation,” Donahue said, noting that some interrogations last 24 or 36 hours. Alaska leads way In Alaska, Anchorage Acting District Attorney John J. Novak accused the state high court of creating “out of whole cloth” its 1985 mandate that interrogations be recorded for all crimes when feasible and at all times when conducted in places of detention. “It’s no magic bullet, that’s for sure,” he said. “The idea was that courts would no longer have to decide on credibility-is the cop lying or the defendant lying?-no longer have to worry about coercion. Life would be wonderful. But it hasn’t worked out that way.” Novak said suspects allege that coercion occurred or promises were made on the ride to the station house before the taping began or during a bathroom break. Or that a threatening officer was off camera. Or the tape was altered, or a power outage was intentional. “In my evaluation, it absolutely hasn’t shortened evidentiary hearings or the swearing contests,” Novak said. “When suspects have to go to the bathroom, we chase them with tape recorders.” Novak conceded that some taped crime re-enactments have been invaluable, but like Donahue, he said taping should be optional-”not if you don’t do it, it’s suppressed.” However, the Anchorage police chief, Walt Monegan, said he likes the system. He said it heightens professionalism in the department. He recalled how one officer’s taping of a city official’s traffic stop saved the officer from potential discipline. The official had accused the cop of unbecoming conduct. The tape revealed a courteous patrolman and an official threatening to cut the department’s budget if the officer didn’t let him go, the chief said. Monegan doesn’t think the mandate interferes with police investigation, either. “It actually aids police to recall minutiae an officer can’t recall off the top of his head or some seemingly insignificant fact that might loom large as a case unfolds,” Monegan said. He couldn’t think of any drawbacks. Chicago’s Donahue accused Monegan of mouthing the company line because he’s appointed by the mayor, but Monegan said that Donahue is wrong. “It’s a feeling I’ve had long before I was chief,” he said. “It’s absolutely helpful. It helps both the suspect and the police.” The Alaska Supreme Court based its decision on taping on the due process requirement in the state constitution. Recording interrogations, it said, is “essential to the protection of the accused right to counsel, his right against self-incrimination and, ultimately, his right to a fair trial.” Stephan v. State, 711 P.2d 1156 (1985). Preventing dishonesty was not its main concern, the court added. “People forget specific facts or reconstruct and interpret past facts differently,” it said. The rule would protect the integrity of the judicial system and the public’s perception of it. Earlier, the court had said interrogations should be taped, but left enforcement to trial courts. Mallott v. State, 608 P.2d 737 (1980). Trial courts had the discretion to determine voluntariness of unrecorded confessions, whether Miranda warnings had been given, whether to admit fruits of unrecorded interrogations and similar issues. In Stephan, the court found that the police were too often ignoring Mallott, and that trial courts were usually siding with the prosecution’s version of events. Minnesota In Minnesota, Rick Zimmerman, a Minneapolis homicide detective sergeant, supports the taping rule. He said he tapes even in noncustodial situations so that the claim of coercion never comes up. “It’s been a great tool,” he said. “We used to have to go to court all the time on Miranda or whether we threatened a suspect, but now it’s rare that it’s contested. It’s amazing.” When the mandate first came down, he said, old-timers worried that it would inhibit them, but he hears no complaints now. Patrol officers are instructed not to question suspects when they’re taking them in for questioning or making an arrest. “We tape when the door opens. We turn it on before they’re in the room,” Zimmerman said. He chuckled when recalling a couple of interviews he’d done with suspects who were being held in other states. “There’d be two rooms-side-by-side,” he said. “An interview room and a taping room. And I’d bring my guy right into the taping room and the cops looked at me like I’m crazy, and asked me, ‘Aren’t you going to tune them up first in the other room?’ ” He refused to speculate on exactly what they had meant. The Minnesota Supreme Court, following Alaska’s example nine years earlier, based its mandates on the court’s inherent supervisory powers, sidestepping constitutional issues that had been raised. State v. Scales, 518 N.W.2d 587 (1994). “At the time, it was a great win for the defense,” said Marie Wolf, the assistant state public defender who argued Scales before the court. “Prosecutors and police departments held press conferences, saying the sky was falling. But it works, and it would be hard to find anyone who didn’t think so.” She said defendants have pleaded guilty who wouldn’t have before, because their lawyers were able to show their clients the tapes. “And we’ve had cases dismissed on pretrial motions based on the voluntariness of statements when in the past the judge would have believed the police,” she said. She could recall only about a dozen appeals based on Scales. These raised issues such as the kind of error that would warrant suppression. When defense counsel asked the court to extend Scales to noncustodial interrogations, they failed. Amy Klobuchar, the Hennepin County Attorney, the chief prosecutor for Minneapolis and 45 suburban communities, said she first worried that the mandates would infringe on police investigations. But she has found them “to be a great help in ensuring criminal convictions,” and to have resulted in “greatly decreasing claims of police brutality,” she said. Like the Anchorage police chief, she had her stories. One suspect said he couldn’t have committed the crime because he was blind, only to be videotaped reading something after detectives left him alone in a room, she said. Another, after detectives had left the room, looked down and said, “Shit, I’ve got blood on my shoes.” It turned out to be the victim’s blood. “There’s no longer a question about whether Miranda rights have been read,” Klobuchar said. “We’re at a time that we need to have trust in the criminal justice system from jurors and from the public and this promotes public trust because people know what’s happened in the interrogation. “They can listen to suspects’ stories as they make them up. They can look at the defendant as he looked after the crime, as opposed to the suit he’s wearing in court.” Bill Hennessy, prosecutor for rural Cook County, Minn., echoed Klobuchar’s sentiments. He said that arguments about what was said have been reduced by 95% or more. Klobuchar acknowledged that taping hasn’t stopped all arguments by defense counsel but said they have been greatly reduced and that defense counsel have become more realistic about their cases. “And so have we,” she said. “If we know we’ve blown, it, we know we can’t use it.” Immediately after the Scales decision, the court’s mandates were sent to a committee to establish guidelines. The committee was inundated with comments from police and prosecutors saying it wasn’t going to work, recalled Wolf, the public defender. By the time it was ready to issue guidelines, she said, the system was working so well that none was ever promulgated. Post’s e-mail address is [email protected].

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