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The five teen-agers convicted in the 1989 beating and rape of the Central Park jogger in New York may have confessed on videotape, but many in the legal community say the boys would have been better protected if the cameras had been turned on throughout their interrogations. The boys were held for as long as 28 hours before they confessed to attacking, though not raping, the jogger. The lawyers for the five defendants, who are now in their 20s, contend those confessions were coerced, a charge that has been denied by the New York City Police Department. On Dec. 5 the Manhattan district attorney’s office all but exonerated the men from the rape, but alleged no misconduct on the part of police or its own attorneys in obtaining the confessions. Instead, the office addressed new and old evidence, concluding that everything — including DNA found at the scene — suggested that one man, a convicted rapist and killer named Matais Reyes, brutally beat and raped the jogger as she went for an evening run through the park in April 1989. The five men could receive personal vindication as soon as next month if a state supreme court justice accepts District Attorney Robert M. Morgenthau’s recommendations and vacates the convictions. The men may yet sue the state for wrongful convictions. But many in the legal community say a more satisfying result would be a change in police practices that would benefit both defense attorneys and detectives. In September, the New York Civil Liberties Union sent Police Commissioner Raymond W. Kelly a letter asking the NYPD to begin videotaping as soon as interrogations begin. Soon after, Councilman William Perkins, a Democrat representing Manhattan’s 9th District, introduced an amendment to the Administrative Code that would require police officers to record all interrogations in full, rather than simply taping statements after suspects begin to confess. The department would have to make the tapes available to suspects and keep a copy for 10 years. The change in practice would be substantial for the NYPD, and Commissioner Kelly has not acknowledged that his department would even consider such a move, saying only in a statement two weeks ago that “if there are lessons to be learned from this case, we invite them.” Christopher Dunn, associate legal director of the NYCLU, said comprehensive videotaping would be “important both to protect suspects from coerced confessions and to protect the police department from unfounded allegations” of coercion. “We are pursuing this matter with the police department and we believe they are taking our request seriously,” Dunn said. He declined to comment on whether his group had formally discussed any changes with the police. Police department officials did not return calls seeking comment. Departmental procedures require that all interrogations of police officers who are the subjects of investigations be recorded mechanically or by a stenographer. Councilman Perkins said his proposed legislation soon could be the subject of a hearing, and he hopes the council will vote on it by the end of the year. He said supporters included the Innocence Project, 100 Blacks in Law Enforcement Who Care and the Latino Officers Association. Perkins also called on New York Mayor Michael R. Bloomberg to get behind the proposal, saying that the mayor’s response to the new evidence in the jogger case — asking Kelly to review the district attorney’s report and consider possible changes — was too modest. “It’s not enough for him to say to the commissioner, ‘Review your procedures to see if anything needs to be done,’” said Perkins, adding that Kelly, too, “has to take an affirmative stand.” The mayor’s office did not return calls seeking comment. ONLY TWO STATES The steps advocated by the NYCLU and Perkins are not common in the United States. Only two states, Minnesota and Alaska, record interactions between detectives and suspects from the moment questioning begins. In Alaska, the practice dates to 1980 and is known as the Mallot rule, named for a criminal defendant who sued the state in Mallot v. State, 608 P.2d 737. In Stephan v. State, 711 P.2d 1156 (1985), the Supreme Court of Alaska resolved any ambiguity in its previous decisions on the subject, saying that electronic recording of suspects is “a reasonable and necessary safeguard, essential to the adequate protection of the accused’s right to counsel, his right against self incrimination and, ultimately, his right to a fair trial.” The two defendants in Stephan, who were convicted of separate crimes and whose appeals were consolidated, had been recorded for only portions of their interrogations. The court reversed their convictions and ordered that their statements be suppressed at new trials. In Minnesota, comprehensive recordings were mandated by the state supreme court in 1994 ( Minnesota v. Scales, 518 N.W.2d 587). Michael Scales, who was convicted of two counts of first-degree murder and sentenced to life in prison, appealed his conviction, claiming he had a due process right under the state Constitution to have his interrogation recorded. The seven-judge Minnesota court upheld the conviction, citing evidence other than Scales’ confession. But it declared that all interrogations, including statements about a suspects’ rights, had to be recorded where feasible. Scales’ attorney relied heavily on the Alaska court’s decision in Stephan, and the Minnesota court agreed that recording was “a reasonable and necessary safeguard.” The court, however, did not rule that a suspect had a due process right to a tape-recorded interrogation, but instead used its supervisory power to require the recordings and declare that violations could result in suppressed statements. In a partial dissenting opinion, one justice warned that an exclusionary rule was drastic and not required by the due process requirements of the U.S. Constitution. The justice, Esther Tomljanovich, added, “I believe such a drastic remedy should be applied only after a full hearing of all the policy implications and with adequate notice to law enforcement.” Michael Warren, who represents three of the Central Park jogger defendants, said he felt the changes to the videotaping procedures were “absolutely essential.” Eric Seiff, who represents jogger defendant Kharey Wise, also voiced strong support, but questioned whether the cost of such procedures would be prohibitive. Seiff said that when he was an assistant district attorney in Manhattan in the 1970s, he and fellow prosecutors inquired about whether video cameras could be installed and used for interrogations and confessions. At the time, he said, the equipment was expensive and required so much bright light that the office felt defendants, and perhaps detectives, would be too disoriented to talk. He said requiring audio tapes could be a possible compromise. Councilman Perkins said his office had not yet estimated a cost for the changes, but he said no matter the cost, the benefits would be more valuable. Dunn said he did not believe the cost would be great, since NYPD detectives already use video cameras for confessions. He said that video should be easier to implement than just audio, since the equipment is already in place. PILOT PROJECT As far as compromises, Dunn said his organization would not oppose starting with a pilot project involving fewer suspects, like one that was started last year in Illinois’ Cooke County, which includes Chicago. Prince George’s County in Maryland has begun videotaping interrogations as well as confessions, and officers in nearby Howard County have long used audio tapes for both. “We think the police department is going to like this,” Dunn said. Another case from the Washington, D.C., area, however, helps explain why law enforcement officials might resist such changes. In 1984, D.C. prosecutors introduced videotaped testimony in a trial for the first time. They tape recorded a confession by defendant Anthony Beasley, who was accused of murder. But the tape also revealed nearly two hours of interrogation, during which detectives threatened Beasley, made promises that the law would not allow them to keep, and outright lied to him — all tactics that have been upheld by various appellate courts throughout the country. Although the jury eventually convicted Beasley, his trial marked the first and last time that D.C. law enforcement ever recorded, or offered a jury, anything more than a confession on videotape.

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