A script that Queens law enforcement officials read to a defendant in a pre-arraignment interview program rendered subsequent Miranda warnings ineffective, stripping the defendant of his constitutional right against self-incrimination and requiring a new trial, a state appellate court ruled yesterday.

“The preamble formulated by the District Attorney’s office adds information and suggestion to the Miranda warnings which prevent them from effectively conveying to suspects their rights… When the clear and unequivocal warnings devised in Miranda are combined with the information and suggestion contained in the preamble, the message conveyed to suspects is muddled and ambiguous. Correspondingly, when the warnings are combined with the preamble, it cannot be said with assurance that the suspects clearly understood their rights,” Justice Peter Skelos (See Profile) wrote for the Appellate Division, Second Department, panel in People v. Dunbar, 2010-04786.

He ordered the videotaped statement of defendant Jermaine Dunbar, obtained through the program, be suppressed.

Since the error in allowing the statement to be used at his trial was not harmless beyond a reasonable doubt, Skelos said Dunbar’s conviction must be reversed.

Justices Ruth Balkin (See Profile), John Leventhal (See Profile) and Jeffrey Cohen (See Profile) joined the unanimous panel, which heard arguments on Sept. 4.

The case was one of three challenging the interview program. The panel reached identical results in the two other opinions, People v. Lloyd-Douglas, 2010-03736, and People v. Polhill, 2010-01680, both unsigned.

Queens District Attorney Richard Brown said in a statement that his office would appeal the ruling.

“This office is committed to doing everything in its power consistent with the law to ensure that the innocent are never wrongfully convicted and that only appropriate charges based on the evidence are filed against the guilty,” Brown said. “Our Central Booking Interview Program is an integral part of our making certain that justice is done with respect to each and every one of the cases that we handle.”

Brown noted that his office had dismissed charges against more than 100 “innocent people” before arraignment because of the program, and reduced charges and lowered bail recommendations against many others. More than 12,000 interviews have been conducted since the program was instituted in 2007.

Brown said the script’s wording was revised since the program began and “virtually none” of the statements the panel found objectionable are in the most recent version. Moreover, the office further modified the script after yesterday’s ruling.

See the original version of the script, revisions from 2009 and 2012, and yesterday’s revised version.

The Second Department previously had ruled that a Queens judge overstepped his authority in questioning the ethics of the program (NYLJ, Dec. 20, 2012). But the court had not ruled on its constitutionality until yesterday.

A number of defense bar organizations and civil liberties groups filed an amicus brief supporting the defendants in the current appeal.

Under the program, as defendants await arraignment, they are read a script by law enforcement officials and given Miranda warnings.

The script read to Dunbar on April 24, 2009, by an assistant district attorney and an investigator as he awaited arraignment on charges that included attempted robbery contained phrases like: “If you have an alibi, give me as much information as you can, including the names of any people you were with” and “If your version of what happened is different from what we’ve been told, this is your opportunity to tell us your story. If there is something you need us to investigate about this case you have to tell us now so we can look into it.”

Another statement in the script was, “This will be your only opportunity to speak with us before you go to court on these charges.”

After having been read the script, Dunbar was Mirandized. The investigator asked him if he would answer questions and Dunbar said he would.

But Dunbar interrupted the questioning twice to express confusion or concern about whether the interview was to his benefit.

The investigator said the questioning would be helpful if, for example, Dunbar had an alibi to offer. The prosecutor and the investigator said Dunbar could say something like “it wasn’t me, I wasn’t there.”

When Dunbar said he could not truthfully make such an assertion, the investigator immediately said, “No, you can’t say that because we have pictures of you and they found the BB gun and all that stuff.”

Dunbar asked if he would be talking to “the D.A.” after talking to the investigator and prosecutor.

They responded the next person he would be talking to was his attorney and said it was their job to determine Dunbar’s side of the story. Dunbar said he had been forced to rob a store by others.

In a subsequent omnibus motion, Dunbar moved to suppress the statement, but then-Acting Supreme Court Justice Robert McCann rejected the motion, saying Dunbar had knowingly and voluntarily waived his Fifth Amendment rights.

Dunbar then went to trial before Justice Fernando Camacho (See Profile) and was convicted of second-degree attempted robbery and fourth-degree criminal mischief by a jury.

On appeal, Dunbar argued, among other things, that the pre-arraignment script rendered his Miranda waiver involuntary.

But the prosecution defended the program’s constitutionality, saying it was primarily designed to obtain “exculpatory information from the innocent.”

During oral arguments, Skelos observed that the prosecution lost “credibility with the court when saying the purpose is to get exculpatory information” (NYLJ, Sept. 5, 2012).

In his ruling, Skelos pointed to case law holding that warnings to defendants do not have to follow exactly the form laid out by the U.S. Supreme Court in Miranda v. Arizona, 384 U.S. 436 (1966). But where there are deviations, the courts must ask if the warnings given “reasonably conve[yed]” a suspect’s rights.

Here, Skelos said the script at question failed to do that—for example by “suggest[ing] a sense of immediacy and finality which impairs suspects’ reflective consideration of their rights and the consequences of a waiver.”

Skelos later added, “In essence, although suspects interviewed pursuant to the Program are told, through the Miranda warnings, that they have the right to remain silent, the preamble suggests that invoking that right will bear adverse, and irrevocable, consequences. Such a suggestion conveys that suspects have a right to remain silent only in the most technical sense.”

Ordinarily, Skelos said, questions about the knowing and intelligent waiver of rights against self-incrimination revolve around factors such as a defendants’s age, background and intelligence.

But that was not the issue in the appeal.

“Rather, the problem is that the defendant never received a clear and unequivocal advisement of his rights,” said Skelos.

Pointing to various rulings, prosecutors argued Miranda warnings do not have to be the first words said by law enforcement during interrogation.

Skelos agreed, but said the cited cases pertained to “limited, offhand remarks” that did “not compare to the systematic practice” developed by the prosecution.

The “formality” of the interviews, done in the presence of prosecutors, carried “greater weight and authority” than “brief, offhand remarks.”

“For these reasons,” said Skelos, “it is far more likely that the recitation of the preamble will serve to confuse, or at worst, mislead, suspects as to the nature of their rights and the consequences of waiving them, whereas offhand remarks usually will not rise to the level of obfuscating the meaning of the Miranda warnings.”

Skelos observed that Dunbar’s pre-arraignment interview “evinces such confusion, in that the defendant twice interrupted the questioning to ask how the interview was ‘helping’ him, and asked whether he would next be speaking to the ‘D.A.’”

In his statement District Attorney Brown said the ruling “takes issue not with the program itself but rather with our introductory remarks—remarks which were modified more than three years ago. Our current introductory remarks include virtually none of the statements with which the Court has found fault and, importantly, no defendant has ever been questioned without having first been read their Miranda rights.”

Assistant District Attorneys Gary Fidel, Robert Masters and Donna Aldea appeared for the office in the appeal.

Dunbar and Eugene Polhill were represented by Leila Hull of Appellate Advocates. Allegra Glashausser of Appellate Advocates represented Collin Lloyd-Douglas.

“We are happy that the Appellate Division found the systematic practice of the Queen’s Central Booking pre-Miranda interview program unconstitutional. These decisions are important not only for our three individual clients but also for the thousands of past and future defendants who were, or in the future could be, confused or misled about their fundamental constitutional rights,” Hull and Glashausser said in a statement.

Taylor Pendergrass, senior staff attorney with the New York Civil Liberties Union and one of the attorneys appearing on the amicus filing, called the ruling “incredibly significant.”

“It was clear from the outset that the program results in systemic, ongoing violations of the most fundamental constitutional rights. The Second Department saw the program for exactly what it was: a concerted, strategic effort to undermine the Fifth Amendment rights” enshrined in the Miranda ruling, said Pendergrass.

Organizations joining the NYCLU on the amicus included the Brennan Center for Justice, the New York State Defenders Association and New York Association of Criminal Defense Lawyers.