The Queens District Attorney’s program for questioning suspects moments before they are arraigned ran into stiff headwinds during 90 minutes of oral argument at the Appellate Division, Second Department Tuesday morning.
Justice Peter B. Skelos questioned the bona fides of the program’s expressed purpose to do the “right thing” by gathering information to determine that the criminal charges which are about to be lodged at arraignment are warranted. A second panelist, Justice John M. Leventhal, mocked the format of the questioning which prefaces the required Miranda warning with a preamble urging the defendant to give his side of the story “now” as this is the “only opportunity” to do so prior to arraignment.
Leila Hull, who represented two of the three defendant’s whose cases were before the court, contended the “entire point” of the preamble is to urge defendants to “talk to us.” As such, she added, it “completely undermines” Miranda’s core purpose which is to advise suspects clearly of their right to remain silent. Allegra Glashausser, who represented the remaining defendant, stressed the context. The interviews are designed, she said, “to exploit the fact that this is the last moment that an unrepresented defendant will not have counsel.”
There was no dispute that defendants are assigned counsel once they enter the courtroom to be arraigned.
Queen Assistant District Attorney Donna Aldea defended the use of the preamble prior to the Miranda warning, because the brief 12-sentence preface did not contain any questions. Nor, she added, could the comments be construed as attempting to elicit incriminating statements, and without such a finding there is no basis upon which the statements may be suppressed as being involuntary.
Yesterday’s argument was the second in the last three months to deal with the validity of the courthouse questioning. In June, the court heard argument on the Queens office’s petition for a writ barring Acting Justice Joel L. Blumenfeld from enforcing his ruling finding that the questioning violated New York’s attorney ethics rules (Brown v. Blumenfeld, 3981/12).
10,000 Suspects Questioned
The Queens District Attorney’s office started questioning suspects at the Kew Garden’s courthouse in 2007. According to statistics provided by the District Attorney’s office, since then more 10,000 have been questioned with about 60 percent making confessions or statements. More than 100 defendants have had charges against them dropped.
The preamble which was at the heart of yesterday’s argument has been modified in two significant respects since the three defendants were questioned. The language read to the three defendants “you must tell us now” has be softened to “if you tell us, we will look into it.” Also the sentence telling defendants “if there is something you would like us to investigate … we will look into it” has been eliminated.
Ms. Aldea, when pressed as to the purpose of the questioning, said it was to “get it right” whether the result was to exonerate the defendant or to gain added evidence of guilt.
That prompted Justice Skelos to interject, “Is there any way” the statements in the preface can be construed “other than to say we are here to help you?”
“The proof is in the pudding,” he exclaimed. As soon as one of the defendants said something that did not fit the narrative line “boom” the interrogators were “all over” him. “You really lose some credibility with the court when you say the purpose was exculpatory,” he added.
In a similar vein, by both words and expression, Justice Leventhal expressed amazement that the process would be stopped if a defendant volunteered to give a statement before being given the Miranda warnings. “Oh,” he suggested, the questioners are going to stop the process and tell the suspect “we are going to have to Mirandize you first.”
Justice Jeffrey A. Cohen repeatedly expressed concern about the argument that the script could not be considered interrogation because it contained statements rather than questions. Justice Cohen also questioned the purpose of questioning a defendant moments before they enter the courtroom—“the investigation has been concluded,” he said.
Justice Ruth Balkin repeatedly asked Ms. Aldea whether it was constitutional to “burden” Miranda with the remarks in the preface.
When Ms. Aldea responded that the prefatory remarks were not an issue since the courts have already upheld them. Justice Skelos brought her up short asking, “aren’t we being asked to rule on a new ‘Miranda’ issue?”
“That is the question,” he said, “does [the preface] make it as if Miranda were not read?”
Both Justice Skelos and Justice Balkin had prior involvement with the issues argued yesterday. Justice Balkin wrote the court’s decision issued last November denying the Queens office’s lawsuit to enjoin Justice Blumenfeld from investigating the “ethics” of the courthouse questioning (Brown v, Blumenfeld, 2011 NY Slip Op 07039).
Justice Skelos sat on a panel that heard arguments seeking to bar Justice Blumenfeld from enforcing his April 17 ruling finding that the program violated the ethics code. At that hearing Justice Skelos was highly critical of Justice Blumenfeld for couching his ruling as an ethics violation — a mode that could effectively preclude the office from having its “day in court.” The court has not yet ruled on the District Attorney’s Article 78 petition.
At yesterday’s argument, the ethics issue was at best a footnote.
Both Ms. Glashausser and Ms. Hall work for Appellate Advocates, a group that contracts with New York City to handle criminal appeals for indigent defendants.
The three cases before the Second Department are People v. Polhill, 01680/10, People v. Lloyd-Douglas, 03736, and People v. Dunbar, 04786.