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Defense Lawyers Push For Recorded Confessions

State Supreme Court asked to overturn 1996 ruling on issue

By CHRISTIAN NOLAN

New Haven Public Defender Thomas Ullmann says criminal defense lawyers are often accused of trying to “manipulate” the truth. So it’s a bit ironic that he and his defense brethren will attempt to convince the state Supreme Court this week to require the audio and video recording of all police confessions and interrogations.

“We’re here supporting a mechanism that fosters truth and accuracy,” Ullmann said. “If you have the technology to make sure everything’s accurate, I don’t see any downside. The system is about a search for the truth.”

Ullmann said too much court time is spent hashing out whether confessions or interrogations should be suppressed. These hearings, he said, become a “he said, she said” between the defendant and the police. He said more cases would settle after a simple review of the confession or interrogation footage.

Tuesday’s noontime hearing at the state Supreme court will focus on the conviction of Julian J. Lockhart. In 2002, Lockhart was arrested in Georgia for beating a Wallingford man to death with a tree branch in a dispute over drug money and a car.

While in the Georgia jail, he was questioned by Connecticut State Police and then charged with murder and robbery. Before his trial, he moved to suppress the statements he gave to the police on the grounds that the police had failed to record them.

Middletown Superior Court Judge Robert Holzberg quickly denied his motion on the grounds that the Connecticut Supreme Court had already ruled that the state Constitution does not require that police record confessions, interrogations and advisement of Miranda rights.

In 1996’s State v. James, the high court ruled that not recording such interrogations does not violate a suspect’s due process rights. Since then, Connecticut courts have agreed that recording interrogations may be a desirable practice, but that it’s not required to achieve due process.

Because of the James decision, Lockhart faces an uphill battle, but it’s one his team of lawyers, Richard Emanuel of Branford and G. Douglas Nash of Farmington, are willing to take on. The pair of lawyers declined to comment on the case last week.

“Given the significance and primacy of a defendant’s ‘testimonial’ statements to the police, should not the Connecticut Constitution insist on the ‘best’ evidence of the defendant’s words?” the lawyers asked in their brief.

Supervisory Authority

Ullmann, who wrote an amicus brief on behalf of the Connecticut Criminal Defense Lawyers Association, explained that the state Supreme Court could use one of two lines of reasoning to overturn James. It could change its mind and decide that the failure to record interrogations is a violation of a suspect’s due process rights. It could also order the recordings by exercising the court’s inherent supervisory powers over the administration of justice.

Robert J. Scheinblum, a senior assistant state’s attorney, will argue against the mandatory recording. Scheinblum, who declined comment for this story, claims in his brief that nothing in the state Constitution has changed since James was decided. Further, he argues that nearly every court to have considered the question of recording interrogations since then has rejected it as a federal or state constitutional claim. The exception is in Wisconsin, where recording is used only for juvenile interrogations.

Also, Scheinblum states that never before has the Connecticut’s Supreme Court “exercised its supervisory authority over the ‘administration of justice’ by imposing a new rule of criminal procedure upon law enforcement.”

Scheinblum further cited James, which acknowledged that while electronic recording “would, in many cases, be a helpful tool in evaluating the voluntariness of confessions,” it would not be a “foolproof mechanism for accurately resolving disputes between an accused and the police”

The court in James said there could still be instances in question when the tape isn’t rolling, during bathroom breaks, or before police even begin recording.

Currently, six states and Washington D.C., have enacted recording statutes. But in Connecticut, law enforcement officials have long remained leery of making the change. They fear that suspects will balk at being recorded and defense lawyers will spend a lot of time critiquing interrogation tactics.

Former Chief State’s Attorney John M. Bailey told lawmakers that recording interrogations would “harm serious criminal investigations.”

But Ullmann, who claims that false and coerced confessions remain a problem, thinks more harm is done by not recording them. “It’s one of the few areas of society where back-room interrogations still take place,” Ullmann said. “So many things can happen there without documentation.”

The state Public Defender’s Office has also submitted an amicus brief to the state Supreme Court, as did the national Innocence Legal Network in coordination with the University of Connecticut Law School’s criminal law clinic.

“We just think it’s an important issue that affects all of our clients besides Lockhart,” said Martin Zeldis, head of the public defender’s appellate unit. •