The opposition of Department of Justice officials toward requiring electronic recordings of interviews of felony suspects is extremely puzzling.
They are well aware of the widespread agreement among state police, sheriffs and prosecutors, based on years of experience, that electronic recording of suspect interviews is a tremendous boon to law enforcement. What then seems to be the problem with the ranking DOJ officials, who usually lead in the use of the newest and best law enforcement tactics? Why do top DOJ officials persist in opposing electronic recordings?
To put this discussion into perspective, I will first explain the process, then recount the experiences of a vast number of state law enforcement agencies, and finally take a critical look at the DOJ position.
Definitions: We are dealing with interviews of persons under arrest (not free to leave), being questioned by an FBI, DEA or ATF agent in a detention facility, for example, a federal or state building, a police station, and the like. The equipment should be turned on before the reading of the suspect’s rights (the Miranda warnings), and turned off when the session is finished. The DOJ investigative agencies – FBI, DEA and ATF – as other federal agencies, have access to the most current, sophisticated recording equipment, which agents use on a daily basis, for example, to record conversations between confidential informants and those suspected of violating federal laws. They have both the means and the expertise,
Experiences of others. During the past eight years, my colleagues and I have spoken to and received written reports from over 1,000 officers in every state who record suspect interviews in a variety of felony investigations, as well as many local prosecutors. They unanimously favor the practice. Not one expressed a desire to return to non-recorded interrogations. Why? Because recordings show exactly what occurred, cement confessions and admissions of guilty suspects, often indicate when suspects are innocent, and prevent later claims of use of improper tactics or failure to give the required advice of right (the Miranda warnings).
When we began our inquiries in 2003, recordings were required by state supreme court rulings in two states (AK, MN), none by statute. Since then, nine states have enacted mandatory recording legislation (IL, ME, MD, MT, NE, NM, NC,. OR, WI) , and the supreme courts of two others have adopted rules requiring recordings (IN, NJ). Other states are in process of considering mandating electronic recording of custodial interviews (AR, CT, MI, RI, VT), and the National Conference of Commissioners on Uniform State Laws last July adopted a model state recording statute, for submission to legislatures throughout the country.
Our inquiries have disclosed that police, sheriffs and prosecutors throughout the country now realize that recordings of suspect interviews are a terrific law enforcement tool. Why then has the Department of Justice not adopted the practice?
The DOJ litany of horrors. In 2006, DOJ officials asked the FBI, DEA and ATF to submit written responses as to their positions with respect to mandatory recording of felony suspects who are in custody. Their responses, all negative, conjure a parade of disasters if they were required to record. Here are the reasons they gave for opposition, and a shorthand version of real world reality:
- In the past, agents’ testimony has been accepted by most judges and juries.
For obvious reasons, judges and jurors understand the superiority of oral and visual recordings over verbal recounting of past events based upon scribbled notes, later typewritten reports, and efforts at later recall. They are increasingly skeptical of agents’ failure to activate accessible recording equipment. The days of automatic acceptance of agents’ testimony are over.
- Recordings may interfere with agents’ rapport building methods, some of which may be deemed inappropriate by judges and jurors.
This is a disturbing rationale for not recording, because it implies that agents, having sworn to tell the whole truth, should omit complete and candid testimony about what occurred during interrogations. If they deliberately do so, they may commit perjury, and those who engender perjury commit subornation. In any event, the objection is fanciful. Many detectives have told us that, when being recorded, they are careful about what they say and do, in order to avoid using tactics or language that may be deemed coercive. But they do not complain that recordings have inhibited effectively conducting interviews.
- Suspects will “clam up.”
DOJ agents are not required to advise suspects that interviews are being recorded. Moreover, detectives often say that suspects expect to be recorded; few object. If and when they do, the solution is simple: record the refusal, and turn off the equipment.
- The equipment may not operate properly, etc.
This objection covers a host of supposed practical difficulties or oversights that may prevent a recording from being made. Most statutes and court rules exempt unintentional or mistaken failures to record, and when exigent circumstances make recording impractical.
- Valid confessions may be refused admission into evidence.
The preferred consequence of an unexcused failure to record is that the judge should admit testimony of the suspect’s statement into evidence, and give a cautionary instruction to the jury, for example, that the interview was supposed to be recorded in order to provide an exact recounting of what took place, hence jurors should weigh the testimony with great care.
- Costs will be prohibitive.
Throughout the country, in large, medium and small departments, costs have not posed an impediment to recordings. Audio equipment is acceptable, although video is preferable and readily accessible to DOJ agencies. Savings from recordings far exceed whatever costs are involved: drastic reduction in pretrial motions to suppress; more pleas of guilty, hence fewer trials, appeals and post-conviction procedures; less time spent during pretrial motions and at trials about what occurred during unrecorded interviews; and fewer damage suits for using improper tactics during questioning.
Long story short – the objections interposed by the DOJ do not withstand scrutiny. They appear grounded in stubborn adherence to outdated methods, and unaccountable refusal to accept the benefits of current technology.
President Barack Obama – who was chief sponsor of the 2003 recording bill in the Illinois Senate – has power by issuance of an Executive Order to require all federal investigative agencies to make electronic recordings of custodial interviews. It is high time for him to do so.
Thomas P. Sullivan, a partner at Jenner & Block LLP in Chicago, was the U.S. Attorney for the Northern District of Illinois from July 1977 to April 1981. He has been chairman of the Northwestern University Law School Center on Wrongful Convictions advisory board since 2004. From 2004 to 2010 he chaired the Ilinois Capital Punishment Reform Study Committee.
The transnational nature of intellectual property crime is the biggest challenge facing federal law enforcement authorities combating online piracy, a top Justice Department Criminal Division official said Wednesday.
Speaking at a Senate Judiciary Committee hearing on intellectual property law enforcement, Deputy Assistant Attorney General Jason Weinstein of the Criminal Division said the complexity of international intellectual property cases involving the Internet means that such probes are costly. He said criminals often hide their identities online and operate out of countries that they believe are safe havens, increasing the difficulty of prosecution.
“The fact that the crime can be committed by somebody sitting in an apartment somewhere in a country in Eastern Europe just as easily as a person in this building makes it a legal challenge,” Weinstein said.
The Senate Judiciary Committee last month unanimously reported to the full Senate legislation sponsored by panel Chairman Patrick Leahy (D-Vt.) which is designed to give the Justice Department more tools to fight online intellectual property crimes.
The bill would allow the DOJ to take legal action against the owner or registrant of a domain name that connects to a foreign website engaged in infringing activities. The legislation also permits the Department to take action against a foreign-registered domain name itself.
Leahy said intellectual property crime is “an epidemic” that has led to the loss of hundreds of thousands of jobs and billions of dollars.
“Whether intellectual property theft takes place on street corners or on the Internet, it poses a threat to American businesses, American public safety, and now we’re finding even the American military,” Leahy said.
When former Illinois Gov. Rod Blagojevich was last mentioned by Main Justice, the defense had rested and it seemed safe to say that his retrial on corruption charges was almost over. That was two weeks ago.
On Wednesday, the jurors were in their eighth day of deliberations in Chicago, the Associated Press reported, with no indication how close they are to reaching a verdict, or whether they’re struggling with indecision, as the first jury did.
The first jury deliberated 14 days and could agree on only one of two dozen counts, returning a guilty verdict last August on a relatively minor charge, a result that spurred federal prosecutors in the Northern District of Illinois to pare down their case and cut their witness list for Round Two. The most sensational of the charges is that Blagojevich tried to auction off the Senate seat vacated by Barack Obama’s election to the presidency.
But the biggest difference in the two trials was Blagojevich’s opting to testify on his own behalf. He told of his humble background and sometimes wandered off track, before being reeled in by Judge James Zagel. Blagojevich insisted he wasn’t doing anything corrupt by engaging in deal-making.
The war of words between Attorney General Eric Holder and Senate Minority Leader Mitch McConnell (R.-Kentucky) continues to escalate.
The latest salvo came Wednesday, when Holder’s spokesman accused McConnell of selectively using Holder’s words.
The debate began late last week, when Holder praised the nation’s criminal justice system as an essential tool against terrorists in a speech to the American Constitution Society. McConnell took issue with Holder’s statements, saying in interviews last week and in a Washington Post op-ed today that Holder had insulted America’s military and was endangering the country’s security.
McConnell argued that Guantanamo and military commissions are the proper ways to deal with terrorists, and that civilian courts are unsuited to gather intelligence and prevent future attacks.
“Our top priority should have been to capture, detain and interrogate them to ensure they could no longer harm Americans,” McConnell said.
But Holder’s DOJ is firing back, and arguing that the court system has a proven track record of convicting terrorists and still gathering intelligence, a record they say is better than that of the military commissions McConnell is championing.
“Military commissions have produced shorter sentences, sometimes little more than time served,” DOJ spokesman Matthew Miller said in a statement, adding that the commission are “largely untested” as compared to civilian courts. “And law enforcement officers working with the intelligence community have generated useful intelligence from suspects detained in civilian custody on too many occasions to count,” Miller said, citing the Christmas Day Detroit bomber as an example—a case that McConnell also cited, but as an example of a lack of intelligence-gathering.
Miller also accused McConnell of “selectively lifting words” from the speech, and of ignoring the administration’s balanced approach towards terrorism.
McConnell is on the offensive because of a terrorism case in his home state in which two Iraqi nationals were arrested and charged with planning attacks against American troops in Iraq. McConnell wants the two men, even though they were arrested on U.S. soil, to be moved to Guantanamo and tried in military commissions as foreign fighters. The federal government has not moved a terrorist caught domestically to military custody since the 2001 arrest of U.S. citizen Jose Padilla, and Padilla was later moved back into civilian courts after legal challenges to his military detention.
Holder has championed civilian trials of terrorist suspects before, such as his attempted trial of 9/11 planner Khalid Sheik Mohammed in New York, a move which met with much political backlash and had to be reversed, but Holder appears committed to their continued use, at least in some trials. He has also been open to using military commissions in some cases.
Republicans have been trying to pass a law banning terrorist trials in civilian courts, a move the DOJ says interferes with executive authority.
“We must use every weapon available – military, diplomatic, intelligence and law enforcement – to defeat a determined enemy,” Miller said. “Taking one of those weapons off the table would endanger our national security.”
Despite the political battle over trying Middle Eastern and Islamic extremist terrorists in civilian courts, no opposition has been raised to the DOJ’s longtime use of civilian courts to try other kinds of violent extremists. On Monday, three members of the Colombian terrorist organization FARC were convicted in federal court in New York, the same court in which Holder had planned to try KSM.
It’s still early in the presidential race, but the rhetoric is already heating up, as former Pennsylvania Sen. Rick Santorum demonstrated Tuesday with a remark about Attorney General Eric Holder.
Santorum, who is seeking the Republican nomination, disagrees with Holder’s stance that suspected terrorists ought to be tried in civilian courts. Santorum could have said, “I respectfully disagree with the Attorney General,” or something similarly bland.
But he didn’t. “He must be under some influence because he certainly isn’t thinking clearly,” Santorum said Tuesday, amplifying remarks he made Monday at a campaign stop in Iowa. “Maybe he is eating mushrooms.”
“His speech in Iowa on Monday attacked the Obama administration over terrorism strategy and the use of civilian courts in particular,” The Hill reported, citing an account in The Des Moines Register. The Register said the administration’s approach amounted to “giving terrorists your constitutional rights,” and that it is “truly frightening that we have leaders in this country that believe that.”
If you didn’t see “The Godfather,” or didn’t like it, read no further. But if “La Cosa Nostra” and “mafia” and names like “Sam the Plumber” and “Matty the Horse” stir your interest, you should read on.
Two decades after someone left it (presumably by accident) in a New York City taxi, a 3-inch thick, three-ring binder stamped “Mafia” and “United States Treasury Department Bureau of Narcotics” is going on sale on Wednesday at the New York branch of the famed British-based Bonhams auction house, National Public Radio reported. It’s expected to go for $10,000 to $15,000. (Isn’t that about what a run-of-the-mill “hit” cost in the good old days?)
“Only 50 copies of the file were thought to have been printed,” NPR reported. “The one for sale at Bonhams is No. 31, and the others were probably destroyed, said Christina Geiger, director of Bonhams New York fine books & manuscripts.”
Nicholas Pileggi, whose book “Wiseguy” was adapted for the movie “Goodfellas,” called the publication “a treasure trove for true-crime buffs and mob aficionados,” NPR said.
The file was compiled between 1957 and 1962 by the Bureau of Narcotics, forerunner of the Drug Enforcement Administration, NPR said. Robert F. Kennedy is believed to have used a copy while he was U.S. Attorney General in 1963 during hearings into organized crime.
Geiger said a cab passenger found the binder inside a black bag on the seat one night in the early 1990s after leaving Radio City Music Hall. “He basically just kept it to himself until contacting HarperCollins in 2006,” Geiger told NPR. “The owner, who is connected with the film and music industry in Hollywood, did not wish to be identified. “HarperCollins published a facsimile of the book a year later, with some sections redacted.”
Now, the complete “unexpurgated” work, as it were, is available. For 10 or 15 “large,” it’s a bargain you can’t refuse.
But who left the book in the cab way back when, and how did he feel when he realized what he had done? Did he tell his bosses, or did he suddenly understand that “omerta” was a pretty good idea?
The principal critic of a controversial gun-trafficking operation may have been briefed on the program in a private briefing last year and didn’t express any opposition, the Washington Post reported yesterday.
Rep. Darrell Issa (R-Calif.) has led a veritable campaign against Justice Department and Bureau of Alcohol, Tobacco, Firearms and Explosives officials for authorizing operation “Fast and Furious,” which allegedly allowed thousands of firearms to be trafficked into Mexico.
But sources told the Post that he and members of his staff were given specific information about it in April 2010 in a briefing Issa and two other Republican congressman had requested.
Fredrick Hill, a spokesman for the House Oversight and Government Reform Committee chaired by Issa, didn’t give details on what the congressman knew or when.
He said Republican staff had no recollection of being told “gunwalking” had occurred in the operation, and he pointed to a Democratic staff member, currently working for now-ranking Democratic member Rep. Elijah Cummings (D-Md.), who also attended the meeting and never indicated any prior awareness.
The Wall Street Journal reported last week that an email sent in April 2010 from an ATF agent in Mexico City to a bureau official discussed plans to brief Issa’s committee in a classified meeting about several programs, including Fast and Furious. In the article, a spokesman for Issa said the chairman wasn’t briefed on specifics of the operation and that staffers at the meeting don’t recall the operation being mentioned.
“Opponents of this investigation are incredulously trying to assert that Obama Administration political appointees at the Justice Department were ignorant – yet Congress was in the know on the details,” Hill said in a statement. “This irresponsible and false accusation is indicative of a Justice Department bereft of leadership and rattled by the revelations of its own misconduct.”
Democratic committee spokeswoman Ashley Etienne declined to comment Wednesday morning on the contents of the April 2010 briefing, but she did say that Hill had confirmed that Issa was briefed.
The planned merger of the Justice Department’s Organized Crime and Racketeering Section with the Gang Unit was completed this month, prompting a leadership reorganization.
James Trusty, who had been head of the Gang Unit, was named acting chief of the new section, now known as the Organized Crime and Gang Section. Trusty came to Justice Department headquarters in 2009 from the U.S. Attorney’s office in Maryland. His appointment was announced internally on June 10.
Bruce Ohr, the long-time leader of the organized crime section, has become a counselor to Assistant Attorney General Lanny Breuer for transnational organized crime and international affairs. Ohr had been chief of the organized crime section since 1999. He also led the section through a transition period after Breuer in July 2010 announced he would merge it with the Gang Unit, pending congressional and budget approval.
Trusty’s elevation doesn’t mean the section will tilt toward gangs and away from organized crime, according to Laura Sweeney, a Justice Department spokeswoman. “The merger comes at a time when the Department is focusing like never before on transnational organized crime,” she said.
Rather, the section will have a renewed focus on litigation, she said – charging suspects, putting them on trial and trying to send them to prison.
The smaller Gang Unit was established as a standalone section in 2007 to target major local, national and international gangs. Its emphasis was on violent street gangs involved in narcotics and weapons trafficking. The larger Organized Crime and Racketeering Section, by contrast, was best known for dismantling the Mafia in the U.S.
More recently, the organized crime team focused on the sophisticated international criminal networks that have become entwined with the political leadership in countries like Russia, and how those networks pose a risk to U.S. security by their ownership of energy and other key assets. In that realm, it litigated relatively few cases and instead worked almost more as an intelligence and analysis unit.
When Breuer announced the creation of the new section last July, violent Mexican drug cartels had emerged as a major threat to U.S. security. He touted the merger as a way to combine resources to target the changing landscape of gangs and international crime groups more efficiently.
“The Attorney General has ordered the modernization of the Department’s OC program with an emphasis on transnational OC,” Sweeney said, using the initials for organized crime. “In recognition of these priorities, Bruce Ohr was selected to serve as the Counselor to the AAG for Transnational Organized Crime and International Affairs, to lead and coordinate the Division’s work in this area.”
On Monday, Trusty led a meeting of lawyers from the combined operation that turned tense at times, according to a person with knowledge of the events. Lawyers from the old organized crime section have questioned the changes.
Trusty made a remark that some attendees interpreted as describing them as a “cancer” to be removed. Sweeney, however, said Trusty intended no such meaning and instead had asked anyone who is unhappy to speak up rather than sit quietly with a cancerous attitude. Trusty also emphasized that change is healthy, that learning new things is good, and that his door is open for section members to discuss anything with him, Sweeney said.
The old organized crime unit enjoyed special status in the last years of the George W. Bush administration, as policy makers pushed to assess the U.S. security risk from the criminal networks whose tentacles reach into the political elite of many countries.
In testimony in 2010 at a National Institutes of Justice Conference, Jennifer Shasky Calvery, then-Senior Counsel to the Deputy Attorney General and Director of the Attorney General’s Organized Crime Council, said that the renewed focus on organized crime and public corruption intentionally avoided a focus on “drug trafficking organizations and …street gangs.”
“We were looking at organizations that had literally billions of dollars at their disposal. They had the ability and do have leaders of foreign countries in their pockets. They have the money and the wherewithal to hire the best accountants, the best lawyers, the best financiers to help them further their criminal business,” Shasky Calvery, now head of the Asset Forfeiture and Money Laundering section, said at the conference.
Mary Jacoby contributed to this report.
