Index No. 2010-09688 ~elt1 ~ork ~upreme Q[ourt ~ppellate 11Bíbísíon - ~etonb ilBepartment In the Matter of the Application of RICHARD A. BROWN, District Attorney of Queens County, Petitioner, For a Judgment in the Nature of Prohibition under Article 78 of the Civil Practice Law and Rules, -against- The Honorable JOEL L. BLUMENFELD, Acting Justice, Supreme Court of the State of New York; ELISAUL PEREZ, named as Defendant in Queens County Indictment Number 1202/2009, Respondents. BRIEF OF AMICUS CURIAE NEW YORK CIVIL LIBERTIES UNION John Kenneth White, Jr., Esq. Taylor Pendergrass, Esq. Christopher Dunn, Esq. Arthur Eisenberg, Esq. New York Civil Liberties Union Foundation 125 Broad Street, 19th Floor New York, NY 10004 (212) 607-3300 (212) 607-3329 (facsimile) Counsel for Proposed Amicus Curiae REPRODUCED ON RECYCLED PAPER
JO~a~;~~e§n~y,(~rd':d.°{99j)~~:.~.~~~~~~.~~.~:~~.~!.~~~.~~!~!~~:.~ 13Joseph R. Weeks, No Wrong Without a Remedy: The Effective
Enforcement of the Duty-of Prosecutors to Disclose ExculpatoryEvidence, 22 Okla. City V. L. Rev. 833 (1997) 13
Kenneth Rosenthal, Prosecutor Misconduct, Convictions, andDouble Jeopardy: Case Studies in an Emerging Jurisprudence,71 Temp. L. Rev. 887 (1998) · 12
Lesley E. Williams, Note, The Civil Regulation of Prosecutors, 67Fordham L. Rev. 3441 (1999) 12, 14
Lyn M. Morton, Note, Seeking the Elusive Remedyfor ProsecutorialMisconduct: Sl1J!J!ression,Dismissal, or Discipline?, 7 Geo. J.Legal Ethics 1CT83(1994) 13
National Association of Criminal Defense Lawyers and TheSentencing Project, Racial Disparities in Criminal CourtProcessing in the United States (Feb. 2008) 5
The Spangenberg Group, Status ai Indigent Defense in New York: AStudy Jar Chief Judge Kaye's Commission on the Future ofIndigent Defense Services (July 16, 2006) 5
Amicus curiae New York Civil Liberties Union (the "NYCLU"), by
its undersigned counsel, respectfully submits this brief in opposition to the
application of Petitioner Richard A. Brown, District Attorney of Queens County
(the "District Attorney"), under Article 78 of the New York Civil Practice Law
and Rules for a writ of prohibition against the Honorable Joel L. Blumenfeld,
A.J.S.C., prohibiting Justice Blumenfeld from, inter alia, considering the
violations of New York's Code of Professional Responsibility by the District
Attorney and his assistant district attorneys in the context of ruling upon
Defendant Elisaul Perez's motion to suppress.
PRELIMINARY STATEMENT
This Article 78 proceeding is fundamentally about whether the
District Attorney's pre-arraignment interrogation program (the "Pre-Arraignment
Interrogation Program") will be shielded from the judicial scrutiny it deserves.
Under the Pre-Arraignment Interrogation Program, a detective and/or an assistant
district attorney ("ADA") intercept predominately indigent suspects for
interrogation just prior to their arraignment and the appointment of counsel. At
the outset of these interrogations, a detective or ADA reads a standard script to an
uncounseled suspect that misleadingly implies that the suspect must provide any
alibis or exculpatory information "now" because the interrogation will be the
suspect's "only opportunity" to tell his or her story to the ADA. Courts that have
1
reviewed the Pre-Arraignment Interrogation Program have found it to be
"deceptive," "facially unfair," and calculated to "prime[] the defendants to
relinquish their rights." Predictably, having been misled about the urgency and
importance of providing their story to the detective and ADA during the pre-
arraignment interrogation, many uncounseled suspects waive their rights and
make inculpatory statements.
The routine interrogation of uncounseled suspects under the District
Attorney's "deceptive" and "facially unfair" Pre-Arraignment Interrogation
Program violates New York's ethical rules and elicits involuntary statements from
criminal suspects in violation of their constitutional rights. These issues are
exemplified in People v. Perez, the underlying matter still pending before Justice
Blumenfeld. In this matter, Defendant Perez seeks suppression of statements
made during a pre-arraignment custodial interrogation by a detective from the
District Attorney's office and two ADAs. Defendant Perez seeks suppression,
inter alia, on two distinct, independent bases: 1) the statements were obtained
through prosecutorial conduct that violated applicable New York Disciplinary
Rules; and 2) the statements were obtained in violation of Defendant Perez's
constitutional rights. Judge Blumenfeld has not yet ruled on either of these issues.
By his petition to this Court for a writ of prohibition, the District
Attorney seeks to prevent Justice Blumenfeld from even considering the ethical
2
issues raised by the Pre-Arraignment Interrogation Program in the context of
People v. Perez. The "extraordinary remedy" of prohibition, however, is not
available where-as here-a court acts within its authority. There is ample
precedent supporting Justice Blumenfeld's authority to consider the unethical
conduct of prosecutors when deciding whether to suppress inculpatory evidence.
Moreover, as discussed below, the disciplinary grievance process,
apparently viewed by the District Attorney as a more favorable forum, is no
substitute for a trial court's authority and obligation to consider ethical issues that
occur in matters pending before it. Indeed, given the unique potential for
prosecutorial misconduct to corrupt the fact-finding process and deprive criminal
defendants of basic fairness in criminal proceedings and their fundamental
constitutional rights, criminal trial courts must be especially vigilant in policing
the ethical transgressions of prosecutors. The District Attorney, therefore, must
not be permitted through this petition to chill trial courts' judicial scrutiny of
prosecutorial misconduct in this or other matters.
The Pre-Arraignment Interrogation Program also raises serious
constitutional concerns, which-contrary to the District Attorney's
representations-are still pending before Justice Blumenfeld.' As discussed
As explained below in Section II, contrary to the District Attorney's assertions, JudgeBlumenfeld has not ruled that the statements elicited from Defendant Perez during thepre-arraignment custodial interrogation were voluntary.
3
below, several justices of the Queens County Supreme Court have found the
script used in the Pre-Arraignment Interview Program to be profoundly deceptive
and have harshly criticized its use on constitutional grounds.
STATEMENT OF FACTS2
Under the District Attorney's Pre-Arraignment Interrogation
Program, suspects are intercepted and subjected to videotaped custodial
interrogation by a detective and/or an ADA just before they are arraigned and
appointed counsel. As was the case with the pre-arraignment interrogation of
Defendant Perez, these pre-arraignment interrogations begin with a detective or
ADA reading to uncounseled suspects from a standard script that is carefully
calculated to prime the suspects to waive their Miranda rights. This script
misleads suspects by implying that they must provide any alibis or exculpatory
information "now" because the interrogation will be their "only opportunity" to
tell their story to the ADA. Immediately after reading the misleading script, the
detective or ADA recites the Miranda warnings and asks the suspects to answer
questions.
Because suspects who have retained private counsel prior to
2 Given the significant discussion of the procedural and factual background in pleadingssubmitted by the District Attorney and Justice Blumenfeld, for the sake of brevity theNYCLU has limited its statement of facts to only those facts essential to its legalargument.
4
arraignment generally may not be interrogated outside of the presence of counsel,
the Pre-Arraignment Interrogation Program particularly impacts indigent
defendants' because they are not appointed counsel in Queens County until
arraignment. The Pre-Arraignment Interrogation Program deliberately exploits
the delay in appointment of counsel for indigent suspects so that these suspects
may be interrogated without counsel.
In this case, Defendant Perez-a Spanish-speaking youth who had
been in police custody for 14 hours without an attorney-was placed in a small
room with a detective and two ADAs and told that he was being videotaped. See
DVD of Perez Interrogation (Verified Petition ("D.A. Petition"), Ex. 2). Using a
standard script, Detective Mary Picone began the interrogation by encouraging the
uncounseled Defendant Perez to provide as much information as he could
regarding alibis (a term that was not explained to the youthful defendant) and the
names of any people he was with at the time of the incident. See id. Detective
Picone told Defendant Perez that if his "version of the events ... differs from
3 As recently reported in the Final Report of the Spangenberg Group to Chief JudgeKaye's Commission on the Future of Indigent Defense Services, minorities aredisproportionately represented among indigent defendants in the state of New York. SeeThe Spangenberg Group, Status of Indigent Defense in New York: A Study for ChiefJudge Kaye's Commission on the Future of Indigent Defense Services, at 94 (July 16,2006) (available at: http://www.courts.state.ny.us/ip/indigentdefense-commission/SpangenbergGroupReport.pdf); see also National Association of CriminalDefense Lawyers and The Sentencing Project, Racial Disparities in Criminal CourtProcessing in the United States, at 3 (Feb. 2008) ("Criminal defendants of color aremore likely to utilize publicly funded defense services than white defendants in light ofracial disparities in income, wealth, and access to opportunity.") (available at:http://www2.ohchr .org/ english/bodies/ cerd/ docs/ngos/usa/USHRN 12.doc> ).
5
what [the police] have heard," the interrogation was "[his] opportunity to tell [his]
story." Id. Detective Picone then informed Defendant Perez that if there was
anything he wanted investigated about the incident, he "must tell [her] now so
that [the police] can look into it" and that "this will be the only opportunity for
[Defendant Perez] to talk to [the police and ADAs] prior to [his] arraignment on
these charges." Id.
Neither Detective Picone nor the ADAs explained to Defendant
Perez the legal or practical significance of an arraignment (or being "formally
charged," as the interpreter translated the term into Spanish). See id. Defendant
Perez was not informed that he would receive counsel upon arraignment-which
was imminent-or that the arraignment would not adjudicate his guilt or
innocence. In other words, Defendant Perez was not given any of the information
necessary to evaluate whether he really needed to talk to the detective and ADAs
"now" because it would be the "only opportunity" to tell his story. Every
indication given to the uncounseled, inexperienced Defendant Perez by the script
was that the interrogation was a singular and determinative opportunity for him to
tell "his side of the story." Id. In reality, after arraignment, Defendant Perez
would have been free to tell "his side of the story" with the assistance of counsel.
The pre-arraignment interrogation was only a matter of urgency for the District
Attorney: it was his office's "only opportunity" to interrogate Defendant Perez
6
without counsel present.
After having been read this scripted preamble-the predictable effect
of which was to undermine the effectiveness of the subsequently given Miranda
warnings-Defendant Perez consented to answer questions and ultimately gave an
inculpatory written statement in Spanish. See Defendant Perez's Written
Statement (D.A. Petition, Ex. 1) and DVD of Perez Interrogation (D.A. Petition,
Ex.2). Indeed, the confusion sown by the misleading statements read to
Defendant Perez is apparent from the opening line of his written statement, which
indicates that he was "writing this so [he] can get out of this problem." Defendant
Perez's Written Statement (D.A. Petition, Ex. 1). If Defendant Perez had been
counseled by a defense attorney rather than the District Attorney's
representatives, he would not have suffered from the misapprehension that it was
in his best interest to give a statement.
In sum, the District Attorney's Pre-Arraignment Interrogation
Program succeeds by relying upon misleading statements and inferences;
providing legal advice to an uncounseled defendant whose interests are
fundamentally adverse to the District Attorney; omitting explanations about the
criminal justice process; and systemically exploiting a window of access to
indigent defendants immediately before they will be appointed counsel. Acting
under the combined weight of these influences, Defendant Perez was induced
7
make a statement against his own interests-a predictable result that will be
repeated with other suspects as long as the District Attorney's Pre-Arraignment
Interview Program is allowed to continue.
ARGUMENT
The writ of prohibition sought by the District Attorney is an
"extraordinary remedy." Hynes v. George, 76N.Y.2d 500,504 (1990); see also
Lee v. County Court of Erie County, 27 N.Y.2d 432,438 (1971) ("[T]he remedy
of prohibition is an extraordinary one which is only available in rare cases.").
Where prohibition is sought against a court, "it is available only if a clear legal
right exists and then only when the court acts either without jurisdiction or in
excess of its authorized powers." Hynes, 76 N.Y.2d at 504. Even then, "[t]he
writ of prohibition ... does not issue as a right, but only in the sound discretion of
the court." Liere v. ECO Dallas Bengal, 63 A.D.3d 1067, 1067 (2d Dep't 2010)
(quoting Rush v. Mordue, 68 N.Y.2d 348,354 (1986)). The District Attorney's
petition fails to meet the strict standard for obtaining a writ of prohibition.
I. TRIAL COURTS' INHERENT SUPERVISORY AUTHORITYPLAYS A VITAL AND IRREPLACEABLE ROLE INDETECTING AND DETERRING PROSECUTORIALMISCONDUCT.
A. New York Courts Have the Authority to Consider EthicalMisconduct by Prosecutors and Suppress Evidence on thatBasis.
The District Attorney's implementation and supervision of the Pre-
Arraignment Interrogation Program unquestionably raises significant ethical
8
concerns. See Letter Report of Ellen Yaroshefsky to Justice Blumenfeld, dated
April 14, 2010 (D.A. Petition, Ex. 11) (opining that the Pre-Arraignment
Interrogation Program violates the rules of ethics)." Under the Rules Governing
Judicial Conduct, "[a] judge who receives information indicating a substantial
likelihood that a lawyer has committed a substantial violation of the Code of
Professional Responsibility shall take appropriate action." 22 N.Y.C.R.R. §
100.3(D)(2) (emphasis added).
Indeed, it is well settled that New York courts have the "power and
responsibility to regulate the conduct of the attorneys who practice before
[them]." Lanza v. Rath, 150 Misc. 2d 85,89 (N.Y. Sup. Ct. Onondaga County
1991) (citing United States v. Dinitz, 538 F.2d 1214, 1219 (5th Ciro 1976)
("Courts are necessarily vested with the authority ... to control attorneys' conduct
... when an attorney's misconduct may directly impede the orderly administration
of justice.")); see also Moxham v. Hannigan, 89 A.D.2d 300, 302 (4th Dep't 1982)
("[A] Judge ... has the authority to regulate the conduct of attorneys in his
courtroom ... [and] the jurisdiction to determine whether an attorney should be
disqualified from a case based on a violation of the Code of Professional
Responsibility."); Dorsainvil v. Parker, 14 Misc. 3d 397,400 (N.Y. Sup. Ct.
4 Although proposed amici curiae Association of Professional Responsibility Lawyers, etal., have not yet submitted their brief for the Court's consideration, we understand theamici curiae also conclude that the statements made to suspects under the DistrictAttorney's Pre-Arraignment Interrogation Program violate applicable ethical rules.
9
Kings County 2006) (Courts have "the ability to question any 'impropriety
[which] appears on the record and the issue may be raised sua sponte. ''').
Moreover, as discussed in the Memorandum of Law of Respondent
the Honorable Joel L. Blumenfeld in Opposition to the Petition ("Blumenfeld
Mern."), there is ample precedent establishing that courts may consider
prosecutorial ethics on a motion to suppress. See Blumenfeld Mem., at 35-44.
For example, in People v. Hobson, the Court of Appeals suppressed statements
made by a defendant without his attorney present because, inter alia, "an attempt
to secure a waiver of the right to counsel in a criminal proceeding in the absence
of a lawyer, already retained or assigned, would constitute a breach of
professional ethics, as it would be in the least-consequential civil matter." People
v. Hobson, 29 N.Y.2d 479,484-85 (1976). See also People v. Bing, 76 N.Y.2d
331,349-50 (1990) (considering ethical principles on appeal of motion to
suppress); People v. Bel!, 73 N.Y.2d 153, 159-62 (1989) (same); People v.
(holding "suppression may be ordered" where prosecutors violate rules of ethics).
Because a writ of prohibition may issue only where a court acts
without authority, see Hynes, 76 N.Y.2d at 504, prohibiting Justice Blumenfeld
from considering the unethical conduct of the prosecutors appearing before him
would require rejecting this significant precedent. There is no reason to do so
10
here. Prohibiting Justice Blumenfeld-and by implication, all criminal trial
courts-from considering the ethical conduct of prosecutors appearing before him
would effectively immunize prosecutors from ethical review in the courtrooms
where they appear daily. Given the special role trial courts play in identifying and
deterring prosecutorial misconduct, such an outcome would be both untenable and
entirely without precedent.
B. Trial Courts Playa Unique and Critical Role in PolicingProsecutorial Misconduct.
Not only do trial courts have the authority and duty to consider
potential ethical violations by prosecutors and take action where appropriate, it is
particularly critical that they do so when-as is the case here-they are uniquely
positioned to detect and deter such misconduct. If the District Attorney's
argument were accepted, it would have the incongruous result of barring a court
that is intimately familiar with the facts and proceedings before it from promptly
ruling upon prosecutorial misconduct. Instead, as the District Attorney would
have it, a trial court would be barred from taking any action to remedy even
egregious ethical misconduct brought to the its attention, and instead would be
required to refer such complaints to a grievance committee where, as discussed
infra, a remedy for the misconduct, if any, will be delayed at best. Such a result is
contrary to law and invites prosecutorial abuse. Not only is a trial court an
available forum for considering prosecutorial misconduct, in many cases it may
11
be the most appropriate forum for remedying such abuse.
Numerous commentators have noted that disciplinary committees
have been wholly ineffective at remedying ethical violations committed by
prosecutors. See, e.g., Alexandra White Dunahoe, Revisiting the Cost-Benefit
Analysis of the Misbehaving Prosecutor: Deterrence Economics and Transitory
Prosecutors, 61 N.Y.U. Ann. Surv. Am. L. 45, 76 (2006) ("Numerous
commentators have suggested that professional disciplinary sanctions have proven
a hollow hope for curbing prosecutorial abuse."); Fred C. Zacharias, The
Professional Discipline of Prosecutors, 79 N.C. L. Rev. 721, 755 (2001)
(conducting review of disciplinary decisions and concluding that the cases
"support the claim that prosecutors are disciplined rarely, both in the abstract and
relative to private lawyers ... the discrepancy between discipline of prosecutors
and private attorneys is enormous"); Lesley E. Williams, Note, The Civil
Regulation of Prosecutors, 67 Fordham L. Rev. 3441,3472 (1999) ("State
authorities rarely discipline prosecutors for misconduct."); Kenneth Rosenthal,
Prosecutor Misconduct, Convictions, and Double Jeopardy: Case Studies in an
Emerging Jurisprudence, 71 Temp. L. Rev. 887, 889 (1998) ("[W]hile the
prosecutor is theoretically subj ect to disciplinary codes [for misconduct], there is
a notable absence of disciplinary sanctions against prosecutors, even in the most
egregious cases."); Joseph R. Weeks, No Wrong Without a Remedy: The Effective
12
Enforcement of the Duty of Prosecutors to Disclose Exculpatory Evidence, 22
Okla. City U. L. Rev. 833, 898 (1997) (arguing that "the disciplinary process has
been almost totally ineffective" in sanctioning prosecutorial misconduct); John'
Wesley Hall, Jr., Professional Responsibility of the Criminal Lawyer § 11:3, at
390 (2d ed. 1996) (noting the lack of effective discipline of prosecutors); Brian P.
Barrow, Note, Buckley v. Fitzsimmons: Tradition Pays a Price for the Reduction
of Prose cutaria I Misconduct, 16 Whittier L.Rev. 301, 328 (1995) (Professional
discipline "has not been applied to prosecutors with the force necessary to prevent
egregious instances ofmisconduct."); Lyn M. Morton, Note, Seeking the Elusive
Remedy for Prosecutorial Misconduct: Suppression, Dismissal, or Discipline?, 7
Geo. J. Legal Ethics 1083, 1086 (1994) ("[P]rosecutors are boldly crossing ethical
boundaries, unchecked because there are few remedial solutions available which
effectively counter the misconduct. There is a growing sense that errant
prosecutors are relatively immune to disciplinary sanctions.").
These commentators note that one reason that prosecutorial
misconduct is rarely investigated and remedied by disciplinary authorities may be
because those entities expect that such misconduct will be adequately addressed
by the court's exercise of its supervisory powers in the courtroom. See, e.g.,
Zacharias, The Professional Discipline of Prosecutors, 79 N.C. L. Rev. at 754
(Agencies may decline to discipline prosecutors because they conclude that
13
"alternative remedies, such as judicial supervision, are adequate to discourage
prosecutorial misconduct."); Williams, Note, The Civil Regulation of Prosecutors,
67 Fordham L. Rev. at 3472 ("State authorities may further assume that
prosecutors are adequately policed through judicial mechanisms.").
Prohibiting New York's trial court judges, like Justice Blumenfeld,
from considering the ethical misconduct of prosecutors would strip the criminal
justice system of a critical check on prosecutorial misconduct at the point in time
when such a check might be most meaningful. Judge Blumenfeld's authority to
consider whether the District Attorney's conduct violates the rules of ethics plays
a vital role that is neither fulfilled nor supplanted by the availability of a separate
disciplinary grievance procedure.
C. Disciplinary Committees Are Not the Only Forum inWhich Ethical Misconduct May Be Considered.
The District Attorney's argument that a trial court is not the proper
"forum" for the consideration of ethical misconduct by prosecutors because this
Court has established a separate disciplinary committee procedure is without
merit. See D.A. Petition at 50 n. 24 (arguing that alleged misconduct "must be
reviewed by a disciplinary committee in the first instance") (emphasis added). It
is simply not the case that a disciplinary committee is the only forum in which the
ethical misconduct of prosecutors may be considered. Although the District
Attorney points to the fact that "this Court has also established an appropriate
14
forum and an established procedure for addressing and deciding allegations of
professional misconduct," see D.A. Petition at 51 (citing 22 N.Y.C.R.R. § 691.4,
et seq.), the regulation creating the disciplinary committee procedure makes
explicitly clear that those procedures do not supplant or alter a court's inherent
authority to regulate attorney misconduct. See 22 N.Y.C.R.R. § 691.1
("[N]othing contained in this Part shall be construed to deny to any other court
such powers as are necessary for that court to maintain control over proceedings
conducted before it."). Thus, both the caselaw and the relevant regulations
authorize trial court judges to consider the ethical conduct of the attorneys who
appear in their courtrooms.
II. THE DISTRICT ATTORNEY'S PRE-ARRAIGNMENTINTERROGATION PROGRAM RAISES SIGNIFICANTCONSITUTIONAL CONCERNS.
The same deceptive conduct under the Pre-Arraignment Interrogation
Program that presents serious ethical problems for the District Attorney also goes
to the core of the constitutional questions of voluntariness under Miranda that are
still pending before Justice Blumenfeld.' The deceptive, facially unfair practices
5 This Court should not be misled regarding the scope of the issues still pending beforeJustice Blumenfeld on Defendant Perez's motion to suppress. It is not true that "thequestion of whether the Central Booking interview [of Defendant Perez] violated adisciplinary rule ... is the only issue remaining before the Court on the suppressionmotion" or that "Judge Blumenfeld has ... acknowledge[dJ that defendant's CEQstatement in this case was voluntary." D.A. Petition at 43 (emphasis in original).Although the District Attorney cites to the transcript of the proceedings before JusticeBlumenfeld on August 9, 2010, Justice Blumenfeld never stated that Defendant Perez'sstatement was voluntary. See Aug. 9,2010 Transcript at 11:6-12:5 (D.A. Petition, Ex.
15
employed by the District Attorney under the Pre-Arraignment Interrogation
Program are precisely the type of conduct prohibited by Miranda and its progeny.
Given the fundamentally misleading nature of the script used in the Pre-
Arraignment Interrogation Program, the District Attorney cannot meet his burden
of showing that suspects' waivers of constitutional rights during their pre-
arraignment interrogation were voluntary and not the product of deception. See
Colorado v. Spring, 479 U.S. 564,572-73 (1987) (waiver must be made
"voluntarily, knowingly and intelligently" and be "the product of a free and
deliberate choice rather than intimidation, coercion, or deception") (quoting
Moran v. Burbine, 475 U.S. 412, 421 (1986)); People v. Anderson, 42 N.Y.2d 35,
38 (1977) (prosecutors bear the "burden of proving that the statement was
voluntary beyond a reasonable doubt").
16). The District Attorney also excerpts a quote from the transcript of the August 9,2010, hearing as follows: "Nor did [Justice Blumenfeld] think that 'the language thatwas used in this script ... affected the voluntariness' of defendant's statement .... " SeeD.A. Petition at 17. This excerpt is extremely misleading, as it suggests that JusticeBlumenfeld was the speaker for the entire quoted statement. In fact, the latterpart of thestatement, "affected the voluntariness," was an interjection made by the ADA. See Aug.9,2010 Transcript at 11:6-12:5 (D.A. Petition, Ex. 16). In any event, even reading thetranscript in the light most favorable to the District Attorney, Justice Blumenfeld'sactual comments may be read to say that the argument for suppression on constitutionalgrounds is "hard." Id. That it is "hard" to secure the suppression of a statement madeby a Mirandized suspect on constitutional grounds is neither controversial nordispositive.
16
A. Pre-Arraignment Interrogation Programs Have PreviouslyBeen HeláPatently Suspect Because of the ConstitutionalConcerns They Raise.
The routine practice of prosecutors "interview[ing] uncounseled
defendants just before they are taken before a [court] ... and have counsel
assigned to them ... [is] patently suspect because it permits a lawyer to interview
a layperson on the subject of his upcoming prosecution." us. v. Foley, 735 F.2d
45,48 (2d Ciro 1984) (analyzing a pre-arraignment interview program run by U.S.
Attorney for the S.D.N.Y. in the 1970's and 1980's). As the court in Foley made
clear, the "practice of routinely conducting pre-arraignment interviews raises
serious constitutional questions, as well as ethical ones." Id. (internal citations
omitted). As a result, "[p]rosecutors engaging in such a practice at least must be
particularly scrupulous to observe the cautions of Miranda that the accused not be
'threatened, tricked, or cajoled into a waiver. '" us. v. Duvall, 537 F.2d 15,24
(2d Ciro 1976) (quoting Miranda v. Arizona, 384 U.S. 436, 467 (1966)).
Courts have made clear that "Miranda ... expressly disapproved
deceptive stratagems such as giving false legal advice." Us. v. Anderson, 929
F.2d 96, 101 (2d Ciro 1991) (citing Miranda, 38 U.S. at 476). Whenever
"misleading statements" are used to obtain a suspect's waiver of his or her Fifth
Amendment privilege, it "pose[s] a serious constitutional problem." Anderson,
929 F .2d at 101 (holding confession involuntary as a matter of law where
statements made to suspect "may have created ... a false sense that [the suspect]
17
must confess at that moment or forfeit forever any future benefit that he might
derive from cooperating with the police agents"); see also, Hart v. AG, 323 F.3d
884, 894 (l lth Ciro2003) (holding statement to suspect that "'honesty wouldn't
hurt him' contradicted the Miranda warning that anything he said could be used
against hirn in court").
Prosecutors may not insulate deceptive conduct from judicial review
by the rote recitation of the Miranda warnings to a suspect. See, e.g., Seibert, 542
u.s. at 611-12 ("Just as 'no talismanic incantation [is] required to satisfy
[Miranda's] strictures,' it would be absurd to think that mere recitation of the
litany suíñcesto satisfy Miranda in every conceivable circumstance.") (quoting
California v. Prysock, 453 U.S. 355, 359 (1981) (per curiam)). Moreover, the
administration of Miranda warnings to a defendant are "ineffective," and
therefore constitutionally infirm, if they "are inserted in the midst of coordinated
and continuing interrogation, [where] they are likely to mislead and 'depriv[e] a
defendant of knowledge essential to his ability to understand the nature of his
rights and the consequences of abandoning them.'" Seibert, 542 U.S. at 613-614
(quoting Burbine, 475 U.S. at 424).
B. New York Courts Have Raised Serious ConstitutionalConcerns About the District Attorney's Pre-ArraignmentInterrogation Program.
The misleading statements made at the direction of the District
18
Attorney under the Pre-Arraignment Interrogation Program have been roundly
criticized on constitutional ground by several reviewing courts. At least four
justices of the New York Supreme Court, Queens County, have held that the Pre-
Arraignment Interrogation Program script is "deceptive," "facially unfair," and
calculated to "prime[] the defendants to relinquish their rights."
For example, Judicial Hearing Officer Thomas A. Demakos, a
former Justice of the Supreme Court and the former chief Assistant District
Attorney for Queens County, has recommended the suppression of statements
made by suspects during interrogations under the Pre-Arraignment Interrogation
Program based on constitutional and ethical concerns in at least five separate
opinions. See People v. Floyd, No. 3034/08 (N.Y. Sup. Ct. Queens County July
20,2009) ("Floyd F') (Affirmation of Mark F. Pomerzantz in Opposition to the
Petition for a Writ of Prohibition, dated November 19,2010 ("Pomerzantz Aff."),
Ex. X-I); People v. Ware, No. 1916/08 (N.Y. Sup. Ct. Queens County July 20,
2009) (Pomerzantz Aff., Ex. Y-l); People v. Comery, No. 1376/08 (N.Y. Sup. Ct.
Queens County Aug. 4, 2009) (Pomerzantz Aff., Ex. Z-l); People v. Bonaparte,
AA-1); People v. Davis, No. 2512/08 (N.Y. Sup. Ct. Queens County Apr. 30,
2010) (Pomerzantz Aff., Ex. CC-l). Former Justice Demakos' conclusions in
People v. Floyd are applicable here:
19
The remarks which preceded the Miranda warnings hereprimed the defendants to relinquish their rights beforethey were even made aware of them. They deceptivelyencouraged the defendants to relinquish their right toremain silent at the peril of forever losing the ability toprovide an alibi, tell their side of the story, or have aninvestigation of surrounding facts. Moreover, the offerto investigate disguised the fact that this was anadversarial situation. Thus, the prefatory remarksobfuscated the defendant's rights and converted theMiranda warnings themselves from an exclamationpoint to merely a footnote. Under the circumstances,there was neither an adequate and effective recitationofthe defendants' rights nor knowing and intelligentwaivers thereof.
Floyd 1, at 7.
Although the Han. Barry Kron, A.J.S.C., ultimately declined to
suppress the statements in Floyd on the grounds recommended by former Justice
Demakos, Justice Kron noted his own concerns regarding the Pre-Arraignment
Interrogation Program:
[T]he practice of the District Attorney's Office to engagein pre-Miranda questioning of a defendant awaitingarraignment is a matter of concern. ... Certainly, thedetective should have administered Miranda warningsinitially since defendants are clearly in custody and theinitial script is the functional equivalent of questioningbecause it is reasonably likely to elicit a response.
People v. Floyd, No. 3034/08, at 4 (N.Y. Sup. Ct. Queens County Sept. 9,2009)
("Floyd IF') (Pomerzantz Aff., Ex. X-2).
In People v. Ferreira, the Han. Joseph Anthony Grosso, A.J.S.C.,
20
expressed his concerns about the Pre-Arraignment Interrogation Program even
more forcefully:
What troubles me is that at the moment in time when allof the "awesome machinery possessed by the state"(See, People v. Cunningham, 49 NY2d 203 [1980])confronts an individual, he stands alone andunrepresented. This strikes me as being faciallyunfair. . .. Should the arrestee request the assistance ofcounsel, prior to transport to Central Booking, thisinformation is generally not provided to the CQBinterviewer. . .. In the interview room itself, the "script"encourages the arrestee to talk before the Mirandawarnings are actually administered.
People v. Ferreira, No. N10208/09, at 5-7 (N.Y. Sup. Ct. Queens County Dec.
17,2009) (Pomerzantz Aff., Ex. BB).
Finally, in People v. Comery, the Han. Richard L. Buchter, J.S.C.,
also "[felt] compelled to register [the court's] disapproval of the program."
People v. Comery, No. 1376-08, at 2 (N.Y. Sup. Ct. Queens Coùnty Sept. 1,2009)
(Pomerzantz Aff., Ex. Z-4). In relevant part, Justice Buchter found that:
Contrary to the contention of the District Attorney, thescript is deceptive. For the unrepresented defendant, itcreates the false impression that the ADA is there to assisthim. Further, the defendant is told that this is his onlyopportunity to speak to the investigator prior toarraignment, The defendant is not told that he mayprovide notice of alibi after arraignment (see CPL 250.20)or that exculpatory material may be presented to theauthorities at any time. Thus, an erroneous impressionmay easily be created. In addition, the script prompts thedefendant to relinquish his rights before he is made fullyaware of them. . .. [T]he script unnecessarily undermines
21
the subsequent Miranda warning that he can have anattorney appointed before questioning, or at anytime.
Id. at 3.
The script employed in the pre-arraignment interrogation of
Defendant Perez in this case raises all the concerns voiced by the Queens County
Supreme Court justices in the decisions discussed above. The statements read
from this script to Defendant Perez were deceptive and contained misleading legal
advice that undermined the subsequent Miranda warnings. In analogous
circumstances, the Second Circuit has suppressed statements elicited under a
similar program as involuntary.
In Us. v. Duval!, 537 F.2d 15 (2d. Ciro 1976), the defendant-
appellant Thomas Duvall was subject to a pre-arraignment interrogation by an
Assistant U.S. Attorney ("AUSA") as part of an ongoing pre-arraignment
interview program used by the office United States Attorney for the Southern
District of New York-a program that significantly parallels the District
Attorney's Pre-Arraignment Interrogation Program at issue in this matter. Id. at
23-24. During Mr. Duvall's interrogation, the AUSA told him that he faced "a
possible sentence of a hundred years." Id. at 25.
The Second Circuit held that, while the AUSA's statement "was
correct as a matter of multiplication because of the large number of counts, it only
tells part of the story." Id. The AUSA's statement was misleading because, as
22
"the prosecutor must have known, [and] the defendant did not, ... no judge would
impose ... a sentence for the crimes here charged remotely approaching a
hundred years." Id. In addition, the court found that the AUSA's statement
would also lead the defendant to "fear at least that the prosecutor would ask for a
very long sentence ifhe did not 'cooperate.'" Id. The Second Circuit concluded
that "[s]uch a remark by a prosecutor to an uncounseled defendant from whom he
is seeking a waiver of Fifth Amendment rights calls for something more than an
expression of judicial concern. The statement ... should have been suppressed."
Id.
Similarly, the misleading statements made to suspects under the Pre-
Arraignment Interrogation Program call for something more than the expressions
of judicial concern previously made by the justices of Queens County Supreme
Court. These statements mislead uncounseled suspects by advising them that they
must talk "now" because it is their "only opportunity" to tell their story. What
these uncounseled suspects do not know-and the prosecutors interrogating them
do-is that there is no urgency in talking "now" because it is not their "only
opportunity" to provide alibis and other exculpatory information. The trickery
and deception employed by the District Attorney in the Pre-Arraignment
Interrogation Program to obtain inculpatory statements from suspects immediately
prior to their arraigmnent and the appointment of counsel is contrary to the letter
23
and spirit of Miranda, as well as the rules of ethics.
CONCLUSION
For all of the foregoing reasons, Judge Blumenfeld should be
permitted to consider the full range of ethical and constitutional implications of
the Pre-Arraignment Interrogation Program in the matter pending before him and
the District Attorney's application for a writ of prohibition should be denied.
Dated: New York, NYDecember 8, 2010
Respectfully submitted,
c;PIf!Yø?,·r . [///./"John Kenneth WhIte, Jr., Es'q.Taylor Pendergrass, Esq.Christopher Dunn, Esq.Arthur Eisenberg, Esq.New York Civil Liberties Union
Foundation125 Broad Street, 19th FloorNew York, NY 10004(212) 607-3300(212) 607-3329 (facsimile)
Counsel for Proposed Amicus Curiae
To: Richard A. Brown, Esq.District Attorney, Queens County125-01 Queens BoulevardKew Gardens, NY 11415(718) 286-6000Petitioner
24
Mark F. Pomerantz, Esq.Paul, Weiss, Rifkind, Wharton & Garrison, LLP1285 Avenue of the AmericasNew York, NY 10019-6064(212) 373-3000Attorneys for Respondent Honorable Joel L. Blumenfeld
Warren M. Silverman, Esq.47-03 Bell BoulevardBayside, NY 11361(718) 281-2311Attorney for Respondent Elisaul Perez
In the Matter of the Application ofRICHARD A. BROWN, District Attorney ofQueens County,
Petitioner,
For a Judgment in the Nature of Prohibitionunder Article 78 of the Civil Practice Law andRules,
-against-
The Honorable JOEL L. BLUMENFELD,Acting Justice, Supreme Court of the State ofNew York; ELISAUL PEREZ, named asDefendant in Queens County IndictmentNumber 1202/2009,
Respondents.
Index No. 2010-09688
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