A MAT­TER OF RECORD

Scran­ton Po­lice Dept. to be­gin record­ing in­ter­ro­ga­tions while fac­ing scru­tiny for de­stroy­ing hand­writ­ten notes

The Times-Tribune - - Front Page - BY JOSEPH KOHUT STAFF WRITER

The Scran­ton Po­lice Depart­ment ex­pects to be­gin record­ing in­ter­ro­ga­tions this month, putting the county’s largest mu­nic­i­pal agency at the fore­front of a statewide pol­icy is­sue that law en­force­ment, civil rights groups and the Leg­is­la­ture wran­gled with for years.

The process, Chief Carl Graziano said, has been a years­long ef­fort dogged by the te­dious re­al­ity of craft­ing law en­force­ment pol­icy. That pol­icy should be fi­nal­ized and in place by the end of this month.

“We’ve added ad­di­tional record­ing to rooms that do not have record­ing now,” Graziano said. “Four rooms now, which would be ac­ti­vated (with record­ing de­vices) with a sim­ple push of the but­ton.”

The ques­tion of what hap­pens in­side the depart­ment’s in­ter­view rooms, called cus­to­dial in­ter­ro­ga­tions, likely will be a cen­tral is­sue in lit­i­ga­tion in Ryan Tay­lor’s crim­i­nal homi­cide case. Po­lice said the home­less man con­fessed to killing a woman in Fe­bru­ary, though that con­fes­sion was not recorded and po­lice did not have Tay­lor write or sign a con­fes­sion. Notes taken by po­lice dur­ing the in­ter­ro­ga­tion were not pre­served.

The con­fes­sion is sub­stan­tial ev­i­dence against him and a le­gal chal­lenge from his at­tor­ney, Matthew Comer­ford, to sup­press it is ex­pected. Comer­ford is crit­i­cal be­cause with­out a record­ing or set of notes taken dur­ing the in­ter­ro­ga­tion, there is no cor­rob­o­ra­tion of Tay­lor’s con­fes­sion.

In Penn­syl­va­nia, record­ing in­ter­views is not man­dated.

Sev­eral years ago, the Penn­syl­va­nia In­no­cence Project, a Philadel­phia-based non­profit that seeks ex­on­er­a­tions for those wrong­fully con­victed, sur­veyed the south­east por­tion of the state and Al­legheny County and found 97 per­cent of po­lice de­part­ments did not have poli­cies on record­ing in­ter­ro­ga­tions, Marissa Blues­tine, the or­ga­ni­za­tion’s ex­ec­u­tive di­rec­tor, said.

“We were pretty as­tounded how few have any pro­to­cols,” Blues­tine said.

Record­ing such in­ter­views is good prac­tice and can pro­tect the rights of de­fen­dants and shield of­fi­cers from claims of mis­con­duct, ad­vo­cates say.

Across the coun­try, 18 states and the District of Columbia man­date record­ing of cer­tain in­ter­ro­ga­tions by leg­isla­tive statute while an­other six re­quire the prac­tice through court de­ci­sions, ac­cord­ing to the na­tional arm of the In­no­cence Project based in New York City. More than two-thirds of the pop­u­la­tions of Ari­zona, Hawaii, Rhode Island and Utah are cov­ered by law en­force­ment agen­cies that vol­un­tar­ily record in­ter­ro­ga­tions by pol­icy or prac­tice.

A ques­tion of how

The ques­tion of whether such con­se­quen­tial in­ter­views should be recorded as a re­quire­ment is an is­sue that has drawn dis­agree­ment for years. The is­sue was ex­plored in a pair of 2011 re­ports an­a­lyz­ing the causes of wrong­ful con­vic­tions.

On one side, a joint state gov­ern­ment ad­vi­sory com­mit­tee sug­gested the Leg­is­la­ture pass a bill re­quir­ing po­lice to record cus­to­dial in­ter­ro­ga­tions when­ever a Miranda warn­ing is man­dated, among other rec­om­men­da­tions. They also called for an ex­cep­tion to ex­ist­ing law that would al­low po­lice to record in­ter­ac­tions with­out ob­tain­ing per­mis­sion to record. Such a state­ment could be used at trial, but a judge would in­struct a jury that the po­lice had dis­obeyed a statu­tory re­quire­ment — lan­guage that would es­sen­tially al­low ju­ries to dis­re­gard un­ap­proved record­ings of con­fes­sions, crit­ics of the re­port say.

A sep­a­rate 2011 re­port penned by district at­tor­neys, law en­force­ment ex­ec­u­tives and victim ad­vo­cates faulted the ad­vi­sory com­mit­tee’s ap­proach as flawed and called for a pi­lot pro­gram to study fair and cost-ef­fec­tive im­ple­men­ta­tion. An im­me­di­ate man­date, they wrote “is a per­fect ex­am­ple of a law that would sim­ply re­duce the to­tal num­ber of con­vic­tions with­out re­spect to ‘wrong­ful­ness’ while do­ing noth­ing to im­prove the ac­cu­racy of ver­dicts.”

By 2015, state Sen. Ste­wart Green­leaf, a Mont­gomery County Repub­li­can, spon­sored a bill which, in early it­er­a­tions, man­dated cus­to­dial in­ter­ro­ga­tion for spec­i­fied crimes while in­side des­ig­nated in­ter­view rooms at a po­lice sta­tion.

It didn’t last. By the time the bill reached the House Ju­di­ciary Com­mit­tee in Oc­to­ber, its lan­guage had changed to clear a le­gal hur­dle for of­fi­cers us­ing body­worn cam­eras.

That bill died in com­mit­tee last ses­sion but was rein­tro­duced and signed into law by Gov. Tom Wolf in July. The fi­nal bill did not con­tain lan­guage on cus­to­dial in­ter­ro­ga­tions.

Pa­trick Caw­ley, the ex­ec­u­tive di­rec­tor of the Senate Ju­di­ciary Com­mit­tee, said the bill’s fi­nal shape leaves cus­to­dial in­ter­ro­ga­tion pol­icy up to the lo­cal de­part­ments but makes it eas­ier to prac­tice. For ex­am­ple, it re­moves an ex­pec­ta­tion to pri­vacy dur­ing in­ter­ac­tions be­tween the pub­lic and po­lice, needed to suc­cess­fully use body cam­eras, but which is also help­ful for record­ing in­ter­ro­ga­tions.

“Some po­lice of­fi­cers say, ‘As soon as I say I’m record­ing, the per­son’s go­ing to clam up,’” Caw­ley said.

The ACLU of Penn­syl­va­nia, sup­port­ive of record­ing cus­to­dial in­ter­ro­ga­tions, came out against the bill be­cause it said the leg­is­la­tion in­stead made suc­cess­fully re­quest­ing body cam­era footage nearly im­pos­si­ble for mem­bers of the pub­lic.

“I can tell you that the law en­force­ment lobby was ac­tively ad­vo­cat­ing to stop that lan­guage,” Andy Hoover, a spokesman for the ACLU, said.

At­tor­ney Greg Rowe, chief of the leg­is­la­tion and pol­icy unit for the Penn­syl­va­nia District At­tor­neys As­so­ci­a­tion, agreed recorded in­ter­ro­ga­tions are im­por­tant in the search for truth but said vol­un­tary adop­tion is more fea­si­ble right now.

Lo­cal prac­tice, lo­cal con­cern

In Scran­ton, the is­sue came un­der scru­tiny af­ter tes­ti­mony in the Tay­lor case. In a July pre­lim­i­nary hear­ing, De­tec­tive Joseph Laf­ferty tes­ti­fied Tay­lor’s con­fes­sion was not memo­ri­al­ized by au­dio or video record­ing.

Tay­lor’s ver­bal con­fes­sion, po­lice say, cen­ters on his ad­mis­sion that he shoved the victim, Da­nee Mower, into a freez­ing river on Feb. 28 af­ter a dis­pute over a blunt, which is a mar­i­juana cig­a­rette rolled with cigar wraps. Tay­lor de­clined to give po­lice a writ­ten state­ment.

Comer­ford, Tay­lor’s at­tor­ney, asked the court to or­der the po­lice to pre­serve hand­writ­ten notes taken dur­ing Tay­lor’s in­ter­ro­ga­tion in an ef­fort to find cor­rob­o­ra­tion of his con­fes­sion. The notes were de­stroyed four months be­fore the de­fense re­quest. De­stroy­ing notes is a long­stand­ing po­lice prac­tice also not pro­hib­ited by statute or ju­di­cial ac­tion.

Pre­trial mo­tions are ex­pected in the com­ing weeks.

Lack­awanna County District At­tor­ney Shane Scan­lon said the abil­ity for a jury to hear the de­fen­dant’s own words makes for pow­er­ful ev­i­dence, but re­quir­ing all in­ter­ro­ga­tions be recorded poses a num­ber of prac­ti­cal prob­lems.

“Re­al­is­ti­cally, you’re look­ing at a county with so many lo­cal po­lice de­part­ments who are fi­nan­cially strapped and re­ally don’t have the equip­ment to im­ple­ment these poli­cies,” Scan­lon said. “I think it would be a bur­den, to be hon­est . ... You have to be able to bal­ance the real world with what we do ev­ery day.”

The state po­lice have a pol­icy in place on record­ing in­ter­ro­ga­tions, said Cpl. Adam Reed, a spokesman in Harrisburg. The gen­eral prac­tice is to record as much as pos­si­ble.

Trooper Mark Keyes, a spokesman for the Dun­more-based Troop R, said the Dun­more bar­racks has record­ing equip­ment in­stalled in in­ter­view rooms. The state is in the process of putting in equip­ment at rooms in three troop sub­sta­tions. On oc­ca­sion, record­ing equip­ment is tem­po­rar­ily set up in un­equipped rooms to memo­ri­al­ize in­ter­ro­ga­tions of high-pro­file sus­pects, such as con­victed sniper Eric Matthew Frein’s mur­der con­fes­sion in the Bloom­ing Grove bar­racks in 2014.

The state at­tor­ney gen­eral’s of­fice “can­not com­ment on in­ves­tiga­tive pro­ce­dures,” spokesman Joe Grace said when emailed in­quiries on poli­cies and prac­tices.

One lo­cal po­lice depart­ment, Blakely, al­ready uses body cam­eras, and Chief Guy Salerno said they are used for “all in­ter­views.” Salerno de­clined to re­lease the depart­ment’s pol­icy on cam­era use.

“Of­fi­cers are re­quired to wear body cam­eras when they in­ter­view any­one from the pub­lic at any time with only some ex­cep­tions,” Salerno said.

Sev­eral other lo­cal de­part­ments said they do not have in­ter­view rooms or record­ing equip­ment.

“I’m not in­ter­ested in record­ing right now,” Arch­bald Po­lice Chief Tim Trently said. “I think if we did have an in­ter­ro­ga­tion room, we’d look at it, but right now we don’t have the fa­cil­ity to have that type of equip­ment.”

Clarks Sum­mit Po­lice Chief Christo­pher Yarns said record­ing in­ter­ro­ga­tions could be ben­e­fi­cial from time to time. How­ever, the depart­ment is small and re­al­ity is dom­i­nated by dol­lars and cents.

“I think I would like to have body cam­eras but I would need a lot (of money) for it,” Yarns said.

‘More record­ing, not less’

Blues­tine, of the In­no­cence Project, said leg­is­la­tion will be nec­es­sary at some point to achieve uni­ver­sal prac­tice among the state’s more than 1,200 law en­force­ment agen­cies.

For now, though, her or­ga­ni­za­tion sup­ports vol­un­tary pol­icy change among de­part­ments. She said the cost of stor­ing and re­triev­ing video data is ex­pen­sive and a le­git­i­mate is­sue. The an­swer, she said, lies in gov­ern­ment ap­pro­pri­a­tion.

“We ac­cept that’s an ex­pense we as a so­ci­ety are will­ing to ac­com­mo­date and then do it,” Blues­tine said. “I don’t ac­cept that there’s no an­swer for that.”

Whether by man­date or vol­un­tary adop­tion, polic­ing at large is trend­ing to­ward “more record­ing, not less,” said Jon Shane, a pro­fes­sor at the John Jay Col­lege of Crim­i­nal Jus­tice who spe­cial­izes in po­lice pol­icy and prac­tice, among other fields.

Part of it cen­ters on in­tegrity, he said. Part of it also comes from a decades-long shift in pub­lic sen­ti­ment to­ward po­lice.

Those who en­joyed “blan­ket obe­di­ence” to their word in gen­er­a­tions past are to­day on a more even keel with ev­ery­one else. Ques­tion­ing the of­fi­cial record — and be­ing held ac­count­able if the video dif­fers — to­day goes to­ward pre­serv­ing in­tegrity, he said.

“You’re send­ing a guy to state prison . ... Is that too much to ask?” Shane said. “We should want that for our crim­i­nal jus­tice sys­tem.” Con­tact the writer: jko­hut@timessham­rock.com; 570-348-9144; @jko­hutTT on Twit­ter

‘I’m not in­ter­ested in record­ing right now. I think if we did have an in­ter­ro­ga­tion room, we’d look at it, but right now we don’t have the fa­cil­ity to have that type of equip­ment.’ Arch­bald Po­lice Chief Tim Trently

JAKE DANNA STEVENS / STAFF PHO­TOG­RA­PHER

TAY­LOR

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