What Happens Before Police Press ‘Record’?

On Feb. 5, 2017, two detectives and two assistant district attorneys were hunkered down inside a second-floor room at the 107th Precinct station in Pomonok, Queens. At exactly 10:31 a.m., Joseph Diehl, a detective with the Queens district attorney’s office, turned on a video camera and started to focus its lens.

Next, the device took an abrupt, herky-jerky swing rightward to zero in on a slender Black man who was seated and wearing a blue and gray, striped sweatshirt. With arms folded atop a tiny table, he gazed down while receiving the Miranda warning.

“Now that I’ve advised you of your rights, are you willing to answer questions?” asked Peter J. McCormack III, head of the Queens district attorney’s homicide investigation unit. The baby-faced suspect paused before finally saying, “OK” with a slight nod.

That was how Chanel Lewis, then 20, waived his right to remain silent. Some 24 hours earlier, he had been arrested for the August 2016 rape and murder of jogger Karina Vetrano at Spring Creek Park, near her Howard Beach home. The attack garnered national headlines, and the New York City Police Department offered a $35,000 reward, interviewed hundreds of tipsters, and collected more than 600 DNA samples as part of its extensive manhunt for Vetrano’s killer.

The investigation lasted six months. Then cops closed in on Lewis after John Russo—a 20-year NYPD veteran and a lieutenant commander at the 107th Precinct—recalled having spotted him in May 2016 after following up on a 911 call about a “suspicious person” in the vicinity of the park. Lewis—who had no prior criminal history but had received three summonses dating back to 2013 for minor public offenses—had caught Russo’s eye because he was wearing a hooded sweatshirt on a balmy afternoon.

After tracking down Lewis to the East New York apartment he shared with his mother and two sisters, officers secured a voluntary DNA sample, which the NYPD and prosecutors later noted was a possible match to evidence found at the scene. At some point during his detention, Lewis confessed to a detective on camera. But authorities needed him to repeat the story for prosecutors.

Over the span of about 20 minutes, Lewis, whose demeanor veered from sullen to confused, mostly mumbled his answers. In fact, he merely uttered “hmm mmm,” “yes,” and “yeah” about 20 times each in direct response to McCormack’s questions. But Lewis did tell authorities that after spotting Vetrano jogging toward him, he grabbed her and struck her about five times before she fell into a pool of water. After a short struggle with her, Lewis recalled dragging Vetrano’s body to a leafy, reed-filled area of the park.

For prosecutors, the video was a critical piece of evidence in Lewis’s two-week trial last November. But it ultimately failed to convince a jury, resulting in a mistrial.

Lewis’s confession, his legal team argued, was coerced by cops during four hours of unrecorded questioning. The NYPD has defended its actions in the case. The competing narratives will once again be front and center at a retrial, which began this week.

The issue of what happens off camera is at the core of what advocates consider a weakness in a new law enacted last year. After years of pressure from advocates, Governor Andrew Cuomo signed legislation, as part of his 2017-18 budget, that required police departments across New York to record the custodial questioning of suspects in major felony cases, such as homicide or rape.

Even if the police are giving Miranda warnings right after they hit play, it doesn’t mean they haven’t already talked to our clients about the content of the interrogation before that.

Emily Prokesch Bronx Defenders

To some extent, the law has worked. “We’re definitely seeing a surge in videotaped interrogations,” said Emily Prokesch, a supervising attorney for the Bronx Defenders, which provides free legal services for poor New Yorkers in criminal cases. “It used to be that if there was a handwritten statement, we’d get that. Now we’re getting more videos to see for ourselves what our client said in that room.”

But she and other advocates say the law also falls short of what it was meant to do. It only covers a narrow sliver of cases, for example, and doesn’t require police to press “record” the moment an interrogation actually begins. Lewis’s tape is a perfect example. In the video, prosecutor McCormack repeatedly invokes statements that were apparently made off camera to a detective about the Vetrano attack.

“What we do see of our clients is that they’re asked about statements made to police before they’re speaking on camera,” says Prokesch. “Even if the police are giving Miranda warnings right after they hit play, it doesn’t mean they haven’t already talked to our clients about the content of the interrogation before that. And that obviously raises questions about whether pre-interrogation conversations with the police undermine the force of the Miranda rights in the first place.”

When New York enacted legislation on videotaping interrogations, it joined 24 states and the District of Columbia with recording laws on the books. Additionally, a 2014 Department of Justice edict requires federal agencies—including the FBI, the U.S. Marshals Service and the Drug Enforcement Administration—to tape their custodial interrogations. The policy enjoys the support of a wide range of groups, including both the Detectives’ Endowment Association and the New York Civil Liberties Union. Recording is a good thing, supporters maintain, because it helps preserve the rights of the accused and enables police officers to defend themselves against potential abuse claims.

More than anything, though, placing cameras inside interrogation rooms was meant to help prevent wrongful convictions. As of today, there have been 2,404 exonerations across the country since 1989. In 2018, New York State had 16 exonerations—12 of which were in New York City. During fiscal years 2016 and 2017, the city settled 15 wrongful conviction claims for $138.1 million.

Wrongful convictions can be based on any number of factors, including witness misidentifications and prosecutorial misconduct. But they have also stemmed from false confessions. Documenting whatever happens inside interrogation rooms is a key deterrent, proponents say.

For most of the 20th century, law enforcement officials in New York took suspect statements in longhand before shifting to typewriters. But in 1975, the Bronx district attorney’s office received a federal grant to begin recording some confessions, accelerating a gradual sea change.

Policing is a vocation, but it must change with the times.

Commissioner James O’Neill NYPD

By the early 1980s, prosecutors across the city increasingly relied on videotaped confessions to bolster their cases in court. After obtaining confessions at stationhouses, officers would then shuttle suspects over to the district attorney’s offices to tape their statements. But the process was not without controversy.

When DNA evidence failed to link any of the Black and Latinx suspects in the rape and assault of the Central Park jogger some 30 years ago, for example, their videotaped interrogations would become the centerpiece of the case—despite confessions that contained notable contradictions.  

The NYPD steadfastly resisted efforts to videotape for years, citing the related costs. But as a stream of wrongful–conviction cases were unearthed across the city, pressure mounted. In 2010, months after a statewide commission recommended that interrogations be recorded, then-NYPD Commissioner Raymond Kelly instituted a pilot program with a grant from the New York City Police Foundation and cameras from High Criteria, a technology company in Richmond Hill, Ontario.

By 2015, an expansion of the recording program was underway. In 2017, cops also were equipped with body cameras for the first time. “Policing is a vocation, but it must change with the times,” Commissioner James O’Neill said in a 2017 address on the state of the NYPD. “We have to constantly innovate and evolve. Otherwise, we’re standing still. And we can’t help this great city … [unless we’re] investing in innovations to keep us on the cutting edge of policing.”  

On average, the NYPD’s Detective Bureau investigates an average of roughly 200,000 cases per year, even with crime at record low levels. Of that caseload, videotaped questioning only happens in roughly 10 percent of major felony cases, according to the department’s data. Prior to any recorded interrogation, suspects are supposed to be told about the camera’s presence and given the chance to opt out of being recorded. Last October, the NYPD told the Daily News that 7,608 police interrogations had been videotaped since the start of 2018.

In a written statement submitted to a 2016 City Council oversight hearing, then-Chief of Detectives Robert Boyce said the NYPD has completely embraced recording custodial interrogations. But critics say there are big flaws in the policy and in how the NYPD chose to implement it. For instance, as may have happened in Lewis’s case, police can start recording after a suspect has already confessed, and essentially recreate an interrogation process.

Videotaped questioning only happens in roughly 10 percent of major felony cases, according to the department’s data.

Washington, D.C., has a better approach, advocates say. According to a 2006 directive from the Metropolitan Police Department, detectives are urged “to the greatest extent feasible” to conduct all questioning within interrogation rooms so that they’re recorded, and to record interrogations in their entirety. Other states, including Arizona, Maryland, and Utah, equip officers with audio devices for potentially capturing their interactions with suspects outside the confines of the interrogation room, such as in squad cars or holding cells.

The NYPD declined to comment on these other methods or whether there are plans to improve the current videotaping process. When asked whether Governor Cuomo would consider pushing for a stronger law, Don Kaplan, a spokesperson for his office, declined to weigh in. “This is not something we would comment on,” he said.

Often, a taped interrogation can resemble a low-tension, fact-finding Q&A. Less visible to outside viewers, however, is the underlying psychological gamesmanship at work. In recent years, legislatures and police training programs nationwide have issued directives to modify how young suspects and people with mental illnesses are interrogated, given their susceptibility to suggestion. But, advocates charge, the very nature of interrogations—as they have long been practiced, including by the NYPD—remain highly coercive.

“New York has a long history of taping confessions but not interrogations,” explains Saul Kassin, a professor of psychology at John Jay College of Criminal Justice. “We’ve never seen the NYPD playbook on interrogations. But we know that some of the most controversial false confession cases over the years have come out of New York.”

Sundhe Moses was one of those cases. Last February, he was exonerated after spending more than 18 years in prison for a 1995 drive-by shooting in Bedford-Stuyvesant, Brooklyn, that resulted in the death of a 4-year-old girl. For Moses, 43, who says that he only confessed off camera after being threatened by officers including the notorious ex-cop Louis Scarcella, videotaping should not be seen as a panacea for wrongful convictions.

“Ask yourself why interrogations need to be recorded in the first place and make sure that you’re addressing that problem, too,” he says. “There are officers who don’t follow the rules. They need to be focusing on the vetting and training process, too.” (To date, 14 New Yorkers’ criminal convictions were overturned after the Brooklyn DA’s Conviction Review Unit determined that Scarcella engaged in misconduct despite his denials of any wrongdoing.)

Recording is important, but we should also be overhauling the methods being used.

Rebecca Brown Innocence Project

Rebecca Brown, director of policy at the Innocence Project, agrees that the NYPD’s interrogation techniques are not above scrutiny. “It’s not uncommon for law enforcement to say that newer interrogation methods are being used versus [those used] 20 years ago. But I don’t think there’s solid evidence to support that,” she says. “We should not be permitting deception during the course of an interrogation. Recording is important, but we should also be overhauling the methods being used.”

Officials at the Brooklyn and Manhattan DA’s offices told The Appeal that while screening NYPD videos, close attention is paid to the tactics used in questioning suspects. “If we see something that we don’t like,” said an official in the Brooklyn office, “ whether it’s during an interrogation or in failing to turn on a body cam, then we definitely bring it up.”

Critics say a better recording bill would look like one that withered for years in the New York State Assembly before the current one was passed. It would have required recording in more locations beyond interrogation rooms, covered a broader set of felonies, and detailed the penalties for failing to tape.

Both the statewide law and the NYPD’s recording program should undergo an audit to gauge its impact, effectiveness, and degree of compliance, says City Councilmember Rory Lancman, who leads the council’s committee on the justice system and is running for Queens DA. “Look, recording interrogations is definitely progress,” said Lancman, who endorses videotaping interrogations in all cases. “But I think we ought to do an assessment and hear from the police, the district attorneys, as well as the public defenders, to see how the system is actually working.”

Correction: This story has been corrected to note that Joseph Diehl is a detective with the Queens district attorney’s office, not with the NYPD. It was also edited to reflect the fact that Chanel Lewis confessed twice on camera, first to a police detective and later in the presence of prosecutors.