Advocates Hang Hopes on Hung-Up Albany Bills to Curb Aggressive Police Interrogations of Kids

Advocates Hang Hopes on Hung-Up Albany Bills to Curb Aggressive Police Interrogations of Kids

“Chief,” a subject of child Interrogations by the NYPD, reflects on his experience. Jason Scott Jones/THE CITY

By Eileen Grench, THE CITY

Isaiah was first questioned by police when he was 11, after witnessing the murder of a family member. Five years later, he was interrogated — this time, about “accusations” made against a friend.

Both times, he was read his rights and he didn’t want to talk, he said. But ultimately, that didn’t matter: The pressure he felt as a kid facing the police in an interrogation room didn’t make silence feel like an option, he told THE CITY.

“To be honest, I feel like I had to,” said the East New York teen, who didn’t want his real name published.

Having immediate access to a lawyer, said Isaiah, would give other kids a better chance than he had when faced with police questioning.

“Then you wouldn’t be getting played,” he said.

Two bills drafted by members of the state legislature would do just that — and more — for kids in Isaiah’s situation. But both have been languishing in the state legislature since early last year.

Now, in the wake of massive protests against police misconduct, Isaiah and others are calling for more protection for kids who they say are unfairly pressured to waive their own rights.

“When there’s five cops in a room with you, even just two … people don’t understand,” he said

An Effort to Protect Kids

An April 2019 juvenile interrogations bill, stuck in the children and families committees of both houses, would require a lawyer to speak with any minor before they can waive their Miranda rights. The measure also defines when an interrogation can be deemed “necessary,” and ensures that a guardian is called before the child can be moved from the scene of their arrest.

A second, less expansive bill, sponsored by State Sen. Velmanette Montgomery (D-Brooklyn), would also amend the state Family Court Act to make sure that all questioning of minors, and the Miranda waivers that proceed them, would be video recorded.

Rules surrounding juvenile interrogations have stayed basically the same since the time of the arrest of the now-exonerated Central Park Five, a group of Black and Latino teenagers from Harlem who were wrongfully convicted of the beating and rape of a white woman jogging through Central Park in 1989.

The NYPD Patrol Guide requires Miranda warnings for anyone under 18 to be read while the parent/guardian is present, but with major caveats: A child can be questioned without a parent or guardian present if “every reasonable effort” has been made to notify them; or if there is extreme necessity for questioning at the time; and/or the police have considered the “ability of the juvenile to understand Miranda warnings.”

That essentially means that if a cop judges a kid to be able to understand his or her own rights, then the police can proceed with questioning the minor.

Evidence eventually showed the young men in the Central Park Five case gave false confessions, following hours of interrogation without counsel — leading to years of prison time before their eventual exoneration in 2002.

“We had sympathy for the Central Park Five, but nothing’s really changed,” said Jared Trujillo, president of the Association of Legal Aid Attorneys.

‘Families Were Torn Apart’

As the rules still stand, children aren’t sufficiently protected, advocates say.

“It’s one of those things where not having counsel, maybe that leads to that coerced confession. Maybe that leads into a rabbit hole per se of things that simply would have damaged their life,” said State Senator Jamaal Bailey (D-Bronx/Westchester), who sponsored the stalled interrogation legislation in his chamber with Assemblywoman Latoya Joyner (D-The Bronx) in hers. “Maybe if they have counsel it stops the bleeding, so to speak.”

He said the Central Park Five case was a prime example of what can happen when kids are questioned without legal counsel. “Their families were torn apart, they had decades taken from their youth. We never get back time. And I don’t want the time to be taken away from another young person.”

According to the landmark case Miranda v. Arizona, the waiver of a person’s right to remain silent under the Fifth Amendment must be “made voluntarily, knowingly and intelligently.”

“Ensuring individuals know their rights and speak to police officers voluntarily are well settled legal principles and long standing NYPD practices,” reads a statement by an NYPD spokesperson sent to THE CITY. “The Department has significant concerns with this bill as written.”

The spokesperson noted the NYPD uses “extra simplified explanations for juveniles to ensure that they and their parents fully comprehend their constitutional rights.”

‘That Stuff Traumatizes You’

But Emily Haney-Caron, an assistant professor of forensic psychology at John Jay College of Criminal Justice, said the Bailey/Joyner bill is necessary because youth understand the concept of a “right” differently than law enforcement authorities.

“It’s not just that you just need to explain it to them better and then they’ll get it,” she said. “It actually seems to be that they don’t yet have the developmental capacities to grasp how the rights function.”

The rights that children tend to think they have — to attend school, get an allowance, live with their parents — aren’t as permanent as those granted by the Constitution, she noted.

The first time Isaiah was physically stopped by a cop, he was barely a teenager. Isaiah was surprised. He tried to tell the officer he was just a kid, he told THE CITY.

“So what? That don’t mean nothin’. I could still put you in the back of my car,” Isaiah remembered him saying.

“I was just answering his questions after that,” Isaiah said.

Haney-Caron’s own research shows that nearly 90% of 183 justice-involved youth surveyed said that they would waive their rights in an interrogation setting, compared to 28% of adults.

“For a teenager, a right is something that you have until someone tells you that you don’t anymore. That is their reality of the world,” said Haney-Caron.

Advocates also note that youth, like adults, can be held for long stretches of time, given fake promises in exchange for a statement, or lied to — as in the case of the 13-year-old who confessed to being present at the murder of Barnard freshman Tessa Majors.

Chief, a young man from Brooklyn who asked his real name not be used, was 14 when he was arrested and interrogated, accused of selling drugs.

“What I remember as a kid was, first of all, I didn’t fully understand what was happening.… I didn’t really even know what the Miranda rights were,” he told THE CITY. “And the police officers knew that.”

Chief, now 30 and a mentor for youth, told THE CITY that police officers would lie to get him to react.

“They would say to me, ‘Hey, your friend has already said A, B, C and D. So now if you don’t confess to it, then we already have it anyway,’” he said.

“I thought I was very smart — and I was — so I would try to talk my way out of things, which is never a good thing,” said Chief, whose convictions as a minor are sealed. “Any lawyer will tell you that. ”

According to a study of nationwide exonerations between 1985 to 2003 published in the Journal of Criminal Law and Criminology, 44% of minors whose convictions were overturned originally provided false confessions.

“You’re scared even if you act like you’re not. That stuff stays with you. And that stuff traumatizes you,” said Chief.

Maryanne Kaishian, a staff attorney at the Brooklyn Defenders, told THE CITY that when a minor is surrounded by police officers of a different race, there is an undeniable power dynamic. As of 2018, 94% of kids under 15 detained as a juvenile in New York City were Black or Hispanic, according to the State Division of Criminal Justice Services.

“You have all sorts of authority over the way that their life trajectory is going to go from this point forward,” she told THE CITY. “That very decision to talk under those circumstances as a child — could that ever be considered to be voluntary?”

Bill to Raise Bar

The Joyner/Bailey bill’s new definition of “necessary” could be an important change for youth caught up in the criminal justice system.

Under the stalled legislation, cops would need to “reasonably determine that the child’s life or health, or the life or health of another individual, is in imminent danger” to proceed with questioning.

“Currently, it’s enough for them to say, well, we’re investigating a crime, it’s necessary to solve crimes,” said Kaishian. “And so that clears the hurdle for that overwhelmingly, just shockingly low bar of what they have to establish to be deemed ‘necessary.’”

Mariella Martinez, an attorney with the Legal Aid Society in Queens, recently reviewed the video of one of her young clients being questioned for an alleged crime committed against a sibling.

The child’s mother also berated him in the middle of the interrogation when police left the room. Lawyers say police commonly use parents to get youth to speak — another reason a lawyer is needed.

“She said something to the effect of, ‘I know what you’re doing. Stop acting so crazy. You think this is going to win you sympathy?’” Martinez said, noting that the youth — who had been up all night — kept placing his head on the table.

Martinez argued in the court that the interrogation should be suppressed. But ultimately the child’s statements were found to be admissible, and the 13-year-old boy was put into the foster care system.

Police “want cherries on top of their ice cream,” said Martinez, adding there were also eyewitness accounts and the rest of the family was cooperating.

‘The Last Person I Would Want to Call’

Arm-twisting tactics by police take a toll beyond the legal ramifications, Isaiah suggested, his voice tight as he recounted his other run-ins with cops — including a time, he said, cops pulled his hoodie around his neck after accusing him of jumping a subway turnstile.

Such tactics not only lower his own trust in cops, he said, but make crimes more difficult to solve in his neighborhood.

“If I was getting robbed or something was to happen to me, that’s the last person in my opinion I would want to call,” he said of the police. “Because they’re the same people that are hurting us, so how are they going to protect us?”

Chief believes change hasn’t come yet because, he said, justice works differently for white families.

“Their kids actually get Miranda rights. Their kids have good lawyers. Their kids have power … the system works for their kids. I think it’s that we have two justice systems. One if you’re rich and guilty, versus one if you’re innocent and poor.”

Joyner, a sponsor of the stalled Assembly bill, told THE CITY that the protests sparked by the death of George Floyd at the hands of Minneapolis cops helps offer a way forward for the legislation.

“Our young people are really engaged now, they were the real impetus of us really addressing police reform,” she said. “We have legislative leaders who are really focused on improving the lives of Black and brown people. We not only have leaders in place — everybody’s paying attention.”

This story was originally published on [July 13, 2020] by THE CITY.”

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