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SJC mulls taping of suspect interviews

By Jonathan Saltzman, Globe Staff, 4/9/2004

On the evening of April 10, 1998, two police officers interrogated a convicted felon named Valerio DiGiambattista at the Revere Fire Department headquarters about a gasoline-fueled fire at his old apartment in Newton one month before.

The officers suspected that DiGiambattista, who had had a long feud with the landlord and had moved out three days before the blaze, set the fire.

When DiGiambattista denied torching the house, a state trooper entered the cramped interview room and staged a ruse worthy of "Columbo": He pulled out a thick file and two videotapes and implied that DiGiambattista had been caught on a surveillance tape in an unrelated investigation of the company next to the house that burned. "Is there any reason you would show up on that videotape?" one of the officers asked DiGiambattista, who broke down and tearfully admitted setting the fire. He was later convicted of arson and served 44 months in prison.

Now, the Supreme Judicial Court is weighing an appeal by DiGiambattista that his confession should have been quashed because of the trick -- the tape was blank -- and other tactics. But the case has broader implications because it has spurred the court to consider a far-reaching question: Should Massachusetts police be required to tape all interrogations before suspects' statements can be admitted into evidence?

For more than a decade, the state's highest court has urged police to videotape or audiotape interviews with suspects to prove that confessions were voluntary. The court said in 1993 that the criminal justice system spends "an enormous amount of time and effort" trying to reconstruct what happens during interrogations, which could be avoided if they were taped. Still, relatively few interviews are recorded, according to Massachusetts legal specialists.

Just two states require police to tape interrogations: Alaska, where the state Supreme Court adopted the rule in 1985, and Minnesota, whose high court did the same in 1994. Last year, Illinois Governor Rod Blagojevich signed into law a bill that requires police to tape all homicide interrogations by July 2005. He said video cameras would help restore public trust in a justice system that has seen 13 people released from Death Row and four innocent people pardoned. Connecticut and New Jersey have considered taping police interrogations as well.

Given that backdrop and its own simmering concerns, the SJC invited the legal community to submit briefs this month about the merits of a similar requirement in Massachusetts.

Proponents of taping who submitted friend-of-the-court briefs include David M. Siegel, a New England Law | Boston professor; Suffolk Lawyers for Justice Inc.; the New England Innocence Project; and the Committee for Public Counsel Services.

Opponents include Attorney General Thomas F. Reilly; the Massachusetts District Attorneys Association; state Secretary of Public Safety Edward J. Flynn; Colonel Thomas J. Foley, the state police superintendent; and the Boston Police Department.

As the briefs and oral arguments before the court this week showed, the issue is highly controversial, and law enforcement officials chafe at the prospect of mandatory taping. Several prosecutors said they would prefer to have a videotaped confession to show a jury instead of having a police officer testify about what a suspect admitted. But law enforcement officials contend that many, if not most, suspects will clam up if they are being recorded, derailing criminal investigations.

If the requirement had been in place four years ago, for example, retired State Police Lieutenant Richard Schneiderhan might not have been convicted last year of tipping off former UMass president William Bulger in 1999 that his telephone was being monitored by FBI agents hunting for his fugitive brother, James "Whitey" Bulger, Foley said in an affidavit filed with the SJC.

When Schneiderhan was interviewed at his house in 2000 he refused to let investigators take notes, let alone tape the interrogation, according to Foley.

"Had he refused to be interviewed because of a requirement to tape, his crimes may not have been prosecuted and a great injustice would have occurred," Foley said in an affidavit accompanying the brief filed by law enforcement officials.

Critics of mandatory taping especially bristle at the suggestion that police be required to tape the questioning of suspects from beginning to end, as the new Illinois law mandates.

Several Boston detectives said in affidavits that the recordings they do make -- typically in the most serious cases, such as homicides -- usually involve recapping what suspects told them in less formal questioning before the tape rolled. To press the record button at the outset, they said, would have a chilling effect.

"The art of interrogating suspects depends, in large part, on an investigator developing rapport and a feeling of comfort with the suspect so that the suspect wishes to speak freely," said Sergeant Detective Robert M. Merner, who feared that taping from the start would cause suspects to "shut down."

Siegel, a professor at the New England Law | Boston and a former public defender who supports videotaping in Massachusetts, said rolling a tape hours into an interrogation misses the point.

"It's the preparation to make a five-minute confession that might well make that confession involuntary," he said.

Geline W. Williams, executive director of the Massachusetts District Attorneys Association, whose 11 members oppose the requirement, raised a practical concern. "Suppose the tape fails or there's an electricity problem," she said in an interview. "Does that mean you lose the ability to enter a confession in, say, a homicide case?"

As strenuously as law enforcement officials oppose mandatory taping, proponents note that police raised similar concerns after the US Supreme Court's landmark 1966 decision requiring officers to read suspects the now-familiar listing of their rights.

© Copyright 2004 Globe Newspaper Company.