Bluhm Blog

FBI Caught On Tape Violating a Suspect's Rights

Here's one more example of why it is is critical that the FBI start recording their interrogations.  Without a recording in this case, the subtle threat conveyed by the agent to the suspect would have gone unnoticed.  A federal judge in Indiana recently tossed out the videotaped confession of a Valapraiso, Ind. man who was charged with soliticiting sex from an undercover FBI man posing as a 13 year old girl. Why? Because the FBI ran roughshod over Mr. Hensley's right to counsel, convincing Hensley to answer questions even after Hensley clearly invoked his right to counsel.  At the outset of the interrogation, Hensley told FBI Agent Demetrius Flowers that he wanted a lawyer present before answering questions.  Flowers then told Hensley that if he refused to give a statement a judge was more likely to keep him in jail after the detention hearing.

"Once I step in front of the judge," said Flowers, "he is going to hear my side of the story and he is not going to hear anything you have to say and that is going to go a long way towards deciding whether you stay in custody or not."

Judge Philip P. Simon, in tossing the statement, wrote: "Agent Flowers gave the Miranda warnings with onme hand and snatched them away with the other."

Hensley's lawyer, Alex Woloshansky, stated: "I am all for videotaped interrogations ... what happens in the privacy of the interrogation room often doesn't get accurately relayed in a courtroom."

Don't F with the FBI

Section 7 of the FBI's "Manual of Investigative Operations and Guidelines" reads: "Use of tape recorders for the purpose of recording the statements of witnesses, suspects and subjects is permissible on a limited highly selective basis, and only when authorized by the SAC (special agent in charge).  I've been railing for years about the FBI's refusal to electronically record interrogations and confessions.  For years, the FBI was the standard bearer, way ahead of the curve in terms of ensuring that confessions were reliable and suspects rights were safeguarded.  They were reading suspect's Miranda-like rights even before the Miranda decision.  But they have a blind spot when it comes to electronic recording. 

Apparently, any prosecutor with the courage to call the FBI out on its recording policy is at risk of retaliation.  An article in today's New York Times about 8 United States Attorneys who have been dismissed by President Bush and his Justice Department (one of the largest such housecleanings ever), states that Paul Charlton, the former United States Attorney for Arizona (Phoenix) was dismissed, in part, because he annoyed  FBI officials by pushing them to record confessions.  The good news is that both Democrats and Republicans on the Hill are thinking of holding hearings on these dismissals.  If that happens, it could lead to a broader discussion on the issue of videotaping.

Seven states and the District of Columbia now require recording and hundreds, if not thousands, of local law enforcement officers around the country are going to the tape (be it video,  audio, or digital). But the FBI (and other agencies within the Justice Department) still refuse to record.  The FBI's policy of not recording has cost them some cases and there have been numerous high profile false confessions in cases with FBI Involvement (Abdullah Higazy, Kenzi Snider, Chuckie Hickman and allegations of coercive tactics in others (Wen Ho Lee).   

If the FBI's policy is not subject to scrutiny during the investigation of these firings, it is unlikely that any time soon you will see federal prosecutors second-guessing the policy.  The only chances left for such a change in policy lie with federal judges (and some have started to push the Feds) and with the President.  The good news is that Barack Obama was successful of brokering a compromise in Illinois which led to the first legislation requiring recording of interrogations. Maybe if he is elected President, he'll have the courage to push the FBI.....