An earlier entry of mine on this subject speculated that U.S. Attorney Paul Charlton of Arizona had been fired by Attorney General Alberto Gonzales for his inistence that the FBI and other Federal law enforcement agencies electronically record statements of suspects. My post led several readers to question whether his support of recording was the main reason for the firing (others speculated it was his resistance to seeking the death penalty in certain cases as well as his unwillingness to vigorously prosecute illegal immigrants caught crossing the border with small amounts of marijuana). But last week, Kyl Sampson, Attorney Gonzales's hatchet man for the firings, ended all speculation. Sampson testified that indeed Charlton's support of electronic recording (and for a pilot project) over the objections of all of the federal agencies and other within the Justice Department, was a key reason for his firing. Documents disclosed by the DOJ reveal the internal debate about recording and recycle many of the traditional arguments in favor and against recording. (For a review of the documents, read Glenn Greenwald's article in Salon magazine http://www.salon.com/opinion/greenwald/2007/03/20/doj_recordings/index.html).
There are several fascinating things about this debate that demonstrate to me that there may be a tremendous opportunity for advocates to push hard for electronic recording in federal cases. First, Charlton's reasons for wanting a recording policy stem from the fact that his office had lost numerous cases (or was required to plead down others) because of the lack of an electronic recording. Jurors who were polled after these losses repeatedly told Charlton and his AUSAs that the lack of a recording hurt their cases. rthe FBI and the other agencies (the DEA, ATF, USMS).
Second, Charlton's opinion apparently was shared by the majority of the Working Group of the Criminal Chiefs of the US Attorneys, a powerful group of prosecutors who might have the clout needed to push this issue further (if a new Attorney General is appointed).
And finally, the FBI and other agencies list as one of their reasons for opposing recording a desire to conceal from jurors the conduct of its officers in obtaining confessions for fear that jurors might not take kindly to the aggressive (and legal) tactics used routinely by agents. The FBI's opposition was described uin the DOJ memo as follows: " As all experienced investigators and prosecutors know, perfectly lawful and acceptable interviewing techniques do not always come acoss in recorded fashion to lay persons as a proper means of obtaining information from defendants." Next to this entry -- which was underlined -- were the handwritten comments of an unknown skeptic who wrote "So we want to hide the truth? Don't want the jury to reach its own judgment?"
What are the FBI and other agencies really saying when they seek to conceal from juries the truth about their interrogation tactics? For one, it shows a profound distrust of juries, one which is belied by the experience of prosecutors in Minnesota and elsewhere who have been presenting recorded interrogations to juries for years. Jurors understand that obtaining confessions is not always pretty and are willing to cut agent's slack as long as they do not threaten suspects of promise leniency or suggest to the suspect the facts of the crime that only the true perpetrator would know. Two, the lack of a recording allows agents to plausibly deny that they coerced statements or to otherwise "sanitize" their recollection of the interrogation practice. It is also an open invitation for agents to lie when testifying about what went on during the interrogation. Finally, their fear that juries will not understand their tactics also extends to judges. Judges usually get the first crack at reviewing statements when they are asked to decide if a confession is voluntary or involuntary. The FBI's desire to conceal this information from judges speaks volumes about what they think about the ability of judges to make accurate decisions regarding the voluntariness and reliability of suspects' statements.
In light of all of the recent exonerations, many of which have been the result of DNA testing, and the significant percentage of exonerations which are based on false confessions (20-25%), our criminal justice system can no longer simply accept a federal agent's word about what happened during the interrogation, especially when a simple recording can give judges and juries a complete (depending upon when the camera is turned on) and thorough account of what was said during an interrogation. Federal judges, federal legislators, and federal prosecutors should continue to bring pressure upon the federal law enforcement agencies to start recording interrogations routinely. The firing of Paul Charlton is an opportunity to pierce the veil of secrecy that has long shrouded the actions of federal officers during interrrogation. It is an opportunity that those of us who favor recording should not and must not miss.