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December 23, 2007
Detectives’ Interrogation Tricks Under Scrutiny After Court Ruling
By THOMAS J. LUECK
New York Times

Lies. Trickery. Deceit. For detectives interrogating murder suspects, they are part of the standard playbook.

And they are tactics that were clearly used by detectives who interviewed Martin H. Tankleff in 1988 hours after he called 911 to report finding both his parents stabbed and badly beaten in their Long Island home. Both parents died from their wounds.

Mr. Tankleff confessed and was convicted of their murders, and he served 17 years in prison before a state appeals court ruled on Friday that he may have been wrongly convicted, ordering a new trial.

While the court did not say that the detectives acted inappropriately, its decision renewed doubts about how Mr. Tankleff’s confession was obtained. In so doing, the ruling tapped into a longstanding conversation among legal experts and the law enforcement community about how much deception is too much.

Mr. Tankleff, now 36, remained in prison Saturday. But the Suffolk County district attorney, Thomas J. Spota, said that Mr. Tankleff could soon get a bail hearing that could lead to his release.

Somewhat cryptically, Mr. Spota also told reporters that he had never said that Mr. Tankleff was guilty in the deaths of his parents, Seymour and Arlene Tankleff.

In comparison with the ruses employed in Mr. Tankleff’s interrogation, most detectives’ tricks are relatively mundane, and are familiar to any casual viewer of television crime shows. There is the frequently used “we have witnesses” deceit, law enforcement experts said, and assurances that surveillance camera images can be produced. There is the common psychological ploy in which detectives try to win a suspect’s trust by confiding that the victim was a bad person who deserved what he got.

“Trickery and deceit are permissible and acceptable when dealing with a suspect in a murder case,” said Vernon J. Geberth, a former commander of the Bronx Homicide Task Force for the New York Police Department and an author and lecturer on homicide investigation techniques. “Sometimes you only get one shot in these cases, and people don’t give up information unless they have to.”

In the case of Mr. Tankleff, who was 17 at the time of his parents’ murders and who quickly recanted his confession, one detective’s ruse had an especially dramatic flair. He faked a phone conversation with a hospital worker that Mr. Tankleff could hear, saying, “No kidding, he came out?” The detective then told Mr. Tankleff that his father had regained consciousness briefly and had identified his son as his attacker. The performance was so convincing that another detective testified that he believed the call was real.

Detectives also told Mr. Tankleff that his hair had been found in his mother’s hands after she was attacked, and that a “humidity test” had been taken in a shower to establish that Mr. Tankleff had used it to wash off his parents’ blood and bodily fluids. The hair was not found, nor was a test conducted on the shower.

According to court documents, Mr. Tankleff asked investigators whether he could have blacked out during the attacks, then said that it wasn’t him, “but it was like another Marty Tankleff that killed them.” Then he asked, “Could I be possessed?” A detective responded, “Marty, I think that’s what happened to you.”

Finally, Mr. Tankleff said, “It’s coming to me.” He confessed to the attacks, but refused to sign a written confession, and then disavowed it.

A 1993 decision by the same court, the Appellate Division of State Supreme Court in Brooklyn, denied Mr. Tankleff a new trial and found no fault with the lead detective in the case, K. James McCready, of the Suffolk County Police Department, who staged the telephone call.

“The type of trickery employed by Detective McCready in this case was not likely to provoke an unreliable confession; on the contrary, we find that the factual reliability of the defendant’s confession was, if anything, enhanced,” the 1993 opinion said. The court rejected Mr. Tankleff’s claim that he had been brainwashed.

In its ruling on Friday, the appellate court said detectives had “utilized a ruse” in interviewing Mr. Tankleff. It did not offer an opinion on the validity of the 1988 interrogation. But the ruling did say that the nature of the confession, “how the confession was obtained” and the quick recanting, combined with circumstantial evidence produced during the last few years that pointed to other suspects, were enough for a new trial.

The Suffolk County district attorney’s office said it might appeal the ruling and had no intention of dropping the case against Mr. Tankleff.

However, Mr. Spota said Saturday, “I never said that Martin Tankleff killed his parents.

“What I have consistently said is that I do not believe the people the Tankleff team said killed these people killed these people,” he added, referring to other potential suspects that Mr. Tankleff’s lawyers have named.

Mr. Spota, who was not district attorney when Mr. Tankleff was convicted, did not elaborate on his statement. Barry J. Pollack, one of Mr. Tankleff’s lawyers, said he hoped that Mr. Spota meant that he was “going to take a fresh look” at the case and decide that retrying Mr. Tankleff was unwarranted.

The decision on Friday, while it does nothing to limit what detectives can say when the questioning people suspected of violent crimes, comes at a time when civil libertarians are bringing attention to a long list of murder convictions that have been overturned, sometimes years after the fact, based on DNA evidence. Frequently, these advocates say, the convictions occurred after the defendants made false confessions.

“The rules today are pretty much that the police can do what they want,” said Stephen A. Saltzburg, a professor of law at George Washington University and chairman of the criminal justice section of the American Bar Association.

Many people “will think the case on Long Island is one in a million,” he said, “but it is much more common than that.”

Mr. Saltzburg said that the bar association had urged police departments to videotape the interrogations in cases involving violent crime so that the courts could review what ruses had been used, but that few had done so.

He said one clear limit exists: Detectives cannot threaten physical harm. “You can’t say, ‘I’ll beat you up’ or ‘I’ll lock you up with a serial killer,’” Mr. Saltzburg said. He said common tactics that are uncontested by defense lawyers or appeals courts include telling suspects that their fingerprints were found at the crime scene or that they were implicated by an accomplice.

Mr. Pollack, the lawyer for Mr. Tankleff , said, “The more elaborate the ruse, the more likely any confession that results is likely to be false, which is what happened in this case.”

Tim Motz, a spokesman for the Suffolk County police, declined on Saturday to comment on the Tankleff case or on the department’s interrogation practices.

Law enforcement experts said the use of ruses had rarely been challenged by defense lawyers, the courts or the public since the 1966 United States Supreme Court ruling that required Miranda warnings, in which people are told of their right to remain silent when they are placed in police custody.

Mr. Saltzburg said defense challenges usually concerned whether the police complied with the Miranda rules instead of the truthfulness of what detectives said in an interrogation setting.

“Most people believe Miranda provides as much protection as the government should provide,” he said. “They think interrogators should be given some leeway, and they don’t want to tie the hands of the police.”

Some courts and police agencies have sought to clarify the interrogation rules. In one example, a state court in Florida reversed an armed robbery conviction in 2005 after the convicted man said he had confessed in the face of a ruse. The court said the police had probable cause to charge the man in one robbery, but detectives told him that he would be charged with 15 of them unless he confessed to the one.

“Generally, deception is an acceptable interview and interrogation technique as long as it doesn’t amount to ‘police overreaching,’” the Florida Department of Law Enforcement said in an advisory opinion to police departments. Before using a ruse, it advised detectives to consult with legal advisers or an assistant state attorney.

Mr. Geberth, the former homicide detective, said the problems with trying to trick suspects had more to do with a detective’s need to maintain credibility in the courtroom than with fending off a challenge by defense lawyers. Generally, he said, his advice to detectives is, “You don’t make a false claim of evidence.”

Nonetheless, he said, ruses are often necessary during interrogations of murder suspects, who often cling to false accounts or alibis.

“I believe in trickery and deceit unless you are making an innocent person confess,” he said. “Most people who are charged with homicide probably did it.”

But Mr. Saltzburg said detectives and other police officials were sometimes swayed too much by the limited evidence that is available to them and by the belief that the person under suspicion must be guilty.

“Even after cases are cleared by DNA, it is not uncommon for a detective to say, ‘I know he did it,’” Mr. Saltzburg said. “They are true believers.”

Bruce Lambert and Nate Schweber contributed reporting.