E-Mail This Article to a Friend FREEDOM WATCH SJC takes a half step toward righting wrongful convictions BY HARVEY A. SILVERGLATE

Given the spate of wrongful Massachusetts convictions in recent years, the state Supreme Judicial Court could have mustered the courage and good sense to take more than the half step it did in Commonwealth v. DiGiambattista, a mid-August decision that pressures police officers to tape-record custodial interrogations and confessions, but does not require them to do so. Until now, the police have been able to rely on their memories and their notes — and sometimes their imaginations — to recount admissions made by suspects. Such police testimony then leads, in most cases, to convictions. After all, a jury is much more likely to believe a police officer’s claimed recollection of a suspect’s confession than a suspect’s denial of what that officer claims.

So in April, lawyers for Valerio DiGiambattista, joined by some of the state’s most prominent public-interest legal-services groups, asked the SJC to act on something the court has been musing about for at least eight years: requiring that, unless circumstances make recording impossible, a confession must be on tape before it can be admitted at trial. It was no surprise that the issue finally came to a head; in decision after decision during the past eight years, the SJC has been telling law-enforcement agencies that it would be the better practice to record interrogations and statements by suspects in custody, in order to prevent false reports of confessions, or coerced — and therefore unreliable — confessions. Yet in Massachusetts, unlike in several other states, law-enforcement agencies have not to my knowledge adopted routine tape-recording, and the false confessions have continued unabated.

The half step was taken on August 16 by a bare majority of the five justices who voted in the case. In an opinion penned by Justice Martha B. Sosman, the court ruled that in all future trials in which prosecutors seek to introduce evidence of a non-recorded confession, the defendant will be entitled to have the trial judge instruct the jury that "the State’s highest court has expressed a preference that such interrogations be recorded whenever practicable, and cautioning the jury that, because of the absence of any recording of the interrogation in the case before them, they should weigh evidence of the defendant’s alleged statement with great caution and care." In other words, if there’s no tape-recording, jurors should be suspicious about whether there was, in truth, a genuine confession.

In a bizarre dissent, Justice Francis X. Spina said that even such a half step was unnecessary because "there is no record from which this court can conclude that the Commonwealth has a widespread problem of investigators obtaining false confessions." Either Spina has been pulling a Rip Van Winkle, or he succumbed to the police lobby.

Spina also probably failed to read a series of opinions written by federal District Court judge Nancy Gertner between April and July, in the federal prosecution of alleged drug dealer Earl Dessesaure. It involved an investigation conducted by the Boston Police Department, but the case was then handed over to the feds to prosecute because they could impose significantly more-severe penalties. But the case ran into a hitch when Judge Gertner, a former criminal-defense lawyer who had encountered quite a few lying officials in her practice, wrote a detailed opinion indicating why she did not believe the testimony of Boston Police detective John Broderick Jr. (Disclosure: I practiced law with Gertner for 16 years.)

Broderick tried to convince Gertner that, among other things, Dessesaure, after his arrest, had waived his Miranda rights and made a number of self-incriminating statements "regarding the existence of heroin at his apartment ... including specific amounts and locations within the apartment." Dessesaure denied that he’d said any such thing. After holding a three-day hearing at which Broderick testified, Judge Gertner found the officer "simply not a credible witness" on the subject of the defendant’s supposed statements. Referring to yet another aspect of the detective’s testimony, Gertner added that Broderick "offers no explanation for why Dessesaure’s statements were not recorded in any way: written, video or audio." Further, "Dessesaure was not asked to sign a statement that reduced his so-called admission to writing." As a result, Gertner ordered evidence found at the apartment excluded from Dessesaure’s upcoming trial.

The case appears to have been so blatant, and Gertner’s findings so forceful, that, as was reported in mid July by the Associated Press, the Boston Police Department was investigating "whether its officers violated rules." The SJC’s majority decision in DiGiambattista is indeed a very modest and probably inadequate corrective to a long-standing problem in law enforcement, notwithstanding dissenting Justice Spina’s "see no evil, hear no evil" attitude.