(Also, People v. Douglas and People v. Dunbar) New York State Appellate Division, Second Department, Index Nos. 10-1680, 10-03763, 10-04786 (amicus)
These cases challenge Queens District Attorney Richard Brown's program of interrogating people accused of crimes before they are arraigned or have seen an attorney is unethical and unconstitutional. They were brought by individuals who were subjected to the pre-arraignment interrogation.
On March 20, 2012, the NYCLU filed an amicus brief in the three cases arguing that the interrogations violate the U.S. Constitution, New York law and ethical rules for attorneys.
It maintains that when people are arrested and held in jail solely on the assertion of a police officer, the
Constitution and New York law require that a judge quickly determine whether the arrest was valid, appoint an attorney, and determine the conditions of release so the person can return to work, home, and family pending the disposition of the criminal case.
Under the district attorney's program, wealthier suspects who can afford to retain an attorney are allowed to proceed directly to court for this hearing after their arrest. Suspects who have to wait for an attorney to be appointed by the court, however, are intercepted by the District Attorney and interrogated by prosecutors in a room just next to the courtroom.
The interrogation at issue in these cases begins with a standard script read to suspects, who have no lawyer present, misleadingly implying that the suspects will have no other opportunity to "tell us your story." All suspects, however, have the ability to "tell their story" after arraignment with the help and advice of defense counsel.
The NYCLU argues the script violates an ethical rule prohibiting lawyers from making misleading statements, and an ethical rule prohibiting lawyers—in this case prosecutors—from giving advice to non-lawyers whose interests are adverse to the lawyer’s interests.
The NYCLU's brief also argues that the program violates the Fifth Amendment right against self-incrimination, noting that in 2004 the U.S. Supreme Court struck down a similar misleading interrogation protocol in Missouri v. Seibert.
NYCLU Senior Staff Attorney Taylor Pendergrass, Associate Legal Director Christopher Dunn and Criminal Justice Fellow Susannah Karlsson are attorneys on the brief. Organizations joining the NYCLU on the brief are the American Civil Liberties Union, Brennan Center for Justice, New York State Defenders Association, Pre-Trial Justice Institute, New York Association of Criminal Defense Lawyers, Five Borough Defense, and The Bronx Defenders.