(APPEARANCES TENDERED.) CHIEF JUSTICE RABNER: GOOD AFTERNOON,
EVERYONE AND WELCOME. MS. HARRIGAN, PLEASE. MELINDA A. HARRIGAN:
THANK YOU, MR. CHIEF JUSTICE. GOOD AFTERNOON AND MAY IT PLEASE THE COURT.
I WOULD LIKE TO REQUEST A FEW MINUTES FOR REBUTTAL, IF NECESSARY. CHIEF
JUSTICE RABNER: THAT'S FINE. MELINDA A. HARRIGAN: FIRST, IN RESPONSE TO
THE DEFENSE IN THE INNOCENCE PROJECT'S STREAMING OF THIS CASE A FALSE CONFESSION BY OO
MERE TEENAGER. THE STATE WOULD LIKE TO CLEAR UP THE RECORD AND POINT OUT FOR
THIS COURT WHAT THIS CASE IS NOT ABOUT. THIS CASE IS NOT ABOUT A FALSE CONFESSION BECAUSE
THE DISCOVERY IN THIS CASE, WHICH THE DEFENDANT REVIEWED PRIOR TO PLEADING GUILTY CONFIRMED
THAT THE SEMEN FOUND INSIDE THE 11 YEAR OLD VICTIM IN THIS CASE MATCHED THE DEFENDANT'S
DNA. THIS IS NOT A CASE WHERE MIRANDA NEEDS TO BE OVERHAULED OR REVAMPED BECAUSE
THIS IS NOT AN APPEAL OF THE WRONGLY CONVICTED. THIS IS AN APPEAL THAT WAS WRONGLY DECIDED.
IN THIS CASE, THE APPELLATE SDWIGS R DEVIATED FROM IT'S TIME HONORED STANDARD
V REVIEW AND INSTEAD SUBSTITUTED ITS VIEW OF THE FABLTHS. IT IS THE STATE'S POSITION
THAT THE APPELLATE DIVISION'S DECISION IS REPLETE WITH ERROR, HOWEVER, I WOULD LIKE TO
FOCUS THIS COURT'S ATTENTION ON FIVE SPECIFIC FACTUAL ERRORS THAT ARE DISPOSITIVE TO A
CORRECT TOTALITY OF THE CIRCUMSTANCES ANALYSIS. NO. 1, THE DEFENDANT'S TRANSPORT
AN ARRIVAL AT THE POLICE STATION. TWO, THE LOCATION OF DEFENDANT'S FIRST
WITNESS INTERVIEW. THREE, THE INFORMATION DETECTIVES KNEW PRIOR TO THE
WITNESS INTERVIEW. FOUR, THE ADMINISTRATION OF MIRANDA WARNINGS PRIOR TO
BEING INTERROGATED. AND FIVE, THE APPELLATE DIVISION'S USE OF THE DEFENDANT'S
UNSUPPORTED MENTAL HEALTH ISSUES. FIRST, THERE IS NO DISPUTE THAT THE DEFENDANT
WAS TRANSPORTED PTD.3 MILES TO THE POLICE STATION IN A POLICE VEHICLE. HOWEVER,
THE TESTIMONY WAS THAT DEFENDANT VOLUNTEERED AT THE SCENE TO PROVIDE POLICE WITH ANY
INFORMATION THAT WOULD HELP THEIR INVESTIGATION. TO FACILITATE HIS WILLINGNESS TO HELP,
THE DEFENDANT VOLUNTEERED TO BE TRANSPORTED BY POLICE. IN THIS DECISION, THE
TRIAL COURT FOUND NO OBJECTIVE FACTS OR CIRCUMSTANCES TO INDICATE THAT THE DEFENDANT
WAS IN CUSTODY, AT THAT TIME. THE TRIAL COURT FOUND THAT THE DEFENDANT WAS
NOT, QUOTE, ORDERED INTO A POLICE VEHICLE AGAINST HIS WHEEL OR TRANSFERRED UNDER ANY KIND
OF RESTRAINT, END QUOTE. HOWEVER ON THE EXACT SAME FACTS THE APPELLATE DIVISION
HELD THAT THE DEFENDANT WAS IN POLICE CUSTODY THE MOMENT HE ENTERED THE POLICE VEHICLE
BECAUSE HE WAS, QUOTE, A TEENAGE BOY, TAKEN BY POLICE IN THE BACK SEAT OF A MARKED POLICE
VEHICLE WITH NO APPARENT MEANS TO GET HOME AN WAS NOT TOLD HE TO LEAVE, END QUOTE.
NOT ONLY WAS THIS HOLDING IN DIRECT CONTRADICTION OF THE FACTS ON RECORD IT IGNORED THIS
COURT'S DECISION IN STATE V. W B HOLDING THAT A PERSON IS NOT IN CUSTODY WHEN HE OR SHE
VOLUNTARILY AGREES TO BE TRANCE ARE SUPPORTED BY THE POLICE TO THE POLICE STATION STATION.
DETECTIVE RAYNOR ALSO TESTIFIED WHEN HE ENCOUNTERED THE DEFENDANT AT THE POLICE
STATION HE WAS SEATED IN A COMMON AREA IN AND AMONG THE OTHER WITNESSES WHO WERE THERE
TO GIVE STATEMENTS, INCLUDING THE VICTIM'S FAMILIAR LEECHLT. EQUALLY AS
IMPORTANT, DETECTIVE RAYNOR ALSO TESTIFIED AS TO THE LOGISTICS OF THE KEANSBURG POLICE
STATION AS THEY, THE POST SANDY MAKE SHIFT POLICE STATION HOUSED IN A CHURCH.
DETECTIVE RAYNOR TESTIFIED THAT THE AREA WAS CROWDED WITH OTHER WITNESSES WEIGHT TO BE
INTERVIEWED INCLUDING THE VICTIM'S FAMILY. IN OTHER WORDS, THE DEFENDANT WAS
TREATED NO DIFFERENTLY BY POLICE THAN ANY OTHER WITNESS IN THE STATION WAITING TO BE
INTERVIEWED. MORE SPECIFICALLY, NO ONE THAT WAS WEIGHT TO BE INTERVIEWED THAT
DAY WAS ALLOWED TO GET UP AN MOVE AROUND THE POLICE STATION WITHOUT AN ESCORT FROM AN
EMPLOYEE. HOWEVER, THE APPELLATE SDWIGS OMITTED THESE POSITION FACTS FROM IT'S
ANALYSIS AND HELD THAT THE DEFENDANT WAS WAS IN CUSTODY BECAUSE HE WAS PLACED IN AN AREA
WHERE HE WAS NOT ALLOWED TO MOVE ABOUT FREELY. NOTING THE APPELLATE DIVISION'S
TOTALITY OF THE CIRCUMSTANCES, THEY RECOGNIZED THE FACTUAL IMPORTANCE THAT ALL WITNESSES
SEATED IN THAT AREA AND WEIGHT TO BE INTERVIEWED WERE SUBJECT TO THE EXACT SAME SECURITY
ISSUES INCLUDING THE VICTIM'S FAMILY. IT WAS THAN THAT THE DEFENDANT COULD
NOT LEAVE FREELY IT WAS THAT THE DEFENDANT COULD NOT ROAM AROUND THE POLICE STATION FREELY.
SECOND, DETECTIVE RAYNOR TESTIFIED THAT THERE WERE TWO INTERVIEW ROOMS ONE
ON THE FIRST FLOOR AND ONE ON THE SECOND FLOOR. THE DEFENDANT WAS TAKEN TO THE SECOND
FLOOR INTERVIEW ROOM TO GIVE HIS WITNESS STATEMENT ONLY BECAUSE THE INTERVIEW ROOM ON
THE FIRST FLOOR WAS DK OCCUPIED. ON THOSE FACTS THE TRIAL COURT FOUND NO
SIGNIFICANCE TO THE SECOND-FLOOR LOCATION BASED ON THE TESTIMONY PRESENTED HOWEVER THE
APPELLATE SDWIGS TOOK THE EXACT SAME LOGISTIC FACTS AND HAD THE DEFENDANT IN CUSTODY SUCH
THAT MIRANDA WAS REQUIRED BECAUSE THE DEFENDANT WAS QUOTE, FURTHER, TAKEN FURTHER INTO
THE RECESSES OF THE STATIONHOUSE. THIRD, THE APPELLATE DIVISION.
.... AND WERE ABLE TO FORGE A THEORY THAT DETECTIVES TARGETED DEFENDANT FROM THE
OUTSET. HOWEVER, DETECTIVE RAIP SPECIFICALLY TESTIFIED THAT THEY DID NOT DEEM
THE DEFENDANT A SUSPECT AT THE TIME OF HIS WIPS INTERVIEW. THE TESTIMONY WAS
CLEAR THAT AT THAT TIME, DETECTIVES HAD NO INFORMATION DIRECTLY LINKING THE DEFENDANT
TO THE CRIME SCENE. WHAT DETECTIVES KNEW THAT MORNING WAS THAT THERE WERE
TWO WINDOWS IN THAT APARTMENT COMPLEX THAT FACED THE SHED WHERE THE BODY WAS FOUND, NOT
JUST DEFENDANT'S WINDOW. DETECTIVES ALSO KNEW THAT THE DEFENDANT'S AMOUNT
HAD BEEN SEARCHED TWICE BY POLICE YIELDING NO EVIDENCE THAT THE CHILD WAS EVER INSIDE
HIS APARTMENT. APPEND, AS THIS WAS AN ONGOING AN DEVELOPING INVESTIGATION
DETECTIVES DID NOT KNOW UNTIL MUCH LATER THAT DAY WHEN THEY INTERVIEWED A FAMILY MEMBER
OF THE DEFENDANT THAT WAS LIVING IN THE HOME THAT THE BEDDING THAT THE CHILD WAS WRAPPED
IN CAME FROM INSIDE THE DEFENDANT'S APARTMENT. THERE WAS SIFRN PLEA NO OBJECTIVE
FACTS OR EVIDENCE ON THIS RECORD TO SUPPORT THE APPELLATE DIVISION'S FINDINGS THAT THE
DETECTIVES IMMEDIATELY TARGETED THE DEFENDANT AS A TARGET FOR MURDER SDMRFRJT I KNOW YOU HAVE
TWO MORE POINTS TO MAKE, I DIDN'T WANT TO INTERRUPT YOUR FIRST FIVE MINUTES.
DOES THE FACT OF WHY THEY CHOSE THIS INTERVIEW ROOM AS OPPOSED TO THAT INTERVIEW ROOM
OR WHETHER OTHERS HAD TO BE ESCORTED REALLY MATTER IN THIS CALCULUS HERE, DOESN'T IT BOIL
DOWN TO UNDER THE CIRCUMSTANCES REGARDLESS OF WHAT CREATED THOSE CIRCUMSTANCES THE
DEFENDANT, A REASONABLE PERSON IN THE DEFENDANT'S POSITION WOULD BELIEVE HE OR SHE WAS
FREE TO LEAVE? WHO CARES ABOUT SANDY? WHO CARES ABOUT THE
MAKE SHIFT ROOMS? HE WAS THERE. DID THE SITUATION CREATE A REASONABLE
PERSON'S BELIEF THAT THAT INDIVIDUAL COULD NOT LEAVE. MELINDA A. HARRIGAN:
I WOULD SAY NO YOUR HONOR AN I THINK IT IS IMPORTANT BECAUSE THE APPELLATE DIVISION TOOK
GREAT PAINS TO CITE THESE FACTS WHEN THEY FOUND THAT THE DEFENDANT WAS IN CUSTODY DURING
THE WITNESS INTERVIEW SUCH THAT HE SHOULD HAVE BEEN GIVEN MIRANDA. CHIEF
JUSTICE RABNER: MY QUESTION IS DOES THE ADDED COLORED COMMENTARY FACTOR INTO THE ANALYSIS
AS TO WHY THE SET UP WAS THE WAY IT WAS BECAUSE OF THE SUPER STORM SANDY OR OTHER REASONS.
MELINDA A. HARRIGAN: WE LOOK AT OBJECTIVE FACTORS IN THE TOTALITY OF
CIRCUMSTANCES ANALYSIS. CHIEF JUSTICE RABNER: PRECISELY SO WHY DOES IT MATTER,
THE REASON FOR THOSE OBJECTIVE FACTORS SHUPT WE JUST BE LOOKING AT WHERE HE WAS INTERVIEWED
WHAT THE SITUATION WAS AMONG THE DIFFERENT REASONS WITH REGARD TO WHY ANYBODY PLANNED
IT THAT WAY. MELINDA A. HARRIGAN: WELL, THE APPELLATE DIVISION SAID THAT
THE POLICE PLANNED IT THAT WAY WHICH THE STATE DISAGREES WITH AND THAT WAS PART OF THEIR
OPINION THAT THE STATE FINDS EGREGIOUS BECAUSE THE POLICE HAD NO -- THE POLICE COULD NOT
PLAN IT THIS WAY. CHIEF JUSTICE RABNER: LET ME ASK IT A DIFFERENT WAY.
TELL US WHY IT MATTERS THAT SUPER STORM SANDY AFFECTED THE LAYOUT OF WHAT TOOK
PLACE. MELINDA A. HARRIGAN: BECAUSE THEY WEREN'T IN A REGULAR POLICE STATION
SO WHEN THE DEFENDANT ARRIVED AT THE STATION HE ENTERED INTO A CHURCH. I MEAN, IT DIDN'T
LOOK LIKE A POLICE STATION. I THINK THAT'S SIGNIFICANT AND SO HE WAS SEATED IN AND AMONG
AROUND OTHER PEOPLE THAT WERE WEIGHT TO BE WAITING TO BE INTERVIEWED ALONG WITH OTHER
EMPLOYEES. THE APPELLATE DIVISION SAID HE WAS IN CUSTODY BECAUSE SOMEHOW THE POLICE SAT
HIM NEXT TO A HOLDING HOLE AND THEY CITED THIS PARTICULAR FACT WHEN THEY WERE DOING THE
EM MEAL ANALYSIS AND THEY SAID SIT WAS SORT OF LIKE A.M. MEAL BECAUSE HE WAS PLACED THERE.
JUSTICE PATTERSON: YOU'RE SAYING HE WAS TREATED THE SAME EQUIVALENTLY TO
THE VICTIM'S FAMILY AND HE WAS SITTING WITH THE VICTIM'S FAMILY AND HE WASN'T TREATED
ANY DIFFERENTLY FROM THEM OR ANYBODY ELSE. MELINDA A. HARRIGAN: FIRST OF ALL,
HE WAS NOT IN CUSTODY THE MOMENT HE GOT INTO THAT POLICE CAR BECAUSE HE VOLUNTEERED TO
GET INTO IT. HE WAS NOT IN CUSTODY WHEN HE ARRIVED AT THE POLICE STATION SIMPLY BECAUSE
HE COULDN'T MOOU AROUND. THE APPELLATE DIVISION HELD BECAUSE HE COULD NOT MOVE AROUND
HE WAS IN CUSTODY. YOU CAN'T DIVORCE THE FACTS OF THE CASE. THE FACTS OF THE
-- THE LOGISTICS OF THE POLICE STATION FROM THE FACT THAT THE APPELLATE DIVISION FOUND
THOSE FACTS TO BE DISPOSITIVE THAT HE WAS IN CUSTODY AT THAT TIME. CHIEF
JUSTICE RABNER: I AM NOT FOCUSED SO MUCH ON THE APPELLATE DIVISION'S FINDINGS I AM FOCUSED
ON YOUR ARGUMENTS TO US. MELINDA A. HARRIGAN: OKAY. CHIEF JUSTICE
RABNER: THAT THERE IS RELEVANCY TO WHY THE POLICE STATION WAS SET UP IN THE WAY IT WAS,
THERE IS RELEVANCY TO HOW OTHERS WERE TREATED REGARDLESS OF HOW HE EVEN KNEW HOW OTHERS
WERE BEING TREATED IF THE TEST IS, WOULD A REASONABLE PERSON FACED WITH THE
CIRCUMSTANCES THAT THE DEFENDANT WAS FEEL FREE TO LEAVE. MELINDA A. HARRIGAN:
AND I WOULD SAY SHE WAS -- THERE IS NO OBJECTIVE CIRCUMSTANCES TO THINK THAT THE DEFENDANT
THOUGHT HE WASN'T FREE TO LEAVE. CHIEF JUSTICE RABNER: I THINK WE'RE TALKING
PAST EACH OTHER; OKAY? MELINDA A. HARRIGAN: I THINK I UNDERSTAND YOUR QUESTION
IS WOULD THE DEFENDANT FEEL THAT HE WAS FREE TO LEAVE, BUT YOU HAVE TO LOOK AT THE
CIRCUMSTANCES TO DETERMINE IF THE DEFENDANT WAS TREE TO LEAVE. JUSTICE SOLOMON:
I THOUGHT YOUR ARGUMENT WAS THE APPELLATE AGREEING WITH THE CHIEF THAT THE APPELLATE
DIVISION RELIED ON THESE FACTORS AN ISSUES THAT HAVE NO RELEVANCE TO DETERMINING CUSTODY.
I THOUGHT THAT'S WHERE YOU WERE HEADED. ARE YOU HEADED SOMEWHERE ELSE?
MELINDA A. HARRIGAN: THOSE FACTS DO NOT DETERMINE CUSTODY AN THAT'S WHAT THE
APPELLATE DIVISION HELD. JUSTICE WAINER APTER: I THINK THE CHIEF EASE
QUESTION IS WHAT ABOUT A REASONABLE PERSON IN THE DEFENDANT'S SITUATION WOULD KNOW SO WHEN
IT COMES TO SUPER STORM SANDY PERHAPS THE CHIEF WAS ASKING WAS THERE ANY SIGN SAYING EXCUSE
OUR APPEARANCE, WE ARE IN THIS LOCATION ONLY BECAUSE OF SUPER STORM SANDY, OTHERWISE
THE DEFENDANT WOULD HAVE NO WAY TO KNOW THAT OR WHY THAT WOULD BE RELEVANT TO WHETHER HE WAS
FREE TO GO, WHY IS THAT SOMETHING WE CAN CONSIDER? MELINDA A. HARRIGAN:
BECAUSE THE DEFENDANT LIVED IN THAT AREA. THE APARTMENT BUILDING WAS ONLY .3 MILES FROM
-- SO THE DEFENDANT WOULD KNOW THAT THAT WAS A CHURCH AND HE WAS BEING BROUGHT INTO A
CHURCH AS A MAKE SHIFT POLICE STATION SO I THINK THE DEFENDANT -- AGAIN, HE WAS SEATED
IN AND AMONG OTHER WITNESSES AN SO THEY WERE ALL TREATED THE EXACT SAME WAY AND SO NO,
I DON'T THINK TO ANSWER THE DHEEF EASE QUESTION THAT THE DEFENDANT IN THIS PARTICULAR
SITUATION, WHERE HE WAS, WHERE HE WAS SEATED AND WHO HE WAS AMONG WOULD THINK THAT HE
WASN'T FREE TO GET UP AN LEAVE. THE ISSUE WAS, IF HE WANTED TO GET UP AND
LEAVE HE WOULD HAVE HAD TO HAVE BEEN ESCORTED OUT AND THE APPELLATE DIVISION TOOK GREAT
SIGNIFICANCE TO THE FACT THAT HE COULDN'T GET UP AND MOVER AROUND AND WHAT I AM TRYING
TO CONVEY TO THIS COURT IS NOBODY WAS ABLE TO GET UP AND MOVE AROUND BECAUSE IT WAS A
BIG ROOM THAT HAD CUBICLES AN STUFF IN IT. THERE WERE EMPLOYEES AND HOLDING ROOMS AND
PEOPLE. THEY WERE ALL IN THIS AREA. EVEN TO GO TO THE BATHROOM YOU HAD TO BE ESCORTED
BY POLICE. JUSTICE WAINER APTER: ARE YOU SAY TG THAT THE DEFENDANT WOULD HAVE
KNOWN NOT ONLY THAT THAT WAS OBJECTIVELY THE CASE, BUT THE DEFENDANT WOULD HAVE KNOWN
THAT EVERYONE ELSE WAS BEING TREATED THE SAME WAY SO FOR EXAMPLE, THE DEFENDANT WOULD HAVE
SEEN THE VICTIM'S MOTHER ASK TO GO TO THE BATHROOM AND NEED TO BEES SKOERTD OR THE
DEFENDANT WOULD HAVE SEEN ONE OF THE VICTIM'S OTHER FAMILY MEMBERS ASK TO SMOKE A CIGARETTE
AN BE ESCORTED SUCH THAT THE DEFENDANT WOULD HAVE KNOWN THAT HE WAS BEING TREATED IN THE
SAME WAY AS ALL OTHER WITNESSES. MELINDA A. HARRIGAN: YES, YOUR HONOR.
ABSOLUTELY. CHIEF JUSTICE RABNER: HOW DO WE KNOW THAT FROM THE RECORD.
MELINDA A. HARRIGAN: I THINK WE KNOW THAT FROM THE RECORD FROM DETECTIVE
RAYNOR'S TESTIMONY THAT EVERYBODY WAS TREATED THE SAME. DETECTIVE RAYNOR SPECIFICALLY
TESTIFIED THAT THE DEFENDANT WAS TREATED NO DIFFERENTLY. CHIEF JUSTICE
RABNER: HOW DO WE KNOW THAT THE DEFENDANT KNEW THAT HE WAS BEING TREATED NO DIFFERENT
LY BASED ON THE RECORD? MELINDA A. HARRIGAN: I, I -- CHIEF JUSTICE
RABNER: HOW LONG WAS HE IN THE WAITING ROOM BEFORE 11:10 WHEN HE WAS ESCORTED OUP TO THE
SECOND FLOOR INTERVIEW ROOM. MELINDA A. HARRIGAN: FROM WHAT I UNDERSTAND,
HE WASN'T THERE THAT LONG. JUSTICE PIERRE-LOUIS: SO HE MIGHT NOT HAVE SEEN
THE VICTIM'S FAMILY OR OTHER INDIVIDUALS IN THAT WEIGHT AREA ASKING TO BE ESCORTED, ASKING
TO BE TAKEN TO THE BATHROOM. I THINK THAT'S THE TESTIMONY WE'RE GETTING AT. WE KNOW
THE TESTIMONY THAT EVERYBODY WAS TREATED THE SAME BUT HOW DO WE KNOW FROM THE RECORD THAT
THE DEFENDANT AS HE WAS SITTING THERE IN THAT WAITING ROOM FOR THAT SHORT PERIOD OF TIME
WAS AWARE OF THAT FACT. MELINDA A. HARRIGAN: I THINK SIMPLY BECAUSE HE WAS
SEATED IN THERE WITH THE VICTIM'S FAMILY. HE SAT HIMSELF ON A BENCH IN AND AMONG ALL
THE OTHER WITNESSES. THERE IS NO TESTIMONY -- DEKTD RAYNOR TESTIFIED THAT IT WAS VERY
CROWDED BECAUSE THERE WERE OTHER WITNESSES THAT WERE THERE BECAUSE IT WAS AN APARTMENT
COMPLEX SO THERE WERE SEVERAL -- OBVIOUSLY, THERE WERE SEVERAL FAMILIES THAT LIVED IN
THAT APARTMENT COMPLEX THAT THE DETECTIVES WANTED TO INTERVIEW. THE DETECTIVE NOTED IT
WAS VERY CROWDED. WHEN YOU'RE SEATED AMONG ALL THESE PEOPLE THE ONLY SIGNIFICANCE
WAS IT WAS IN A COMMON AREA OF THE POLICE STATION WHERE THEY HAD TO BE ESCORTED.
CHIEF JUSTICE RABNER: SPEAKING JUST FOR ONE HAVING RAISED THIS WHOLE AREA I AM NOT SURE
THAT IT IS THE MOST SIGNIFICANT CONCERN AND I AM NOT QUITE SURE WHY YOU ARE FIGHTING SO
HARD TO DEFERRED IT BUT WE UNDERSTAND YOUR POSITION. IS THE .3 TENTHS OF A
MILE IN THE RECORD BEFORE THE TRIAL JUDGE. MELINDA A. HARRIGAN: I BELIEVE
SO, YOUR HONOR. I DON'T KNOW FOR SURE. I KNOW THAT AT THIS TIME WAS A SHORT DISTANCE.
I DON'T KNOW IF THE 3.3 WAS PART OF THE RECORD. CHIEF JUSTICE RABNER: PERHAPS
AT THE END OF THE ARGUMENT IF YOU COULD POINT US TO WHERE THAT IS IN THE TRANSCRIPT, THAT
WILL BE HELPFUL. MELINDA A. HARRIGAN: I CERTAINLY WILL.
JUSTICE WAINER APTER: ONE OTHER FACTUAL DISPUTE I BELIEVE THE DEFENDANT WAS PLACED IN
HIS SEAT. IS THERE TESTIMONY IN THE RECORD THAT THE DEFENDANT CHOSE HIS OWN
SEAT? MELINDA A. HARRIGAN: ACTUALLY, THE -- LET'S SEE. IT IS
IN THE RECORD. ACTUALLY, THE TRIAL JUDGE HELD THAT HE WAS -- HE TOOK HIS OWN SEAT THERE
SO IT HAD TO BE FROM THE RECORD. IT HAD TO BE FROM THE TESTIMONY. CHIEF
JUSTICE RABNER: PLEASE GO AHEAD. MELINDA A. HARRIGAN: TO MY FOURTH POINT,
WHEN ADMINISTERING THE MIRANDA WARNINGS DETECTIVES DID NOT DOWN PLAY THEIR
SIGNIFICANCE AN SO HOLDING THE APPELLATE DIVISION PLUCKED OUT A SINGLE SENTENCE BECAUSE
WE ARE IN A POLICE STATION, END QUOTE AND HELD THAT THAT STATEMENT CLEARLY MINIMIZED THE
WARNINGS. WHAT THE APPELLATE DIVISION DID NOT CONSIDER IN THEIR ANALYSIS WAS DETECTIVE
RAYNOR'S ENTIRE COLLOQUY WITH THE DEFENDANT AND THE FACT THAT DETECTIVE RAYNOR SPECIFICALLY
TOLD THE DEFENDANT BECAUSE WE ARE IN A POLICE STATION AND BECAUSE WE WANT TO TALK ABOUT
THIS. END QUOTE. PUTTING DETECTIVE RAYNOR'S WORDS IN THEIR PROPER CONTEXT
HE WAS POINTING DIRECTLY TO AND NOT AWAY FROM THE DEFENDANT'S RIGHT TO REMAIN SILENT.
CHIEF JUSTICE RABNER: WHAT IS THE CONTEXTUAL HELP YOU DRAW FROM HIM SAYING
WE'RE IN THE POLICE DEPARTMENT AN THEREFORE WE WANTED TO TALK TO YOU, WHAT CONTEXT
UNDERMINES THAT? HOW DOES THE PASSAGE YOU QUOTED FROM TWO LINES DOWN UNDER
CUT THAT? MELINDA A. HARRIGAN: WELL, BECAUSE -- AND AGAIN, I HATE TO BRING
UP A POINT THAT THE COURT DOESN'T THINK IS RELEVANT BUT IT IS IN SO MANY SITUATIONS TODD
HINDS FOR THE STATE CASE WAS THAT, AGAIN, I THINK, DETECTIVE RAYNOR TELLING THE DEFENDANT
BECAUSE WE'RE IN A POLICE STATION AN WE WANT TO TALK TO YOU, I THINK THE FACT THAT THEY
WALKED HIM INTO A CHURCH IS IMPORTANT. I THINK IT'S IMPORTANT FOR DETECTIVE RAYNOR TO
SAY THIS CONVERSATION IS GOING TO GET SERIOUS YOU'RE IN A POLICE STATION BECAUSE WE WANT
TO TALK TO YOU ABOUT THIS SO THAT DOESN'T MINIMIZE THE WARNING. JUSTICE
PATTERSON: WE'RE GOING TO TALK TO YOU ABOUT THIS, MEANING, THE MISSING CHILD, RIGHT?
MELINDA A. HARRIGAN: THE CASE, YES. CHIEF JUSTICE RABNER: IS
IT A GOOD IDEA GENERALLY SPEAKING FOR OFFICERS TO SAY BECAUSE WE'RE IN A POLICE DEPARTMENT,
I AM GOING TO READ YOU YOUR RIGHTS. MELINDA A. HARRIGAN: NO AND AT THIS
POINT THE, THEY SPECIFICALLY SAID ONE STATEMENT FROM A POLICE OFFICER DOESN'T REQUIRE
SUPPRESSION OF A STATEMENT. IT WOULD HAVE TO BE TAKEN IN ITS PROPER CONTEXT. WHEN YOU
TAKE DETECTIVE RAYNOR'S WORDS BECAUSE WE'RE IN A POLICE STATION AND YOU PUT THEM IN LINE
IN CONTEXT WITH EVERYTHING THAT DETECTIVE RAYNOR SAID HE WAS NOT MINIMIZING THE WARNINGS.
JUSTICE PIERRE-LOUIS: HE ALSO SAID, YOU AND I HAVE SPOKEN TO EACH OTHER
TODAY AND IT HAS BEEN A VERY EASY CONVERSATION, ALL RIGHT, AND I EXPECT THAT'S WHERE
WE'RE GOING TO CONTINUE ON WITH THIS OBVIOUSLY. MELINDA A. HARRIGAN: OKAY.
JUSTICE PIERRE-LOUIS: HOW DOES THAT FACTOR INTO HE'S GIVING THE WARNINGS
AND SAYING WHEL, WELL WE'VE BEEN TALKING OBVIOUSLY WE'RE GOING TO CONTINUE IN THE SAME
MANNER BUT HERE ARE THESE WARNINGS BECAUSE WE ARE IN A POLICE STATION. MELINDA A.
HARRIGAN: DETECTIVE RAYNOR SAID WE'VE HAD AN EASY CONVERSATION AND THAT'S HOW I EXPECT
IT TO CONTINUE. JUSTICE PIERRE-LOUIS: BUT, FOR AN OFFER TO GIVE THEM
WARNINGS AND TELL THEM THEY DON'T NEED TO KOVENT THE CONVERSATION, HOW DOES THAT PLAY INTO
THE ARGUMENT THAT THOSE WARNINGS WERE MINIMIZE MIEZED BEFORE HE EVEN GIVES THOSE WARNINGS,
HE REFERS BACK TO THE PREVIOUS CONVERSATION ARN SAYS WELL, I EXPECT WE'RE GOING TO CONTINUE
THIS OBVIOUSLY BUT BECAUSE WE'RE IN A POLICE STATION I HAVE TO GIVE YOU THESE WARNGSZ.
MELINDA A. HARRIGAN: THAT'S OUT OF CONTEXT, YOUR HONOR, I WOULD SAY THAT'S
NOT WHAT HE SAID. HE SAID WE WERE HAVING AN EASY CONVERSATION AND I HOPE IT CONTINUES
THAT WAY BUT WE ARE IN A POLICE STATION AND BECAUSE WE WANT TO TALK TO PEOPLE -- HE
STOPPED, BECAUSE WE WANT TO TALK ABOUT THIS I WANT TO GIVE YOU THESE WARNGSZ. THE ONLY
THING DETECTIVE RAYNOR WAS SAYING TO THE DEFENDANT IN THAT COLLOQUY IS WE'VE BEEN
TALKING AND WE'VE HAD AN EASY CONVERSATION. I THINK THAT IS A LINE OF DEMARCATION WHEN
DETECTIVE RAYNOR WAS SAYING I AM GOING TO GIVE YOU THESE WARNINGS. I REALIZE IT HAS BEEN
AN EASY CONVERSATION AND I WANT IT TO CONTINUE THAT WAY BUT THAT'S A LINE OF DEMARCATION
THAT THIS CONVERSATION IS GOING TO GET A LOT MORE SILENT I AM GOING TO GIVE YOU MIRANDA
WARNINGS AND SO SO YOU DO HAVE A RIGHT TO REMAIN SILENT. JUSTICE PIERRE-LOUIS:
HE SAYS I EXPECT THALS EASE WHERE WE'RE GOING TO CONTINUE ON WITH THIS OBVIOUSLY.
MELINDA A. HARRIGAN: OKAY. JUSTICE PIERRE-LOUIS: WHICH IS A LITTLE DIFFERENT
THAN I HOPE WE CONTINUE ON WITH THIS, I HOPE -- YOU KNOW, I EXPECT OBVIOUSLY THAT THIS IS
GOING TO BE HOW IT IS GOING TO CONTINUE. MELINDA A. HARRIGAN: I THINK THE
OBVIOUSLY GOES BACK TO THE EASY CONVERSATION THAT THEY HAD AND I GUESS IT'S JUST THE RAPPORT.
I THINK DETECTIVE RAYNOR IS TALKING ABOUT THE RAPPORT THAT HE HAD WITH THE DEFENDANT.
EVEN WHEN YOU WATCH THE VIDEO OF THE INTERROGATION, JUST LIKE DETECTIVE RAYNOR,
JUST LIKE THE TRIAL COURT SAID. I THINK DENTH RAYNOR WAS POINTING OUT WE'VE HAD A GOOD
RAPPORT BETWEEN ONE ANOTHER BUT HERE IS A LINE OF DEMARCATION I AM GOING TO REMIND YOU
THAT YOU'RE IN A POLICE STATION AND THAT I WANT TO TALK TO YOU ABOUT THIS AND SO I AM
GOING TO GIVE YOU SOME MIRANDA RIGHTS. HE DIDN'T SAY IT AFTERWARDS HE SAID IT BEFORE,
THEN HE WENT INTO THE MIRANDA RIGHTS. I DON'T SEE HOW DETECTIVE RAYNOR'S WORDS, WHEN
HE WAS BEING FRIENDLY AND OPEN WITH THE DEFENDANT MINIMIZED THE MIRANDA WARNINGS. I THINK
IT MADE A LINE OF DEMARCATION THAT THIS CONVERSATION IS GOING IS TO GET SERIOUS WHICH
IS WHY MIRANDA WARNINGS ARE GIVEN SOL SOL RIGHT. JUSTICE SOLOMON: RIGHT BEFORE
HE READ THE MIRANDA WARNINGS HE SPECIFICALLY TOLD THEM AFTER ALL THAT BACK AND FORTH WHICH
I GUESS WE CAN INTERPRET WHATEVER WAY WE WANT THAT HE IS GOING TO TALK TO HIM ABOUT THIS
YOUNG GIRL. HE SPECIFICALLY SAID THAT AND THEN LAUNCHED INTO THE MIRANDA RIGHTS.
MELINDA A. HARRIGAN: CORRECT. JUSTICE WAINER APTER: WHAT ABOUT BEFORE THE
DEFENDANT CONFESSED BUT AFTER THE MIRANDA WARNINGS WERE GIVEN, BOTH DETECTIVES I THINK
SAID VARIOUS STATEMENTS LIKE MY JOB IS TO SIT HERE AND HELP YOU THROUGH THIS. OKAY, I
KNOW MISTAKES HAPPEN, I KNOW THINGS HAPPEN I KNOW YOU'RE NOT A MONSTER. THIS IS THE TIME
TO TALK TO US, TALK TO US. HELP US EXPLAIN THIS, HELP US EXPLAIN. I WANT YOU TO UNDERSTAND
THE GRAVITY THAT YOU'RE NOT BEING JUDGED YOU'RE NOT BEING LOOKED AT. THINGS HAPPEN.
IF THERE IS A REASON. IF THERE IS AN EXCUSE. NOBODY IS PERFECT, THE REASON HERE IS
TALKING. IT'S DIALOGUE. IT'S EXPLANATION. YOU ARE' A SMART YOUNG MAN. WE CAN WORK THROUGH
THAT AND WE CAN TALK THROUGH THAT HOW WAS ALL OF THAT NOT MINIMIZING THE WARNINGS AND
TELLING DEFENDANT THAT HE WOULD BE BETTER OFF BY TALKING? MELINDA A. HARRIGAN:
WELL, DETECTIVE RAYNOR NEVER SAID HE WOULD BE BETTER OFF BY TAUGING. HE NEVER ACTUALLY
SAID THAT. JUSTICE WAINER APTER: HE SAID THE RECOURSE HERE IS TALKING.
IT'S DIALOGUE. IT'S EXPLANATION. THE WORD RECOURSE IMPLIES THE BETTER OPTION FOR YOU
TO IS TO TALK AND TO HAVE A DIALOGUE. MELINDA A. HARRIGAN: YOU KNOW, I
MEAN, WE HAVE TO REMEMBER THAT THIS IS AN INTERROGATION. THEY ARE TRYING TO GET
INFORMATION OUT OF THE DEFENDANT AND THE RECOURSE -- I THINK THE RECOURSE IS, AGAIN, YOU HAVE
TO PUT ALL OF THOSE STATEMENTS INTO THE PROPER CONTEXT OF WHAT DETECTIVE RAYNOR WAS SAYING.
FOR INSTANCE, THE -- YOU'RE NOT BEING LOOKED AT, YOU'RE NOT BEING JUDGED IS
19 LINES INTO A 57 LINE COLLOQUY AND YOU CAN PLUCK OUT ANYTHING, ANY ONE SENTENCE AND
YOU CAN ATTACH MEANING TO IT BUT WHEN YOU PUT IT IN ITS PROPER CONTEXT DETECTIVE RAYNOR
WAS TALKING TO THE DEFENDANT. HE ALREADY KNEW THAT THE DEFENDANT WAS LYING AND SO HE WAS
TRYING TO GET THE DEFENDANT TO TELL HIM WHAT HAPPENED TO THIS LITTLE GIRL. AND
IT IS PROPER -- HE DIDN'T PROMISE HIM ANYTHING. HE WASN'T USING UNFAIR TACTICS. HE WAS
NLTS SAYING, UVEN, IF YOU TALK TO ME NOTHING BAD IS GOING TO HAPPEN TO YOU. HE DIDN'T
SAY SOMETHING LIKE YOU'RE ONLY GOING TO GET COUNSELING YOU'RE NOT GOING TO GO TO JAIL.
DETECTIVE RAYNOR WAS CONDUCTING AN INVESTIGATION. HE WAS TRYING TO GET THE DEFENDANT
TO CONFESS TO WHAT HE DID. THERE IS NO WAY AROUND THAT BUT WHAT IS IMPORTANT IS WHAT
DETECTIVE RAYNOR SAID WAS NOT TELLING THE DEFENDANT YOU ARE GOING TO HAVE TO TELL ME
THIS AND IF YOU DO NOTHING BAD WILL HAPPEN TO YOU. THAT IS NOT WHAT HAPPENED
IN THAT COLLOQUY. THIS WAS A SEASONED HOMICIDE DETECTIVE TRYING TO GET -- IN AN
INTERROGATION WITH THE DEFENDANT WHO THEY SUSPECT COMMITTED SEXUAL ASSAULT AND MURDER.
CHIEF JUSTICE RABNER: YOU RECOLLECTLY CATEGORY RIDESED THE SECOND
INTERVIEW VIEW AS AN INTERROGATION. YOU WE KNOW THE DETECTIVE SAID IT ENCOMPASSED
WHAT HAPPENED IN THE FIRST INTERROGATION. WE'LL JUST LITERALLY GOEFR EVERYTHING THAT
WE TALKED ABOUT EARLIER TODAY. WHY IS THE FIRST INTERVIEWS NOT AN INTERROGATION.
MELINDA A. HARRIGAN: WELL, BECAUSE HE WASN'T NOOUGS, IN CUSTODY AN HE WASN'T
BEING TROEG GATD. CHIEF JUSTICE RABNER: WHY WAS IT NOT AN INTERROGATION
COVERING MUCH THE SAME MATERIAL THAT WE KNOW WAS AN INTERROGATION IN THE SECOND INTERVIEW.
MELINDA A. HARRIGAN: WELL, COVERING SOME. I MEAN, YOU KNOW, AGAIN, THERE IS
A LINE OF DEMARCATION THERE AND WE DON'T HAVE A RECORD OF THE FIRST INTERVIEW, BUT IT'S
THE STATE'S POSITION AND I THINK FROM THE RECORD IT SUPPORTS THE STATE'S POSITION LIKE
LIKE I SAID, HE WAS NLTS IN CUSTODY. THIS WAS INVESTIGATORY QUESTIONING. WHEN THE
DEFENDANT WAS AT THE CRIME SCENE, THE DEFENDANT AGREED TO COME BACK BECAUSE HE TOLD POLICE
AT THE SCENE THAT HE HAD SEEN THE LITTLE GIRL THE DAY BEFORE SO THE POLICE WERE TRYING
TO ESTABLISH A TIME LINE AND SO THOSE WERE THE QUESTIONS THAT THEY WERE ASKING. WHERE
DID YOU SEE HER LAST AN THINGS LIKE THAT. CHIEF JUSTICE RABNER: IF I COULD.
MELINDA A. HARRIGAN: OKAY. CHIEF JUSTICE RABNER: THERE IS
AN EXTENSIVE PERIOD WHERE THE DEFENDANT IS QUESTIONED ABOUT HIS WHEREABOUTS DURING THE
FIRST INTERVIEW. IS THAT ACCURATE? MELINDA A. HARRIGAN: WE
DON'T KNOW BECAUSE THERE WAS NO RECORDING OR TRANSCRIPT OF THE FIRST WITNESS INTERVIEW.
CHIEF JUSTICE RABNER: YOU'RE ASKING US NOT TO ACCEPT DETECTIVE RAYNOR'S WORDS
AT PAGE 7 OF THE TRANSCRIPT? MELINDA A. HARRIGAN: YOU'RE ASKING ME HIS
EXACT WORDS. THAT, I DON'T KNOW. DETECTIVE RAYNOR DID TESTIFY THAT HE HAD SOME NOTES.
WHEN THE RECORDING STARTS, HE SAYS ON THE VIDEO THAT, YOU KNOW, WE'VE TALKED
BEFORE AND I'VE MADE SOME NOTES AND SO I JUST WANT TO GO OVER SOME OF MY NOTES REAL QUICK
BEFORE WE GET INTO IT. CHIEF JUSTICE RABNER: IT'S APPARENT, AT LEAST FROM
A READING OF THE TRANSCRIPT THAT THEY HAD GONE OVER THE DEFENDANT'S WHEREABOUTS DURING
THE FIRST INTERVIEW IN SOME LENGTH. MELINDA A. HARRIGAN: CORRECT. ABSOLUTELY.
CHIEF JUSTICE RABNER: THAT IS EEGS NOT A TYPICAL WITNESS INTERVIEW. HOW
IS DETAILED REVIEW OF THE WHEREABOUTS OF AN INDIVIDUAL NOT AN INTERROGATION.
MELINDA A. HARRIGAN: BECAUSE THIS WASN'T DETAILED EVENTS ABOUT -- IT IS REALLY IMPORTANT
TO I UNDERSTAND WHAT THE POLICE KNEW AT THIS TIME. THIS WAS A DEVELOPING INVESTIGATION,
MINUTE BY MINUTE. THERE WERE POLICE THAT WERE STILL AT THE CRIME SCENE. DETECTIVE RAYNOR
AND DETECTIVE JANKOWSKI LEFT THE CRIME SCENE AN WENT TO THE POLICE STATION AND SO THE
DEFENDANT HAD SAID THAT HE HAD INFORMATION ABOUT WHERE THE LITTLE GIRL WAS AN SO THAT'S
WHAT THEY WERE QUESTIONING HIM ABOUT. CHIEF JUSTICE RABNER: I AM FOCUSED
ON ANOTHER PART OF THE INTERVIEW. IT'S PERFECTLY PROPER APPROPRIATE TO ASK A WITNESS
WHAT DID YOU SEE, WHEN DID YOU SEE IT WHAT DID YOU SEE. I WOULD LIKE YOU TO FOCUS ON
WHAT APPEARS TO BE EXTENSIVE QUESTIONS ABOUT THE WHEREABOUTS OF THIS INDIVIDUAL AND HOW
THAT DOESN'T ITSELF CHANGE THE CONTEXT OF THE INTERVIEW? MELINDA A. HARRIGAN:
THE WHEREABOUTS OF THE DEFENDANT YOU MEAN. CHIEF JUSTICE RABNER: YES.
MELINDA A. HARRIGAN: OKAY. BECAUSE NECESSARILY AN ORDER TO PROVIDE
POLICE WITH WHERE HE SAW THE LITTLE GIRL HE'S GOING TO HAVE TO TELL POLICE WHERE HE WAS
WHEN HE SAW HER. JUSTICE WAINER APTER: NO, BUT HE HAD SAID THAT HE SAW THE
VICTIM OUTSIDE THE APARTMENT BUILDING AND THEN THERE WAS -- YOU CAN TELL FROM THE TRANSCRIPT
OF THE SECOND INTERVIEW THAT DURING THE FIRST INTERVIEWS, THERE WAS AN ELABORATE DISCUSSION
ABOUT GOING TO WELLS FARGO AND WALKING ON TRAILS AND SUBMITTING JOB APPLICATIONS AND EXACTLY
WHICH ORDER ALL OF THOSE THINGS HAPPENED. HE NEVER SUGGESTED THAT HE SAW THE VICTIM IN
ANY OF THOSE PLACES SO WHY IS THAT RELEVANT TO AN INVESTIGATION OVER WHEN IS THE LAST
TIME THE DEFENDANT SAW THE VICTIM. MELINDA A. HARRIGAN: I THINK IN ORDER
TO ANSWER THAT QUESTION, A REVIEW OF THE RECORDING IS REALLY IMPORTANT BY THIS COURT
BECAUSE WHAT YOU CAN SEE FROM THE RECORDING IS THAT THAT QUESTIONING WHERE HE WAS, THE
WELLS FARGO AND ALL THAT, THAT WAS NOT PROMPTED BY QUESTIONING BY DETECTIVE RAYNOR. THAT WAS
THE DEFENDANT. I MEAN THE DEFENDANT PRETTY MUCH LEADS POLICE DOWN THAT ROAD AND NOW DETECTIVE
RAYNOR DOES ASK FOLLOW UP. WHEN THE DEFENDANT SAYS SOMETHING, HE WILL ASK A FOLLOW UP
QUESTION, BUT THE DEFENDANT IS RUNNING THAT FIRST PART OF THE -- IF YOU WOULD LOOK AT
WHAT HAPPENED IN THE SECOND AS TO WHAT HAPPENED IN THE FIRST, THE STATE WOULD SUBMIT THAT
IT'S LOGICAL TO BELIEVE THAT THE DEFENDANT GOT INTO THE WITNESS INTERVIEW AND WAS TELLING
DETECTIVES -- ALSO, WE HAVE TO REMEMBER THIS DEFENDANT KNOWS THAT HE DID IT. THIS
DEFENDANT KNOWS THAT HE RAPED AND KILLED THIS LITTLE 11 YEAR OLD AND HE IS TRYING TO EX
CULPATE HIMSELF BY TALKING A LOT. JUSTICE PATTERSON: I AM CONFUSED ABOUT
ONE THING. THEY CON FRONTS HIM IN THE SECOND INTERVIEW WITH THE DISTINCTIONS BETWEEN
THE STORY HAD GIVEN EARLIER IN THE DAY AND THE STORY HE WAS NOW GIVING. WE
CAN SEE ON THE VIDEO THAT HE IS TALKING ABOUT THE TRAILS, GOING ON NATURE WALKS. HE IS
DOING A LOT OF THINGS SUPPOSEDLY AND THEY CLEARLY DON'T BELIEVE THAT. THERE WAS SOME
DISTINCTION BETWEEN THAT ACCOUNT AND WHAT HE HAD SAID IN THE EARLIER INTERVIEW. IN
OTHER WORDS, TELL ME IF I'M WRONG ABOUT THIS, THEY WERE POINTING OUT THAT HE HADN'T SAID
ALL OF THOSE THINGS IN THE EARLIER INTERVIEWS. MELINDA A. HARRIGAN: CORRECT.
HE CHANGED HIS STORY AND SO DETECTIVES KNEW THAT HE WAS LYING BECAUSE THEY CAME BACK AND
SAID BUT YOU WEREN'T AT THE VAP SHOP AND YOU WEREN'T DOING THIS AND YOU WEREN'T DOING
EVERYTHING LIKE THAT. WHAT HE SAID IN THE SECOND INTERVIEW WAS STARKLY DIFFERENT
FROM WHAT HE SAID IN THE FIRST INTERVIEWS AND AGAIN, IF YOU LOOK AT THE SECOND INTERVIEW
AND HOW THE DEFENDANT WAS SORT OF LEADING THE DETECTIVES DOWN THE ROAD, THERE WASN'T A
WHOLE LOT OF QUESTIONING ABOUT HIS WHEREABOUTS. HE WAS TELLING THEM. JUSTICE
PIERRE-LOUIS: I THINK THE QUESTION WAS: YOU CAN TELL FROM THE SECOND INTERVIEW, I MEAN
WE HAVE THE VIDEO OF THE SECOND INTERVIEW, THAT YOU CAN TELL FROM THE SEKD INTERVIEW SECOND
INTERVIEW THAT ALL OF THIS INFORMATION ABOUT HIS WHEREABOUTS CAME OUT DURING THE FIRST
INTERVIEW AND I THINK WHAT THE CHIEF WAS ASKING IS THAT NORMALLY THE CASE THAT FOR A WITNESS
INTERVIEW TRYING TO DETERMINE THE WHEREABOUTS OF A MISSING PERSON THAT THE POLICE WOULD
NORMALLY GO THROUGH IN DETAIL AN INDIVIDUAL'S WHEREABOUTS MINUTE BY MINUTE TLIEOUT THE
DAY. IT KIND OF SEEMGS LIKE THAT IS POSSIBLY WHAT HAPPENED IN THAT SECOND INTERVIEW.
THERE ARE TIME POINTS IN WHICH THE DETECTIVES POINT OUT THE DISCREPANCIES SO IN THE FIRST
INTERVIEW THE DEFENDANT SAID HE WENT STRAIGHT TO WELLS FARGO INSTEAD OF WALKING AROUND
AND THE OFFICERS POINT THAT OUT. THE DEFENDANT DIDN'T TALK ABOUT GOING TO 7 ELEVEN IN
THE FIRST INTERVIEW SO IT SEEMED LIKE THERE WAS A LOT OF DETAIL ABOUT EXACTLY WHERE HE WAS
AT TIMES WHERE HE HAD NOT INDICATED THAT HE HAD SEEN THE VICTIM SO I THINK THAT'S WHERE
THE QUESTIONING WAS. WHAT ABOUT THAT TYPE OF QUESTIONING DURING THAT FIRTS
INLT HOW WAS NOT NOT AN INTERROGATION GIVEN THE MANNER OF QUESTIONS THAT WERE BEING ASKED?
MELINDA A. HARRIGAN: AGAIN, I DON'T THINK THERE WAS A MANNER OF QUESTIONS
BEING ASKED. JUST LIKE THE SECOND INTERVIEW, I THINK THE DEFENDANT GOT IN
THERE AND WANTED TO EXCULPATE HIMSELF AND STARTED TO BEGIN TO TELL DETECTIVES WHERE HE WAS
AN WHERE HE SAW THAT GIRL AN HE WAS CLEARLY LYING AND SO IN THE SECOND INTERVIEW THE POLICE
WERE CALLING HIM ON IT AN ASKING FOR THAT DETAIL. SO IN THE SECOND INTERVIEW HE WHEN
THEY SAID YOU SAID YOU WERE AT THE 7 ELEVEN BUT YOU DIDN'T SAY THAT BEFORE, I DON'T THINK
IT IS SHOWING THE LEVEL OF DETAIL IN THE FIRST BUT THE LEVEL OF DETAIL THAT HE GIVE IN
THE SECOND. JUSTICE PATTERSON: THIS SOUNDS COMPLETELY DIFFERENT THAN WHAT
WE SPOKE EARLIER, I DON'T MEAN TO SOUND LIKE A BROKEN RECORD GOING ROUNDS AND ROUND I
THINK YOU'RE CHANGING YOUR -- WHETHER YOU'RE OVER THINKING AN THEN HE SAYS HE WAS TIRED,
ETC. TELL ME IF I AM WRONG, THE OVERALL IMPRESSION I HAD WAS THAT THERE WAS
SOMETHING SAID ABOUT WHERE HE WAS BUT I DIDN'T GET FROM THE SECOND INTERVIEW A LOT OF
-- REALLY ANY SUBSTANTIVE INFORMATION ABOUT WHAT HE HAD SAID. MELINDA A.
HARRIGAN: THAT'S CORRECT. JUSTICE PATTERSON: WHATEVER HE WAS SAYING WAS
INCONSISTENT WITH WHAT HE HAD SAID OR HE FILLED IN FACT THAT WERE NOT THERE.
MELINDA A. HARRIGAN: THAT IS CORRECT. HE DIDN'T -- I MEAN -- AGAIN, WE DON'T HAVE ANY
TRANSCRIPTION OF THE FIRST INTERVIEW, BUT, YOU KNOW, IF YOU LOOK AT WHAT THE DEFENDANT
WAS DOING IN THE SECOND INTERVIEW, I THINK YOU CAN SEE THAT HE WENT INTO THE FIRST TRYING
TO EXCULPATE HIMSELF SO HE PROBABLY WAS SAYING ALL SORTS OF THINGS AND WHEN THE POLICE
GOT INTO THE SECOND INTERVIEW AND THEY WERE INTERROGATING HIM AN TRYING TO PIN HIM DOWN
AND SAID YOU SAID YOU SAW SHIM HERE BUT YOU SAID YOU WERE HERE AND ALL OF THAT, I THINK
THAT LEVEL OF DETAIL IN THE SECOND PROBABLY LIKE YOU SAID, YOUR HONOR WASN'T IN THE FIRST
AND THEY WERE POINTING OUT THOSE INCONSISTENCIES, WHICH, UVEN, UNFORTUNATELY -- THE APPELLATE
DIVISION SAID WAS -- HE WAS TRYING TO EXCULPATE HIMSELF BUT IT WAS ACTUALLY INCULPATING
HIMSELF AND THAT'S WHY IT WAS CUSTODY BECAUSE WHEN THE POLICE LATER CAME AND SAID YOU'RE
LYING THAT SOMEHOW THAT WAS USED GENSZ HIM BUT I WOULD SUBMIT THAT WHEN THE DEFENDANT
LIES TO POLICE THAT SHOULD NOT BE USED AGAINST THE POLICE OFFICERS. THOSE LIES SHOULD
BE USED AGAINST THE DEFENDANT AND IT WAS CLEAR HERE THAT THE DEFENDANT WAS LYING. HE WAS
LYING IN THE FIRST INTERVIEW AND HE WAS TRYING TO CORRECT HIMSELF IN THE SECOND AND THE
POLICE WERE CALLING HIM ON IT. THAT DOESN'T NECESSARILY MEAN DETECTIVES WERE
INTERROGATING HIM IN THE FIRST. I DON'T THINK THAT THERE IS A LOGICAL CONNECTION BETWEEN
THAT. I THINK AS YOU CAN SEE FROM THE SECOND INTERVIEW, THE BEGINNING PART OF THE
QUESTIONING WAS VERY, YOU KNOW, INVESTIGATORY, IN KWIS SIT TORE RE, WHAT ARE YOU DOING,
WHERE WERE YOU GOING AND ALL OF THAT AND THAT WAS PROPER BECAUSE THAT WAS AN INTERROGATION.
IN THE FIRST INTERVIEW, I THINK THE DEFENDANT JUST WENT IN THERE AND TALKED.
CHIEF JUSTICE RABNER: DID DETECTIVE RAYNOR SAY THAT? DID
HE SAY THAT THE DEFENDANT RAN THE FIRST INTERVIEWS AND ESSENTIALLY JUST TALKED.
MELINDA A. HARRIGAN: NO. CHIEF JUSTICE RABNER: HOW DO YOU KNOW THAT'S
ACTUALLY WHAT HAPPENED WHEN THERE IS A CONTRARY SUGGESTION IF YOU LOOK AT DETECTIVE RAYNOR'S
COMMENTS IN THE SECOND INTERVIEW. MELINDA A. HARRIGAN: I THINK THE SECOND
INTERVIEW WAS VERY TELLING OF THE FIRST YOUR HONOR. I REALLY DO. DETECTIVE RAYNOR SAID
I HAVE M SOME NOTES HERE AND WE WANT TO GO OVER A FEW THINGS THAT WE ALREADY TALKED ABOUT
AND HE STARTS THE CONVERSATION AND DEFENDANT GOES AN STARTS EXPLAINING AND GOING ON AND
ON ABOUT WHAT HE DID. EVERY NOW AND THEN DETECTIVE RAYNOR WOULD CHIME IN AND SAY OKAY,
WHAT ABOUT THIS OR ASK A QUESTION OR TWO. CHIEF JUSTICE RABNER: DO YOU THINK
THAT'S A FAIR CHARACTERIZATION OF WHAT TAKES PLACE AT PAGES 130 AND FORWARD THAT THE
DETECTIVE PIPES IN EVERY NOW AND THEN AN THAT THE DEFENDANT IS LEADING THE INTERVIEW?
IS THAT YOUR POSITION ON WHAT TOOK PLACE? MELINDA A. HARRIGAN:
IF YOU LOOK AT THE SECOND INTERVIEW I THINK YOU CAN GET A FEEL FOR HOW THE FIRST INTERVIEW
WAS BECAUSE DETECTIVE RAYNOR JUST SITS BACK AN LETS THE DEFENDANT TALK. CHIEF
JUSTICE RABNER: THAT'S WHAT I AM ASKING, YOUR INTERPRETATION IS THAT THE DETECTIVE HAD
A PASSIVE ROLE AND THE DEFENDANT WAS RUNNING THE SHOW IN THE SECOND INTERVIEW?
MELINDA A. HARRIGAN: THAT IS CORRECT. CHIEF JUSTICE RABNER: OKAY.
MELINDA A. HARRIGAN: I THINK IT'S A FAIR REPRESENTATION BASED ON THE SECOND INTERVIEW
AND HOW DETECTIVE RAYNOR -- CHIEF JUSTICE RABNER: THAT'S NOT WHAT I AM
ASKING YOU. YOUR CHARACTERIZATION OF THE SECOND INTERVIEW IS THAT THE DETECTIVE
HAD A PASSIVE ROLE AND THE DEFENDANT WAS RUNNING THE SHOW? MELINDA A. HARRIGAN:
YES. JUSTICE WAINER APTER: I ASSUME YOU MEAN ONLY UP TO A CERTAIN POINT,
RIGHT? MELINDA A. HARRIGAN: IN THE FIRST INTERVIEWS OR THE SECOND.
JUSTICE WAINER APTER: THE SECOND. MELINDA A. HARRIGAN: YES AND YOU CAN SEE
WHERE THAT TURNS. YOU CAN SEE WHERE IT TURNS AN DETECTIVE RAYNOR STARTS GETTING MORE
POINTED WITH HIS QUESTIONS. JUSTICE WAINER APTER: DO YOU KNOW TO CLARIFY
WHERE THAT IS IN CASE WE WANT TO LOOK AT THE TURNING POINT. MELINDA A.
HARRIGAN: I THINK WHEN DETECTIVE RAYNOR -- YES, ACTUALLY, I DO. THERE IS A COLLOQUY AND
ACTUALLY I CAN PINPOINT IT EXACTLY. IT IS RIGHT BEFORE, YOU KNOW, THE DEFENDANT CONFESS
SESSION AND YOU KNOW, DETECTIVE RAYNOR IS TALKING TO HIM AND HE'S ASKING ABOUT THE CAMERA
AND ALL OF THAT AND SO IT'S THE FIFTH DISK, P A 5, 18:59:06 TO 19:01:01. CHIEF
JUSTICE RABNER: GIVE US THE FIRST NUMBERS IF YOU COULD AGAIN 18:59:06. MELINDA A.
HARRIGAN: I HAVE ANOTHER ONE, TOO, 19:00:01 TO 19:00:00-51. JUSTICE PATTERSON:
DO YOU HAVE A CITE IN THE TRANSCRIPT OF THE MIRANDA HEARING. MELINDA A.
HARRIGAN: OH, YES. IT WOULD BE 3 T, 197, 124 TO 199-25. JUSTICE WAINER APTER:
SORRY, BUT YOU SEEM TO SAY THAT IT WAS RIGHT WHEN THEY WERE TALKING ABOUT THE VIDEO SO
IS THAT AFTER EVERYTHING I READ BEFORE IN TERMS OF MY JOB IS TO SIT HERE AND HELP YOU
THROUGH THIS. I KNOW MISTAKINGS HAPPEN, THIS IS THE TIME TO TALK TO US, HELP YOU ALSO
EXPLAIN THIS. I WANT YOU TO UNDERSTAND THE GRAVITY, YOU'RE NOT BEING JUDGED YOU'RE NOT
BEING LOOKED AT. YOU'VE GOT TO TRUSZ ME. RECOURSE HERE IS TALKING IT'S DIALOGUE, IT'S
EXPLANATION, ALL OF YOU ARE A SAYING THAT HAPPENED WHEN DEFENDANT WAS STILL RUNNING THE
SHOW. MELINDA A. HARRIGAN: I THINK THE DEFENDANT -- DETECTIVE RAYNOR IS
ACTUALLY SAYING, YOU KNOW, YOU GOT TO TELL ME THE TRUTH BECAUSE DEKTD RAYNOR KNEW THAT
HE WAS LYING TO HIM. I THINK THERE IS A POINT IN THE TRANSCRIPT WHERE DETECTIVE
RAYNOR SAYS, YOU KNOW, DO YOU KNOW WHAT IS HAPPENING HERE AND HE GOES -- THE DEFENDANT
SAYS, WELL, ALL I KNOW IS THERE IS A MISSING GIRL AND THAT THE BROTHER OF THE MISSING
GIRL TOLD ME THAT. HE SAYS WELL, IT'S A LITTLE BIT MORE SERIOUS THAN THAT. AND I THINK,
YOU KNOW, THAT'S WHERE DETECTIVE RAYNOR SORT OF GOES IN AND STARTS, YOU KNOW, SAYING,
YOU KNOW, WOOEFR A -- THIS LITTLE GIRL IS DEAD. CHIEF JUSTICE RABNER: I
THINK THIS IS AN IMPORTANT POINT SO I WANT TO SPEND A LITTLE TIME ON THE TRANSCRIPT WITH
YOU. I AM LOOKING AT 132 AND I AM CONCERNED ABOUT HOW TO CHARACTERIZE THE DETECTIVES ROLE
AN THE DEFENDANT'S ROLE BECAUSE IT SEEMS TO ME THAT THE DETECTIVE IS ASKING QUESTIONS
THAT ONE WOULD EXPECT THE DETECTIVE TO ASK. TELL ME ABOUT WELLS FARGO.
SO YOU WERE IN WELLS FARGO, SO WHAT TIME DO YOU THINK IT IS, IF YOU LEFT AT 1:30, WHAT
TIME DO YOU THINK YOU GET TO WELLS FARGO AND LIKE I SAID, THIS HELPS US PUT THE WHOLE
THING TOGETHER CHLTH IS IT A FAR WALK. SKIPPING OVER TO THE NEXT PAGE, ABOUT
A TEN MINUTE WALK TOPS, RIGHT. SO THEN YOU WALKED AROUND, HOW LONG DO YOU
THINK YOU WALKED AROUND, BACK ON THE TRAIL, WHEREVER ELSE YOU WENT TO WELLS FARGO GO AND
SO ON. ETC., ETC. THIS IS THE PART OF THE INTERVIEW WHERE YOU'VE SAID THE
DEFENDANT WAS ESSENTIALLY RUNNING THE SHOW, NOT THE DETECTIVE. DOES THAT APPEAR
TO COMPORT WITH THE BACK AND FORTH? MELINDA A. HARRIGAN: WELL, I THINK
-- YOUR HONOR, IT'S -- IN THE BEGINNING OF THE INTERVIEW -- I MEAN, MAYBE I MISSPOKE,
BUT IN THE BEGINNING OF THE INTERVIEW THE DEFENDANT IS TALKING ABOUT HIMSELF A LOT.
HE IS TALKING ABOUT HIS -- YOU KNOW, EVERYTHING THAT GOES ON WITH HIM AN DETECTIVE RAYNOR
AND DETECTIVE JANKOWSKI ARE JUST LETTING HIM TALK AND AT SOME POINT IN TIME THE DETECTIVE
STARTED INTERROGATION. WHERE EXACTLY IN THE RECORD I DON'T HAVE A PINPOINT CITATION
EXACTLY WHERE IN THE RECORD BUT I KNOW DETECTIVE RAYNOR AT SOME POINT SAYS DO YOU KNOW
WHAT THIS IS ABOUT AND HE SAYS I THINK IT'S ABOUT A MISSING GIRL. CHIEF JUSTICE
RABNER: WOULD YOU AGREE IF THIS TYPE OF QUESTIONING TOOK PLACE IN THE FIRST INTERVIEW
IT WOULD BE CONSIDERED AN INTERROGATION. MELINDA A. HARRIGAN: I DON'T THINK
UN THE CIRCUMSTANCES OF WHAT THE POLICE KNEW UNDER THE FIRST INTERVIEW, NO.
CHIEF JUSTICE RABNER: WHAT DID THEY KNOW. MELINDA A. HARRIGAN: THEY WERE
NOT TREATING HIM AS A SUSPECT. WE DON'T KNOW THAT THIS PARTICULAR COLLOQUY WENT ON IN
THE FIRST INTERVIEW. CHIEF JUSTICE RABNER: I AM ASKING YOU TO ASSUME. I
AM TRYING TO -- I ASKED YOU TO ASSUME FOR PURPOSES OF THE QUESTION THAT THIS IS WHAT
HAPPENED IN THE FIRST INTERVIEW. IS IT NOT AN INTERROGATION IF AN OFFICER
ASKS A WITNESS DETAILED QUESTIONS ABOUT THEIR WHEREABOUTS AS IT APPEARED TO BE THE CASE
WITH RESPECT TO WELLS FARGO GO. MELINDA A. HARRIGAN: THAT'S A VERY HARD
TO QUESTION TO ANSWER IN THE CONTEXT YOU'RE POSING IT BECAUSE IF THE DETECTIVE IS
QUESTIONING THIS KIND OF DETAIL TO A WITNESS TRYING TO ASCERTAIN THE WHERE THE WITNESS
WAS VERSUS WHERE THE LITTLE GIRL WAS, THEN THIS IS NOT AN INTERROGATION BECAUSE THEY ARE
NOT USING IT. IT'S INVESTIGATORY. IT'S NOT ACCUSATORY. IN THIS SECOND
INTERVIEW THIS IS CLEARLY ACCUSATORY BECAUSE THEY ALREADY KNOW THE DEFENDANT HAS LIED DURING
THE FIRST INTERVIEW AND THEY ARE CALLING HIM ON IT IN THE SECOND SO THIS LEVEL OF DETAIL
GOT VERY SPECIFIC BECAUSE THEY WERE TRYING TO FLUSH OUT WHERE THE DEFENDANT WAS BECAUSE
THEY KNEW THAT HE WAS LYING. SO, AGAIN, I THINK THE CONTEXT IN THIS CASE,
THROUGHOUT, THE STATE'S POSITION IS THE CONTEXT IN THIS CASE IS VERY, VERY IMPORTANT.
I DON'T THINK -- I MEAN, WE DON'T KNOW FOR SURE, BUT THIS LEVEL OF INTERROGATION THAT'S
GOING ON IN THE SECOND INTERVIEW, I THINK IS BECAUSE HE GAVE HIM A COMPLETE -- HE GAVE
THE POLICE A COMPLETELY DIFFERENT STORY IN THE FIRST INTERVIEW; THAT'S WHY YOU HAVE THIS
PINPOINTED TARGETED QUESTIONING OF THE DEFENDANT AT THAT POINT. CHIEF JUSTICE
RABNER: CAN YOU LATER TELL US WHERE THERE MIGHT BE A SPOT ON THE RECORD WHERE THE DETECTIVE
SAYS MY QUESTION ABOUT THE WHEREABOUTS WAS DIFFERENT OR SOMETHING THAT WOULD SUPPORT
YOUR POSITION THAT THIS IS NOT WHAT TOOK PLACE, WHAT I READ FOR YOU IS NOT TOOK PLACE IN
THE FIRST INTERVIEW, THAT WOULD BE HELPFUL. MELINDA A. HARRIGAN: DETECTIVE
RAYNOR NEVER -- I MEAN, I THINK -- DETECTIVE RAYNOR THROUGHOUT SAYS THAT'S NOT WHAT YOU
TOLD US IN THE FIRST INTERVIEW. I THINK HE SAYS THAT IN THE RECORD. THIS IS NOT WHAT
YOU TOLD US IN THE FIRST INTERVIEWS, YOU KNOW, IT DOESN'T MAKE SENSE. LATER ON IN THE
RECORD, YOVR A PINPOINT CITATION BUT LATER ON HE SAYS THERE IS CAMERAS AT THE VAIP AN
WE DIDN'T SEE YOU WALK BY AND SO WITH THEY KNOW THAT THE DEFENDANT WAS NOT WHERE HE SAID
HE WAS. THE COURT: MY POINT IS THIS, THE DETECTIVE SAYS AT THE OUTSET WE'RE
GOING TO GO OVER PRETTY MUCH EVERYTHING WE TALKED ABOUT TODAY. IS THERE A SPOT DURING
HIS TESTIMONY AT THE SUPPRESSION HEARING WHERE HE SAYS THAT'S NOT WHAT ACTUALLY TOOK PLACE
DURING THE FIRST INTERVIEW, THE SECOND INTERVIEW WAS DIFFERENT THAN THE FIRST.
MELINDA A. HARRIGAN: THAT'S NOT THE TESTIMONY THAT DETECTIVE RAYNOR GAVE, NO. AND, AGAIN,
I DON'T THINK THAT THAT TESTIMONY IS ON THE RECORD BECAUSE DETECTIVE RAYNOR DID NOT
TESTIFY THAT THE DEFENDANT WAS A SUSPECT BEING SUBJECT TO INTERROGATION AND SO THERE WAS
NO QUESTIONING THAT WAS SPECIFIC AS TO WHAT DETECTIVE RAYNOR ASKED THE DEFENDANT DURING
THAT FIRGS WITNESS INTERVIEW. DETECTIVE RAYNOR ABSOLUTELY TESTIFIED, HE
ABSOLUTELY TESTIFIED THAT WHEN THEY WENT INTO THAT FIRST INTERVIEW THAT THEY DID NOT DEEM
HIM A SUSPECT. CHIEF JUSTICE RABNER: AND THAT'S NOT CONTROLLING, OF
COURSE. IS IT? IF IN THE DETECTIVE'S MIND AN INDIVIDUAL BEING
QUESTIONED IS NOT A SUSPECT IS THAT -- MELINDA A. HARRIGAN: NOT SUBJECTIVE
LY, NO, BUT UNFORTUNATELY THE APPELLATE DIVISION IN THIS CASE HELD THAT THE POLICE OFFICERS
TARGETED FROM THE OUTSET FROM THE FIRST INTERVIEWS SO IT'S IMPORTANT TO UNDERSTAND
FROM THE TESTIMONY THAT DEKTD RAYNOR AND DETECTIVE JANKOWSKI DID NOT TARGET THE DEFENDANT
AS A SUSPECT HE WAS THERE AS A WITNESS AN SO THE QUESTIONING WAS NOT AN INTERROGATION.
THE QUESTIONING WAS INVESTIGATORY. IT WASN'T UNTIL DETECTIVE RAYNOR LEFT THE INTERVIEW
ROOM THAT HE WAS TOLD THAT MR. LIN NONE FROM ACROSS THE STREET HAD IDENTIFIED THE LITTLE
GIRL GOING INTO THE DEFENDANT'S APARTMENT. AT THAT MOMENT IN TIME THE DEFENDANT BECAME
A SUSPECT. JUSTICE PATTERSON: WHEN THEY TALKED TO HIM THE FIRST TIME HE
HAD VOLUNTEERED THAT HE HAD SEEN HER AND HE WAS ONE OF THE LAST PEOPLE. I AM NOT SURE
OF THE TIME LINE, BUT OF THE PEOPLE THEY KNEW ABOUT, HE HAD SEEN HER LATER THAN HER MOTHER
SAW HER. MELINDA A. HARRIGAN: CORRECT. JUSTICE PATTERSON:
SO THEY HAVE HER MOTHER SAYING WHAT TIME SHE WENT MISSING AND THEN THEY HAVE THIS GENTLEMAN
SAYING I SAW HER AT A LATER TIME. MELINDA A. HARRIGAN: UH-HUH.
JUSTICE PATTERSON: THAN HER MOTHER SAW HER. HE DIDN'T SAY IT THAT WAY. HE SAID WHEN
HE HAD SEEN HER AND THAT IS I THINK PUT HIM AS THE LAST PERSON WHO HAD SEEN THE CHILD
ALIVE IF HE WAS TELLING THE TRUTH. MELINDA A. HARRIGAN: IF HE WAS TELLING
THE TRUTH. JUSTICE PATTERSON: WHAT I AM SUGGESTING IS THAT HE WAS A VERY
IMPORTANT WITNESS. MELINDA A. HARRIGAN: HE WAS. JUSTICE
WAINER APTER: I THOUGHT HE HAD TESTIFIED THAT HE SAW HER AT 1:30 IN THE JACH NOON OUTSIDE
OF THE APARTMENT BUILDING. MELINDA A. HARRIGAN: MR. LIN NONE TOLL POLICE.
JUSTICE WAINER APTER: MR. LIN NONE TOLD POLICE AFTER THE FIRST INTERVIEW.
MELINDA A. HARRIGAN: RIGHT. JUSTICE PATTERSON: I WAS MISTAKEN.
ACCORDING TO WHAT THEY KNEW. MELINDA A. HARRIGAN: ACCORDING TO WHAT THEY
KNEW, MR. LIN SAID HE SAW THE LITTLE GIRL GO INTO THE DEFENDANT'S APARTMENT.
JUSTICE PATTERSON: I UNDERSTAND. I APPRECIATE THE CLARIFICATION FROM MY COLLEAGUE. HE WAS
NOT THE LAST PERSON TO HAVE SEEN HER ACCORDING TO HIM. MELINDA A. HARRIGAN:
THAT'S CORRECT. DURING THAT FIRST WITNESS INTERVIEW, IT WAS INVESTIGATORY. WHERE WAS
SHE. WHETHER IT WAS A MISSING PERSON OR A HOMICIDE INVESTIGATION, THE TIME LINE REMAINS
THE SAME. THE POLICE STILL NEEDED TO FIGURE OUT THE TIME LINE. THIS WAS NOT JUST AN
ONGOING INVESTIGATION. IT WAS A DEVELOPING INVESTIGATION. AGAIN, THE POLICE OFFICERS
LEFT THE SCENE. THEY WENT TO INTERVIEW WITNESSES AN WHEN THEY WENT INTO THAT FIRST WITNESS
INTERVIEW ALL THEY KNEW WAS THAT SHE WAS FOUND ON THE TOP OF THE SHED AND THAT SHE WAS
DEAD AND THAT THE DEFENDANT HAD SAID THAT HE HAD SEEN HER EARLIER THAT DAY AND SO THAT'S
WHAT THEY WERE GOING IN TO DO AND THAT FIRST WITNESS INTERVIEWS WAS A TIME LINE SO I DON'T
THINK IT WAS AN INTERROGATION WITH SORT OF DETAIL I THINK IT WAS WHERE WERE YOU, WHERE
DID YOU SEE HER AN THOSE KINDS OF THINGS. I DON'T THINK THE LEVEL OF INTERROGATION THAT
HAPPENED IN THE SECOND INTERVIEW HAPPENED IN THE FIRST. IT WAS SIMPLY AN INVESTIGATION
AS TO WHERE SHE WAS. CHIEF JUSTICE RABNER: WE DON'T KNOW THAT FROM THE RECORD.
HOW DO WE KNOW THAT FROM THE RECORD. MELINDA A. HARRIGAN: BECAUSE
I THINK YOU HAVE TO -- I THINK THE CREDIBILITY FINDINGS OF THE TRIAL JUDGE ARE IMPORTANT
HERE. THEY FOUND DETECTIVE RAYNOR CREDIBLE IN THE FACT THAT HE STATED THAT THIS DEFENDANT
WAS NOT A SUSPECT AND IF HE WASN'T A SUSPECT THEN -- I MEAN, IF HE WASN'T A SUSPECT THEN
HE WASN'T BEING TROEGED AND HE WASN'T GETTING THIS LEVEL OF QUESTIONING. CHIEF
JUSTICE RABNER: THAT ASSUMES A GREAT DEAL. MELINDA A. HARRIGAN: IT DOES,
BUT I THINK YOU HAVE TO LOOK AT THE FACT THAT THE POLICE OFFICERS -- THE FACT THAT THE
POLICE OFFICERS LEFT THAT FIRST INTERVIEWS AN WERE GOING TO FINDS TRANSCRIPTION SERVICES,
UN RULE 3:17, AS YOUR HONOR'S KNOW, IF YOU'RE A SUSPECT, IT HAS TO BE RECORDED AND SO,
AGAIN, THE LOCATION, THE LOGISTICS OF EVERYTHING ARE VERY IMPORTANT IN THIS CASE BECAUSE
POLICE OFFICERS TOOK THIS DEFENDANT TO THE SECOND FLOOR WHICH DID NOT HAVE RECORDING
CAPABILITIES. THESE ARE SEASONED HOMICIDE DETECTIVES. IF THEY THOUGHT HE WAS A SUSPECT
THEY WOULD HAVE HAD TO HAVE RECORDED HIM. THE FACT THEY TOOK HIM TO A SECOND FLOOR THAT
HAD NO RECORDING CAPABILITIES AND WHEN THEY ARE LEAVING THEY WERE SEARCHING FOR TRANSCRIBING.
I THINK OBJECTIVELY ON THIS RECORD, ALTHOUGH WE DON'T KNOW WHAT THE DETECTIVES SAID IN
THAT FIRST INTERVIEW, I THINK OBJECTIVELY ON THE RECORD WHEN WE LOOK AT WHAT DETECTIVES
DID WHERE THEY PUT HIM WHERE HE WENT AN WHAT HAPPENED IN THE SECOND INTERVIEW, I THINK
IT'S CLEAR FROM THIS RECORD THAT THE FIRST INTERVIEWS WAS NOT AN INTERROGATION AND
THAT'S WHAT WE HAVE TO LOOK AT IN THIS. WE HAVE TO LOOK AT OBJECTIVELY FROM THE RECORD
WHAT THE DETECTIVES DID AS FAR AS WHETHER OR NOT THE DEFENDANT WAS IN CUSTODY AND BEING
TROEGED TROEG GATD SUCH THAT MIRANDA WARNINGS WERE NECESSARY. THE APPELLATE
DIVISION SAID THIS WAS AN ASK FIRST, WARN LATER AND CITED STATE V. O'NEILL AND THE STATE'S
POSITION IS O'NEILL DOESN'T APPLY HERE BECAUSE THERE WAS NO FIRST INTERROGATION. IT WAS
A WITNESS STATEMENT. THAT'S VERY CRITICAL TO THE ANALYSIS IN THE TOTALITY OF THE CIRCUMSTANCES
AS TO WHETHER OR NOT THE DEFENDANT WAS IN CUSTODY. THE SECOND INTERROGATION
-- IT IS CLEAR THAT HE WAS GIVEN MIRANDA. IT'S CLEAR THAT HE WAIVED. CHIEF
JUSTICE RABNER: I GET YOUR QUESTION ABOUT O'NEILL. ASSUME FOR THIS QUESTION
THAT THE FIRST INTERVIEWS WAS INDEED AN INTERROGATION AND MIRANDA WARNINGS SHOULD
HAVE BEEN GIVEN SO THAT WE LOOK AT THE O'NEILL FACTORS. YOU STATED MULTIPLE
TIMES THAT HE LIED IN THE FIRST INTERVIEW? MELINDA A. HARRIGAN: UH-HUH.
CHIEF JUSTICE RABNER: THAT IS STRONG EVIDENCE THAT WOULD BE USED AGAINST
HIM, STRONG INCULPATORY REEVIDENCE. HOW DOES THAT FACTOR INTO THE O'NEILL
ANALYSIS. MELINDA A. HARRIGAN: I DON'T THINK IT DOES BECAUSE UNDERSTAND
O'NEILL THE TEST OR UNDERSTAND THE FACTORS THE DEFENDANT CONFESSED. DID HE
INCULPATE HIMSELF IN THE ACTUAL CRIME. THE DEFENDANT NEVER DID THAT. TO BE CLEAR IN
HIS FIRST WITNESS INTERVIEW, HE NEVER CONFESSED TO ANYTHING. HE NEVER SAID ANYTHING EVEN
REMOTELY INCRIMINATING AND THE TRIAL JUDGE HELD THAT THERE WAS NOTHING REMOTELY INCRIMINATING
THAT HE SAID SO I THINK O'NEILL DOESN'T APPLY HERE BECAUSE THE FACT THAT THE DEFENDANT
LIED, HE WAS TRYING TO EXCULPATE HIMSELF. THE FACT THAT THAT END TD UP WORKING AGAINST
HIM IN THE SECOND INTERVIEW WHEN HE WAS TROEG GATD SHOULD NOT WORK AGAINST POLICE OFFICERS.
I SYSTEM OF JUSTICE IS PREMISED ON THE TRUTH SO IF THE DEFENDANT IS LYING TO POLICE THAT
SHOULD NOT BE USED AGAINST THE POLICE TO SUPPRESS A STATEMENT THAT WAS PROPERLY MIRANDIZED
AND HE CONFESSED AFTERWARDS. JUSTICE WAINER APTER: WOULD YOU ALSO ARGUE
WITH REGARD TO THE FIRST INTERVIEW THAT EVEN IF WE DISAGREED WITH YOU AND FOUND IT WAS
AN INTERROGATION, WE WOULD STILL HAVE TO FIND THAT IT WAS CUSTODIAL AND THAT THE DEFENDANT
WAS IN CUSTODY IN ORDER FOR MIRANDA WARNINGS TO HAVE BEEN REQUIRED BECAUSE IF IT WAS A
NONCUSTODIAL INTERROGATION, THEN MIRANDA WARNINGS ARE NOT REQUIRED, CORRECT?
MELINDA A. HARRIGAN: CORRECT, YOUR HONOR, WHICH, AGAIN, BRINGS ME BACK TO THE LOGISTICS
OF EVERYTHING THAT WAS GOING ON. IT PLAYS INTO THE OBJECTIVE FACTORS OF THE TOTALITY
OF CIRCUMSTANCES AS TO WHETHER OR NOT HE WAS IN CUSTODY AN WHETHER OR NOT THE DEFENDANT
BELIEVED HE WAS IN CUSTODY, WOULD A REASONABLE PERSON THINK THEY COULD LEAVE.
WHILE THE DETECTIVES IN THIS CASE NEVER TOLD THE DEFENDANT SPECIFICALLY THAT HE COULD LEAVE
THE DEFENDANT NEVER ASKED TO LEAVE EITHER. JUSTICE PATTERSON: YOU WERE GOING
TO I THINK IN YOUR LIST OF THINGS UP FRONT YOU WERE GOING TO GET TOO TO ISSUE OF WHETHER
HE COULD GO HOME BECAUSE I BELIEVE THE APPELLATE DIVISION INDICATED HE HAD NO WAY OF GETTING
HOME AM I CORRECT ABOUT THAT. MELINDA A. HARRIGAN: YES.
JUSTICE PATTERSON: AND YOUR POINT ON MENTIONING THIS .3 MILES IS THAT HE COULD HAVE WALKED
IT WAS A WA COUPLE BLOCKS. MELINDA A. HARRIGAN: HE COULD HAVE WALKED HOME
IT'S NOT THE SAME SITUATION AS OTHER CASES WHERE THIS COURT HAS HELD THAT THE PERSON WAS
IN CUSTODY BECAUSE THEY HAD NO MEANS TO GET HOME. THAT WASN'T THE CASE HERE.
JUSTICE WAINER APTER: BACK TO THE O'NEILL FACTOR ABOUT WHETHER THE DEFENDANT HAD CONFESSED
DURING THE FIRST UNWARNED STATEMENT IF WE WERE TO FIND THAT O'NEILL APPLIED, I THOUGHT
THE RATIONALE THERE WAS THAT IF THE DEFENDANT CONFESS ES DURING THE FIRST STATEMENT THEN
THE CAT IS ALREADY OUT OF THE BAG AN SO DURING THE SECOND STATEMENT THE DEFENDANT WILL
BELIEVE THAT THERE IS NO REASON TO STAY SILENT BECAUSE HE HAS ALREADY CONFESSED AND SO
HE WILL BE, INDUCED TO JUST SAY THE SAME THING AGAIN. MELINDA A. HARRIGAN:
ABSOLUTELY. JUSTICE WAINER APTER: IF THIS COURT WERE TO HOLD THAT IT COULD
GO THE OTHER WAY, MEANING, IF THE DEFENDANT DOES NOT CONFESS AND LIES, AS YOU SAID OR
TRIES TO EXCULPATE HIMSELF, WOULD THAT FACTOR THEN WORK AGAINST THE STATE IN ALL CASES
MEANING, IF THE DEFENDANT CONFESS ES THEN THAT WOULD MEAN THAT THE SECOND STATEMENT, KATZ
OUT OF THE BAG AND SO THAT O'NEILL FACTOR WOULD WORK AGAINST THE STATE AN IF THE DEFENDANT
DOES NOT CONFESS AN THEN WHATEVER LIES THE DEFENDANT TOLD DURING THE FIRST STATEMENT ARE
USED COMBENS HIM IN THE SECOND STATEMENT THEN THAT WOULD ALSO BE USED AGAINST THE STATE
SO THAT FACTOR WOULD JUST ALWAYS WORK AGAINST THE STATE? CAN YOU THINK OF
A TIME WHERE IT WOULDN'T? MELINDA A. HARRIGAN: I CAN'T. WHAT IT IS DOING
IS OPENING THE DOOR FOR SUSPECTS TO GO IN AND LIE AND THEN USE THAT AS AN INCULPATORY
REINFORMATION SUCH AS A CONFESSION IN AN O'NEILL SITUATION AND THE CONFESSION GETS SUPPRESSED.
AGAIN, THE FACT THAT A DEFENDANT IS DECEPTIVE TO POLICE OFFICERS SHOULD NEVER
WORK AGAINST THE POLICE OFFICERS OR THE STATE. I MEAN, THAT SHOULD ALWAYS WORK AGAINST
THE DEFENDANT. AND SO IN THIS CASE THE DEFENDANT WAS CLEARLY DEE YEPT DEE CREPT ACTIVE
AND WE KNOW THAT HE WAS DECEPTIVE BECAUSE WE KNOW HE RAPED AND MURDERED HER. WHEN HE
WENT INTO THOO FIRST INTERVIEW WHAT WE KNOW NOW IS HE WAS TRYING TO EXCULPATE HIMSELF
AND IN THE SECOND INTERVIEW, THERE WAS SOME TIME FRAME WHERE POLICE WERE AGAIN DEVELOPING
THE INVESTIGATION, THERM GETTING MORE INFORMATION IN AN THEY WERE CALLING HIM ON THE THINGS
THAT THEY WERE GETH, GETTING IN AND HE WAS CHANGING HIS STORY. CHIEF
JUSTICE RABNER: SO THE MIRROR IMAGE OF THE CAT OUT OF THE BAG WHERE YOU'VE MADE A CONFESSION
AN YOU'RE STUCK WITH IT IS YOU'VE LIED AND YOU DUG YOURSELF INTO A WHOLE AN YOU'RE THEREFORE
STUCK WITH THAT FOR THE SECOND INTERVIEW AS WELL. MELINDA A. HARRIGAN:
I THINK IT'S VERY DIFFERENT, YOUR HONOR, BECAUSE -- THE THING IS THE DEFENDANT MAY HAVE
LIED TO THE POLICE BUT HE DIDN'T SAY THAT HE DID ANYTHING. HE NEVER SAID HE RAPED HER
AND HE NEVER SAID HE KILLED HER. JUSTICE PATTERSON: THERE WERE NO ADMISSIONS.
MELINDA A. HARRIGAN: NO ADD MISHGSZ. JUSTICE PATTERSON: DO YOU
VIEW THAT FIRST FACTOR OF ED WARDZ TO BE I'M IT TO SUBSTANTIVE ADMINISTRATIONS ADD MISHGSZ.
MELINDA A. HARRIGAN: ABSOLUTELY, YOUR HONOR. IF YOU LIE AN THEN YOU'RE
CALLED ON A SUBSEQUENT INTERROGATION THAT DOESN'T MEAN YOU'RE GOING TO CONFESS. THERE
MIGHT BE PEOPLE THAT STICK TO THE LIES. JUSTICE WAINER APTER: JUST TO THINK
ABOUT IF BOTH THE LYING AN THE CONFESSING ARE USED AGAINST THE STATE THEN IN WHAT
CIRCUMSTANCE WOULD THAT FACTOR EVER NOT BE USED AGAIN THE STATE BECAUSE IF THE DEFENDANT
STAYS SILENT AN DOESN'T SAY ANYTHING THEN YOU DON'T END UP IN THE O'NEILL ANALYSIS AT ALL.
THE OH NOOIL ANALYSIS IS ONLY WHEN THE DEFENDANT TALKED TO POLICE WHEN THERE ARE NO WARNINGS
AND THERE SHUFSH ABTDZ TLEN LATER TALKS TO THE POLICE AGAIN WHEN THERE ARE WARNINGS AND
THE WARNINGS WERE REQUIRED. WHEN WOULD THAT FACTOR EVER NOT AUTOMATICALLY
BE USED AGAINST THE STATE IF BOTH CONFESSING AND NOT CONFESSING REFLECT AGAINST THE STATE.
MELINDA A. HARRIGAN: YOU'RE ABSOLUTELY RIGHT, YOUR HONOR. IT WOULD
ALWAYS BE USED AGAINST THE STATE. THE STATE WOULD NEVER BE ABLE TO USE A CONFESSION.
THE STATE WOULD NEVER BE ABLE TO USE WHEN A DEFENDANT LIES, AN INTERROGATION THAT DIDN'T
CONFESS. THE POLICE WOULD NEVER BE ABLE TO QUESTION -- PROPERLY QUESTION A SUSPECT TO
LIED TO THEM PREVIOUSLY BECAUSE YOU HAVE WITNESSES THAT COME IN AND GIVE STATEMENTS AN
THEN DAYS LATER COME IN IN INTERROGATION SO YOU HAVE OO SITUATION, AGAIN, WHERE O'NEILL
WAS SPECIFIC. IN O'NEILL, THAT DEFENDANT WAS PUT IN A HOLDING CELL, WAS
QUESTIONED THROUGH THE BARS AN HE ADMITTED CULPABILITY IN THE CRIME AN THEN AFTERWARDS
WAS GIVEN MIRANDA AND THEN ADMITTED MORE CUP ABILITY ON THE CRIME WHEN THEY CALLED HIM
ON THE FIRST THING HE SAID ABOUT WHEN HE ADMITTED TO THE CRIME. THAT DIDN'T
HAPPEN IN THIS CASE. THIS IS COMPLETELY DISTINGUISHABLE. THE DEFENDANT IN THIS CASE
NEVER ADMITTED TO DOING ANYTHING TO THIS LITTLE GIRL DURING THAT FIRST WITNESS STATEMENT.
JUSTICE PATTERSON: O'NEILL ONE HAS TWO PARTS THE EXTENT OF QUESTIONING AND
THE NATURE OF ANY ADMISSIONS MADE BY DEFENDANT BEFORE BEING INFORMED MUCH HIS MIRANDA
RIGHTS AND YOUR POSITION IS THERE HAS TO BE AN ISSUE IN ORDER FOR THE SECOND PART TO PLAY
AGAINST THE STATE. THE EXTENT OF QUESTIONING WHAT DO WE HAVE ON THIS RECORD.
MELINDA A. HARRIGAN: THE FIRST INTERVIEW WAS AN HOUR AND #250 R 20 MINUTES
SO IT WASN'T EXTENSIVE. CHIEF JUSTICE RABNER: WHAT IS EXTENSIVE IF 80
MINUTES IS NOT? MELINDA A. HARRIGAN: YOUR HONOR, I WOULD THINK, YOU KNOW,
IF YOU'RE QUESTIONING A WITNESS FOR THREE HOURS, I THINK THAT WOULD BE -- I THINK THAT
WOULD BE EXTENSIVE OR FOR AN EXTENDED PERIOD OF TIME. CHIEF JUSTICE RABNER:
THE APPELLATE DIVISION AND I DON'T RECALL THE PRECISE WORDS SAID THIS IS A MISREADING
OF OUR LAW AN OUR UNDERSTANDING THAT THE QUESTIONING WAS, INDEED EXTENSIVE. YOU
DIFFER FROM THAT. MELINDA A. HARRIGAN: I DIFFER FROM THAT, YOUR HONOR. I
THINK IN AN ONGOING INVESTIGATION, DETECTIVES ARE TAKEN FROM A CRIME SCENE. THEY BRING
THIS VOLUNTARY WITNESS INTO -- AND, AGAIN, WE DON'T KNOW -- AGAIN, IF THE SECOND INTERVIEW
IS ANY INDICATION OF HOW THE DEFENDANT ACTED IN THE FIRST INTERVIEW, IT COULD HAVE BEEN
THAT THE DEFENDANT WAS THE ONE THAT WAS TALKING SO LONG THAT IT TOOK AN HOUR AND 20 MINUTES.
WE DON'T KNOW THAT DETECTIVES ASKED QUESTIONS FOR AN HOUR AND 20 MINUTES AN I DON'T THINK
THAT WHEN YOU'RE TALKING ABOUT THE WHEREABOUTS OF A LITTLE GIRL AND WHERE YOUR WHEREABOUTS
WERE, WHERE HER WHEREABOUTS WERE I DON'T THINK THINK AN HOUR AN 20 MINUTES IS EXCESSIVE
IN THE GRAND SCHEME OF THINGS. I MEAN WHEN YOU'RE TALKING ABOUT A WITNESS STATEMENT.
I JUST WANTED TO SPEAK BRIEFLY, MY FINAL POINT WHICH IS THE APPELLATE --
JUSTICE PATTERSON: CAN I JUST FOLLOW UP. MELINDA A. HARRIGAN:
SURE. JUSTICE PATTERSON: O'NEILL 4 WHEN THE OFFICERS INFORMED DECHT THAT
HIS PRE-WARNING STATEMENTS COULD NOT BE USED AGAINST HIM. SINCE THERE WERE
NO ADMISSIONS IN THE PRE-WARNING STATEMENTS, AT LEAST NONE THAT THE RECORD DISCLOSES,
TLRM APPARENTLY SOME STATEMENTS MADE ABOUT HIS WHEREABOUTS THAT THE OFFICERS VIEWED TO BE
FALSE, BUT THERE WERE NO PREWARNING ADMISSIONS. IS IT YOUR CON THE EVENING
THAT FOUR DOES NOT WORK IN THE DEFENDANT'S FAVOR BECAUSE THERE WAS NO REASON TO WARN THE
DEFENDANT THAT WHAT YOU TOLD US BEFORE CANNOT BE USED AGAINST YOU BECAUSE HE HAD CLOP
CONTENTION CLOP BEEN COMPLETELY EXCULPATORY ABOUT HIMSELF. MELINDA A. HARRIGAN:
YES. AN MORE THAN THAT. IN THE BEGINNING OF THE INTERVIEW, I MEAN IN THE BEGINNING OF THE
INTERROGATION, THE POLICE OFFICERS HAD NO IDEA THAT THE DEFENDANT HAD LIED DURING THE
FIRST INTERVIEW IN ORDER TO GIVE THOSE WARNINGS. AT THE BEGINNING OF THAT
INTERVIEW -- I AM SORRY, AT THE BEGINNING OF THE INTERROGATION, DETECTIVE RAYNOR SAID
I AM GOING TO BRIEFLY GO OVER WHAT WE TALKED ABOUT AND THEN THE DEFENDANT CHANGED HIS
STORY AND SO THERE WOULD BE NO REASON FOR DETECTIVES BECAUSE HE WAS THERE AS A WITNESS,
NOT AS A SUSPECT, HE TOLD THEM A STORY. THEY HAD NO REASON NOT TO BELIEVE HIM AND THEY
GOT HIM INTO THE INTERROGATION, THEY STARTED THE INTERROGATION AND HE CHANGED HIS STORY
SO THERE WOULD HAVE BEEN NO OPPORTUNITY FOR THE POLICE TO WARN HIM THAT ANYTHING HE SAID
PREVIOUSLY COULD BE USED AGAINST YOU BECAUSE THEY DIDN'T KNOW THAT HE LIED AT THAT POINT.
JUSTICE WAINER APTER: YOU'RE SAYING AT THE TIME OF THE SECOND INTERVIEW
EVEN ONCE THE PERSON FROM ACROSS THE STREET TESTIFIED THAT HE SAW THE VICTIM WITH SOMEONE
WHO MATCHED THE DEFENDANT'S DESCRIPTION GOING INTO THE APARTMENT AND SAM ME HAD ALREADY
SAID THAT THE VICTIM HAD BEEN WRAPPED IN SOMETHING THAT CAME FROM THE DEFENDANT'S
APARTMENT, YOU'RE SAYING EVEN IF AT THAT POINT THEY HAD NO IDEA THAT THE DEFENDANT HAD
LIED TO HIM AND THEY STILL THOUGHT OF HIM ONLY AS A WITNESS AND NOT AS A SUSPECT.
MELINDA A. HARRIGAN: AT THE SECOND INTERVIEW. JUSTICE WAINER APTER: THAT'S
WHEN THE MIRANDA WARNINGS WERE GIVEN. MELINDA A. HARRIGAN: HE IS ABSOLUTELY
A SUSPECT. HE IS A SUSPECT IMMEDIATELY THE POLICE OFFICERS ARE TOLD MR. LIN HAD TOLD
HIM HE WAS GOING THAT THAT OFFICE. THEY WERE CALLING THE MONMOUTH COUNTY PROSECUTOR'S
OFFICE TO GET A SECRETARY TO TRANSCRIBE. AT THAT MOMENT IN TIME HE BECAME A SUSPECT.
THERE IS NO -- JUSTICE WAINER APTER: YOU'RE SAYING THAT AT THE TIME THEY
GAVE THE MIRANDA WARNINGS THE SECOND TIME THEY WOULDN'T HAVE HAD ANY OPPORTUNITY TO TELL
HIM THAT HIS FIRST STATEMENT COULDN'T HAVE BEEN USED AGAINST HIM BECAUSE THEY WOULDN'T
HAVE KNOWN HE WAS LYING. MELINDA A. HARRIGAN: CORRECT. JUSTICE
WAINER APTER: BUT YOU JUST SAID THEY DID KNOW HE WAS LYING THEN. JUSTICE
PATTERSON: I THOUGHT YOUR POINT WAS THAT THERE WAS NO STATEMENT THAT COULD BE USED AGAINST
HIM. MELINDA A. HARRIGAN: THERE WAS NO STATEMENT THAT COULD BE USED AGAINST
HIM BUT WHAT I HAM SAYING THE FACT HA HE LIED HIS WHEREABOUTS AND ALL THAT, THE POLICE
OFFICERS KNEW THAT -- HE BECAME A SUSPECT AND THEY WANTED TO QUESTION HIM ABOUT THAT, BUT
AT THAT POINT IN TIME THEY DIDN'T KNOW THAT THE DEFENDANT HAD LIED. THEY STILL HAD TO
QUESTION HIM ABOUT IT. THEY STILL HAD TO QUESTION HIM AND SAY WELL, DO YOU KNOW THERE
WAS SOMEBODY THAT SAW YOU GO IN 598:00, YOU SAID YOU WERE HERE. JUSTICE WAINER
APTER: THEY KNEW THAT THE VICTIM WAS WRAPPED IN SOMETHING FROM THE DEFENDANT'S APARTMENT,
BUT YOU'RE STILL SAYING THAT AT THE TIME THEY GAVE THE MIRANDA WARNINGS, WHICH WAS, AGAIN,
RIGHT BEFORE THE SECOND INTERVIEW THEY HAD NO IDEA THAT HE HAD LIED AND THEY DIDN'T KNOW
THAT HE WAS A SUSPECT? YOU PREVIOUSLY SAID THAT THEY DID KNOW HE WAS A SUSPECT AND THEY
DID KNOW THAT HE LIED. MELINDA A. HARRIGAN: LET ME CLARIFY. I WAS ANSWERING
THE QUESTION ABOUT WHAT HE SAID DURING THE FIRST WITNESS INTERVIEW; THAT'S WHAT I AM SAYING.
THEY DID NOT KNOW THAT HE HAD LIED ABOUT WHERE HE HAD GONE, THE MOBILE STORE OONDZ THE
TRAILS AN ALL OF THAT. THAT WAS WHAT WAS TALKED ABOUT IN THE FIRST WITNESS INTERVIEW.
THEY DID NOT KNOW AT THAT PARTICULAR POINT IN TIME THAT THE DEFENDANT HAD LIED ABOUT WHAT
HE HAD DONE THAT DAY. THEY KNEW THAT HE WAS A SUSPECT AND THAT'S WHY THEY GAVE HIM MIRANDA
WARNINGS AND THAT'S WHY HE WAS TROEGED BUT THERE WOULD BE NO REASON TO GIVE HIM WARNINGS.
JUSTICE PATTERSON: I AM TOTALLY CONFUSED NOW BECAUSE I THOUGHT YOU SAID,
I THOUGHT YOU TOLD US THAT WHEN THEY SPOKE TO HIM ABOUT HIS FIRST INTERVIEW AFTER HE SAID
ALL THIS STUFF ABOUT TRAILS AND ALL THESE STORES, THAT HE HAD NOT SAID THAT IN THE FIRST
INTERVIEW? I THOUGHT THAT WAS WHAT YOU WERE SAYING? MELINDA A.
HARRIGAN: THAT'S WHAT I AM TRYING TO SAY. THE DETECTIVES BROUGHT THAT UP IN THE SECOND
INTERVIEW. THEY PINPOINTED HIM; OKAY? THEY WERE TALKING ABOUT IT IN THE
SECOND INTERVIEW. JUSTICE PATTERSON: IS THERE ANY BASIS TO CONCLUDE THAT
HE SAID ALL THIS STUFF ABOUT THE TRAILS AN THE STORE AND THE PLACES HE WENT IN THE FIRST
INTERVIEWS? MELINDA A. HARRIGAN: NO BECAUSE I THINK WHEN YOU READ THE FIRST
INTERVIEWS AN WAFRP THE SEKD INTERVIEW THAT'S WHEN HE WAS CHANGING HIS STORY.
CHIEF JUSTICE RABNER: YOU SAID REPEATEDLY TO US THAT HE LIED IN THE FIRST INTERVIEW.
MELINDA A. HARRIGAN: YOU SEE THAT IN THE SECOND INTERVIEW. CHIEF
JUSTICE RABNER: IF THAT'S TRUE, HE KNOWS HE'S LIED. MELINDA A. HARRIGAN:
CERTAINLY. CHIEF JUSTICE RABNER: TAKE A STEP BACK. THE O'NEILL FACTORS
ONLY COME INTO PLAY IF YOU HAVE A TWO-STAGE INTERROGATION WHERE BOTH THE FIRST AND THE
SECOND INTERVIEWS ARE AN INTERROGATION SO I UNDERSTAND YOUR ARGUMENT IN SHORT FIRM TO BE
HE WASN'T TROEGED THE FIRST TIME THEREFORE WE DON'T NEED TO WORRY ABOUT O'NEILL.
MELINDA A. HARRIGAN: CORRECT. CHIEF JUSTICE RABNER: OUR IMPRESSIONS ARE
FOCUSED ON THE IMPRESSION THAT THE FIRST INTERVIEW WAS INDEED AN INTERROGATION.
THAT'S THE PLATFORM FOR THE QUESTIONS, I AM NOT ASKING YOU TO CONCEDE IT.
ASSUMING THAT WAS THE CASE, FACTOR 4, SHOULDN'T A DEFENDANT WHO HAS PREVIOUSLY LIED BE
TOLD WE'RE NOT GOING TO USE THE STUFF THAT YOU SAID THE FIRST TIME AGAINST YOU, THAT IT
WOULD NOT SIMPLY BE LIMITED TO DIRECT ADMISSIONS, BUT DAMAGING INFORMATION THAT CAN BE
USED AGAINST HIM AT A TRIAL, WOULDN'T IT LOGICALLY EXTEND TO FALSE STATEMENTS MADE
DURING THE PRIOR SESSION, AS WELL? MELINDA A. HARRIGAN: YOUR HONOR, I DON'T
THINK SO. AND HERE IS WHY, BECAUSE I DON'T THINK THAT POLICE TELLING A SUSPECT AT THAT
TIME THAT -- IF YOU LIED DURING THE FIRST IT'S NOT GOING TO BE USED AGAINST YOU IN THE
SECOND. JUSTICE PIERRE-LOUIS: IT'S NOT IF YOU LIED. ITS THE STATEMENTS
THAT YOU MADE. BECAUSE IF THIS CASE HAD GONE TO TRIAL, SOMEONE FROM YOUR OFFICE WOULD HAVE
STOOD UP AN SAID HE LIED IN HIS FIRST INTERVIEW BECAUSE HE KNEW HE WAS GUILTY. HE LIED.
HE LIED HE LIED. USING WHAT HE SAID IN THAT FIRST IRNTS AGAINST HIM, NOTWITHSTANDING
THE FACT THAT IT WAS NO ADMISSION TO THE CRIME AND HE WAS TRYING TO EXCULPATE HIMSELF.
EVEN THE SUPREME COURT IN MIRANDA IDENTIFIES THE FACT THAT THE DEFENDANTS
WILL MAKE STAMTHS HOPING TO BE EXCULPATORY BUT THOSE STATEMENTS END UP BEING INCRIMINATING
BECAUSE THE GOVERNMENT LATER USES THOSE EX -- FALSE EXCULPATORY STATEMENTS AGAINST THE
DEFENDANT TO PAINT THEM AS A LIAR; THAT'S EXACTLY THE CONVERSATION WE'VE BEEN HAVING.
YOU SAID THAT HE LIED NUMEROUS, NUMEROUS TIMES. SO WHY, THEN, SHOULDN'T HE
HAVE BEEN TOLD WHAT YOU PREVIOUSLY SAID CAN'T BE USED AGAINST YOU, WE'RE STARTING FRESH
HERE ARE YOUR MIRANDA WARNINGS, YOU DO NOT HAVE TO TALK GOING FORWARD. MELINDA
A. HARRIGAN: BECAUSE I THINK GOING DOWN A ROAD WHERE THERE IS A RULE OR CASE LAW OR
SOMETHING LIKE THAT THAT SAYS WHEN A SUSPECT IS DECEITFUL INFORM POLICE THAT THAT CAN BE
USED AGAINST HIM IS JUST A DANGEROUS PLACE TO GO. JUSTICE PATTERSON: THIS IS
PAGE -- THIS IS FROM ED WARDZ. IT IS 58 ON ONE PAGE HERE BUT IT'S PAGE 21 OF THE 23 ON
THE PRINTOUT, UNDER THAT,... ADMISSIONS MADE PRIOR TO BEING GIVEN THE MIRANDA WARNINGS
COULD NOT BE USED AGAINST HIM PROVIDING THAT INFORMATION WOULD STRONGLY SUGGEST THAT THE
DEFENDANT MADE ANY POST WARNING INCRIMINATING STATEMENTS KNOWINGLY VOLUNTARILY AN
INTELLIGENTLILY. SIT YOUR CONTENTION THAT ED WARDZ FACTOR FOUR. CHIEF
JUSTICE RABNER: O'NEILL. JUSTICE PATTERSON: THANK YOU YOU. I AM ON THE
WRONG CASE. I APOLOGIZE TO BOTH OF MY COLLEAGUES. I HAVE GOT THE WRONG CASE IN MY
HEAD HERE. O'NEILL. FACTOR 4 DEALS WITH ADMISSIONS. MELINDA A.
HARRIGAN: IT IS WHEN THE INCULPATORY REPART OF THAT IS WHEN THE DEFENDANTS OR THE SUSPECT
ADMITS TO A CRIME. IT'S ADMISSIONS TO THE ACTUAL CULPABILITY OF THE CRIME, NOT LYING
ABOUT THAT HE WENT TO A MOBILE STORE. CHIEF JUSTICE RABNER: SO ASSUME THESE
FACTS, THAT SOMEBODY IS TROEG GATD, QUESTIONED FOR AN HOUR AND IT'S AN INTERROGATION THAT'S
WHY WE'RE TALKING ABOUT O'NEILL HERE AN FOR THE FIRST HOUR THEY LIE REPEATEDLY AN THEN
TOWARD THE TAIL END THEY MAKE A DIRECT ADMISSION. YOUR UNDERSTANDING OF O'NEILL
IS THAT ONLY THAT LAST -- THE DEFENDANT NEED ONLY BE TOLD THAT THAT LAST BIT OF INFORMATION
CANNOT BE USED AGAINST HIM BUT THE SERIES OF LIES FOR THE FIRST HOUR CAN? MELINDA
A. HARRIGAN: I THINK THAT'S DIFFERENT, YOUR HONOR. IT'S DIFFERENT WHEN THE DEFENDANT
CONFESS ES WITHOUT MIRANDA. YOU KNOW, THE WHOLE PURPOSE -- THEY CONFESS WITHOUT MIRANDA
AND THEN THEY ARE THEN MIRANDIZED, THOEF TO BE TOLD THAT OBVIOUSLY BECAUSE THEY CONFESSED
FOR SOMETHING THASHGS EASE WHAT O'NEILL STANDS FOR. CHIEF JUSTICE RABNER:
UNDERSTAND WHAT YOU'VE JUST ARGUED TO US, THE EXTENSIVE LIES ARE NOT AN ADMISSION.
MELINDA A. HARRIGAN: BECAUSE I DON'T THINK THAT LYING TO POLICE IS AN ADMISSION.
IT'S NOT INCULPATORY REIN THE SENSE THAT HE IS MITIGATING ADMITTING I COMMITTED A CRIME.
CHIEF JUSTICE RABNER: SO WHAT HAPPENS IN THE HYPOTHETICAL THAT I GAVE YOU,
REPEATED LIES FOLLOWED BY AN ADD ADMISSION, WHAT NEEDS TO BE TOLD TO THE DEFENDANT BEFORE
THE SECOND INTERROGATION. MELINDA A. HARRIGAN: THAT HIS ADMISSION CAN'T
BE USED AGAINST HIM. CHIEF JUSTICE RABNER: AND THAT'S IT? MELINDA
A. HARRIGAN: YES BECAUSE NOTHING ELSE FALSE WITHIN THE FACTORS. IT'S THE ADMISSION PART
OF IT. AGAIN, A DEFENDANT BEING DECEPTIVE TO POLICE IS VERY DIFFERENT THAN A DEFENDANT
CONFESSING TO A KRIECHLT IT'S A VERY DIFFERENT SITUATION SO THE PROTECTIONS THAT MIRANDA
GIVES IS THAT YOU HAVE THE RIGHT TO REMAIN SILENT SO THE FAMOUS CAT OUT OF THE BAG, WUN,
YOU KNOW, ONCE THE CAT IS OUT OF THE BAG YOU CAN'T PUT IT BACK IN, BUT IF YOU'RE WILLING
TO LIE TO POLICE ABOUT GOING TO A MOBILE STORE THAT'S NOT THE SAME. YOU CAN STILL TO
IT IF YOU WANT TO. YOU DON'T HAVE TO CHANGE YOUR STORY IS WHAT I AM SAYING. ONCE YOU
CONFESS TO A CRIME, THERE IS NO GOING BACK. IN THIS PARTICULAR INSTANCE THE DEFENDANT
COULD HAVE STUCK WITH WHERE HE WAS THAT DAY. HE DIDN'T HAVE TO CHANGE HIS STORY THAT
IS VERY DIFFERENT THAN SOMEONE ADMITTING HE MURED SOMEONE. JUSTICE PIERRE-LOUIS:
IN MIRANDA ITSELF THE COURT RECOGNIZES THAT THESE STATEMENTS ARE INCRIMINATING. THESE
EXCULPATORY STAMTHS THAT DEFENDANTS GIVE DURING INTERROGATIONS AND THE OPINIONS STATE
STATEMENTS MERELY INTENDED TO BE EXCULPATORY BY THE DEFENDANT ARE OFTEN USED TO IMPEACH
HIS STATEMENT AND THUS TO PROVE GUILT BY INCRIMINATION. THESE STATEMENTS ARE
INCRIMINATING UNDER ANY MEANINGFUL SENSE OF THE WORD AND MAY NOT BE USED WITHOUT THE FULL
WARNINGS AN WAIVER REQUIRED FOR ANY OTHER STATEMENT. SO IF WE FIND THAT
THAT FIRST INTERVIEW WAS AN INTERROGATION AN MIRANDA WAS REQUIRED, THESE LIES FALL UNDER
-- FALL UNDER THAT CASE. MELINDA A. HARRIGAN: I WOULD DISAGREE YOUR HONOR.
I WOULD DISAGREE THAT THE DEFENDANTS LIES ABOUT HIS WHEREABOUTS IS AKIN TO A CONFESSION.
JUSTICE PATTERSON: THE ISSUE IS DOES O'NEILL GET EX SPANLDED.
MELINDA A. HARRIGAN: RIGHT AND I WOULD SAY NO. ESPECIALLY THERE IS NO NEED TO EXPAND
IT IN THIS PARTICULAR CASE. THE COURT: WOULD YOU CARE TO BRIEFLY ADDRESS
THE FIFTH POINT MENTAL HEALTH. MELINDA A. HARRIGAN: SURE. MENTAL HEALTH.
THE APPELLATE COURT COMMITTED ERROR WHEN IT RELIED ON THE DEFENDANT'S MENTAL
HEALTH ISSUES. THE COURT RELIED THIS WAS IMPROPER BECAUSE THERE WAS NO RECORD
ESTABLISHED BELOW TO SUPPORT THIS FINDING. NOT OBL R ONLY WAS THERE NO ARGUMENT BELOW
BY DEFRNGS COUNSEL THERE WAS NO DOCUMENTATION ADMITTED INTO EVIDENCE THAT THE DEFENDANT
EVEN HAD ANY MENTAL HEALTH ISSUES. THE STATE DID NOT HAVE THE OPPORTUNITY TO REBUT THIS
INFORMATION OR EVIDENCE AND THE TRIAL COURT CERTAINLY DID NOT HAVE THE OPPORTUNITY TO
RULE ON WHETHER OR NOT THE DEFENDANT'S ALLEGED MEANT THAT WILL HEALTH ISSUES NEGATED A
KNOWING AND VOLUNTARY ERROR. BECAUSE DEFENDANT ALSO SELF REPORTED THAT HE
HAD BEEN TO TREATMENT AND THAT HE WAS NEVER GOING DARK AGAIN, NECESSARILY IF THE COURT
WAS GOING TO RESO HEAVILY ON DEFENDANT RACE SELF REPORTED MENTAL HEALTH ISSUES DEFENDANT.
: CHIEF JUSTICE RABNER: ANY OTHER QUESTIONS, ANYONE?
ANYTHING YOU WOULD LIKE TO ADD? MELINDA A. HARRIGAN: AND BASED ON THESE
MANY ERRORS WITHIN THE DECISION THE STATE REQUESTS THAT YOU REVERSE THE ERRORS
THE COURT: ATTORNEY BIRCK: GOOD AFTERNOON, YOUR HONORS.
18-YEAR OLD ANDREAS ERAS SO WAS QUESTIONED BY DETECTIVE IN AN INTERROGATION ROOM
AT THE KEANSBURG POLICE DEPARTMENT FOR AN HOUR AND A HALF WITHOUT ANY
MIRANDA WARNINGS. HE WAS QUESTIONED ABOUT WHAT WHEN HE LAST SAW THE VICTIM AND
AND THE RELATIONSHIP, THE LAYOUT OF HIS APARTMENT, AND THE WHEREABOUTS ON THE
DAY THAT HE HAD WENT MISSING. AFTER HE HAD BEEN IN THE POLICE STATION
FOR NEARLY SEVEN HOURS, HE WAS ^ TIME ^ FILE HI GIVEN HIS MIRANDA WARNINGS BUT
IN DOING SO THE DETECTIVES TRIVIAL LIESED THOSE WARNINGS. THEY AWE
INSURED MR. EA RAZ SO THAT THE CONVERSATION WOULD JUST BE A CONTINUATION OF THE
FIRST ONE AND THAT HE WAS NOT UNDER ARREST. AS THE INTERROGATION CONTINUED
SHALL IS THE DETECTIVES REPEATEDLY TOLD HIM THEY WERE THERE TO HELP HIM, THAT HE WAS
NOT BEING JUDGED AND THAT NO ONE WAS WATCHING THE INTERROGATION. THEY UMPED
HIM TO TALK SO THAT THIS INCIDENT WOULDN'T DEFINE THE REST OF HIS
LIFE. IN DOING SO, THE DETECTIVES HERE USED FIVE DIFFERENT TECHNIQUES THAT THIS
COURT HAVE FOUND UNDERMINE VOLUNTARINESS OF A PERSON'S WAIVER AND STATEMENT.
I WOULD LIKE TO BEGIN WITH THE PROBLEMS WITH THE TWO SEPARATE INTERROGATIONS
IN THIS CASE. THE FIRST STATEMENT MUST BE SUPPRESSED. WHEN MR. EA RAS SO WAS
THEN QUESTIONED FOR AN HOUR AND A WITHOUT THE MIRANDA WARNINGS AND THEN
THE QUESTIONING SIMPLY CONTINUED LATER ON IN THE SECOND STATEMENT, IN THE SAME
PLACE BY THE SAME DETECTIVES AND WITHOUT ANY KNOWLEDGE THAT HIS FIRST
STATEMENT COULDN'T BE USED GNS HIM, THE SECOND STATEMENT MUST BE SUPPRESSED UNDER
STATE V. O'NEILL. THEN I WILL DISCUSS THE TOTALITY OF THE CIRCUMSTANCES
WITH REGARD TO THE SECOND STATEMENT AND WHY UNDER THAT ANALYSIS, MR. EA RAS SO'S
WAIVER AND STATEMENT WERE NOT KNOWING, INTELLIGENT AND VOLUNTARILY. THE DETECTIVES
HERE UNDERMINED THE MIRANDA WARNINGS, MINIMIZED THE SERIOUSNESS OF THE
OFFENSE AND IMPLIED THAT THE WARNINGS WERE JUST A FORMALITY FOR MR. EA RAS SO
BECAUSE HE WAS IN A POLICE DEPARTMENT OF THE THEY ALSO MISLED HIM AS TO
HIS STATUS IN THIS CASE. IN LOIT OF HIS YOUNG AGE, LACK OF A HIGH SCHOOL EDUCATION,
LACK OF ANY EXPERIENCE IN THE ADULT CRIMINAL LEGAL SYSTEM AND VERY
LITTLE EXPERIENCE IN EVEN THE JUVENILE SYSTEM, MR. EA RAS SO WAS PARTICULARLY
VULNERABLE TO THESE TYPE OF TECHNIQUES THAT THE STATE USED HERE. THEREFORE, STATE
CANNOT PROVE BEYOND A REASONABLE DOUBT THAT MR. EA RAS SO'S STATEMENT WERE
KNOWING, INTELLIGENT AND VOLUNTARY AND THE COURT SHOULD -- CHIEF
JUSTICE STUART RABNER: I'D LIKE TO DID YOU ABOUT THE LAST POINT THAT LAST STATEMENT
THAT HE WAS MISLED ABOUT HIS STATUS OF THE THE APPELLATE DIVISION CAME
OUT VERY SORTLY AFTER THIS COURT'S DECISION IN SIMMS SO IT'S UNDERSTANDABLE THAT
THEY DIDN'T HAVE THAT AS PART OF THE LENGTHY OPINION THAT WAS DONE. ARE
YOU ASKING THE COURT TO OVERTURN SIMMS. ATTORNEY BIRCK: I AM NOT, YOUR
HONOR. I THINK HERE AGAIN WE ARE HOOKING AT THE TOTALITY HERE THIS IS
THE PROBLEM IS WHEN MR. EA RAS SO DPOT HIS WARNINGS HE WAS TOLD WE'RE GIVING
YOU BECAUSE WE'RE IN A POLICE DEPARTMENT WE WANT TO TALK TO PEOPLE ABOUT
THIS, WE WANT TO TALK TO YOU ABOUT THIS, YOU'RE NOT UNDER ARREST SHS WE'RE GIVING
YOU BECAUSE WE'RE IN A POLICE DEPARTMENT OF THE THEY SAID THAT TWICE AND THEN
THEY GO ON TO ASK HIM OR TO GIVE THE WARNINGS. AND SO THE FACT I THINK
HERE WHAT'S DIFFERENT IS THE POLICE ARE VOLUNTARILY OFFERING UP THIS STATEMENT
THAT YOU'RE NOT UNDER ARREST AND THEY ARE UNDERMINING THE OTHER MIRANDA
WARNINGS SO THEN HE HAS NO IDEA AT ALL THAT HE WOULD BE UNDER ARREST. BECAUSE
THE POLICE HERE UNDERMINED THE MIRANDA WARNINGS IN THE FIRST PLACE, HE HAS
NO IDEA AND CANNOT VOLUNTARILY WAIVE HIS RIGHTS IN HE DOES NOT EVEN KNOW THAT
HE'S UNDER SUSPICION AT ALL. THE COURT: WHAT, IF ANYTHING, DID THE
POLICE HAVE TO TELL HIM CONSISTENT WITH SIMMS OR A DEPARTURE FROM SIMMS.
ATTORNEY BIRCK: THEY DID NOT HAVE TO TELL HIM ANYTHING. THE
ONLY THING THEY SHOULD HAVE DONE HERE IS NOT SAY HE WAS UNDER ARREST. IF THEY DID
NOT, THEN THERE WOULD BE NO REASON FOR THEM TO SAY ANYTHING ABOUT HIS
SUSPECT STATUS BECAUSE BECAUSE THEY THEY AFFIRM TIFL TOLD HIM THAT HE WAS NOT
UNDER ARREST, THAT THESE WARNINGS ARE JUST GIVEN BECAUSE HE'S IN A POLICE
DEPARTMENT SHALL THAT'S WHEN IT COMES IN THAT THERE HAS TO BE SOMETHING THERE,
SO HE KNOWS THAT THESE WARNINGS ARE NOT JUST A FORMALITY AND THEY KNOW IT'S SOMETHING
REALLY IMPORTANT TO TAKE INTO CONSIDERATION BEFORE HE WAIVES HIS
RIGHT. ASSOCIATE JUSTICE RACHEL WAINER APTER: HE WAS NOT
ACTUALLY UNDER ARREST, RIGHT. ATTORNEY BIRCK: HE WAS NOT FORMALLY
UNDER ARREST BUT WHEN WE LOOK AT THE EVIDENCE THAT WE HAVE AT THIS TIME,
I THINK THE APPELLATE DIVISION WAS ENTIRELY CORRECT THAT THERE'S PROBABLE CAUSE
THAT HE COMMITTED THIS OFFENSE. THE COURT: BUT UNDER SIMMS
DOES THAT IMPOSE AN OBLIGATION TO THE POLICE TO SAY ANYTHING TO THE
DEFENDANT. ATTORNEY BIRCK: AGAIN, THERE'S NO OBLIGATION AT
ALL BUT I THINK WHEN WE'RE LOOKING HERE, BECAUSE THEY ARE SAYING YOU'RE NOT UNDER
ARREST, HE'S CLEARLY THE PRIME SUSPECT IN THIS CASE. THEY ARE UNDERMINING
THE MIRANDA WARNINGS IN THE FIRST INSTANCE AND THEN TRYING TO -- WHAT KIND OF
DIAZ TALKS ABOUT IS TRICK HIM INTO WAIVING HIS RIGHTS WITHOUT KNOWING HIS
REAL STATUS HERE AND THE FACT THAT HE IS UNDER SUSPICION OF THESE.
THE COURT: AREN'T YOU ASKING US TO ASSUME THAT ANY TIME THE POLICE HAVE PROBABLE
CAUSE IT'S THE EQUIVALENT OF AN ARREST SITUATION? ATTORNEY
BIRCK: IN THIS CASE, AGAIN, THIS CASE IS SO DIFFERENT BECAUSE OF THE UNDERMINING
OF THE MIRANDA WARNINGS AT THE START SO NOT EVERY CASE IS GOING TO HAVE
POLICE COMING IN AND SAY HEY WE'RE JUST GIVING THESE TWO BECAUSE YOU'RE IN A POLICE
DEPARTMENT AND YOU'RE NOT UNDER ARREST SO DON'T WORRY. IT REALLY, THE
STATEMENTS THAT THE POLICE WERE GIVING MR. EA RAS SO REALLY DID SEEM TO INDICATE
THAT OH, WE JUST HAVE TO GIVE THESE TO EVERYONE WHOSE HERE.
ASSOCIATE JUSTICE ANNE M. PATTERSON: THEY DID NOT SAY YOU'RE NOT THAT IN TROUBLE,
THEY DIDN'T SAY THAT. ATTORNEY BIRCK: THEY DIDN'T SAY THAT
BUT THIS IS PT IMPLICATION. THEY SAID WE JUST HAD A GREAT CONVERSATION.
I EXPECT WE'RE GOING TO GO ON AND NOW BECAUSE WE'RE IN A POLICE DEPARTMENT YOU'RE
NOT UNDER ARREST BUT BECAUSE WE'RE IN A POLICE DEPARTMENT AND WE WANT
TO TALK TO PEOPLE ABOUT THIS IS WE WANT TO. ASSOCIATE JUSTICE ANNE M.
PATTERSON: WE WANT TO TALK TO YOU ABOUT THIS. ATTORNEY BIRCK:
ABSOLUTELY. ASSOCIATE JUSTICE ANNE M. PATTERSON: WE KNOW WHAT WAS
SAID AND WASN'T INTED AISLE NOT IN ANY WAY DEFENDING A NUMBER OF THESE STATEMENTS
BUT WHICH NEED TO BE ACCURATE ABOUT WHAT WAS SAID AND WHAT WASN'T SAID.
ATTORNEY BIRCK: THEN ON, LET ME SEE. I HAVE THIS DIRECT QUOTE
BECAUSE THEY ACTUALLY DO SAY BECAUSE WE WANT TO TALK TO PEOPLE ABOUT THIS.
ASSOCIATE JUSTICE ANNE M. PATTERSON: AND RIGHT AND THEN THEY SAY WE
WANT TALK TO YOU ABOUT THIS. ATTORNEY BIRCK: RIGHT.
ASSOCIATE JUSTICE ANNE M. PATTERSON: NOW DOESN'T THIS ACTUALLY DISH THIS FROM
DIAZ. IN DIAZ, WE'RE TALKING ABOUT A DRUG INVESTIGATION AND HIDE FRG THAT
PERSON THAT THERE'S A HOMICIDE INVOLVED OF THE HERE, EVERYBODY KNEW THAT WHAT WAS
BEING TALKED ABOUT WAS THIS MISSING LITTLE GIRL. ATTORNEY
BIRCK: YES, BUT AGAIN BECAUSE THE OFFICERS AND I THINK THAT THE FACT THAT THEY
DID SAY BECAUSE WE WANT TO TALK TO PEOPLE ABOUT THIS BEFORE WE THEY SAY
WE WANT TO TALK TO YOU ABOUT THIS REALLY DOES PUT THE WE WANT TO TALK TO YOU
ABOUT IT IN A DIFFERENT CONTEXT. IF THEY SAY WE WANT TO TALK TO YOU ABOUT THIS
WITHOUT SAYING WE WANT TO TALK TO PEOPLE I THINK THAT WOULD BE A TOTALLY
DEFRPT QUESTION BUT BECAUSE IT SAYS PEOPLE IT KIND OF PUTS THEM IN THIS GROUP
OF LARGER PEOPLE THAT ANYBODY WHOSE IN A POLICE DEPARTMENT THAT THEY WITHIN
TO SFEEK TO ABOUT THIS ISSUE IS GOING TO GE THE MIRANDA WARNINGS.
THE COURT: I WANT TO FOCUS YOU ON A FEW PASSAGES IN THE APPELLATE DIVISION DECISION
ON PAGES 41 AND 42 AND TELL US AGAIN IF YOU STAND BY THIS. AGAIN SHALL THIS
IS PRE SIMMS SO THE APPELLATE DIVISION COULD NOT HAVE PREDICTED THE OUTCOME THERE.
AT THE TOP OF 48, APPELLATE DIVISION NOTES, DEFENDANT WAS NEVER INFORMED
OF HIS STATUS AND A FEW LINES DOWN HE WAS NEVER TOLD THE POLICE WERE INVESTIGATING
A HOMICIDE. AND THEN AGAIN AT THE TOP OF THE NEXT PAGE, DETECTIVE'S KNOWLEDGE
ESTABLISHED PROBABLE CAUSE AND THEREFORE THE NEED TO INFORM DEFENDANT OF HIS TRUE
STATUS. ARE ANY OF THOSE VIABLE READS ON WHICH TO REST AN
ARGUMENT IN LIGHT OF SIMMS? ATTORNEY BIRCK: TO THE EXTENT THAT THAT'S
WHAT THE APPELLATE DIVISION HOLDS AFTER SIMMS, I DON'T THINK SO.
CHIEF JUSTICE STUART RABNER: AND SO YOU'RE NOT RELYING ON A FAILURE TO
INFORM OF HIS STATUS, OF THE INVESTIGATION OF HOMICIDE, OF HIS TRUE STATUS
BASED ON PROBABLE CAUSE? ATTORNEY BIRCK: NOT HERE. NO.
CHIEF JUSTICE STUART RABNER: IT SOUNDS LIKE YOU'RE TRYING TO DO THAT
INDIRECTLY BY SAYING WELL, HE WAS IN EFFECT UNDER ARREST.
ATTORNEY BIRCK: I THINK WHAT WE'RE TRYING TO DO HERE IS BECAUSE IT'S STILL PART
OF THE TOTALITY OF THE CIRCUMSTANCES ANALYSIS, SIMMS DOES SAY THAT
ALTHOUGH IT'S NOT A BRIGHT-LINE RULE, THE FACT THAT SOMEONE IS A SUSPECT AND THERE
MIGHT BE PROBABLE CAUSE TO ARREST THAT PERSON IS A FACTOR TO CONSIDER
UNDERNEATH THE TOTALITY OF THE CIRCUMSTANCES, WHETHER SOMEONE'S WAIVER CAN BE
KNOWING, INTELLIGENT AND VOLUNTARY. THE COURT: LET ME GO
BACK TO THE FIRST QUESTION. ARE YOU ASKING US NOT TO FOLLOW SIMMS?
ATTORNEY BIRCK: ABSOLUTELY NOT. I THINK TAKING THIS INTO ACCOUNT UNDER THE
TOTALITY IS FOLLOWING SIMMS. WE CAN TAKE INTO ACCOUNT BECAUSE HE WAS
AFFIRMATIVELY TOLD WE'RE JUST DOING THIS BECAUSE WE'RE IN A POLICE DEPARTMENT, HE WAS
AFFIRMATIVELY TOLD YOU'RE NOT UNDER ARREST AND THEN DID NOT SAY ANYTHING
ABOUT HIS STATUS, ALL OF THOSE THINGS TOGETHER. WHEN WE'RE LOOKING AT THE TOTALITY
AND YOU CAN'T, UNFORTUNATELY, LIKE IN THIS CASE YOU CAN'T SEPARATE THEM
OUT. THEY ARE SO INTERTWINED IN THIS CASE BECAUSE IT ALL COMES AT THE SAME TIME
RIGHT BEFORE THEY ARE TRYING GET HIM TO WAIVE. CHIEF JUSTICE
STUART RABNER: SO HELP ME TO UNDERSTAND THOUSAND HE'S TWO THINGS CAN COINCIDE MUCH
THE POLICE IN SIMMS HAVE NO OBLIGATION TO TELL SOMEONE THEIR STATUS
AND YET IF THEY DON'T YOUR ARGUMENT IS IT CAN BE USED AGAINST THEM IN THE TOTALITY
OF THE CIRCUMSTANCES. ATTORNEY BIRCK: THERE'S NO OBLIGATION
IN A VACUUM BUT BECAUSE THEY AFFIRMATIVELY TOLD HIM YOU ARE NOT
UNDER ARREST THEY ARE TRYING TO DISPEL THE PART OF THE MIRANDA WARNINGS THAT SCREAM
OUT THAT SOMEONE IS UNDER SUSPICION. ASSOCIATE JUSTICE RACHEL
WAINER APTER: BUT THAT SOUNDS LIKE YOU'RE ASKING FOR A BRIGHT-LINE RULE
THAT POLICE CAN NEVER SAY YOU'RE NOT UNDER ARREST WHEN THEY HAVE PROBABLE CAUSE
TO ARREST THE PERSON. ATTORNEY BIRCK: I'M NOT ASKING FOR ON
BRIGHT-LINE RULE AND THIS IS WHY, THE THREE THINGS I THINK THAT REALLY GO TO
WAIVER HERE IS ONE, THE FACT THAT THE STATEMENT THAT WE'RE IN A POLICE STATION
SO THAT'S LIKE A WHOLE SEPARATE, THAT IMPLIES A FORMALITY OF THE MIRANDA
WARNINGS. THEN AFFIRMATIVELY TELLING HIM THAT HE IS NOT UNDER ARREST WHEN THERE IS
PROBABLE CAUSE DOES FACTOR INTO THE TOTALITY HERE. ALONG WITH THE
STATEMENT THAT WE ARE GOING TO CONTINUE ON THIS CONVERSATION THAT WE HAVE ALREADY
BEEN TALKING ABOUT, THOSE THREE THINGS HAVE SET MR. EA RAS SO UP IN THIS
UNIVERSE NOW WHERE HE'S ALREADY HAD A CONVERSATION WITH POLICE, HE'S ALREADY SPOKEN
WITH THEM FOR AN HOUR AND A HALF, GIVEN THEM INFORMATION ABOUT HIS ALIBI, ABOUT
THE LAYOUT OF THE APARTMENT, WHICH IS VERY IMPORTANT WHEN THE BODY WAS
FOUND RIGHT UNDERNEATH A WINDOW IN HIS APARTMENT AND THOSE TYPES OF THINGS ALL
CAME OUT BEFORE AND THE POLICE ARE JUST SAYING HEY WE ARE GOING TO CONTINUE
ON THIS CONVERSATION, WE HAD A GREAT TIME BEFORE SO, AGAIN, LOOKING.
ASSOCIATE JUSTICE ANNE M. PATTERSON: JUST TO BE CLEAR, THEY DIDN'T SAY WE HAD
A GREAT TIME BEFORE BSHG NO, BUT THEY DID SAY, YOU KNOW SHS WE'RE EASY TO
TALK TO. WE HAD AN EASY CONVERSATION MUCH. ASSOCIATE JUSTICE ANNE M.
PATTERSON: ALL I'M SUGGESTING IS THESE, EVERYTHING THEY SAID IS EXTREMELY
IMPORTANT SO IT'S IMPORTANT. ATTORNEY BIRCK: YES.
ASSOCIATE JUSTICE ANNE M. PATTERSON: TO BE ACCURATE ABOUT WHAT THEY DID OR DIDN'T
SAY. ATTORNEY BIRCK: YES SO THEY SAID WE HAD AN EASY
CONVERSATION AND WE EXPECT TO CONTINUE IN THE SAME WAY AND SO ALL THOSE COMMENTS
TOGETHER HAVE UNDER MINDS THE IMPORTANCE OF THESE MIRANDA WARNINGS AND DO NOT
TELL MR. EA RAS SO THE TYPE OF RISK HE IS FACING MY WAIVING THOSE RIGHTS
AND SO I'M NOT SAYING THIS THERE IS A BRIGHT-LINE RULE BUT THE SPECIFIC
CIRCUMSTANCES IN THIS CASE INDICATE THAT THE OFFICERS HERE REALLY TRIED TO
UNDERMINE AND CHIP AWAY AT HIS UNDERSTANDING OF THE MIRANDA WARNINGS IN ORDER
TO INDUCE HIM TO WAIVE AND ALL OF THOSE THINGS TOGETHER IT IS NOT A BRIGHT-LINE
RULE, IT IS THIS INTERWOVEN FACTUAL SCENARIO THAT PROVIDES SUPPORT FOR
WHY THE STATEMENT HERE MUST BE SUPPRESSED. SO. SO TO
CONTINUE HERE WITH THE TOTALITY, AS SOON AS WE'RE ARGUING HERE, I ALSO THINK THAT
AS YOUR HONOR PONE THE OUT EARLIER, SOME OF THESE STATEMENTS SHS WE'RE
A HERE TO HELP YOU THROUGH THIS, WE'RE HERE TO HELP YOU THROUGH THIS PROCESS,
THE RECOURSE IS TALKING, IT'S DIALOGUE, IT'S EXPLANATION. THESE THINGS SEEM
TO I AM MY THAT WHATEVER IS SAID IS NOT GOING TO BE USED AGAINST HIM AND THIS IS
REITERATED LATER ON WHEN HE ASKS ABOUT THE VIDEO. IN FACT HE LOOKS AT THE
VIDEO ANTE SAID YOU SAID THAT'S NOT ON, RIGHT? AND THE OFFICERS HAVE TO SAY NO,
THAT IS ON BUT ALL IT DOES IS SHOW YOU AND HE SAID OKAY SO IT'S NOT RECORDING
VOICE SNOOL. ASSOCIATE JUSTICE LEE A. SOLOMON: HE ASKED
WHETHER HIS SISTER AND MOTHER WOULD SEE IT. ATTORNEY BIRCK:
HE DOES SAY I WOULD LIKE TALK TO YOU MAN TO MAN AND THEY COME BACK AND THEY SAID
YOU NEED THAT, YOU WANT THAT. ASSOCIATE JUSTICE ANNE M. PATTERSON:
DID THEY EVER TELL HIM THAT NO RECORDING WAS BEING MADE BECAUSE I MISSED
THAT IF THEY SAID THAT. ATTORNEY BIRCK: NO.
ASSOCIATE JUSTICE ANNE M. PATTERSON: SO THEY DIDN'T SAY THAT.
ATTORNEY BIRCK: THEY DID SAY NOBODY KNOWS THIS IS HAPPENING RIGHT NOW.
ASSOCIATE JUSTICE ANNE M. PATTERSON: DID THEY EVER SAY THERE WAS NO SOUND
RECORDING BIK THERE WAS CONFUSION THERE. ATTORNEY BIRCK:
AT FIRST THEY DID KIND OF IMPLY BY AGAIN SAYING THAT'S JUST THERE TO SHOW YOU
AND HE ASKED TO CLARIFY BECAUSE HE IS NOT SURE AND SO WHAT THE POLICE
HERE ARE DOING STILL IS THEY ARE NOT BEING FORTHCOMING AT ALL ABOUT THE IDEA
THAT ANYTHING HE SAYS CAN AND WILL BE USED AGAIN HIM AND ALL THE THINGS ARE
TRYING TO DO ARE. ASSOCIATE JUSTICE LEE A. SOLOMON: DID HE
ULTIMATELY ASSERT HIS MIRANDA RIGHT. ATTORNEY BIRCK: AT THE
VERY END. ASSOCIATE JUSTICE LEE A. SOLOMON: BUT ULTIMATELY
HE DID, AFTER THIS WAS GIVEN, AND THROUGH ALL THIS PROCESS THAT YOU'RE DESCRIBING,
IN TERMS OF CLEARLY, YOU'RE DESCRIBING A WAY THAT HELPS THE DEFENDANT,
HE POPPED UP AND SAID I THINK I WILL ASSERT THOSE RIGHTS NOW.
ATTORNEY BIRCK: AT THIS POINT HE WAS BEING ASKED TO GIVE A BUCCAL SWAB, A HAIR
SAMPLE AND A PUBIC HAIR SAMPLE. ASSOCIATE JUSTICE LEE A. SOLOMON:
I GET IT. HE SAID I'M GOING TO TALK TO MY LAWYER. I'M DONE WITH YOU.
ATTORNEY BIRCK: HE DID ASSERT THEM AT THE VERY END.
ASSOCIATE JUSTICE LEE A. SOLOMON: THAT'S KIND OF MY POINT. AFTER RECALL
THESE THINGS AND ALL THESE THINGS YOU'RE TALKING ABOUT, ALL THIS PURPORTED
MINIMIZATION, REGARDLESS OF HOW WE LOOK AT IT, THAT'S HOW YOU LOOK AT IT, AND
ALL THESE REPRESENTATIONS, REGARDLESS OF HOW YOU LOOK AT IT, THAT'S HOW WE LOOK
AT IT, WHEN THE TIME CAME FOR HIM TO DO SOMETHING HE DIDN'T WANT TO DO,
HE JUMPED UP AND ASSERTED HIS RIGHTS. ATTORNEY BIRCK: I DO
THINK IT'S IMPORTANT TO NOTE THAT THEY ARE TAKING BODILY SAMPLES FROM HIM
AND THAT MIGHT BE SOMETHING THAT. ASSOCIATE JUSTICE LEE A. SOLOMON:
MIGHT BE. I'LL MIGHT NOT BE. ATTORNEY BIRCK: IT IS HERE.
THE STATE'S BURDEN TO PROVE BEYOND A REASONABLE DOUBT THAT HIS STATEMENTS
WERE KNOWING, INTELLIGENT AND VOLUNTARY AND WHEN WE HAVE HIM ASKING QUESTIONS
OF THE POLICE WHO ARE NOT CLARIFYING THE EXACT RIGHT THAT HE'S ASKING ABOUT
THAT HIS STATEMENTS WILL BE USED AGAINST HIM I THINK IT ABSOLUTELY GOES
TO WHETHER HIS WAIVER AND STATEMENT HERE WERE KNOWING, INTELLIGENT AND VOLUNTARY.
I ALSO WANT TO TALK ABOUT THE MINIMIZATION OF THE OFFENSE
HERE. THE OFFICERS SAYING THAT, YOU KNOW, MISTAKES HAPPEN, YOU'RE NOT A MONSTER,
THEY USED LANGUAGE OF MAYBE IT DIDN'T HAPPEN ON PURPOSE, IT WAS AN
ACCIDENT AND THAT TYPE OF LANGUAGE THIS COURT HAS HELD IN L H IN THE SOCIAL STUDIES
THAT HE CITE WHICH L H ALSO CITED THE KASS TON STUDIES REAL LE SHOWS HOW
THIS LANGUAGE OF ACCIDENT COMES OFF TO DEFENDANTS AS AN IMPLICIT PROMISE OF LENIENCY
AND IT IS NOT EXPLICIT, I'M NOT SAYING THAT IT IS EXPLICIT AT ALL BUT I AM
SAYING THAT IN THE -- WHATTED STUDY SHOWS IS THAT THEY ARE AS EFFECTIVE AS EXPLICIT
PROMISES OF LENIENCY IN A LOT OF WAYS ESPECIALLY THE LANGUAGE OF ACCIDENT AND
EXCUSE AND THOSE SPECIFIC WORDS HAVE BEEN SHOWN TO INDUCE PEOPLE TO
CONFESS EVEN IF IT WAS NOT A TRUE CONFESSION. ASSOCIATE
JUSTICE LEE A. SOLOMON: I FORGET SOMETHING. WAS THAT USE. I REALLY DON'T
REMEMBER THE ANSWER TO THIS. WAS THE USE OF THE TERM ACCIDENT USED BEFORE
OR AFTER HE SAID I THOUGHT IT WAS AN INTRUDER AND I STABBED HER. THAT WAS AN
ACCIDENT BIK I HAVE THAT IT WAS AT THREE T ONE NINE THREE, 21 TO 23. WHICH IS
BEFORE HE ULTIMATELY. ASSOCIATE JUSTICE LEE A. SOLOMON:
SAID IT WAS AN ACCIDENT. ATTORNEY BIRCK: BEFORE HE ULTIMATELY
CONFESSED YES. SO WHEN WE DO LOOK AT MINIMIZATION, THESE TYPES OF
TECHNIQUES ARE, THEY WORK, AND WE SEE THIS IN MR. EA RAZ SO'S CASE BECAUSE THEY
TALK ABOUT NOT LETTING THIS MOMENT DEFINE HIM AND HE TALKS ABOUT
WANTING TO SEE HIS BABY BE BORN AND GROWN GROW UP WHICH IF HE CONFESSES TO MURDER
IS VERY UNLIKELY TO HAPPEN SO THE FACT THAT HE IS TALKING ABOUT THIS REALLY DOES
INDICATE THAT HE BELIEVES THAT IF HE CONFESSES THAT HE WILL BE TREATED
WITH SOME SORT OF LENIENCY. SO FOR THAT REASON, THAT IS, AGAIN, I THINK AN IMPORTANT
PART SPECIALLY WHEN WE CONSIDER MR. EA RAS SO AS AN 18-YEAR OLD. HE
HAS NEVER, HE DID NOT GRADUATE HIGH SCHOOL, AND IN FACT, PART OF RECORD WAS THAT
HE WAS HELD BACK IN THE SEVENTH GRADE SO WE HAVE SOME EDUCATIONAL
DIFFICULTIES HERE. HE HAS ONLY BEEN ARRESTED WINS AS PART OF HIS JUVENILE RECORD. THIS
WAS HIS FIRST TIME COMING WITH ADULTS AND WE DON'T EVEN KNOW IF HIS EXPERIENCE
IN THE JUVENILE SYSTEM HAD ANYTHING TO DO WITH CONFESSION ORZ IF HE HAD THIS
TYPE OF INTERACTION IN THE JUVENILE STEM SO WE JUST HAVE SOMEONE HERE WHOSE
HERE NAIVE, WHO DOES NOT UNDERSTAND OR WHO DOESN'T HAVE -- HE HAS MORE
VULNERABILITIES THAN A PERSON WITH A FULLY DEVELOPED RAIN AND SO TO THAT REASON,
HE IS PARTICULARLY VULNERABLE TO THESE TYPES OF TECHNIQUES THAT THE
POLICE ARE USING HERE. THE COURT: FINISH IF YOU HAD MORE ON THE
TOTALITY OF THE CIRCUMSTANCES. ATTORNEY BIRCK: NO.
CHIEF JUSTICE STUART RABNER: CAN WE GO THEN TO THE FIRST SET OF QUESTIONING
AND TELL US WHY THAT WAS CUSTODIAL. ATTORNEY BIRCK: YES.
SO IN THIS CASE, NO REASONABLE PERSON WOULD HAVE FELT FREE TO LEAVE THE
POLICE DEPARTMENT AFTER BEING DRIVEN THERE AND I UNDERSTAND IT WAS ONLY . THREE
MILES BUT HE WAS IN THE BACK SEAT OF A MARKED POLICE CAR DRIVEN TO THE POLICE
DEPARTMENT AFTER HIS APARTMENT HAS ALREADY BEEN SEARCHED TWICE, ONCE
AT FOUR 30 {@TIME} OR 530 {@TIME} IN THE MORNING. THERE'S A DISCREPANCY IN THE
RECORD AND THEN BEING QUESTIONED ABOUT HIS WHEREABOUTS ON THE DAY THAT
A GIRL WENT MISSING IN A SECOND FLOOR INTERROGATION ROOM WITH TWO HOMICIDE
DETECTIVES. ALL OF THESE THINGS WHEN WE LOOK AT WERE A REASONABLE PERSON
WOULD FEEL FREE TO LEAVE HERE, YES, WHEN HE FIRST GOT THERE HE WAS PUT INTO THE
SECURED AREA STILL BUT HE WAS ESCORTED EVERYWHERE AND IN FACT I WITHIN THE AND
LOOKED, I KNOW ONE OF YOUR HONOR'S ASKED WHETHER HE CHOSE HIS SEAT MUCH
THE TRIAL COURT MADE A DETERMINATION THAT MR. EA RAS SO WAS DIRECTED TO A
BENCH AND THAT WAS ON THE APRIL 27TH TRANSCRIPT AT PAGE SEVEN, LINES EIGHT TO
NINE. SO HE WAS DIRECTED WHERE TO SIT IN THE SECURED AREA OF THE POLICE DEPARTMENT
OF THE HE WAS THEN BROUGHT UP IT A SECOND FLOOR INTERROGATION ROOM
REGARDLESS OF WHAT THE LOGISTICS ARE OF THE POLICE DEPARTMENT HE'S STILL BEING
BROUGHT DEEPER INTO A SECURED AREA WHERE HE WILL HAVE TO GO DOWNSTAIRS, GO
THROUGH A SECOND HALLWAY. THE OFFICER DOES TALK ABOUT HOW IT DOES TAKE A LITTLE
BIT AND HE BELIEVES THAT THERE IS ANOTHER OFFICER STATIONED AT THE DOOR BETWEEN
THE SECURED AREA AND THE NONSECURED AREA. ASSOCIATE JUSTICE
RACHEL WAINER APTER: BUT HE WOULD HAVE SEEN THAT THERE WERE OTHER PEOPLE
INCLUDING THE VICTIM'S FAMILY IN THAT EXACT SAME SECURED AREA AS HE WAS SITTING
IN THE EXACT SAME, YOU KNOW, LAY OUT IS AS HE WAS SITTING IN, CORRECT.
ATTORNEY BIRCK: YES, BUT MY ARGUMENT IS BY THE TIME HE GETS TO THAT INTERROGATION
ROOM AND IS BEING QUESTIONED BY TWO DETECTIVES ABOUT HIS WHERE BASS ON
THE DAY, THOSE QUESTIONING ABOUT CUSTODY GO TO HIS -- ABOUT HIS ALIBI GO TO CUSTODY
AND THAT'S IN HUBBARD AND THAT'S IN EA KNEEL, THOSE QUESTIONS ABOUT ALIBI DO
HELP INFORM THIS QUESTION ABOUT CUSTODY. ASSOCIATE JUSTICE RACHEL
WAINER APTER: YOU SAID HE WAS QUESTIONED BY TWO HOMICIDE DETECTIVES? WOULD
HE HAVE KNOWN THAT? WOULD THEY HAVE START THE QUESTIONING BY SAYING I'M A HOMICIDE
DETECTIVE AND I WANT TO ASK YOU A FEW QUESTIONS BESHG I'M IN THE SURE IF
THEY TOLD HIM THEY WERE HOMICIDE DETECTIVES BUT THEY DID INTRODUCE THEMSELVES
AS DETECTIVES IN THE POLICE DEPARTMENT. ASSOCIATE JUSTICE ANNE M.
PATTERSON: WE WENT BACK AND FORTH WITH YOUR COLLEAGUE ON THIS SIDE QUITE
A BIT ABOUT WHAT IS KNOWN ABOUT THE FIRST INTERROGATION. AND YOU MENTIONED A
FEW MINUTES AGO THAT HE -- SOME -- YOU HAD SOME COMMENTS ABOUT WHAT HE SAID
DURING THAT INTERROGATION. WHAT DOES THE RECORD SHOW ABOUT WHAT WAS ASKED
AND WHAT WAS SAID IN THE FIRST -- IN THE FIRST, I'M SORRY, IN THE FIRST INTERVIEW
BUT THE ISSUE IS WHETHER IT'S AN INTERROGATION. ATTORNEY
BIRCK: AS FAR AS WITH THE TRIAL COURT, THE RECORD SEEMS TO INDICATE FROM THE
TRIAL COURT IS THE STATE BELOW CONCEDED THAT FOR THE FIRST HOUR AND A
HALF OF THE SECOND INTERVIEW IT WAS THE SAME QUESTIONING SO AS FAR AS I KNOW,
THE STATE HAS CONCEDED THAT THIS IS THE SAME TYPE OF QUESTIONING IN THE FIRST
HOUR AND A HALF. ASSOCIATE JUSTICE ANNE M. PATTERSON: WHAT'S
YOUR BASIS FOR SAYING THAT. ATTORNEY BIRCK: THE STATE DOES
INDEED CONCEDE ON THE RECORD. I HAVE TO FIND THE EXACT QUOTATION.
ASSOCIATE JUSTICE ANNE M. PATTERSON: CAN YOU TELL US GENERALLY WHERE THAT
IS,. IS THAT IN THE SUPPRESSION HEARING? ATTORNEY BIRCK:
YES, IT WOULD BE IN THE SUPPRESSION HEARING AND I BELIEVE IT MIGHT EVEN BE IN
I'M NOT SUREMENT I DON'T HAVE IT ON HAND WITH ME RIGHT NOW BUT I DO
KNOW THAT IT WAS. THE COURT: WE'LL GIVE YOU A CHANCE TO TELL US
LATER IN THE ARGUMENT RATHER THAN. ATTORNEY BIRCK: YEAH, SORRY, BUT
I WILL ALSO POINT OUT THAT IN THE RECORD CHIEF YOU TALKED ABOUT SOME
OF THE THINGS THEY WERE ASKING HIM ABOUT HIS LOCATION ON THE DAY AND I -- AND WHEN
WE LOOK AT AROUND PAGE 130, DETECTIVE RAY NOR SAYS SO I'M TRYING TO
REMEMBER, ON PAGE 135, 11 TO 12 HE SAID I KNOW YOU TOLD US EARLIER. ON ONE 35, 21,
TO ONE 36/FOUR, HE ALSO TALKS ABOUT THE THINGS THAT GO BACK AND FORTH ABOUT
SOME OF THE THINGS THAT MR. EA RAS SO HAD SAID IN THE FIRST INTERVIEW
SO THERE IS A LOT OF INFORMATION HERE THAT WE'RE SEEING THAT DETECTIVE RAY NOR
HIMSELF. OH, WE TALKED ABOUT THIS EARLIER, WE'VE ALREADY DISCUSSED
THIS AND WHEN WE LOOK AT THE BUSHG WHEN WE TALK ABOUT SHS -- THE DETECTIVES RIGHT
BEFORE THEY ARE TALKING, MR. RAY NOR OR DETECTIVE RAY NOR SAYS TO MR. EA RAS
SO THAT WE ARE JUST GOING TO GO OVER WHAT WE ALREADY TALKED ABOUT. I HAVE
EXTENSIVE NOTES THAT I WANT TO GO OVER. CHIEF JUSTICE STUART
RABNER: AND UNDER THE TOTALITY OF THE CIRCUMSTANCES, ACTUALLY ON THE QUESTION
OF CUSTODY, EXCUSE ME, ARE YOU RELYING ON WHETHER OR NOT THE DEFENDANT HAD
A MEANS OF GETTING HOME. ATTORNEY BIRCK: I'M NOT. ABSOLUTELY NOT. I
DON'T THINK THAT IS A HUGE FACTOR IN THIS CASE. I WILL NOTE THAT I COULD
NOT FIND ANYTHING ISN'T THE RECORD ABOUT HOW FAR THE CHURCH WAS. IT IS SOMETHING
THAT IS SOMETHING YOU COULD GOOGLE ON GOOGLE MAPS WHICH I DID AFTER
THE STATE FILED THEIR BRIEF BUT IT WASN'T SOMETHING THAT I KNEW BEFOREHAND AND
SO THAT'S WHY IT WAS SOMETHING THAT WAS I THINK IMPORTANT AT THE APPELLATE
DIVISION BECAUSE IT WAS NEVER BROUGHT UP IN THE APPELLATE DIVISION AS WELL.
CHIEF JUSTICE STUART RABNER: SO YOU MENTIONED BEING DRIVEN IN A MARKED
POLICE CAR, TWO SEARCHES, AND QUESTIONING ABOUT HIS WHEREABOUTS. THOSE
ARE FACTORS THAT YOU POINTED US TO TO ARGUE THAT THIS WAS CUSTODIAL. IS THERE
ANYTHING ELSE. ATTORNEY BIRCK: AND WITHIN THE POLICE
DEPARTMENT ITSELF, MIRANDA HAS HELD AND OUR COURTS HAVE HELD THAT BEING IN A POLICE
DEPARTMENT IS INHERENTLY COERCIVE. IT IS NOT, AGAIN, A BRIGHT LINE WHEN YOU'RE
IN THE POLICE DEPARTMENT IT MEANS THAT IT IS CUSTODIAL INTERROGATION
BUT IT IS A FACTOR TO BE CONSIDERED AND SO WHEN WE HAVE SOMEONE WHOSE BROUGHT
TO THE POLICE STATION IT IS IN AN INTERROGATION ROOM WITHIN THE POLICE
STATION WITH TWO DETECTIVES. I THINK THAT TRIBTS TO A FINDING OF CUSTODY IN THIS CASE.
ASSOCIATE JUSTICE RACHEL WAINER APTER: TWO THINGS. WHEN YOU
SAY HE WAS IN AN INTERROGATION OOM IN THE POLICE STATION THAT'S THE SAME AS BEING
IN ANY PRIVATE ROOM IN THE POLICE STATION, RIGHT? IS THERE SOMETHING
CALLED AN INTERROGATION ROOM VERSUS A JUST TALKING ROOM OR JUST INTERVIEW ROOM?
NO ANY OF THE ROOMS YOU WOULD CALL AN INTERROGATION ROOM, RIGHT?
ATTORNEY BIRCK: SURE BUT I WILL SAY THAT DETECTIVE RAY NOR DID NOTE THAT IT
COULD BE COMFORTABLY HAVE THREE PEOPLE IN THERE. IT WOULD BE VERY TIGHT WITH
FIVE PEOPLE SO IT IS A SMALL ROOM THAT THE THREE OF THEM ARE SITTING
AROUND A TABLE AND AT LEAST IN THE SECOND ONE WE DO SEE THAT THEY ARE BETWEEN
HIM AND THE DOOR. I'M IN THE SURE ABOUT THE FIRST ONE BUT IT IS I THINK
SOMETHING TO NOTE THAT IT'S, THEY STILL IN A SMALL ROOM WITH TWO PEOPLE AND REGARDLESS.
ASSOCIATE JUSTICE RACHEL WAINER APTER: BUT THAT IN THEORY
WOULD HAVE BEEN THE SAME FOR ANY WITNESS SHALL RIGHT, SO IT SEEMS LIKELY THEY
WOULD HAVE SPOKEN TO ANY WITNESS JUST OUT IN FRONT OF ALL WITNESSES, SO
THEY WERE VARIOUS VICTIM FAMILY MEMBERS THERE, THERE WERE PERSONS FROM ACROSS
THE STREET. THEY ARE EASILY TAKEN INTO WHAT YOU ARE CALLING AN INTERROGATION
ROOM TO TALK TO THE DETECTIVE, CORRECT. ATTORNEY BIRCK:
I'M NOT EXACTLY SURE . THE RECORD IS NOT CLEAR ABOUT WHERE THE VICTIM'S FAMILY
OR THE OTHER FAMILY WERE TAKEN TO. THERE WERE ONLY TWO ROOMS IN THE
POLICE STATION THAT WERE CONSIDERED INTERROGATION ROOMS SO WE DON'T KNOW WHERE
ANYBODY ELSE WENT IF THEY WERE TAKEN IN INTERROGATION ROOMS.
ASSOCIATE JUSTICE ANNE M. PATTERSON: I THOUGHT WE HEARD FROM THE STATE THAT THE
ROOM WITH THE VIDEO RECORDING WAS GENERALLY WHERE AT LEAST IT'S THE
STATE'S CONTENTION AND SO-CALLED INTERROGATION WOULD TAKE PLACE. IN THIS ROOM
WAS ONE WITH NO SOUND RECORDING OR VIDEO RECKING, CORRECT BIK YES AND THIS IS
ALSO PART OF THE LOGISTICS THAT THE STAI IS TALKING ABOUT. THERE ARE
ONLY TWO ROOMS AND ONE IS ONLY VIDEO RECKING CAPABLE AND SOMEONE WAS ALREADY USING
THAT ROOM SO I DON'T THINK THAT THIS -- IT'S REALLY A BIG FACTOR THIS
THEY TOOK HIM TO THE ONE ROOM WITHOUT VIDEO RECKING BECAUSE THERE WAS ALREADY
SOMEBODY IN THAT FIRST ROOM. ASSOCIATE JUSTICE ANNE M. PATTERSON:
I'M NOT SUGGESTING IT'S AN ARGUMENT ON BEHALF OF THE STATE BUT TAKING
A PERSON INTO A ROOM AND HAVING A CONVERSATION IN A ROOM WHEN THERE'S AN
INVESTIGATION GOING ON AS TO A POTENTIAL HOMICIDE DOESN'T DISTINGUISH, AS FAR
AS WE SEE THIS RECORD, A WITNESS FROM A SUSPECT, DOES IT? BIK NOT GENERALLY BUT
I THIS IT IS IMPORTANT TO NOTE AGAIN HE HAD ALREADY HAD HIS APARTMENT
SEARCHED TWICE AND THE SECOND TIME HE SPECIFICALLY POINTS OUT THAT, YOU KNOW,
I DON'T EVEN KNOW IF THEY SEARCHED THE REST OF THE APARTMENT BUT THEY
SEARCHED MY ROOM. AND SO A REASONABLE PERSON WHOSE APARTMENT HAS BEEN SEARCHED
TWICE AND HIS ROOM SPECIFICALLY THE SECOND TIME BY THE TIME THEY GET TO
THE POLICE STATION IN AN INTERROGATION ROOM WOULD NOT FEEL FREE TO LEAVE AND I
ALSO THINK OF THE FACT THAT HE ASKS PERMISSION TO GO HAVE A CIGARETTE IS EVIDENCE
THAT HE DID NOT BELIEVE AND THE POLICE SAYING HANG TIGHT AND WAIT AND
MAKE HIM WAIT UNTIL THEY COULD GET HIM AN ESCORT OUTSIDE TO HAVE THAT CIGARETTE
BREAK INDICATES HERE THAT NOBODY HERE BELIEVES THAT HE IS FREE TO LEAVE.
HE HAS TO BE ESCORTED TO THE BATHROOM, SIDE, BACK IN BETWEEN THE TWO INTERROGATION
ROOMS. HE IS WITH A POLICE OFFICER AT ALL TIMES AND I THINK THAT A
REASONABLE PERSON WOULD NOT FREELY FREE TO LEAVE. I ALSO THINK IT'S IMPORTANT
TO NOTE HE'S 18 YEARS OLD AND ALTHOUGH YES, HE HAS CROSSED THIS INVISIBLE THRESHOLD
OF ADULTHOOD, AS THIS COURT HAS HELD INRY BETTER RAH AND AS THE
LEGISLATURE HAS NOTED BY THE PASSING MITIGATING FACTOR 14, PEOPLE UNDER 26 DO
NOT HAVE DIFFERENT BRAIN ANATOMY AND THEIR BRAINS ARE STILL DEVELOPING.
THEY ARE MORE SUSCEPTIBLE TO AUTHORITY, USE OF AUTHORITY AND WE SEE IN J DB THAT
THE U.S. PREM COURT TALKS ABOUT HOW AGE IS REALLY IMPORTANT WHEN LOOKING
AT JUVENILES AND I THINK THAT THIS COURT COULD USE HIS YOUNG AGE BECAUSE AGE IS
A FACTOR IN WHAT DETERMINING WHETHER SOMEBODY IS IN CUSTODY, SEE THAT
HE'S 18 YEARS OLD, HIS BRAIN IS STILL DEVELOPING. HE'S MORE SUSCEPTIBLE NO AUTHORITY
AND A SHOW OF AUTHORITY THAN AN ADULT BRAIN WOULD BE AND THAT IS AN IMPORTANT
CONSIDERATION WHEN DETERMINING CUSTODY HERE, SPECIALLY BECAUSE HE'S
NEVER BEEN ARRESTED AS AN ADULT BEFORE AND MIGHT NOT KNOW WHAT THE WHOLE CIRCUMSTANCES
ARE AND WHAT THIS MIGHT MEAN FOR HIM. ASSOCIATE JUSTICE RACHEL
WAINER APTER: IN TERMS OF YOUR POINT THAT HE WAS BROUGHT TO THE POLICE
STATION IN A MARKED POLICE CAR, THAT WAS BECAUSE HE VOLUNTEERED TO GO TO THE POLICE
STATION TO GIVE A STATEMENT, CORRECT. ATTORNEY BIRCK: AS FAR AS
THE RECORD SHOWS, YES. ASSOCIATE JUSTICE RACHEL WAINER APTER:
IS THERE ANYTHING IN THE RECORD ABOUT HOW THE OTHER WITNESSES ARRIVED
AT THE POLICE STATION BECAUSE AGAIN HE WAS SURROUNDED I BY I THINK IT WAS FIVE
PEOPLE SITTING WITH HIM. ATTORNEY BIRCK: I DID NOT SEE ANYTHING
IN THE RECORD ABOUT HOW OTHERS AWE ARRIVED THERE. HE WITH JUST KNOW
THAT HE WAS TAKEN AND HE WAS TAKEN PRATTLY FROM EVERYBODY.
ASSOCIATE JUSTICE RACHEL WAINER APTER: SO BASED ON WHAT YOU HAVE HEARD BASE ON
OBJECTIVE CIRCUMSTANCES, WOULDN'T ALL THE WITNESSES HAVE TO HAVE BEEN
MIRANDIZED BEFORE THEY SPOKE. ATTORNEY BIRCK: I DON'T THINK SO.
ASSOCIATE JUSTICE RACHEL WAINER APTER: IN TELLS OF WHERE
THEY WERE SEATED, IN I THIS YOUR ADVERSARY SAID THE WAY PEOPLE WERE CONFIGURED
IN THE CHURCH, IT WASN'T BECAUSE THEY COULDN'T LEAF, THEY COULDN'T WALK
AROUND WITHOUT AN ESCORT BUT IN THEORY THAT WOULD HAVE APPLIED TO EVERYONE. WHAT
WOULD APPLY ONLY TO THE DEFENDANT AND NOT TO ALL THE OTHER WITNESSES
WHO WERE THERE. ATTORNEY BIRCK: HERE I THINK WHAT'S REALLY
IMPORTANT AGAIN IS IS THE FACT THAT HIS APARTMENT HAS ALREADY BEEN SEARCHED TWICE,
THE BODY HAS BEEN FOUND BELOW HIS WINDOW AND THE QUESTIONING HERE IS.
ASSOCIATE JUSTICE RACHEL WAINER APTER: HE DIDN'T KNOW THAT.
ATTORNEY BIRCK: HE DID NOT KNOW BUT THE POLICE DID. WE SHOULDN'T BE LOOKING TO THE
SUBJECTIVE INTENT OF THE POLICE OFFICERS EXCEPT TO THE EXTENT THAT IT
'EM PACKETS THE OBJECTIVE CIRCUMSTANCES AND THE OBJECTIVE CIRCUMSTANCES THAT
IT IMPACTS HERE IS THE TYPE OF QUESTIONING HE'S UNDERGOING. HE'S BEING ASKED
FOR AN HOUR AND A HALF ABOUT HIS WHEREABOUTS ON THE DAY THAT A.S.
THE COURT:^. ASSOCIATE JUSTICE ANNE M. PATTERSON:
LET'S PAUSE ON THIS POINT. ON QUESTION THAT THE BODY HAVE JUST BEEN
FOUND OF THE SHOULD WE FKT TORE IN THE FACT THAT PRESUMABLY HE KNEW WHERE BODY
WAS. IS THAT WHAT WE SHOULD BE FACTORING THAT HE'S AWARE THAT BODY IS GOING
TO BE FOUND BELOW HIS WINDOW, I'M A SUSPECT. ATTORNEY BIRCK:
SO THERE'S NO INDICATIONS THAT AT LEAST IN THE SECOND INTERVIEW HE DOES SAY THAT
I JUST KNOW IT'S A MISSING PERSONS INVESTIGATION SO WE DON'T KNOW THAT
HE KNOWS THAT THEY FOUND. ASSOCIATE JUSTICE ANNE M. PATTERSON: NO,
WE UNDERSTAND THAT THE RECORD IS CLEAR THAT THEY DIDN'T KNOW ABOUT THE
BODY. I GUESS THEY KNEW ABOUT THE BODY BEING FOUND BEFORE THE FIRST INTERVIEW,
RIGHT BUT HE DOES NOT KNOW THAT. ATTORNEY BIRCK: HE DOES
NOT KNOW THAT. ASSOCIATE JUSTICE ANNE M. PATTERSON: SO WHAT
IS IT ABOUT HIS KNOWLEDGE ARE A REASONABLE PERSON'S POSITION KNOWLEDGE IN THAT
REGARD SINCE THEY HAVEN'T TOLD HIM THAT BIK WE HAVE TO RECOGNIZE THAT THERE
IS A PRESUMPTION OF INNOCENCE HERE SO WE CAN NOT COME IN WITH THE IDEA THAT HE IS
ALREADY GUILTY BEFORE WE MAKE THIS ANALYSIS. ASSOCIATE
JUSTICE ANNE M. PATTERSON: I'M NOT AT ALL KWELG THE PRESUMPTION OF INNOCENCE
OF THE I'M ASKING YOU WHAT IS IT ABOUT THE BODY BEING FOUND THAT WE SHOULD
BE CONSIDERING SINCE I THINK IT'S CLEAR THAT THEY DIDN'T SAY ANYTHING TO HIM ABOUT
THAT. ATTORNEY BIRCK: IT IS IN THE WAY THAT THEY ARE ASKING
HIM QUESTIONS I BELIEVE. FOR EXAMPLE, I THINK THE QUESTIONS ABOUT THE LAYOUT
OF HIS APARTMENT IS IMPORTANT BECAUSE WHY WOULD THAT MATTER TO A WITNESS
WHAT HIS APARTMENT LOOKS LIKE? ASSOCIATE JUSTICE RACHEL WAINER APTER:
WHERE DO WE KNOW THAT IN THE RECORD THAT THAT WAS IN THE DISCUSSION
AS PART OF THE FIRST INTERVIEW. ATTORNEY BIRCK: LET'S SEE. I WROTE
THIS DOWN. SO IN THE FIRST INTERVIEW THEY DO GO BACK AND THEY ASK, IT'S
IN THE FIRST COUPLE OF PAGES OF THE MIRANDA TRANSCRIPT. HERE WE GO. SO IT'S IN
THE FIRST COUPLE OF PAGES IN IN THE 20S, ON THE MARCH 8TH INTERVIEW.
HERE WE GO. IT'S 24 PAGE 24 IS WHEN IT BEGINS WHEN THEY ARE TALKING ABOUT, OKAY,
SO I HAVEN'T BEEN, AS WE TALKED EARLIER I WAS IN THE APARTMENT ON DOWN
WAY, SO THE LAY OUT OF THE APARTMENTS SHS HOW MANY BEDROOMS WERE IN YOUR APARTMENT
MUCH TWO MUCH SO WHEN JOE WAS THERE, WHAT'S THE, WHAT'S THE LAYOUT? HOW DID
THE APARTMENT GO. SO HE DOES START TO ASK ABOUT ALL OF THESE THINGS IN THE SECOND
AND IT'S AT THE BEGINNING OF THE SECOND INTERVIEW AND AGAIN, I HAVE TO FIND THE
CITATION WHERE IT DOES SAY THAT THE FIRST INTERVIEW IS THE SAME
QUESTIONS BUT IF AT THE BEGINNING OF THE SECOND INTERVIEW AND THE STATE HAS CONCEDED
THAT THE FIRST HOUR AND A HALF OF THE SECOND INTERVIEW ARE THE SAME, THEN,
UM RSHGS. ASSOCIATE JUSTICE RACHEL WAINER APTER: BUT HE DOESN'T
SAY ANYTHING SHALL THE DETECTIVE DOESN'T SAY ANYTHING LIKE AS WE DISCUSSED BEFORE SHS
REMOOND ME AGAIN, WHAT IS THE LAYOUT OF YOUR APARTMENT, RIGHT?
ATTORNEY BIRCK: NOT ACCIDENT MISS ITALY. ASSOCIATE JUSTICE RACHEL WAINER
APTER: OKAY. YOU'RE JUST SAYING BECAUSE IT WAS IN THE FIRST NINETY MINUTES
AND THE STATE IS SAYING THE FIRST NINETY MINUTES WAS THE SAME.
ATTORNEY BIRCK: YES. ASSOCIATE JUSTICE ANNE M. PATTERSON:
ASSOCIATE JUSTICE LEE A. SOLOMON: BUT I'M GOING OVER THE TRANSCRIPT
OF THE HEARING WHERE THEY GO OVER WITH THE OFFICER WHAT WAS DISCUSSED AND IT DOESN'T
SAY ANYTHING LIKE THAT. HE DESCRIBES THE FIRST CONVERSATION WHAT DID
THEY DISCUSS, WE ADVISED HIM WHAT WE WANTED TO TALK ABOUT. I DON'T WANT TO READ
THIS WHOLE THING BUT IT'S PAGES 16 -- 17 AND 18 AND THERE'S NOP OF THE
YOUNG LADY AND IT DOESN'T SAY ANYTHING ABOUT DESCRIPTION OF HIS APARTMENT AND
HE'S VERY BRIEF ABOUT HIS WHEREABOUTS. ATTORNEY BIRCK: ON
PAGE 24 BEGINS, THE MARCH 8TH TRANSCRIPT,, PAGE 24 STARTING AT LINE 19 AND
THEN THE LAYOUT CONVERSATION GOES THROUGH SNOOL. ASSOCIATE JUSTICE
RACHEL WAINER APTER: THIS IS THE SECOND INTERVIEW. ATTORNEY
BIRCK: THIS IS THE SECOND INTERVIEW, YES. ASSOCIATE JUSTICE
LEE A. SOLOMON: IN THE MARCH 6TH TRANSCRIPT THE OFFICERS ASKED DETECTIVE WHAT
THEY TALKED ABOUT IN THE FIRST ENTER INTRU IT DOESN'T SAY ANYTHING,
IT'S VERY BRIEF. IT'S PAGES 17 AND 18 ON THE MARCH SIX TRANSCRIPT. THE YOUNG
LADY HOW HE KNEW HER, VERY LITTLE ABOUT HIS WHEREABOUTS ON THE DAY AND
NOTHING ABOUT THE LAYOUT. I DON'T KNOW. MAYBE I'M LOOK AT THE WRONG THING. IT'S
JUST NOT THERE. ATTORNEY BIRCK: SO THE MARCH 6TH, MOST OF
MARCH 6TH WAS THE FIRST WAS I BELIEVE FOUR TAPES ARE HIM SITTING IN A ROOM IS
HE'S BEEN PLACED INTO. ASSOCIATE JUSTICE LEE A. SOLOMON: ARE YOU
TALKING ABOUT THE HEARING. ATTORNEY BIRCK: YES.
ASSOCIATE JUSTICE LEE A. SOLOMON: AT THE HEARING THE OFFICERS ASKED WHAT DID YOU
DISCUSS AT THE FIRST INTERVIEW, THE FIRST DISCUSSION, THE FIRST MEETING
WITH HIM WHEN HE WAS, YEAH, WE CAN DISPUTE WHETHER IT'S AN INTERVIEW OR NOT MUCH
THE DETECTIVE RAY NOR IN HIS INITIAL CONVERSATION WITH THE DEFENDANT,
WHAT WAS DISCUSSED WITH HIM AND WHAT IS IT THAT HE TOLD YOU. THE INITIAL CONVERSATION
WE ADVISED HIM WHAT WE WANTED TO TALK ABOUT. MR. EA RAS SO HAD INDICATED THAT
HE HAD OBVIOUSLY SEEN THE POLICE ACTIVITY IN THE MORNING AND INCLUDED
I GUESS THE SEFRPS SEARCHES OF THE APARTMENT WHERE HE KNEW THEY FOUND NOTHING
AND HE WAS AWARE THERE WAS A MISSING PERSON INVESTIGATION SO HE WILLINGLY
GREED TO OFFER ANY HELP HE COULD. I'M READING THE WHOLE THING OF THE I DON'T WANT
TO WASTE A WHOLE LOT OF TIME. DATE OF BIRTH. WHERE HE WAS LIVING. WHERE HE
SOMETIMES STAYED WHO HE CHARACTERIZED AS HIS GIRLFRIEND. KNOWLEDGE OF THE YOUNG
LAID IT DID I. FAMILIAR WITH HER FAMILY. THEN THAT DAY, MR. EA RAS SO
INDICATED HE HAD SEEN ABIGAIL AT APPROXIMATELY ONE 35 {@TIME}. HE HAD SEEN HER
OUT FRONT OF THE HE DESCRIBED WHAT HE WAS WEARING. HE DESCRIBED HE DIDN'T HAVE ANY
CONTACT WITH HER AND THAT WAS THE ONLY TIME HE HAD SEEN HER THAT DAY.
LET ME TAKE A STEP BACK. RCHL HE DESCRIBES THE INTERACTION AND THEN HE GOES
INTO THAT. DIDN'T SAY ANYTHING ABOUT HIS. ASSOCIATE JUSTICE FABIANA
PIERRE-LOUIS: ARE YOU SAYING COUNSEL THAT AT SOME POINT DURING ARGUMENT
THE STATE REPRESENTED OR CONCEDED THAT THE FIRST INTERVIEW WAS SIMILAR TO THE
SECOND? ATTORNEY BIRCK: YES. ASSOCIATE JUSTICE LEE A.
SOLOMON: MAYBE SO BUT THE OFFICERS ASKED, MAYBE SO. IT'S NOT WHERE I'M
HEADING. THE OFFICER WAS SPECIFICALLY ASKED AT THE HEARING WHAT DID YOU TALK ABOUT
IN THE FIRST INTERVIEW AND HE TELLS THEM AND IT'S NOT ANY OF THE THINGS WE'RE
DESCRIBING. GO THROUGH THE DAY, ACTIVITIES THROUGH THE DAY.
ATTORNEY BIRCK: SO THE TRANSCRIPT, I JUST FOUND IT ACTUALLY, FOR THE
STATE. THE COURT: THIS IS THE STATE'S CONCESSION.
ATTORNEY BIRCK: THIS IS THE STATE'S CONCESSION. THIS IS ON THE MARCH 28TH
TRANSCRIPT. SO THIS IS 4T AT NINE FOUR. AND THIS IS ACTUALLY THE STATE'S
CLOSING ARGUMENT I BELIEVE. IT'S NINE FOUR, ABOUT 19 TO NINE FIVE-TWO. SO THE
STATE SAYS FROM DETECTIVE RAY FOR'S TESTIMONY IT, FROM HIS REPORT, FROM
HIS TIME LINE AND THAT'S WHEN THINGS CHANGE. REMEMBER, HE QUESTIONED FIRST JUDGE
AS A WITNESS AND WHAT DO THEY COVER IF THAT WITNESS STATEMENT IN THEY COVER
ESSENTIALLY WHAT THEY COVER IN THE FIRST HOUR, HOUR AND A HALF OF THIS
STATEMENT, WITH WHERE HE LIVED, WHERE ARE YOU FROM, HOW IS YOUR FAMILY, HOW LONG
HAVE YOU BEEN LIVING IN KEANSBURG, WHAT DID YOU DO LAST NIGHT, GIVE
ME AN ACCOUNT OF YOUR DAY. THAT'S WHAT THEY GOT OUT OF HIM IN THE FIRST WITNESS
FOR AN HOUR AND A HALF. THE FIRST HOUR AND A HALF THAT YOU SEE HERE IS THE HOUR
AND A HALF STATEMENT YOU UPSTAIRS. DONE. ASSOCIATE JUSTICE RACHEL
WAINER APTER: THAT DOESN'T MENTION ANYTHING ABOUT THE LAYOUT OF THE
APARTMENT, RIGHT. ATTORNEY BIRCK: NO. BUT IT DOES TALK ABOUT
WHERE HE LIVED. ASSOCIATE JUSTICE RACHEL WAINER APTER: THAT'S
THE FIRST HOUR, HOUR AND HALF, CORRECT. ATTORNEY BIRCK: YES.
ASSOCIATE JUSTICE RACHEL WAINER APTER: SO IT'S CLEAR THAT THEY ARE ESTIMATING.
ATTORNEY BIRCK: YES, SPECIALLY BECAUSE THE LAYOUT IS
AFTER THE FIRST 20 PAGES SO THAT WOULD HAVE BEEN WITHIN THE FIRST HOUR AND A HALF
AND IF WE'RE GOING TO TAKE THE STATE'S STATEMENT AS TRUMG THEN.
ASSOCIATE JUSTICE ANNE M. PATTERSON: THEY COVER ESSENTIALLY WHAT THEY COVER,
WHERE YOU LIVE, WHERE ARE YOU FROM, WHEREAS HE YOUR FAMILY, HOW LONG
HAVE YOU BEEN LIVING IN KEANSBURG, WHAT WERE YOU DOING LAST NIGHT, GIVE ME AN
ACCOUNT OF YOUR DAY, THAT'S WHAT THEY GOT OUT OF THAT WITNESS STATEMENT FOR AN
HOUR AND A HALF SNOOL WHICH IS WHAT RAY NOR STATED IN THE HEEFRPG WHICH
IS WHAT I WAS JUST READING. ATTORNEY BIRCK: YES, EXACTLY. WE DON'T
KNOW EXACTLY WHAT WAS SAID BUT WE DO KNOW THAT IT IS, WE DON'T HAVE
QUOTES BUT WE DO HAVE AN IDEA OF WHAT HE WAS BEING ASKED ABOUT AND RAY NOR DOES
ABSOLUTELY TESTIFY AS TO WHAT OVERLAP THERE WAS. AND SO BECAUSE OF THE
SIGNIFICANT OVERLAP HERE, WE JUST, THE FACT THAT THE DETECTIVES THEN CAME IN AND
SAY WE'RE GOING TO CONTINUE THIS CONVERSATION AS WE HAD BEFORE.
ASSOCIATE JUSTICE LEE A. SOLOMON: BUT YOU'RE INTERPRETING THOSE KIND OF
CURSORY SUMMARY STATEMENTS WHICH ARE ESTIMATES OF TIME AND EVERYTHING
ELSE IS SOMEHOW SOMETHING THAT CAN BE RELIED UPON TO DISCERN THE CONTENTS OF THAT
FIRST STATEMENT AND AND I HEAR YOU ARGUING. I JUST DON'T KNOW HOW YOU GET THERE.
ATTORNEY BIRCK: PARTIALLY, THOUGH IT IS WHAT DETECTIVE RAY
NOR THEN GOES BACK AND SAYS WE TALKED ABOUT THIS EARLIER, REMIND ME OF WHAT YOU
SAID OR POINTING OUT THE INCONSISTENCIES IN HIS STATEMENT, THE LYSE
AS THE STATE POINTS OUT SAYING WELL THAT'S NOT WHAT YOU SAID EARLIER.
ASSOCIATE JUSTICE ANNE M. PATTERSON: SO TELL US WHY IT WAS A CUSTODIAN
INTERROGATION BASED ON WHAT RAY NOR TESTIFIED TO WHICH I THINK FRANKLY FRAMES
WHAT THE STATE WAS SAYING IN CLOSING BECAUSE IT'S, THE EXAMPLE SEEMS
TO LINE UP WITH WHAT RAY NOR SAID. ATTORNEY BIRCK: BECAUSE THE QUESTIONING
WENT FAR BEYOND WHAT WOULD -- WHAT A NORMAL WITNESS STATEMENT MIGHT
BE TRYING TO FIND EVIDENCE TO FIND A MISSING GIRL, THEY ARE TALKING ABOUT HIS
FAMILY LIFE, HIS, WHERE HE LIVES, HOW LONG HE'S LIVED THIS AND I THINK
THE BIGGEST THING IS HIS WHEREABOUTS ON THE DAY SHE WENT MISSING.
ASSOCIATE JUSTICE ANNE M. PATTERSON: WHERE HE LIVED, ANY WITNESS IS GOING TO BE
ASKED, DO YOU LIVE IN KEANSBURG? HOW LONG HAVE YOU HIFD IN KEANSBURG?
RIGHT THAT DOESN'T MAKE IT A CUSTODIAL INTERROGATION, DOES IT.
ATTORNEY BIRCK: NOT NECESSARILY BUT AGAIN, IF WE DO ASSUME THAT THE STATE
WAS CORRECT AND RAY NOR IS CORRECT THAT THEY ARE JUST GOING OVER THE SAME
STAPTS THAT THEY'VE ALREADY TAKEN IN THE FIRST, THEN THE BEGINNING OF THIS INTERVIEW
THAT TALKS ABOUT THE LAY OUT OF HIS APARTMENT IS PART OF THAT INTERROGATION
AND I THINK ALSO HIS WHEREABOUTS ON DAY IS WHAT IS DISPOSITIVE HERE IF
WE'RE TALKING ABOUT THE TYPE OF QUESTIONING HERE. NOT -- A WITNESS IS NOT
GOING TO BE ASKED AFTER HE'S ALREADY SAID YOU KNOW, LAST TIME I SAW HER
WAS AT 130 {@TIME} FOR THE POLICE TO SAY OKAY SO THEN WHERE WERE YOU AT FIVE,
FOUR 30. ASSOCIATE JUSTICE ANNE M. PATTERSON: YOU DON'T
THINK A WITNESS WHO SAW A PERSON WHO WAS MISSING THE DAY BEFORE, IF ANY ONE WOULD BE
ASKED OKAY, WHERE WERE YOU YESTERDAY? THAT MAKES IT A CUSTODIAL
INTERROGATION. ATTORNEY BIRCK: I THINK IT CAN CONTRIBUTE TO THE
TOTALITY OF THE CIRCUMSTANCES THAT CAN INDICATE THAT HE IS IN CUSTODY, YES AND THAT IS
IN HUBBARD THIS COURT TALKED ABOUT HOW QUESTIONING THAT GOES TO A PERSON'S
ALIBI OR QUESTIONS ABOUT AN INVESTIGATION CAN CONTRIBUTE TO FINDING OF CUSTODY
AND SO IN THIS CASE WHEN WE LOOK AT AGAIN AN 18-YEAR OLD PUT INTO AN
INTERROGATION ROOM AFTER HIS APARTMENT HAS BEEN SEARCHED TWICE, ASKED QUESTIONS ABOUT
HIS WHEREABOUTS ON THE DAY THAT A YOUNG GIRL WENT MISSING WOULD NOT HAVE
FELT FREE TO LEAVE AND IN FACT DID NOT FEEL FREE TO LEAVE AS WE CAN SEE FROM
HIM ASKING PERMISSION TO GO OUT INDEED TO HAVE A CIGARETTE SMOKE AND BY THE POLICE
RESPONDING HANG TIGHT BECAUSE THEY ALSO BELIEVED HE WAS NOT FREE TO GO
SO FOR THAT REASON THE FIRST STAPLE WAS CUSTODY. IT WAS CUSTODIAL INTERROGATION
AND I DON'T THINK THERE'S ANY QUESTION THAT THIS IS INTERROGATION. THEY ARE
ASKING HIM DIRECT QUESTIONS ABOUT THE INVESTIGATION, ABOUT WHAT'S HAPPENING, THIS
IS SOMETHING THAT JUST TALKS ABOUT DIRECT QUESTIONING AND THAT IS WHAT
IS HAPPENING HERE SO WHEN WE MOVE THEN ON, THE FIRST STATEMENT MUST BE SUPPRESSED.
AND THEN WE HAVE TO CHECK AND SEE THE O'NEILL FACTORS AND WHETHER THE
LATER MIRANDA WARNINGS SERVE TO REALLY SEPARATE THESE TWO INTERROGATIONS AND
WARN MR. EA RAS SO THAT AND DISSIPATE THE ENVIRONMENT OF COERCION AS THIS
TALKED ABOUT IN CAR I DON'T KNOW AND WHEN WE TALKED ABOUT THE EXTENT OF
QUESTIONING AND THE EXTENT OF ADMISSIONS, THIS IS NEARLY AN HOUR AND A HALF. THE
O'NEILL I BELIEVE WAS NINE FIVE MINUTES. THIS WAS 80 MINUTES OF THE
I DON'T THINK THAT'S A HUGE DIFFERENCE MUCH IT IS A LONG TIME TO BE TALKING TO
SOMEBODY ABOUT THEIR WHEREABOUTS ON THE DAY THAT SOMEONE WENT MISSING.
ALTHOUGH THE NATURE OF THE ADMISSIONS AREN'T A DIRECT CONFESSION, HE DOES TALK
ABOUT THE ALIBI AND AS, CHIEF, YOU POINTED OUT, THEY ARE LIES THAT ARE
USED AGAINST HIM AND JUSTICE PIERRE LOUIE YOUR QUOTE FROM MIRANDA EXPLAINS EVEN
CUP PA TORY. THE COURT:^ BUT O'NEILL DOESN'T EXPRESSLY
DEAL WITH THIS QUESTION OR YOU TELL US WHERE IT DOES, ARE YOU ARGUING FOR AN
EXPANSION OF O'NEILL. ATTORNEY BIRCK: ABSOLUTELY NOT. I'M LOOKING
AT THE TOTALITY OF THE CIRCUMSTANCES UNDER O'NEILL. I THINK THAT THE
EVIDENCE OF AN ALIBI IS CONSIDERED A -- IS PART OF THE NATURE OF THE ADMISSIONS
THAT THIS COURT HAS IT LOOK AT. IT IS ONE OF THE FACTORS THAT THIS COURT
SHOULD LOOK AT TO DETERMINE WHETHER. THE COURT: I'M FOCUS ON USE OF
ADMISSIONS. ATTORNEY BIRCK: SURE. THE COURT:
OF THE O'NEILL FACTORS. THAT'S AN ALLUSION TO A CONFESSION AS OPPOSED TO FALSE
SKUPT TRI STATEMENTS OR DO YOU READ IT OTHERWISE. ATTORNEY
BIRCK: IN THIS CASE I ARGUE THAT HIS ALIBI INFORMATION AND THE FACT THAT THE
POLICE FOUND OUT THAT HE DID NOT HAVE AN ALIBI AT THE TIME WHICH IS
AN OWE ADMISSION IN THIS CASE. ASSOCIATE JUSTICE RACHEL WAINER APTER:
BUT WHAT I WAS DISCUSSING WITH YOUR ADVERSARY BEFORE, UNDER THE FIRST
FACTOR IF A CONFESSION IS ALWAYS USED AGAINST THE STATE BECAUSE OF THE KAT CAT
OUT OF THE GAG BAG THEORY AND A LOW THAT'S THE OPPOSITE OF A CONFESSION IS
ALWAYS USED AGAINST STATE BECAUSE YOU CAN GET CAUGHT LYING LATER AND IF YOU DON'T
MAKE ANY STATEMENT THEN YOU'RE NOT IN THIS AREA THE A ALL BECAUSE O'NEILL ONLY
APPLY FZ YOU SPOKE TO THE POLICE AS PART OF A CUSTODIAL INTERROGATION
WHEN MIRANDA WARNINGS SHOULD HAVE BEEN GIVEN BUT WERE NOT. WHEN WOULD THE FIRST
FACTOR EVER NOT BE USED AGAINST THE STATE IN IT SEEMS LIKE THE FIRST
FACTOR ALWAYS MUST BE USED AGAINST THE STATE IN WE'RE FOLLOWING THIS ARGUMENT.
ATTORNEY BIRCK: I'M NOT RELYING ON THE LIES IN THIS CASE.
I'M RELYING ON THE INFORMATION ABOUT HIS ALIBI WHICH IS ACTUAL EVIDENCE THAT
THE POLICE THEN USED TO FIND THAT HE DID NOT HAVE A VALID ALIBI AT THE TIME
OF THE OFFENSE SO THEY KNEW THAT HE DID NOT HAVE AN ALIBI AT THE TIME THAT THE
OFFENSE OCCURRED. ASSOCIATE JUSTICE RACHEL WAINER APTER: THAT'S
THE SAME AS SAYING A LIE BECAUSE HE'S PROVIDING A FALSE ALIBI. HE'S SAYING YOU
KNOW, HE WAS SOMEWHERE ELSE AND THEN THE POLICE SAY WE KNOW YOU WEREN'T IN
THAT PLACE BECAUSE WE'RE LOOKING AT THE VIDEO AND WE DON'T SEE YOU WALKING BACK FROM
THE TRAIL AT 9:00 P.M. OR WHATEVER IT IS. ATTORNEY BIRCK:
IT'S STILL AN AN ADMISSION THOUGH THAT THE POLICE CAN USE AGAINST HIM.
ASSOCIATE JUSTICE RACHEL WAINER APTER: WHAT WOULD EVER BE SOMETHING THAT THE
DEFENDANT COULD SAY IN AN ENTER -- A CUSTODIAL INTERROGATION WHERE THE
DEFENDANT SHOULD HAVE BEEN WARNED BUT WASN'T UNDER FACTOR ONE THAT'S NOT THEN
AUTOMATICALLY USED AGAINST THE STATE IN. ATTORNEY BIRCK:
I THINK, AGAIN, THIS IS A QUALITATIVE ANALYSIS HERE. IS THAT RIGHT? YES. SO WHEN
WE LOOK AT FACTOR ONE,ITY NOT ONLY JUST THE NATURE OF THE ADMISSIONS
BUT THE EXTENT OF THE QUESTIONING. IF SOMEONE JUST BRURTS SOMETHING OUT AND IT'S
A -- EVEN THOUGH HE WAS IN CUSTODY THE FIRST TIME, THIS COURT COULD
SAY, YOU KNOW, IT WASN'T REALLY FIGURE THAT BIG. HE WAS IN THERE FOR TEN MINUTES OF
THE THAT'S NOT A BIG DEAL. THIS IS NOT SOMETHING THAT -- THIS FACTOR DOES
NOT GO TOWARDS SUPPRESSION. IN O'NEILL ITSELF. ASSOCIATE JUSTICE RACHEL
WAINER APTER: WHAT WE WORKED OUT IS A CONFESSION, THEN YOU'D BE UNDER CAT
OUT OF THE BAG AND IF WHAT HE BLURTS OUT IS A LIE, THEN WHAT HE BLURTS OUT CAN BE
USED AGAINST HIM. SO I'M SAYING WHERE IS THE DAYLIGHT WHERE IT'S NOT
AUTOMATICALLY SOMETHING USED AGAINST THE STATE. ATTORNEY BIRCK: IN
THIS CASE, O'NEILL TALKS ABOUT THE NATURE OF THE ADMISSION AND I THINK THAT IN
THIS CASE THE ALIBI ITSELF IS IMPORTANT INFORMATION. I'M NOT SURE ABOUT
OTHER SITUATIONS WHERE IT MIGHT. ASSOCIATE JUSTICE ANNE M. PATTERSON:
RESPECTFULLY COUNSEL, ARE YOU REALLY SAYING WHEN HE SAID I HAD NOTHING
TO DO WITH THIS AND I'M JUST PARAPHRASING I'M NOT TRYING TO BE PRECISE
ABOUT WHAT HE SAID BUT I WAS ALL THESE PLACES, OR WHATEVER IT IS HE SAID
ABOUT HIS WHEREABOUTS, IF HE SAID ANYTHING IN THAT FIRST INTERVIEW, AND HE IS
MAKING THE POINT THAT I I DIDN'T, I HAD NOTHING TO DO WITH THIS, THAT'S AN
ADMISSION? ATTORNEY BIRCK: HIS ADMISSION ABOUT HIS WHEREABOUTS
ON THE DAY I THINK ARE ABSOLUTELY, AGAIN IT'S A QUESTION OF THIS COURT'S LOOKING
AT THE TOTALITY AND THE NATURE OF THIS ADMISSION IN THE BROADER
CIRCUMSTANCES HERE AND I DO THINK THAT IN THIS CASE IT IS AN ADMISSION THAT HE DID
NOT HAVE A VALID ALIBI AT THE TIME OF THE OFFENSE. ASSOCIATE
JUSTICE ANNE M. PATTERSON: GOING BACK TO THE CHIEF'S QUESTION ARE YOU ARGUING
THAT O'NEILL, THIS TIME I GOT THE RIGHT CASE TITLE, I JUST WANT TO POINT
THAT OUT TO MY COLLEAGUES, THAT O'NEILL FACTOR ONE SHOULD BE BROADENED TO INCLUDE
ADMISSIONS AND/OR OTHER INFORMATION THAT SOMEHOW GETS THE PERSON FURTHER
IN TROUBLE, A GENERAL CATEGORY? ARE YOU ARGUING THAT IT SHOULD BE EXPANDED BEYOND
ADMISSIONS. ATTORNEY BIRCK: I DON'T KNOW IF THIS IS AN
EXPANSION. IN THE O'NEILL, THE HE LIES ABOUT HIS ALIBI AT THE TIME AND THEN HE
LYSE ABOUT HIS INVOLVEMENT IN THIS ROBBERY THAT HE SAID HE HELPED SET UP BUT
DIDN'T DO HIMSELF. SO THOSE THINGS HE DIDN'T ADMIT TO DIRECTLY WHAT
HAPPENED SNOOVM BUT HE ADMITTED INVOLVEMENT. O'NEILL ADMITTED THAT HE WAS INVOLVED
IN SOME OF IT, RIGHT. ATTORNEY BIRCK: YES, YES.
ASSOCIATE JUSTICE ANNE M. PATTERSON: AND AS I UNDERSTAND THE CASE I WASN'T
PART OF IT, THAT WAS PART OF WHAT AFFECTED HIS HIM IN THE SECOND INTERVIEW
IN THE COURT'S VIEW. ATTORNEY BIRCK: YES, BUT I WILL, BUT I
THINK THAT O'NEILL ITSELF DOES TALK ABOUT ALIBI AS SOMETHING THAT IS PART OF
WHAT HE LIED ABOUT AND THAT LATER HE HAD TO BACKTRACK FROM WHEN HE WAS CONFRONT
WITH IT SO I DON'T THINK THIS IS AN EXPANSION. ASSOCIATE
JUSTICE LEE A. SOLOMON: THE ADMISSION WAS EVIDENCE INVOLVED IN THE ROBBERY.
ATTORNEY BIRCK: YES, BUT IT IS SOMETHING THAT I THINK.
ASSOCIATE JUSTICE LEE A. SOLOMON: HE REFERRED TO O'NEILL BUT THAT'S
NOT WHAT THEY RELIED ON. ATTORNEY BIRCK: NO BUT IT IS PART OF THE
O'NEILL ANALYSIS THAT, YOU KNOW, HE LIED AND THN HE WAS PART OF THIS,
HE ADMITTED TO PART OF THE ROBBERY BUT NOT THE ACTUAL OFFENSE THAT HAPPENED AND
SO HE ADMITTED HIS INVOLVEMENT IN SOME WAY. ASSOCIATE JUSTICE
LEE A. SOLOMON: IN REVIEWING THE O'NEILL FACTORS WE TALKED ABOUT THERE'S
THERE'S BEEN MENTION OF THE FOURTH FACTOR. THE OFFICERS INFORMED DEFENDANT THERE'S
PRE WARNING STATEMENTS COULD NOT BE USED AGAINST HIM WHICH IS REALLY A SIGNIFICANT
FACTOR IN DETERMINING WHETHER THE SECOND STATEMENT COMES IN OR NOT.
HOW DO YOU UTILIZE THE FACT THAT POLICE OFFICERS DID NOT TELL HIM THAT? IS THAT
OF ANY RELEVANCE AT ALL. ATTORNEY BIRCK: ABSOLUTELY.
ASSOCIATE JUSTICE LEE A. SOLOMON: WHAT DOES O'NEILL SAY ABOUT THAT.
ATTORNEY BIRCK: O'NEILL, WHETHER OFFICERS INFORMED DEFENDANT THAT
HIS PRE WARNING STAPTS WOULD NOT BE USED AGAINST HIM. ASSOCIATE
JUSTICE LEE A. SOLOMON: HOWEVER THE FALL FAILURE TO GIVE THAT INSTRUCTION. QUOTING
-- BUSHG BUT I THIS THAT FACTOR SPECIALLY IN CONJUNCTION WITH FACTOR
FIVE HERE THAT AGREES TO WHICH THE SECOND INTERVIEW IS A CONTINUATION OF THE
FIRST ARE THE TWO BIG THINGS HERE THAT MILITATE TOWARD SUPPRESSION UNDER
O'NEILL. OFFICERS EXPLICITLY TOLD. ASSOCIATE JUSTICE LEE A. SOLOMON:
ISN'T THE FOURTH FACTOR ESSENTIALLY NOT A SIGNIFICANT FACTOR MILITATE
AGAINST THE OFFICERS AND THE STATE? YOU'RE ATTACHING GREAT SIGNIFICANCE AND IF
YOU'RE RELYING ON THAT UNDER O'NEILL, DON'T YOU HAVE A PROBLEM.
ATTORNEY BIRCK: I DON'T THINK SO BECAUSE O'NEILL, THE FACTOR IS THAT.
ASSOCIATE JUSTICE LEE A. SOLOMON: I KNOW WHAT THE FACTOR IS WHERE THE OFFICERS
INFORMED THE DEFENDANT HIS PRE WARNING STATEMENTS COULD NOT BE USED AGAINST
HIM AND IT GOES ON TO SAY THAT THAT DOESN'T RENDER THE POST MIRANDA STATEMENT
INADMISSIBLE. ATTORNEY BIRCK: NOT ON ITS OWN, NO, BUT IT IS
A FKT TORE TO BE CONSIDERED AGAIN IN ITS TOTALITY, WE LOOK AT WHAT CAR I
DON'T KNOW SAID. IT SAYS THE FUNCTION EFFECTIVELY SO AS TO LIMIT THE POTENTIAL
PSYCHOLOGICAL BURDEN THAT THE PREVIOUS CONFESSION MAY HAVE PLACED OP
THE DEFENDANT. ASSOCIATE JUSTICE ANNE M. PATTERSON:
CONFESSION. CONFESSION. AND THAT FITS WITH THE O'NEILL'S LATER EXPLANATION OF
FACTOR FOUR WHICH I BELIEVE IS ON PAGE 181 BUT I COULD BE WRONG.
ASSOCIATE JUSTICE LEE A. SOLOMON: YOU'RE RIGHT. IT'S RIGHT THERE.
ASSOCIATE JUSTICE ANNE M. PATTERSON: THANK YOU. I HAVE SOME VERIFICATION HERE,
UNDER THAT FORMULA, GREAT WEIGHT SHOULD BE GIVEN IF THE POLICE INFORMED THE
SUSPECT OF ADMISSIONS, AGAIN, WE HAVE THE ADMISSIONS, TYING IN THE SAME
STATEMENTS IN FACTOR ONE AND POST INCRIMINATING STATEMENTS ARE ALSO MENTIONED.
ATTORNEY BIRCK: IT DOES BUT AGAIN, I THINK THE FACTS THAT
THE FIRST FACTOR DOES SAY NATURE OF THE ADMISSIONS IMPLIES THAT THERE'S MORE THAN
ONE TYPE OF ADMISSION THAT CAN BE USED. IT DOESN'T HAVE TO BE A FULL
CONFESSION IN ORDER FOR O'NEILL TO APPLY HERE. THE FACT THAT THE NATURE OF THE
ADMISSIONS IS SOMETHING FOR THIS COURT TO CONSIDER MAKES IT A BROADER QUESTION THAN
JUST A FLAT OUT CONFESSION TO SOMETHING AND IN FACT, O'NEILL ITSELF
TALKS ABOUT, KNOW, FOR EXAMPLE IF THE OFFICERS PRE WARNING QUESTIONING IS WREEF
AND DEFENDANT'S ADMISSIONS ARE NOT INCRIMINATING OR BARELY
INCRIMINATING IT IS SOMETHING TO TAKE INTO CONSIDERATION SO AS YOUR HONOR IS ASKING
ABOUT SOMETHING THAT MIGHT NOT, IF IT'S LIKE BARELY INCRIMINATING THEN
MAYBE IT IS SOMETHING THAT DOESN'T LIEN TOWARD SUPPRESSION. MAYBE IT'S A NEUTRAL
FACTOR BUT I DON'T THINK THAT O'NEILL LIMITS IT ONLY TO OUT RIGHT
CONFESSIONS. THIS COURT CAN LOOK AT THE NATURE OF WHAT WAS SAID AND HOW THAT IMPACTS
SOMEBODY -- THE LATER DECISION WHETHER TO WAIVE. ASSOCIATE
JUSTICE ANNE M. PATTERSON: BUT IT DOES RESPECTFULLY COUNSEL, SAY ADMISSIONS.
ATTORNEY BIRCK: YES, ABSOLUTELY. ASSOCIATE
JUSTICE ANNE M. PATTERSON: SO SHOULD THE COURT LOOK AT WHAT LITTLE BIT WE KNOW ABOUT
THE FIRST INTERVIEW AND SEE IF WE CAN FIND ANY QUOTE/UNQUOTE ADMISSION
THAT WERE MADE. ATTORNEY BIRCK: I THINK IT IS SOMETHING THAT
THE COURT SHOULD CONSIDER BUT I WILL TURN TO THE MIRANDA IDEA THAT SOMEBODY'S
EXCULPATORY STATEMENTS MIGHT ENDS UP BEING USED AGAINST THEM AND SO IT IS
SOMETHING THAT THIS COURT COULD CONSIDER AND SHOULD CONSIDER THAT INFORMATION
ABOUT ONE'S ALIBI IS IMPORTANT INFORMATION THAT THE POLICE NOW KNOW THAT
THEY DID NOT KNOW BEFORE, THAT THEY CAN CHECK OUT LATER AND CAN YOU TELL
HIM OUT ON THOSE INN SIN SIZ SIS AND THAT IS SOMETHING THAT THIS, AND SAY HEY, IT
WAS IMPORTANT THAT THE OFFICERS KNEW THAT HE DIDN'T HAVE AN ALIBI AT THE TIME
THAT A.S. WENT MISSING AND THIS IS SOMETHING THAT WOULD INDUCE HIM TO TALK LATER
BECAUSE HE SAID OH, THIS IS ALREADY OUT THERE, I NEED TO KEEP EXPLAINING
MYSELF AND I THINK THAT IS SOMETHING THAT'S IMPORTANT HERE SPECIALLY WHEN THE
OFFICERS THEN GO TO HIM AND SAY THIS IS GOING TO BE A -- WE EXPECT THIS TO
BE A CONTINUATION OF THE FIRST INTERROGATION SHALL WHICH GOES TO FACTOR FIVE AND
ALSO I THINK IT'S IMPORTANT TO RECOGNIZE WHETHER THE SECOND MIRANDA WARNINGS
PROVIDED A BULL WORK AGAINST THE FIRST INTERROGATION WHEN HE'S BEING TOLD THAT
HE'S JUST GETTING THESE WARNINGS BECAUSE THEY ARE IN A POLICE STATION
SO I DO THINK THAT THE FACT THAT. ASSOCIATE JUSTICE ANNE M. PATTERSON:
DID THEY SAY THAT. YOU'RE JUST GETTING THESE WARNINGS BECAUSE WE'RE
IN A POLICE STATION? BIRG WHY MY READING IS YES, ABSOLUTELY. THE EXACT QUOTE IS
BUT BEFORE WE DO THAT'S CORRECT BECAUSE WE'RE IN A POLICE DEPARTMENT, OKAY,
YOU'RE NOT UNDER ARREST BUT BECAUSE EAR IN A POLICE DEPARTMENT SHALL THIS IS
A MERIT OBVIOUSLY WE TALKED ABOUT EARLIER, THIS IS, YOU KNOW RG SOMETHING WE
WANT TO TALK TO PEOPLE ABOUT. BECAUSE WE WANT TO TALK TO YOU ABOUT THIS,
I WANT TO ADVISE YOU OF YOUR MIRANDA RIGHTS AND I THINK BECAUSE THEY REPEATED
WE ARE IN A POLICE DEPARTMENT TWICE REALLY UNDERMINES THAT THESE
WARNINGS ARE REALLY IMPORTANT AND SAY IT'S JUST A FORMALITY OF WHERE WE ARE AND
WE WANT TO TALK TO PEOPLE ABOUT THAT SO I THINK WHEN WE LOOK AT THE WARNINGS
IN CONTEXT OF ALSO SAYING THIS IS JUST GOING TO BE A CONTINUATION, THESE
WARNINGS CANNOT SERVE TO DISSIPATE THIS COERCIVE ENVIRONMENT AGAIN WITH AN 18
-YEAR OLD WITH VERY LITTLE EXPERIENCE IN THE SYSTEM WHO DID NOT GRADUATE
HIGH SCHOOL AND WHO HAS NOT ROLELY SHOWN THAT HE WAS UNDERSTANDING SMALL THINGS
LIKE THE VIDEO BEING RECORDED DURING THE INTERROGATION ITSELF SO WHEN WE LOOK
AT THE O'NEILL FACTORS, THE WARNINGS JUST COULDN'T SERVE TO DISSIPATE THE
COERCIVE EN VURNMENT OF THESE -- OF THE INTERROGATION AND SO THE APPELLATE DIVISION
DID CORRECTLY FIND THAT UNDER O'NEILL, BOTH THE FIRST AND SECOND STATEMENTS
SHOULD BE SUPPRESSED. UNLESS THIS COURT HAS ANY OTHER QUESTIONS, THANK YOU.
ATTORNEY BIRCK: THANK YOU LAUREN GOTTESMAN: GOOD AFTERNOON.
MAY IT PLEASE THE T COURT. LAURN GOT ON BEHALF OF THE INNOCENCE
PROJECT. IF I MAY BEGIN BY CLARIFYING A STATEMENT ASSERTED BY THE STATE IN
THEIR OPENING STATEMENT THAT THE INNOCENCE PROJECT IS HERE TO ENCOURAGE THE COURT THAT
THIS IS A WRONGFUL CONVICTION, THAT IS NOT OUR POSITION, THAT IS NOT WHAT WE ARGUED OR
IMPLIED IN OUR BRIEF. WE ARE HERE BECAUSE OF THE DECEPTIVE COERCIVE TACTICS USED AGAINST
AN 18 YEAR OLD IN A DEE SET SEPTEMBER I HAVE COERCIVE INTERROGATION. WE'RE
CONCERNED THAT IF THIS COURT DOES NOT MAKE A RULE THAT PROVIDES GUIDANCE TO THE LOWER
COURTS AND DEE TERSE THE USE OF SUCH TACTICS THEN INNOCENT PEOPLE WHO ARE SUBJECT TO THESE
SAME TACTICS ARE AT RISK OF WRONGFUL CONVICTION. I WOULD ALSO LIKE TO NOTE
THAT THIS IS THE THIRD TIME IN ABOUT THE LAST TWO YEARS THAT THE INNOCENCE PROJECT HAS
PARTICIPATED AS AMICUS IN A CASE LIKE THIS WHERE A PERSON WHO WAS PARTICULARLY VULNERABLE
TO POLICE COERCION WAS LIED TO BY POLICE AND DESPITE THIS DECEPTION A TRIAL COURT ADMITTED
THE STATEMENT AS VOLUNTARY UNDER THE TOTALITY OF THE CIRCUMSTANCES. I WILL
ADDRESS THAT ISSUE FIRST AN WE WILL END WITH A BRIEF DISCUSSION OF THE MIRANDA CUSTODY
ISSUE. JUSTICE WAINER APTER: ANY OTHER JURISDICTIONS THAT PREVENT DEE
SEPTEMBER ACTIVE TACTICS IN THE WAY YOU'RE ASKING US TO. LAUREN GOTTESMAN:
NOT PRECISELY IN THE WAY I AM ASKING. WE ARE ASKING FOR A PER SE RULE... OR A FALSE
PROMISES OF LENIENCY INCLUDING THE USE OF MINIMIZATION TACTICS SHOULD RENDER A
CONFESSION INVOLUNTARY PER SE. THERE ARE NOT OTHER STATE SUPREME COURTS THAT HAVE RULED
AS SUCH SO FAR. THERE IS A CASE PENDING IN THE MICHIGAN SUPREME COURT IN WHICH WE'VE
ASKED THE COURT TO MAKE THAT RULING; THAT'S UN DECISION. THERE ARE FIVE
LEGISLATURES WHO HAVE PROHIBITED THESE TACTICS AGAINST YOUNG PEOPLE AND THERE ARE ALSO
SEVERAL PER SE RULES BOTH FEDERALLY AND FROM STATE SUPREME COURTS THAT SPEAK TO -- THAT
PROVIDE DETERRING -- DETERRING RULES SIMILAR TO WHAT WE'RE SEEKING FOR LIES ABOUT EVIDENCE
TO SPECIFIC TYPES OF LIES. JUSTICE PATTERSON: JUST OUT OF CURIOSITY WHEN
YOU SAY YOUNG PEOPLE AND THE STATE LEGISLATURES ARE TAKING ACTION IS THAT JUVENILES OR
PEOPLE UP TO 26 OR IS THAT PEOPLE UP TO MY AGE FOR EXAMPLE, FWOT GOT THUS FAR THE FIVE
STATE LURS WHO HAVE ACTED IN LAWS THA GONE INTO EFFECT HAVE BEEN FOR LEGAL MINORS SO
INDIVIDUALS UNDER 18. THERE IS ONE BILL BEING CONSIDERED RIGHT NOW FOR PEOPLE OF ANY AGE
IN NEW YORK AS I UNDERSTAND IT YOU THERE WAS ANOTHER BILL, I BELIEVE IN VERMONT BUT I WILL
HAVE TO CONFIRM WITH MY POLICY TEAM AT THE INNOCENCE PROJECT THAT IS BEING CONSIDERED
FOR INDIVIDUALS UP TO AGE 21. JUSTICE PATTERSON: THE LURS THAT HAVE ACTED
HAVE ACTED TO PROTECT JUVENILES. LAUREN GOTTESMAN: THAT'S CORRECT, THE FIRST
FIVE. I WAS JUST NOTING BRIEFLY THAT AS WE ARE TO JUST COMPLETE MY THOUGHT
WITH REGARD TO THE JUSTICE'S QUESTION HERE, THAT THERE ARE FOUR PARTICULARLY EGREGIOUS
TYPES OF POLICE INTERROGATION TACTICS. THERE ARE PER SE RULE THAT IS TOTALLY NOT UNPRECEDENTED
FOR A COURT TO FIND THAT AN EGREGIOUSLY COERCIVE LITIGATION TACTIC IS VOLUNTARY. HAWAII
FOUND THAT WHEN POLICE LIED TO INDIVIDUALS AN FOUND THAT THEY FAILED A POLYGRAPH TEST
WHEN THEY DID NOT THAT THE RESULTING CONFESSION WOULD BE PER SE INVOLUNTARY, PER SE COERCE
SI. ALSO IN THE FEDERAL COURT THERE HAS BEEN CASE LAW THAT CON FEGZ ELICITED
IN RESPONSE TO A THREAT AT GUN POINT IN RESPONSE TO 36 HOURS OF COERCIVE INTERROGATION,
THAT TYPES OF INTERROGATION TACTICS HAVE RESULTED IN PER SE RULES. JUSTICE
PATTERSON: THERE IS NO GUN INVOLVED HERE. LAUREN GOTTESMAN: I UNDERSTAND,
YES, YOUR HONOR, HERE GOT. JUSTICE PATTERSON: WE'VE GOT A MUCH MORE COMPLEX
SITUATION THAN A COURT CONFRONTED WITH A GUN POINT INTERROGATION. LAUREN
GOTTESMAN: ABSOLUTELY. I WOULD LIKE TO POINT OUT THAT OVERWHELMINGLY, EXPERTS ON POLICE
COERCIVE -- EXPERTS ON COERCIVE INTERROGATION AN POLICE INDUCED CON FEGSZ OVERWHELMING
LY AGREE THAT LIES ABOUT EVIDENCE IN THE CONTEXT OF POLICE INTERROGATION ARE EQUALLY PERILOUS,
JUST AS COERCE SI AS EXPLICIT THREATS, EXPLICIT PROMISES OR EVEN TORTURE KNOWN AS THE
THIRD DEGREE SFLFRMTHS IS THAT BEING RELIED ON THIS CASE BY THE DEFENDANT.
LAUREN GOTTESMAN: I'M SORRY. CHIEF JUSTICE RABNER: IS A LIE FROM AN OFFICER
BE RELIED ON THIS BASIS BY THE DEFENDANT. LAUREN GOTTESMAN: I DON'T BELIEVE
IT'S BRIEFED BY THE PARTIES OR ARGUED BY THE PARTIES BUT I WOULD SUBMIT, CHIEF JUSTICE
THAT IT IS CLEAR FROM THE RECORD THAT MR. ERAZO WAS LIED TO BY THE OFFICERS WHEN THEY
REPEATEDLY TOLD HIM THAT A WITNESS HAD POSITIVELY IDENTIFIED HIM AS BEING WITH THE VICTIM
ON THE DAY IN QUESTION. THERE WAS ANOTHER IMPLICIT SUGGESTION THAT IT WAS ITEM,
ACTUALLY MULTIPLE PEOPLE, MULTIPLE WITNESSES WHEN THAT WAS NOT IN FACT TRUE. CHIEF
JUSTICE RABNER: I UNDERSTAND THE PART OF THE TESTIMONY YOU'RE ELUDING TO, I WAS JUST
ASKING WHETHER IT WAS PART OF THE CASE THE PARTIES HAVE PRESENTED FWOT GOT I WOULD URGE
THE COURTS TO LOOK AT THIS CLOSELY, BUT NO, IT IS OUR POSITION THAT DESPITE NOT BEING
LITIGATED BY THE PARTIES IT IS CLEAR AND THE SCIENCE IS CLEAR THAT THIS TACTIC PLACES
PEOPLE AT GREAT RISK AND WE WOULD URGE THE COURT TO ACT IN THIS MATTER. IT IS OUR POSITION
THE RECORD IS SUFFICIENTLY CLEAR TO ACT NOW, HOWEVER, OF COURSE, IF THE COURT FELT THAT
IT WOULD BE APPROPRIATE TO REMAND THE CASE FOR ADDITIONAL FACT-FINDING OR FOR A SPECIAL
MASTER'S PROCEEDINGS TO ASSESS THE SPECIAL RECORD AND THE SCIENCE WE WOULD OF COURSE BE
HAPPY TO PARTICIPATE IN THAT. JUSTICE WAINER APTER: BUT THE PERSON FROM
ACROSS THE STREET DID GIVE A STATEMENT THAT HE SAW THE VICTIM WITH SOMEONE WHO LOOKED
LIKE THE DEFENDANT ENTERING THE DEFENDANT'S APARTMENT, CORRECT? LAUREN
GOTTESMAN: CORRECT, YES. JUSTICE WAINER APTER: IN THE OTHER CASES WHERE
YOU'RE TALKING ABOUT THESE BLATANT LIES BASED ON THE EVIDENCE, I ASSUME IT'S NOT SOMETHING
LIKE THAT, IS IT? IS THERE A CASE WHERE AN ESCORT HAS HELD THIS IS A BLATANT
LIE ABOUT THE EVIDENCE AND, THEREFORE, WE ARE GOING TO SUPPRESS THE STATEMENT BECAUSE
WE FIND THAT THAT IS COERCIVE? LAUREN GOTTESMAN: I AM UNAWARE OF A CASE
THAT PERFECTLY PARALLEL EASE THESE FACTS, NO, BUT THERE ARE CASES WHERE POLICE HAVE LOOKED
TO LIES ABOUT EVIDENCE THAT DO EXACTLY WHAT THIS LIE DOES, RIGHT? THE LIE
COMMUNICATES TO THE PERSON SITTING IN THE INTERROGATION CHAIR THAT THERE IS NO WAY OUT;
THAT THE WEIGHT OF THE ED IS SO STRONG THAT THERE IS NO WAY OUT OF IT AND USING MINIMIZATION
TACTICS TELLING THEM THAT THIS WILL HELP YOU, A PERSON BEGINS TO PERCEIVE THAT THE ONLY
WAY OUT OF THIS BECAUSE THE WEIGHT OF THE EVIDENCE IS SO STRONG IS TO CONFESS.
JUSTICE WAINER APTER: I GUESS MY QUESTION IS, ARE THERE OTHER CASES WHERE THE BLATANT
LIE DOESN'T SEEM LIKE SO MUCH OF A BLATANT LIE. LAUREN GOTTESMAN: IF I MAY
FIRST JUST SORT OF CLARIFY, MY POSITION IS THAT IT IS A CLEAR BLATANT LIE. I UNDERSTAND
YOUR HONOR'S POINT THAT THERE ARE SOME CASES, FOR EXAMPLE, IN THE ARCHIVES OF WRONGFUL
CONVICTIONS WHERE, FOR EXAMPLE, POLICE LIE ABOUT THE PRESENCE OF DNA THAT DOESN'T EXIST.
PERHAPS THAT'S A MORE CLEAR CUT CASE. THERE ARE ALSO EXAMPLES OF CASES IN
WHICH POLICE LIE ABOUT A WITNESS MAKING A POSITIVE IDENTIFICATION AND I SUBMIT THAT
THAT IS WHAT HAPPENED HERE. I ACKNOWLEDGE THAT THERE IS A WITNESS THAT IDENTIFIED THE
VICTIM AS SOMEONE WITH WHO THE POLICE DESCRIBED AS MATCHING MR. ERAZO'S DESCRIPTION.
JUSTICE WAINER APTER: GOING INTO HIS APARTMENT. LAUREN GOTTESMAN:
GOING INTO HIS APARTMENT. I UNDERSTAND. WHAT THEY TELL HIM IS THAT THE PERSON
IDENTIFIED HIM, QUOTE, NO ONE ELSE, YOU. THAT'S NOT TRUE. THE PROBLEM WITH THAT IS THAT --
WAYNE HOW IS THAT TRUE? IS THERE SOMEONE ELSE WHO LIVED IN THE APARTMENT
WHO LOOKED SIMILAR TO THE DEFENDANT? LAUREN GOTTESMAN: WE DON'T KNOW THAT.
THE PROBLEM WITH THAT LIE IS THAT IT TAKES AWAY ANY POSSIBILITY OF THE PRESUMPTION OF
INNOCENCE THAT MAYBE THERE WAS AN UNCLE OR A BROTHER OR A COUSIN THAT FIT THAT DESCRIPTION
AND WASN'T HIM AN IT CONVINCES HIM THAT THERE IS A WITNESS OUT THERE POINTING THE FINGER
TREKTLY AT HIM AND THAT IS NOT TRUE. CLOP DIRECTLY. I WOULD ALSO JUST NOTE
-- JUSTICE PATTERSON: WOULD YOU CONSIDER THIS ON THE SPECTRUM OF LIES THAT
THE CASE LAW DEALS WITH, DO YOU CONSIDER THIS TO BE ONE OF THE MOST EGREGIOUS OR ONE
OF THE, PERHAPS, GRAY AREAS TYPES OF STATEMENTS? LAUREN GOTTESMAN: I DON'T KNOW
THAT I AM PREPARED TO SORT OF QUANTIFY DIFFERENT LIES. IT IS MY POSITION THAT ANY LIE
ABOUT EVIDENCE IS AN EXAGGERATION. JUSTICE PATTERSON: COMPARE IT WITH THE
ONE THAT YOU CITED ABOUT YOU FAILED A POLYGRAPH WHEN IN FACT THE PERSON PASSED -- I DON'T
KNOW THE CASE BUT THAT'S WHAT YOU ARE INDICATING THE CASES, THAT'S A PRETTY DIRECT LIE?
LAUREN GOTTESMAN: CERTAINLY. I WILL ACKNOWLEDGE YOUR HONOR THERE ARE CASES
OUT THERE. THERE ARE LIES THAT ARE PERHAPS MORE CLEAR CUT. IT IS NOT CLEAR TO ME THAT
THE IMPACT, WHAT WE ARE CONCERNED ABOUT THE COERCIVE IMPACT OF LIES ON THE PERSON ACCUSED
ON THE PERSON IN THE INTERROGATION CHAIR. WHETHER IT'S AN EXAGGERATION OR
A BLATANT LIE THE SCIENCE TELLS US THAT MISINFORMATION IN THE CONTEXT OF
INTERROGATION IS DANGEROUSLY COERCIVE. AS I NOTED, EXPERTS DEGREE AS MUCH AS
POLICE VIOLENCE. ALSO A LIE ABOUT EVIDENCE IN THE CONTEXT OF INTERROGATION,
CAN EVEN WITH AN INNOCENT PERSON QUESTION THEIR OWN MEMORY AND MAKE THEM BELIEVE WRONGFULLY
IN THEIR OWN GUILT. WE HAVE SEEN THIS PHENOMENON OVER AND OVER AGAIN BOTH IN LABORATORY
SETHS AND IN THE REAL WORLD. WHEN YOU THINK ABOUT IT. IT MAKES SOME SENSE
WHEN YOU CONSIDER THE POWER OF INFORMATION ON THE HUMAN PSYCHE, IF YOU THINK ABOUT THE
PLACEBO EFFECT ON MEDICATION, INFORMATION ABOUT MEDICATION CAN RESULT IN CHANGES IN THE
HUMAN BODY SO IN THE CON... AS A RESULT, A FALSE CONFESSION AND A TRAGIC MISCARRIAGE OF
JUSTICE. IF I MAY BRIEFLY ADDRESS THE MIRANDA CUSTODY ISSUE UNLESS YOUR HONORS
HAVE QUESTIONS WITH REGARD TO THE VOLUNTARINESS? OVER TEN YEARS AGO THE
U.S. SUPREME COURT IN J D V NORTH CAROLINA HELD THAT A CHILD'S AGE MUST BE CONSIDERED
IN THE OBJECTIVE CUSTODY ANALYSIS BECAUSE CHILDREN ARE LIKELY TO PERCEIVE POLICE
QUESTIONING DIFFERENTLY THAN ADULTS AND ARE AT AN ACUTE RISK OF FALSELY CONFESSING BUT
MODERN NEUROSCIENCE REVEALS IT IS NOT JUST YOUNG CHILDREN BUT ALSO TEENAGERS, ADOLESCENCE
AN YOUNG PEOPLE AGE 24 AND BELOW WHOSE BRAINS, SPECIFICALLY THE PREFRONTAL CORTEX ARE
QUITE LITERALLY STILL DEVELOPING AND THEREFORE YOUNG PEOPLE HAVE DIFFICULTY MAKING DECISIONS
UNDER STRESS, THEY ARE MORE LIKELY TO REFLEXIVELY ACQUIESCE TO POLICE AUTHORITY AND THEY ARE
MUCH LIKELY: IT IS THEREFORE CRITICAL THAT THIS COURT CLARIFY THAT PEOPLE AGED 18 TO 24
HAVE HEIGHTENED SUSCEPTIBILITY TO POLICE COERCION AND JUST LIKE THIS COURT DID IN PEOPLE
V MAD, PEOPLE V AN ASSESSING KUGS STOD DEE ANALYSIS MUST LOOK AT THE CUSTODY QUESTION
OF, FROM THE PERSPECTIVE OF A REASONABLE PERSON OF THE PERSON'S AGE. JUSTICE
WAINER APTER: ARE THERE ANY JURISDICTIONS THAT HAVE DONE THAT. LAUREN
GOTTESMAN: THERE ARE. I CITED IT IN MY BRIEF. I COULD FIND THE CITATIONS IF THE COURT
ALLOWS ME A MOMENT. JUSTICE WAINER APTER: THAT'S FOR PEOPLE AGES 18 TO 24.
LAUREN GOTTESMAN: I WOULD HAVE TO LOOK BACK AT THE CASES. I MAY HAVE
MISUNDERSTOOD YOUR HONOR'S QUESTION. I THOUGHT THE QUESTION WAS WHETHER COURTS HAVE
ANNOUNCED... THAT HAS BEEN ADOPTED BY CERTAIN COURTS. JUSTICE WAINER APTER:
I MEAN SPECIFICALLY IF A PERSON IS OLDER 18 BECAUSE PRESUMABLY IF THEY ARE YOUNGER THAN
18 IT'S ALREADY COVERED IN THE UNITED STATES SUPREME COURT COURT'S RULE. J D B.
LAUREN GOTTESMAN: J D B HAS BEEN REPEATEDLY IGNORED WAIP WAYNE YOU'RE ASKING US TO GO
BEYOND J D B SO YOU'RE ASKING US TO GO BEYOND. LAUREN GOTTESMAN: YES WAIVEN.
JUSTICE WAINER APTER: WAYNE I AM ASKING HAVE THERE BEEN ANY COURTS WHO HAVE
AADOPTED A RULE SIMILAR TO J D B REGARDLESS OF WHETHER IT'S BEEN IGNORED OR NOT.
LAUREN GOTTESMAN: I AM UNAWARE OF IT BUT WHAT I AM ASKING THIS COURT TO DO IS TO CONTINUE
ITS HISTORY OF BEING A LEADER NATIONALLY IN FOLLOWING THE SOCIAL SCIENCE AND ASSURING
THAT ITS CITIZEN'S CONSTITUTIONAL RIGHTS ARE ACCEPTED BOUS WITHOUT CLARIFICATION FROM
THIS COURT ABOUT HOW AGE IMPACTS THE CUSTODY ANALYSIS THIS VULNERABLE POPULATION MAY BE
LEFT WITHOUT THESE BASIC MIRANDA PROTECTIONS DURING POLICE QUESTIONING. IF
THE COURT DOESN'T HAVE FURTHER KWEGS I WOULD LIKE TO THANK THE COURT FOR ALLOWING THE
INNOCENCE PROJECT TO PARTICIPATE. THE COURT: THANK YOU, MR. SILBER.
CHIEF JUSTICE STUART RABNER: MR. SILBER. MR. SILBER: MAY IT PLEASE THE COURT,
THE APPELLATE DIVISION HELD THAT APPLYING THE TOTALITY OF CIRCUMSTANCES TEST THE STATE
FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT ERAZO'S WAIVER WAS MADE KNOWING HI
VOLUNTARILY AND INTELLIGENTLY AND THAT'S A DECISION THAT'S PREDICATED ON THE DUE PROCESS
CLAUSE OF THE 14TH AMENDMENT. WHAT WERE THE CIRCUMSTANCES THAT THE APPELLATE DIVISION
FOUND? WELL, FIRST AND I THINK THEY WEIGHED THIS STRONGLY, THEY FOUND A STRAT JUM TO OF THE
RIGHT TO SILENCE, THE RIGHT TO COUNSEL AND THEY FOUND THAT STRONGLY. IN ANSWER TO CHIEF
JUSTICE RABNER'S QUESTION AND I THINK CHIEF JUSTICE'S PATERSON'S QUESTION ABOUT THE ROLE
OF STATE V. SIMMS, THIS CASE IS NOT THE CASE TO OVERRULE THAT RECENT OPINION BUT IT WAS
CLEAR IN SIMMS THAT THIS COURT SAID THAT THE FAILURE TO TELL THE DEFENDANT THE TRUE STATUS
WAS WEIGHABLE IN THE TOTALITY OF CIRCUMSTANCES AND THAT'S WHAT WAS DONE. THERE WAS A VERY
GOODIES SENTING OPINION IN SIMMS BY JUSTICE ALBIN AND I THINK THAT CAN BE USED ONLY TO
EXPLAIN HOW IMPORTANT THAT FACTOR IS IN THE TOTALITY OF CIRCUMSTANCES. IT MAY BE THE MOST
IMPORTANT FACTOR AND SHOULD WEIGH HEAVILY IN THIS COURT'S DECISION WLRNT TO AFFIRM THE
APPELLATE DIVISION OPINION. ASSOCIATE JUSTICE ANNE M. PATTERSON: YOU'RE SUGGESTING
WE VIEW THE APPELLATE DIVISION RULING ON THE STATUS ISSUE. MR. SILBER: I'M
SORRY. ASSOCIATE JUSTICE ANNE M. PATTERSON: WE SHOULD VIEW THE APPELLATE
DIVISION RULING ON THE STATUS ISSUE. MR. SILBER: THAT'S ONE OF THE CIRCUMSTANCES
THAT THEY WADE. ASSOCIATE JUSTICE ANNE M. PATTERSON: I WAS GOING TO FINISH.
GO AHEAD. MR. SILBER: BUT I DO THINK AND BASING IT IN SOMEWHAT ON JUSTICE
ALBIN DISSENT IN SIMMS THAT THEY MAY BE THE MOST IMPORTANT OF THE CIRCUMSTANCES BUT THERE'S
LOT OF THEM AND THEY ARE FAIRLY FUNDAMENTALLY PROFOUND I THINK IS THE RIGHT WORD. THE
BODY WAS FOUND AT 10:30 A.M. AND THEY DID NOT TELL ERAZO, SORRY, AT THE INTERVIEW WHICH
REALLY WAS AN INTERROGATION THAT BEGAN AT 1110. SO IT'S 40 MINUTES AFTER THE BODY IS
FOUND AND THEY DECIDE NOT TO TELL ERAZO THAT IT'S A MURDER INVESTIGATION RATHER THAN A MISSING
PERSONS INVESTIGATION AND THEY DIDN'T TELL HIM UNTIL I'M GUESSING, MAYBE NOT JUST GUESSING
BUT PROJECTING THIS, AROUND SIX OR SEVEN O'CLOCK AT NIGHT: SO WE DON'T GET DOWN TO THE
POINT WHERE DETECTIVE RAY NOR TELLS ERAZO IT'S A LOT WORSE THAN THAT AND IT'S THE FIRST TIME
THAT ERAZO IS A ADVISE THE OF THE TRUE STATUS AND HE HAS NOT YET WAIVED. THEY WERE OBJECTIVELY
REASONABLE OFFICERS WHO HAD OBVIOUSLY CONCLUDED BASED ON THE MASSIVE EVIDENCE AGAINST
HIM THAT THE EA RAS SO WAS THE INDIVIDUAL THAT WAS CREDIBLY RESPONSIBLE FOR A.S.'S DEATH.
THE RESULTS OF THE DELIBERATE STRAT JUM TO WITHHOLD FROM ERAZO THAT A.S.'S BODY HAD BEEN
FOUND UNDER HIS WINDOW SHOULD ALSO LEAVE THIS COURT TO CONCLUDE THAT THE STATE FAILED
TO PROVE BEYOND A REASONABLE DOUBT THAT ERAZO'S WAIVER OF HIS RIGHT AGAINST
SELF-INCRIMINATION WAS KNOWINGLY MADE. ASSOCIATE JUSTICE RACHEL WAINER APTER:
YOU'RE SAYING THAT POLICE OFFICERS HAD CONCLUDED THAT THE DEFENDANT WAS RESPONSIBLE FOR
THE VICTIM'S DEATH BEFORE THE FIRST INTERVIEW AT 1110 ACH M. MR. SILBER: CORRECT.
ASSOCIATE JUSTICE RACHEL WAINER APTER: WHO WERE THOSE OFFICERS WHO HAD CONCLUDED
THAT. MR. SILBER: RAY NOR AND DETECTIVE JANUARY COWITS FROM THE KEANSBURG
POLICE DEPARTMENT. ASSOCIATE JUSTICE RACHEL WAINER APTER: HOW DO YOU KNOW THAT
THEY CONCLUDED THAT. MR. SILBER: IT'S A GOOD QUESTION. I HAVE SEEN IT WRITTEN
IN BRIEFS THAT HE HAD HAD THAT INFORMATION. I HAVEN'T BEEN ABLE TO SEE IT FOR MYSELF
EXACTLY BUT IT'S I THINK IT'S A FAIR UNFORENSIC AND IT'S UNREBUTTED. THERE'S NO WHERE IN THE
PROSECUTOR'S BRIEF THAT THEY SAY THE POLICE DIDN'T HAVE THAT INFORMATION AND IT'S.
ASSOCIATE JUSTICE RACHEL WAINER APTER: DETECTIVE RAY NOR HIMSELF I THOUGHT TESTIFIED
THAT HE WAS ONLY A WITNESS AT THAT TIME, HE WASN'T A SUSPECT, BEING A SUSPECT IS FROM
THE POLICE HAVING CONCLUDED IT DEFINITELY WAS YOU BUT DIDN'T DETECTIVE RAY NOR HIMSELF
TESTIFY THAT AT 11:10 A.M. HE WAS NOT A SUSPECT, HE WAS ONLY A WITNESS. MR. SILBER:
WELL IT SEEMS TO ME THE FACT THAT THE BODY WAS FOUND AT 10:30, THAT THE INVESTIGATORS
WHO WERE HEADING THE INVESTIGATION FIRST THE MISSING PERSONS INVESTIGATION AND SECONDLY
THE MURDER INVESTIGATION WERE INTERVIEWING A WITNESS AT 1110 SO I THINK IT WOULD BE HARD
TO CONCLUDE THAT THE OFFICERS WERE UNAWARE THAT THE BODY HAD BEEN FOUND AT 10:30. LAW
ENFORCEMENT DOESN'T WORK THAT WAY. ASSOCIATE JUSTICE RACHEL WAINER APTER: THAT
DID NOT LEAD THEM ON CONCLUDE THAT HE WAS THE MAIN SUSPECT. MR. SILBER: AISLE
HAVING A LITTLE BIT OF TROUBLE. ASSOCIATE JUSTICE RACHEL WAINER APTER: OOM
VIR. IF THEY THOUGHT HE WAS THE MAIN SUSPECT WHY WOULD THEY NOT HAVE JUST WAIT FOR THE
ROOM WITH THE VIDEO AND AUDIO RECORDING TO OPEN UP AND THEN INTERVIEWED HIM IN THAT ROOM.
MR. SILBER: IT'S A FAIR QUESTION AND IT'S ONE OF THE CIRCUMSTANCES OF THE TOTALITY
OF CIRCUMSTANCES THAT THE APPELLATE DIVISION WEIGHED. THERE COULD BE. WE CAN SPECULATE
ON A LOT OF REASONS SHS THEY DIDN'T HAVE ROOM, THEY WERE WAITING FOR IT, YOU KNOW, THEY
THOUGHT THEY WOULD HAVE SOMETHING TO DO IN ADVANCE. I DON'T KNOW THE ANSWER TO YOUR
QUESTION. BUT I DO KNOW THAT THEY HAD FOCUSED ON HIM AND THEY DIDN'T, THEY PUT HIM INTO
THE ROOM AND THEY DIDN'T GIVE HIM WARNINGS. THEY COULD HAVE GIVEN HIM THE WARNINGS MUCH
THEY DIDN'T HAVE TO GIVE WARNINGS ONLY FOR RECORDED, WELL, MAYBE THAT'S ONE THE REASONS
THEY DIDN'T GIVE HIM THE WARNINGS IS THE THEY DIDN'T HAVE THE RECORDING EQUIPMENT AND THE
STATUTE REQUIRES THE RECORDING. ASSOCIATE JUSTICE RACHEL WAINER APTER: BUT
THEY TESTIFIED THAT THEY DIDN'T GIVE HIM WARNINGS BECAUSE THEY THOUGHT HE WAS ONLY A WITNESS
AND A SUSPECT AND YOU'RE SAYING THAT THEY ARE WRONG AND THAT THEY ACTUALLY DID THINK THAT
HE WAS A SUSPECT SO I'M ASKING. MR. SILBER: WRONG MAY BE A GENTLE WORD.
ASSOCIATE JUSTICE RACHEL WAINER APTER: SO ON WHAT, I GUESS WHAT EVIDENCE CAN WE RELY
ON TO SHOW THAT THEY DID CONSIDER HIM THE MAIN SUSPECT AT THAT POINT. IT WASN'T THE
RECORDING BECAUSE THEY DIDN'T, YOU KNOW, QUESTION HIM IN A ROOM WITH A RECORDING AND IT
WASN'T THAT THEY SAID THAT THEY THOUGHT THAT BECAUSE THEY SAID THEY DIDN'T. MR.
SILBER: AS I SAID, TWO THINGS MUCH THE FACT THAT THE BODY IS FOUND AT 10:30 {@TIME} AND
THE INTERVIEW DOESN'T START UNTIL TEN AFTER 11. AND THERE'S NOT A BIG GEOGRAPHICAL SPREAD
BETWEEN THEM AND THE PEOPLE WHO ARE DOING THE INTERVIEW EVERY THE ONES RESPONSIBLE FOR
THE INTE INVESTIGATION. SO I THINK IT'S A FAIR INFERENCE THAT THE POLICE OFFICERS WERE
WELL AWARE THAT IT WAS A MURDER INVESTIGATION AND NOT. ASSOCIATE JUSTICE LEE A.
SOLOMON: BY THE WAY, THE TREEL COURT EVALUATED THE CREDIBILITY OF THE OFFICERS WHO SAID HE
WAS NOT A SUSPECT AT THAT TIME AND CONCLUDED THAT THEY WERE CREDIBLE. DO YOU TAKE ISSUE
WITH THAT TRIAL COURT FIND RG. MR. SILBER: YES. ASSOCIATE JUSTICE
LEE A. SOLOMON: OKAY. MR. SILBER: I WOULD IF I WERE THE TRIER OF FACT.
ASSOCIATE JUSTICE LEE A. SOLOMON: BUT YOU'RE NOT. MR. SILBER: BUT I'M NOT.
ASSOCIATE JUSTICE LEE A. SOLOMON: YOU'RE TALKING TO AN AP COURT WHO'S GENERALLY
BOUND BY THE FACT FINDINGS, SUPPORTED FACTUAL FINDINGS OF THE TRIAL COURT. MR.
SILBER: AGAIN, I THINK THE MAJOR FACTS THAT THE COURT IS BOUND BY IS THE BODY IS FOUND
AT 10:30 AND THE INTERVIEW DOESN'T START AT LETSCH TEN AND THE PEOPLE CONDUCTING THE
INTERVIEW. ASSOCIATE JUSTICE LEE A. SOLOMON: . I GET THAT MUCH I WAS JUST TRYING
TO GET ONE ANSWER TO ONE QUESTION AND YOU GAVE IT. MR. SILBER: THANK YOU. SO THE
APPELLATE DIVISION FOUND THAT THE DETECTIVES AFFIRMATIVELY MISLED THE DEFENDANT ABOUT
THE SERIOUSNESS OF THE OFFENSE FOR WHICH HE WAS TAKEN INTO CUSTODY AND THE APPELLATE
DIVISION FOUND THAT STRIKES AT THE HEART OF THE WAIVER DECISION AND THAT'S AT PAGE 38 OF THE
SLIP OPINION. THE PROSECUTOR COMPLAINS THAT THE APPELLATE DIVISION USED FACTS ABOUT ERAZO'S
MENTAL HEALTH AND AGE THAT WERE INDUCED BY THE INTERVIEW AND SET FORTH IN THE TRANSCRIPT:
AN AP COURT IS NOT BOUND TO CONSIDER FACT THAT A TRIAL JUDGE USES OR ADVANCED BY A PARTY AS
LONG AS THE FACTS RELIED UPON ARE LEGITIMATELY IN THE RECORD OF THE FACTS RELIED UPON BY
THE APPELLATE DIVISION AS ONE OF THE CIRCUMSTANCES IN THE TOTALITY OF
CIRCUMSTANCES ARE LEGITIMATE FACTS TO BE RELIED UPON AND YOU HAVE AN 18-YEAR OLD WHOSE
CLEARLY GOT PSYCHOLOGICAL PROBLEMS WHOSE BEEN DIAGNOSED AND WHOSE BEEN PRESCRIBED
MEDICATIONS THAT HE SAYS HE DID NOT TAKE, ALL OF THOSE ARE IMPORTANT FACTORS IN DETERMINING
WHETHER OR NOT HIS WILL IS OVERBORNE AND THERE'S A DUE PROCESS VIOLATION. THE
CONDUCT OF CUSTODIAL INTERROGATION WITHOUT ADMINISTERING THE MIRANDA WARNINGS, CUSTODY
IS A LEGAL QUESTION, AS THE CHIEF JUSTICE POINTED OUD AND IT IT'S BASE ON WHETHER A REASONABLE
MAN WOULD THINK HE WAS FREE TO LEAVE. IT'S NOT FACTUAL. SO THE APPELLATE DIVISION, LIKE
THIS COURT CONSIDERS THE FACT WITH DEFERENCE WITH RULES ON MATTER OF LAW DE NOVO. SO WOULD
A REASONABLE PERSON THINK THEY WERE FREE IT LEAVE, THEY CAN'T MOVE AARON THE POLICE
STATION WITHOUT AN ESCORT. EVEN WHEN THEY ARE OUTSIDE THE POLICE STATION THE ESCORT DOES
NOT LEAVE THEMMENT THEY ARE THERE. THEY ARE NOT TOLD THEY ARE FREE TO LEAVE WHICH THEY COULD
BE SO IT SEEMS TO ME THAT A REASONABLE PERSON WOULD NOT THINK HE'S FREE TO LEAVE WHEN HE'S
EVEN IN CUSTODY WHEN HE GOES OUTSIDE TO SMOKE A CIGARETTE. THIS WAS CLEARLY AN INTERROGATION
AND AGAIN, THAT'S A MATTER OF LAW. IT'S A LEGAL QUESTION ON WHETHER THE SUSPECT IS JUST
A WITNESS OR POLICE ARE QUESTIONING HIM BECAUSE THEIR SUSPICION CONCERNING HIS POSSIBILITY
OF BEING IMPLICATED IN THE CRIME MUCH THIS WAS CLEARLY AN INTERROGATION BECAUSE RAY NOR
AND JAFRPG WITS HAD FOCUSED ON ERAZO. FIRST MOM AND HAD SEEN THE IDEA DECEDENT PLAYING
NEAR 16 A WHICH IS ERAZO'S APARTMENT. SECOND LE, AFTER THE POLICE INTERVIEWED ERAZO AT
EIGHT 40 THEY CAME BACK AGAIN IN THE EARLY HOURS OF THE MORNING. I THIS THINK DEFENSE
COUNSEL SAID FOUR 14 WHICH MAY HAVE BEEN BASED ON A POLICE REPORT. DETECTIVE RAY NOR SAID
530 {@TIME} BUT IN ANY EVENT YOU DON'T GO TO A WITNESS'S HOME AT THAT HOUR OF THE MORNING
AND UNLESS YOU'RE HOPING TO FIND THAT SOMEHOW HE WOULD NOT BE EXPECTING AND THERE WOULD
BE EVIDENCE THERE FOR YOU. SO THEY ARE ALREADY FOCUSED ON ERAZO AND THEN THERE'S THE FACT
THAT THE BODY IS FOUND AT 10:30 AND THEY BEGAN THE INTERVIEW AT 1113. I SAID IT'S AN UNREBUTTED
INFERENCE THAT THE POLICE KNEW THEY WERE INTERVIEWING A MURDER SUSPECT, NOT A WITNESS
IN A MISSING PERSON CASE AND THEY ALLOWED ERAZO TO BELIEVE THE POLICE WERE CONDUCTING
A MISSING PERSON. ASSOCIATE JUSTICE ANNE M. PATTERSON: WELL IT CAN'T BE
UNREBUTTED BECAUSE THE OFFICER TESTIFIED TO THE CONTRARY SO I DON'T KNOW HOW YOU CAN SAY
IT'S UNREBUTTED. MR. SILBER: WELL, OKAY, FAIR ENOUGH. THERE'S NOBODY WHO --
I I'LL ACCEPT YOUR. ASSOCIATE JUSTICE ANNE M. PATTERSON: I FULLY GET YOUR
VIEW OF THE OFFICERS CREDIBILITY. I'M IN THE HERE TO CONDITION TEST THAT. MR.
SILBER: YES, BUT YOU'RE CORRECT MUCH THE WORD UNREBUTTED THE WRONG. IN ANY EVENT, THERE'S
ALSO THE INTERVIEWS WHICH WERE PART OF THE CIRCUMSTANCES IN WHICH, AGAIN, THEY BOTH SAID
TO THE DEFENDANT THAT'S WHAT THEY ARE NOT REALLY ALLOWED TO SAY WHICH IS IT WILL HELP
YOU IF YOU TALK, YOU WILL GET TO SEE YOU AS A PERSON, ALL OF THE STUFF THAT JUSTICE APTER
READ TO THE PROSECUTOR IS THERE AND WHAT'S REALLY I THINK IMPORTANT IS AT SOME POINT RAY
NOR SAYS TO HIM AND THIS IS BEFORE THERE'S A WAUFR SO THIS GOES INTO THE WAIVER DECISION,
HE SAYS, YOU KNOW, SAID HE WAS JUST DOING HIS JOB AND THAT HE NEEDED TO GET INTO A DIALOGUE
ABOUT THE DEFENDANT TO SIGNIFY THE SERIOUSNESS OF THE CONVERSATION. WE YOU DON'T GET INTO
A DIALOGUE UNLESS THE DEFENDANT WAIVES AND YOU DON'T BE SAYING WE NEED TO GET IN A DIALOGUE
WHEN YOU'RE WARNING HIM ABOUT THE WAIVERS. THAT'S DELUDING THE WARNING WAIVERS WHICH
THIS COURT HAS IN OCD A AND OTHER CASES CLEARLY SEFD IT'S THERE'S REVERSIBLE ERROR.
SO FOR, I GUESS THE LAST THING I WANTED TO SAY, MAYBE THAT WAS THE LAST THING I WANTED
TO SAY ABOUT THE CASE. SO TRUTHFULLY, THIS COURT SHOULD AFFIRM THE OPINION OF THE APPELLATE
DIVISION. IN .2 A OF THE AC D L'S BRIEF, WE POINT OUT THAT THE CURRENT MISHD
WORKINGS ARE NOT AS WELL AS WE WISH THEY WOULD AND THE AC D L HAS IDENTIFIED TWO CAUSES
WHICH I WOULD LIKE TO DISCUSS WITH YOU. THE FIRST ONE IS PROBABLY A LITTLE BIT MORE IMPORTANT
BUT THEY ARE BOTH IMPORTANT AND THE FIRST ONE IS, AND THIS IS LIKE HUMAN NATURE, THIS ISN'T
ANYBODY BEING BAD OR DISHONEST OR SNIGS LIKE THAT, THIS IS JUST HUMAN NATURE, THE PUBLIC
SERVANT TASKED WITH WARNING SUSPECTS ABOUT THE DAFRMG OF WAIVING FUNDAMENTAL CONSTITUTIONAL
RIGHTS IS ALSO THE ONE SEEKING THE WAIVER. SO THERE'S A CONSCIOUS OR UNCONSCIOUS MOTIVE
TO STATE THE WARNINGS IN WAY THAT WILL RESULT IN THE WAIVER. AND SO THE COURT ATTEMPTED TO
PROVIDE GUIDANCE TO THE COURTS BOTH O.D. AC AND IN OTHER CASES. AN OFFICER CANNOT TELL
A SUSPECT THAT WAIVING OR BEING INTERVIEWED WILL BENEFIT A SUSPECT AND THEREFORE HE SHOULD
WAIVE AND BE PONE TO. HE'S IN THE ALLOWED BY THE COURT'S RULINGS TO DILUTE THE WARNINGS
IN THE WAIVER. AND YET HE STILL GOT THE DETECTIVES HERE AND THEY ARE PIGGYBACKING.
IT'S IN TANDEM HERE. YOU KNOW, I KNOW YOU'RE NOT A MONSTER. JOE AND I HAVE BEEN DOING THIS
JOB LONG ENOUGH TO KNOW PA THAT JUST BECAUSE THE PERSON SITTING HERE AND THE THINGS WE HAVE,
IT'S NOT A DIRECT REFLECTION, FIGURE TIFL WITH WHAT THE CAMERA SHOWS, THIS IS RAY NOR
TALKING AT PAGE, AND IT'S QUOTED AT PAGE 15 AND 16 OF THE PROSECUTOR'S BRIEF, FIGURE TIFL
WHAT THE CAMERA SHOWS THAT JOE AND I AREN'T, IT SHOWS YOU, IT SHOWS YOU'RE A HUMAN, IT
SHOWS YOU A A PERSON AND THEN JANUARY COWITS JUMPS IN, AND YOU WANT THAT SHS YOU WANT
TO US SEE THAT AND RAY NOR JUMPS IN, THAT'S MY POINT AND JANUARY COWITS SAYS YOU NEED TO
SEE THAT. AND ONE OF THE PROBLEMS IS I NOT JUST THE POLICE OFFICERS. I MEAN AND AGAIN,
THERE'S NOTHING PERSONAL HERE BUT IN THE PROSECUTOR'S BRIEF SHE ARGUES THAT CONTEXT IS
IN DIFFERENT CIRCUMSTANCES VOIDS THE COURT'S PRESCRIPTION DESCRIPTION AGAINST THESE KINDS
OF COMMENTS. SO WHAT WE NEED IS A PROCEDURE THAT, YOU KNOW, WHERE THE WARNINGS ARE MORE
STANDARD DARD SDIEZED AND THAT LEAVES LITTLE MORE ROOM WITH THE POLICE ABOUT THE WAIVER
ISSUE. SO THE SAME THING IS TRUE ABOUT GIVING THE DELUSION OF THE WARNINGS
THAT ANYTHING YOU SAY CAN BE USED AGAINST YOU IN A COURT OF LAW. HE SAYS I'M JUST GIVING
YOU THE WARNINGS BECAUSE WE'RE IN THE POLICE STATION NOW. AND HE TOLD THE DEFENDANT THAT
WE SPENT SPEND A LOT OF TIME TOGETHER, WE'RE IN A POLICE STATION SO NOW I'M GOING ON GIVE
YOU THE WARNINGS. WHICH THE PROSECUTOR SAYS IT'S NOT MINIMIZING THE WARNINGS? IT'S NOT?
IT'S RATHER SPECIFICALLY TELLING THE DEFENDANT THAT THE POLICE WANTED TO TALK TO HIM ABOUT
THIS, SO HE'S GIVING HIM WARNINGS BUT OF COURSE I CAN'T TALK TO HIM UNLESS HE WAIVES SO
THE AC D L ROLELY URGES A NEW PROCEDURE TO SUSTAIN REMEDYING THE DILUTION OF THE COURT'S
TEACHING. ASSOCIATE JUSTICE RACHEL WAINER APTER: HAS ANY OTHER JURISDICTION
ADOPTED THE NEW PROCEDURE THAT YOU'RE RECOMMENDING. MR. SILBER: NO,
MA'AM SHALL NOT AS FAR AS I KNOW AND I WOULD URGE AND THE AC D L URGES THAT THIS STATE
BE WHAT JUSTICE BRAN DIE CALLED THE LITTLE LABORATORY TO SEE IF WE CAN'T BRING A LITTLE
MORE ORDER TO WHAT'S CLEARLY BY CASE AND BY THE ACADEMIC RESEARCH, A PROCESS THAT'S NOT
WORKING THE WAY WE WISH IT WOULD WORK. WE'D LIKE IT TO WORK BETTER. THE SECOND
ISSUE, UTS NOT IMPORTANT BUT IT'S SORT OF RELATED, BUT IF YOU'RE GOING TO GIVE WARNINGS
THEY HAVE TO BE COMPLETE BECAUSE THERE ARE SO MANY ISSUES AND CIRCUMSTANCES THAT HAVE TO BE
COVERED. BUT THAT MAKES THEM LONG AND A LITTLE BIT CONFUSING BUT CERTAINLY COMPLEX. ON THE
OTHER HAND, WHAT YOU WANT IS SHORT AND SDIESHL. THAT TURNS OUT TO BE MUTUALLY EXCLUSIVE
IF YOU HAVE TO GIVE THE COMPLETE ADVICE ALL AT ONE TIME. SO WE, THE AC D L
ADVOCATES FOR A ROSS SAYS THAT STUDIES CROW WRATTIVE ALTERNATIVES. WHETHER WE DO WHAT
WE DID AND APPOINT A MASTER TO HOLD HEARINGS OR HAVE A SYMPOSIUM BUT LET'S GET THE BEST
MINDS WE HAVE, LET'S GET ALL THE PLAYERS IN THE -- WHO ARE RELEVANT TO IT, POLICE, YOU
KNOW, DEFENDANTS, EVERYBODY AND LET'S SEE IF WE CAN'T COME UP WITH A BETTER PROCEDURE THAN
WHAT'S BRINGING ALL OF THESE CASES TO THE COURT AND IT ISN'T LIKE THIS CASE IS DIFFERENT THAN
OCD A. I MEAN IT'S THE SAME ISSUES AGAIN, SO WE'RE HAVING TROUBLE COMMUNICATING A PROCESS
THAT'S CLEAR AND THAT GETS IMPLEMENTED SO ONE OF THE PROCESSES THAT I SET FORTH AND IT'S
NOT, WE'RE NOT SAYING THE COURT SHOULD ADOPT THAT, IT'S JUST THE IDEA OF ONE CREATIVE
PROCESS THAT WOULD SOLVE BOTH OF THE PROBLEMS THAT I SUGGESTED AND IT'S A THREE TIER
PROCESS. I DON'T NEED TO DO IT IF YOU DON'T WANT TO HEAR IT. THE COURT: I KNOW
WE HAD AN OPPORTUNITY TO HEAR IT DURING THE OCD A ARGUMENT WHERE YOU READ IT FOR US THEN.
WE ACCEPT THE INVITATION. MR. SILBER: YOU CUT ME SO SHORT WITH. CHIEF
JUSTICE STUART RABNER: WE GLADLY APPRECIATE THE INVITATION TO GO WITH THE WRITTEN.
MR. SILBER: FINE. IF THERE'S ANY QUESTIONS I'M READY TO ANSWER. MS. HARRIGAN:
THANK YOU. I SIMPLY HAVE ONE POINT MUCH IT'S GOING TO BE SHORT, QUICK. I JUST WANTED
TO SPEAK TO THE YOUTHFUL BRAIN IN THE TOTALITY OF THE CIRCUMSTANCES AND I'D LIKE TO JUST
PUT THAT IN PERSPECTIVE WITH RESPECT TO THIS CASE. WE'RE DEALING WITH AN 18-YEAR OLD
ADULT. I KNOW THE DEFENSE AND THE INNOCENCE PROJECT HAVE TURNED HIM INTO A TEENAGER BUT
HE IS AN ADULT. HE'S AN 18-YEAR OLD ADULT WE'RE NOT TALK ABOUT A YOUTHFUL BRAIN HERE WE'RE
TALKING ABOUT A CRIMINAL BRAIN AND WHY DO WE KNOW THAT. IT'S BECAUSE HE DOES HAVE EXPERIENCE
WITH THE CRIMINAL JUSTICE SYSTEM. IN THE SENTENCING TRANSCRIPT WHICH IS MAY 31, 2019,
PAGE 33, STARTING AT LINE 12, STATE IN ARGUING FOR THE GAGS STATE PUT ON RECORD SUBSEQUENT
TO THAT HE ENGAGED IN ALMOST WHAT WAS A BIZARRE LURING INTO ANOTHER TEEN I HAVER IN A
PARK AND HE TAKD THE TEENAGER WITH A BOX CUTTER. THEN IF YOU TURN TO THE SAME TRANSCRIPT
ON PAGE 43 WHERE THE JUDGE, JUDGE BAUMAN AND I WILL SAY FOR THE RECORD THAT JUDGE BAUMAN
WAS THE JUDGE THROUGHOUT THIS ENTIRE PROCESS. THE MOTION TO SUPPRESS, ALL THE WAY THROUGH
THE GUILTY PLEA AND HE WAS THE JUDGE AT SENTENCING SO HE KNEW THIS CASE VERY VERY
WELL WHEN HE SENT SENTENCE DZ THE DEFENDANT. ON PAGE 43, LINE 11, HE TALKED ABOUT MR.'S
RAS SO'S PROBATION WAS TERMINATED UNSUCCESS FELL. ONLINE 16, THE JUDGE SAID HE WAS ADJUDICATED
FOR AMONG OTHER THINGS POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE FOR WHICH HE PREEFD
PROBATIONARY TERM OF 12 MONTHS WHICH HE VIOLATED AND FOR WHICH HIS PROBATION WAS TERMINATED
UNSUCCESSFUL AND SO WE'RE NOT DEALING WITH SOMEONE, A MERE TEENISH THAT MADE A MISTAKE
THAT DOESN'T KNOW THE CRIMINAL JUSTICE SYSTEM MUCH THIS IS ACTUALLY A VIOLENT INDIVIDUAL.
AND I THINK JUDGE BAUMAN WHO AGAIN WAS THE JUDGE THROUGHOUT THIS SAID IT BEST AT SENTENCING
AND THIS IS AGAIN THE SAME TRANSCRIPT, PAGE 45, LINE 13 TO 15, WHEN HE SAID, AND MAKE
NO MISTAKE, THE DEFENDANT IS NOT A CHILD. HE MURDERED ONE BUT HE HIMSELF IS NOT A CHILD
AND I THINK THAT'S IMPORTANT IN THE TOTALITY OF THE CIRCUMSTANCES ANALYSIS WHEN WE'RE
TALKING ABOUT YOU KNOW THE YOUTHFUL BRAIN AND WHETHER OR NOT IT APPLY TOZ THIS CASE AND
SO THE STATE WOULD SUBMIT THAT IT DOESN'T. THE COURT: THANK YOU, COUNSEL.
THANK YOU TO ALL COUNSEL. WE WILL TAKE THE MATTER UNDER ADDS ADVISE