17 January 2005

Confessing to the Media

David Giacalone asked me for my comments on a case which is unfolding in Albany, NY.

Phillip Pitcher Jr. Killed his aunt. How do we know this? A local news crew went to the jail, the day after Pitcher was arrested, and Pitcher confessed on camera (the video is damning). David is particularly interested in my reaction to a later article in which defense attorneys were interviewed about the case as to whether the interview will affect the viability of any defense available to Pitcher.

First, let me say that if Mr. Pitcher was saying what he said to the reporter he probably said all the same things to the police. In such a case the TV interview is probably merely cumulative. As a defense attorney I wouldn't be thrilled that the interview took place and I'd definitely get a copy but the outcome of the case was probably determined in the police interrogation not this TV interview.

However, if Pitcher had refused to speak to the police and this interview took place the next day without defense counsel's knowledge I would be deeply, deeply suspicious. Watch the video. It's a contact visit. Things may be different in NY but everywhere I practice the only people who get contact visits are attorneys and law enforcement (or the agents of either). Normal visitation takes place through glass barriers and in older facilities you still have to use phones to talk to one another; it also only takes place at certain designated times - rarely the very next day. In this case someone in government employ, at the very least a government agent in the employ of the Sheriff's department (a law enforcement agency), arranged a visit between Pitcher, the reporter, and at least one cameraman. If Pitcher had not spoken to the police this is clearly an interrogation technique. If he had it is a little murkier but any way you break it down it is an agent of the government arranging to gain information which would be used by the government against Pitcher, without counsel's knowledge or presence.¹

I think the part which troubles David is this comment:

It is a disaster," said E. Stewart Jones, a veteran defense attorney not connected with the case. "The interview undercuts any claim he may now make that he did not know what he was doing because he was on cocaine or any chance he had for an extreme emotional disturbance defense."

"He fully acknowledged his actions," said Jones, explaining that, by showing remorse, Pitcher proves he understands what he did was wrong. He also took responsibility. "He was looking for release from his sins, and it was like a cathartic unburdening of his guilt that removed so many arguments a defense might raise."

I'm rather surprised that the defense attorney was so brutally honest. What he's basically doing is running through the "checklist" that we all do when we get cases of this type. There is clearly something wrong with the young man; experience dictates that the problem rises from a mental or drug basis, probably both (it's amazing how many people with mental issues "self-medicate").

The question then becomes whether the court will recognize either and, if so, at what level. The first level would be Not Guilty by Reason of Insanity. The question would be whether Pitcher knew right from wrong when he did this. Having viewed the interview I agree that this is not going to be viable. Expression of remorse is interpreted as having known right from wrong.

Another thing you'd have to consider is an "unconsciousness" defense. Was Pitcher aware of what he was doing? Clearly he was.

In some States there would be a defense of "irresistible compulsion." However, his statements in the interview also preclude this defense (discussion of thinking about stopping).

The next thing to consider is an "imperfect defense." Use of cocaine or emotional disturbance would probably be an "imperfect defense." This means it would not lead to a NGRI because it doesn't mean you didn't understand right from wrong; nevertheless, it could lead to a lesser sentence (20-30 years instead of life), hopefully with a stint at a facility where treatment could take place. I don't know what options are available under NY law for this. Nevertheless, this seems where Pitcher should end up.

Last would be just allotting punishment without any consideration of Pitcher's problems.

All criminal attorneys have to do these kinds of analyses. And the way we discuss it among ourselves tends to be pretty brutal (quick, caustic, and to the point). In the end the basic analysis breaks down to (1) did the government do something wrong and, (2) what factors can and should be used in determining final disposition. You must do this in order to represent your client properly. However, the trick is, when you speak to someone outside of the criminal law circle (who hasn't been hardened by constant exposure), being able to tone it down and explain. It's hard to do; I know I've gotten strange looks when I've spoken with someone who's never been in court before.

Like I said, there was probably a confession to the police. Whether there was or wasn't (but most definitely if there wasn't) there has to be concern over government abuse. Then you must consider what the most likely and proper disposition is for Mr. Pitcher. It isn't necessarily pretty to look at but it is necessary.


¹ Yes, I understand that information divulged in visits can be used against a client. However, this is not the typical client telling his girlfriend that he robbed the store during a regular visit. This appears to be an extra-ordinary arranged visit. As such, it lends itself to an assumption of purpose on the part of the party which arranged it.

10 Comments:

Hi, Ken. Despite the Prof. Yabut identification, this is his alter ego, David Giacalone. Thank you for your quick and lengthy analysis on a holiday, it's quite helpful. How do you suppose the District Attorney is feeling about the tv interview?

I'm still not too sure how to react to the story as a citizen, rather than an attorney -- or, maybe, I'm a little worried that my first response was "good, he won't be able to worm out of this one." This brutal, multi-stage murder of a woman who treated him like a son, will surely inflame the jury, should the case go to trial.

By  Prof Yabut, at January 17, 2005  

>>>If Pitcher had not spoken to the police this is clearly an interrogation technique.<<<

Ken,
Assume, arguendo, that it was an interrogation technique. What follows from that? (I infer that you believe it was an improper technique.)

It seems to me, armed with no more information than is in your post, that it might be a permissible investigative technique, depending on the stage of the proceedings. Had he been arraigned?
CP

By  carpundit, at January 19, 2005  

If the defendant had refused to talk to the police the news reporter set in place by the police is an agent of the police. At the very least this would require a Miranda warning before the reporter spoke to the defendant. If the defendant had asserted his right to an attorney even a Miranda warning wouldn't have cured the failure to contact the attorney.

Basically, the police cannot get around the Constitution by sending someone to get the information they are barred from getting by the assertion of constitutional rights.

By  Ken Lammers, at January 19, 2005  

Ken,

Though I am not conversant with either Virginia or New York state court interpretations of Miranda, I am aware of no case that holds non-police interrogation to be a Miranda violation. That is, Miranda is violated when police interrogate a custodial subject without warnings and a waiver. It is the inherent coercive power of the police that is of concern in overbearing someone's will. Miranda is NOT violated when agents of the police interrogate someone. (That is why jailhouse-informant cases are 6th Amendment right-to-counsel cases, not 5th Amendment Miranda cases.)

That's why I asked about a critical stage of the proceedings. If no critical stage had passed, the defendant had no 6A right to counsel. And if the police themselves were not asking the questions, his 5A right to counsel (Miranda) was not implicated. It would be only on the due process clause and the issue of voluntariness that the defendant could rest his constitutional challenge.

To sustain a DPC challenge to police conduct, the defendant usually has to demonstrate police actions that "shock the conscience." I don't see it on those facts.

CP

By  carpundit, at January 19, 2005  

This post has been removed by a blog administrator.

By  Anonymous, at March 05, 2006  

This post has been removed by a blog administrator.

By  Anonymous, at June 25, 2006  

This post has been removed by a blog administrator.

By  Anonymous, at July 18, 2006  

This post has been removed by a blog administrator.

By  Anonymous, at July 21, 2006  

COMMENTS HAVE BEEN DELETED ON THIS POST FOR RULE VIOLATIONS

The rules here are very simple
1) Civility
2) No politics
3) Civility

By  Ken Lammers, at July 21, 2006  

ahhh...once again a connection...substance abuse, emotional abuse, mental health issues, and lack of spiritual guidance. Out of this, a horrendous crime committed. Once again, society responds with rage and denial. Here's a thought...send a message of Faith & Hope to Philip. Dont need to leave home to do it. A prayer to Lisa's family as well. There...that wasn't so bad, was it???

By  elaine r, at August 26, 2007  

Post a Comment