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.