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A RELUCTANCE TO RECORD

MPD trails other law enforcement agencies in audio, video documentation of homicide interrogations

By Published: September 17, 2018 5:39 PM CT

For two hours, Terrell Johnson held his own, denying any role in an infamous crime that shook Memphis in 2013.  But finally, the lanky high-schooler buckled under the pressure. He confessed. Johnson, just 17, told a pair of seasoned homicide detectives he drove the getaway car on that awful October day, racing through Parkway Village with two accomplices who’d just robbed and killed a home-repair contractor, a married father of two young children.

Marc Perrusquia is director of The lnstitute for Public Service Reporting at The University of Memphis, where graduate students learn investigative and explanatory journalism skills working alongside professionals.

“He just said, ‘OK. I was in the car with them,’ ’’ recalled Johnson’s mother, Hope Chambers, who said she watched in horror that night, but was escorted out of the Memphis Police Department interrogation room before her son succumbed and confessed.

Sixty-four days later, following the arrest of another teen later convicted as the actual getaway driver, first-degree murder charges were dropped against Johnson and he was released from custody.

There may never be a public accounting of exactly what occurred behind closed doors that night because of a curious contradiction: MPD has cameras trained at hundreds of locations around the city – parks, intersections, neighborhoods – yet it trails other law enforcement agencies, some by decades, in not recording interrogations of homicide suspects.

An investigation by the Institute for Public Service Reporting at the University of Memphis reveals MPD is a prominent outlier in a national movement among police departments to fully record the questioning of suspects during homicide investigations, making its detectives frequent targets for allegations of impropriety.

 

 

Nearly half the states in the U.S. require start-to-finish audio or videotaping of interrogations. Tennessee has instituted no such requirement, yet other local police agencies long ago began that practice voluntarily. MPD, however, has clung to a decades-old practice of paper or signed confessions, the Institute found.

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“None of that would have happened (if they had recorded her son),’’ said Chambers, whose attorney sought electronic recordings of the interrogation but says he was told none existed. “They would have seen how many times they took me out of the room, too.”

First contacted for this story in July, MPD said in a statement it rarely records, circumventing questions about whether it might consider altering that practice. Pressed repeatedly for an interview, the department wouldn’t agree. But it reversed course this month on its plans, telling the Institute in a second statement it planned to record “all investigative interviews in the near future.”

But those plans remain cloudy. “This process will take time,’’ spokeswoman Karen Rudolph said in a Sept. 7 emailed statement. “Hopefully, by the end of the year, most bureaus will have the capability of recording investigative interviews.”

Pressed again for an interview, Rudolph in a Sept. 12 email said, “No one is available,’’ conceding that MPD could provide no cost estimate for its anticipated shift to recording. “We are in the preliminary phase of planning; this is unknown at this point,’’ she wrote.

But this much is clear: MPD is routinely the target of defense lawyers in criminal trials because of its failure to record, and it has been forced to defend itself against allegations of wrongdoing that might have been easily deflected by video – or even audio – evidence, the Institute found.

The Institute’s examination to an array of cases found:

In a case involving a particularly violent homicide before the courts now, an MPD officer testified no recording existed of a three-hour interrogation of suspect Cordell Walton. Yet, a 21-minute cell phone audio recording the officer made later emerged and included a brief “hot mic” moment in which three officers seemed to openly worry about their interrogation tactics.

“We put on a great show,’’ one detective says before a second suggests their tactics – which allegedly included faking a DNA report – could get the confession suppressed from evidence. As the detectives appear to reassure themselves, one asserts certain details are “not recorded,’’ suggesting that if they came to light the officers would go “to the penitentiary’’ – evidence defense attorneys say supports their claims that detectives fabricated a DNA test and planned to lie about it.

Ultimately, defense attorneys lost their bid to have the confession thrown out. But as the case heads toward trial, Shelby County Criminal Court Judge J. Robert Carter Jr. wrote, “Issues of completeness, as well as the circumstances around selectively recording part of a statement raise questions.’’

The trial last year of a man charged with a handgun slaying of a Memphis woman ended with a hung jury when defense attorneys raised doubts about the state’s case, including aggressively questioning why MPD didn’t record its interrogation of the suspect.

MPD has given conflicting accounts about its recording policy. Although a department spokeswoman said in July officers have discretion to record on rare occasions, a detective testified at a recent trial he probably would be disciplined if he did.

“A man’s liberty isn’t worth the cost of a cheap recording device?’’ asked defense attorney Leslie Ballin, who said he’s never heard a taped confession from MPD despite challenging the agency’s no-recording practice in scores of murder cases through the years.

Twenty-four states and the District of Columbia now have laws or court edicts requiring law enforcement to fully video- or audio-record interrogations of murder suspects – up from just three states in 2003. Though Tennessee is not among them, studies show many law enforcement agencies across the nation voluntarily record interrogations, including several in Shelby County – the Sheriff’s Office and the police departments in Bartlett, Germantown and Collierville – as well as departments in other major cities in the state, including Nashville, Knoxville and Chattanooga.

“It’s really a transparency issue with us,’’ said Collierville Police Department’s Lt. Ben Wardlow, who estimated detectives there have been recording for the better part of two decades. “We just feel it’s the best way to document everything.’’

Bartlett Police Insp. Steve Todd said his department has followed the practice for at least 15 years without a problem. “As long as your officers are acting professionally it’s not going to come back and bite you.’’

Civil liberties advocates said recording not only guards against illegal coercion and false confessions, it protects law enforcement, too. “The key is to record from the very beginning to the end,’’ said Rebecca Brown, policy director for the New York-based Innocence Project. “It protects law enforcement against frivolous claims of misconduct, it can help find new clues, and can also serve as a good training tape.’’

Still, recording is not a cure-all.

Several documented false confessions were in fact videotaped, said Michael Kaiser, a Little Rock criminal defense attorney who wrote a critical analysis of the recorded custodial interrogation movement in 2014 for the Arkansas Law Review.

Yet, Kaiser also questions opposition to recording. He said that reluctance resembles law enforcement’s initial response to the Supreme Court’s landmark 1966 Miranda decision that requires officers to advise suspects of their Fifth Amendment rights against self-incrimination before questioning them.

Many believed the ruling would make it difficult, if not impossible, to get a confession, fearing suspects wouldn’t cooperate. Instead, Kaiser said, law enforcement learned to use Miranda waivers as an air-tight asset to ensure confessions are admitted as evidence.

The same will happen with video – police will learn to use it to make solid cases that confessions were properly obtained, he believes.

“I just don’t get why cops are pushing back because this is going to be gold for them,’’ Kaiser said.

A false confession

It was nearly noon that day in October 2013 when contractor John “J.P.’’ Shelley stepped into the driveway of an abandoned home he was helping renovate in Parkway Village. There, he encountered two teenagers, both armed with handguns. The teens relieved Shelley and an associate of their wallets and electronic devices. Then, one shot Shelley in the neck. He died within minutes.

Buoyed by an outpouring of grief for the popular contractor and a growing reward fund to catch his killers, police soon arrested suspected triggerman Derek Cunningham, 15, and Corey Sandifer, 16, both members of the Hoover Street Crips gang. The push to find the getaway driver – said to be a young man named “T.J.’’ – led to Terrell Johnson.

“They went to his room and they put my child in handcuffs,’’ said Chambers, who recalls a frightful series of events: About 10 uniformed and gang-unit officers escorting Johnson and her Downtown, her son shackled to a chair in the homicide offices, angry detectives beating their fists on a tabletop demanding answers.

“They were trying to make him out to be the driver of the car,’’ Chambers said.

Despite his denials, Johnson caved to pressure when he saw his mother crying, Chambers said.

“He was still young, 16, 17 years old,’’ Chambers said. “He was like, ‘I don’t want my mama crying.’ He was like, ‘OK. I was with them.’ ’’

She contends her son knew Shelley’s killers and saw them later that day when they tried to get him to sell the stolen goods.

After Johnson confessed, an officer escorted Chambers home. She left that night believing her son would be charged with receiving stolen property, Chambers said. Yet, the next day in court, she learned he faced first-degree murder charges. 

“I think at that point I actually lost all feeling for the judicial system. I kind of lost all respect,’’ she said.

Precisely what happened during Johnson’s interrogation remains difficult to unravel.

“If (his confession) were recorded it would not shine a very favorable light on the police and their tactics,’’ said James Sanders, Johnson’s attorney. He secured his client’s release, but not before the teen had spent more than two months in juvenile detention.

Sanders said he filed a motion seeking all evidence against his client yet never received any video or audio recording that would have helped in dissecting Johnson’s claims or in explaining the level of pressure he faced. 

“Clearly, they can use some level of misinformation. And quite frankly they just straight-out lie to these young people,’’ said Sanders, who said if a recording does exist police are hiding it. “And that’s not the kind of thing that necessarily you want to have to explain to the jury.’’

Although the two teens involved in Shelley’s murder and a third later identified as the real getaway driver had all pleaded guilty by the end of 2015 and are currently serving prison terms, the city of Memphis declined the Institute’s request under the Tennessee Open Records Act to review Johnson’s arrest file, citing a Tennessee Supreme Court ruling that keeps records confidential until all potential for appeal is exhausted.

Since 2013, when Johnson confessed and his case first stirred public pleas for MPD to record, six states have passed laws mandating the recording of custodial interrogations in murder investigations. The states joined 17 others and the District of Columbia, which had already taken similar action. In addition, the Utah Supreme Court ruled in 2015 police must record custodial interrogations while investigating any felony.

“Statewide video recording of interrogations allows judges, juries, and attorneys to more fairly assess the legitimacy of a confession before a wrongful conviction takes place,” said Melissa O’Connell, an attorney with an Innocence Project organization in California, where lawmakers voted in 2016 to require electronic recording of all murder suspect interrogations following several wrongful convictions.

Penalties for noncompliance in those states range from excluding a confession from evidence to monetary fines. To soften police opposition, some states allow exceptions to recording requirements when equipment malfunctions or is unavailable. Most of the states that haven’t mandated recording are concentrated in the West and the South.

MPD’s reluctance to record

Fans of A&E’s The First 48 might think MPD is a champion of recording. The powerful documentary-style television series aired from Memphis from 2005 to 2008, telling a national audience the inside story of MPD’s homicide squad, complete with dramatic video footage inside interrogation rooms.

One particularly memorable scene involves Jessie Dotson, now on death row for the infamous Lester Street massacre of 2008 when he killed four adults and two children. As the camera rolls, Dotson reveals incriminating details as then-detective and future police director Toney Armstrong pushes and persuades him, and then plays the taped voice of a young child who, though wounded, alertly identified Dotson as the killer, calling him by his nickname, “Junior.’’ 

“You left somebody alive in that house!’’ Armstrong shouts at the scowling suspect.

But as defense lawyer Ballin knows, such scenes are rarely seen in evidence MPD releases to murder defendants because in the vast majority of cases its detectives don’t record interrogations.

“If they recorded the statement, you would see the pressure. You would see the way individuals are lied to in order to get them to say things,’’ Ballin said. “You would hear exactly what is said, not just what the police say that the person said.’’

Rather than an audio or video recording, MPD currently relies on a three-step process:

Detectives read a suspect his or her Miranda rights. The suspect is asked to sign a waiver.

The suspect then is interrogated.

After an admission is obtained, the suspect is interviewed again at a computer, where an officer asks a series of questions and then types in answers elicited from the suspect. When the statement is printed, the suspect initials each page and signs the document.

“The issue is the officer comes up with the language,’’ Ballin said.

Just who came up with the language is a concern in the case of Walton, 23, who is charged with first-degree murder for the 2016 slaying of a 21-year-old Memphis woman he claims he shot in self-defense. Her body was later burned beyond recognition. Police interrogated Walton for three hours, then audio-recorded the final 21 minutes in what critics sometimes call a “packaged confession.’’

Yet, when Walton’s confession was later reduced to a signed statement, some of his incriminating remarks bore a close resemblance to words detectives used on the recording.

On the tape, for example, a detective asks, “She upped a pistol on you because she was (messed) up about you threatening her, right?’’ In Walton’s written statement detectives quote him as saying, “When we got in the house she upped the gun on me and we got to wrestling for it.”

On the tape, when a detective asks Walton what he did with the gun – “Did you throw it out or something?’’ – he answers, “Yes sir,’’ without elaboration. In the written statement he said, “I just threw it out on one of the back roads that leads back to my house on Sherrycrest.’’

“What you see are just tons of leading questions,’’ said Melissa Russano, a criminal justice professor at Roger Williams University in Rhode Island who studies police interrogations and who reviewed Walton’s statement at the Institute’s request. “Essentially (they are) walking him through and contaminating the statement in the sense of they are feeding him the information that they then want him to parrot back to them.’’

Ballin, a prominent Memphis criminal lawyer, said many defendants come from disadvantaged backgrounds and are no match for savvy detectives when they type up written statements.

“Many times the individuals are not literate. Their educational level is sub-par. They don’t understand the gravity of the situation. Don’t understand the words that are used,’’ he said.

Even former MPD homicide detective Tim Helldorfer said there is room for reform. He said fully videoed interrogations would benefit both sides.

“Quite honestly in today’s environment, we’re suspects. I mean let’s face it. We are,’’ said Helldorfer, who served on the homicide squad from 1996 to 2008 and is now chief criminal investigator for the Shelby County District Attorney’s Office.

Videoed interrogations would allow defense attorneys and jurors to “actually see how it really does happen,’’ Helldorfer said.

And that could dissuade some head-strong defendants from rejecting plea bargains and pushing for a trial where they drain court resources and face longer prison time if convicted.

“It prevents a lot of bad cases from going to a jury,’’ said Kaiser, the Little Rock defense attorney, “which is usually not in the client’s best interest.’’

The specific reasons for MPD’s resistance are unclear. “I think in some cases guys might have to change their techniques a little bit,’’ Helldorfer said.

Like many law enforcement agencies, MPD has in the past employed the controversial Reid technique of high-pressure interrogation said by critics to contribute to false confessions. Whether it’s currently used is uncertain.

Early in the reporting for this story, MPD spokeswoman Rudolph released the following statement via email: “There is no written policy in place relative to recording during an investigative interview. On rare occasions, pending the circumstances, an interview will be recorded.’’

Ballin said he’s never heard that before.  “That’s news to me,’’ he said.

 

Confusion over policy

That unwritten policy seems to have had a hard time reaching MPD homicide detectives, too.

Testifying in November 2016, detective Fausto Frias told prosecutors MPD policy didn’t allow him to record a confession and that he would likely get in trouble if he did record.

“And it’s Memphis Police Department policy to not record the statement?’’ Asst. Dist. Atty. Leslie Fouche asked the detective.

“Correct,’’ Frias answered.

“So, if you record the statement would you get charged with violation of the Memphis Police Department policy?’’ Fouche asked.

“Probably so,’’ he replied.

At the time, prosecutors were battling a defense motion to suppress the confession of Montavious Jennings, charged with killing a 46-year-old bystander caught in the crossfire of a December 2015 shooting in North Memphis.

Jennings, a 10th-grade dropout, was 19 when police brought him in for questioning. He contends police cuffed him to a metal bench for up to nine hours, wouldn’t let him use the bathroom and rebuffed him when he asked for a lawyer, threatening to charge his pregnant girlfriend with the murder.

“I really was terrified for my (unborn) son and for her,’’ Jennings testified at the suppression hearing, explaining why he confessed. “ . . . I never wanted her to come in (a) situation anything like this . . . so I went on and let it be through.’’

Still, suppressing a confession is seldom achieved – Jennings lost. Now 22, he eventually pleaded guilty to second-degree murder and was sentenced to 13 and a half years in prison without the possibility of parole.

Jennings’ lawyer, Alex Lynch, argued his client’s prolonged isolation, his relatively low intelligence and his general demeanor (Jennings claimed he’d consumed considerable amounts of marijuana, alcohol and pills before the interrogation) are factors that call into question how voluntary his confession truly was.

“The interrogation was not recorded so little information is available regarding Mr. Jennings’s demeanor and responsiveness to questions,’’ Lynch said in court papers.

Noting that a number of states and the U.S. Justice Department require the recording of many interrogations, Lynch contends Memphis police and the state of Tennessee are engaged in wholesale deprivation of defendants’ rights.

“By continuously allowing its agents to ignore best practices and national standards, the state has been complicit in the routine violations of Miranda’s requirements,’’ he wrote.

Despite the uphill battle, local defense lawyers frequently challenge MPD’s failure to record, often at trial before a jury. “I’d get asked that question every time I was on the stand,’’ said former homicide detective Helldorfer.

Detective Frias locked horns with defense attorneys again last November at the trial of Brandon Taylor, now 27, whose first-degree murder trial for a 2013 slaying ended in a mistrial when a hung jury couldn’t decide his guilt or innocence.

The contentious trial featured a heated exchange in which defense attorney Gregory Carman asked Frias at least five times why he didn’t record Taylor and if he could have done so if he wanted.

“If you had recorded that statement we wouldn’t have any doubt what happened in that room,’’ a frustrated Carman asked at one point, “ . . . without relying on your memory or your notes from an incident that occurred four years ago, is that correct?’’

Frias responded, “My memory and my notes are what the defendant said.”

The push for reform

According to the New York-based Innocence Project, more than a fourth of 358 convictions overturned by DNA evidence involved a false confession. Though wrongful conviction remains relatively rare – most studies put the rate between one and three percent – it’s a problem of sheer numbers: With as many as 2.2 million people incarcerated in the U.S., researchers believe there are thousands of people unjustly languishing in prison.

Ultimately, though, the push to force police to record interrogations is not so much a battle over wrongful conviction as it is a fight for civil liberties – preserving the Constitution’s Fifth Amendment guarantee that no American is “compelled in any criminal case to be a witness against himself,’’ some advocates say.

“The vast majority of interrogations are not illegal. And the vast majority of criminal defendants are culpable in some fashion for something ancillary to what they are charged with,’’ concedes defense attorney Kaiser, who said electronic recording simply provides the best evidence available.

“In the search for truth and justice, not just for conviction and not guilties, it’s a good thing. It has to happen.’’


Contact The Institute for Public Service Reporting at The University of Memphis at 901-678-4238 or by email at marc.perrusquia@memphis.edu.

Topics

Memphis Police Department homicides Innocence Project Institute for Public Service Reporting criminal justice
Marc Perrusquia

Marc Perrusquia

Marc Perrusquia is the director of the Institute for Public Service Reporting at the University of Memphis, where graduate students learn investigative and explanatory journalism skills working alongside professionals. He has won numerous state and national awards for government watchdog, social justice and  political reporting.


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