The FBI's Missing Link
On June 1, Terry Nichols was sentenced to life imprisonment without parole for his part in the horrifying Oklahoma bombing. The conspiracy charge against him could have brought a death sentence. For that to have happened, however, the jury would have had to vote unanimously for the ultimate punishment. But they could not all agree on death.
However, Nichols might have been sentenced to death had it not been for what the FBI failed to do. The forewoman of the jury, Niki Deutchman, has criticized the FBI because it didn't tape-record any of the interviews it used during the case.
Had there been tape recordings of the interviews, "especially with key people," she said, "it would really have made a difference to us. It seems arrogant on the part of the FBI to say, 'We have good recall, and you can take what we have said.' "
A Washington attorney, Martin Lobel, adds that the FBI has an unwritten rule of refusing to allow its interviews to be recorded.
"I represent a witness," he told me, "in a certain high-profile investigation in Washington. When the FBI wanted to interview my witness, we said, 'Sure, but because of all the leaks, we want an accurate recording of what was said.'
"The two FBI agents who showed up for the interview refused to proceed so long as it was being tapedeven after I offered to give them a copy of the tape or let them make their own tape.
"They went out of the room to check with their supervisors and returned saying they had confirmed that no-recording was official FBI policy. When I asked where it was written, I was told it was not in writing, but it was FBI policy.
"Then they left."
The government had not given up. "Subsequently," says Lobel, "I received a call from an attorney at the Justice Department, threatening to call my client before a grand jury if she wouldn't agree to a nonrecorded interview.
"I explained that my client was perfectly willing to be interviewed, but that my client wanted an accurate record of what was said. Once again I was told that the FBI policy is not to conduct recorded interviews."
Eventually he arranged for his client to be interviewedbut with a stenographer present.
"Although we eventually worked out a way to have my client interviewed," Lobel adds, "it seems outrageous to me that the government can act in accordance with secret law."
Another lawyer, Michael Saul, wrote in a letter to The New York Times: "I have tried several cases in which the key government witness was an FBI agent or other federal agent.
"The agents did not tape-record interviews, giving me ammunition to attack their credibility."
He told of a heroin case in which an FBI agent testified that Saul's client had confessed. But there was no tape recording of that alleged confession, and the client was acquitted.
Saul had yet another case involving an FBI agent. His client had been charged with armed bank robbery. An FBI witness assured the jury that the defendant had confessed. But again, there was no tape recording. Because of the FBI's rigidity, the case ended with a hung jury.
Sometimes, however, there are advantages to the prosecution in not having tape recordings of confessions.
"The fear of defense attorneys," says Saul, "is that the jury will believe the police just because they are the police."
That's why all interviews by the FBI and other law enforcement agents should, by law, be tape-recorded. Harvey Silverglate, a civil rights and civil liberties lawyer in Boston, insists that unless statements are tape-recorded, suspects or defendants are not protected from having "their statements transformed from harmless responses to damaging admissions."
Some courts agree. In 1985, the Alaska Supreme Court ruled that "an unexcused failure to record a custodial interrogation" violates a suspect's right to due process under the Alaska constitution. Moreover, the results of unrecorded interviews are generally inadmissible in court in Alaska.
In Tulsa, Oklahoma, interrogations have been videotaped for nearly 15 years. And the supreme court of Minnesota has ruled that "all custodial interrogation, including any information about rights, shall be electronically recorded."
Jan Hoffman, who writes on legal matters for The New York Times, reveals that tape recordings can be made by police in the field: "In New Mexico, officers often carry tape recorders on the hip," and in Minneapolis, they "keep tape recorders in squad cars. Also, in that city, most interrogation rooms have video recorders."
In New York, there is no statewide rule requiring that all police interviews be tape-recorded. It's up to the legislature to make it happen.
Years ago, I watched a New York detective videotape a confession, though she didn't have to. She kept eye contact with the resentful perpetrator, making sure the confession covered all points.
When she was done, the detective said, with satisfaction, "There's no question this is going to hold up in court."
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