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Publication Date: Wednesday, November 20, 2002

Police interrogation tactics under fire Police interrogation tactics under fire (November 20, 2002)

Chief Dwyer defends department tactics

by Bill D'Agostino

Dismayed by a police investigation that produced the arrest and release of a young rape suspect, a city commission recommended last week that the Police Department amend its policy and tape all of its interrogations.

The Human Relations Commission's recommendation marked the first city criticism of the police's treatment of a case that has been widely observed throughout the state.

In May, a 94-year-old woman was brutally raped and beaten in her Palo Alto Commons apartment. Gunn High School graduate Jorge Hernandez, 18, was arrested following an interrogation that police claimed produced a confession. He was later exonerated by DNA evidence and released, although the police chief has previously said Hernandez might still be part of the ongoing investigation.

Hernandez's attorney, Randolph Daar, questioned the tactics of Palo Alto's officers at last Thursday night's meeting. Investigators failed to tape their entire interrogation and used coercion and misinformation to gain a false confession, Daar claimed.

Police Chief Pat Dwyer told the commission that police officers taped their interrogation, but Daar contended there was a separate two-hour interview that occurred in Macy's, where Hernandez worked at the time.

"Contrary to what the chief told you," Daar told the commission, "there was no tape."

Taping interrogations is the only certain way to check police practices and ensure that confessions are legit, according to Richard Ofshe, a sociology professor at UC Berkeley and an expert on police techniques.

"It is inexcusable for any police officer not to record," Ofshe told the commission.

In addition to taping investigations, police officers should also make sure they also get corroborating evidence -- information that only the criminal could know -- from suspects who give confessions, Ofshe suggested.

The problem of false confessions is "probably the easiest problem in the criminal justice system to fix," Ofshe said.

The commission also recommended that police get training, if they don't already, on getting corroborative evidence. Those recommendations will be heard by the City Council at a future meeting.

Dwyer, who said he couldn't comment on the case, criticized the timing of the Human Relations Commission discussion.

"With all due respect to this commission, I think it is outrageous that you would schedule this inquiry while my department and other law enforcement agencies are still in the process of actively investigating this crime and trying to obtain justice for a 94-year-old woman who was savagely beaten and assaulted," Dwyer said at the meeting.

Commissioners said they called the hearing to act as a de facto police oversight committee. In an interview with the Weekly after the meeting, Commissioner Ken Russell said it is important to discuss the matter while the case is still in the public consciousness.

"The behavior of his department was outrageous," Russell said. "He said what we're doing is outrageous. To me, that was a smokescreen to avoid the real issues. In a sense, he's using the same tactic on the public that his officers use during interrogation, which is intimidating the rest of us."

Daar said he would likely file a suit soon against the department on behalf of Hernandez, who was sitting in the first row of the audience but never spoke to the commission.

At the meeting, it appeared Daar was already trying his case, claiming the police used coercion -- telling Hernandez that it would be better for him to confess -- to get an apology, which they later labeled a confession.

Dwyer, who couldn't respond to the specifics of the case, said coercion is only legal when it "doesn't cause an innocent person to confess." His officers aspire to a higher ethical standard than simply the law, he added.

The reason some innocent people confess to crimes is because they are made to believe that the situation is hopeless, Ofshe countered.

Daar and Ofshe were also critical of police officers' use of deception while interviewing Hernandez. Daar said officers made up facts, such as their false claim they had a videotape of Hernandez entering the woman's apartment.

Dwyer, however, said deception is a valid and legal method of interrogation.

"Deception is not advisable unless you know they did it," Dwyer said.

Commissioners criticized the use of deception in interrogation, but did not make any formal motion on the particular matter. "We don't like lying on the part of our police," Russell said.

Prior to interviewing Hernandez, the only evidence police had linking him to the crime was a ring engraved with the name "Edwin," Daar said. Hernandez's brother Edwin lived near the senior assisted-living facility and reported the ring stolen a year before the rape.

Despite the fact Dwyer was restricted from fully discussing the case, he did share some information with the commission. The entire questioning of Hernandez fit on one videotape, he said.

"The interrogation that apparently led to this inquiry is on videotape and will ultimately be made public," Dwyer told the commission. "I firmly believe that the when the truth is made public, all the tabloid innuendo will be shown for exactly what it was."

Six months after the rape and beating occurred, the suspect in the case remains at large.

Hernandez was the second high-profile Palo Alto suspect this year that the department and the county district attorney released after getting DNA evidence.

In January, David Carlson, a Palo Alto child care teacher, was arrested by Palo Alto police and charged by the Santa Clara District Attorney's Office with molesting a 4-year-old child. After spending three weeks in jail, Carlson was released after DNA showed no crime had been committed.

Dwyer told the commission the department owes Carlson an apology. "The system in that case worked exactly the way it was supposed to," Dwyer added.

Was it a tragedy, nonetheless? Dwyer agreed it was. "It was a case where the system failed somebody."

E-mail Bill D'Agostino at bdagostino@paweekly.com


 

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