FBI rule on taping interviews scrutinized

Fired Ariz. U.S. attorney spent months protesting bureau policy against recording

April 02, 2007|By New York Times News Service

WASHINGTON -- The account, buried in a mountain of documents assembled for a congressional investigation, describes a decidedly local yet brutal crime: a Navajo man charged with beating his girlfriend nearly to death and then hanging her by a rope outside their Arizona trailer home to make the attack look like a suicide attempt.

The incident has none of the political intrigue of the other cases, mainly dealing with government corruption or voter fraud, before lawmakers as they examine the circumstances surrounding the firing of eight U.S. attorneys.

But the Arizona case has reached the halls of Congress, part of a dispute within the Justice Department over a critical law enforcement question: Should interviews with criminal suspects be tape recorded?

Paul K. Charlton, the U.S. attorney in Arizona, was fired after spending months protesting a Federal Bureau of Investigation policy that, for practical purposes, forbids the taping of almost all confessions, in stark contrast to the practice of many local law enforcement agencies in Arizona and many other locations across the country.

Charlton blamed the FBI policy for the resulting plea bargain in the Navajo reservation assault case as well as the acquittal of a defendant in a child sexual abuse case and another suspect in a prison murder indictment.

Eight states, by law or court action, require taping of interviews with suspects in serious felony cases, turning a tape recorder or video camera into an important tool in convictions. More than 450 law enforcement agencies in major cities and smaller jurisdictions also require the taping of certain interrogations.

The FBI, a division of the Justice Department, has strenuously resisted the practice unless special permission is granted by supervisors, under the theory that it might discourage suspects from talking and expose juries to interrogation methods that the department would rather not highlight.

But the inability to tape suspects, especially those accused of sexual abuse and domestic violence, can seriously compromise a case, said Charlton and other prosecutors.

Charlton said the problem was particularly acute in Arizona, a state with 21 Indian reservations, where federal law enforcement officials handle major felony cases. In essence, he said, differing investigative practices have resulted in two distinct criminal justice systems. If a crime occurred off the reservation, the confession would be taped, but if it happened on tribal land, it would not.

The FBI, in documents defending its policy, argued that taping was not always possible, particularly when agents are on the road and that it was not always appropriate. Psychological tricks like misleading or lying to a suspect in questioning or pretending to show the suspect sympathy might also offend a jury, the agency said.

The debate in Arizona began in early 2006, when Charlton sent a memorandum to all federal law enforcement agencies in the state notifying them that, as of March 2006, any cases directed to his office for prosecution in which a statement from an investigative target has been taken must, with few exceptions, be recorded.

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