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NYCLU calls foul on DA protocols

Richard Brown
TimesLedger Newspapers

Eugene Polhill was arrested around 10:30 p.m. one night in 2009 outside the 179th Street subway station on Hillside Avenue after a man told police Polhill tried to rob him about a half hour earlier.

The following day, Polhill, who required a court-appointed attorney, was ready to be arraigned, but just before going into the courtroom two members of Queens District Attorney Richard Brown’s office intercepted him and took him to a nearby interrogation room, according to his lawyers.

During an interview that was taped and later shown to a jury, his lawyers said, Sgt. Mary Picone told Polhill that “in a few minutes” she would read him his Miranda rights, and then proceeded to read him a script the New York Civil Liberties Union said the DA’s office has read to thousands of defendants since 2007, a practice the civil rights group says targets indigent suspects and subverts their rights.

The NYCLU is calling for an end to the DA’s Central Booking Interview Program and filed a legal brief last month on behalf of Polhill and two others appealing their convictions in Queens Criminal Court.

Brown has defended the practice in a case where a Queens judge issued an interim ruling to have evidence obtained under the DA’s program suppressed, citing questions about its ethics. Brown argued that “a violation of an ethical rule does not in itself constitute a ground for suppression,” the case’s appellate judge wrote.

A representative for the office declined to comment on the litigation.

But a source who is familiar with the practice at the DA’s office said the program was instituted to ensure that the charges levied against the defendants were correct and that the innocent were never wrongfully accused.”

Before he spoke with a lawyer, Polhill waived his Miranda rights — the warnings law-enforcement officials are required to give a suspect in order to protect an individual from self-incrimination — and told the assistant district attorney he had gotten into a physical altercation with his accuser, whom he denied robbing. Polhill’s attorneys said this statement helped sway the jury to convict him and should have been suppressed.

Polhill is serving a seven-year prison term on his attempted robbery conviction.

The NYCLU claims the DA’s program violates a defendant’s constitutional right against self-incrimination as well as ethical rules prohibiting lawyers, in this case prosecutors, from advising those whose interests are adversarial to theirs. Furthermore, it claims the program is completely subjective in its selection and targets those who cannot afford a lawyer.

“The district attorney’s program violates constitutional and ethical protections that are designed to ensure fundamental fairness and balance in the criminal justice system,” said Taylor Pendergrass, NYCLU senior staff attorney and lead author on the brief. “Any program where legally trained prosecutors intercept unrepresented suspects on their way to court and direct them into an interrogation room is unconstitutional and unethical. The program should be ended immediately.”

During the interview, Picone told Polhill if his story was different “this is your opportunity to tell us your story,” and if he wanted something investigated “you have to tell us now so that we can look into it,” according to his appeal.

“Any attorney knows that it is unethical to give misleading advice to a non-lawyer whose interests are adverse to yours,” said NYCLU Criminal Justice Fellow Susannah Karlsson, co-author of the brief. “Queens County prosecutors cannot deceive people into answering questions without an attorney present.”

Reach reporter Rich Bockmann by e-mail at rbockmann@cnglocal.com or by phone at 718-260-4574.

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