Favorite

Barth: Another Supreme Court's missed opportunity 

click to enlarge Arkansas Supreme Court image

Even when blockbuster decisions are not being handed down almost daily by the U.S. Supreme Court, rules of procedure passed down by Arkansas's top court typically gain little attention. Most outside of the legal profession don't even know the state Supreme Court's power to remake important rules in the Arkansas justice system — rules that fundamentally shape whether the justice system provides accurate and fair rulings on matters criminal and civil. While a start towards the goals of accuracy and fairness, an amendment to the Arkansas rules of criminal procedure handed down by the Court last week promoting the recording of interrogations by Arkansas police was a missed opportunity for the Court.

Stating that recordings should be done "whenever practical," the new rule does not require that all interrogations carried out by police officials in Arkansas be recorded from start to finish. Instead, the new rule allows trial courts to consider whether a failure to record a statement undermines the value of the evidence provided by the interrogation. Moreover, the rule is silent on whether video recording should be employed; other states have adopted videotaping as the preferred method of recording because of the information inherent in seeing the face of the person being interviewed across the hours.

As in many criminal justice matters in the contemporary era in Arkansas, there is a link between this rule and the West Memphis Three case. In Jessie Misskelley Jr.'s 1996 appeal of his conviction in the case, his attorneys cited the fact that the infamous lengthy interrogation of Misskelley was not recorded in its entirety as one justification for a reconsideration of the verdict. The Supreme Court rightly noted that "No Arkansas law requires this."

While less well known than the interrogation central to the WM3 case, the case of Thomas Cogdell from Camden is just as troubling. As a 12-year-old, Cogdell was convicted of killing his younger sister based solely on his confession. Police began video-recording his interrogation, during which he adamantly and tearfully denied all wrongdoing in his 11-year-old sister's death. After the boy broke down under strenuous questioning, police turned off the camera. Several hours later, the camera was turned back on and the boy calmly confessed to his sister's murder. After the confession, Cogdell's mother was brought in and Thomas whispered she shouldn't worry because fingerprint evidence would prove his innocence. Later, Cogdell said that during the lengthy gap in the recording, he was threatened with the death penalty if he failed to confess. Ultimately, the conviction was reversed because of the police's failure to adequately inform the boy of his right to remain silent. Under a mandatory recording rule, of course, police would never have been permitted to create the mysterious gaps in the recorded interrogations of Misskelley and Cogdell.

For advocates of fairness and accuracy in the criminal justice system, the new rule was not the desired outcome. In their comments to the Court leading up to this final action, those promoting required taping of such interviews noted the ease of such recordings in an era when technology is cheap and omnipresent. Indeed, over 15 other states have created such requirements through court rules or through legislation. In addition, advocates of a change argued that videotaping is decidedly preferable to audio recordings because of all the information provided by those pictures. (Indeed, on the same day that the new interrogation rule was issued, the Court showed its own awareness of the importance of such visual information in a new rule allowing videoconferencing in pretrial hearings; in that rule the Court affirmed that the video quality must "allow the participants to observe each other's demeanor and nonverbal expressions as well as the demeanor and nonverbal expressions of any witnesses who testify in the proceeding.")

While less than perfect, the new rule is, as the Court put it, a "starting point." The power is now in the hands of police and sheriff officials in Arkansas to do the right thing and always videotape interrogations, prosecutors to encourage them to do so enhancing the likelihood that they will get their prosecutions right, and local circuit judges to challenge any interrogation presented as evidence that cannot be seen and heard from start to finish.

Favorite

Speaking of...

Comments

Subscribe to this thread:

Add a comment

More by Jay Barth

  • The real targets in Trump's outreach to African Americans

    Political analysts have spent recent days asking whether Donald Trump's outreach for African-American support last week at consecutive night rallies in Michigan and Virginia will produce electoral benefit with voters who, according to a raft of surveys, are rejecting him at rates matched only by the poor showing of Barry Goldwater in 1964 after Goldwater's high-profile opposition to the Civil Rights Act.
    • Aug 25, 2016
  • Changing rules in the Democratic Party

    The opening afternoon session of the Democratic National Convention in Philadelphia was a rambunctious one. Lost in the clamor was an agreement by the forces of Hillary Clinton and Bernie Sanders to significantly revise the party rules related to the presidential nomination process.
    • Aug 11, 2016
  • DNC: The final event

    Most reading this watched last night’s final night of the Democratic National Convention and have watched many more hours of analysis of Hillary Clinton’s acceptance speech and the other events of the evening, so I will avoid too many more words on what was a crisply delivered speech.
    • Jul 29, 2016
  • More »

People who saved…

Readers also liked…

  • Prudent pay raises for elected officials needed

    Across the generations, the low pay of Arkansas's elected officials — a direct result of an ingrained distrust and cynicism regarding political elites — has served the state poorly by inhibiting the modernization of state government. The commission now at work on determining state officials' pay has a great opportunity to remedy that flaw, but only if its members show care in their actions.
    • Jan 15, 2015
  • Landlord-tenant laws need change

    Overshadowed by the "AsaCare" speech was a decision by a circuit court judge in Little Rock that also promotes fundamental fairness. Judge Herb Wright shot down the 1901 Arkansas statute criminalizing a tenant's "failure to vacate" a landlord's property without paying rent.
    • Jan 29, 2015
  • Don't give up on LRSD

    I hate it. I hate that the Arkansas Board of Education took control of the Little Rock School District. I hate that the board ignored the broad-based community support for the LRSD, including the incredibly powerful voices of student leaders. I hate that the takeover will overshadow the great schools, educators and programs in the LRSD. I hate that families of means will see the LRSD as a failure and move their kids to private schools and move from Little Rock as quickly as they can.
    • Feb 5, 2015

Most Shared

  • The South, including Arkansas, is failing poor kids who want to go to college

    The Atlantic has an important perspective on the South's "cycle of failing higher education."  Arkansas stands out for the cost barriers it presents to low-income students.
  • School takeovers erode democracy, target minority communities

    New reporting shows state takeover of schools around the country, including in Little Rock, have disproportionately affected minority communities.
  • Arkansas legislator tied to fatal bus crash in Louisiana

    Republican state Rep. David Wallace of Leachville, a current candidate for state Senate, has been identified as the owner of a company that rounded up a group of workers, apparently undocumented aliens, for flood relief work in Louisiana, including one with a poor driving record who was at the wheel in a fatal bus crash on Interstate 10.
  • The boys on the tracks are back

    A lawsuit filed Thursday in federal court in Little Rock bears notice for its effort to breathe life into the 29-year-old story most familiarly known as the Boys on the Tracks.
  • Dumas: Behind the Obamascare headlines

    Ernest Dumas explains in his Arkansas times column this week how Obamacare's problems can be fixed; why it isn't going away, and, most pertinently, why it's more lucrative for Arkansas to continue to expand the coverage pool, not dream up ways to shrink it.

Latest in Jay Barth

  • The real targets in Trump's outreach to African Americans

    Political analysts have spent recent days asking whether Donald Trump's outreach for African-American support last week at consecutive night rallies in Michigan and Virginia will produce electoral benefit with voters who, according to a raft of surveys, are rejecting him at rates matched only by the poor showing of Barry Goldwater in 1964 after Goldwater's high-profile opposition to the Civil Rights Act.
    • Aug 25, 2016
  • Changing rules in the Democratic Party

    The opening afternoon session of the Democratic National Convention in Philadelphia was a rambunctious one. Lost in the clamor was an agreement by the forces of Hillary Clinton and Bernie Sanders to significantly revise the party rules related to the presidential nomination process.
    • Aug 11, 2016
  • Michelle Obama: still who she was

    I had the good fortune to see Michelle Obama fairly early in her public life.
    • Jul 28, 2016
  • More »

Event Calendar

« »

August

S M T W T F S
  1 2 3 4 5 6
7 8 9 10 11 12 13
14 15 16 17 18 19 20
21 22 23 24 25 26 27
28 29 30 31  

Most Viewed

  • One person, one vote

    Arkansas Secretary of State Mark Martin's recent stumbles have revealed quite a story.
  • Fayetteville's missed opportunity

    In today's polarized political climate, it's rare that any measure gets public bipartisan support. But I thought the University of Arkansas Associated Student Government's proposal to establish an on-campus early voting center would be uncontroversial and easily approved
  • Boris and Natasha

  • News for the digital era

    Arkansas news, clipped and spun for the short-attention-span era.
  • Obamacare works

    If you read only the headlines you would think that Obamacare is on its last leg, a national train wreck even in Arkansas, where Republicans and Democrats preserved its biggest feature, assured medical care for the working poor.

Most Recent Comments

  • Re: Boris and Natasha

    • Lyons tiresome tirades about Boris and Natasha are becoming salacious. We get it, we get…

    • on August 31, 2016
  • Re: The shame of Robert E. Lee Day

    • This thread may be dead but I just stumbled on this and I feel the…

    • on August 31, 2016
  • Re: Pay to play. Really?

    • Runner I know you don't think old Max wants to let the facts confuse worship…

    • on August 31, 2016
 

© 2016 Arkansas Times | 201 East Markham, Suite 200, Little Rock, AR 72201
Powered by Foundation