Everyone grumbles about criminal-friendly decrees like the U.S. Supreme Court's 1966 Miranda decision, but New York State's highest court has taken the legal protection of reprobates and thugs to new and breathtaking heights. Thanks to a 1997 decision of the New York State Court of Appeals, People v. Burdo, repeat felony offenders get special legal rights that first-time offenders don't get. The result: career thugs are often harder for police to convict than first offenders.

The events that set Burdo into motion took place in 1994, two weeks before Christmas, when Francis J. Burdo sat arraigned on rape charges in Clinton County Jail in upstate New York. Two cops, working to solve another crime—the brutal beating death of Leo Gebo 18 months earlier—wanted to question Burdo about it. Burdo's uncle had just confessed to the murder and had implicated him. The detectives had Burdo brought down to the jail's library, read him his Miranda warnings, and told him he could stop the interrogation whenever he wanted. No one was trying to coerce anyone here, the detectives soothingly reassured him. The cops knew Burdo faced rape charges, and they warned him not to talk about them. If he did, federal and state law demanded that his rape-case lawyer be there, too, no doubt keeping his client's mouth tightly shut. Burdo said, sure, he knew all about his rights—but he was willing to talk about the Gebo killing.

In fact, he confessed. Yes, he beat Gebo to death, he admitted—but his uncle had tried to break up the fight; his uncle was innocent. The detectives didn't believe that part of his story, and said so. Irritated, Burdo got up and stalked to his jail cell. Fifteen minutes later, though, he voluntarily returned, and the detectives recorded his oral and written confession to the murder of Leo Gebo. Neither they nor Burdo said a word about the rape case.

No one doubted that Burdo's confession was voluntary. But New York's trial courts, intermediate appellate courts, and, finally, its Court of Appeals all ruled it inadmissible evidence. In the courts' view, the cops had run roughshod over Burdo's right to counsel. A confessed murderer avoided conviction; Burdo's uncle alone went to prison for the murder. The detectives were incredulous. After all, hadn't they followed every procedural safeguard in the book? How could they have violated Burdo's right to counsel?

The right to counsel rests on the Fifth and Sixth Amendments to the federal Constitution (along with similar state constitutional provisions), which protect you from self-incrimination in court or during a police interrogation and which guarantee you a lawyer if you've been charged in court with a crime. Since the sixties, the two amendments have blended together, so to speak, so that courts have increasingly viewed as self-incrimination almost any statement a suspect makes without his lawyer present. As a result, police have found it ever harder to get confessions they can use in court.

Relentless in pursuit of civil liberties, New York's Court of Appeals—usually the final adjudicator of the state's criminal trials—has over the same period broadened the right to counsel even beyond federal protections. The 1968 Arthur rule is a prime case in point. Before Arthur, a suspect with a lawyer for a particular crime could waive his rights and speak to investigators about it without his attorney peering over his shoulder. After Arthur, though, once a suspect has a lawyer for a case—even if the attorney is court-appointed—cops can't ask him about that case without getting a waiver in the attorney's presence. (Under federal law, only an attorney the suspect has asked for himself or who advises police that he represents the suspect must be present to give such a waiver.) But though Arthur is a step on the way to Burdo, it is still very different. After all, Burdo had no lawyer for the murder charges, he explicitly waived his constitutional protections, and he confessed without coercion.

It was with its 1979 decision, People v. Rogers, that the Court of Appeals extended the right to counsel to unrelated cases—an innovation key to understanding Burdo. The specifics of the case make it easy to follow the court's decision and perhaps even easy to sympathize with it. On December 16, 1975, as Nassau County police grilled Herbert Rogers about a liquor store holdup, his attorney called and told them to break off the questioning. The cops, following the letter of the law, did stop asking Rogers about the holdup but slyly continued to ask him about an unrelated burglary. Rogers incriminated himself, and a court later convicted him, using his statements against him.

Not so fast, said the Court of Appeals. How likely was it that a lawyer who represented a client for one crime would desert him if police, shifting gears, tried to pin some other misdeed on him? Not likely at all, the court concluded. Thus Rogers's new rule: if, during an interrogation, a defendant asks for a lawyer, or his lawyer calls and tells police to stop, the cops can't shift from one crime to another without the right to counsel covering it, too. The officers had discovered a loophole that let them continue to question their suspect; the court simply closed it. The court recognized that the new rule made it harder to get confessions—putting a kink into police work, which relies heavily on members of the criminal class incriminating themselves during interrogation—but the blow to law enforcement was "immaterial to our sense of justice," the court declared. The Court of Appeals overturned Rogers's burglary conviction.

Not everyone on the Rogers court agreed. In a dissent, two judges argued that the court had elevated the right to counsel "above the compelling interest of the State to investigate and prosecute criminal conduct." There must be justice for the prosecution, too, the dissenters noted. Yet Rogers, though it further constrained officers from interrogating known criminals, still let them question a willing suspect about unrelated crimes—provided his attorney didn't call or show up. Police could live with it. But the Court of Appeals had set in motion an idea—that the right to counsel covered unrelated crimes—that soon grew out of control.

It did so in the 1981 Court of Appeals decision in People v. Bartolomeo, the real law-enforcement killer. The facts of the case appear unremarkable. In May 1978, Suffolk County police arrested Peter Bartolomeo for arson. A lawyer represented him during arraignment, and he was released on bail. Just a few days later, Suffolk County police—though not the same officers—picked up Bartolomeo again, this time to question him about the murder of John McLaughlin, shot to death in April. These detectives knew Bartolomeo was up on arson charges, but they had no specific knowledge about who had represented him for his arraignment. Bartolomeo waived his right to a lawyer: he wanted to talk. Following Rogers scrupulously, the cops felt free to question away. During the interrogation, Bartolomeo admitted that he killed McLaughlin. Police arrested him for murder, and a jury convicted him.

An open-and-shut case, right? Wrong: the Court of Appeals, in a 4-to-3 decision, threw out Bartolomeo's confession and, with it, his murder conviction, pushing the right to counsel into uncharted constitutional waters. According to Bartolomeo, it is up to the investigating detectives to know if a suspect has a lawyer, even if the suspect hasn't asked for his lawyer and even if his counsel hasn't contacted the police on his behalf. It is the responsibility of the police to know if a suspect is charged with another crime, to know if he has a lawyer representing him for that crime, and not to question him about any other criminal case unless that lawyer is present. As a practical matter, the court's new rule perversely benefited only serial offenders, since it dealt with the confessions—the admissions of guilt—of suspects charged with more than one crime. If a recidivist fessed up to a crime without his lawyer present, his confession was excluded, and the case against him—if based on that confession—was rendered worthless.

The court had given confessed killer Peter Bartolomeo, just as it would give other hardened habitual criminals, thick protective armor against police interrogation. In the dramatic words of the three dissenting judges on the case, Bartolomeo granted "a dispensation for the persistent offender."

Bartolomeo handcuffed New York law enforcement during the 1980s, a time of sharply increasing violent crime. Suddenly, cops from Montauk to Buffalo couldn't question serial thugs, thus losing one of the best weapons in their court-shrunken arsenal. Before Bartolomeo, police solved a significant number of crimes by extracting confessions from suspects during interrogation. But now—since no lawyer would allow police to interrogate a client without his presence, and no lawyer, when present, would allow his client to say much of anything—the police could no longer interrogate the 40 percent of those suspects arrested for serious crimes who are recidivists. Who knows how many of these walked away without being charged because of the Court of Appeals' bizarre decision?

Outrages piled up, as New York's courts excluded now-tainted confessions and incriminating statements. In two of the worst examples, the Court of Appeals overturned seemingly well-founded murder convictions. In October 1981, right after Bartolomeo, the court threw out the murder conviction of Ronald Smith, whom police in Erie County had arrested in July 1979 as a suspect in the murder of Deborah Pike. They knew Smith had left a bar with the victim on the night of the murder. After the cops read Smith his Miranda warnings, he waived his constitutional rights. He admitted that there was blood in his car the morning after he left the bar with Pike. Later, he admitted that he "vaguely" recalled hitting her, and that he had done "something wrong." It was enough to get him convicted for murder. But the Court of Appeals suppressed Smith's statements: he already had a lawyer for pending sodomy charges when he incriminated himself. According to Bartolomeo, he couldn't waive his constitutional rights in his lawyer's absence, so the cops weren't allowed to speak to him.

A year later, the court reversed Ricky Knapp's 1978 murder conviction for killing Linda Velzy, an 18-year-old college student he picked up hitchhiking in upstate New York. Knapp, like Smith, waived his constitutional rights and confessed to Oneonta police that he had killed the young girl. But—again like Smith—Knapp had a lawyer for pending sodomy charges when he confessed, so his confession couldn't be used for evidence.

What's even more outrageous about these two decisions is that each killer had confessed or incriminated himself to police before Bartolomeo, which the court applied retroactively. The courts apparently believed that the police were—or should have been—clairvoyant. Try as they might to follow court protocol, these cops couldn't possibly foresee the court's future thinking, so they—and the public—were out of luck.

Bartolomeo's profound flaws soon became apparent, even to New York's highest court—though only briefly. Lower courts and the Court of Appeals itself began to chip away at the decision until, ten years later, in a 4-to-3 judgment, the Court of Appeals overruled it entirely in People v. Bing. The court recognized that its earlier decision protected persistent felony offenders, and it acknowledged that it had taken case law and constitutional interpretation "well beyond their intended scope." The Court of Appeals didn't completely reject the idea of extending the right to counsel to unrelated cases—it simply fell back to the logic of Rogers. Bing reaffirmed that police had to stop questioning a defendant about an unrelated crime once he asked for his lawyer, or once his lawyer contacted the police. But after Bing, it appeared that police again could ask a murder suspect, for example, about an unrelated assault if he wanted to talk, if he waived his constitutional right to have a lawyer present, and if his lawyer wasn't around.

But in Burdo, the state's high court pulled out the stake it had planted in Bartolomeo's heart, and almost all Bartolomeo's ills began to plague law enforcement once more. While Bing had put the onus on the defendant to say that he had a lawyer, Burdo, like Bartolomeo, obliges the investigating officers to find out whether he has a lawyer, and, if so, they can't interrogate the suspect. Remember that while police were interrogating Burdo, his lawyer never called them, nor did the police know anything specific about who represented Burdo for the rape charges he faced. There was no evidence of any formal attorney-client relationship—such as a request from Burdo or a phone call from his attorney—that would make the right to counsel kick in under Bing's rules, which the police observed closely. Yet, as with Bartolomeo, the court nixed Burdo's freely given confession, because the defendant already had a lawyer for a pending felony charge. The right to counsel once again extended to almost all unrelated crimes.

Not every single one of them, fortunately; Burdo doesn't reach quite as far as Bartolomeo. But even if it is slightly less restrictive than Bartolomeo, Burdo has its reasoning backward and tends to protect the more dangerous thug. Burdo lets police question a suspect charged with one crime about a second crime only if he's not incarcerated. So cops can pick up the thief out on bail and ask him about selling crack, if he waives his right to counsel. But they can forget about interrogating the bail-denied murderer about a rape he might have committed, however ready he might be to confess. By bringing Bartolomeo back from the grave, the Court of Appeals has resurrected a rule that has done incalculable damage to law enforcement over the past two decades and has undermined public safety throughout New York.

Over the past 30 years, New York State's Court of Appeals has issued a host of decrees favoring criminals and endangering public safety; Burdo is only the court's latest assault on common sense (see "The Court Criminals Love," Winter 1996). In that context, perhaps it shouldn't be surprising that Bing provided only a temporary reprieve from the court's confused thinking.

Bartolomeo and Burdo go beyond the federal Constitution in hindering criminal investigations. The U.S. Constitution protects against compelled self-incrimination, and it provides for legal counsel. Historically, this simply meant that, if cops forced someone to confess, the confession had to be excluded from court. But voluntariness plays no role in the New York Court of Appeals decisions in Rogers, Bartolomeo, and Burdo. New York State's highest court has created an absolute presumption of coercion when police try to question jailed repeat offenders who have lawyers.

On the federal level, where a similar presumption of coercion has started to creep into constitutional law through legal reasoning that mirrors that of New York's highest court, Supreme Court Justice Antonin Scalia has sharply criticized it. Scalia makes an important moral observation: confession is the first step toward an offender's redemption. Courts shouldn't deter criminals from taking responsibility for evil deeds, Scalia argues, but instead should encourage it. We must hope that Scalia's vision prevails on the Supreme Court. But even if reason prevails on the federal level, New York's highest court makes redemption harder to achieve.

Are New York's citizens powerless before the Court of Appeals? Certainly, there's little they can do directly to influence it. A true change in direction would be up to the court itself or, eventually, a series of governors who appoint the Court of Appeals' judges to their 14-year terms. But since even judges aren't immune to the pressure of public opinion, it is important for the public to know about such outrages and to voice its disapproval of them.

Francis Burdo beat a man to death, confessed to it, and ultimately escaped justice—for the extraordinary reason that he was an alleged rapist. As legislatures across the country pass laws like California's "Three Strikes" rule, that make it easier to track down and punish career criminals, New York State's Court of Appeals continues to ensure that repeat offenders have more rights than other defendants.


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