Law enforcement officers can be deceptive, but not coercive, in interviews with suspects.

The U.S. Supreme Court has ruled it is constitutional to use deceptive questions in an attempt to elicit a confession to a crime.

Still, some say it’s unfair.

District attorneys and other law enforcement officials say it’s an important, necessary interrogation tool that is critical to the success of criminal investigations.

”The objective is always the same – to get to the truth, even if that means clearing somebody (of guilt),” said Sgt. Thomas Kipp, of the Oregon State Police criminal division.

Then, there are the defense attorneys, scholars and, in some cases, those who have been wrongly convicted, who worry that these techniques can encroach on suspects’ civil rights.

”I believe in the system and I support it in general,” said Bend attorney Jacques DeKalb. ”On the other hand, I certainly don’t support unfair techniques to obtain confessions.”

How far law enforcement can go in its efforts to gain convictions is of paramount importance to police investigators, prosecutors, defense attorneys and judges. As recently as the much-publicized killing of Barbara Ann Thomas of Redmond in March 2001, defense attorneys argued that a variation of this controversial technique was used by detectives as they sought to nail down their case against the young suspects, who were ultimately convicted.

Across the country, law enforcement agencies employ different interrogation techniques.

Among the more widely used is a method that stresses learning to read specific behavior and body language, said Bend Police Chief Andy Jordan.

Suspects who know they are guilty make conscious decisions to resist efforts to get at the truth, according to one aspect of the technique.

These suspects, however, can develop internal conflicts and tensions, which reveal themselves in nonverbal behavior. Body movements, facial expressions, eye contact, attitudes, posture and grooming gestures can indicate whether or not the subject is lying.

”And then a lot of it is just based on experience,” Kipp said, ”because, basically, officers need to form their own interviewing style and techniques because some aspects will work for some officers while it won’t work for others.”

Whatever the technique, ”they all start with the idea that rights are not to be violated,” said Scott Koertje, a Redmond Police Department detective lieutenant who worked on the Thomas case. Deputies found Thomas beaten and shot to death in her home on Old Bend-Redmond Highway on March 26, 2001.

Officers can use deception to get the truth, the detective said. It’s a legal technique, though not one officers choose often if they can get the information they need in other ways.

”But that’s the caveat – if,’” said Redmond Police Chief Lane Roberts.

”If we are deprived of that tool of deception completely, it makes it a little one-sided,” he said.

Joe Metcalf is an assistant professor of law at the University of Oregon, and worked for six years as a trial and appellate attorney with the Public Defender Service in Washington, D.C. He said the courts have made some distinctions between which techniques are acceptable and which are not.

One that is legal, for example, is telling a suspect that their fingerprints have been found at a crime scene, or a DNA analysis has been confirmed, when in fact the interviewing officer is unsure whether either are true.

The logic, officers say, is that if a suspect is innocent, they’ll refute that statement and not confess to the crime. If they’re guilty, the seed of doubt planted in their mind often leads to a confession.

”It is some form of gamemanship,” Jordan said. ”It’s the challenge of, How do you elicit information from someone who would rather not tell you?’”

But Jordan stressed that officers are sensitive to suspects’ civil rights. They have to be.

”You have to be cognizant of it because if in any manner you step over the law, the information you get from that person can’t be used (in court),” he said.

Over the past 40 years, numerous state and federal judges have refused to suppress confessions, even in the face of deceptive interrogation techniques, Metcalf said.

Metcalf said when courts evaluate the validity of confessions and the techniques used to elicit them, they look at the totality of circumstances. For example, a court might look at such characteristics as the person’s age, intelligence level, level of education and prior experience with law enforcement.

They’ll also look at the circumstances of the interview, Metcalf said, such as whether the interview was prolonged, if it occurred during the day or night and whether the defendant was communicating or not.

There are different legal claims that defense attorneys can make when seeking to keep a confession out of court, Metcalf said. One is that the confession was involuntary or coerced; another is a strict Fifth Amendment Miranda claim, which says a person has a right against providing compulsory information.

In Deschutes County, defense attorneys for Lucretia Karle, Seth Koch, Justin Link and Ashley Summers filed motions in Circuit Court in the Thomas homicide case to exclude evidence based on a Miranda claim. They lost.

”I still believe we are arguing the right side,” said the Bend attorney who represents Karle, Terry Rahmsdorff. ”I don’t believe we are arguing the politically correct side.”

In the interviews, Koch describes shooting Barbara Thomas in the head with a rifle. Link, Karle and Summers also admitted to being present during the planning of the killing and said they observed it.

In his motion to dismiss evidence, Rahmsdorff wrote, ”… An effective waiver must still be voluntary, knowingly and intelligently made. There is no such waiver by Miss Karle here. Nor do the subsequent recitation of rights and possible waiver cure the initial lack of waiver.”

Karle’s face was buried in her forearms when the video camera clicked on sometime after 1 a.m. Sixteen years old at the time, Karle had been up for nearly 48 hours when she and the four other Redmond teenagers were arrested at the Canadian border on suspicion of murder, Rahmsdorff said.

In a small room with a yellow tile wall and blue carpet at the sheriff’s office in Whatcom County, Washington, Karle was hunched over a table. Bundled in a blanket given to her earlier by detectives, she tried to sleep.

Minutes later, Redmond police detectives Tracey Miller and Loren Weilascher walked into the room and took seats on both sides of the table. Here’s an excerpt from the interrogation transcript:

Miller: … Recorder going. Okay? And, the first thing I’m going to do, I have to read you these Miranda Rights. Ever heard of those?

Silence.

Miller: Ever heard of Miranda rights?

Karle: I don’t know. Yes, I have.

Miller: You’ve probably heard of them … (inaudible) watch it on COPS and that of fun and little stuff, OK? I’ve just to read them to you, OK? So, just listen up for a sec.

He reads Karle her Miranda rights.

Miller: … Do you understand these rights I’ve explained to you?

Karle: Yes.

”What I argued at this point was that this is a girl who is obviously cold, hungry, isolated,” said Rahmsdorff, Karle’s attorney. ”She’s read her rights, but I think you can see they’re not treated as something of great importance.

”She believed this was not adversarial.”

But Redmond detective Koertje said every effort was made to make sure Karle understood her Miranda rights, and make her comfortable.

”Most of the detectives have been up 24 hours longer than the kids,” he said, referring to the night of the interview. ”The kids have had a chance to eat and sleep. The detectives haven’t.”

In Koch’s case, defense attorney Jacques DeKalb argued in court that a detective told his client, ”I’m sorry, but you have to do it. You have no choice.”

DeKalb further argued that the detective ”rubbed and caressed” Koch’s shoulder to extract a confession, and tried to distract the teen from focusing on his Miranda rights by giving him a blanket as they read the rights.

”She (the detective) has done nothing to make sure this (then) 15-year-old kid understands them,” he said.

Kandy Gies, a Deschutes County deputy district attorney who helped prosecute the case, declined to be interviewed for this article since three of the five Redmond teens’ cases are still open.

However, Gies did say in court, in June 2002, that the detective only touched Koch after he said he might have shot Thomas and was visibly shaken.

”He’s upset. It’s a difficult time. He’s shaking and nervous,” Gies said of Koch in court. ”She (the detective) was trying to comfort him. There was no other purpose.”

Gies said the detective did not negate Koch’s Miranda rights by saying he had to ”do it.” Gies called it psychological encouragement because he needed to talk about what happened. But it did not interfere with his free will, she said.

Rahmsdorff said Karle had no idea what her Miranda rights were.

Gies disagreed.

”Her most important decision was not to talk to police but to actively take part in the brutal beating death of Barbara Thomas,” Gies said in court last year. ”She would not be here today if she had not made that decision, but she did.”

For defense attorneys, getting a confession thrown out of court is tough.

”Once Miranda is handed down, the public is deeply suspicious of legal decisions that result in the exclusion of probable evidence,” said Metcalf, the assistant professor of law.

Attempts to throw out confessions, in many cases, are defense attorneys’ attempts to mitigate the damage, said Capt. Randy Wight of the Deschutes County Sheriff’s Department.

”Anytime you get a confession you’re guaranteed there is going to be a hearing and a motion to suppress the confession,” he said, ”because a confession is so damaging to the defenses cases.”

Metcalf agrees.

”They’re the smoking guns in any criminal case,” he said. ”They are generally reliable because defendants won’t confess to something they didn’t do.”

In the early part of the 20th century, it was not uncommon for police to beat or threaten suspects, or deprive them of sleep, food or medical aid, Metcalf said. In 1936, however, the U.S. Supreme Court issued an opinion designed to halt such practices.

In the case of Brown vs. Mississippi, three black defendants were beaten and brutalized into confessing to a murder they did not commit. The court invalidated the confession.

Since the 1960s, law enforcement training manuals have stressed the sophisticated use of deception to obtain a confession, Metcalf said.

And, to be sure, DeKalb said, such techniques have created a vast gray area in which questions surrounding civil liberties arise.

The larger issue, attorney Rahmsdorff said, is that people are lost in a justice system they don’t understand. If suspects waive their Miranda rights because they don’t understand what those rights mean, should those confessions be admissible in court?

”If you believe it should be a top priority to obtain information from arrested suspects,” Metcalf said, ”you would also likely approve of techniques that are designed to increase the number of confessions, so long as those techniques don’t result in false confessions.

”If, on the other hand, you believe part of the discussion should be about the normative question of What should we tolerate?’ you might be less optimistic about where we are currently.”

Lisa Rosetta can be reached at 541-617-7812 or lrosetta@bendbulletin.com.