Retired Judges and Advocates: Don’t Let Cops Interrogate Kids Without a Lawyer
A promotional still from "When They See Us," a Netflix miniseries created by Ava DuVernay about the Central Park 'Exonerated 5'. | Atsushi Nishijima/Netflix

Retired Judges and Advocates: Don’t Let Cops Interrogate Kids Without a Lawyer

A bill in the state legislature would prohibit police from interrogating minors before they consulted with a lawyer.

In May 2016, Albany police arrested then-19-year-old Malik Dawson for an alleged sexual assault. They drove him to a police station, took his cell phone, shackled his leg to a chair, and left him in a small interrogation room.

After two hours, a cop entered the room and asked Dawson if he knew what Miranda rights were. He didn’t. The officer referenced television shows, like Law & Order: “You know, when they interview people, they have to inform them of their rights.” That rang a bell for Dawson: “Oh, the right to remain silent?” So the officer read him his Miranda rights, including his right to have a lawyer present when being interrogated, and asked if he understood.

“Yeah, definitely,” Dawson said. “I just wish that I’d memorized my lawyer’s number. He’s in my phone. Is it possible for me to, like, call him or something?”

“Do you want your lawyer here?” the cop replied. Dawson again said that he’d like to call him. But he also wanted to know what was going on. The officer replied that, if Dawson wanted his lawyer, he legally couldn’t talk to him until the lawyer got there.

“From the sound of it, it sounds like you understand your Miranda rights and you want your attorney,” the officer said. He told Dawson that he would go get his phone, and then left the room.

But the cop didn’t get the phone. Instead, he came back and gave Dawson two options: He could call his lawyer, or they could “just figure this out.” The officer then told Dawson that it would help his case if he appeared contrite, and had him write an apology letter to his alleged victim, with whom Dawson had insisted he had a consensual relationship. Later, a jury would use the letter and interrogation to convict Dawson, and a judge would sentence him to seven years in prison.

After reviewing video of the encounter, a New York Court of Appeals judge outlined Dawson’s interrogation in a dissenting opinion issued last week. “Mr. Dawson unequivocally invoked his right to counsel,” the judge argued, and thus any interrogation after that was illegal and shouldn’t have been used in court.

But the majority disagreed. Even though Dawson was trying to figure out how to contact his lawyer, and even though the cop said that he thought Dawson had evoked his right to counsel, the state’s highest court decided that Dawson didn’t assert his request clearly enough, so the officer was free to continue interrogation.

To many who work in criminal law, Dawson’s interrogation sounds like an all too familiar set of events: A young person is arrested and read their rights, which they don’t fully comprehend. Hyper-focused on getting out of police custody, they get overwhelmed, and go along with whatever the cops say, incriminating themselves.

“The case shows you just how out of touch the law is,” said Marty Feinman, a retired attorney who until recently ran the Legal Aid Society’s juvenile delinquency practice. “It shows how little there is in the way of common sense that’s being applied in this kind of scenario.”

Feinman and other advocates have been pushing since before Covid-19 to get a law passed that would do away with some of the high-stakes interpretive games involved in police interrogating youth. They hope to follow the lead of states like Washington and California, which passed laws last year mandating that minors be given access to legal counsel before police interrogate them. And now, more than three years into the effort, there is increasing momentum to enact a similar law in New York.

A bill sponsored by Senator Jamaal Bailey and Assemblymember Latoya Joyner would, among other items, prohibit the police from questioning anyone under 18 before the person has consulted with an attorney. Under the bill, that consultation couldn’t be waived unless the child potentially had information that would help the police protect someone in imminent danger. If the child was questioned before an attorney was present, their statement wouldn’t be admissible in court.

These split-second, pressured and uncounseled decisions can have irrevocable consequences that will impact the young person for life.

Monica Drinane, retired Bronx family court judge

Of course, the bill would not have helped Dawson, who was 19 at the time of his interrogation. And bill proponents recognize that, while New York law defines a juvenile as anyone under 18, cognitive research has shown that decision-making faculties don’t reach full maturity until the early-to-mid-20s.

“Those cases [like Dawson’s], just as we can now with kids under 18, we can try and demonstrate to the court that the level of comprehension is such that this is a youth who is not capable” of waiving their Miranda rights, said Feinman.

Meanwhile, law enforcement has said that the bill goes too far, since it could override a parent’s desire to have their child speak candidly with police. “Parents and guardians are in the best position to make decisions for their children, and this bill, while well-intentioned, supplants the judgement of parents and guardians with an attorney who may never have met the individual,” the New York City Police Department said in a statement sent to New York Focus. “This bill, while well-intentioned, does not actually serve the best interest of the juvenile arrestee and may actually harm those interests.” (New York Focus also reached out to the District Attorneys Association of the State of New York for comment, but executive director Morgan Bitton said that the association had not yet reviewed the bill.)

But advocates say that the bill would go a long way in securing children’s legal rights. “We know from common sense that kids don’t have the capacity to handle themselves the way they need to in that situation,” Feinman said.

The bill would also mitigate the high rate of false confessions by children, advocates say. Research across several decades has consistently estimated that roughly 90 percent of children waive their Miranda rights while being interrogated by police, compared to some 80 percent of adults. And recent research suggests that, despite making up less than 9 percent of arrests, children account for about a third of false confessions.

“Because children’s cognitive abilities are still developing, most children cannot meaningfully understand their Miranda rights,” Rebecca Shaeffer, legal director for the Americas at the criminal justice reform group Fair Trials, wrote in support of the bill. Schaeffer went on to enumerate some of the compounding factors that make children unfit to handle police interrogations alone: an inability to cope with stress, being raised to obey adults, and being susceptible to short-term rewards (for example, “being told they can go home if they say ‘what happened,’” wrote Shaeffer).

In addition to Fair Trials, over 100 community organizations, who have dubbed themselves the #Right2RemainSilent coalition, have signed onto a letter backing the bill. The bill also has the express support of some retired family court judges, at least nine of whom have written letters — first shared with New York Focus — urging the legislature to pass it. In their letters, many of the judges recounted their experiences dealing with youth who were interrogated without lawyers present — echoing Shaeffer’s assertions about the perils of leaving children alone with the cops.

“I presided over too many cases wherein the police met the bare requirements of our laws but otherwise elicited statements from children which were compromised and unreliable,” wrote retired Bronx family court judge Sidney Gribetz.

“Often, [young people] seem to think that an explanation will get them out of trouble or will enable them to go home, which is often all they are thinking about,” wrote retired family court judge and former family court prosecutor Barbara Salinitro.

And parents can often exacerbate the situation, rather than help it, according to the judges.

“Many times, parents want their child to explain what happened in front of them (and the police) so that they, as a parent, better understand the youth’s involvement in troubling behavior,” wrote Salinitro. “Often, parents believe that allowing the child to cooperate with law enforcement will result in a better outcome.”

Without the advice of a lawyer, those stress-induced interactions can lead both kids and parents to make case-altering decisions, the judges said.

“These split-second, pressured and uncounseled decisions can have irrevocable consequences that will impact the young person for life,” wrote retired Bronx family court judge and former family court public defender Monica Drinane.

The bill has made it past all of the necessary Assembly committees and is currently on the floor, and it is on its third committee in the state Senate. Twelve of the state’s 63 senators and 25 of the 150 assemblymembers have signed on as sponsors. Legislators will need to send the bill to Governor Kathy Hochul before the current session ends in early June. A spokesperson for the governor said that Hochul “will review the legislation if it passes both houses.”

This article was updated with comments from the New York City Police Department and District Attorneys Association of the State of New York.