CRIMINAL JUSTICE ISSUE – Impact of Illinois v. Perkins (1990)
1990 saw a Supreme Court battle over the constitutionality of the use of undercover officers inside of prisons. Illinois v. Perkins redefined the rules of and specifically the application of Miranda v. Arizona. Miranda, coercion, and the 5th amendment were the issues dealt with in the majority opinion. Though this was not a plurality decision, the concurring opinion delivered by Justice Brennan and the dissent bring up issues not to be ignored: the 14th Amendment and a strict analysis of legal language. There will probably only potentially be arguments made in the future based on the logic of Justice Brennan’s concurring opinion, but the Justice Marshall’s dissent brings up interesting privileged communication issues. The element of the Criminal Justice System which this case affects most is Law Enforcement and Prosecution; they were given a new weapon in their arsenal in crime fighting. There is, however, an open door as explained by Justice Brennan in his concurring opinion for a 14th Amendment argument based on due process in an incarceration situation involving an undercover.
In an in between the lines way and not to romanticize the strategies of any organized crime groups, we find the age old concepts of keeping silent about past crimes, current conspiracies and nefarious desires. The only fool-proof way of preventing the admission of testimony is to make no testimony whatsoever. That is the only way to make sure the state does not gain damning testimony via an undercover. While incarcerated, maintaining silence can prove to be difficult. Codes of silence are broken due to jailhouse bravado, human nature, the weightiness of sentences, and the sheer cunning of the undercover. This paper is going to go through several different scholarly sources to address the above topics. There will be a juxtaposition between the work of former Police Officer Devallis Rutledge’s instruction to current law enforcement, and the work of Diego Gambetta who wrote “Codes of the Underworld.”.
Perkins was in jail in Illinois for Aggravated Burglary when his bragging caught up to him. He had been bragging about a murder he committed two years prior to another inmate while serving a previous correctional commitment. The year was 1986, and the murder had occurred in 1984. Donald Charlton and Lloyd Perkins were both incarcerated in Graham Correctional Facility in Hillsboro Illinois. Charlton was there for burglary. The two became acquaintances and for whatever reason, Perkins told Charlton a story about a murder he had committed. The murder was a known unsolved murder in East St. Louis, but the details Perkins recounted to Charlton were not very well known. Charlton went to the police, and though Charlton was a felon and his testimony would generally be questionable to many people, the police recognized it as credible due to the obscure facts which were not common knowledge.
To put the nail in Perkins’s coffin, the police decided to use Charlton’s testimony as a reason to track Perkins down in Montgomery County Jail in Illinois where he was then an inmate. They placed an undercover officer John Parisi alias “Vito Blanco” along with Charlton in a cell with Perkins. They came in with a story that they had escaped from a work release program but then got themselves caught during the commission of a burglary. Perkins already knew Charlton, and so Officer Parisi alias “Vito Blanco” had immediate criminal credentials with Perkins. The rouse did not take long at all, the conversation that night led to a full confession of the Stevenson Murder from 1984. Perkins was not so much bragging this time as interviewing for a job. Parisi had concocted an escape plan, but needed to know if Perkins was willing to kill somebody to get away. Perkins told the tale of the Stevenson Murder so the other two would accept him into the plan. Slam dunk murder confession! Not quite. Parisi had not given a “Miranda Warning” before questioning Perkins. This issue would ultimately be heard on certiorari by the U.S. Supreme Court.
Perkins’s Attorney motioned to suppress the confession as obtained illegally in violation of the 1988 ruling in Miranda (Miranda v. Arizona 384 U.S. 436(1966)). The state appealed and the Appellate Court of Illinois affirmed the trial court’s suppression of the confession based on a lack of “Mirandization” (176 Ill. App. 3d 443, 531 N.E. 2d 141 (1988)). The Appellate Court held that Miranda, “prohibits all undercover contacts with incarcerated suspects that are reasonably likely to elicit an incriminating response”. The Supreme Court then granted certiorari, (493 U.S. 808 (1989)), to “decide whether an undercover law enforcement officer must give Miranda warnings to an incarcerated suspect before asking him questions that may elicit an incriminating response”. The Supreme Court reversed. Justice Kennedy delivered the opinion of the Court. Justice Brennan concurred in judgment with relation to the proper application of the Miranda doctrine but expressed his opinion that there was a 14th amendment issue of violation of due process. Justice Marshall voiced the dissent more along the lines of a strict grammatical interpretation of Miranda stating that Perkins was in custody and that Parisi’s questions constituted interrogation because of his status as a government agent. I am going to deal with the logic of all three opinions. The issues in the majority opinion are voluntariness and coercion. The issues in the concurring opinion are propriety with respect to Miranda but impropriety with respect to due process. The issue in the dissent is strict grammatical interpretation of Miranda. The most likely issues to crop up potentially in the future are contained in the concurring opinion of Justice Brennan. The Perkins defense team did not make the due process argument, they only made a Miranda argument. Justice Marshall’s dissent is slightly more fear based and an attempt to protect the country from an over intrusive and covert overarching police strategy highly reliant on undercovers.
The majority opinion was delivered by Justice Kennedy. “Conversations between suspects and undercover agents do not implicate the concerns underlying Miranda. The essential ingredients of a ‘police-dominated atmosphere’ and compulsion are not present when an incarcerated person speaks freely to someone whom he believes to be a fellow inmate. (Justice Kennedy in the Perkins majority opinion citing Rhode Island v. Innis, 446 U.S. 291, 301 (1980)) and Berkemer v. McCarty, supra, at 442) Justice Kennedy encapsulates the viewpoint of the majority of the court by saying, “Coercion is determined from the perspective of the suspect”.
Unlike European countries which believe that the intervention of the undercover fundamentally changes the situation, The United States, in general, does not view intervention by an undercover as a factor which changes the proper judgement by the court that the suspect is a dangerous person and given the chance would have done the act they were conspiring to do with the undercover, or the act they have admitted to an undercover to have already committed. We feel in this country that given enough logical veracity, and weightiness, that probative and material statements hold enough validity to be considered admissible, as long as they are voluntary and truthful (Primus (2015)). It is a corpus delicti issue, if the admission fits logically with the physical evidence already discovered, or discovered as a result of the admission, we feel that justice is served by a conviction. This country approaches undercover work the way psychologists approach the Minnesota Multiphasic Personality Inventory. They ask psychological questions from about 100 different angles and in different ways. In this country, our undercovers get information in a way that covers multiple bases. From the perspective of the suspect, the statements are made voluntarily. Suspects nail their own coffins shut in our country, and we let them.
In the majority opinion Justice Kennedy says, “There is no empirical basis for the assumption that a suspect speaking to those whom he assumes are not officers will feel compelled to speak by fear of reprisal for remaining silent or in the hope of more lenient treatment should he confess”. The other issue is the jailhouse bravado mixed with the dangling carrot of the possibility of escape. It is almost duress to have to prove one’s criminal credentials to gain acceptance into an escape plan. It is fear of not escaping versus fear of death. Parisi did not hold a gun to Perkins’s head. With the promise of freedom on the horizon a person could be tempted to lie and/or is coerced to make a statement which in a sense seems to takes away its voluntary nature. Either way, this is not coercion, “Miranda forbids coercion, not mere strategic deception by taking advantage of a suspect’s misplaced trust in one he supposes to be a fellow prisoner.” (Justice Kennedy in the majority Opinion). The other issue is overzealous undercovers in a cell. “It is conceivable that an overzealous cellmate informant may violate a suspect’s due process rights by gathering information through the use of threats or abuse” (Crawford 1995). Violence is the norm in prison. This almost serves as a mandate to use violence and intimidation for an undercover to sell their role as an inmate. That is the line though. The undercover has to entice, not coerce a confession. The issue is very similar to predisposition in agent provocateur. The difference is that the crime has already been committed in a confession situation whereas the crime is being conspired to in agent provocateur. If I was a prosecutor I would have hit Perkins with a conspiracy to escape prison as well just to add some icing to the cake.
Justice Kennedy expressed the court’s opinion that in telling his tale of murder to impress his fellow inmates, Perkins spoke at his own peril. This tactic used by Parisi elicited a voluntary confession and did not violate the self-incrimination clause. The court cites Hoffa v. United States (385 U.S. 293 (1966)) as a precedent in which a C.I. named Partin working as an agent of the state fooled Hoffa and was really cooperating with the law. This CI situation is tantamount to an undercover. The CI is the subagent of the officer agent. Anything the CI does at the direction of the officer is the act of the officer. He was in the cell next to Hoffa and “reported to officials that Hoffa had divulged his attempts to bribe jury members”. There was no argument to be made that Hoffa had made these statements to Partin in an involuntary manner. Partin had fooled Hoffa into thinking he was a sympathetic colleague. The voluntary nature of the statements made, though under false pretense, obviates any argument about coercion. Kamisar, the ‘Father of Miranda’, points out that a very important aspect of Miranda is the convergence of custody and interrogation (Kamisar 2007). No interplay, no warning.
Two very important psychological and social issues are brought up in the majority opinion and then in the concurring opinion, Privacy and Jailhouse Bravado. Privacy it is said in the majority opinion of the court is the key psychological element in successful interrogation, being alone with the suspect. This is viewed by the majority as not coercive however if the suspect is unaware that the cellmate is an undercover. Justice Brennan in the concurring opinion notes, “As JUSTICE MARSHALL points out, the pressures of custody make a suspect more likely to confide in others and to engage in “jailhouse bravado.” See post, at 307-308.” The state just short of coercion, completely controls the environment of a prisoner. They control so many variables that a due process argument is left open. Justice Brennan outright states that he is concurring on the point at issue, specifically Miranda, but that he does not agree with the police tactics used and that they were a violation of due process and fundamental fairness protected by the 14th Amendment. If a judge with the exact same reasoning as Justice Brennan saw this case in a court of original jurisdiction, and the defense made the 14th amendment argument, Perkins would be a free man. To Justice Brennan, “fundamental fairness” (Glennon 1990) is the issue with a due process analysis of a case. Voluntariness is not the only fairness issue, but also the specific technique.
Justice Brennan agreed that Miranda did not apply to an undercover in prison. “Although I do not subscribe to the majority’s characterization of Miranda in its entirety, I do agree that when a suspect does not know that his questioner is a police agent, such questioning does not amount to ‘interrogation’ in an ‘inherently coercive’ environment so as to require application of Miranda. Since the only issue raised at this state of the litigation is the applicability of Miranda, I concur in the judgment of the court”. Justice Brennan goes on to say, “This not to say that I believe the Constitution condones the method by which the police extracted the confession in this case. To the contrary, the deception and manipulation practiced on respondent raise a substantial claim that the confession was obtained in violation of the Due Process Clause. As we recently stated in Miller v. Fenton (474 U.S. 104, 109-110 (1985)).”
Justice Brennan felt that “certain interrogation techniques, either in isolation or as applied to the unique characteristics of a particular suspect, are so offensive to a civilized system of justice that they must be condemned under the Due Process Clause of the Fourteenth Amendment. He cites the ‘legal shorthand” of “involuntary” from Blackburn v. Alabama (361 U.S. 199, 207 (1960)). He holds that our country is based on an accusatorial way and is not an inquisitorial system citing Rogers v. Richmond (365 U.S. 534, 541 (1961)). He feels that the technique violated the Fourteenth Amendment guarantee of fundamental fairness. This is probably an argument which will be used from time to time until the perfect case comes up for this issue specifically to be appealed to the Supreme Court. For now, we have the majority ruling on the Miranda issue of coercion and voluntariness. Many European Countries do not use undercovers as readily as the United States. I encountered a publication by a woman named Jacqueline E. Ross who wrote “Regulating the Gray Zone: A Comparative Look at Undercover Policing in the Unites States, Italy, Germany, and France.” The main difference between the countries approach to the use of undercovers is how readily European Countries initiate undercover operations overall. They need Judicial Warrants and the issue of legitimacy due to intervention is taken more seriously as a philosophical and logical concept (Ross 2015). It is humanly similar to the scientific principle of observation. The scientific observer fundamentally changes the situation being observed so there is not a clear picture of what was really happening. The undercover fundamentally intervenes and changes the situation in which they become involved with the suspect.
There are three noteworthy cases from Florida which deal with the concurring opinion in Illinois v. Perkins. They are: Voltaire v. State (697 So. 2d 1002 (Fla. Dist. Ct. App. (1997)), Richardson v. State (706 So. 2d 1349 (Fla. 1998)), and State v. Russell (814 So. 2d 483 (Fla. Dist. Ct. App. 2002)). There have been over 400 cases citing to Illinois v. Perkins. They almost all deal with the majority opinion. Voltaire cites to the concurring opinion of Justice Brennan specifically with respect to his view that the Perkins tactic is a violation of due process. Richardson and Russel both cite to Voltaire along the same lines of reasoning that the Perkins tactic is a violation of due process. In the Voltaire case Judge Warner stated, “We consider in this case whether the police are precluded from placing an undercover officer in a jail cell with a defendant to extract incriminating statements from him. We hold that the deception practiced by the police in this case violated the defendant’s due process rights and reverse.” (Voltaire v. State 1997). The Richardson case was about coersion as a violation of due process during protracted plea bargain negotiations in a murder trial and the ultimate inadmissability of statements made to police during those negotiations (Richardson v. State 1998). The Russell case is the State of Florida ruling that there was no gross deception along the lines of Voltaire in their use of statements made to a stepdaughter (State v. Russell 2002). It is unclear as to whether any other states may begin to make a variant of this argument with respect to Justice Brennan’s concurring opinion in Perkins. Primus in his Michigan Law Review Article entitled, “the Future of Confession” states, “The legal system has a powerful interest in deterring police interrogation tactics that are patently offensive to either the general sense of moral decency or the particular conceptions of fairness that underlie the American adversarial system of justice.” (Primus 2015). This quote encapsulates the concerns of Justice Brennan’s concurring opinion.
Justice Marshall delivering the dissent seems to take his reasoning to an absurd degree by saying that this erosion of Miranda creates a loophole in our jurisprudence protecting suspect’s Fifth Amendment rights which would create a situation where an undercover could potentially pose as a person’s defense attorney or a person’s clergy. I doubt highly that either of these two scenarios would ever pass as voluntary. Our legal system is built on privileged communication between client and attorney, and penitential confession has always been privileged communication under the priest parishioner privilege. There has never been a cell mate to cell mate privileged communication. There has never been a co-conspirator privileged communication.
One could maybe make the argument that if two people go to AA or NA meeting in jail that they are part of a religion, and the sponsor is the parallel of the priest and the penitential confession between sponsee and sponsor is privileged communication. A New York court in 2001 deemed AA to be a religion for purposes of Federal funding of a rehabilitation facility which forced participants to go to AA which has a higher power which functions in the same manner as God does in traditional religion and religare or cultus, which means religiously observed activities and traditions, one of which is confession. The problem is that with Murder there is only a limited privileged communication potentially because of the blurred line as to whether AA and NA are moral psychology and/or psychotherapy, or religion. If moral psychology/self-help and/or psychotherapy is viewed as limited psychotherapist patient privilege, it is limited with respect to Murder as well. There were no alcohol or drugs mentioned in this case so it is a moot point, but that is the direction Justice Marshall was going, so it brings to mind the 2001 NY case DeStefano v. Emergency Housing Group, Inc. (247 F. 3d 397 – Court of Appeals, 2nd Circuit 2001). That case ends, “A.A., our cases teach, is on the religion side of the line”. Not a non-relevant case, but at this point, beyond the scope of our discussion.
The prolegomena of this exposition on the majority opinion, concurring opinion and dissenting opinion all lead up to the basic thesis that the areas of our criminal justice system most affected by the Illinois v. Perkins decision are law enforcement and prosecution. The people who are on the flip side of the coin affected are prisoners themselves and the arguments made by their attorneys as well. Police now have a relatively straightforward standard for undercover work inside and outside of prison. Coercion and voluntariness. The standard works inside and outside of a cell. If we take a lead from Europe we know that the least amount of pressure gives us the clearest picture of the true intentions and truthfulness of a confession about past actions of a suspect. The criminal underworld has always had different codes of silence and at the same time different methods of establishing criminal credentials. These codes and methods can be used against suspects by a keen logical analysis of the case and an intuitive understanding of the psychology of the suspect.
Devallis Rutledge in a 2004 article entitled “Undercover Interrogation” makes a set of very plain, common sense suggestions to law enforcement. Having been law enforcement and a prosecutor himself and now a defense practitioner for law enforcement, he has one very common sense suggestion. “Check with your District Attorney”. Crawford in her instructions to law enforcement after years as an FBI agent says, “To avoid due process problems, law enforcement officers should select cellmate informants carefully and provide those individuals with clear instructions to ensure that nothing is done to coerce the suspect into making any involuntary statement” (Crawford 1995).
It is not like an undercover just all of a sudden gets an idea one afternoon to go over to the local jail house and have a sleepover with a bunch of inmates. This is not a pillow fight and tickle fight situation. Intel has been collected. It is not required to check with a State of County DA, and it is only required to have a green light from a Federal Prosecutor. No judicial warrant is needed (Ross 2015). Just because no judicial warrant is required does not mean that an undercover should just go ahead and pose as an inmate. Checking with prosecution is always a wise safeguard. Rutledge points out that in states like Florida, the due process argument voiced in the concurring opinion of Justice Brennan is the law of the land. It does not mean that they disobey the stare decisis of Illinois v. Perkins, but that they say in essence, “though no Miranda admonition is required of an undercover posing as an inmate, due process is violated” (Rutledge 2004). Rutledge goes on to warn about the attachment of the sixth amendment once a grand jury has indicted or a defendant has made their first court appearance. Unless a defendant waives their 6th amendment this “precludes the use of undercover agents to elicit incriminating responses on that case (Rutledge 2004). Rutledge instructs that generally “the Perkins technique cannot be used on an indicted suspect” and “in other cases should be used within the first day or two after arrest, before arraignment.” This leaves open undercover work in prison with respect to unindicted suspected crimes yet to be charged.
Rutledge also talks about Justice Kennedy’s concurring opinion. Rutledge says that if the prisoner “has already been Mirandized and has invoked, the Perkins technique could violate the invocation”. The concept is mindboggling really. Why would you an undercover ever give a Miranda warning? It makes no sense whatsoever. If a suspect is likely to invoke if they are given a Miranda warning by a uniformed officer, then just put the suspect into a cell with the undercover is what Rutledge says. “see what develops”. Makes complete and total sense. Rutledge also goes on to instruct that it is okay to use the Perkins strategy if the suspect previously waived Miranda but denied involvement in the crime. That means uniformed officers have already given a Miranda warning and the suspect waived his fifth amendment rights and then just denied involvement. That’s not the end of the story. Law enforcement doesn’t start questioning people without any reason whatsoever. They have good reason to believe the suspect is simply a liar. Next step, use an undercover. He ends his pedagogical article with a brief explanation of voluntariness and strategic deception. The two are not mutually exclusive, and the key is coercion. “Any ruse that would not cause false confession is acceptable, as the Perkins decision said: ‘Miranda forbids coercion, not mere strategic deception by taking advantage of a suspect’s misplaced trust in one he supposes to be a fellow prisoner. Ploys to mislead a prisoner into a false sense of security that do not rise to the level of compulsion to speak are not within Miranda’s concerns'” (Rutledge 2004, Illinois v. Perkins 1990).
In his publication Codes of the Underworld (2009) Diego Gambetta echoes a theme from the Rutledge article, the difficulty in identifying a true honest coconspirator. Gambetta writes, “The bank employee who would like to rob the bank if he could only find an outside collaborator and the bank robber who would like to rob the bank if only he could find an inside accomplice may find it difficult to collaborate because they are unable to identify each other, there being severe penalties in the event that either should declare his intentions to someone who proved not to have identical interests” (Gambetta 2009). This is clearly echoed in Rutledge’s summation of his instruction on the Perkins tactic. Rutledge writes “For example, the undercover officer might be ‘getting released on bail soon,’ and offer to take a message to the suspect’s confederates about how to dispose of evidence or weapons, or offer to retrieve and sell the suspect’s drugs or stolen property to raise bail money. In murder cases, it’s not uncommon to arrange a ‘hit’ on the witnesses and bring back phony ‘proof’ that they’re dead. Depending on the circumstances of the crime, devise a ploy that offers the best hope of motivating the suspect to trust the undercover officer and to confide details of the crime.”
The obvious safe tactic for a suspect/defendant would be never to admit to having ever committed a crime. The issue of bravado comes up. There are different types and different styles of career criminals. Some criminal cultures like urban rap gangsters are braggadocios and get themselves looked at closely by law enforcement because of their music videos (current case: Bobby Shmurda from the GS9 Crips in NY (Preezy 2016)). Other groups like Outlaw Motorcycle Gangs live by the mantra that “3 people can keep a secret if 2 of them are dead”. The latter interestingly enough is a popular San Diego Mob t-shirt slogan from Crime Inc. It is kind of ironic that bikers wear nametags on their cuts and then make these non-statements which are still very similar to bragging, but just without specifics. It is a pretty well-known slogan. It still speaks to the inherent “jailhouse bravado” nature of criminality though it is also an intimidation tactic. The concept has long been established for criminals to keep their mouths closed about past crimes. It is something that is hard for social humans to do. Not every criminal is a de facto anti-social personality disordered individual. People are social creatures. People like to brag. People also can be manipulated. The weight of a long prison term is also leverage for the state to use against a prisoner’s commitment to silence.
People engaged in lives of crime have to take risks from time to time to determine whether another can be a partner in crime. This is the weakness that is exploited by undercovers most of the time and the other weaknesses are guilt and the pride of bragging. Posing as a defendant’s attorney or as a defendant’s priest will almost never become a likely scenario because of long held confidentiality rules and protected speech. These two areas of society are sacrosanct. People talk to attorneys when they need legal advice and to violate this privileged communication would destroy our legal system’s bedrock axiomatic principle of innocent until proven guilty. People talk with clergy when their guilt and sorrow are overwhelming and to violate this privileged communication would destroy our First Amendment principle of separation of church and state.
The undercover has a myriad of different potential guises and no criminal is safe if they talk about anything at all that could if admitted into evidence would do damage to their defense case. The Perkins tactic is one weapon which can be used against a dangerous member of society. It has gone down as a defining case in Fifth Amendment law and evidentiary law and gives us a narrative out of which are formed several more pivotal case law narratives guiding the tactics of law enforcement, and affecting how criminal cases involving undercovers are prosecuted and defended. Miranda is settled for the time being with respect to the use of undercovers. Due Process, however, seems to be an open door for criminal defense attorneys to walk their clients through when defending a case in which the prosecution is attempting to use the testimony of an undercover who was posing as an inmate/prisoner.
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