Who keeps what record?
The electronic recording of police interviews with criminal suspects is an efficient and powerful law enforcement tool. It has been done for years by many police agencies large and small throughout the United States. Their experiences have been uniformly positive.
- Thomas P. Sullivan, Police Experiences with Recording Custodial Interrogations, A Special Report by Northwestern School of Law Center on Wrongful Convictions
A recording speaks for itself literally on questions concerning what was said and in what manner. (Com. v Diaz) Listening to a defendant be inculpated by his or her own voice has a persuasive power unrivaled by contradictory testimonial.
- State of New Hampshire v. Herbert Barnett
About Investigation Interviews
When police interrogate a witness or suspect, who should know what is said? How should that exchange between law enforcement and interview subject be recorded, represented and shared?
This is a question of great weight. One of the key components of any law enforcement investigation is the interrogation of witnesses. Police can interview suspects and witnesses alike as a fact-gathering tool. Often that information forms the basis of the theories of a crime, the narrative of what happened and the supporting evidence to prove it. So accurate representation of what someone has said is paramount to a strong investigation. It has only been recently, though, that a new movement is afoot: one demanding mandatory electronic recording of all custodial interrogations in serious cases.
As awareness has increased that innocent people can be - and are - convicted of crimes they didn’t commit, there has been a growing interest in understanding how this happens. One area of deep concern is what transpires in an interrogation room behind closed doors between cops and interview subjects since research into wrongful convictions shows that some people have been jailed on the basis of false or coerced confessions or misrepresentations of what witnesses or suspects have said to police.
One easy way to eliminate any dispute concerning what happens during an interrogation is to electronically record it, either with audio or even better, video equipment. This is, by far, the most accurate way to preserve what transpired, what was said, or not, and by whom. There is, simply, no other means to precisely and faithfully record the interview.
Alaska, Illinois, Maine, Minnesota, Wisconsin and New Jersey require taped interrogations and with good reason. A special report by the Northwestern University School of Law Center on Wrongful Convictions found that police departments that routinely use electronic recordings of interrogations were overwhelmingly positive about the benefits of the practice. Those police departments reported that it enhanced investigations, did not deter confessions and, overall, eliminated court time resolving disputes of who said what to whom.
Recording custodial questioning is necessary to prevent police from using coercive tactics or misstating what has been said. It creates a permanent record and prevents later strife about the police treatment of subjects, whether Miranda rights were given, and what actual statements were made. This is a law enforcement version of an instant replay.
With electronic recordings of interrogations, witnesses or suspects can’t change their version of events, and neither can police or prosecutors. Which makes one wonder why Assistant Attorney General Karen Huntress ordered that no recording be taken of admitted killer and key witness Michael Benton, according to a deposition taken of New Hampshire State Police Officer Frederick Lulka on June 17, 2008? Or why New Hampshire State Police Officer Scott Gilbert claims in a deposition on June 27, 2008 that during two days of interviews with one of the actual killers, Michael Benton, the interviews were NOT recorded because it’s never been done when an attorney has been present - especially suspect when it is likely the time that Benton and his attorney worked out some deal in exchange for his testimony and SHOULD HAVE BEEN RECORDED.
The reason this is critical in the case of Jesse Brooks is that it’s impossible to know what version of police and prosecutor interviews accurately reflect what the key witness Benton told them and whether any part of the story was encouraged by authorities rather than what the “cooperating” witness purportedly remembered. And actually, there’s much cause to doubt the version of police and prosecution interviews that has been offered in the case. The lead investigator NH State Police Sgt. Robert Estabrook said in a June 27, 2008 deposition that it was only in the second interview with Benton, WHICH WAS NOT RECORDED, when Benton first mentioned Jesse’s name in a very vague and tenuous connection to the case.
The New Hampshire Supreme Court has already weighed in on this topic in State v. Barnett in 2001 and recommends that law enforcement record ALL interviews WITH WITNESSES AND SUSPECTS.
INTERVIEWS NOT RECORDED
12/21/05 Joseph Vrooman Spearmint Rhino Strip Club Vegas
12/08/06 Joseph Vrooman 5-hour interview
12/15/06 Joseph Vrooman interview
02/16/07 Joseph Vrooman interview
04/11/07 Joseph Vrooman Transported to AG’s Office for Death Penalty Discussions and His Plea Agreement
05/11/07 Joseph Vrooman three-hour-long ride with Sgt. Bob Estabrook & Sgt. Scott Gilbert
08/26/07 Ride to Deerfield barn and Target parking lot. Blank DVD provided.
12/14/07 Joseph Vrooman Transported to Attorney General’s Office for UNDOCUMENTED Meeting
01/08/08 Joseph Vrooman interview
06/02/08 Joseph Vrooman interview
Unknown (3) UNDOCUMENTED meetings according to Vrooman regarding his DEAL where Chuck Keefe questioned him about stomping on Jack Reid’s chest.
11/17/06 Michael Benton Interview
12/08/06 Michael Benton interview
12/11/06 Michael Benton interview
12/12/07 Michael Benton interview after 4 months of solitary.
05/22/08 Michael Benton interview
05/30/08 Michael Benton interview
06/12/08 Michael Benton interview
04/20/09 Michael Benton interview
Note: Joseph Vrooman repeatedly testified that his UNRECORDED police reports were wrong and that he never made those statements. He also made many references to discussions with police that were not part of any record.
03/03/07 Andrew Carter had numerous meetings, interviews and phone calls with Sgt. Estabrook
04/26/07 and Sgt. Gilbert - none of which were recorded - where the topic of seeking an attorney
07/17/07 and jail time were mentioned, according to Sgt. Estabrook’s 6/27/08 deposition. Carter
07/20/07 testified in court that he felt pressured by Sgt. Estabrook. Estabrook granted him an attorney, agreed not to prosecute him for drug trafficking, and provided him a CONFIDENTIAL immunity agreement in exchange for his testimony.
11/14/06 Robin Knight
12/01/06 Robin Knight
01/09/07 Robin Knight
N.H. STATE POLICE RECORDED DEPOSITIONS
NH State Police Officer Frederick Lulka DO NOT RECORD INSTRUCTIONS by Assistant Attorney General Karen Huntress (p.94) see attached
NHSP Robert Estabrook, Lead Investigator
DO NOT RECORD INSTRUCTIONS by
Assistant Attorney General Chuck Keefe
(p. 40) see attached
NH State Police Scott Gilbert Deposition Gilbert
teaches course on WHEN TO RECORD. (p. 20) Gilbert claimed RECORDINGS ARE NOT TAKEN WHEN BOTH PARTIES HAVE REPRESENTATION
(p. 29) see attached
Joseph Vrooman claimed repeatedly during the trial of Jesse Brooks that the police reports were wrong and claimed he never made those statements.
What purpose was served by NOT RECORDING INTERVIEWS WITH THE ONLY
WITNESSES AGAINST JESSE if the prosecutors are so sure there’s a case there?
As a result of the State’s conscious refusal or failure to record the interviews where Benton’s and Vrooman’s stories evolved into falsely incriminating Jesse Brooks, the jury in Jesse Brooks’ case was never allowed to hear how and why this occurred, leading to his wrongful conviction and a 15 to 30 year sentence for a crime he did not commit.
Recorder Was Turned On and Off
11/30/06 “Can I ask you a question without the recorder on?”
“Because I wanted to ask you something we talked about before.
When I just asked you -- that whatever I say, you said - they were
my words.” (24177)
Third Meeting at O’Aces
“This is wrong.”
(Jesse’s Trial p. 2662 lines 15-23, p. 2663 lines 1-18)
Jesse and Vrooman went to Federal Express
“The report is wrong”
(Jesse’s Trial p. 2667 lines 10-23, p. 2668 lines 1-8)
Bank of America
“I did not say anything about Bank of America.”
(Jesse’s Trial p. 2672 lines 9-23, p. 2673 lines 1-5)
$5000 Bonus Check to Joseph Vrooman for Tangiers Construction Project
02/16/07 Unrecorded: They did up a tax form 1099 for the five thousand dollars Jay gave him because police knew Joe was paid for the murder. Had to make it look like legitimate from OLOS. (22651)
Note: Prosecutors Chuck Keefe, Kirsten Wilson, NH Trooper Scott Gilbert.
03/24/08 Recorded: “That-that $5,000 had nothing to do with the participation in the murder of Jack Reid.” (28564)
Vrooman's Felony Marriage Fraud
“When I first talked to the prosecutors, Chuck Keefe was there. He--when I said this marriage that I disclosed to him because I told him that other people knew about it and I know it was going to come out, and it was ILLEGAL. I TOLD THEM.”
Note: Vrooman met with prosecutors Chuck Keefe and Kirsten Wilson 12/08/06, 12/15/06 and 02/16/07 - ALL UNRECORDED interviews. There is no mention of marriage fraud on record in any one of those reports and they DID NOT charge him with felony marriage fraud in exchange for his testimony.
Interviews not recorded
06/19/08 Deposition “So there have been (3) statements here in the last month or two with the same individuals except different attorneys on your behalf and everybody is taking notes and none of them recorded and nobody told you why?”
Jesse’s Trial 11/06/09
Benton - Redirect
BY MS. RUNDLES:
Q. Mr. Benton, was Jesse Brooks involved in the 2003 plan to kill Jack Reid?
Q You say no? Is that what you told the police when you met with them on December the 8th of 2006?
A: He wasn’t involved with the direct planning involving me and Andy Carter, no. (p. 1769 lines 21-23, p 177 lines 1-4)
Note: Janice Rundles is referring Michael Benton to one of many UNRECORDED interviews with prosecutors Charles “Chuck” Keefe, Kirsten Wilson, Sgt. Robert Estabrook and NH Trooper Scott Gilbert.
01/29/08 Confidential Jail Call to Attorney Jeffco, which should not have been recorded.
“I don’t know where they can just get off and write whatever
they want down.”
06/26/08 Londonderry Police Station. Janice Rundles, Karen Huntress, Kirsten Wilson, Michael Lewis
Keller: “The stuff you guys wrote [to the newspaper] are half-
05/26/08 Michael Keller left a voicemail for John Brooks’
attorney Chris Carter attempting to correct the record.
Michael "Mike" Small
10/05/11 Interview with Paul Ciolino and Joseph Moura
“That conversation was with John Brooks not Jesse.”
10/05/11 Interview with Paul Ciolino and Joseph Moura
“That’s absolutely false, no.”
Hear for yourself what CNN Law Enforcement Contributor and retired veteran FBI agent Steve Moore has to say about the way the New Hampshire State Police conducted an interview with Michael Benton at the press conference about Jesse Brooks’ case on January 28, 2013.
Problems created by not having custodial recordings
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