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Unabomber prosecutor: Were jogger confessions voluntary?
By Kevin Drew
NEW YORK (CNN) -- The re-examination of the Central Park jogger case has raised questions about the legal boundaries of police interrogation and prosecutors' power over evidence. The five defendants, teenagers at the time of the 1989 beating and rape of a woman jogging through New York City's prized park, initially confessed to the crime but later recanted, saying they were tricked and coerced. Defense attorneys have suggested interrogators used misleading questions and made vague and deceptive statements during their questioning of the boys. who would eventually be convicted of the crime. According to the former lead prosecutor in the Unabomber case, the issue boils down to a central question: Was the statement by the suspect made voluntarily? "In the absence of a statute, the issue for the minority and for the person who's attained the age of majority is the same," said Bob Cleary, a former U.S. attorney and currently a partner for the New York City law firm of Proskauer Rose. Cleary also said the practice of interrogators using deceptive language during their questioning is generally accepted in the courts. Typically in multi-defendant cases, Cleary said, interrogators will play one suspect against another, in separate rooms. "The first one to talk gets the best deal," Cleary said. "It's the game of 'whoever comes in first gets the best deal; you don't want to be left holding the bag.' That's a fairly time-honored tradition and there's nothing wrong with that. "How far the deception, there's no bright line, but it has to be fairly egregious (to be illegal)," he added. "The phrase you hear in cases is 'shocks the conscience.' The deception by interrogators must be so strong that it would force a suspect to make a statement he or she wouldn't normally voluntarily make." "There's no set rule, there's no bright line, and that's where the battleground usually is -- whether the (police) deception was so extreme." Another question from the case concerns the DNA evidence. During the course of the trial, the then-prosecutors said the DNA evidence did not produce noteworthy details. But during testimony in the case, an FBI agent said the DNA evidence taken from the victim was definitely not that of the five suspects. "If the prosecution is in possession of exculpatory evidence that is material, they're duty bound to produce it to the defense." "If they don't, then the question is what remedy is there." If the evidence could exonerate the defendants, "that would be a basis for overturning the conviction." The battleground there becomes: Is the evidence exculpatory in a material way? But just because the DNA found on the victim excludes the defendants "doesn't exclude them from the mayhem," Cleary said. "He could have well been there and raped her, dropped a rock on her head, kicked her or just encouraged his cohorts. He could have served as the lookout. All sorts of things that under the law be held criminally responsible for the assault."
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