The San Jose Police Department’s duty manual serves as a bible of sorts when it comes to the rules and regulations for officers. In the 756-page tome that lays out procedures and protocol, five pages are dedicated to interviews and interrogations of witnesses and suspects. Nowhere in the duty manual, however, is there any mention of an interrogation technique that is now receiving criticism from the Santa Clara County Public Defender’s office and local defense attorneys: letters of apology.
In the July edition of Vanguard, a newsletter for the San Jose Police Officers Association, the union for SJPD, two officers who run an outside consulting business detail their methods to obtain an apology letter—following a confession—that “refutes the coercion argument and is one more nail in the coffin for your case.” As Lt. Paul François and officer Enrique Garcia, proprietors of Third Degree Communications, explain in a “training bulletin” that has been circulating amongst the rank and file, “Defense attorneys hate to see an apology letter included as evidence.”
While this may be true, public defender Molly O’Neal says she is more concerned with practices laid out by two of SJPD’s own—which are also being taught to other law enforcement agencies across the state and country—that could cross ethical lines.
“It’s a very short document, but it’s very upsetting,” O’Neal says. “Almost every sentence is disturbing.”
François and Garcia, who did not return multiple calls for comment, tell officers in their apology letter instructional to “[s]ell the letter as a means of showing remorse for act(s)” and “persuade the subject to write the letter to convince others he is truly sorry for his actions.” But according to O’Neal, the scope and language of the training bulletin go well beyond protocol and “ought to trouble everybody.”
In one of eight bullet points, the tutorial advises officers to lie to suspects and say, “‘I’m going to give you an opportunity that I’ve given everyone that has sat in the same chair you’re sitting [in], and they’ve all taken me up on it.” The authors add, “This is a technique used by sales professionals. You’re planting the seed that if ‘everyone’ else has done this, it’s a good idea for him to do it as well.”
Planting the seed is certainly a dubious way to put it, but it falls in line with SJPD’s occasional practice of temporarily submitting false evidence into the record in the hope that it will result in a suspect’s confession. This technique notably went awry in the prosecution of Michael Kerkeles, who was accused of raping a mentally disabled woman in 2005.
San Jose police detective Matthew Christian claimed to have found a blanket covered with Kerkeles’ semen and submitted it into evidence, but when the case went to trial he forgot in sworn testimony that he had conjured the evidence and the name of a fake lab technician. The District Attorney’s case against Kerkeles, which likely would have been enough to gain a conviction, was dismissed in 2007, and the city of San Jose was forced to pay him a $150,000 settlement as a result of a civil suit.
Another worrisome note from the SJPD officers’ apology tutorial depends on how one interprets an act as voluntary.
After instructing officers to give suspects a pen and paper before leaving the room, Francois and Garcia note that “leaving the room, more than anything else, demonstrates the voluntariness of the letter and his statements. This gives the prosecutor the ammunition to demonstrate voluntariness—while the subject was alone in the room, he could have written ANYTHING (or nothing at all, for that matter). The fact that he writes an incriminating statement—on his own—shows he did so of his own free will.”
Sgt. Jason Dwyer, a police information officer for SJPD, tells Metro that the department in no way funds or endorses Third Degree Communications’ services, and any attempts to connect department protocol and recommendations made in the article by François and Garcia—a patrol lieutenant and robbery unit detective, respectively—are misguided.
“I think we are talking apples and oranges,” he says, “because this (training bulletin) here is talking about a style issue about how you persuade someone to write a letter, and we stick to the good books: our duty manual and the California Peace Officer’s source book.”
Dwyer notes that SJPD policy is to get a waiver acknowledging suspects have been read their Miranda rights and agree to answer questions, before gaining a voluntary statement without coercion. But there is ambiguity with no clear department policy on obtaining apology letters, and not all SJPD interrogations are recorded.
Dwyer says that SJPD has no documentation of payments made to Third Degree Communications or reimbursing officers who pay out of pocket for the company’s seminars/workshops, but “our policy does allow for reimbursement for training subject to authorization through the chain of command.” SJPD Police Chief Larry Esquivel and the District Attorney’s office both declined interviews for this story.
Defense attorney Dan Barton, a partner with Palo Alto law firm Nolan, Armstrong & Barton LLP, says apology letters are “a really manipulative way to get a confession,” generally from “naive or inexperienced” suspects.
“The real danger of these apology letters is that the suspect is not encouraged to accurately recount the events,” he continues. “There is always a false suggestion that accepting responsibility will be rewarded with leniency. In order to satisfy the supposed audience, the apologies focus on the suspect’s responsibility. The suspect has no reason to parse the facts and provide a more balanced account of events.
“The old school way of doing it was you got people to confess by telling them you have evidence, fingerprints, video, etc. That used to be the end game. Giving a person a letter to write an apology is an end-zone dance.”
The Public Defender’s biggest concern regarding the Third Degree Communications letter comes in an endnote, which advertises “unique situations and other strategies for obtaining and keeping incriminating statements admissible” for people who cannot speak or write in English.
“We want to make sure that rights are protected for the most educated in our society and the most marginalized in our society,” O’Neal says. “The laws apply equally to everyone. The idea that you’re going to take people whose language skills are not particularly developed, or perhaps completely uneducated, and trying to keep ‘incriminating statements admissible,’ to me sounds like you’re taking advantage of vulnerable people in society.”
In addition to a calendar of upcoming workshops and seminars, Third Degree’s website provides articles on various case law and procedures, testimonials, suggested reading links and merchandise for sale. A common logo on the shirts, ballcaps, mousepad, calendar and coffee mugs for sale is a cartoon that features a detective shining an interrogation lamp on a suspect, who is feeling the heat to the point that his pants catch on fire.
Other shirts come with a colorful drawing of an electric chair and the phrase, “Nothing but the truth!”