Brooklyn judges want to ensure that children who are arrested get lawyers

March 2, 2023 Robert Abruzzese

The Kings County Supreme and Family Court, located at 320 Jay St.
Photo: Rob Abruzzese/Eagle

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“Children need the security of an attorney present who can protect their rights and ensure that their statements are reliable and are not being made only for the purpose of relieving them from a frightening situation,” wrote Kings County Family Court Judge Judith Waksberg.

In addition to Judge Waksberg, other judges from Brooklyn included retired judges Hon. Daniel Turbow, Hon. Ann Elizabeth O’Shea, Hon. Bryanne Hamill, Hon. Emily Olshansky, and Hon. Paul Grosvenor, as well as current sitting judges Hon. Sandra Roper, of the Kings County Civil Court, and Hon. Mark Dillon, who sits in the Appellate Division, Second Department. Judicial Hearing Officer Susan Danoff also was included in writing a letter of support.

The Legal Aid Society has praised these supporters for their advocacy of the bill, which would require that children under 18 consult with an attorney before undergoing police interrogation to ensure their waiver of Miranda rights is fully informed. Additionally, it would mandate that police notify parents before transporting a child to the precinct if they have been taken into custody.

“Generally, children under the age of 18 are not able to fully and adequately process information, to assess the risks and consequences of their actions or of what they say, and frequently attempt to hide their fears and insecurities under a blanket of bravado,” Judge O’Shea wrote. “When taken into custody and confronted with charges of wrongful conduct by police or other people in authority, children will often default into saying things that they believe the authority figures want to hear.”

The proposed law seeks to address the well-established trend of youth providing false confessions at higher rates than adults. A common example given is the Central Park Five, now known as the Exonerated Five, who were falsely convicted based on coerced confessions made as juveniles, and Jeffrey Deskovic, who was also coerced into providing a false confession at age 16 without the benefit of counsel, leading to his wrongful conviction.

Justice Dillon explained that his eyes were opened to how minors could be susceptible to giving false confessions when he came across the case of Martin Tankleff.

Tankleff, a teenager from New York, was wrongfully convicted of the 1988 murder of his parents. The prosecution based its case on a coerced confession obtained through illegal interrogation methods, with no physical evidence linking Tankleff to the crime. The teenager was sentenced to 50 years to life in prison, where he served 17 years before he was exonerated.

In 2003, new evidence came to light that pointed to the possibility of the involvement of business partners of Tankleff’s father in the murder. In 2007, Tankleff’s conviction was overturned, and in 2008 he entered an Alford plea to one count of second-degree murder, which allowed him to maintain his innocence while acknowledging that the prosecution had enough evidence to convict him.

There were other contributing factors in Tankleff’s wrongful conviction, however, the misuse of a false confession was one of the biggest. He spent almost half of his life in prison for a crime he did not commit.

“The evidence relied upon by the Appellate Division, which we found admissible on appeal, implicitly called into serious question the defendant’s purported confession, and whether it was false,” Justice Dillon wrote. “Upon remittal, the prosecutor chose to not retry the case. Mr. Tankleff was released from prison, but not until he had served almost two decades behind bars. …Therefore, constructive efforts that may help guard against false confessions, and the related issue of wrongful convictions, are worthy of action.”

One of the biggest concerns was equity within the system. The proposed law would rectify these injustices by evening the playing field and ensuring that all young people under 18 have the right to legal representation before interrogation, judges wrote. Due to their limited capacity to fully comprehend Miranda warnings and the long-term consequences of their decisions, young people are especially vulnerable to being coerced into making incriminating statements. Wealthy families who can afford legal counsel often provide that protection to their children, leaving poorer youth without such safeguards, they explained.

“An unfortunate reality of our current society is that a major portion of juvenile arrests come from underserved communities of our City, mired in poverty and poor education,” said retired Judge Sidney Gribetz. “In this regard the children and parents affected by police encounters are even more unsophisticated and at a disadvantage to navigate the system, thus placing them more at risk. Furthermore, all of these factors have a harsher and more lasting impact on our communities of color, as there is a well-documented disproportionate minority representation in just the sheer numbers of ‘police involved youth’ who have come into our ‘system’.”

Update: This article has been updated to reflect the fact that Tankleff did not take an Alford plea. He maintained his innocence and the indictments against him were eventually dismissed. The Eagle regrets the error.