Patrick Springer, Published September 28 2013
Bagola trial spotlights criminal suspect interviews
After a lengthy and confrontational interview, he even gave a confession to the FBI that he stabbed both his 9-year-old daughter and 6-year-old son to death.
But DuBois later disavowed that statement, and another man, Valentino “Tino” Bagola, last week was convicted of the crimes – after his own confession was corroborated by DNA and other evidence.
Both interviews, conducted while the men were in police custody, were video-recorded and both were played for jurors to judge.
Now, the unusual case is highlighted by advocates as a glaring example of the need to record all interviews of criminal suspects in police custody, a requirement imposed by 17 states, including Minnesota.
North Dakota does not have such a requirement – and legislators rejected a proposal two years ago – but recording suspect interviews has been widely adopted by many agencies, including Fargo police, Cass County and state police.
The FBI, however, has a blanket policy against recording interviews of suspects, though it allows recording at the discretion of the agent.
“That’s something that has been considered by the FBI and may be revisited at some point,” said Kyle Loven, a spokesman for the FBI in Minneapolis, which supervises agents in North Dakota.
“It’s not as though the FBI has turned a deaf ear on the recording issue,” he said.
Loven said he did not know why both interviews in the investigation of the DuBois children, murdered in May 2011 in St. Michael, were recorded.
Besides the agents’ discretion, one possibility is that the jails in which the men were held – DuBois in Devils Lake and Bagola in Grand Forks – routinely record interviews.
Because DuBois falsely confessed, without the recorded interview he likely would have been charged and convicted of the murders if DNA evidence had not been found implicating Bagola, which led to Bagola’s own recorded confession, two leading advocates of requiring custodial interviews said.
According to the Innocence Project, which works to overturn wrongful convictions, 25 percent of all wrongful convictions involve false confessions.
Thomas Sullivan, a Chicago lawyer who is active in pushing for mandatory recording laws, said jurors were able to judge the credibility of the suspects’ statements, and the manner of questioning, because of the recordings.
“It shows the FBI is not above getting false confessions,” Sullivan said, referring to DuBois’ confession. “You wonder if there had not been a recording of that, how much of that would have come out.”
In the absence of a recorded interview, the standard practice is a “barebones” summary report that presents a “sanitized version of what happened during the interrogation, one that fails to mention any coercion and any police fact-feeding,” said Steven Drizin, a professor at Northwestern Law School in Chicago who studies false confessions.
“This case is a great example for why the FBI should be required to record interrogations in all of its cases,” he said, referring to the Bagola case.
Tim Purdon, the U.S. attorney for North Dakota, said he favors recording suspect interviews, and said the recordings were helpful in the Bagola investigation and trial.
“I think recording of interviews can be very, very helpful to law enforcement,” Purdon said. “I am a proponent of recording interviews,” a position he held before becoming U.S. attorney.
Purdon and his assistants reviewed the almost 7½-hour interview of DuBois, who was under heavy suspicion because he was drunk and in the home where his children’s bodies were found. DuBois’ wife and neighbors suspected him.
During the interview, DuBois repeatedly said he could not recall hurting his children, and accused the FBI agents of trying to “put words in my mouth,” but he eventually confessed. Agents repeatedly said they knew he was the killer.
The turning point in the investigation came 14 months after the murders, when DNA evidence implicated Bagola. His DNA turned up underneath the fingernails of the murdered girl.
“It is cases like this one, the Bagola case, that highlight the importance of recording interviews,” Purdon said.
Sullivan put it more bluntly. Without the DNA evidence pointing to Bagola, DuBois’ fate would have been very different, he said.
“He’d be in jail for the rest of his life,” Sullivan said, referring to DuBois. “There’s no question about it.”
Drizin said: “Without a recording of the interrogations, the FBI would not have been able to go back and determine that they fed facts to Travis DuBois and that his confession was ‘contaminated.’ Similarly, their decision to record the interrogation of Bagola enabled the jury to see that Bagola provided details about the crime that only the true perpetrator could have known.”
At trial, for instance, the presentation of Bagola’s recorded interview showed him describing where he disposed of a broken knife in locations that matched the crime scene investigation findings.
The top federal public defender for North Dakota and South Dakota agreed that recorded interviews are helpful and should be the standard practice of law enforcement.
“It takes off the dispute about who said what,” said Public Defender Neil Fulton, based in Pierre, S.D. “You still have a dispute about what it means.”
In the Bagola trial, his public defenders argued that DuBois’ confession was supported by the evidence and claimed Bagola’s confession was not. Jurors rejected that argument, and an appeal is likely, Fulton said.
In their closing arguments in the Bagola trial, both the defense and prosecution told jurors they could judge for themselves the credibility of each statement.
Recording interviews of suspects has been required in Minnesota for almost 20 years, following a Minnesota Supreme Court decision, and is a practice adopted by all major cities in North Dakota, in addition to the North Dakota Bureau of Criminal Investigation and the North Dakota Highway Patrol.
Recording suspect interviews doesn’t pose any “complications” for the prosecution, said Pamela Harris, an assistant Clay County attorney. Quite the reverse, she said:
“I’ve never had a recording complicate anything,” she said. “It’s the person’s own words, and it’s the best evidence of what their statement is.”
Lawyers and police officers agreed that the practice of recording suspect interviews has become increasingly widespread with the advent of cheap and reliable digital recording devices, both audio and video.
Fargo police have made a practice of recording all suspect interviews for the past seven or eight years, and now routinely record field interviews in domestic violence cases, where even victims are prone to recanting their statements, said Deputy Chief Pat Claus, who supervises investigations.
“The detectives use them religiously,” Claus said. “They’ve seen the results.” He said recordings have helped solve and prosecute high-profile murder cases, including Gene Kirkpatrick, convicted of hiring Philip Gattuso’s murderer.
On the other hand, Claus added, a recorded interview was involved in the recent decision not to charge a North Dakota State University football player for aggravated assault.
All three interview rooms at the Fargo Police Department are equipped with video and audio recording devices, Claus said. The department is moving to have all patrol officers routinely record interviews, when practical.
So far, Fargo police do not have a written policy, but Claus has a draft policy that could be implemented soon, he said.
“Why wouldn’t I record a suspect interview?” he said, noting the ability to obtain an accurate, verbatim statement. In the case of video, the suspect’s demeanor and body language also are recorded.
“I would certainly say that the practice of not recording in all instances is a practice that time has passed by,” Fulton said. “Recorded statements should be the norm, not the exception.”
The North Dakota Legislature rejected a bill in 2011 that would have adopted a uniform law for requiring the recording of interviews of suspects in police custody. Cost and practical concerns were cited, but those concerns are not valid, said Sullivan, who presented testimony in favor.
“I’m coming back at them,” Sullivan said, referring to the 2015 session. And he said he will have the Bagola case to bolster his argument.
Readers can reach Forum reporter Patrick Springer at (701) 241-5522