Concern about unrecorded conversation before confession could trigger problems, experts say.

By Paul T. Rosynsky, Chauncey Bailey Project

OAKLAND — For a high-profile murder case, the slaying of Oakland Post editor Chauncey Bailey was solved with lightning speed. Less than 48 hours after Bailey was killed Aug. 2 as he walked to work in downtown Oakland, police had a taped confession from a Your Black Muslim Bakery handyman claiming responsibility.

It was a victorious moment.

The police said they solved a crime that brought national scorn on Oakland and its growing crime problem.

Bailey was the first journalist since 1993 killed on U.S. soil, police said, for doing his job.

But as Devaughndre Broussard, 19, prepares to enter an expected not-guilty plea in court today, questions continue to swirl about the truthfulness of his confession.

A man is arrested during an early morning raid at Your Black Muslim Bakery in Oakland on Aug. 3, 2007. (Laura A. Oda, Oakland Tribune)

The conversation was not recorded, and police were not present as Broussard and Bey whispered to each other in an interrogation room at the Eastmont Police Station.

Police said they heard Bey tell Broussard, “Tell the truth, tell them what you told me.”

Moments later, police said they turned on the tape recorder as Broussard confessed to the slaying.

Broussard said he was being a “good soldier” and killed Bailey because the journalist was working on a story about the bakery’s troubled finances and internal family feud, police said.

Police called the conversation between Broussard and Bey an investigative tactic frequently used to gain information about a crime.

Broussard’s attorney, LaRue Grim, called it coercion and said his client’s confession was false.

Independent experts say allowing the two suspects to talk is not illegal, but not recording the conversation leaves the police open to criticism.

“I don’t think the cops did anything wrong except maybe being careless in not recording any of this,” said Tom Nolan, a former detective with the Boston Police Department who is now associate professor of criminal justice at Boston University. “By not recording the conversation, they run the risk of this kind of exposure, they run the risk of having their tactics called into question.”

Grim did just that last month after he was hired by Broussard’s family to defend the San Francisco native.

Grim put responsibility for the killing on Bey. Grim said the bakery leader told Broussard to “take the fall” for the murder.

Broussard followed the order, Grim said, because the 19-year-old respected and feared the bakery leader.

“The police already announced that he confessed, giving the impression that it is all over,” Grim said at the time. “This is not necessarily what the Police Department is presenting it to be. There are questions about whether this confession was true.”

Bey’s attorney, Ted Johnson, declined to comment on the conversation, but said his client had nothing to do with Bailey’s slaying.

While it might never be known what was said during the private conversation, convincing a jury Broussard is not guilty of the murder will be a tough task, legal experts said.

“The interrogation here is not coercion, the police were not coercing anyone,” said Jeff Ingram, a law professor at Dayton University and author of three books about criminal procedure. “I don’t see anything, as a general rule on criminal procedure, there is nothing here I can see that they have done improper.”

In fact, the U.S. Supreme Court ruled in 1987 that using such a tactic is not against the law, Ingram said.

The Supreme Court case stemmed from the slaying of a boy.

Police suspected either the mother or the father in the crime and brought both in for questioning. Unable to rouse a confession from either, police put both in the same interview room and listened to the conversation.

Within minutes, the wife began yelling at the husband and asked him why he killed their son. The husband then admitted the killing.

“The defense said it was a violation of the Fifth Amendment, self incrimination, the Supreme Court said no it was not,” Ingram said. “The police were not doing the interrogating. It was the wife.”

But one difference between that case and Broussard’s is a tape recording police kept of the conversation between the mother and father.

Without a recording in the Broussard case, his defense attorney can raise issues of credibility, experts said.

Broussard’s defense team can question the veracity of a confession: Did the police make a side deal with Bey to have him convince Broussard to confess? Did Bey make promises to Broussard that he would get out of jail sooner if he admitted committing the crime?

“An inference can be made here that maybe the cops had something to hide when they really did not,” Nolan said.

John Burris, an Oakland attorney who successfully sued the department in several cases for civil rights violations in the past, said the lack of recording raises questions about whether police made a deal with Bey.

“Was Yusuf Bey promised anything?,” Burris asked. “You always have concerns about informants coming in and eliciting confessions from suspects, and they are usually trying to get a better deal for themselves.”

Added Ingram, “That would raise an issue of whether the police are cooperating with the bakery leader.”

But allowing the two bakery members to talk privately does not mean Broussard will be able to escape the murder charge.

Other factors also will play a role.

When police finally caught up with Broussard at his apartment, they said he was throwing the killing weapon, a shotgun, out his back window.

Police also said Broussard told them details of the shooting during his confession that only the killer would know. Such specifics included how many shots were fired and where Bailey was hit, police said.

“That is very powerful, that is just a tough one to overcome,” Ingram said. “The one way that he might be able to work this out is if he rolls over on other people.”

Grim continued to deny Wednesday his client was the gunman and said he believes his client knows who killed Bailey.

“I think my guy knows who did it,” Grim said. “But he does not want to say. They have a brotherhood there, a brotherhood that is very dangerous.”

Nolan, who spent 27 years on the Boston police force, said the police failure to tape the conversation between Bey and Broussard was probably a simple mistake in judgment.

“This stuff happens from time to time,” he said. “Maybe they didn’t think they would be lucky like this and then all of a sudden it’s, ‘Holy cow, we should have recorded that.'”