No one would ever accuse Curtis Taylor, Antonio Rosario and Sam Vasquez of being rocket scientists. The trio was convicted in Federal court for conspiring to commit Hobbs Act robbery, brandishing a firearm during a crime of violence, and a host of other offenses related to the robbery of a pharmacy in midtown Manhattan, New York.


On March 4, 2014, the Second Circuit Court of Appeals was forced to reverse Taylor’s conviction because of an unlawful Miranda interrogation, and because the trial court had refused to sever Rosario’s and Vasquez’s cases from Taylor, the prejudicial spillover of Taylor’s involuntary confession forced the appeals court to also toss their convictions.


This constitutional mess should be a lesson to all: law enforcement should not interrogate a suspect who cannot keep his eyes open following a suicide attempt on sleeping pills, and a trial court should sever a case when there is even the remotest possibility that an involuntary confession will have a prejudicial spillover to other defendant(s).


It was Christmas Eve 2008. Figuring the world was preoccupied with Santa’s trek across the globe, Taylor and Rosario convinced Vasquez to drive them from the Bronx to midtown Manhattan so they could rob a pharmacy. Luana Miller, a drug addict from Mississippi with an extensive criminal history, joined the robbery crew. She called the pharmacy asking its personnel to stay open a few minutes past its normal 5 p.m. closing time so she could pick up a prescription. Once at the pharmacy, the Second Circuit said Miller entered first, posing as a customer talking with the pharmacist. With Taylor at the door as a lookout, Rosario then suddenly burst into the pharmacy, screaming that it was a robbery, and while brandishing a gun, demanded OxyContin. Altogether, the robbery crew made off with $12,000 in controlled substances, some cash, and subway cards.


The ensuing police investigation tracked the cell phones of the robbery crew which showed “they were in the Bronx that afternoon, traveled to midtown Manhattan just before 5:00 PM, stayed near the pharmacy until just after the robbery, and then returned to the Bronx.” The case against the crew received a real boost when, as is often the case, one of the co-conspirators decided to cooperate with the police. This happened when the police executed a search warrant in January 2009 at the residence of Miller’s boyfriend. She was there and was arrested on outstanding warrants. Fearing extradition to Mississippi, Miller immediately offered to cooperate with the pharmacy robbery investigation, and did so by leading the police to Taylor, Rosario and Vasquez.


The police were determined to get their man when they went after Taylor. On April 9, 2009, at around 6:00 a.m., more than 25 NYPD and FBI agents stormed the suspect’s apartment to make the arrest. With that many cops trying to take down one suspect, chaos was inevitable—and amid all that confusion, Taylor claims he attempted suicide by taking a bottle-full of Xanax pills. Taylor’s mother tried to tell the officers that her son had just tried to overdose, but the police told her to “shut up.”


Approximately three hours after the arrest, NYPD Detective Ralph Burch, a member of a joint FBI/New York health care fraud task force, interrogated Taylor at FBI headquarters in downtown Manhattan. Taylor signed a Miranda rights waiver and confessed about his role in the robbery. Taylor claimed he kept falling asleep and at times was unconscious during the two- to three-hour interrogation. Detective Burch conceded that Taylor’s body was “somewhat shutting down,” and while he did nod off at times, he was “coherent” and “fluid” when awake and speaking. Burch put it this way: “Mr. Taylor at times was nodding off during the interview. When we asked Mr. Taylor to listen up, that we were asking him questions, he would respond that he knew what he was being asked and he would repeat the questions back to us to show that he was understanding what was being asked of him and knew what was going on.”


The detective also defined “nodding off” at not being asleep with a need to be awakened, but rather as needing to be “refocused.” Still, Burch said Taylor “seemed like he was dozing off, and we had to stress to him did he understand what was doing on … it was my impression he knew what was going on then.”


Taylor’s condition raised enough concerns with the FBI that they transported him to a hospital for “medical clearance” before he was transferred into the custody of the Marshals Service. “There was some talk about him on some medication and possibly an injury he had sustained previous at a construction site,” explained FBI Special Agent Ian Tomas.


It’s incomprehensible to us that the FBI would let a NYPD detective grill Taylor for nearly three hours while he was in that drugged condition. Agent Tomas admitted that the Marshals Service did not want to take custody of a prisoner who “might be off.” The truth is, as conceded by Agent Tomas, the Marshals Service “wouldn’t accept custody of Mr. Taylor” because of the prisoner’s inability to stay awake. Once at the hospital, Taylor spent the rest of the day sleeping although he did not receive any medical care.


Taylor was then transferred to the Metropolitan Correctional Center where, on the morning of April 10, he was examined by the facility’s chief psychologist, Dr. Elissa Miller, who explained she wanted her staff to evaluate Taylor before his arraignment. The doctor said her staff was aware of Taylor’s earlier schizophrenia diagnosis and several suicide attempts. During interviews with Dr. Miller’s staff, the chief psychologist said Taylor “presented with a thought disorder,” drooled, was vague, stared blankly, and “his thoughts lacked spontaneity. As the doctor said: “If you asked him questions, he really couldn’t elaborate on them because his thought process was impaired.” Dr. Miller also testified that Taylor told members of her staff that “the day he was arrested by the FBI, he took multiple Xanax pills in an attempt to kill himself because he had promised himself that he would never go back to jail” and that “as a result of taking all those Xanax pills, he wasn’t waking up and he went to the hospital.”


Taylor wasn’t finished confessing. After the interviews with MCC’s staff psychologists, he was taken to the federal courthouse for arraignment. Once there he told Agent Tomas that “he wanted to clear up some issues about the charges that he was presented with.” The agent took Taylor into a nearby interview room, Mirandized him again, and took the defendant’s second confession.


A short time later Taylor met with a pretrial services officer named Dennis Khilkevich who testified that when he arrived to interview Taylor, he “appeared sleepy and had to be awakened to be interviewed. He was sitting in a chair and he appeared as if he was asleep or he was taking a nap.” Khilkevich said he was forced to stop the interview because Taylor “repeatedly fell asleep in the chair.” When the interview resumed, Khilkevich said Taylor “was initially responsive maybe for several minutes,” but “then he continued to fall asleep. He had to be woken up and he would be responsive for a few minutes and then he would go to sleep again. While the pretrial services officer managed to complete the interview, he said Taylor was awake and coherent only “at times.”


Despite this compelling evidence that Taylor was incapable of making a knowing and intelligent waiver of anything, the Second Circuit nonetheless described it as a “close case.” But at the end of the day the court concluded that “even assuming Taylor’s initial waiver of his Miranda rights were knowing and voluntary, Taylor was largely stupefied when he made his post-arrest statements, as confirmed by the testimony of the law enforcement agents and the pretrial services officer who interviewed him, and by the evaluations of staff psychologists as the Metropolitan Correctional Center. The agents and the officer testified that Taylor fell asleep repeatedly during questioning and was only intermittently alert. Although there testimony also suggests—and the district court found—that Taylor’s statements were made in relatively lucid intervals, Taylor was impaired throughout, and his interrogators took undue advantage of that impairment by continuing to question him. We therefore conclude that that Taylor’s post-arrest statements were not voluntary. We further conclude that admitting those statements into evidence was not harmless. His conviction is therefore vacated and remanded for a new trial. And because Taylor’s statements were redacted in a manner that left obvious indicia that the co-defendants’ names had been deleted, their convictions are also vacated and remanded for a new trial.”


We do not feel this was a “close case.” It was a case at first impression which screamed for reversal. We are not surprised that the police took “undue advantage” of Taylor. That is what the police generally do during an interrogation process. They lie, trick, scheme and intimidate to secure a confession. What did surprise us is that the trial court found that while Taylor did in fact nod off from time to time, this did not render him incapable of voluntarily and knowingly waiving his Miranda rights during those fleeting moments when he was “awake and lucid.” The court explained its finding by saying that it did “not equate nodding off intermittently with total psychotic episodes of hallucination and other extreme circumstances that might throw greater doubt on the defendant’s ability to voluntarily and knowingly waive his rights.”


The case may be retried at taxpayers’ expense. The Government may or may not have a sufficient case for a retrial. If the Government is forced to dismiss the case, the fault will lie with sloppy police work and questionable trial court discretion, not with the Second Circuit which did the only thing it could do: reverse and remand.