Needless to say, false confessions are not the
only cause of wrongful convictions. Some of the other causes lend themselves to straightforward solutions as well.The California
Commission on the Fair Administration of Justice is lobbying for a bill recommending
that police officers showing witnesses a suspect line-up or photo sheets not be allowed to know who the suspect is. The idea
is that double-blind identification procedures would prevent officers from giving witnesses subtle clues pointing to the suspect.Excellent idea!
An AP story on July 28 informs us that Robert Charles Browne, serving
a life sentence for murder in Colorado, has now confessed to 48 murders around the country.The authorities are doing the right thing – not assuming the confessions to be true
(or false), but instead investigating them.Insofar as Browne is already locked
up for life, it may seem unimportant whether his confessions are false. It’s a mistake to see it that way. All too often, false confessions cause the authorities to close a case file, and the real culprit gets a
free pass.That’s one of the collateral consequences of false confessions.
Thisrecent Washington Post
editorial calls for the Governor of Virginia to pardon the Norfolk Four – probable false confessors who’ve served eight years
despite an almost complete lack of evidence against them. Regular visitors to this site know that I called for a pardon months
ago, and others have done so for years.That the Post would do so now is a good sign that false confessions are making their way on to the public radar screen.
Earlier this week the California Commission on the Fair Administration of Justice recommended a
law requiring the electronic recording of interrogations in serious felony cases. If an interrogation wasn’t recorded, the
jury would be instructed that unrecorded confessions are less trustworthy. The ball is now in the legislature’s court.Keep your fingers crossed – or, if you live in California, use those fingers to send a message to your
representatives.
From Justice Scalia’srecent opinion on capital punishment: “The American people have determined that the good to be derived from capital punishment—in deterrence,
and perhaps most of all in the meting out of condign justice for horrible crimes—outweighs the risk of error.”
In fact,
it is not clear that the American people are aware of 180 DNA exonerations of people convicted of serious crimes, including
a number who were on death row.How can we make them aware?
As this demonstrates, our criminal justice system puts to death more innocent people than we
imagine – not through capital punishment (though, one assumes, that too), but through no-knock police raids.
From Yesterday’s
AP: “Security agents in Jordan are torturing terrorism suspects on behalf of the United States in hopes of forcing confessions,
the human rights watchdog Amnesty International contended in a news report today.”
Some (including
U.S. government officials) support this policy because they believe progress in
the war on terror trumps human rights concerns. The fatal flaw in their reasoning should be clear: the confessions extracted
by torture are notoriously unreliable
The mention of false confessions on overlawyered.com
also drew this reader response: “The drawback is, if we start second-guessing every interrogation tactic the cops use, there
will be grounds to throw out EVERY confession. I wonder if psychiatrists could come up with some kind of standard protocol
that would be kind of a safe harbor for interrogations, one not likely to result in a false confession.”
Some of us have been long advocating a mild version of what the reader suggests:
banning interrogation methods known to create a high risk of false confessions.As
it stands now, police are permitted to lie to suspects about evidence.They are
not supposed to make threats or promises, but they frequently get away with subtle, implicit or indirect threats and promises.In general, courts evaluate the admissibility of a confession under the “totality
of the circumstances” test, which enables them to uphold confessions even when there are clear violations of protocol.Finally, when a court of appeals does deem a confession to have been improperly obtained
and wrongly admitted into evidence, it may still (in fact usually does) find this to be “harmless error” and affirm the defendant’s
conviction.All told, courts do a poor job of protecting against false confessions.
When overlawyered.com posted about this website, noting
our non-controversial claim that false confessions occur more than people think, someone posted in response:“So what's a judge to do? Consider someone automatically innocent if they confess in order to prevent
convicting someone who committed fraud by confessing to something he didn't do?”
This response is surprisingly common – a sense that false confessors have only themselves
to blame.This perspective might make sense when it comes to people who come
forward voluntarily to confess, perhaps wanting notoriety.But a great many false
confessors are tricked, cajoled, or worn down by dubious interrogation tactics.They
deserve sympathy and exoneration, not condemnation (much less incarceration).
It’s often asserted that, in post-Miranda
America, the kind of coercive interrogation tactics that produce false confessions
are far tamer than the torture of previous epochs. But to borrow from Casey Stengel, sometimes that isn’t always true. Consider
the following from an Associated Press story yesterday:
“Special prosecutors investigating allegations that police [in Chicago] tortured black suspects in the 1970s and '80s said they found evidence of mistreatment,
but any crimes are now too old to prosecute. . . .Their four-year investigation
focused on allegations that detectives under the command of Lt. Jon Burge beat suspects, used electric shock on them, played
mock Russian roulette and started to smother at least one man to elicit confessions.”
“A man who served almost nine years
in prison after being convicted of trying to kill his wife - a crime he claims he did not commit - had the charges against
him dismissed. . . . He was sentenced to the maximum penalty of 121/2 to 25 years
in prison. But his conviction came under scrutiny in 2003 after a Syracuse man implicated himself in the crime State Supreme
Court Justice John Brunetti overturned Gristwood's conviction in September, ruling the credible nature of the other man's
detailed confession warranted giving Gristwood a chance to be tried again.” The
DA's Office opted not to re-try Gristwood.
What the story doesn’t tell you is why Gristwood was wrongly convicted (because he confessed) and why
he confessed (because, during the course of a long, grueling interrogation, he actually came to believe he was guilty).This is what is known as an “internalized” false confession, and hard as it is to
believe, there are quite a few cases of this.
A provocative response to my recent LA Times op-ed on prosecutorial misconduct: “I read your piece with great interest.
You are certainly on-the-mark.In fact, one of your observations may provide
at least one prescription for improvement of prosecutorial behavior. You identify that ‘the asymmetry of the criminal justice
system arguably places unrealistic demands on prosecutors.’ This is something that the general public also feels. Reforms
which would allow our system to swing back to the center, promoting some more ‘law-and-order’ would reduce the public's perception
that prosecutors need to be overzealous in their jobs to get the justice desired.”
It’s true that the public perceives
that criminals get away with murder, and that perception leads to greater tolerance of over-zealous prosecution.A major reason for the perception is that some clearly guilty defendants (O.J. Simpson being only the most
obvious) have gotten off in high-profile cases. Both wrongful convictions and wrongful acquittals take place. To some extent
this is inevitable: no system is perfect. To some extent the problem results from defense attorneys who are too good or not
good enough: wealthy defendants hire elite lawyers gifted in courtroom magic whereas over-worked public defenders and court-appointed
lawyers often fail to provide an adequate defense for indigent defendants. There are many sources of injustice.I focus on false confessions in part because it’s an area where major progress could easily be made.
By a 5-4 vote, the Supreme Court recently held that where a defendant is improperly forced to accept
a lawyer against his will, his subsequent conviction must automatically be overturned.Justice Alito dissented, joined by 3 other justices, arguing that the error should be deemed “harmless” if the defendant
was obviously guilty.Justice Alito wrote that automatic reversal should be reserved
for cases that “always or necessarily” make a trial unfair.
Interesting, given that the Court has held that improper admission of a confession does not result
in automatic reversal of a conviction.If there’s anything that “necessarily”
makes a trial unfair, it’s when a jury hears a confession that shouldn’t have been admitted.It is high time for the Supreme Court to reconsider the notion that wrongful admission of a confession is ever harmless.Maybe even Alito would find that such error is never harmless.
From the New York Times July 7: “The St. Petersburg Deputy Prosecutor
said that members of the extremist group Sour, falsely confessed to a series of prominent crimes, including the murder of
a Tajik girl, to further their nationalist agenda.”
As this suggests, not all false confessors are sympathetic and not all false confessions reflect improper
interrogations.But every false confession, regardless of cause or circumstance,
reminds us that the intuition that an innocent person would not confess is dangerously mistaken.
In a new Associated Press poll, half the respondents say that lying is never justified but two-thirds
of respondents say it is justified under certain circumstances.(That suggests
that a sizable group of people does not believe in the law of contradiction, but never mind.) Count me with those who think
lies are occasionally justified. The problem comes in defining when. The interrogation
gurus believe it’s fine to lie to a suspect – for example, telling him he flunked a polygraph or was identified at the crime
scene by witnesses. As you can imagine, this sometimes causes innocent suspects to panic and confess. Because of that risk,
interrogators should never lie about evidence, and courts should suppress confessions following such lies.
The allegations ring true in this civil suit against police officers for coercing the confession of a man recently
exonerated (after 27 years of incarceration) by DNA testing. That’s especially the case when you consider place. As AP states
in admirably straightforward fashion: “Illinois' criminal justice system has been haunted by errors and wrongful
convictions.”
Ever hear of the Monty Hall Problem?There’s a million dollars behind Door #1,
#2 or #3. Let’s say you pick #1. You’re now told that it is not #3. It’s either
1 or 2, and you are free to keep your guess or change to #2. (No matter what you pick originally, one of the other choices
will be eliminated and you’ll be permitted to stick or switch.) Should you stick
or switch? If you’re like most people, you’ll say it doesn’t matter – there’s
a 50-50 chance that it’s #1 and 50-50 chance that it’s #2. In fact, you should switch – the odds are 2 to 1 that it’s #2.Don’t believe it?I could give you the explanation, but if you’re like most people (including
many mathematicians), you still wouldn’t believe me.
The relevance to false confessions?The human brain may
be such that certain ideas are simply too counterintuitive for people to accept. False confessions fall into this category.
Many people simply cannot believe – all the evidence notwithstanding – that innocent people would confess to a crime.
I’ve posted several times about the fact that there are many motivations for false confessions.This recent article illustrates the point. It involves a murder investigation diverted
by a false confession. The man’s motive for confessing falsely? He wanted to get transferred to another jail.
A journalist recently caused an enjoyable splash in the blogosphere by posting a list of 50 Conservative Songs.It got me thinking that I’d like to post a list of songs that address flaws in the criminal justice system
(directly or indirectly).I’m putting together such a list -- there’s more than
you may think, but I need help. Please supply candidates!
In
a recent op-ed, columnist Tim Rutten responds to the claim of the prison commander at Guantanamo that the recent suicides there were acts of war:
“Let’s imagine for a second somebody held for nearly five years without charges or hearings of any kind and periodically tortured
while being led to believe that their confinement might continue forever.Might
they be driven to take their own life for other than tactical reasons?”
Even
without positing any treatment that might be characterized as torture, Rutten’s point stands. Wouldn’t
people in the circumstances described be driven to desperate measures? Not necessarily suicide, but wouldn't they
be tempted to tell their interrogators whatever they wanted to hear? I shudder to think how many false confessions have
been extracted at Guantanamo and other detention centers.
A visitor writes: "The recent postings where you relate information about
readers' real-life cases are very interesting. So many people feel that these injustices don't happen, or don't happen often.
No one knows what the real percentages are for cases like these, but seeing the stories brings it back to the real world--it
could be my mother, father, son, daughter, neighbor, friend."
Comments and suggestions from visitors, whether positive or otherwise,
are most welcome. Please pass along your views about particular posts or anything else on this site. Send a comment.
Another reader moved by my recent LA Times piece to share a personal tale of prosecutorial misconduct: “My daughter was convicted on fabricated
false testimony from convicted drug dealers . . . .and sentenced to 15 years
in federal prison. The law allows for prosecutorial misconduct everyday to secure convictions instead of finding the truth.
Innocent people rot in prison. Statistics show that they will get out and commit the same crimes over and over again. Where
does this end?”
I’ve received a lot of messages sounding
variations of this theme, but this one adds an important point: the terrible recidivism rate suggests another horrific aspect
of wrongful convictions – what we might call “reverse rehabilitation.”The innocent
person thrown behind bars will often come out a different person, one likely to commit crimes for real.
Washington Post columnist Ruth Marcus begins a recent op-ed as follows: “At the start I presumed they were guilty. The rape charges
against three members of the Duke lacrosse team sounded like a plausible case of Jocks Gone Wild.”
Note the leap from a plausible accusation to a presumption of guilt. The tendency of people to assume confessions must be true is a subset of a larger problem:
the tendency to assume all criminal defendants guilty.
An article last week [6/25] in the Hartford Courant
by Donald Connery (who has been writing about false confessions for a long time) makes this accusation: “Interrogators often
feed information to suspects before telling the world ‘he provided crime-scene details only the perpetrator would know.’”
There are quite a few cases where this has been shown to have happened, and it’s one reason
why all interrogations (and not just the end stage where a suspect confesses) should be videotaped.Yet, as Connery says, many law enforcement authorities “have chosen to be willfully ignorant of the lessons
of documented false-confession cases nationwide,” and resist efforts to require fully recorded interrogations.
Ireland’s PSNI authorities are
trying to extradite Larry Zaitschek, an American who confessed to involvement in an IRA break-in into Special Branch offices
in Belfast.Zaitschek
maintains that PSNI used his ongoing custody battle to extract from him a false confession – telling him he would never again
see his son unless he confessed to the crime.I have no idea whether his contention
is true, but the very fact that it’s plausible (given interrogation practice in America
and Ireland and other nations) is revealing
and depressing.
A young woman and her friend are on trial in Australia for “starting a false police
investigation” by concealing the whereabouts of the girl (who ran away from home when she believed herself pregnant).But here’s the kicker: during the girl’s period in hiding, someone confessed to murdering
her.This serves as a reminder of something startling.Not only do people confess to crimes they didn’t commit, but sometimes people confess to non-existent crimes
– such as the murder of someone who is very much alive!
My recent LA Times op-ed on prosecutorial misconduct attracted an overwhelmingly positive response, but not from one prosecutor in Washington state, who writes:
“[The piece] makes claims of significant deeply rooted problems based on very few incidents. What is more troubling
is the argument that improper motives underlie these incidents and can be attributed to a great number of prosecutors. .
. . If the piece had put the number of alleged incidents in the context of the number of total cases handled by prosecutors,
it would indicate that [misconduct] is in fact an uncommon problem, and overstepping professional bounds occurs very
infrequently.”
Let me again stipulate that, as I recently posted, most prosecutors are honest, devoted
public servants. That, however, is no reason not to be alarmed at those instances where prosecutors fail to live up to
their ethical obligations or exercise poor judgment.Those of us steeped in false
confessions know that this happens too often, and my piece was an effort to understand why.
Earlier this month a California court of appeals upheld a murder conviction based primarily on a confession --
a confession extracted by an egregious interrogation replete with the techniques known to induce false confessions.The court rejected the argument that the trial judge erred in excluding the testimony of Richard Ofshe,
an expert on false confessions. Most regrettable.Because it is so counterintuitive that people confess falsely, it is crucial that juries be educated by expert witnesses
in this area.Unfortunately, many courts forbid or limit such testimony.
Ever hear of the Monty Hall Problem?
A journalist recently caused an enjoyable splash in the blogosphere by posting a list of 50 Conservative Songs.
My recent LA Times op-ed on prosecutorial misconduct 
Earlier this month a