In the recent Supreme Court decision upholding Kansas’ death penalty law, Justice Scalia opined that
the risk of executing an innocent person “has been reduced to an insignificant minimum.”Given
the number of people convicted of serious crimes (including more than a few who were on death row) who have turned out to
be innocent, his confidence is more than misplaced -- it's chilling.
Another visitor shares a personal story in response to my recent LA
Times op-ed on prosecutorial misconduct: “My fiance is accused of raping his daughter. The prosecutor is gung ho in prosecuting
the case even though he knows [the girl's] testimony at the preliminary hearing was perjured. The statement she
gave to the examining nurse conflicts with the evidence. To top it all off, the [medical] report revealed she was still
a virgin. Please tell me how you can rape a virgin?Laws need to be changed or
somebody needs to start prosecuting the prosecutors who destroy lives simply for a checkmark in the win column.”
I must reiterate that most prosecutors are honest, devoted public servants.Moreover, virtually all prosecutorial misconduct (like police misconduct) occurs in cases where the prosecutor
is convinced that the defendant is guilty.But that does not excuse breaking
rules or cutting corners, and the visitor is right that prosecutors who do so need to be disciplined -- which rarely happens.
Earlier this month, James Cameron, founder of the BlackHolocaustMuseum, passed away at the age of 92.His
amazing life included a false confession to manslaughter that resulted in four
years in prison back in the 1930s.The confession was beaten out of Cameron.These days the coercive interrogation tactics that produce false confessions aren’t
so blatant, but the resulting injustice is the same.
Earlier this month the Supreme Court weakened constitutional protection against unreasonable searches and seizures.
The New York Times’ John Tierney shrewdly calls attention to Justice Scalia’s odd contention that “the increasing
professionalism of police forces” makes unreasonable searches less of a problem. I hate to say anything that can remotely
be construed as police-bashing, since the men in blue do dangerous and indispensable work and the vast majority of them are
indeed professional to the core. But when it comes to the Fourth and Fifth Amendments, for many cops cutting corners
is the modus operandi. I used to be less concerned about that, before we learned just how many innocent people end up
behind bars. Given what we’ve learned, we would be foolish to relax vigilance over law enforcement. Send a comment.
A defense attorney writes to share this disturbing anecdote: “Some
years ago I was at a seminar for criminal defense lawyers. A former federal prosecutor was speaking. He told of
a talk he'd given to a roomful of federal prosecutors. He asked for a show of hands by those who, if they came upon
information that was unknown to the defense and indicated that the defendant didn't commit the crime, would disclose that
information to the defense. Few, if any, hands went up.” Send a comment.
My op-ed in the LA Times spurred a number of people to write me with tales based on unpleasant personal experience with prosecutors. Here’s another:
“In a nutshell, Justice Department lawyers used two false affidavits [and] withheld other (contradictory) affidavits by the
same affiants. In the end, my father was prosecuted for crimes that never happened.”
In response to my recent op-ed in
the LA Times about prosecutorial misconduct, a visitor vents about her daughter’s
of DNA in discovering innocent people is wonderful, but what about the accused who do not have DNA involved? . . .
My daughter not only did not do what she is accused of, the prosecutor did not prove she did. [The case was based on]
the accusation of a legally blind drug addict. Seven witness said my daughter was innocent. The prosecutor privately
threatened one of the witnesses to keep his mouth shut. The prosecutor knew about the accuser's eyesight and drugs but
did not tell our lawyer. . . . Most prosecutors lie for a living. Guilt and innocence do not figure in at
all. The only thing that matters to them is Conviction.”
I can’t comment about the particular case, and it’s unfair to say that “most” prosecutors are dishonest,
but certainly the visitor describes phenomena that happen all too often.Prosecutors
are required to turn over to the defense evidence that tends to support innocence, but they sometimes suppress such information.So too, some prosecutors threaten witnesses and many prosecutors are overly concerned
with victory.Finally, the visitor is absolutely right that DNA evidence is often
not available to prevent wrongful convictions – which we now know occur more than most of us ever imagined.
Thanks to this op-ed of mine in yesterday’s Los Angeles Times, I’ve received a number of kind
communications from folks in California. One was a note from the Death Penalty Policy Director of the ACLU of Northern
California, reminding me that just yesterday the California Commission on
the Fair Administration of Justice met to discuss false confessions, and pending in the state legislature is a bill to require
electronic recording of interrogations.While recording is no panacea (something
I’ll be posting about in the near future), it would certainly be an important step.
Bill O’Reilly, of The O’Reilly Factor fame, was recently in Guantanamo
where, he assured his enormous television audience, interrogations are humane. O’Reilly insisted that prisoners are treated
just fine as long as they “cooperate,” and face harsh conditions only if they fail to do so.But has O’Reilly or, more importantly, those who run our detention centers, considered the implications of rewarding
“cooperation” and punishing non-cooperation?Has it occurred to them that some
prisoners are so eager to reap the reward and avoid the punishment that they might confess falsely?
The trial in New York
of a homeless man who claims to have falsely confessed to murder is getting a lot of attention. The defense attorney’s opening statement made claims that should grab the jury’s
attention: the defendant’s DNA was not found on the murder weapon and during the confession he boasted of several other crimes
that investigators have determined never happened. The prosecution is emphasizing that the defendant claimed to have committed
the murder as part of a one-man war against whites, but to me that suggests the possibility that he is pathological and took
‘credit” for the brutal act because he enjoyed the notoriety it brought. Supposing that’s the case, is it so terrible if such
a sick puppy is wrongly convicted? Yes, even apart from the inherent injustice: If he is put away, the case will be closed
and the real killer will get a free pass. Let’s hope the jury takes seriously the possibility of a false confession and carefully
evaluates the other evidence (if any).
My old law school classmate, David Dow, recently wrote this fascinating piece in the New York Times.I’m not sure I agree with him that opponents of the
death penalty focus too much on the risk of convicting the innocent – to my mind, that remains by far the biggest problem
with capital punishment, particularly the more we learn about the unreliability of the criminal justice system.But agree or not, he makes a provocative case.
As the rape case against Duke lacrosse players continues to unravel,
I keep thinking that some good will come of it – the public will become more aware that innocent people are prosecuted, sometimes
on the basis of precious little evidence, thanks to a rush to judgment and presumption of guilt. Perhaps 180 DNA exonerations
should already have established beyond any doubt that our system fails to protect the innocent adequately, but nothing penetrates
the public consciousness like these high-profile cases.
A visitor recently sent me an article favoring
jury nullification (where jurors decide a case based on their consciences or feelings about a law rather than solely on the
facts) and opined that “it makes me wonder if people are just starting to question the whole system as they become more aware
I’m a big believer in the jury
system, and I favor various measures empowering juries more (including measures promoting nullification in certain circumstances),
but the truth is that jurors don’t distinguish themselves in false confession cases. Like everyone else, they tend to assume
that confessions are true. Courts need to allow the testimony of expert witnesses who can educate juries about false confessions.
(Some courts do so, but others do not, and some severely limit the scope of such testimony.)
A public defender e-mails me: “What
is hard to convey to anyone who has not been in police custody is the inherently coercive aspect of any interrogation.
This came up at a friend's dinner. When a large, politically sophisticated man said he would never confess to something
he didn't do, I turned to face him and vehemently snapped, ‘Yes you would!’ This guy is a good three inches and fifty
pounds bigger than I am, but he immediately leaned back in his chair and stammered that he didn't mean anything by what he
said. What was clear is that I now had the upper hand, so I went on with a bit of edge, then let up and said, in a conversational
voice, ‘See how easy it is?’ I explained a bit more about how the door sounds in the typical interrogation room, how
the cops have their badges displayed, that there are always two of them and one of you. . . .”
On Monday, the Supreme Court voted 5-3 that DNA evidence favoring a convicted defendant is ground for a federal court to reopen
a case. This was a particularly welcome development given a trend in the opposite direction. Even as DNA exonerations have
opened eyes about wrongful convictions, the Supreme Court and Congress have been making it harder for courts to reopen capital
In Monday’s case, though, the Court wisely went the other way.
Twenty years ago, Paul House was convicted of murdering a woman. The prosecution theory was that he tried to rape her.
Years later, DNA testing showed that a semen stain on her nightgown came from the victim's husband, not from House.
Perhaps the surprising thing is that, under the circumstances, three Justices believe that House should be marched along to
death. Send a comment
A visitor writes: “We need to advocate Forensic Animation because not all cases have DNA
evidence.”Defense attorneys should indeed be aware of this resource.If you have any ideas for preventing injustice, please share them
and I will likely post them.
Reid Associates, whose manuals on interrogation are responsible for numerous false confessions, is frighteningly disingenuous
on the subject.I could work full-time just correcting falsehoods and distortions
on their website.Consider this very brief excerpt:
“False Confessions are rare phenomena. In one study the authors identified what they believed to be 49 false confessions from the 20th century.”
First, the study in question concerned capital cases only.Second,
it was published in 1987, before DNA testing resulted in many exonerations of wrongfully acquitted people who had confessed.
North Carolina Law Review recently published an article documenting 125 proven false confessions and, as I’ve explained
in previous posts, there’s every reason to believe this represents the tip of the iceberg.
Anyone who thinks you have to be crazy to confess to a crime you didn’t commit should consider the case of James Calvin Tillman,
just released after 18 years in prison. DNA tests proved Tillman did not commit the kidnap and rape for which he was convicted.Tillman had rejected a plea bargain that would have given him an 8 year sentence, and
would have served 45 but for the DNA exoneration.Under the circumstances, one
could make the case that he was crazy not to confess falsely.
As this suggests, false confessions
cannot be viewed in isolation.They are part of a much larger problem – cases
being brought against innocent people and, all too often, resulting in convictions. The problem needs addressing at every
level.We need better police work, better prosecutorial judgment, more discerning
judges and juries.But lest it seem utopian to expect all of the above, we should consider
that a big part of the problem, pervading the system, is the presumption of guilt.The moment the police prematurely assume a suspect guilty, they set in motion a process
that can be hard to stop and that too often leads to the conviction of the innocent (sometimes through a confession).
Yesterday I posted about a judge who deemed a trial error “harmless” because the defendant had confessed.It is often the case that courts find harmless error in confession cases, even if the error was an
improper admission of the confession itself (when, for example, the confession was blatantly coerced or the defendant’s Miranda rights were ignored).The confession
is often the main evidence, and always important.How can its improper admission
be deemed harmless?I suspect courts of appeals find harmless error where they
shouldn’t because they are influenced by knowing that the defendant confessed.They,
like most people, wrongly assume that anyone who confessed must be guilty.It’s
time for the Supreme Court to restore the old rule (which it undid in 1991), whereby wrongful admission of a confession automatically
results in reversal of a conviction.The harmless error doctrine does great harm.
Last month a court of appeals in Texas
reversed a murder conviction because the trial judge improperly allowed hearsay evidence against the defendant.The case is most remarkable for the dissenting opinion, which argued that the hearsay didn’t matter because
the defendant had confessed to the crime.According to the dissenting judge,
the confession clinches the defendant’s guilt and therefore any mistaken rulings were “harmless error.” The dissent dismissed
the possibility that the confession was false, because there was no motive for the defendant to admit to guilt unless he was
in fact guilty.The judge is probably unaware of the many motives for false confessions
-- click here.Then this most disturbing sentence from the opinion: “Although the officers
often expressed their disbelief regarding [defendant’s] initially exculpatory answers and they misled [him] by overstating
the evidence against him . . . these were not the kind of tactics that would inspire an innocent person to confess falsely.”
As a matter of fact, such tactics,
termed “maximization” by social scientists, are definitely instrumental in producing false confessions.Judges desperately need to be educated about false confessions.
In response to this article about a false confession, someone posted: “When I read of cases like this, the other thing I always want to know
is where was the [defendant’s] attorney? The appointment of unqualified defense attorneys, the overwhelming case loads of
public defenders, and the refusal to adequately fund the defense of indigents in capital cases are all continuing scandals.The
only reason they don't shock us is because they're so common. ”
Much truth in that, though even elite defense attorneys have trouble winning
a case with a client who confessed. Juries have trouble accepting that an innocent person would confess, especially
if (as is often the case) judges don’t permit expert testimony on the matter. Send a comment.
Last month the Missouri Supreme Court
freed Sandra Kemper, charged with burning down her house and killing her son.Kemper
confessed after police falsely told her that she had flunked a polygraph.Not
only had the she passed the polygraph, but her confession was contradicted by physical evidence.Kemper was lucky.Her trial resulted in a mis-trial because
of confused rulings by the trial judge. But this tactic – lying to suspects about the evidence against them – is widely used
by police and condoned by the courts.
From AP last week: “The Iraqi government, meanwhile, said its security forces had arrested a key terror suspect, Ahmed
Hussein Dabash Samer al-Battawi, who it said had confessed to beheading hundreds of people.”
Needless to say, I rejoice when a leading terrorist is nabbed.But in
the fight against terrorism, no less than in domestic crime-fighting, we must recognize that a confession does not automatically
equate with guilt.I’m not up on interrogative protocol in Iraq,
but somehow I doubt that security forces are required to issue Miranda warnings and the like – God only knows what they do
to induce confessions when they think they’ve got a bad guy.
Just a few weeks ago, the Supreme Court of Tennessee upheld a murder conviction in a long opinion that
contained this chilling sentence: “We recognize that the prosecution based its case mainly upon [defendant’s] own confession
– a confession that admittedly contained numerous falsehoods.”
Two passionate e-mails from visitors touch
on the theme of plea-bargaining:
1) “Confessional jurisprudence has
been a took in the bag-of-tricks of despots from time immemorial, through the Inquisition, down to the Soviet political-security
police. A variant thereof has made its way here in the form of pressure to enter
2) “I think my stepson may have accepted a California 3-strikes 16 year plea deal on a
false confession. . . . . His confession was videotaped.In the video, the detective seems to acknowledge that my stepson didn't commit a
crime, and then he suggests that probably the best way to get this behind him would be to just write
up a little apology and then this will be resolved, and we can all get on with our lives.”
I’ve explained why the Supreme Court’s
celebrated Miranda decision fails to do much to prevent false confessions.A visitor alerts me to this excellent article which goes further, explaining how Miranda
actually helps cause false confessions.
This article tells about police in Los Angeles allegedly thwarting a potential attack with
eerie overtones of Columbine, arresting two high school students who stockpiled ammunition and bomb-making supplies in their
homes in planning a massacre at their high school.The circumstantial evidence
seems impressive, and the boys confessed.Once upon a time, I’d have assumed
they were guilty.But when the lawyer for one of the boys claims that “authorities
wrung a false confession out of the boys with a ‘good cop, bad cop’ routine,” we ought to pay careful attention.Young people are particularly prone to false confessions, as are people of low intelligence (which seems
to fit these defendants).One can only imagine the lengths police would go to
extract a confession when they sensed a Columbine repeat on their hands.Let’s
hope the jury demands real evidence to corroborate the confessions, rather than assuming them to be true.
Forgive the Latin – the phrase refers to a rule of law prohibiting conviction of a crime based solely on a confession.There must be at least some corroborating
evidence.The rule used to be nearly universal, but many jurisdictions have abandoned
it in part or in whole.Kudos to a court of appeals in Wisconsin
for last week invoking this rule to reverse a drug conviction.In this day and
age, with what we’re learning about false confessions, the rule should be unnecessary – juries and judges should realize that
an uncorroborated confession cannot establish guilt beyond reasonable doubt.
A visitor alerts me to a recent case
involving the marriage of two tragic phenomena: a false accusation and false confession.Under intense interrogation, a man confessed to raping a five-year old fourteen years earlier.There’s a happy ending: the jury in Virginia rejected this paper-thin case against a mild-mannered, slightly
retarded man with no criminal record.As weak as the case was, the jury and defense
attorney (Harry Bosen) deserve kudos – few cases involving confessions result in acquittals.
Recent obituaries of Richard McIlkenny remind us that false confessions are not just an American phenomenon.McIlkenny was one of England’s famous Birmingham Six – wrongly convicted in 1975
of 21 murders caused by the explosion of bombs in two pubs.Four of the Birmingham
Six confessed, following extremely coercive interrogations.They were eventually
exonerated by new evidence and released in 1991. McIlkenny died of cancer on May 21 at the age of 72, having enjoyed
15 years of freedom following 16 years of incarceration for crimes he did not commit.