A visitor makes good points about the torture debate:
“Thanks to secret courts and rules precluding defendants and their lawyers from having access to the evidence, we'll
never know how many false confessions tactics like ‘long-time standing’ will produce. Our founding fathers brilliantly
protected us against the gross injustices and huge waste of
resources that false confessions produce” by protecting various rights – the right against self-incrimination, the right to
confront one’s accuser, and the right to an attorney.
Much of the debate over the CIA’s powers of interrogation concerns the Geneva Convention. The visitor rightly suggests
that we focus on our Constitution. We don’t owe non-citizens the same rights as citizens, but we do ourselves no favor when
we adopt methods that cause others to confess falsely.
Apropos
my recent post about courts excluding expert witnesses, you shouldn't get the idea that all courts do so. A recent opinion
in New
York allowing in expert testimony about false confessions, is excellent, including this excerpt: “jurors
might be expected to assume that an innocent person will not confess to a crime he did not commit.Therefore, [testimony about] accepted social psychology principles, establishing that the phenomenon of
false confessions does occur, should be admissible to explain behavior that might appear unusual to a lay juror not familiar
with the phenomenon.”
A
visitor proposes that I say a good word about the members of the military who have brought to light the harsh interrogative
practices used on suspected terrorists. He then eloquently does the honors himself, so I’ll quote him directly.
“They risked career and reputation while employed by the military command structure, where obedience to orders
is paramount. That we have a military that can produce individuals capable of defending our country both militarily
and constitutionally is the miracle of our form of government. With few exceptions, our generals and chiefs of staff
have always recognized that might must work for right to preserve our unique democracy. Those who would move us away
from a recognition of civil rights and towards the tactics our enemies embrace dishonor the Constitution and the military,
as Senator McCain and Gen. Colin Powell, among other highly decorated veterans, have noted.”
Last week
I posted about a case involving a polygraph examiner who helped trigger a confession.In that California case, the defendant was not allowed to impeach the polygraph examiner with testimony
by a false confessions expert. The court of appeals upheld this ruling. Earlier this month, a court of appeals in Ohio also upheld the exclusion of expert testimony about false confessions.
This is bad stuff, given the importance of expert witnesses to educate juries about this counterintuitive phenomenon.
Another new
DNA exoneration here (New York Times subscribers only), but after the man spent 16 years in
prison. There’s something else depressing about this case as well. The DNA evidence actually exonerated the defendant at the
time of his trial (excluding him as the donor of semen found in the victim), but the prosecution convinced the jury (based
on zero evidence) that the victim had consensual sex with someone else just before the murder. Even DNA can only go so far
when people are absolutely convinced that a confession must be true.
From
a California court of appeals decision last week, upholding a conviction: "Defendant made damaging admissions to a polygraph
examiner who, although she was unable to administer the polygraph because defendant was medicated, continued to interrogate
him for nearly three hours."
This is what it has come to: the polygraph examiner helps secure a conviction(in a shaky
case -- the jury acquitted on most charges and a previous jury hung) not by administering the test but by playing cop. Polygraphs
were introduced into law enforcement as a means of detecting truth, but they have become a crude weapon for eliciting confessions,
including a good many false confessions.
The only
thing about this article I don’t like is that both judge and prosecutor seem unconvinced about the exonerated man’s innocence – based
solely on a highly unreliable confession contradicted by physical evidence.
The following is the CIA’s description of "long-time standing," one of the interrogation methods that President Bush and his
supporters think essential for use on terrorists: “Prisoners are forced to stand, handcuffed and with their feet shackled to an eye bolt in the floor for more than
40 hours. Exhaustion and sleep deprivation are effective in yielding confessions.”
But are those confessions reliable?Just wondering.
I've often posted about the fact that there are many motivations behind false confessions. My recent post about serial false
confessor Henry Lee Lucas prompted a visitor to recall that Lucas "kept getting the Texas Rangers to feed him information
and porterhouse steaks -- he parlayed the former into just credible enough confessions so he could get them to drive him around
to sites of murders and feed him the latter in order to coax the confessions."
On the Reid Associates website, one
encounters this testimonial from an interrogator:"I have been using the Reid Technique since the training. I have been very successful using this technique. I got a
confession two days after the training. I also got a confession from a long-time sex offender. He had been investigated many
times over a 20 year period -- with no one obtaining a confession until I used the Reid Technique on him."
Notice the implicit assumption here – obtaining a confession is a good thing.For all this officer knows, both confessions he boasts about were false!This
says it all about the Reid technique: it’s all about obtaining confessions.The
technique is undeniably effective. But it’s effective at obtaining confessions from the innocent and guilty alike.
From the beginning, I was concerned that John Mark Karr’s confession might be a setback
for public understanding of false confessions.My concern is exemplified by this
recent headline in the San Francisco Chronicle: “Innocents Often Confess Falsely To Big Crimes: Experts Say They Do It For
Attention Or May Be Mentally Ill.”
Yes, some false confessors crave notoriety and others are mentally ill. But that hardly
begins to exhaust the universe of false confessors. As I continually emphasize, the single biggest cause of false confessions
is certain widespread police interrogation tactics.
Responding to my recent post about Ray Hill, a visitor tells me
that Hill was a law school hero of his, and cites a particular quote from Hill he remembers well: "The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest
is one of the principal characteristics by which we distinguish a free nation from a police state."
In response to my “Time To Cry” post yesterday, a visitor writes: “Respectfully, it's not time to cry. It's time
to appeal.”Two problems. First, the decision to allow or exclude expert testimony
is generally considered within the discretion of a trial judge, and thus not a basis for reversal on appeal. Second, in yesterday’s
post, I omitted part of the lawyer’s message: “Waiting for client to decide if he wants to appeal. . . . [He] faces
7 other indictments, 5 of which could result in a life sentence.” In other words, already convicted for one crime he likely
did not commit, the client may want to cut his losses.
Several months ago an attorney in Texas consulted me about a forthcoming criminal
case. His client, afflicted with mental illness, confessed to multiple acts of arson but had recanted the confession
and there was no physical evidence to support it (despite investigations at many crime scenes). Based on the attorneys’
in-depth description, there was extremely good reason to believe this confession false. I urged him to retain an expert who
could educate the jury about false confessions. He did so. The other day I contacted him to find out how the trial went.
I received this reply:
“Judge refused to let false confession expert testify on theory
it would not aid the jury since it is common knowledge that false confessions can occur. . . . Convicted and sentenced
to 25 years.”
The lawyer
for a teenager charged with murder in Nebraska is trying to get his confession suppressed by pointing out
all the facts the confession got wrong – including “details” like who was present and who did the shooting. This is a feature
of many false confessions: they are error-ridden. What does it tell us that judges and juries nevertheless believe these confessions?
The intuition that an innocent man would not confess is so strong that it trumps the competing notion that someone who committed
a crime ought to be able to get the basic facts right.
“Great take on the nature of DNA evidence. Universally accepted laws governing this type of evidence and the handling
procedures for it are desperately needed. I have followed one case quite closely ( www.mindytran.com) and have found an evolving policy that constantly maintains some
loopholes which could only be for obstructionist purposes. It appears that a level playing field is not what the police
or justice system wants. Hope you keep looking into and pressing this subject.”
I will certainly continue to press the subject of DNA as a forensic tool. DNA testing was a major factor in awakening
people to false confessions (and wrongful convictions more generally) and remains a crucial vehicle for exonerating the falsely
accused. It is infuriating when prosecutors see DNA as a single-edged sword designed to procure convictions but to be ignored
or circumvented when it suggests innocence. Send a comment
This short article in Sunday’s Boston
Globe is worth a look.The article concerns new guidelines for Massachusetts
district attorneys.The guidelines are good, but the best part of the article
is a quote by a defense attorney:
“The toughest thing
of all is changing the mindset of the police. . . . Once they have a suspect, their whole effort is centered on getting as
much evidence against that particular suspect instead of thinking the suspect might be innocent and getting leads on someone
else who may have done it."
“I find it disturbing that American law can be allowed to manipulate DNA evidence to meet whatever goal fits the
present situation or goal.We either believe in DNA as a science to be used
in our courts for evidence, or it [should be] disallowed completely. In the
Ryan Ferguson case (in Missouri), the DNA specifically pointed away from the accuser who was obviously a confused
self-confessor, and away from Ryan. Still, Ryan Ferguson is spending 40 years in prison. The FBI
was involved in this case with regard to the DNA, yet Ryan was still brought up on charges, tried and convicted with the DA
attempting to discredit any DNA testing. John Karr was not even charged with a crime [because of] DNA alone. Both
DNAs point to someone else. One was convicted, the other not even charged.We either use it, or we don't. There should never be an ‘in between’ with this science, to flow one way or the
other to close a case or use it as a trusted evidentiary science.”
I’m not sure if the visitor
is suggesting that all criminal justice policies should be uniform across the states. One advantage of having 50 separate
justice systems is that different approaches can be tried and we can see which work best.But in the case of DNA, all states use it and they should – it’s considered an invaluable
forensics tool by virtually all experts. However, some prosecutors use it selectively, and I completely agree with the visitor
if he is saying that prosecutors should not pick and choose when they trust DNA – hailing it is irrefutable science when it
suggests guilt, but claiming it is unreliable when it supports innocence.
I recently had the pleasure of meeting Ray Hill, somewhat of a cult figure in Houston. Hill is a former Supreme Court litigant (winning
an important 1st Amendment case), gay rights activist, playwright, and host of a radio show devoted to prison life that’s
relished by prisoners in the Houston area.A long-time student of Texas justice,
he regaled me with tales, such as that of Henry Lee Lucas, a serial false confessor (he confessed to hundreds of murders,
most of which he could not have committed) who died on death row. Lucas was sentenced to death for a murder in Texas that he confessed to but that took place while he was apparently in Florida. Henry Lee Lucas, a crazed man, was an improbable martyr in the cause of reforming
the criminal justice system. Ray Hill, a delightful character, is a hero in that same cause.
It’s often remarked that blatantly coercive interrogation tactics (think “third
degree”) are a thing of the past.Not entirely.Last week a jury in Maryland awarded a man $6.4 million because of the brutal treatment that produced a false
confession and landed him in jail. (He served 8 months before DNA testing exonerated him.)The man was interrogated over a 38 hour period during which he slept 55 minutes.
“[Larry Tice and I] have something in common, we both have an innocent son in prison in Virginia
because of a false confession. In the Karr case it was said that there had to be supportive evidence to support his statements. There
was no supportive evidence in my son's confession statement and it was accepted anyway.”
It’s clear that the DA’s decision not to prosecute John Karr is leaving a lot of people scratching their heads – not
because the decision was incorrect (it was clearly correct), but because they or their loved ones were not treated the same.
Too many prosecutors value a false confession more than hard evidence.
“I
applaud the actions of the DA in not pursuing the case against Karr. I only wish that the justice system in NorfolkVirginia
had even an iota of the integrity that they have in Colorado.
I am addressing the case of The Norfolk 4. Please see www.norfolk4.com for information on the case. In Norfolk,
4 innocent men were sent to prison, three of them for 2 life terms without parole for a rape and murder they did not commit.
The actual perpetrator is in prison for the crime after he confessed and admitted that he acted alone. The 4 innocent men
and the one guilty man are all proven by DNA, yet the great Commonwealth
of Virginia makes no mistakes and therefore 4 innocent men went to prison
because of confessions coerced by a police detective with a history of coercion. So my question is: why does DNA count so
much in other states and other cases yet it is ignored in the case of the Norfolk
4?
Why
do I ask this?Because one of the Norfolk
4 is my son, Derek Tice.”
The following is the CIA’s description of "long-time standing," one of the interrogation methods that President Bush and his
supporters think essential for use on terrorists
I've often posted about the fact that there are many motivations behind false confessions. My recent post about serial false
confessor Henry Lee Lucas prompted a visitor to recall that Lucas "kept getting the Texas Rangers to feed him information
and porterhouse steaks -- he parlayed the former into just credible enough confessions so he could get them to drive him around
to sites of murders and feed him the latter in order to coax the confessions." 
Several months ago an attorney in Texas consulted me about a forthcoming criminal
case. His client, afflicted with mental illness, confessed to multiple acts of arson but had recanted the confession
and there was no physical evidence to support it (despite investigations at many crime scenes). Based on the attorneys’
in-depth description, there was extremely good reason to believe this confession false. I urged him to retain an expert who
could educate the jury about false confessions. He did so. The other day I contacted him to find out how the trial went.
I received this reply: 
I recently had the pleasure of meeting Ray Hill, somewhat of a cult figure in