Apropos my recent posts about the best argument against the death penalty, another visitor
“I feel, as you do, that the possibility of executing innocent people is the most compelling argument
[against capital punishment]. However, most people I've talked to want to get rid of the death penalty because they feel that
killing is wrong and don't want someone killed in their name. I've come to the conclusion that people who speak out against
the death penalty are right to emphasize that killing is wrong -- they will reach the most people that way.”
I’m not convinced. The proposition that “killing is [always] wrong” is, to say the least, controversial.
For example, all but the purest pacifist acknowledges that some wars are just. Most people accept killing in self-defense.
Whereas no one is comfortable with the idea of innocent people getting executed.
“The district attorney prosecuting three Duke lacrosse players accused of raping a woman
at a team party said during a court hearing Friday that he still hasn't interviewed the accuser about the facts of the case.
. . . Nifong said none of his assistants have discussed the case with the woman either.”
People should not be indicted until there is a reasonable basis for thinking they can
be successfully prosecuted. When the defendants in this case are cleared, people will say the system worked. What will be
forgotten is that innocent men had criminal charges hanging over their heads for many months – a nightmarish experience. This
case illustrates the adage: justice delayed is justice denied.
Last week I was a guest on Ray Hill’s amazing radio show in Texas, which is primarily aimed at Houston’s large prison population. Hill asked how I kept from getting
depressed.“What makes you think I do?” I replied. The false confessions business
can indeed be mighty depressing. One thing that keeps me going is the great progress that’s been made. Thanks to the Central park jogger, John Mark Karr, and numerous other proven false confessions, people have begun
to get it. Today, a false confessor actually has a fighting chance of convincing a jury of his innocence, especially if the
trial court permits testimony from a false confessions expert.
A visitor writes: “I'm sure you have read that the US refuses to turn Luis Posada Carriles over to Cuba (among others) because he might be tortured.Apparently, we reserve the right to be the exclusive torturers in Cuba.”
I spent today on jury duty, if that’s the right description of hanging around for several hours before being sent home.I wanted to serve, but the most dispiriting thing was the officials’ assumption to
the contrary. The officer who supervised us apologized first thing, and explained that he would try to make our experience
“as painless as possible.”The judge who dismissed us told us he had “good news”
– we could go home and not be bothered again for three years. It used to be that jury service was seen as a shining badge
of citizenship. Today, it is regarded as a nuisance. That’s a shame, and perhaps not apt to bring out the best in juries.
Last week I posted about my disagreement with Professor David Dow about whether the risk of executing the innocent
is the most compelling argument against capital punishment. He says no; I say yes. Now a visitor weighs in.
“I agree with Mr. Dow. All executions are wrong and executing the innocent is only the worst possibility--or
rather reality--of our current system. So what happens if we work really hard and come up with a system that at least
appears to eliminate the inequalities and failings of the way we execute people now? If we're primarily worried about
executing innocent people, once the system is perfected we can get on with executions, right? Of course no human system
can be perfect, but executions are wrong and it is the system itself that invites the gruesome efforts to make sure citizens
are killed. Stop all executions. It's the only way to insure
I agree that capital punishment is a bad idea for reasons apart from the risk
of executing the innocent. But in terms of “ensuring justice,” well, nothing can be more unjust than executing the innocent.
That strikes me as about as plain a moral truth as we’re likely to encounter, and the firmest basis for abolishing capital
punishment. The visitor worries that this perspective will lead to embracing capital punishment if/when we provide perfect
safeguards against wrongful execution.But that day will never come because,
as the visitor says, no human system can be perfect.
Good news arrives in the form of John Grisham’s new book, The Innocent Man, a nonfiction account of false confessor Ron Williamson.Insofar as the ultimate antidote for false confessions is public education, a book
by a mega-best-selling author can only help.
Last week brought settlements in lawsuits by false confessors against the law enforcement personnel who coerced their confessions.
Such civil suits are a welcome deterrent against abusive interrogations, but for various reasons they are not enough. It is
crucial that policemen who engage in the kinds of interrogations that produce false confessions should be internally disciplined.
The problem, of course, is that in most cases they are only doing what they are trained to do. (The scandal lies in the training.)
Who’s to discipline them?
Yesterday’s Washington Post featured a provocative op-ed from my old law school classmate David Dow, a professor at University
of Houston Law Center.Subscribers only, so I can’t link to it, but the thrust
of his argument is that death penalty opponents err in emphasizing the risk of convicting the innocent.What follows are the two key paragraphs:
is a distraction because most people on death row are not in fact innocent, and the possibility of executing an innocent man
is not even remotely the best reason for abolishing the death penalty.
"The best reason is that killing is wrong. The second-best
is that the death penalty is unfair: the system favors white skin and devalues dark; it favors the wealthy and penalizes the
poor. The third-best reason is that it tempts the government to cheat, and the government does cheat routinely; police lie
and prosecutors withhold evidence. The fourth is that it is economically unsound; we have failing public schools, citizens
without adequate health care and potholes in our streets, yet we squander a billion dollars carrying out unnecessary executions.”
I partly disagree with my old friend.I think
the risk of executing the innocent is the best reason for opposing the death penalty.
But he’s certainly right that it shouldn’t be the exclusive reason advanced for abolition.
If you saw or heard about last night’s 60 Minutes, you know that the sexual assault case against three Duke lacrosse players
continue to unravel. When this sorry episode is finally concluded, the big question will be why it took the DA’s office so
long to admit that the case was too weak to go forward. To those of us in the false confessions world, this
is nothing new. Prosecutors are invaluable public servants, but too many of them refuse to admit error and change
"I've come to realize that it all starts with the (false) confidence the interviewers have that they
can spot who is the guilty person. . . . This was part of the problem with my cousin's case. He has a medical condition that
causes him to sweat a lot. Unfortunately, even though he was totally cooperative with the police, because he was sweating
nonstop they became very suspicious."
This is exactly right. Interrogators are unconcerned about breaking down innocent
people because they are convinced that they do not interrogate innocent people. Notwithstanding overwhelming evidence to the
contrary, they are convinced that they can figure out who is or isn't innocent based on a pre-interrogation interview, relying
on assorted verbal and non-verbal cues. That wholly unjustified confidence lies at the root of false confessions.
defender brings good news that a case against his client, based on a false confession, was dismissed.He notes that there were “plenty of witnesses who would have shown that my client's statement was false
because he got so much wrong.” But interestingly – and tragically – often even a wildly error-riddled confession sways a jury.
(Earl Washington was convicted even
though his confession got the race of the victim wrong!)That suggests the power of the intuition that an innocent man wouldn’t confess.
Police recently dropped charges of homicide against a Massachusetts man whose confession they realized was false.As the weird case reminds us, there are
countless motivations for false confessions. The false confessor’s attorney explained
that his client confessed because, when speaking to the police, "he thought the best defense was a good offense."
One reason we don't see reform aimed at preventing wrongful convictions is that politicians prefer a macho
posture when it comes to law and order. We're seeing a perfect example in my home state of Massachusetts. The GOP candidate
for governor is attacking her Democratic opponent, Deval Patrick, for having supported (and helped pay for) DNA testing of
a convicted rapist whom many observers believed innocent. The DNA results ended up confirming guilt, but it remains the case
that Patrick deserves praise, not condemnation. Given the staggering number of DNA exonerations in recent years, we need to
be encouraging the testing of convicts who assert their innocence, not scoring cheap political points at the expense of those
who do so.
This article by a human rights activist who spent
12 years in Soviet prisons is must reading for anyone who thinks torture (substitute your favorite euphemism) is an appropriate
weapon in the war on terror.
The bad news is that Governor Schwarznegger vetoed a bill to require the electronic recordingof interrogations of individual suspected of violent crimes.The good news is that he did so on technical grounds, and the bill can probably be rewritten to take
care of the problems he cited.The further good news is that the statement accompanying
his veto said: “Ensuring that all criminal confessions are reliable is a laudable goal. I understand that some recent studies
have shown that false confessions are a growing problem in the United States.”Acknowledging the problem is a crucial step towards solving it.
this week the Washington Post ran a superb editorial by Joseph Marguiles.Marguiles
notes that, during the Korean war, many American pilots captured by North Korea confessed to a plot to bomb
civilian targets. Their false confessions were induced by “touchless torture” – prolonged interrogations, solitary confinement,
being forced to sit or stand in awkward positions for hours, and being taunted and humiliated by guards.If we do these sorts of things to suspected terrorists (never mind even more outrageous tactics
like water-boarding), we will undeniably make some of them talk.But
what makes us think they will tell the truth?
the Pittsburgh Post-Gazette ran an article on Da’Ron Cox, convicted of murder primarily on the strength of a possibly
coerced confession.Cox claimed he shot the victim six times in the chest.In fact, the victim was shot in the back.It’s
high time that law enforcement and jurors grew suspicious of confessions that get fundamental facts wrong.
Here’s an actual quote from then-Attorney General Edwin Meese: “You don’t have many suspects who are innocent of a crime.That’s contradictory.If a person is
innocent of a crime, then he is not a suspect.”
Meese took some heat for that dangerous nonsense, but I fear that the sentiment he expressed is widely shared.