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Tuesday, October 31, 2006

More Musing On Death

Apropos my recent posts about the best argument against the death penalty, another visitor weighs in:


“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.

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6:45 am est

Monday, October 30, 2006

Justice Delayed

From AP over the weekend:


“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.

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7:11 am est

Friday, October 27, 2006


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. 

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6:18 am est

Tuesday, October 24, 2006

Tortured Logic

gitmo.jpegA 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.”



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11:04 pm est

Jury Service

jury.jpgI 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.  

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10:59 pm est

Monday, October 23, 2006

Dow on Death

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 justice.”


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.  

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6:48 am est

Thursday, October 19, 2006

Good (For the Cause) Grisham

innocentman.jpgGood 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.

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11:08 pm est

Wednesday, October 18, 2006

Civil Justice

police_helmet.jpgLast 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?   

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7:03 am est

Tuesday, October 17, 2006

Death And Innocence

killingwrong.jpgYesterday’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:

Innocence 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.  

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6:48 am est

Monday, October 16, 2006

Remember Duke?

bullhead.jpgIf 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 course.     

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6:26 am est

Friday, October 13, 2006

99% Perspiration

sweat.gifA visitor writes:

"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.

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6:13 am est

Thursday, October 12, 2006

Right Or Wrong

A public 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.

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6:20 am est

Wednesday, October 11, 2006

More Bay State Madness

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."

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6:02 am est

Tuesday, October 10, 2006

Massachusetts Madness

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.

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5:47 am est

Friday, October 6, 2006

More Torture

soviet_prison.jpgThis 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. 

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7:10 am est

Thursday, October 5, 2006

Bad News/Good News in California

The bad news is that Governor Schwarznegger vetoed a bill to require the electronic recording of 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. 

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6:53 am est

Tuesday, October 3, 2006

More Torture

Earlier 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? 

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11:38 pm est

Lousy Details

Last month 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. 

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6:56 am est

Monday, October 2, 2006

Remember Ed Meese?

edmeese.jpgHere’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. 

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6:43 am est

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