Last week's Irish Times, reporting on a false confession, notes that the
detective sergeant "cannot explain why [a man] "would make a false admission in custody after he spent an entire day protesting
his innocence." It quotes him as saying: "The only explanation I can give is that this is an unusual man, an extraordinary
man, capable of doing anything."
American law enforcement personnel are not the only ones who don't get
I’ve posted quite a bit about the
failures of prosecutors and judges to protect against false confessions.As a
recent case in California demonstrates, sometimes it’s defense counsel who drop the ball.In this murder case, defense counsel elected not to file a pre-trial motion to suppress the defendant’s
confession.When the taped confession was played for the jury, the judge (on
his own) concluded that the confession was coerced.The court declared a mistrial,
and the court of appeals held that double jeopardy barred a retrial.Kudos to
Earlier this month the Supreme Court
of Mississippi reversed the conviction of Tyler Edmonds, a likely false confessor, based on various procedural and evidentiary
errors. That’s very good news. The bad news is that the court summarily rejected one of Edmonds’ most
important arguments: that the trial court erred in excluding the testimony of his expert witness on false confessions. Given
that the testimony of false confessions experts is critical for overcoming jurors’ intuition that an innocent person wouldn’t
confess, the refusal of some courts to permit such testimony can be devastating.
From an interesting op-ed about the Duke
lacrosse case by Dorothy Rabinowitz in the Wall Street Journal (1/11):
"For all the public shock and fury over his
behavior, there is little that is new or strange about Mr. Nifong. We have seen the likes of this district attorney, uninterested
in proofs of innocence, willing to suppress any he found, many times in the busy army of prosecutors claiming to have found
evidence of rampant child abuse in nursery schools and other child-care centers around the country in the 1980s and throughout
most of the '90s."
What's left is to connect the dots and recognize
similar prosecutorial abuses in false confessions cases.
Last month an Ohio
court of appeals rejected the contention that the defendant received ineffective assistance of counsel when his attorney failed
to retain an expert witness on false confessions. Given the standard for establishing ineffective assistance, the decision
is understandable, but the case serves as reminder to defense counsel that a false confession expert can be indispensable
for educating a jury. Even in jurisdictions which don’t allow such experts to testify, they can serve as valuable consultants,
helping counsel see possible problems with the confession as well as offering suggestions for cross-examining the interrogators
who took it.
A visitor-attorney writes to say that, as preparation for one of his cases, he
studied about false statements by children:“It
is startling to learn how easily children can be made to make outrageous allegations against even their own parents if the
interviewer leads them in that direction.”
Indeed, coached false allegations by children (often in the custody context) and false confessions
by juveniles are serious problems.
Another recently exonerated false
confessor is Mathew Livers, who spent eight months in jail before charges were dropped.In key respects, it’s a typical case – a confession induced by the Reid Technique and believed because it states details
that, allegedly, only the culprit could have known. As is so often the case, such “knowledge” is highly misleading. As the
Omaha World-Herald, reports, interrogators “fed details of the crime to Livers
as he struggled to tell them how he did it.”Also, after the ordeal was over,
“Livers said he had learned the positions of the body, the number of gunshots and other details of the killings from relatives.”
A few events towards the end of 2006
suggest that interrogation practice may be changing for the better – at least beyond America’s borders.In New Zealand, an
initiative is picking up steam to move toward a less confrontational model of interrogation geared toward gathering information
rather than producing quick confessions.And China, of all nations, is moving
towards videotaping entire interrogations.
DA Mike Nifong has now been formally accused of ethics violations in
his handling of the Duke lacrosse case. It's good to see efforts to hold Nifong accountable, but talking out of
turn (which is what he's accused of) is the least of his sins. Prosecuting innocent defendants is the main sin. The
idea that 2007 has arrived and these defendants remain under indictment defies belief.
There are two reasons I keep posting about this case even though
it does not involve a confession. First, false accusations are a cousin of false confessions. Second, prosecutorial
misconduct is an important contributor to the saga of false confessions, and this case presents a clear
example of a prosecutor off the rails.