Category Archives: False confessions

New Scholarship Spotlight: Reducing Guilty Pleas Through Exoneree Compensations

Professors Murat Mungan and Jonathan Klick have posted the above-titled article on SSRN.  Download here.  The abstract states:

A great concern with plea-bargains is that they may induce innocent individuals to plead guilty to crimes they have not committed. In this article, we identify schemes that reduce the number of innocent-pleas without affecting guilty individuals’ plea-bargain incentives. Large compensations for exonerees reduce expected costs associated with wrongful determinations of guilt in trial and thereby reduce the number of innocent-pleas. Any distortions in guilty individuals’ incentives to take plea bargains caused by these compensations can be off-set by a small increase in the discounts offered for pleading guilty. Although there are many statutory reform proposals for increasing exoneration compensations, no one has yet noted this desirable separating effect of exoneree compensations. We argue that such reforms are likely to achieve this result without causing deterrence losses.

The Innocent on Death Row – NY Times Editorial

We (Martin Yant) recently reported here on the WCB about the North Carolina exoneration of death row inmate Henry Lee McCollum.  McCollum’s exoneration has prompted a highly compelling editorial by the The NY Times editorial board.  That editorial with active links appears here.  It appears below without embedded links (bolding emphasis is mine):

The Innocent on Death Row, by THE (NY Times) EDITORIAL BOARD, September 3, 2014

The exoneration of two North Carolina men who spent 30 years in prison — one on death row — provides a textbook example of so much that is broken in the American justice system. And it is further evidence (as though more were needed) that the death penalty is irretrievably flawed as well as immoral.

In late September 1983, an 11-year-old girl named Sabrina Buie was found murdered in a soybean field in Robeson County. She had been raped, beaten with sticks and suffocated with her own underwear.

Within days, police got confessions from two local teenagers, Henry Lee McCollum, 19 at the time, and his half brother, Leon Brown, who was 15. Both were convicted and sentenced to death.

The crime was so horrific that it has echoed for decades through North Carolina politics and beyond. In 1994, after Justice Harry Blackmun of the Supreme Court announced that he opposed capital punishment in all circumstances, Justice Antonin Scalia cited the Buie murder as a case where it was clearly warranted. “How enviable a quiet death by lethal injection compared with that!” he wrote.

On Tuesday, a state judge ordered both men freed after multiple pieces of evidence, some of which had never been turned over to defense lawyers, proved that neither Mr. McCollum nor Mr. Brown was responsible for the crime. DNA taken from a cigarette found at the crime scene matched a different man, Roscoe Artis, who is already serving life in prison for a similar murder committed just weeks after Sabrina Buie’s killing.

Virtually everything about the arrests, confessions, trial and convictions of Mr. McCollum and Mr. Brown was polluted by official error and misconduct.

No physical evidence linked either man to the crime, so their false confessions, given under duress, were the heart of the case the prosecutors mounted against them. Both men’s confessions were handwritten by police after hours of intense questioning without a lawyer or parent present. Neither was recorded, and both men have maintained their innocence ever since.

Equally disturbing, Mr. Artis was a suspect from the start. Three days before the murder trial began, police requested that a fingerprint from the crime scene be tested for a match with Mr. Artis, who had a long history of sexual assaults against women. The test was never done, and prosecutors never revealed the request to the defense.

It was not until 2011 that the North Carolina Innocence Inquiry Commission, an independent state agency that had taken on the men’s case, discovered the old fingerprint request. The commission also found that multiple statements in the two confessions were inconsistent with each other and with the facts of the crime. In July, the commission finally got the full case file and matched the DNA to Mr. Artis.

None of these pieces mattered to the prosecution in 1984. The prosecutor on the case, Joe Freeman Britt, was listed in the Guinness Book of World Records as the “deadliest prosecutor” for the nearly 50 death sentences he won during his tenure. Almost all have since been overturned.

Mr. McCollum and Mr. Brown, who are now middle-aged, have a hard road ahead. In addition to the difficulties of adapting to life after three decades behind bars, both are intellectually disabled. (Since their conviction, the Supreme Court has banned the death penalty for both juveniles and those with intellectual disabilities.)

Cases of capital prosecutions based on flimsy evidence or marred by prosecutorial misconduct, not to mention racial bias, are distressingly common. Yet, even as death-penalty supporters insist that only guilty people are sent to their death, it is now clear that Justice Scalia was prepared 20 years ago to allow the execution of a man who, it turns out, was innocent.

How many more remain on death row today? Can the American people be assured that none will be killed by the state? For this reason alone, the death penalty must end.

A version of this editorial appears in print on September 4, 2014, on page A26 of the New York edition with the headline: The Innocent on Death Row.

Scalia once touted exoneree’s death sentence as example of capital punishment’s worth

“A North Carolina death row inmate exonerated by DNA evidence on Tuesday was once held up by Supreme Court Justice Antonin Scalia as an example of someone who deserved to die,” the Huffington Post reports. You can read the details here.

Victory in Michigan for Two Innocence Network Member Organizations…

From an email by Josh Tepfer (with permission):

I’m delighted to share the news that in a 23-page decision issued today, Judge Janet Allen of the Kalkaska Circuit Court vacated the conviction of Jamie Lee Peterson and ordered a new trial. Mr. Peterson has been incarcerated for over 17 years. The post-conviction work that led to this new trial was a joint effort of students and attorneys from the Michigan Innocence Clinic at the University of Michigan Law School (attorney team led by Caitlin Plummer and Dave Moran) and the Center on Wrongful Convictions at Northwestern University School of Law (attorney team of me and Steve Drizin).  The opinion is attached.

Mr. Peterson was convicted of the October 1996 rape and murder of 69-year-old Geraldine Montgomery in her own home. The heinous nature of the crime shocked this small, sleepy town in northwest Michigan. Ms. Montgomery, who lived alone and was a pillar of the community, was found asphyxiated in the trunk of her own car with the engine running and the garage closed. The police immediately concluded that she was a victim of sexual assault given that her vaginal swab showed male semen. On her shirt, moreover, was a stain of her saliva mixed with male seminal DNA.

The crime was unsolved for four months when Jamie Lee Peterson made a detailed confession during a mostly audio recorded confession. Peterson, who has organic brain damage and mental illness, confessed to committing the crime himself. After the confession, the rudimentary DNA testing available was conducted on the vaginal swab. That testing excluded Mr. Peterson as the source of the male DNA. DNA testing on the shirt stain, however, was unable to be conducted given the state of the technology at the time. After the testing, the police re-interrogated Mr. Peterson, explaining to him that the DNA testing proved it was him but also showed that he was lying about having no accomplices. Over the next several days, Mr. Peterson confessed again, recanted, and then confessed again and again and again. In total, he confessed roughly six or seven times to police. During these confessions, he named several accomplices, but further DNA testing and police investigation cleared all of these named accomplices. The audiotapes also reveal Peterson failing to get basic, uncontroversial facts about the crime scene correct unless he was specifically told the details by the police. For example, Peterson continually got wrong the clothes the victim was wearing, or where the rape occurred. Only after being provided the correct information would Peterson include this information within his subsequent confessions.

 Ultimately, the State concluded that they believed Peterson guilty and that he was merely unwilling to name his accomplice. They prosecuted him under the great unindicted co-ejaculator theory. They argued that Peterson was likely responsible for the untestable stain on the victim’s shirt, and his unknown accomplice was responsible for the vaginal swab. Peterson was convicted in 1998.

Over the next decade and a half, all of Peterson’s appeals failed. Moreover, earlier post-conviction requests for DNA testing using updated technology that could identify the source of the male DNA in the vaginal swab were blocked by the prosecution and refused by the courts. This was perhaps the oddest fact about the case – the State theorized that there was an unknown accomplice who was responsible for the vaginal swab, but they refused to try and identify this person.

In May 2013, after retaining Mr. Peterson, attorneys from the Michigan Innocence Clinic and the Center on Wrongful Convictions met with the Michigan State Police and the current Kalkaska County prosecutor and persuaded a new regime to conduct the requested DNA testing. This DNA testing resulted in identifying the source of the male DNA in the vaginal swab. Further, technology had advanced to the point where testing could now be conducted on the shirt stain. That testing showed that the male on that shirt stain was the same person as in the vaginal swab. The DNA did not support a theory of two perpetrators. A full scale re-investigation by the Michigan State Police resulted in the arrest of this man – Jason Ryan – earlier this year. No credible evidence has been established to indicate that Ryan and Peterson had any association. Ryan has pleaded not guilty and is awaiting trial.

Despite this new evidence and the Ryan arrest, the prosecutors have still objected to any relief for Mr. Peterson. After extensive briefing and an oral argument last month, the court issued this opinion today. It is a glorious opinion with some great language on how to analyze claims prospectively and on false confessions.   

Many students contributed to this effort from two different big ten schools! It was a great collaborative clinical experience and we are delighted for Mr. Peterson. Great day! I want to send a shoot out to Mr. Peterson’s trial and appellate attorneys, Robert Carey and Al Millstein. They fought an uphill battle for many years in this small community but never gave up believing in Mr. Peterson.

Joshua A. Tepfer

Clinical Assistant Professor

Center on Wrongful Convictions of Youth

Northwestern University School of Law

Tuesday’s Quick Clicks…

New Scholarship Spotlight: In Defense of American Criminal Justice

The Honorable J. Harvie Wilkinson III of the U.S. Court of Appeals for the Fourth Circuit has published the above-titled article in the Vanderbilt Law Review.  It argues that the system is not nearly as broken as many critics allege, some convictions of innocents is part of a necessary trade-off, and that the reforms pushed by the Innocence Movement often go to far.

Have a read here.

Camera Perspectives Important in Videotaped Interrogations

Op-ed from the NYTimes:

By Jennifer Mnookin, law professor at UCLA:

LOS ANGELES — LAST week the F.B.I., the Drug Enforcement Administration and other federal law enforcement agencies instituted a policy of recording interrogations of criminal suspects held in custody. Only a minority of states and local governments have a similar requirement, but the new rule, which applies to nearly every federal interrogation, will most likely spur more jurisdictions to follow suit. It’s not far-fetched to think that such recordings may soon become standard police practice nationwide.

Supporters of the practice present recordings as a solution for a host of problems, from police misconduct to false confessions. But while there are lots of good reasons to require them, they are hardly a panacea; in fact, the very same qualities that make them useful — their seeming vividness and objectivity — also risk making them misleading, and possibly even an inadvertent tool for injustice.

Support for electronic recording has been accelerating in recent years, and its backers now come from all sides of the criminal-justice process. Though some in law enforcement remain critical of the idea, firsthand experience with recording tends to turn law enforcers into supporters — it eliminates uncertainty about police conduct and lets investigators focus on the interrogation rather than taking detailed notes.

Likewise, criminal prosecutors find that when a defendant confesses or provides incriminating information, the video offers vivid and powerful evidence. At the same time, it aids defendants because the very presence of the camera is likely to reduce the use of coercive or unfair tactics in interrogation, and documents illegitimate behavior if and when it does occur. And a recording provides judges and juries with information about what took place in a more objective form.

Given this chorus of support, what’s not to like?

The short answer is that, according to recent research, interrogation recording may in fact be too vivid and persuasive. Even seemingly neutral recordings still require interpretation. As advertisers and Hollywood directors know well, camera angles, close-ups, lenses and dozens of other techniques shape our perception of what we see without our being aware of it.

In a series of experiments led by the psychologist G. Daniel Lassiter of Ohio University, mock juries were shown exactly the same interrogation, but some saw only the defendant, while others had a wider-angle view that included the interrogator. When the interrogator isn’t shown on camera, jurors are significantly less likely to find an interrogation coercive, and more likely to believe in the truth and accuracy of the confession that they hear — even when the interrogator explicitly threatens the defendant.

Professor Lassiter and other psychologists have consistently shown this “camera perspective bias” across a substantial series of experiments, finding in one study that even professionals like judges and police interrogators are not immune.

Experiments like these feed a larger concern: whether the police, prosecutors, defense lawyers, judges or jurors can actually tell the difference between true and false confessions, even with the more complete record of interactions that recorded interrogations provide.

We know that false confessions really do occur, even in very serious crimes, and probably more frequently than most people expect. But why? We know something about certain interrogation techniques, as well as defendant vulnerabilities like youth or mental disability, that may create heightened risks for false confessions. But we don’t yet know enough about the psychology of false confessions to be able to accurately “diagnose” the reliability of a given confession just by watching it.

And yet by making confessions so vivid to juries, recording could paper over such complications, and sometimes even make the problem worse. The emotional impact of a suspect declaring his guilt out loud, on video, is powerful and hard to dislodge, even if the defense attorney points out reasons to doubt its accuracy.

This doesn’t mean that mandating recording of interrogations is a bad idea. Routine recording will serve to make them fairer and less coercive — and this might well help reduce the number of false confessions.

But we need to recognize that by itself, video recording cannot stop all the problems with interrogations, prevent false confessions or guarantee that we will spot them when they do occur.

We are still a long way from fully understanding why the innocent confess during interrogations, and why we believe them when they do — regardless of what we see on camera.