Category Archives: False confessions

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.

Tuesday’s Quick Clicks…

In Netherlands, New Evidence Shows Innocence in Hilversum Showbiz Murder case

Submitted by the Knoops Innocence Project, Professor dr. G.G.J. Knoops, lead counsel, Carry Knoops-Hamburger, co-counsel, Lizette Vosman, co-counsel, Trix Vahl, paralegal:

On Tuesday July 8, 2014, the defense team of Martien Hunnik, as well as the attorney general of the Supreme Court of the Netherlands, filed a request for review of his criminal case. Hunnik has been convicted in 1984 for second degree murder on Bart van der Laar, a then famous music producer, in 1981 in Hilversum. Both requests are based on the results of a new criminal investigation into the case, which was initiated after the Knoops’ Innocence Project had filed a request thereto on March 19, 2013. The Knoops’ Innocence Project has been investigating the case of Mr. Hunnik since 2011.

On the basis of Article 461 of the Dutch Code of Criminal Procedure the defense may request the attorney general to conduct further research into a case, if there are indications that a novum exists. A criminal case can be reopened in the Netherlands on the basis of a novum, which is a new “finding” that was not known to the judge, and this finding must be of such a nature, that if the judge was aware thereof, it would have most likely resulted in a different verdict. Thus, under the new Article 461 of the Dutch Code of Criminal Procedure, which is operative since October 1, 2012, the defense may request for further research if there are indications that a novum exists, which may eventually lead to a request for review on the basis of a novum and consequently to the reopening of a criminal case.

The defense request for further research of March 19, 2013, was based on several indications that demonstrated that Mr. Hunnik could not have committed the crime in 1981. The Board of Procurators General, the highest authority in the Dutch Public Prosecution Service, supported this defense request with its own request for further investigation, because the Board also doubted the guilt of Mr. Hunnik.

Under the leadership of Attorney General D.J.C. Aben of the Supreme Court of the Netherlands, a new criminal investigation has been conducted from September 2013 till May 2014. As part of this investigation, many witnesses were heard and new tactical-technical research has been conducted. This led the Public Prosecutor to believe that Mr. Hunnik could not have committed the crime, but that others have done so.

On July 2, 2014, the results of the new criminal investigation have been revealed to the defense and Mr. Hunnik, which led the defense to submit a request for review to the Supreme Court of the Netherlands.

The request for review is based on three nova, which imply that Mr. Hunnik would not have been convicted if the judge was aware of these nova. Particularly the fact that a scenario arose with a different perpetrators, while excluding Mr. Hunnik as the perpetrator, was decisive. This scenario was already known to the Public Prosecutor in 2004, but only revealed to Mr. Hunnik and his defense team in 2012, when the Knoops’ Innocence Project was investigating the case.

Mr. Hunnik was very relieved when he was informed of the results of the new investigation, and the fact that also the Attorney General petitioned to reopen his case. Mr. Hunnik has been fighting for justice for over 30 years. He recanted his initial (false!) confession of January 18, 1983 already in April 1983; yet, the judges did not accept this. He has maintained his innocence since then. Unfortunately, he was not believed by the judges and was convicted primarily on the basisof his false confession. The new criminal investigation into the case demonstrated that virtually all elements of his confession, were already publicly known due to outlets in the media.

This request for review is unique, not only because it is the oldest review case in the Netherlands (33 years), but also because the new investigation case identified other perpetrators; yet, the court no longer has jurisdiction over the crime, due to the Statute of Limitations (since 1999).

Preventing false confessions by juveniles: new study highlighting the need for police training

New study by Todd Warner of University of Virginia highlights the risk of false confessions by juveniles during police interrogations and the need for police to be trained in adolescent development to prevent this. Read more about the study here. Read also Lauren Kirchner’s write-up about this here.