Category Archives: False confessions

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.

Thursday’s Quick Clicks…

Adrian Thomas “Not Guilty” in Second Trial

Adrian Thomas was originally convicted of causing the death of his 4-month old son in 2008.  This was largely a result of his confession under interrogation by the police in Troy, NY.

As previously posted on this blog, Thomas was subjected to a 9 hour highly coercive interrogation by the Troy police:  Blatantly Coerced Confession Results in Conviction Reversal.

Thomas’s confession was even the subject of the documentary film Scenes of a Crime.

In a second trial, just concluded June 11, 2014, Adrian Thomas was found not guilty.

See the Times Union story here.

 

New Scholarship Spotlight: Expert Testimony on Interrogation and False Confession

Innocence Network President Keith Findley and others have posted the above-titled article on SSRN.  Download here.  The abstract states:

This article examines the need and bases for expert testimony on false confessions in criminal cases. Drawing on social science research, the article first briefly assesses the role of false confessions in wrongful convictions, including the nature of the false confession problem and the impact of false confessions in producing false convictions as well as in tainting other evidence and other aspects of police investigations. The article then turns to admissibility standards that govern expert testimony and their application to false confession expert testimony. In particular it sets forth the typical standards used for assessing admissibility of expert evidence and then shows that, when those standards are applied objectively, appropriately framed expert testimony on false confessions should be admissible in most cases. In particular, the article discusses the research on false confessions to highlight the types of facts that experts can provide to juries. The article then addresses the most prominent systemic response to coerced confessions “the Miranda warnings.” The article examines psychological research to demonstrate that Miranda provides very little protection against coerced and false confessions, and, therefore, cannot provide justification for dispensing with expert testimony.

 

 

Wednesday’s Quick Clicks…

DOJ Reverses No-Record Policy for Interrogations….

When I was a federal prosecutor, on one of my first days a lawyer came in with his client to proffer as a possible cooperator.  The lawyer asked if the interview could be recorded.  Since I was new, I asked my supervisor, who said, “No, we never record.” I asked why and was told, “The public wouldn’t understand how complex this is, and the things we have to do sometimes to get the truth.”  Anyway, that policy has now thankfully been reversed.

From the USA Today:

Since the FBI began under President Theodore Roosevelt in 1908, agents have not only shunned the use of tape recorders, they’ve beenprohibited by policy from making audio and video records of statements by criminal suspects without special approval.

Now, after more than a century, the U.S. Department of Justice has quietly reversed that directive by issuing orders May 12 that video recording is presumptively required for interrogations of suspects in custody, with some exceptions.

There was no news release or press conference to announce the radical shift. But a DOJ memorandum — obtained by The Arizona Republic — spells out the changes to begin July 11.

“This policy establishes a presumption that the Federal Bureau of Investigation (FBI), the Drug Enforcement Administration (DEA) the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) and the United States Marshals Service (USMS) will electronically record statements made by individuals in their custody,” says the memo to all federal prosecutors and criminal chiefs from James M. Cole, deputy attorney general.

“This policy also encourages agents and prosecutors to consider electronic recording in investigative or other circumstances where the presumption does not apply,” such as in the questioning of witnesses.

An accompanying message from Monty Wilkinson, director of the Executive Office for United States Attorneys, says the change resulted from lengthy collaborative efforts among DOJ and law enforcement personnel. Media representatives at the Justice Department and FBI did not immediately respond to requests for a more detailed explanation.

Paul Charlton, the former U.S. Attorney for Arizona who was fired by President George W. Bush in part because he challenged the Justice Department’s no-taping policy, welcomed the turnaround.

“It’s a great day,” Charlton said. “Really extraordinary. It’s a step in the right direction for law enforcement.”

“Hallelujah!” agreed Steve Drizin, a clinical professor of law at the Northwestern University School of Law who focuses on false convictions and false confessions. “It’s been a long time coming.”

Nancy Savage, executive director at the Society of former Special Agents of the FBI, said there’s probably no unilateral view from field agents. Although tape recorders sometimes intimidate suspects, she added, the change was probably inevitable because juries have come to expect audio and video evidence.

“This is a radical departure,” Savage said. “They want to see it in living color. … I think it’s probably just a move forward.”

Attorneys, researchers and longtime critics of the old policy say reform brings federal agencies up to modern policing standards, and removes a stigma that has damaged the credibility of America’s criminal justice system. Put simply, in the absence of recorded interviews, defense lawyers have been able to undermine honest testimony by some FBI agents while, in other cases, agents incorrectly remembered, distorted or lied about suspect statements.

The failure to maintain electronic records of interrogations also created gaps in FBI intelligence-gathering, especially terrorism cases. Instead of maintaining an accurate and largely indisputable record, agents on the witness stand for decades have relied on their memories, interpretations and handwritten notes transcribed into a form known as the 302.

Critics have said that flawed system results in botched investigations, lost evidence, unprofessional conduct and false convictions. They noted that the historic DOJ practice was problematic in trials of suspects ranging from terrorist Osama bin Laden to TV star Martha Stewart to Oklahoma City bombing defendant Terry Nichols, and thousands of defendants with no public exposure.

The FBI, considered one of the most advanced investigative agencies in the world, helped pioneer the use of fingerprints, ballistics, electronic wiretaps, psychological profiling and other advanced techniques. Yet, while local police have audio- or video-recorded suspects for decades, some FBI agents and administrators doggedly resisted the use of a device more accurate than the pen.

As recently as 2005, the FBI declined to give The Arizona Republic a copy of its written policy requiring special authorization for recordings, or even to say when and why the rule was created. Bureau assertions that taping of suspects is a logistical problem, or inhibits honest interviews, are generally disputed by street cops, detectives and professors of criminology. In fact, taping of criminal suspects is now mandatory in at least eight states, either by statute or court decrees.

In 2006, The New York Times uncovered another explanation for the DOJ policy, spelled out in an internal FBI memorandum. Basically, it argued that jurors might be offended, possibly to the point of acquitting defendants, if they observed the deceit and psychological trickery legally employed by agents to obtain information and confessions.

Drizin said the FBI has obtained a number of false convictions in homicide cases, particularly on Indian reservations, because suspect interviews were not recorded. Drizin also noted that, in some recent trials, jurors have acquitted defendants because they mistrusted FBI testimony about interrogations that could have been recorded.

Fred Whitehurst, an attorney and ex-FBI agent who turned whistle-blower, said the new policy is “delightful,” adding, “What have we got to hide?”

Mel McDonald, a former U.S. Attorney for Arizona who now does criminal defense work, said FBI interrogations involve one agent taking notes while a second conducts the interview. While 302 records and agent memories may be inaccurate, he said, their testimony trumps a suspect’s recollection. In fact, a defendant who disputes the FBI statements could be charged additionally with lying to federal authorities.

“I’ve had more clients who told me, ‘That’s not what I said.’ ” McDonald noted. “But you’ve got two agents supporting each other. It’s your word against theirs. Who are they (jurors) going to believe?”

McDonald hailed the close of “an insane policy” at DOJ, declaring, “Bravo! It’s about time. It uses science to establish the truth … That’s a no-brainer.”

The DOJ no-taping rule had been partially lifted during recent years for criminal investigations in India.

As an example of the justice benefits, Hammond pointed to the case of Tymond Preston, an 18-year-old Navajo with severe intellectual disabilities who was convicted of child rape. Preston was found guilty, but this month 11 judges on the 9th U.S. Circuit Court of Appeals threw out his confession — which agents had videotaped — and ordered a new trial.

Based on video evidence, the justices unanimously agreed that the confession was involuntary because agents “fed him the details of the crime” and used numerous other coercive tactics.

The new policy contains an exception for public safety situations where a suspect must be questioned instantly to avert an imminent life-threatening danger — the so-called ticking bomb scenario. There also is an exemption for national security intelligence-gathering interviews.

 

 

Four decades later, Iceland confessions defy belief

“The methods of the Icelandic police weren’t unique. They convinced themselves that a group of petty criminals on the fringes of society were a gang of hardened killers. But they didn’t find the evidence to back up their hunch, they were left with just the confessions that were extracted after months of solitude and mental torture.”

That’s the conclusion of a remarkable BBC News multipedia presentation here about how six young people in Iceland confessed to two murders in the mid-’70s despite a total lack of evidence or memory of the crimes.

Friday’s Quick Clicks…

  • Federal Public Defender in Oregon, Steven Wax, takes huge pay cut to be first legal director of Oregon Innocence Project
  • Cameron Todd Willingham, executed by Texas though innocent, will not get posthumous pardon.  Outrageous, but unfortunately consistent with what I’ve seen from the robotic parole and pardon boards around the country.
  • City of Cleveland agrees to compensate exonerated clients of Ohio Innocence Project and The Innocence Project, Thomas Siller and Walter Zimmer.
  • Ohio Innocence Project exoneree Glenn Tinney sues prosecutors for his wrongful conviction.

Monday’s Quick Clicks…

Interrogations may be getting worse instead of better

False confessions are a leading cause of wrongful convictions in the United States, and many of them are obtained by detectives using the pervasive Reid technique of interrogation. But if you think that law-enforcement officials are beginning to realize the inherent flaws of a system that gets people to confess to crimes they didn’t commit, guess again.

In a thought-provoking blog post here, forensic psychologist Karen Franklin says she is actually seeing Reid technique “taken to more and more extreme levels” because of American courts’ “tacit encouragement” of deceit and the watering down of Miranda rights.

Blatantly Coerced Confession Results in Conviction Reversal

Adrian Thomas was convicted of murdering his 4-month old son Matthew.  The conviction relied in part on a confession that Adrian Thomas made during a 9-hour interrogation during which he was lied to and coercively threatened by police investigators.  Despite the fact that other evidence may indicate guilt, there is no ethical, moral, or logical excuse for these police tactics.

This is a significant decision relative to false confessions.

The story from the Albany, NY Times Union follows:

Court of Appeals reverses Adrian Thomas murder conviction

Posted on February 20, 2014 | By Robert Gavin
 In a potentially landmark ruling, the state’s highest court on Thursday unanimously overturned the murder conviction of Adrian Thomas, who was convicted in 2009 of killing his 4-month-old son in Troy, and blocked his statements from any retrial.

Thomas is serving 25 years to life in Auburn Correctional Facility for second-degree murder.

Thursday’s 7-0 decision followed arguments before the Court of Appeals on Jan. 14 during which attorneys for Thomas, 31, questioned the extent that police lied to the defendant while questioning him about the condition of his son. Thomas was interviewed by Troy police for more than nine hours in what his attorney, Jerome K. Frost, said was a cruel hoax.

Police are allowed to lie to suspects, but not to  the extent that a confession is given involuntarily. To secure Thomas’ confession, a Troy police sergeant told Thomas his confession was needed to save the life of his son, Matthew, whose death was a certainty.

On Thursday, Chief Judge Jonathan Lippman wrote that evidence was sufficient to convict Thomas, but that the case must be sent back for retrial because “we conclude that defendant’s inculpating statements were not demonstrably voluntary.”

On Jan. 14, Frost told Court of Appeals that police falsely told his client 67 separate times that they knew the baby’s injuries were accidental — and 140 times that he would not be charged. A key part of Thomas’ appeal was his lawyers’ argument that the trial judge should have allowed an expert on false confessions and police interrogation techniques to testify on his client’s behalf. The judge rejected it.

“The rule is you don’t threaten a person’s vital interests, such as the freedom of his spouse, taking away his children,” Frost had argued.

The Appellate Division of state Supreme Court upheld Thomas’ conviction in 2012

Wednesday’s Quick Clicks…

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  • New York Attorney General Eric Schneiderman plans to unveil legislation Wednesday that would make it easier for people wrongfully convicted of crimes to recover damages from the state.  Schneiderman’s Unjust Imprisonment Act would strip away restrictions in state law that block claims from people who were coerced into false confessions or who pleaded guilty to crimes they did not commit.  Full article here.
  • Pennsylvania Innocence Project hiring an investigator
  • Another chance for the U.S. Supreme Court to say no to prosecutorial misconduct
  • Missouri considers eyewitness id and videotaped interrogations reform
  • Opening of sealed records in Orange County, CA shows improper use of informants

Wednesday’s Quick Clicks…

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  • The unintended consequences of compensating the exonerated
  • Canada’s system for reviewing alleged wrongful convictions “failing miserably”
  • West Virginia University Law Innocence Project pushes interrogation recording bill
  •  What does a record number of U.S. exonerations in 2013 tell us?
  • ESPN video on the wrongful accusation against Richard Jewel for the 1996 Atlanta Olympics bombing
  • Ex-cop exonerated after 20 years in prison awarded $9 million
  • Mexican lawyers turned filmmakers win civil suit against them brought by family of victim in wrongful conviction case they exposed through the documentary Presumed Guilty
  • Planned changes in UK’s compensation laws for exonerees will make it nearly impossible to obtain compensation after wrongful conviction
  • New Zealand Innocence Project re-ignites debate about the need for a wrongful convictions commission
  • Idaho Innocence Project client Sarah Pearce may soon be released—settlement discussions ongoing

Michigan Man Who Falsely Confessed Charged with Lying to Police

This one is mind boggling.

A mentally ill Lansing, Michigan man, Kosgar Lado, under interrogation by police, momentarily confessed to shooting a man.  Even though he subsequently withdrew that statement later in the interrogation, he was charged with the murder.  After further investigation, the police determined that Lado was not the shooter, and the murder charges were dropped.  But now the prosecutor has charged Lado with felony lying to the police!

Read the LSJ.com story here.

And here’s something else about this story.  The police chief commented to the media that officers went “above and beyond” in confirming that Lado was not the shooter.  B-A-L-O-N-E-Y!  The police have an official duty and an ethical obligation to pursue the facts to determine if their suspects are actually innocent.  I would say they were just doing their job.  The police are normally all too willing to determine if a suspect “might be” guilty, and then turn it over to the prosecutor; and false confessions are one of the major ways they do this.  It’s well known that the mentally ill and the mentally deficient are at high risk of making false confessions.

Thanks to WCB follower Jeremy Praay for forwarding this story.

Anthony Graves, Exonerated Death Row Inmate, to File Grievance Against Former Texas Prosecutor Charles Sebesta

AGraves

Yet another case of egregious prosecutorial misconduct.

Anthony Graves was wrongfully convicted and sentenced to death for a gruesome multiple homicide that occurred in Somerville, TX in August of 1992.  He was ultimately exonerated and released from prison in 2010.

The prosecutor in the case, Charles Sebesta, under intense public pressure for a conviction of Graves with a death sentence, ignored all evidence pointing to his innocence,  pressed ahead, and, as the special prosecutor appointed to handle Graves’ retrial said, “Sebesta manufactured evidence, misled jurors and elicited false testimony.”  The special prosecutor laid the blame for Graves’ wrongful conviction squarely at the feet of Sebesta.

Anthony Graves and the Houston law firm of Bob Bennett & Associates will file a grievance with the Texas Bar’s Office of the Chief Disciplinary Counsel seeking sanctions against Sebesta for his central role in Graves’ wrongful conviction and imprisonment.

Read the case statement of facts here – Statement-of-Facts.

You can see the full press packet here.

And read the Texas Monthly story here.

Editorial PS:  I think it’s tragic that Mr. Graves has to pursue redress through the Bar Association.  He should have remedy available through the courts.