Wednesday’s Quick Clicks…

Jack McCullough Exoneration. Case Not “Yet” Closed.

We have previously written about the Jack McCullough case here, here, and here.

Jack was convicted in 2012 of the 1957 abduction and murder of 7-year-old Maria Ridulph in Sycamore, IL. Jack was a neighbor of the Ridulph’s at the time. This used to be called the coldest case ever “solved.”

The current DeKalb County prosecutor, Richard Schmack, felt ethically compelled to review the case, and determined that evidence proved Jack could not be guilty.  Consequently, he filed a motion with the court to dismiss charges. Just this past April, Judge William Brady did dismiss the charges, but declined to do so “with prejudice.” This now leaves Jack vulnerable to being re-charged and re-tried. Maria Ridulph’s brother is continuing to seek appointment of a special prosecutor to re-open the case against Jack.

Now, a witness for the prosecution, who was incentivized to testify at Jack’s trial, has come forward to claim the the state did not live up to its part of the deal they made with him.

Well, if you’ve ever doubted the politically-driven and self-serving nature of the justice system, please see the recent CNN story HERE.

What If America Approached Crime Like Treating a Disease?

The case for an outcomes-based approach to criminal-justice reform

From: The Atlantic

What if doctors prescribed the same treatment to every patient with a particular symptom, without trying to diagnose its cause? Or if they offered powerful medications, without bothering to figure out if they worked?

That, Marc Levin argues, is how America’s criminal-justice system presently operates. “We’re still basing the sanction on the specific offense they’ve committed,” Levin said, without attempting to figure out its underlying causes. “We need to diagnose someone as soon as they’re arrested, and figure out what would reduce their criminogenic needs.”

That argument is part of a broader push by Levin, and like-minded reformers, to overhaul the criminal-justice system with evidence-based programs. Levin is the director of the Center for Effective Justice at the Texas Public Policy Foundation, a free-enterprise oriented think tank. He made the comments on Monday at a panel at the Aspen Ideas Festival, which is co-hosted by the Aspen Institute and The Atlantic.

“Releasing people directly from solitary confinement to the public which we know happens thousands of times a year? It’s illogical,” Levin said. Those inmates aren’t equipped to reintegrate directly into society, and face high recidivism rates. “By and large, we ought to be focusing on getting results rather than getting even.”

There are, however, significant impediments to pursuing such an approach. For one thing, there’s no shortage of groups that benefit from the status quo. “Yes, you have privately operated prisons,” said Glenn Loury, a professor of social science and economics at Brown University. “But you also have corrections-officers unions … Self-interested behavior in the system is not limited to profit.”

“We have perverse incentives in what we call the criminal-justice system,” Levin added. He pointed to police officers, rewarded more for making arrests to solve the crimes that have already occurred, than to prevent those crimes from taking place, or to prosecutors rewarded for securing convictions, and not for reintegrating offenders into society.

Then there are the steep costs of rehabilitation programs, where a day of treatment can be more expensive than a day of prison. “The key is getting way from the obsession with the duration and focusing on the quality of the time,” Levin argued. Perhaps offering treatment for substance abuse or mental health problems costs more per day, “but overall, in the long-term, the person would be kept there for a much shorter period and so ultimately you would be saving money.”

Skeptics of data-driven approaches also point to cases in which models produce disparate outcomes, yielding harsher sentences for members of ethnic or racial minority groups. Levin acknowledged the concern, but argued that “tweaks and adjustments to ensure they don’t have a disparate impact” could solve the challenges of actuarial modeling.

The proliferation of data gathering and of local reform efforts have, Levin argued, started to acquire a momentum of their own. “It seems like there’s just a culture at the state level,” he said, as governments commission studies and issue reports. “When you build a budget around controlling the growth of a prison population, even though there’s people who attempt to derail it, almost always it ends up going through.”

Despite that optimism, shifting to an outcomes-based approach, though, still faces one key hurdle. It will—invariably—lead to the release of some individuals who reoffend. When that happens, there’s often a political backlash, as voters seek an infallible approach.

“We should tell the public: Nothing’s perfect,” Loury said. “We’re going to do better here than we would do if there weren’t this intervention.” He argued that leveling with the public could help change expectations, creating the political space for experimentation and reform. Public officials, Loury said, need to tell the public that no matter how effective a particular change, it’s “going to leave us with some risk; there is no zero-risk environment.”

But not all of those who have tried that in practice are convinced it’ll prove politically viable. “I would love to agree with you,” said Roberto Villasenor, a retired chief of the Tuscon police department. “Unfortunately my experience has been that that just doesn’t happen and doesn’t work.”

Thursday’s Quick Clicks…

Wednesday’s Quick Clicks…

Tuesday’s Quick Clicks…

Monday’s Quick Clicks…

Confessions of an Ex-Prosecutor

“Culture and law conspire to make prosecutors hostile to constitutional rights.”

Ken White is a former prosecutor who now practices criminal defense law. Consequently, he has unique insight into what causes prosecutors to act the way they do. As we have posited on this blog before, it’s not because prosecutors are inherently unethical or evil people (although the position does tend to attract people who seek power). It is the inescapable end result of how the justice system is set up and administered, and how the motivational incentives of the position are structured.

Mr. White has authored an article titled “Confessions of an Ex-Prosecutor,” and you can see that article by Ken White on reason.com here.

This quote from the early section of the article:

“…. nobody taught me to think that way, and nobody had to. I learned it by watching how the system ground up clients indifferently and mercilessly. I learned it by watching prosecutors make the sorts of arguments and decisions I had made, and seeing how they actually impacted human lives. I learned it by watching prosecutorial suspicion—and even paranoia—from the wrong end. I learned it by watching how the system crushed indigent clients, and by how it could destroy the lives of even wealthy clients with minimal effort or cause.”

Until the day that prosecutors are rendered subject to meaningful oversight and sanctions for wrongdoing, and until the day that state-level prosecutors are no longer politically elected, we’re going to be stuck with this problem.

The Proven Way to Keep More Innocent Teens From Confessing to Murder (and Why Police Won’t Adopt It)

From: Takepart

Standard interrogation, which includes badgering and lying to suspects until they confess, is psychological torture for the young and mentally frail. Now there’s a better way.

Davontae Sanford was dressed in his pajamas, standing on the front porch of his house on Detroit’s east side on a September night in 2007, when he saw police searching the street with flashlights. A few hours earlier, two blocks away on Runyon Street, four people had been shot to death, and the cops were searching the neighborhood for clues. Sanford asked the officers what was going on; a few minutes later he was telling them he might know who the killers were.

Sanford, who was 14 and attended the special education class at his high school, was taken to the station and questioned for several hours without a parent or a lawyer present. (The officers told him no lawyer would come to advise him in the middle of the night.) Sanford spun some stories that made little sense and was released. But the next night, detectives brought him in again.

“It was very, very tense,” Sanford said by phone on Wednesday.

This time, interrogators said they knew he was guilty and had evidence to prove it—blood on his shoes. They told him he could go home to his mother if he would simply admit to the murders. Police and Sanford’s lawyers disagree on what happened in the interrogation room that night, and there’s no recording of the session. But he recalled this week that “they played good cop, bad cop. Some of them talked crazy.” And a few weeks after the interrogation he told a court psychologist—who was to determine if the boy was competent to waive his Miranda rights—“I kept saying, ‘I don’t know what happened.’ They said, ‘Tell me something.’ ” So he started making up stories. “I didn’t know what was going on,” he told the court psychologist. “I didn’t know I was making statements.” But police presented him with a confession and told him, “Sign it, sign it.” Finally Sanford did as he was told.

Most of the details in the signed confession contradicted the evidence, and there was no blood on his shoes—the cops had invented that. Nevertheless, the public defender assigned to Sanford’s case did not challenge the confession and instead encouraged him to plead guilty to second-degree murder. Sanford was sentenced to 37 to 90 years in prison.

Two weeks later, a hit man named Vincent Smothers was arrested for a different killing and told police that he and another man—not Sanford—had committed the Runyon Street murders as well. His confession, unlike the teenager’s, precisely matched the facts of the crime.

For the next eight years, a team of public interest lawyers worked to get Sanford out of prison. On June 7, 2016, Sanford’s conviction was vacated, and he finally went home to his mother.

To most of us, it’s inconceivable that someone would admit to a crime he hadn’t committed. But since 1989, two hundred twenty-eight people in the United States who made confessions have been exonerated, according to the University of Michigan Law School’s National Registry of Exonerations. Sanford was No. 228. In addition to those who were vindicated, scholars have identified four men who confessed but were most likely innocent and were executed. (The actual number of false confessions is much higher, as exoneration is extraordinarily difficult, even when DNA exculpates a false confessor.)

“The American style of interrogation is guilt-presumptive, accusatory, and confrontational,” said Richard Leo, a professor in law and social psychology at the University of San Francisco and an expert on false confession. The ploys that were used on Davontae Sanford, and remain routine practice, can be so manipulative and intimidating, Leo said, that they sometimes compel an innocent person to admit to something he hasn’t done.

Leo and other experts say that there’s a better way. Nearly 25 years ago, a team of British detectives and academics developed a new method of interviewing suspects. Officers trained in this method don’t insist on the suspect’s guilt; they don’t offer false promises. Instead, they encourage the suspect to tell his whole story, without interruption. Then they ask open-ended follow-up questions. They are looking not for a confession but for the truth.

The method is called PEACE (an acronym for the five steps involved—Planning and Preparation, Engage and Explain, Account, Closure, Evaluation), and it’s standard protocol in England and Wales, Australia, New Zealand, Norway, and on the Canadian island of Newfoundland. A review of scholarly research published last year in the Annual Review of Law and Social Science concludes that PEACE elicits far fewer false confessions than the accusatory approach and significantly improves the rate of true confessions.

Sgt. Det. John Brown, a 22-year veteran of the Boston Police Department, has conducted hundreds of interviews during his years in the gang and homicide units. Even apart from the question of false confession, he said that in his experience, the prevailing mode of conducting interrogations doesn’t fit police needs: “I don’t think it works for us if we want to get these cases done the right way. If you talk to people the right way and you use the techniques that are incorporated in PEACE, I think you’ll get what you are looking for.”

So why do police departments in the United States cling to the old ways?

In the early days of uniformed policing, the usual method of extracting a confession from a suspected criminal was to beat it out of him. But by the 1930s public criticism of the third degree led to a search for more enlightened procedures. The first police interrogation training manual, written in 1940 by a Berkeley, California, police lieutenant named W.R. Kidd, emphasized psychological strategies rather than brutality to persuade an uncooperative suspect. “We trap him into a position from which he sees no way out,” Kidd wrote. “He talks.”

Kidd’s approach, and many of the maneuvers he described, were reworked in a series of handbooks by Fred Inbau, a lawyer and early devotee of the polygraph, and a former Chicago cop named John Reid. Today, the interrogation manual they wrote with Joseph P. Buckley and Brian C. Jayne, Criminal Interrogation and Confessions, is the leading text in the field, and nearly every detective in the United States practices some version of what’s known as the Reid Technique.

The technique begins with the “behavior analysis interview,” a diagnostic tool that is supposed to separate the liars from the truth tellers, the guilty from the innocent. Liars will betray themselves, the theory goes, through verbal cues (qualifying phrases, mumbling, delayed responses) and nonverbal behaviors (lack of eye contact, brushing lint from clothing, inspecting fingernails).

While fidgeting may suggest nervousness, it’s impossible to say for sure that it indicates deception. Common sense suggests that anyone being grilled about a crime, innocent or guilty, might reasonably show signs of anxiety. The firm Reid opened to train police and sell his books, John E. Reid and Associates, cites a 2014 experiment in which expert government investigators achieved 98 percent accuracy in detecting lies. But the study was not designed to test the efficacy of the behavioral analysis interview or the diagnostic value of verbal and nonverbal cues, and the study’s lead author, Timothy Levine, a professor of communications at the University of Alabama at Birmingham, told TakePart that his results are an outlier; most research shows that trained investigators can identify a liar roughly half the time—no better than random guessing. He said he is “skeptical” that such cues can be a useful guide to deception.

The Reid training seems to trigger a kind of confirmation bias. According to Saul Kassin, a professor of psychology at John Jay College of Criminal Justice, and Christian Meissner, a professor of psychology at Iowa State University, specialized lie-detection training makes investigators more likely to believe a subject is untruthful. Like the hammer that sees only nails, once they learn to scrutinize people’s behavior for lies, they see evidence of lies everywhere. Kassin and Meissner’s research also suggests that although such training often doesn’t improve questioners’ accuracy, it makes them more confident that they’ve guessed correctly. That’s where the real interrogation begins.

The latest edition of the Reid textbook instructs detectives to start an interrogation by telling the suspect they know he’s guilty. Detectives are taught to “discourage” denials: If the suspect claims innocence, the interrogator should either ignore it or “reassert his confidence in the suspect’s guilt.”

The detective might bluff, saying that a polygraph “proves” the suspect committed the crime or—as Detroit police told Devontae Sanford—that physical evidence confirms his presence at the scene, when no such evidence exists. (The Reid textbook notes that an interrogation by necessity operates on a “somewhat lower moral plane” than everyday discourse.) Deceiving suspects in this way is perfectly legal; the U.S. Supreme Court has declared that lying to a suspect does not in itself make a confession inadmissible.

Once the suspect feels cornered, the detective seems to offer a way out by suggesting a story that presents a moral (but not legal) defense—you lost your temper; you intended to repay that money; you were drunk; anyone can understand how that might happen. The detective might propose two scenarios: Did you plan this, or did you just lose control? Cory Armishaw, who was coerced into confessing that he’d shaken his girlfriend’s three-month-old son to death in 2006, recalled the choice he was given: “Either you’re a nice guy who just snapped, or you’re a baby killer,” he told CBC in 2012.

After many grueling hours of questioning, some people, including some innocent people, accept the less damning alternative. (Juveniles and the developmentally disabled are especially vulnerable to these tactics.) We’ve replaced physical coercion with psychological coercion.

“The innocent person who confesses knows they were not at the scene of the crime; they know it’s false,” said Timothy Moore, a professor of psychology at York University in Toronto who has studied interrogations and has served as an expert witness on false confession. But when an interrogator repeatedly rejects his denials, he may begin looking for a way simply to end the ordeal. “He may think, ‘I don’t have a chance, so I’m going to tell him whatever he wants to hear, and we’ll straighten it out in the morning,’ ” Moore said. “But it doesn’t work that way.”

Juries tend to treat a confession as nearly infallible. Once an innocent person confesses, the chances of “straightening it out” are very slim.

Police interviews in Newfoundland are carried out quite differently. Newfoundland is a windswept island in the North Atlantic covered in pine and birch forest. With a population of around half a million, it’s the more thickly settled portion of Canada’s easternmost province, Newfoundland and Labrador. In spring, icebergs sail down from the Arctic and settle along the island’s rocky shore.

Until recently, officers in the Royal Newfoundland Constabulary received little instruction in how to conduct an investigative interview. Some officers took a Reid course at the Canadian Police College on the mainland, but mostly they got by with a mixture of secondhand lessons and on-the-job training. There was no comprehensive philosophy and no scientific research guiding their work.

A decade ago, John House, then a sergeant in the RNC Criminal Investigation Division, and Brent Snook, a professor of psychology at Memorial University of Newfoundland in the provincial capital of St. John’s, set out to change that. House had learned about a new method of police interviewing called PEACE while pursuing a master’s degree in investigative psychology in England in the early 1990s. Snook, who was raised in a small town on Newfoundland’s south coast, also had encountered PEACE in England, where he received his Ph.D. When Snook returned to Newfoundland in 2004, he started researching psychologically based investigative practices that could have everyday, practical applications, such as interviewing. He and House began talking about bringing PEACE to Canada.

Then in 2006 a government inquiry into three wrongful convictions in Newfoundland revealed a tangle of investigative failures, among them “inappropriate” and “skewed” interviewing practices. A report on the cases by Antonio Lamer, the retired chief justice of Canada’s Supreme Court, provided ammunition for Snook and House’s reform efforts. When they approached the new chief of police about bringing PEACE to the RNC, he readily agreed. In 2009 Newfoundland became the first police department in North America to convert to PEACE, and it’s still the only jurisdiction on the continent to banish Reid and adopt an alternative grounded in scientific research.

Today, House explained, “the whole organization has been trained, from specialist child interviewers right through to frontline officers.” Every recruit takes a PEACE class designed by Snook as part of a yearlong police studies program at Memorial University. Officers who are promoted to an investigative unit take an additional two-week course. Every new constable is also required to take Snook’s introductory class in forensic psychology, which covers false confessions, the dangers of manipulative tactics, and the ethics of police work.

Suspects brought in to the RNC for questioning are not subjected to the kind of intimidating, guilt-presumptive interrogation that is typical in much of Canada, and in the United States, because suspects are questioned pretty much the same way as witnesses: Ask them to tell their story, don’t interrupt, and save any challenges until the end. If there’s physical or other evidence that implicates the person, that too is saved until the end and introduced one fact at a time (it’s more difficult to explain away evidence when it’s presented like this).

A few miles from the busy harbor in downtown St. John’s, in a conference room in Memorial University’s sprawling science building, Snook cued up a DVD to show what a PEACE interview might look like. Not yet 40, Snook wears rectangular glasses and stylish shoes. The video, he explained, shows a newly trained constable trying out his skills on a volunteer who claims he was not involved in an (imaginary) assault the night before. The task of the trainee might be summarized this way: Presume nothing, and listen.

The PEACE interviewer asks the volunteer to tell his story—What did you do last night?—from start to finish. The trainee has been taught to “transfer control” to the subject, so he says, “I wasn’t there, so I’m relying on you to explain what happened.” He asks the subject to provide as many details as possible, even if they seem irrelevant. Then the interviewer lets the volunteer talk.

Once the mock suspect is through telling his story, the officer asks “probing” questions, looking for “checkable details.” He says things like “Tell me more,” like a good dinner-party companion would. (Ideally, a PEACE interviewer should do no more than 20 percent of the talking; with a highly uncooperative subject, the strategy would shift to “conversation management,” which allows for more targeted questions.) He asks the subject to draw a picture of the scene. Finally, the officer reveals prepared evidence that contradicts his story and invites him to explain the discrepancies.

“People think it’s soft and sort of touchy-feely, but it’s not,” House remarked. “It’s very systematic. It requires that people do their research and know their case very well.”

PEACE is modeled on the cognitive interview, which was developed by psychologists Edward Geiselman and Ronald Fisher in the 1980s and draws on decades of psychological research on how we store and retrieve memories. The research shows we provide more details when allowed to tell a story from beginning to end, without interruption. (A staccato question-and-answer format produces more spare responses.) We offer more accurate descriptions when asked open-ended questions (“What did he look like?” rather than “Was he tall or short?”), and recounting trivial details can prompt us to remember important ones. Sometimes witnesses are asked to tell a story backward, which can likewise shake loose other memories. Reversing the chronology also adds to the “cognitive load” of the task, which means that guilty storytellers will struggle to keep the details straight and reveal their deception.

“The bottom line is we get a lot more information” from witnesses, said Sgt. Colin McNeil, who heads the RNC’s investigative interviewing unit. “A lot more information. It’s not about confession chasing.”

Information collected using this method is more reliable as well. PEACE involves less risk of introducing suggestive statements that can distort a witness’ memories. In the training courses, Snook said, “we tell them to treat memory like a crime scene. They don’t contaminate it; they don’t move things around. Just secure it, and keep it pristine.”

Advocates say questioning witnesses as PEACE instructs protects against tunnel vision and other errors that lead to wrongful prosecutions. Because investigators must gather a lot of information before they consider challenging the subject’s account, they are less likely to make premature judgments about guilt or innocence. It’s the basic principle of scientific inquiry, Snook explained: “You collect data first, and then you make your decision.”

There’s evidence that even with good training, dramatic improvements in practice can be elusive. A field evaluation published in April found that although trained RNC interviewers asked better questions in general (fewer leading ones), they didn’t ask for a free narrative each time and still posed a lot of less effective yes-or-no questions.

Nevertheless, 25 years after PEACE was first deployed in Britain, dozens of studies have demonstrated that on the metrics that matter most, the method is a success. Multiple studies confirm that when compared with a Reid-style interrogation, a data-collecting approach significantly reduces the odds of a false confession and maintains or even increases the odds of a true one. If Davontae Sanford had been questioned under a PEACE protocol, perhaps he would not have spent eight years in prison for a crime he did not commit.

PEACE beats Reid in another area too, according to Inspector Todd Barron, who headed the RNC’s investigative interviewing unit and led PEACE training for six years. “Whether you agree with the Reid model or you don’t,” Barron said, “here’s a fact: It was designed for suspects, for people who were determined to be culpable in a crime.” It has little to say about questioning witnesses.

Yet talking to witnesses is the core of a police investigation. “For every suspect interview that a police officer does, they probably do eight or nine witness or victim interviews,” Barron explained. It’s crucial that investigators learn “how to accurately capture information from victims and witnesses and more importantly, to capture it in a proper way that isn’t tainted.” Newfoundland’s constables are among the few in the world who are systematically taught this skill.

Barron recalls that when the PEACE course was introduced, some of the most experienced officers were skeptical that they would learn anything useful. By the end of the first week, that changed. “The overwhelming sentiment was ‘Where was this 20 years ago when I started doing policing?’ ”

PEACE is slowly spreading to other districts in Canada. Several law enforcement agencies, including the Niagara Regional Police Service in Ontario, have sent envoys to St. John’s and started running PEACE courses of their own. But so far no police department in the United States has done the same.

“I would think most police officers in the U.S., or here, are simply interested in doing things the right way and open-minded enough to take on constructive change,” House wrote in an email recently. “I think most police officers are not fixated on a particular method, and are therefore open to evidence on what is truly best practice.” Yet experts on interrogation say that U.S. law enforcement is peculiarly resistant to change.

Military intelligence has shown more interest in reform than police, according to Melissa Russano, an associate professor of criminal justice at Roger Williams University. Russano helped train the U.S. Air Force Office of Special Investigations (the counterintelligence wing) in a method of interrogating “high-value detainees”—terrorism suspects—that Russano says is largely modeled on PEACE.

Russano would like to bring similar instruction to local police, but she believes the Reid technique is entrenched in the culture of U.S. law enforcement. Many years of tradition and practice, she noted, and Reid’s books and courses being a “booming business,” are “big hurdles to overcome.” The Major Crimes Division at the Los Angeles Police Department is in the process of converting to the Air Force system, according to Det. Mark Severino, and is not using Reid. But there has not been a department-wide policy change. “It’s going to take a while,” Severino said.

Christopher Kelly, an assistant professor of sociology and criminal justice at Saint Joseph’s University in Philadelphia, helped nudge the LAPD’s reforms along when he concluded, after analyzing LA cops’ videotaped interviews, that suspects were more cooperative when detectives worked to build rapport and less so when they were confrontational. But Kelly doesn’t see widespread reform coming anytime soon. “Working with local law enforcement agencies to change practices is a terribly slow process,” he said. “It’s like trying to turn the Titanic.”

Joe Buckley, the president of John E. Reid and Associates, is not worried about competition from PEACE. He thinks it is fine as far as it goes, but it doesn’t get the job done. Police departments that adopt it, he predicted, “are going to learn down the road that a lot of times people are not going to make an acknowledgment that they did it without more persuasive efforts.”

A lot of police departments, USF law professor Richard Leo believes, are simply “in denial” about the failings of current practice. He points to the case of the Central Park Five, whose convictions for raping and beating a jogger nearly to death in 1989 were overturned 13 years later. In spite of DNA and other evidence pointing to a different perpetrator, the New York Police Department refused to accept that the teenagers’ confessions were coerced and that they put the wrong guys in jail. Though the actual rapist insisted he acted alone, an NYPD panel concluded in 2003 “it is more likely than not” that the five teenagers “participated in an attack.”

Even in Newfoundland, the revolution has stalled slightly. Recently, the constabulary has begun to consider allowing some of the tactics that House and Snook hoped they’d banished for good. Last year, the Royal Canadian Mounted Police—Canada’s national police force—released its own protocol for suspect interviewing, which looks a lot like PEACE but allows officers, in cases where there’s solid evidence, to resort to some of the ploys that are typical of Reid.

“That stuff is quick and dirty,” Brent Snook said, “rather than the painstaking, slow, methodical, cerebral process of working with people to get information.” The Mounties’ hybrid program is being promoted across Canada, and now that House has retired, he worries that there could be a partial relapse at the RNC. “But we keep fighting the fight.”

The Newfoundland reformers have started proselytizing in the United States and have won a few converts. One of them is Boston Sgt. Det. John Brown. A year and a half ago, he and a couple of homicide detectives attended a seminar on PEACE that Snook and Barron presented at the Suffolk County District Attorney’s Office. New BPD recruits now learn some of the elements of PEACE before they earn their badge and weapon. Brown would like to see a nationwide switch to PEACE, but in the meantime, he says, detectives should stop using “ruses and trickery” to get confessions. “At the end of the day I don’t think it’s really necessary,” he said.

Just a few miles south of St. John’s is Cape Spear, a narrow peninsula reaching into the Atlantic Ocean. Brent Snook stood there on a wet afternoon in mid-May, looking out at a roiling gray sky and dark sea. The wind pelted rain across the hillside. “Nobody in Newfoundland uses an umbrella,” he called out cheerfully. “The rain comes in horizontally.”

Back in town, a different sort of storm was brewing. The RNC was investigating a homicide—a rare event on the island, where three or four a year is about average. The week before, the body of a man had been discovered outside an apartment building on a quiet street in St. John’s, his red hoodie soaked in blood.

Residents were alarmed when a woman who’d moved in a few days before, and who’d just been released from a psychiatric hospital, was charged with the murder. A date for a preliminary court inquiry is expected to be set next week.

A grisly, well-publicized crime, a psychologically unstable suspect: These are some of the risk factors that can lead to an aggressive interrogation, and sometimes a miscarriage of justice. Canadian law says the RNC can use face-saving excuses and other persuasive tactics to urge the suspect to confess. But RNC investigators don’t operate simply according to what’s allowed. They operate according to “evidence on what is truly best practice,” as John House put it. And according to “what’s right.”

Jon Eldan can be an exoneree’s best friend

First comes exoneration. Then, if you re lucky, comes Jon Eldan, an attorney who left his corporate practice to help exonerees with the everyday problems they face after prison. Eldan says he has helped 303 men and women in 33 states since late 2014, entering their lives after those who helped get them released have moved on to other cases.The Marshall Project’s Rachel Siegel tells Eldan’s story here.

“IT’S ABSOLUTELY STUPID.” FIFTH TRIAL PLANNED IN BITE-MARK MURDER CASE

From: The Intercept

JUST WEEKS AFTER a unanimous California Supreme Court threw out Bill Richards’s murder conviction, prosecutors in San Bernardino County have indicated that they will seek a fifth trial for the 66-year-old. “It’s absolutely stupid,” said Richards’s longtime defender Jan Stiglitz, a founder of the California Innocence Project, which has represented Richards since 2001.

Richards was convicted in 1997 of killing his wife, Pamela, four years earlier. The case has long been controversial and considered a wrongful conviction based on the discredited junk science of bite-mark analysis. Indeed, prosecutors tried three times to convict Richards — including two full trials that ended in hung juries and a third that ended in a mistrial — before employing at his fourth trial the testimony of a renowned forensic dentist who claimed that an alleged bite mark found on Pamela’s hand was a definitive match to Richards’ supposedly unique lower dental pattern.

That expert, Dr. Norman “Skip” Sperber, recanted his testimony during a 2008 evidentiary hearing, admitting that he should never have testified as he did because there was no science to back up his conclusion. The recantation ultimately led California’s highest court to overturn Richards’s conviction on May 27. “Dr. Sperber’s trial testimony that the lesion on Pamela’s hand was consistent with the assertedly unusual dentition of [Richards’s] lower teeth constituted ‘false evidence,’” the seven-member court agreed.

Michael Ramos, San Bernardino County District Attorney, speaks during a news conference as the county sheriff Gary Penrod listens in the background Tuesday, March 7, 2006, in San Bernardino, Calif. Ramos announced that his office filed a charge of Attempted Voluntary Manslaughter against San Bernardino County Sheriff’s Deputy Ivory Webb in the shooting of Elio Carrion.
The San Bernardino DA’s office has insisted that the bite-mark evidence was not crucial to the state’s case. But the Supreme Court justices appeared unpersuaded, explaining in detail that without the bite mark, the DA’s case was built solely on highly contestable circumstantial evidence.

The court’s ruling not only vacated Richards’s conviction, but also precludes prosecutors from using the unreliable bite-mark evidence if they retry the case. Given the paltry evidence left to tie Richards to the grisly murder, his lawyers and supporters had hoped that DA Michael Ramos would simply dismiss the case. But it appears Ramos — who is running for California attorney general in 2018, highlighting his record of “holding criminals accountable to the fullest extent of the law” — is not inclined to do so.

Stiglitz told The Intercept that Chief Deputy DA Clark Hansen has advised him that the state will try Richards again. Hansen did not respond to phone calls seeking comment. Oddly, Christopher Lee, who serves as the DA’s public affairs officer, has insisted in emails that no such decision has been made. When pressed about why Richards’s defense team would think otherwise, Lee’s last email was abrupt: “I have attempted to answer your question on two occasions, and the answer remains the same. Have a nice day.” Lee has not responded to an additional email.

Assuming the information provided to Richards’s lawyers is accurate, the question becomes: Why? Richards has already been incarcerated for more than two decades, since he was first charged with the August 10, 1993, strangulation and bludgeoning death of his wife of 22 years. And just this spring, roughly two months before the Supreme Court vacated his conviction, Richards was recommended for parole, despite the fact that he maintains he is innocent — a circumstance that can make obtaining an early release difficult at best.

At the 2008 hearing where Sperber recanted his testimony, Richards’s defense team also proffered new DNA evidence, collected from a paving stone and a cinder block used to crush Pamela’s skull, that revealed the profile of an unknown male. Foreign DNA was also obtained from a hair removed from under one of her fingernails.

Also undermined at the hearing was the state’s assertion at trial that a tuft of blue fiber removed from a crack in one of Pamela’s torn fingernails was consistent with a common blue work shirt that Richards was wearing the night of the murder. At the hearing, an expert testified that a photo of Pamela’s hand taken at autopsy showed no such fiber was present; it wasn’t until later, after Pamela’s fingers had been removed for additional analysis, that the fiber appeared. In short, the new evidence strongly suggests the fiber was planted or possibly the product of evidence contamination.

At the close of the hearing, Judge Brian McCarville ruled that the state’s “entire case” had been undermined and that taken together, the evidence before him pointed “unerringly” to Richards’s innocence.

European Innocence Network Conference Held in Prague

03254-EIN-100

On June 16-17, a full house packed the meeting room at the Czech Parliament Building in Prague for the first European Innocence Network Conference.  Representatives were present from England, Wales, Ireland, the Netherlands, Italy, Spain, Poland, the Czech Republic, Greece, Armenia, Israel, Norway, Switzerland, Sweden and Germany, among others.  The program is available here, and included talks and panels on the causes of wrongful conviction across national borders, how to start an innocence organization, and the vision of future structure of the European Innocence Network moving forward.  Day One consisted of formal presentations and panel discussions, while Day Two was dedicated to discussing the structure, the by-laws, the sub-committees, and the future activities of the European Innocence Network.

The conference was sponsored by Daniel Vanek of the Innocence Program Czech Republic, and the Center for the Global Study of Wrongful Conviction at the University of Cincinnati College of Law (part of the Ohio Innocence Project).

The group agreed to meet again in the fall to continue discussing the structure of the Network, to hammer out membership criteria, and to elect board members, etc..  The Network will be housed at the University of Milan, Italy.

As a participant in the conference, I can attest that the energy in the room was high and spirits were soaring.  Everyone left the conference committed to continuing and growing the collaboration in the future.  The fall meeting will be held in either Italy or Dublin on dates to be determined.  The conference in 2017 will be held in Italy (either Rome or Milan), and the 2018 conference will be held in Amsterdam.

Below are some pictures from the event….

 

Tuesday’s Quick Clicks…

Monday’s Quick Clicks…

Why Do So Many People Confess to Crimes They Didn’t Commit?

From: Vice

By Samuel Gross and Maurice Possley

This story was co-published with the Marshall Project.

“You have the right to remain silent.”

If you’ve ever watched any of the tens of thousands of hours of television devoted to crime dramas, you know the first warning given to suspects who are arrested and questioned. And the second: “Anything you say can and will be used against you.” The Miranda warnings—named for Miranda v. Arizona, the 1966 Supreme Court decision that required them—celebrated their 50th anniversary on Monday. In that period, they have become so ubiquitous that it’s easy to forget their origin and purpose.

Miranda was the culmination of 30 years of Supreme Court cases that were designed to protect criminal suspects from abuse in police interrogations. The earliest of these decisions prohibited violence and torture. The first concern was to prevent confessions that are “unreliable”—that is, false.
In 1966, false confessions seemed like a rare problem. Fifty years later, we have seen hundreds of exonerations of innocent defendants who confessed to terrible crimes after they received Miranda warnings.

It’s a good time to take stock.

Do innocent people really confess without torture?

Why would an innocent person ever confess to a murder or some other terrible violent crime?

Torture would explain it. That was the issue in Brown v. Mississippi in 1936, the first case in which the Supreme Court excluded a confession from a state court prosecution. Three suspects had been tortured for days. Asked how severely one defendant was whipped, the deputy in charge testified, “Not too much for a Negro; not as much as I would have done if it were left to me.”

Between 1936 and 1966 the use of torture to extract confessions declined greatly, a major accomplishment by American courts and criminal justice reformers. When Miranda was written, a shift was underway to more “modern” methods of interrogation: isolation, deception, manipulation, and exhaustion rather than beating. Without torture or threats of death or violence, it seems implausible that an innocent suspect would confess to a serious crime. That is precisely why confessions are such powerful evidence of guilt. But we know it happens, time and again.

The National Registry of Exonerations had collected data on 1,810 exonerations in the United States since 1989 as of June 7, 2016. They include 227 cases of innocent men and women who confessed, 13 percent of the total, all after receiving Miranda warnings (at least according to the police). Nearly three-quarters of those false confessions were homicide cases.

But these exonerations deeply understate the extent of the problem.

First, most suspects who falsely confess—probably the great majority—are never convicted at all. In a classic 2004 study, Steven Drizin and Richard Leo identified 125 proven false confessions in the United States from 1971 through 2002. Only about a third were cases of exoneration after conviction. In most, charges were dismissed before trial or never filed at all because of indisputable proof of innocence.

Second, few convictions based on false confessions are cleared by exoneration. That’s true for all wrongful convictions, but especially for those based on confessions. It’s very hard to convince people that a defendant who confessed is innocent. We see this in the cases: Exonerations of defendants who confessed are more likely to depend on the most unassailable evidence—DNA—to overcome the weight of a confession. Forty-two percent of exonerated defendants who had confessed were cleared by DNA tests, compared to only 21 percent of exonerees who had not confessed.

In some cases, even exculpatory DNA evidence doesn’t help. In October 1992, after a grueling four-day interrogation, 19-year-old Juan Rivera falsely confessed to the rape and murder of an 11-year-old girl in Lake County, Illinois. In fact, he confessed twice. His first confession was so riddled with factual errors that the detectives made him do it again to “clear up” the inconsistencies, even though Rivera was plainly in a state of mental collapse.

Rivera was convicted of murder in 1993, and again in 1996 after his first conviction was reversed for a host of legal errors. In 2005, DNA tests proved that a different man was the source of semen recovered from the body of the victim. Rivera’s conviction was vacated, but the prosecution took him to trial again, and in 2009, despite the DNA evidence, Rivera was convicted a third time. Finally, in 2011, the Illinois Appellate Court ruled that Rivera’s conviction was “unjustified and cannot stand” and dismissed the charges.

Juan Rivera barely overcame his false confession even with conclusive DNA evidence of innocence. Without it, he’d be in prison today—together with other innocent defendants who confessed but did not have DNA tests to rescue them.

False confessions by co-defendants

In many cases, innocent suspects who confess implicate others who are also innocent. Some do it because that’s the story their interrogators want to hear. John Kogut, for example, not only falsely confessed to his own involvement in murder, he also said he did it with two friends Dennis Halsted and John Restivo, both of whom (like Kogut) spent 20 years in prison before they were exonerated in 2005.

And some innocent suspects who confess blame others to deflect responsibility and reduce their punishment. Richard Ochoa, for example, was facing the death penalty for the murder of Nancy DePriest in Austin, Texas, in 1988. He confessed, named his roommate Richard Danziger as the actual killer, and agreed to plead guilty and testify against Danziger. Both were convicted and sentenced to life in prison. Both were exonerated by DNA in 2002.

The registry includes 195 exonerations with confessions by co-defendants who implicated the exonerees, 11 percent of all exonerations. The net result is that in 19 percent of all exonerations in the United States—and in 34 percent of homicide exonerations—the innocent defendant confessed or was implicated by a false confession of a co-defendant, or both.

Who falsely confesses?

All sorts of people falsely confess, but two groups are particularly vulnerable: young suspects and those with mental disabilities.

NUMBER EXONERATED PERCENT WHO FALSELY CONFESSED
Mental illness or intellectual disability 103 72
No disability reported 1,707 9
Source: National Registry of Exonerations
In 1983, for example, Earl Washington, a 22-year-old black man with an IQ of about 69, was arrested in Culpeper, Virginia, for burglary and malicious wounding. Over two days of questioning, Washington “confessed” to five separate crimes, four of which were not pursued because his confessions did not match the actual crimes and the victims could not identify Washington as the criminal.

Washington’s fifth confession, however, was to a murder, that of Rebecca Lynn Williams. His initial version—before police officers cleaned it up—was riddled with errors. He did not know the race of the victim (white), the address where she was killed, or that she was raped. Nonetheless, Washington was convicted and sentenced to death in January 1984. He was exonerated by DNA 16 years later, in 2000.

Overall, of exonerees with reported mental illness or intellectual disability, 72 percent had confessed.

AGE AT CRIME NUMBER EXONERATED PERCENT WHO FALSELY CONFESSED
18 or older 1651 10
16-17 116 33
14-15 36 53
Under 14 7 86
Source: National Registry of Exonerations

Young suspects fared almost as badly. Forty percent of exonerees who were under 18 at the time of the crime falsely confessed, including 53 percent of 14- and 15-year olds, and 86 percent of the few who were 13 years old or younger. By comparison, only 7 percent of adult exonerees without reported mental disabilities falsely confessed.

Why do all these innocent defendants confess?

Innocent suspects confess because they are terrified and confused and exhausted; because they are deceived or tricked; because they don’t understand what they are doing; because they feel hopeless and helpless and isolated. But what leads to this desperate predicament? Miranda sets the stage.

In part, Miranda was a step in the Supreme Court’s campaign to eliminate violence in interrogations. But Miranda also ratified the “modern practice of in-custody interrogation [which] is psychologically, rather than physically, oriented.” Miranda described how this is done:

The officers who conduct “modern” interrogations may lie about the evidence and tell the suspect that his fingerprints were found at the scene; that a co-defendant already confessed and put the blame on him; that he was seen by an eyewitness. They routinely say that they already have him dead to rights and that this is his only chance to tell his side of the story and help his cause; that the victim must have provoked him; that what he did is understandable. They may describe dire consequences if he does not come clean, perhaps the death penalty, and imply leniency if he does. This can go on for days, in isolation, with police officers constantly repeating that they know the suspect is guilty, that the evidence is overwhelming, that this is his only chance to help himself.

The Supreme Court recognized that this process “exacts a heavy toll on individual liberty, and trades on the weakness of individuals,” but it did not forbid any of these practices. As a result, Miranda is regularly cited as authority for the legality of all of these coercive techniques.

Instead of regulating the process of non-violent interrogation, the court required police to give warnings before they start, and then only continue if the suspect waives their right to silence. But most do waive their rights at the outset of the ordeal; it’s hard to tell an officer who has you under arrest that you won’t talk to him. After that, the issue almost never comes up again.

By the time they confess, Miranda is a distant memory, if not entirely forgotten. The process works. Many suspects confess after Miranda warnings and most are guilty; that’s why these techniques are used and trusted. But some are innocent.

Can we do better? Here again, Miranda is a good starting point.

The court noted that it’s difficult to regulate interrogations because we don’t know what goes on: “Interrogation still takes place in privacy. Privacy results in secrecy, and this, in turn, results in a gap in our knowledge as to what, in fact, goes on in the interrogation rooms.”

That’s changing. Fifty years ago, almost no interrogations were electronically recorded. The FBI, for example, prohibited recording. Now the FBI requires it, as do 23 states and many local police forces, at least in homicide cases. It should be universal. Recording greatly helps us evaluate any claim that a confession was false, and it has taught us how to improve the conduct of interrogations. It’s a good start.

Samuel Gross is the editor and co-founder of the National Registry of Exonerations and a professor at the University of Michigan Law School. Maurice Possley is a Pulitzer Prize-winning journalist and senior researcher at the registry. This article was originally published by the Marshall Project, a nonprofit news organization that covers the US criminal justice system. Sign up for the newsletter, or follow the Marshall Project on Facebook or Twitter.

Wednesday’s Quick Clicks…

Monday’s Quick Clicks…

Thursday’s Quick Clicks…

Exonerated Eight Years After REAL Killer Confesses

 

“Complete and Utter Failure of the Criminal Justice System.” Michigan Radio

Davontae Sanford was 14 years old when he confessed to a quadruple murder after a police interrogation that lasted two days. His parents were not contacted. He attempted to recant, but was convicted and sent to prison. It didn’t help that he had a do-nothing, incompetent defense attorney. (In my experience, bad defense attorneys are responsible for as many wrongful convictions as anything else.)

Eight years ago the real killer not only confessed, and said Davontae had nothing to do with it, but he also led police to the gun that was confirmed to be the murder weapon.

Finally, after eight years, the state of Michigan has overturned his conviction, and he has been released from prison.

See the CNN story here.

What the hell happened (or didn’t happen) here?! We have yet to hear an explanation from the state of Michigan. I can only sit here slack-jawed, shaking my head in disbelief.

Furthermore, I’ll make a prediction. We’ll hear some kind of non-specific boilerplate excuses from authorities, but nothing substantive or fundamental will change in the system as a result of this. A few people may get a “wrist slap,” but then the whole thing will sink into the murky political-bureaucratic swamp and disappear.

Justice Department issues first standards for forensic expert testimony

From: The Washington Post

The Justice Department proposed the first department-wide standards for forensic expert testimony Friday, responding to findings in 2015 that nearly every examiner in an elite FBI forensic unit had overstated testimony in criminal trials for decades.

The draft uniform language for court testimony and reports is based on written guidance developed by the FBI for about 20 techniques, and it would apply to all department personnel, including those with the bureau, Drug Enforcement Administration and the Bureau of Alcohol, Tobacco, Firearms and Explosives, officials said in an announcement.

Deputy Attorney General Sally Q. Yates invited public comment and said the department is committed to ensuring that its experts’ claims are supported by strong science.

“Forensic science is a critical component of our criminal justice system, both for identifying the perpetrator of a crime and for clearing the innocent,” Yates said in a statement. “Once finalized and adopted, these guidance documents will clarify what scientific statements our forensic experts may – and may not – use when testifying in court and in drafting reports, in turn strengthening the integrity of our system overall.”

The draft standards apply to serology, toxicology and drug and chemical examiners, as well as more frequently challenged experts who make subjective, pattern-based comparisons of fibers, glass, foot- and tire prints and fingerprints.

Proposals will follow this summer for more techniques, including analysis of DNA, hair, handwriting and explosive devices, the department said.

The move comes after an April 2015 finding by the FBI and Justice Department that nearly all FBI hair examiners overstated testimony about hair matches incriminating defendants during the 1980s and 1990s. A root-cause analysis is pending, but authorities acknowledged that until 2012, they lacked standards defining scientifically appropriate and erroneous ways to explain results in court.

In March, Yates proposed an expanded review of FBI forensic testimony to a National Commission on Forensic Science appointed by the attorney general, recommending audits of statements made in other pattern-based techniques used by crime labs in more than 100,000 examinations each year, including tracing fibers, fingerprints, tread marks, marks that guns leave on bullets, soil and other crime-scene evidence.

Yates then characterized the inquiry into “testimonial overstatement” as a forensic science “stress test.”

A National Academy of Sciences panel in 2009 reported that although examiners had long claimed to be able to match pattern evidence to a source with “absolute” or “scientific certainty,” only DNA analysis had been validated through statistical research.

On Monday, department officials said that the proposed standards were not intended to set precedent for state and local crime labs or imply that others’ statements are incorrect. They also will not necessarily serve as the basis for the department’s proposed reviews of past forensic science testimony or foreclose a more far-reaching recommendation by the commission to end claims of matching evidence with “scientific certainty” without statistical proof.

Peter Neufeld, co-founder of the Innocence Project, a member of the commission and a partner in the Justice Department and FBI’s hair review, applauded the proposed standards.

However, he said, “It’s remarkable that the FBI developed internal standards for decades, without ever subjecting those guidelines either to public comment or more importantly, to the scrutiny of the nation’s leading experts in statistics and probabilities, with the exception of DNA,” Neufeld said. “But we hope this is the beginning of a new era, and we applaud that.”