An op-ed piece by the Innocence Project reminds us once again that the cost of a wrongful conviction is not merely that an innocent person is incarcerated for a crime not committed – a tremendous atrocity unto itself. But there is also the additional problem of the actual guilty party going free, free to possibly perpetrate a crime again.
The problem is pervasive as well. They write of a 1993 murder of a woman by her sister’s boyfriend. As they note, “Unfortunately, this tragedy might have been prevented — but for the wrongful conviction of an innocent man for a previous crime.”
“The failure to recognize this false confession put police off the track of the real perpetrator, Cunningham, who was eventually identified through a DNA database search — but only after he had committed the additional murder of Morrison,” they continue.
The Innocence Project puts forward a number of reforms including the need to record entire interrogations in felony cases, eyewitness identification procedures, “performed by officers who don’t know who the suspect is so they can’t taint the identification of the witness.”
They also talk about the need for compensation for people who have been exonerated after falsely confessing or pleading guilty. This was a big issue in the case we discussed, dealing with Brady material in the false conviction of John Thompson.
While I agree that new safeguards are needed to prevent things like faulty witness identification and false confessions, I do not think these measures go far enough.
Tainted witness identification and police cluing in witnesses is indeed a preventable problem, but it fails to go far enough or to understand that people actually make very poor witnesses in general.
Clinical testing shows a great variety in the accounts of events by witnesses. And identification is notoriously unreliable.
False confessions are even more alarming because it is simply hard to ignore the words of the defendant themselves. Unfortunately, I do not think that video evidence represents the safeguard that the Innocence Project expects.
What really should give pause is research performed by Professor Brandon Garrett. His work examines various ways that incriminating facts can get into confessions, which then lead the police and prosecutors to unknowingly conclude that the individual knew facts only the individual at the crime scene could know.
The striking thing about his research is the confessions, even to him, looked authentic.
I expected, and think people intuitively think, that a “false confession would look flimsy,” like someone saying simply, “I did it,” he said.
Instead, he said, “Almost all of these confessions looked uncannily reliable,” rich in telling detail that almost inevitably had to come from the police. “I had known that in a couple of these cases, contamination could have occurred,” he said, using a term used in police circles for introducing facts into the interrogation process. “I didn’t expect to see that almost all of them had been contaminated.”
The idea that the confessions could fool an expert observer should give one pause when evaluating confessions.
Locally, issues arising from the Bennie Moses trial continue to be concerning.
Mr. Moses was convicted of 62 counts of rape of his daughter and sentenced earlier this week to 830 years in prison.
One of the jurors in the case acknowledged that “she had asked her husband whether he could ever be coerced to admitting that he slept with their daughter if he did not do so.”
According to a brief filed by defense attorney Emily Fisher, “This juror further indicated that her husband told her there is no way he would ever admit to sleeping with his daughter if he did not do so, no matter what.”
Judge Mock denied the defense’s motion for a new trial based in part on the notion that the knowledge obtained from the inquiry was not novel, and he instead argued that incest, sex with one’s daughter, is one of the most taboo subjects in our society, thus the conclusion was obvious and common sense.
The problem the judge faces is that people have confessed to worse, and erroneously so.
Indeed, we see that even in a case where there is a video there are several problems:
First, the jury did not see the entire video, the judge viewed it.
Second, the jury has to make a subjective judgment about the confession. In this case Mr. Moses appears to incriminate himself with the way in which he confessed as he spoke of his daughter “teasing him all night in her nighties.”
We make the presumption that no person who had not had sex with his daughter would state it that way, but do we really know? Are we qualified to make such an evaluation?
The Moses case at least presents enough other evidence of guilt that it seems likely that an innocent man was not sent away, but at the same time it illustrates the trickiness in which an average person must evaluate evidence.
Lay persons perhpas cannot imagine a situation in which they would confess to a crime they had not committed, but we know with absolute certainty that people do, and that even experts like Profession Garrett are fooled by the complexity of the confession.
—David M. Greenwald reporting
here we go again.
“according to the innocence project”: aka project via Barry Sheck and Peter Neufeld……
yawn.
“according to a brief filed by defense attorney Emily Fisher”…….
yawn.
David
Your article is much appreciated. For me it again brings into question not only the specific process issues you have mentioned, including
the reliability of “eyewitness” testimony and confessions, but the entire adversarial nature of our judicial system. When job security and political careers can be based on conviction rates and “toughness on crime” and when prosecutors see their job as to “make their case” rather than discover the truth and have prosecutorial immunity, I believe that the entire system is so tainted as to require reassessment. It would seem that we have built a judicial system based on flagrant conflict of interest. So I agree with you that the suggested reforms are a step in the right direction but do not go far enough.
Musser
Do you have a point beyond personal disparagement ?
Part of the problem is that we have a perverse incentive structure in that politicians and DAs are rewarded for having high conviction rates when in fact sometimes convicting someone is the wrong thing to do, if they are innocent. We need steps to make sure that the right outcome was achieved rather than a particular outcome.
David
Wow, you said that much better than I did! There must be an advantage in being a journalist ; )
I always thought that the interogations were recorded as prosecutorial evidence.
I completely concur with medwoman and David. The incentivized structure needs to be changed. Our idealized judicial system of having independent reviewers is not working. Especially in the “tough on crime” rush to judgement. Let’s not forget that recently the DA’s office tried a man for murder in West Sac with evidence the real murderers were in Mexico. What was the incentive, a chalk mark on their score card or to get the real murderer off the street?
Sorry for the tangent. I also agree that while videotaping is better than not videotaping, it can lead to a false sense of security. The DA’s and police need constant reassessment of the facts, instead of trying to make something stick. We also need more transparency in the system.
I would like to have the incident from initial contact to sentencing viewable and reviewable ! In 1973 I was “detained” based on an alleged description of a robbery suspect and vigorously interrogated, including being slammed into a wall threatened with being thrown in a cell with a convicted murderer and rapist, and denied food water or bathroom access for 18 hours by Santa Barbara police. Turned out the cop was reading an old BOLO from the previous shift. I wish that had been videotaped !
From what I have seen about this issue is that the confessions usually come after many hours of interrogation. Even when there is a video or audio recording the only part shown or heard is the confession, not the hour upon hour of denials.
biddlin
Unfortunately these do not appear to be rare events. Good friend of mine from college was falsely accused of rape ( she subsequently recanted) was treated in a similar manner but refused to confess to something he did not do despite intimidation. He has gone on to become a successful radiologist. Could have been a very different story had he been more frightened, had she maintained her claims longer, or more worrisome to me, had his parents been unable to acquire excellent legal representation for him.
I am one of the people called to witness at this trial of Mr. Moses. Mr. Moses is my son and the daughter is my granddaugther. The DA flew me in from Murfreesboro,TN with the intentions getting me to help convict Mr. Moses. I was told by the DA that I could not talk about what victim convey to me. Or talk about the thing the reason that the defendent confessed. The other witness was never question what the her motive was for testifying in the case. The DA also told I could relay anything about my granddaughter never made any call to police, or what she was doing at the time the police was call by some one else. She also told me that the investergators cohersed he into saying things or she would be arrested for false charges. I can not tell of all I went through before the DA allowed me into the court to take the stand. I sat from 8:30 am in the morning to 4:45pm with the DA knowing I had just had surgery on my back and had a plate surgically inserted into my back. Was I in pain? That’s not the word for it. Bylateral screws in both feet, hungry and I never saw the inside of the court room on the day I was to testify. So it was as if testify the way I was told or the trip would be in vain. I could not answere properly without being able tell proper info. I was devistated. They only allowed me the privaledge of taking the stand the next day early as the first to take the stand because I swore not to return the next day and go through this staged process again. Mr. Moses daughter was scared out of her wits that she would go to jail if other than what she was told say she had to testify to. The DA even made a trip to Mr. Moses daughter house to threaten to arrest her if she did other wise. She tried to use the same tatic on Mr. Moses eldest sister but she opted to go to jail rather than submit to the tactics of threat from the DA. I would like to tell this publically. So all that was bought out was not the truth. Mr. Moses was also informed that he would be let go free if he just confessed with some details.. I have been wanting to get this info out, I’ve even call the Public Defender with this information. And this is the truth. The police, the investorgators and the District Attornies are very scary people but something had to be done to help them do their job properly and truthfully.