The Need for Additional Protections Against Wrongful Convictions Illustrated – It was interesting to read an op-ed in the local Davis paper that reprinted an editorial from the Memphis Commercial Appeal, depicting the case of TJ Johnson who has become only the latest in a series of cases with false murder confessions.
According to the account, he admitted to police that he drove a getaway car in a murder and robbery on October 4. Unlike many, however, he only had to spend 64 days in jail.
Writes the Memphis paper, this latest false confession “should give pause to opponents of mandatory videotaping of police interrogations.”
They write, “We have only Johnson’s account of the interrogation, the police not having commented on it. But from his description, it had the earmarks of a method developed in the 1950s that permits interrogators who believe suspects are lying to obtain confessions by making false and misleading statements to them and promises that interrogators don’t intend to keep.”
The widely-employed Reid technique, described in detail by writer Douglas Starr in his Dec. 9 New Yorker article “The Interview,” has been called into question by criminal justice scholars because of the number of false confessions it has produced.
Most of law enforcement now uses what is called the Reid Method.
“The Reid Method,” as Phil Locke describes in a 2012 article, “is a psychologically structured interview and interrogation technique developed by, and taught by, John E. Reid & Associates.”
He writes, “The method starts with a ‘behavioral analysis interview (BAI).’ During this phase, the interrogator maintains a ‘friendly’ demeanor, but poses structured questions designed to provoke responses that can indicate guilt.”
“If the interrogator decides that the suspect is ‘guilty,’ the method then proceeds to the ‘interrogation’ phase, which is confrontational. There are nine separate steps to the interrogation phase, and they are psychologically designed to get the suspect to the point where he believes his ‘only way out’ is to confess,” Mr. Locke continues.
“As part of the interrogation phase, the suspect may be offered a promise of leniency if he confesses,” he wrote.
A 2010 New York Magazine article reports, “Critics say the Reid technique is a major source of the problem. What was once seen as the vanguard of criminal science, they argue, is nothing more than a psychological version of the third degree.”
Even beyond the Reid method, the courts have given police “carte blanche in the interrogation room for any tactics shy of physical abuse,” said Steven Drizin, a researcher at Northwestern Law School.
To counter this, 18 states require videotaping of interrogations in murder cases.
A few days ago, we reported on the West Memphis Three, which occurred in West Memphis, Arkansas, in 1993. There one of the defendants confessed to the murder, but while we do not see the lengthy interrogation, even the videotape of the confession itself led investigators to disbelieve the confession.
The editorial notes that Tennessee in 2011 decided not to require videotaping as they “accepted the argument that the decision should be left up to law enforcement officials because taping can cause a guilty suspect to clam up.”
The paper notes, “But suspects who waive the ‘right to remain silent,’ believing they have nothing to hide and wind up confessing, are almost never acquitted by juries. And in 50 percent of exonerations resulting from DNA evidence, false confessions were obtained.”
Writes the Memphis paper, “It’s not difficult to see why police focused on Johnson. They had evidence that the driver in the Shelley case was nicknamed ‘T.J.’ Johnson had associated with gang members. A cell phone that belonged to one of the robbery victims had been found near his home. He and the co-defendants all once attended Wooddale High School in Memphis. And Johnson wasn’t in school when the crime occurred.”
“After lengthy questioning, he signed a statement confessing to the crime,” however, unlike in many other cases, “Johnson’s attorneys didn’t believe it. Their investigation, as well as more work by prosecutors and police, eventually resulted in a murder charge against alleged getaway car driver Thomas Bernard Moss, 17.”
The paper adds, “The story would seem to have had a good ending. It would be a lot better, of course, if the public could be assured that it’s not likely to happen again.”
Unfortunately, we don’t have to go all the way to Memphis to find examples of these injustices. Many have occurred in our own backyard. Radley Balko recently wrote about a dissent by Alex Kozinski, chief judge of the U.S. Court of Appeals for the 9th Circuit, from a decision not to rehear U.S. v. Olsen.
He wrote, “There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it.”
Writes Phil Locke, “Kozinski’s statement is interesting, because it is recognizing that there is nothing in the law that punishes (sanctions) prosecutors for this unethical behavior. They are supposedly subject to sanction from their bar association, but guess what – this just about never happens.”
He also notes that there has been some meager legislative progress; for instance the Michael Morton Act will go into effect on Wednesday and “goes farther than ‘Brady’ in that it requires disclosure of all police reports and witness statements, regardless of whether the evidence is material to guilt or punishment.”
From the text of the act “If the court finds that a party has failed to comply with any of the provisions of this article, the court may order and compel such party to provide the required discovery or disclosure, grant a continuance, issue a protective order, take other appropriate action as necessary under the circumstances to accomplish the purposes of the required discovery or disclosure, or, and only if other remedial alternatives have been exhausted, prohibit the introduction of certain evidence, the calling of certain witnesses, or other relief necessary to assure justice. The court may not dismiss a charge under this subsection unless authorized or required to do so by other law.”
As we wrote on Saturday, the question is how do we protect the sanctity of the overwhelming majority of convictions while lowering the threshold for new trials based on DNA evidence, evidence of false confessions, recantations of witnesses, etc.?
This does not have to be rocket science, but the prosecutor in the West Memphis Three case shows why this is needed. Prosecutor Scott Ellington indicated “that although he still considered the men guilty, the three would likely be acquitted if a new trial were held given the powerful legal counsel representing them now, the loss of evidence over time, and the change of heart among some of the witnesses.”
How can we get these cases out of the hands of individuals who have a stake in the case, and into the hands of some sort of wrongful convictions panel that can independently analyze cases to determine if the basis for conviction still remains?
Yes, we understand that having new trials twenty years later becomes problematic for the state, given the erosion of evidence and memory, but at the same time, these people spent years and years of their life in custody after it was clear to most reasonable people that they were the wrong men. And this is not an isolated problem – many sit incarcerated for decades when it is clear there was something very wrong with their cases.
This year perhaps, we will work toward an answer.
—David M. Greenwald reporting
Sorry to be “off-topic”, but has anyone else noticed a surge in pop-ups for credit scores, speeding up pc’s, etc. since the new Vanguard server came up? Can’t think of anything else is different in my laptop use.
Is this something that occurs when you log onto the Vanguard? Because we are not connected to anything like that?
Yes…. only when I visit Vanguard, but may be another issue. Happens every time I go to Vanguard, and doesn’t happen when I visit other sites… not blaming, just observing.
I haven’t had any problems.
I haven’t has even a single pop-up. I’m on a Mac using Safari.
Are you getting the pop-ups only when accessing the Vanguard, or when the Vanguard site is not open as well?
Matt… when I went to reply, a credit score invitation popped up… I’m Windows, have done the normal security checks, and yes, it is unique to visiting the Vanguard site. Again, not blaming, just observing. Annoying, but not distressing.
I’m not getting any new pop up (with the PCs or the Macs), but I don’t get why anyone cares about false confessions. If someone wants to lie about doing a crime it is their choice (but for some reason only “pro choice” people seem to have a problem with this). If you are going to give people a “pass” for a false confession under pressure will you also give people a “pass” if they are under pressure and they say someone else did it (and send them to jail for 20 years)?
P.S. I’m wondering if anyone reading this has ever been “tricked” in to making a false confession…
You can’t understand that people can be pressured over the course of hours into falsely confessing?
Volumes of research on this subject…
New York Times: http://www.nytimes.com/2012/02/26/opinion/sunday/why-do-innocent-people-confess.html?pagewanted=all&_r=0
University of Cincinnati: http://magazine.uc.edu/issues/1210/false_confessions.html
CBS News: http://www.cbsnews.com/news/why-do-people-falsely-confess-to-crimes/
Iowa State: http://www.futurity.org/innocent-confess/
UVA: http://forensicoutreach.com/true-lies-4-reasons-innocent-people-make-false-confessions/
The New York TImes op-ed provides an interesting case study:
“Once the police had badgered a rough murder confession from Felix, they taped it. Yet the confession lacked a critical detail — one that officers neglected to feed to him. Felix learned it three days later in court when he was handed the charge sheet and saw the date of the crime. He stared at the document and realized that he had the perfect alibi: On the day that Antonio Ramirez was gunned down, Felix had been locked up in a juvenile detention facility for violating probation in a case of theft. ”
Oops.
His court appointed attorney, Foxall was greatly relieved. “I would have hated to have had to try the case,” he said. “It would have been very scary. Juries don’t want to believe that somebody will confess to a crime he didn’t commit.” Judges don’t want to believe this either. In fact, according to Mr. Foxall, the juvenile commissioner in Felix’s case said, “Well, I don’t understand — why would he confess?”
Apparently juries aren’t the only problem, SOD’s comment is characteristic of the ones we get here.
NYT: “If you have never been tortured, or locked up and verbally threatened, you may find it hard to believe that anyone would confess to something he had not done. Intuition holds that the innocent do not make false confessions. What on earth could be the motive? To stop the abuse? To curry favor with the interrogator? To follow some fragile thread of imaginary hope that cooperation will bring freedom? ”
Also note: “Psychological studies of confessions that have proved false show an overrepresentation of children, the mentally ill and mentally retarded, and suspects who are drunk or high. They are susceptible to suggestion, eager to please authority figures, disconnected from reality or unable to defer gratification. Children often think, as Felix did, that they will be jailed if they keep up their denials and will get to go home if they go along with interrogators. Mature adults of normal intelligence have also confessed falsely after being manipulated. ”
So I’ll be interested in your response SOD?
David wrote:
> So I’ll be interested in your response SOD?
It would be nice if you give me some response also.
1. Do you want to take away the right to confess to a crime in order to protect someone you love?
2. Should we let someone off who puts someone else in jail if the cops “pressure” them to finger the guy?
3. Have you ever been “tricked” or pressured in to making a false confession?
We all know false confessions happen, but I don’t get why you worry about something that 1. Does not happen very often and 2. We can’t change.
Why not focus on those who falsely accuse others since it happens so often (I bet there are 1,000 guys falsely accused of child abuse in custody cases for every one guy that says he committed a murder he didn’t do).
It would be nice if murder interrogations were held in a spa like setting and everyone was relaxed, but when the cops think they have a killer it is impossible to be relaxed (even with soft music in the background)…
your last sentence was interesting.
“1. Do you want to take away the right to confess to a crime in order to protect someone you love?”
No, I have no personal stake in this issue. However what I do want to do, is put in enough safeguards to prevent (A) false confessions and (B) to enable them to be detected at trial.
(2) “Should we let someone off who puts someone else in jail if the cops “pressure” them to finger the guy?”
I’m not sure what you mean by this, but there is a problem here as well with people who testify against someone falsely as well – knowingly or unknowlingly
(3)Have you ever been “tricked” or pressured in to making a false confession?
I’ve never been in a position either way.
“We all know false confessions happen, but I don’t get why you worry about something that 1. Does not happen very often and 2. We can’t change.”
It happens often enough that it has put a documented number into prison for a long time, a number that is likely well understated given the limitations of available data. And it is something we can change.
“Why not focus on those who falsely accuse others since it happens so often (I bet there are 1,000 guys falsely accused of child abuse in custody cases for every one guy that says he committed a murder he didn’t do).”
It’s probably true, but the only way right now we know that someone did not do something is through physical evidence and most child abuse cases don’t have live DNA to test against.
“It would be nice if murder interrogations were held in a spa like setting and everyone was relaxed, but when the cops think they have a killer it is impossible to be relaxed (even with soft music in the background)…”
Relaxed settings are not really the issue or the safeguard.
Tia Will: “…our current adversarial model which is based on ‘winning’ cases and achieving convictions or conversely for the defense ‘getting the best deal’ for the client regardless of innocence or guilt to one of determining the truth and protecting our society accordingly.”
– – –
iPad Guy: “I disagree with your contentions about the basis from the prosecution’s standpoint as well as the basis from the accused’s standpoint
But, you’ve observed this so many times that I think it’s your starting-point assumption. So, let’s accept this dismal view of the objectives of our system and look at the alternative you would like to use.
What process would you use to determine ‘the truth’ and protect ‘our society accordingly’ when someone is accused of a serious crime?”
– – – – – – – –
Thought I’d bring this over to David’s most recent story on this topic since Tia Will might have been on vacation or working overtime during the holidays.
I have also posted on a number of occasions several alternatives that I think would remove the “good guy vs bad
guy” mentality which I did not make up by the way. This phrase was used a number of times by the police and litigators at the citizens academy that I attended. But I am happy to repeat.
Option 1. Have an independent investigator to whom all information and evidence is presented and who gets paid a fixed amount for a passionless presentation of the evidence to the judge and jury rather than for making impassioned pleas either on behalf the victims or the defendant.
Option 2. Have a pool of attorneys. Half of their time would be spent presenting the evidence of the prosecution.
1/2 of their job would be representing the defense.
If our goal was really to find the facts and act accordingly, as opposed to closing or winning cases, then either of these option would be likely to take out the personal “winning” motivation in favor of achieving a just solution.
And you are correct, I was first working overtime, and then out of town for the holidays.
Happy New Year to all !
There was a really interesting story on This American Life on this topic. After it was proven that a women who confessed to a crime was actually innocent, the police officer who interrogated her look back at tapes of the confession and realized he had inadvertently fed her information that only the real purpatrator would have known.
http://www.thisamericanlife.org/radio-archives/episode/507/transcript
Here is a link to the audio version, and a better description of the story.
http://www.thisamericanlife.org/radio-archives/episode/507/confessions
Former DC police detective Jim Trainum tells reporter Saul Elbein about how his first murder investigation went horribly wrong. He and his colleagues pinned the crime on the wrong woman, and it took 10 years and a revisit to her videotaped confession to realize how much, unbeknownst to Jim at the time, he was one of the main orchestrators of the botched confession. (28 minutes