Brooklyn DA’s Probe of 50 Convictions Featuring One Detective: Conviction Integrity Unit, False Confessions in the Spotlight

With the news that the District Attorney of Brooklyn is re-examining convictions in 50 cases featuring the work of one particular detective (see stories here and here ), we see two issues that have surfaced on the Failed Evidence blog before: false convictions and Conviction Integrity Units (CIUs).

First, the cases under re-examination all involve retired NYPD Detective Louis Scarcella, who had a penchant for getting confessions out of suspects when other detectives could not. According to Scarcella, “there were cases where suspects talked to one detective and they got nothing, and they called me and I got statements. A lot of guys don’t know how to talk to people.”   Some of these suspects who allegedly confessed said that they had told Scarcella nothing.  Scarcella also relied regularly on testimony from one particular drug-addicted prostitute; among the many times she served as Scarcella’s “go-to witness,” she gave crucial eyewitness testimony in two separate murder cases against the same man.  According to one prosecutor who had the woman testify in two trials, “It was near folly to even think that anyone would believe [her] about anything, let alone the fact that she witnessed the same guy kill two different people.”

But there is also this: the re-examinations are being handled by the Brooklyn DA’s Conviction Integrity Unit (CIU), which I wrote about in connection with the exoneration and release of David Ranta, here.  As readers of the Failed Evidence blog know, CIUs are  dedicated units within prosecutors’ offices, just like  homicide or fraud units, that take on the task of re-opening old convictions now in doubt.  The first CIUs were established by DA Craig Watkins in Dallas and former DA Pat Lykos in Houston, and they have begun to pop up in other places.  In New York, both the Brooklyn DA and the Manhattan DA have established CIUs.

The CIU model for examining possible wrongful convictions isn’t perfect; a CIU is, by its nature, not independent of the DA’s office, and could be stopped in its tracks or dismantled completely just as easily as it could be created.  But as I’ve argued here before, they at least represent a step toward accountability for wrongful convictions, in a field in which too few elected prosecutors will touch prior convictions at all.  We should pay careful attention to how this large-scale investigation by the Brooklyn DA’s CIU works out; it will say a lot about whether CIUs can be part of the solution going forward.

 

The Reid Technique Bites Back. You Decide.

In my previous post, I included a link to Psychology Today’s Shadow Boxing blog, which carried a brief interview in which I was critical of the Reid Technique, the most commonly used technique for interrogation taught in American police training.  This prompted an email to me from Joseph Buckley, the President of John T. Reid and Associates, Inc., in which he defended the Reid Technique.  I advised Mr. Buckley that I could not include his entire missive, but would be glad to include some of it.  He said, in part:

False confessions are not caused by the application of the Reid Technique, they are usually caused by interrogators engaging in improper behavior that is outside of the parameters of the Reid Technique – using improper interrogation procedures – engaging in behavior that the courts have ruled to be objectionable, such as threatening inevitable consequences; making a promise of leniency in return for the confession; denying a subject their rights; conducting an excessively long interrogation; etc.

…

Mr. Harris suggested that the goal of the Reid Technique is to get a confession – that is not correct; it is to learn the truth.

On page 4 of our training manual and page 5 of Criminal Interrogation and Confessions (5th ed, 2011) we state that the objective of an interrogation is to elicit the truth from a subject, not a confession.

In a subsequent email, Mr. Buckley suggested this link to his web page,  particularly the entry for March 11, 2012.

For my part, I stand by what I told Shadow Boxing, and I stand by everything I said about the Reid Technique in my book, Failed Evidence: Why Law Enforcement Resists Science.

For starters, I did say that the goal of the Reid Technique is to get a confession.  Mr. Buckley says that isn’t true.  What he doesn’t say is that until 2011′s fifth edition — through all of the previous editions — what the book said was “an interrogation is conducted only when the investigator is reasonably certain of the suspect’s guilt” (or words to that effect). This statement was changed after many commentators quoted it as perfectly descriptive of the Reid Technique’s reliance on an underlying assumption of guilt for all interrogations.  But even after changing the statement, the presumption of guilt underlying the whole process did not change.

But to me, what this comes down to is which side, Mr. Buckley or his many critics, have the science behind them.  On this dimension, it’s not a close call.  Rather than pull all of this out here, take a look at an excellent article by Keith Findley and Michael Scott, “The Multiple Dimensions of Tunnel Vision in Criminal Cases.”  (The link is to the abstract; you can then download the article for free.) Go right to page 333–340, where the authors lay out the case against the Reid Technique and (unlike Reid’s own materials) support their arguments with a vast amount of research literature.  Here’s a small slice (with footnotes omitted):

[T]he process of assessing an interview is likely to produce misjudgments about the suspect’s veracity and guilt. Police are trained to look for signs of deceit in the interview process to help them determine whether to shift from an interview to an interrogation. Police also use their interpretations of guilty responses to help them shape the remainder of their interrogation, and the content of their testimony at trial. Yet, considerable research indicates that people are poor intuitive judges of truth and deception.  In clinical studies, people consistently perform at only slightly better than chance levels (with typical accuracy rates of about 45 to 60 percent, when chance is 50 percent) at distinguishing lies from truth…Indeed, most studies indicate that trained detectives and others with relevant on-the-job experience “perform only slightly better than chance, if at all,” and do not perform more reliably than untrained individuals…Additionally, the signs that police officers are trained to believe indicate lies are not empirically related to lie detection…Research confirms that most police officers rely on such indicators.  But research also convincingly shows that such cues are not indicative of fabrication, and can actually reduce accuracy.

Read and evaluate.  You decide.

Another Call for Recording Interrogations: South Carolina

In another sign that resistance to better, science-based practices will eventually have to yield, a news report indicates that a member of the South Carolina has  introduced a bill that would require police to record interrogations of suspects.

The bill, proposed by Rep. Todd Rutherford of Columbia, “would require judges to instruct jurors that they could ‘draw an adverse inference’ if a law enforcement officer failed to record the questioning of a suspect unless there was an equipment failure.”  That required instruction would effectively require that the police record interrogations, because jurors would hear from the court that the interrogation might be suspicious.

Even if the bill does not pass, the significance of the proposal is hard to miss.  An increasing number of states and jurisdictions require recording of interrogations under various circumstances (see the Innocence Project’s map here), and the research shows that the recording requirement does not harm the investigation process.  In fact, recording turns out to be a great help to the police overall.  The research of Thomas Sullivan on the practical effects of recording has been particularly insightful and helpful on this issue, and academics such as Richard Leo, Saul Kassin, and Richard Ofshe have made tremendous contributions in the area of false confessions and why recording can help.

More to the point, South Carolina would not be viewed by anyone as a jurisdiction that has been particularly favorable to defendants on criminal justice issues.  The fact that the legislature in South Carolina now has a proposal to consider on recording interrogations means that, little by little, we are nearing a tipping point, which will bring us closer to what the scientific research shows us.

 

Why Does Law Enforcement Have the Power to Control DNA Databases and Exclude Defense Testing?

An article titled “Lawyers, Saying DNA Cleared Inmate, Pursue Access to Data” tells the story of the case of Joseph Buffey, a man imprisoned in West Virginia for 70 years for rape.  And Buffey’s story tells us something disturbing: control of DNA evidence in most states is in the hands of law enforcement.  Unfortunately, this can block defense efforts to get at the truth.

Buffey’s case features something common to more than a quarter of DNA exonerations: he confessed, and later entered a guilty plea and apologized, at the urging of his lawyer.    But Buffey then recanted his confession and maintained his innocence.  Years later, defense lawyers got the physical evidence tested, and the DNA did not belong to Mr. Buffey.

Defense lawyers then asked the state to run the sample against the state’s DNA database (known as CODIS, which stands for Combined DNA Index System).  The idea, of course, was that the DNA might have come from a person whose DNA was already in the database.

The state of West Virginia’s reaction: no thanks.  According to the article, the authorities in West Virginia said that “the state does not believe such testing will or can prove the defendant’s innocence after his guilty plea.”  West Virginia is one of the other thirty-one that do not give a defendant the right to have the sample run through the DNA database.

After 18 months of legal wrangling, West Virginia agreed to the test.  The result: the DNA belongs to a man incarcerated in another state prison with a history of assaulting women.

Naturally, Buffey’s lawyers are now working to get him out of prison.  But the more important thing to notice is that in West Virginia, as in most other states, DNA databases, constructed at great public expense, remain in control of one party to criminal cases: the prosecution.  They, and they alone, decide whether testing will be done, and under what circumstances.  And while we can certainly hope that requests to run DNA through the database will be granted, it can also be withheld when the state simply decides that this is not in its interest.

But the article contains something I had not seen before.  Scott Burns, executive director of the National District Attorneys Association is quoted as saying that he sees the failure to run DNA samples through CODIS as a problem that must be solved.

We, as law enforcement and prosecutors, are obligated to seek the truth and follow the evidence, and DNA should be entered into Codis,” said Burns.  “It seems like there should be laws for it, and I agree that the defense should be given the information.

Hats off to Mr. Burns and the NDAA if this is their official position.  (I say “if” because they have not always been open to such changes.)  In the next few days, I will attempt to confirm that the impression given by the story — that the organization would join in an effort to assure that DNA in a case like Buffey’s should be run — is correct.

Recording Confessions: Prosecutor Says It’s a Good Idea, But Don’t Tell Us We Have To

There is more talk than ever about how to safegaurd the criminal justice system against false confessions.  One reform that can help avoid these catastrophic errors is for police to record in-custody confessions.  With a recording of the entire interrogation (not just the part where the subject admits his or her involvement), the worst abuses are curbed, the jury or judge can see and hear exactly what happened, and there are many fewer legal issues about whether Miranda warnings were properly given.  The results, according to the police departments that have been required under state law to do this for years (most notably, Minnesota since 1994 and Alaska even earlier) have been almost uniformly positive.

Thus I was encouraged by a news item I saw from Pennsylvania, my home state, in which a county prosecutor seemed to take a forward-looking stance: she was launching a pilot program in which county detectives will record interrogations of murder suspects:

“Police and prosecutors need to be on the front lines of making sure we are doing things the right way … It’s up to us to do our jobs with integrity and maintain integrity in our investigations,” Montgomery County District Attorney Risa Vetri Ferman said…[S]he said she was drawn to the issue after serving as a member of the Joint State Government Commission’s advisory committee on wrongful convictions. The committee issued a report in the fall of 2011.

Applause for Ms. Fermin…except for one thing.  She is against any requirement that recording  be mandatory.  Rather, police and prosecutors should get to decide for themselves whether they want to do this.

“When you’re working in law enforcement and you’re working on the street … you learn there are any number of ways to do” things, Ms. Ferman said. “Why would you try to hamstring police? The goal should be: do it right, do it properly, do it with integrity and do it fairly.”

I can’t agree.  First, police and prosecutors in Pennsylvania have the power, right now, to decide to make recording of interrogations standard practice.  Despite the fact that it is universally applauded by law enforcement in every jurisdiction in which it is required — see the many comments here and in Failed Evidence from police and prosecutors experienced with recording — most agencies still don’t do it.  Second, recording really does make for better law enforcement and better outcomes and fewer false confessions. So there comes a time when those resisting should not get to continue to resist, just because they think they know better.

If a doctor wanted to keep using leeches because he thought he knew better, would we let that continue?

 

 

“The Central Park Five:” New Ken Burns Film Highlights False Confessions

Recall the 1989 case of the Central Park jogger: a young woman brutally beaten and sexually assaulted in Central Park.  The suspects, five young black and Latino men, confessed while in police custody.  Based on those confessions — there was no physical evidence connecting them to the crime, and their DNA did not match specimens at the crime scene — they went to prison.  Years after the fact, a convicted rapist and murderer confessed that he had perpetrated the crime, acting alone.  When his DNA did match, the five men were exonerated by a court.

This case is the newest subject for filmmaker Ken Burns, the man who has made widely-acclaimed multi-part PBS documentaries about baseball, the Civil War, and so many other aspects of American life and history.  In “The Central Park Five”, Burns (joined by co-directors David McMahon and Sarah Burns, his daughter) tells a powerful story of injustice.  A major focus of the film is a central question that will be familiar to readers of Failed Evidence: why would anyone ever confess to committing a serious crime, when the person did not do it?  For example, here is Kenneth Turan, film critic for the Los Angeles Times, in a review heard December 3 on National Public Radio’s Morning Edition:

“The Central Park Five” also serves as a cinematic primer on what has become a disturbing aspect of our criminal justice system: the ability and the willingness of police to psychologically manipulate people into confessing to things they have not done.

Turan’s review lets one of the five exonerated men explain why and how such a thing could happen:

They had made up a story saying something like, uh, ‘well, we have your prints on her pants.’  I’m thinking, ‘how did they take my prints, and put it on her pants?’

Readers of Failed Evidence will recognize what happened here: lies about forensic results and forensic testing are among the perfectly legal interrogation techniques that increase the risk that an innocent person will confess.

Congratulations to Burns and his co-directors for bringing the full story of the case to the nation’s attention.   The question I am most frequently asked, in presentations and interviews of all kinds, remains the same: why would anyone confess to something that the person did not do?  Perhaps The Central Park Five will help give people an answer.

 

Failed Evidence Is Featured on Jurist

This week, Jurist, a national and international legal reporting website, is featuring my commentary on Failed Evidence.   Here’s a quick sample:

[The] image of a deep alliance between police work and modern science is misleading at best. With the exception of DNA work and certain kinds of classic chemical analysis, law enforcement generally does not embrace existing scientific work. In fact, police and prosecutors in the US resist science. The scientific work I am referring to involves the testing of the more traditional techniques of law enforcement investigation and prosecution: not the high-tech sheen of the DNA lab, but scientific testing of eyewitness identification, the interrogation of suspects and the more traditional forensic methods such as fingerprint identification. This is the daily bread and butter of law enforcement, and scientists have found it wanting. The science on these basic police investigation methods has existed for years — some of it for decades. It is rigorous, and has undergone peer review, publication and replication. It tells us what the problems with traditional police work are, and also gives us some straightforward ways of solving these problems. Yet, most — not all, to be sure, but most — of American law enforcement continues to resist this science and refuses to change its basic tactics to reflect the best of what science has to offer.

Jurist mixes straight reporting and commentary from the U.S. and around the world; it’s a great source for anyone interested in issues of justice and how it plays out in domestic and international situations around the world.  (Full disclosure: Jurist is supported by my own institution, the University of Pittsburgh School of Law, and has been guided and run since the beginning by my esteemed colleague, Professor Bernard Hibbitts.)  Check it out.

Alleged Killer of Boy in NYC Cold Case Will Argue His Confession Was False

In a headline-grabbing New York murder case, we will soon get to see whether recording the interrogations of suspects will help cases stand up in court and persuade juries.

In my September 2 op-ed piece in the New York Daily News, I discussed the case against the killer of Etan Patz, a young boy murdered over three decades ago in New York City.   The investigation had been dormant until this past spring, when the NYPD announced the arrest of Pedro Hernandez, a New Jersey resident.  The NYPD said that Hernandez had confessed, and — because the interrogation took place in New Jersey and not New York — the NYPD had a recording of the confession.  This recording would likely not have been made in New York, because — at least at that time — the NYPD continued to refuse to record interrogations, as it had for many years.  (The rule changed in September, when NYPD Commissioner Ray Kelly announced that the NYPD would begin to implement a plan to record interrogations in all murder and sexual assault cases.

At the end of last week, Hernandez appeared in court for a hearing.  According to multiple media accounts, Hernandez will plead not guilty.  The reason: according to his lawyer, Hernandez had confessed falsely because he is mentally ill, and there was no other evidence that implicated him aside from the conviction.

The case will thus make for an interesting test of the utility of recording.  Back in May, when Commissioner Kelly announced Hernandez’s arrest, he made a special point of saying that the NYPD had the interrogation recorded.  For those who had long advocated recording as fundamental to better interrogation practice, the reaction was at once “great!” and “so why are you still resisting the idea of doing this regularly, if it was a good enough idea to do in this important case?”

Whether the defense team will be able to prove that Hernandez was mentally ill at the time of the interrogation, and if he was to prove also that his illness made a difference in the interrogation, remains to be seen.  Even persons with long histories of mental illness aren’t necessarily incapacitated or hurt by these illnesses in every circumstance in which they find themselves.   My guess, without having seen the recording, is that the recording will make it easier for the prosecution to convict.  And that, I hope, will increase the momentum behind making recording of interrogations standard best practice in law enforcement.

Where is Minnesota on Failed Evidence? Part I — Recording Interrogations

I’ll be speaking about my book Failed Evidence: Why Law Enforcement Resists Science (2012) this Thursday, Nov. 8 at the University of Minnesota Law School at 4:30 pm in Mondale Hall.  My talk will be followed by a panel that includes Ramsay County Attorney John Choi and John Harrington, former chief of police in St. Paul and currently the police chief of the Metro Transit Police Department.  The event is free and open to the public.  The Law School is located at 229 19th Avenue South, Minneapolis, MN 55455.

Because I’ll be in the Twin Cities speaking about the book, let’s ask: how does Minnesota stand on the issues covered in Failed Evidence: faulty eyewitness identifications, false confessions, and basic types of forensic evidence?

A good place to start is with interrogations and false confessions.  Minnesota was one of the first two states to require its police officers to record interrogations. Here’s the story.

In 1994, the Minnesota Supreme Court decided the case of State v. Scales.  The evidence of the defendant’s guilt, including statements he made to the police, was overwhelming, and the Supreme Court did not overturn his conviction.  But the justices used the case to require  recording of interrogations in all future cases.

…[W]e hold that all custodial interrogation including any information about rights, any waiver of those rights, and all questioning shall be electronically recorded where feasible and must be recorded when questioning occurs at a place of detention.  If law enforcement officers fail to comply with this recording requirement, any statements the suspect makes in response to the interrogation may be suppressed at trial.

Minnesota thus became the first state with a large population to require recording.

How did this mandate go over with law enforcement?  By all reports, not so good at first; predictably, there was resistance and widespread prediction of a public safety crisis.  But a funny thing happened on the way to this apocalypse: the police became big believers in recording interrogations when they figured out that doing so helped them get convictions and did away with bogus claims of constitutional violations by defendants.  One quote, attributed to Neil Nelson, a former St. Paul police commander, shows up again and again: Nelson called recording of interrogations “the best tool ever shoved down our throats.”

If you are or were part of law enforcement in Minnesota, what are your thoughts about recording? Your experience gives your comments great value.

 

The New Yorker’s “The Hit Man’s Tale” Becomes Another False Confession Story

In the October 15 issue of The New Yorker, Nadya Labi’s “The Hit Man’s Tale” (see the abstract here) tells the story of Vincent Smothers, a killer for hire who plied his trade in Detroit.  It is by turns insightful, horrifying, and fascinating.  And by the end, it turns into another story: how another man confessed to the murder of several people and remains in prison for the crime — even though Smothers says he committed  it.

As is true with many career criminals, Smothers was finally caught, and he confessed to nine homicides, including one involving multiple killings on Runyon Street.  He gave details.  His interrogator believed he was telling the truth, and his statement checked out — all except for one case: the killing on Runyon Street.  Hearing that he had confessed to the Runyon Street killings, a police officer told Smothers, “That’s impossible.  We got the guy…A kid confessed.”  It seems that, seven months earlier, a young man named Davontae Sanford had told the police he had committed those crimes.  Despite inconsistencies between his confession (which he changed multiple times) and the details of the crime, Sanford was convicted.

Interview for the article, Steven Drizin of Northwestern School of Law’s Center on Wrongful Convictions of Youth, said Sanford’s youth and naivete made him a sitting duck.  First, he was a minor, and young people are uniquely vulnerable to pressure in interrogations.  Second, both the judge in his case and his own lawyer told him he should take a plea offer instead of contesting the case at trial.  Sanford did, and remains incarcerated today — despite Smothers having admitted to the crime himself.  And the police fed Sanford details of the crime, which he repeated in his confession, making his words more credible.

The article makes fascinating reading, not least because it morphs from the story of the hit man into the story of a false confession.  And it illustrates the unique power of a confession.  Even without much in the way of other evidence, and with the confession of a man who authorities admit is a contract killer, little may change for Sanford.