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.

Clarity on Miranda: Why the Boston Bomber Won’t “Walk on a (Miranda) Technicality”

For those who want clarity on how the Miranda warnings, and the government’s use of the “public safety” exception, here’s my interview on WESA FM Public Radio on the program Essential Pittsburgh.  This wide-ranging discussion allowed host Paul Guggenheimer and I to thoroughly explore all the aspects of the Miranda warnings.  How it is actually used by police?  Does the warning actually stop people from talking to the police, undermining efforts to prosecute the guilty?  And how it might impact the prosecution of the Boston bombing case?

In the days since the federal government’s announcement that they would not read the Boston bombing suspect the Miranda warnings, under the “public safety” exception, I’ve had some conversations with some acquaintances — all reasonably bright, aware people.  I’ve asked them what they thought would happen to the bomber in the courts if the government did not read the suspect his rights.  The unanimous reply: the Miranda failure means he’ll be freed because some court will let him “walk on this technicality.”  Those conversations, the uninformed media coverage of the issue, and the willingness of politicians of both parties to twist the law for their own political gain are what motivated me to write an op-ed for yesterday’s Pittsburgh Post-Gazette and to discuss the issue on the radio.

Using Polygraphs as a Weapon to Extract Confessions

I’ve written frequently about forensic methods that cannot claim to have any scientific validity, yet end up admitted in court and convicting innocent people.  Among these faulty forensics, bite mark analysis probably ranks highest.

But who would have thought that today, we’d have occasion to think about the role played by a forensic method that is almost never been allowed in court as evidence?

It was nearly a century ago that the forerunner of today’s polygraph began to be brought to courts around the U.S. as a fool-proof, scientific method for detecting lies.  Of course, these devices did not do any such thing, and in 1923 the U.S. Court of Appeals for the D.C. Circuit decided the landmark Frye case, keeping the “systolic blood pressure deception test” out of court.

Nevertheless, the polygraph is widely used — by law enforcement investigators at both the state and federal level, and by private parties too.  The fact that criminal courts in the U.S. only rarely accept the results of these tests (New Mexico is the only state that sometimes allows them to be used in criminal cases) seems almost beside the point; the question “if you’re telling the truth, will you take a polygraph?” is frequently relied upon to separate the liars from the truth tellers in the course of investigations.  This seems to be a questionable way of finding the facts, if courts do not accept the result.  But there it is.

But the Chicago Police Department seems to have taken this dubious practice to a new level.  According to an article in the Chicago Tribune, the Chicago P.D.  ”used their polygraph unit as a tool to obtain false confessions” by not following national standards and even by lying about the results they obtained.

At least five defendants — four of whom were charged with murder — have been cleared since 2002. In a sixth case, a federal appeals court threw out a murder conviction, leading to the release last month of a Chicago mother prosecuted in the death of her 4-year-old son.  A Tribune investigation found that Chicago police have long ignored voluntary standards for conducting polygraph exams, even as those methods and the examiners themselves have factored into cases costing the city millions of dollars in damages.

Read the article for yourself.  I wouldn’t have thought that in 2013,  polygraphs would feature among the causes of wrongful convictions.  But apparently, at least in Chicago, I was wrong.

With 300-plus Cases of DNA Exoneration, In How Many Is the Defendant Actually Innocent?

My  presentation Failed Evidence on January 31 at the University of Toledo College of Law — lively, well attended, and intense — featured a great question that I want to put to everyone.

One person in attendance was a man who is a police chief in Ohio.  He’s had a long and distinguished career; I had the great privilege of working with him some years ago, when I was a member of the University of Toledo faculty.    In one part of my presentation on Failed Evidence, I discussed the more than 300 cases since 1989 in which DNA identification has resulted in an exoneration.   In the Q & A after the talk, the chief asked a question about the 300-plus cases.  I’ll paraphrase: among those cases, he said, there would be some in which the DNA results disproved the conviction, but did not necessarily prove the defendant was not guilty.  This is because, he said, the absence of the defendant’s DNA may not support guilt, but it also does not necessarily prove innocence either.  (I’m hoping I understood his comment/question correctly and am conveying it clearly.) Was I prepared to admit that in at least some of the 300 cases, the defendants might indeed be guilty, even if the DNA had resulted in the defendant’s release and the dropping of charges?

I have had this question asked of me before, and heard it posed to others.  I gave my answer, but I would like very much to hear yours.  What do you think? Is the question correct, or is it based on certain assumptions that may not hold?  What would your answer to the question be?

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.

 

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.