Posts Tagged ‘False confessions’

On February 4, the National Registry of Exonerations published its yearly report for 2013.  The Registry, a joint project of the University of Michigan Law School and the Center for Wrongful Convictions at Northwestern University Law School, collects information on exonerations that have occurred since 1989.  The headlines on the new report (from the New York Times to NBC News to the Huffington Post) nearly all focused on one fact: 2013 saw 87 exonerations, the highest yearly total yet in any year since 1989.

This is a significant fact.  But two other things in the report got less notice and deserve more.

First, for most people, “exoneration” is synonymous with “DNA exoneration.”  This is how the world looks, whether on television (think of CSI and its many clones) or in any news source.  But this view doesn’t reflect the real world.  As the report points out, only about 21 percent of the exonerations in 2013 involved DNA (p. 6).  Despite the impression one gets from the media, this has always been the case; of all of the exonerations since 1989, 72 percent were not based on DNA.  And that difference seems to be increasing.  In both 2012 and 2013, non-DNA exonerations increased significantly, while DNA exonerations decreased (p. 12).

The other fact that many in the media did not notice: for the last two years, the percentage of all exoneration cases resolved with the cooperation of the police or prosecutors has risen dramatically.  In 2012, almost half of all the cases featured cooperation of the police or prosecutors in re-examining cases, leading to exoneration; the average percentage in all the years before (1989-2011) did not reach 30 percent.  The trend continued this year, with almost police or prosecutors cooperating in almost 40 percent of all exonerations.  (A few media organizations, such as Fox News, NPR, and the Christian Science Monitor, featured this fact in their headlines and/or stories.)

This is a very welcome and important development.  While some exonerations have always come about with law enforcement cooperation, this was not the trend.  Despite assurances from Scott Burns, executive director of the National District Attorneys Association that “we always did that, we just didn’t” have a name for the process (see his quote here), the data on the last two years do show a greater willingness to re-examine old cases than in years past.  According to Samuel Gross of the University of Michigan Law School, who edits the Registry, “the sharp, cold shower that DNA gave to the criminal justice system has made us realize that we have to re-examine” closed cases whether with DNA or not.  That idea appears to be sinking on a much wider basis.  And that is all to the good.

 

The International Association of Chiefs of Police (IACP) is one of the leading organizations for law enforcement professionals in the U.S. and around the world.  I regularly turn to their model policy and training documents when working on those issues for police agencies.  So it’s a big deal to see their new report, prepared in conjunction with their partner, the U.S. Department of Justice Office of Justice Programs, announcing that their new effort in which they will play a leading role in fixing the problems in police investigation that cause wrongful convictions.

The report, titled, “National Summit on Wrongful Convictions: Building a Systemic Approach to Prevent Wrongful Convictions,” takes a full view of the issues that must be addressed to avoid convicting the wrong people, and announces a series of recommendations designed to bring the goal within reach.  It is based on work at a summit of people from IACP, DOJ, and a host of experts.  In a preliminary statement in the report, the President of the IACP and the Assistant Attorney General for the Office of Justice Programs, outlined how the report came to be and what it does.

This event gathered 75 subject matter experts from all key disciplines to address and examine the causes of and solutions to wrongful convictions across the entire spectrum of the justice system. Summit participants worked diligently during this one-day intensive event to craft 30 focused policy recommendations that guide the way to our collective mission to continually improve the criminal justice system. The summit focused on four critical areas: (1) making rightful arrests, (2) correcting wrongful arrests, (3) leveraging technology and forensic science, and (4) re-examining closed cases. The 30 resulting recommendations directly address these areas and lay a critical foundation for required changes in investigative protocols, policies, training, supervision, and assessment.

The report makes thirty recommendations on a number of topics: eyewitness identifications, false confessions, preventing investigative bias, improving DNA testing procedures, CODIS, correcting wrongful arrests, leveraging technology and forensic science, and re-examining closed cases with an openness to new information.

The report is absolutely essential reading for anyone interested in wrongful convictions and what can be done to correct them.  Readers of my book Failed Evidence will also recognize that the emergence of this consensus at the top of the law enforcement profession is exactly what I have called for: “Police and Prosecutors Must Lead the Effort” (pp. 158-159).

In mid October, police in New York City announced that they had solved the mystery of the “Baby Hope” case:  at last, they had the killer of a four-year-old child whose body had been found in 1991, 22 years ago.  And the accused killer, Conrado Juarez, had confessed.

Days later, Juarez  recanted the key part of his confession.  He said that under intense pressure by police during a long interrogation, he had lied:  he had not killed the child.  He had only helped his sister dispose of the body at her request.  He said that he had lied about killing the little girl because  “after a while and after so much pressure [from police], I accepted it and said what they wanted,”

The accused may have been telling the truth when he said he killed the victim, or when he said that he actually didn’t.  I certainly don’t know the answer to that.  But one thing that would help to resolve the question would be a video and audio recording of the entire interrogation, from start to finish.  A judge or jury could then look at the entire thing and decide whether the accused was coerced or not.  And over a year ago, NYPD Commissioner Ray Kelly announced that, after a long pilot project, the NYPD would begin recording all interrogations in homicide, felony assault, and sexual assault cases.

But in this case, that was not done.  Instead, a recording of only the confession itself — a statement of guilt by Juarez at the end of the process — was made.  No recording was made of the questioning that lead up to it.  So we have no record of how police got to the point of getting the admission of guilt.  And that leaves the confession in dispute: the accused will argue that he was coerced, and the police will say they did nothing to coerce him.  But there will be no recording for a judge or jury to see.

Why did this happen?  According to the NYPD spokesman quoted in media reports, “only 28 detective squads — there are more than 76 across the city — have an interview room set up with recording equipment.”  The interrogation did not take place in one of those 28 squads.  Getting the equipment into all of those police facilities just takes time, and so far, the Department remains a long way from completely implementing Commissioner Kelly’s order.  (It is worth noting that the detectives in the Baby Hope case did not take the suspect to one of the buildings that already has the equipment  necessary to record.)

Or maybe it’s something else else.  According to Michael Palladino, the head of the NYPD’s detectives union, it’s better if interrogations don’t get recorded.  “There are certain tricks of the trade, I should say, that I think should not play out in front of the jury.”   But the cost of hiding these “tricks” is that we now have uncertainty in the Baby Hope case.  And, after so many cases of wrongful convictions including false confessions — they show up in 25 percent of all DNA-based exonerations — there is a loss of public confidence.

Here’s hoping that things move faster as the NYPD transitions to the recording of confessions.  Assuming that they have the real killer of Baby Hope, we all want the guy off the street.  We don’t need uncertainty introduced because there’s resistance to recording.

According to a new study by researchers at Florida International University, the use of standard interrogation techniques can prompt false confessions by juveniles; the risk is higher with juveniles than with adults.

Dr. LIndsay Malloy, the lead researcher on the study, says that “people need to understand that juvenile suspects are especially vulnerable in the interrogation room,” because “the ways in which we question youth can have potentially devastating consequences in some cases.”

The study by Dr. Malloy and her colleagues, “Interrogations, Confessions, and Guilty Pleas Among Serious Adolescent Offenders.” appears in the journal Law and Human Behavior.  It was funded by the National Institute of Mental Health.  Here’s the abstract::

In the present study, we examined (a) the prevalence and characteristics of youths’ true and false admissions (confessions and guilty pleas), (b) youths’ interrogation experiences with police and lawyers, and (c) whether youths’ interrogation experiences serve as situational risk factors for true and false admissions. We interviewed 193 14- to 17-year-old males (M = 16.4) incarcerated for serious crimes. Over 1/3 of the sample (35.2%) claimed to have made a false admission to legal authorities (17.1% false confession; 18.1% false guilty plea), and 2/3 claimed to have made a true admission (28.5% true confession; 37.3% true guilty plea). The majority of youth said that they had experienced high-pressure interrogations (e.g., threats), especially with police officers. Youth who mentioned experiencing “police refusals” (e.g., of a break to rest) were more likely to report having made both true and false confessions to police, whereas only false confessions were associated with claims of long interrogations (>2 hr) and being questioned in the presence of a friend. The number of self-reported high-pressure lawyer tactics was associated with false, but not true, guilty pleas.

According to the researchers, the results call for “specialized trainings for those who interrogate youth, recording interrogations, placing limits on lengthy and manipulative techniques, and exploring alternative procedures for questioning juvenile suspects.”

You can see the full abstract here.  The study supplies yet another set of reasons to examine carefully our interrogation practices, to give up on interrogation for the purpose of getting a confession (instead, use the UK’s PEACE method), and to record all interrogation as a precondition to using them in court.

 

 

For those in the Chicago area, I’ll be speaking about my book “Failed Evidence: Why Law Enforcement Resists Science” on Wednesday, October 16, at 5 p.m. at Gage Gallery, 18 S. Michigan Avenue.  The event is free and open to the public.  The event is sponsored by Roosevelt University’s Joseph Loundy Human Rights Project, and is part of their annual speaker series.  The link to the event is here.

The next public event for “Failed Evidence” will be in Pittsburgh on November 6, at noon at the Harvard Yale Princeton Club, 619 William Penn Place, The talk will be sponsored by the Allegheny County Bar Association and the Pitt Law Alumni Association.  More details to follow.

Of the 311 cases of wrongful convictions documented by The Innocence Project, about 25 percent include a false confession or false statement of guilt.  Yet false confessions remain the least understood type of justice system error.  Most people still ask, “why would anyone confess to a serious crime he did not commit, without physical abuse, a mental handicap or lack of sobriety?  I know I would never do that.”   Twenty years ago, I would have said the same thing.

Well, if you want to know how false confessions happen — how an innocent person could confess, even supplying details of how the crime was committed that only the perpetrator would know — and if you want to know how this could happen with a fine police detective operating according to the rules — you must listen to the latest episode of the radio show This American Life, called “Confessions.”  Here is the link to the show.  The story (one of several on the theme of confessions) runs approximately 28 minutes

A very brief summary, without giving anything away: A Washington, D.C. detective investigating a murder participated in the interrogation of the main suspect.  The woman denies any involvement at first, but after seventeen hours of questioning, she finally admits to participating in the crime, and supplies many incriminating details.  After the suspect is charged but before her case goes to trial, follow up investigation by police causes the case to fall apart, and a judge orders her released from jail after nine months.  The case is never solved.  Some years later, the same detective is assigned to a cold case unit, and he begins to look into the case again by watching a video tape of the interrogation.  What he sees reveals what went wrong, and it lays out an incredible lesson in exactly how the false confessions come to be.  And we learn that the video tape recording of the full interrogation was actually made just by chance; in the usual course of things, there would have been no recording, and none of this would have been discovered.

For anyone interested in police interrogation, for anyone still asking how an innocent person could ever confess, I cannot recommend this program more highly.  And it’s yet another endorsement of the idea that we must record interrogations if we are ever to solve this problem.

In Illinois, the governor has signed legislation expanding the requirement that police record interrogations.  According to an article in the Chicago Tribune, the new law will require police to record interrogations in cases involving “any of eight violent felonies, including aggravated criminal sexual assault, aggravated battery with a gun and armed robbery.”

In 2003, after a spate of wrongful conviction in Chicago cases based on false confessions, Illinois enacted a law requiring that police must record all interrogations in homicide cases.  (This article reports on the passage of the earlier law.)  The law signed this year originally proposed extending the recording requirement to all cases, but it was watered down in response to opposition from prosecutors and police.

The law in Illinois on recording has what one could call an enforcement provision: no recording means (usually) the statement can’t be used.

…[A]n oral, written, or sign language statement of an accused made as a result of a custodial interrogation conducted at a police station or other place of detention shall be presumed to be inadmissable as evidence against the accused, unless an electronic recording is made of the custodial interrogation and the recording is substantially accurate and not intentionally altered…

With ten years of experience with the 2003 law, it is significant that further reforms were considered both needed and acceptable (at least at some level — law enforcement did not accept the need to record all interrogations).

Attorney Peter Neufeld, one of the founder of the Innocence Project, famously called Chicago the Cooperstown of false confessions.  (See his comments in a 60 Minutes interview here.)  Perhaps these continuing reforms can change Chicago’s reputation — at least a little bit.

 

According to an article from the Syracuse Post Standard and syracuse.com, New York State has announced it will offer grants to law enforcement agencies for the purchase of equipment need to record police interrogations.  Governor Andrew Cuomo’s office announced the availability of the funding on July 15.  Recording interrogations, the Governor said, would prevent wrongful convictions and protect officers from false accusations.  In his words:

“Fairness and integrity form the foundation of our justice system and New York state is committed to providing local law enforcement with the resources necessary to improve the effectiveness of the process,” Cuomo said in a news release. “Wrongful convictions not only harm the innocent, but they allow the actual perpetrators of crime to remain free. The new equipment that will result from this funding will improve the strength of New York’s criminal justice system, making all New Yorkers safer as a result.”

What’s interesting to notice is how the issue is framed in terms of public safety and the integrity of the system.  Yes, recording will prevent the catastrophe of convicting the innocent, but at least as important, convicting an innocent person leaves the real predator on the street, able to kill or rape again.  And the thrust of the idea is to bolster the “fairness and integrity” of the system, because wrongful convictions eat away at both.

Readers, does New York State have mandatory standards, or any standards, for the recording of confessions?  Does your police department record interrogations?  The article states that “345 law enforcement agencies in 58 of the 62 counties statewide video record suspect interrogations, according to the governor’s office,” and supplies a partial list.

I’ve posted here about the ongoing review of cases in the Brooklyn DA’s office, many of them involving confessions taken by one man, now-retired Detective Louis Scarcella.  The  DA’s office has said that it is reviewing all of cases  in which confessions obtained by Scarcella played pivotal roles.  Now comes news that in some of these cases, experts see a disturbing pattern: many of the confessions use very similar phrases at crucial points.  The phrases “you got it right” or “I was there,” or both, recur in at least five of the confessions Scarcella obtained.

According to the Richard Leo, professor of law at the University of San Francisco and one of the foremost experts in the world on false confessions, “[i]t’s hard to imagine all five people used the same exact words…“It almost sounds like a template.”

In unrelated media interviews, Scarcella has uses these very words in a strikingly uncommon way, raising the question of whether the phrases that appear in the confessions came from the defendants, or from him.  According to one article:

In an interview with The New York Post last month, [Detective Scarcella] said he still remembered Mr. Ranta’s confession from a quarter century earlier: “I said: ‘You come from 66th Street. I come from 66th Street. We’re both Italian. Why don’t you tell me the truth?’ So he says, ‘Yeah, you’re right. I was there.’ ”

And talking about a different case during an appearance on the “Dr. Phil” television program in 2007, where he discussed the tactics he used to get suspects to admit their misdeeds, Mr. Scarcella recalled a similar conversation with a suspect. “He says to me, ‘Louis, you were right. I was there, but he kicked me, and I shot him by accident.’ I said, ‘Don’t you feel better now?’ And he’s now doing 37 ½ years to life.”

The review of Scarcella’s cases will continue to unfold, and we need to know whether his knack for getting confessions out of people, some of whom have claimed they never confessed, was due to his uncanny abilities to talk people into truthfully implicating themselves, or whether something else — perhaps something illegal — was going on.

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.