Monday, July 12, 2010

False Confessions

The Chicago Tribune recently published a story on its website about false confessions. I am not sure if it made it to print, but I wouldn't doubt it. It's not hard to see what prompted the story.

Last week it was reported that DNA evidence will likely exonerate a man who had confessed to killing his 8 year old daughter and her 9 year old friend. As it turns out, DNA recovered from the crime scene matches a different man who happens to be in custody in a different state.

And not too recently, a man who had confessed to killing his 3 year old daughter was freed after DNA excluded him as the killer. Riley Fox's father allegedly confessed to not only killing his daughter, but to sexually assaulting her as well.

Kevin Fox, the father, spent 8 months in jail before DNA evidence freed him. A Will County jury later awarded him $15.5 million dollars in a civil suit against the Will County Sheriff's detectives. That award was reduced to $9 million on appeal.

Both of these stories happened here in the Chicago area, thus the recent story in our local media.

Why would someone confess to something horrible that they didn't do? And in these two cases, the act was murdering one's own child. That's about as horrible as it gets. So why? Why do it?

The answer is simple: they have been pushed beyond their breaking point. And this is done on purpose.

Everyone remembers the allegations of torture being used on detainees in the war on terror. Tony Lagouranis wrote a book called Fear Up Harsh. I read it. Tony was a U.S. Army Arabic translator. He worked in Iraq, including Abu Gharib, among other locations. The stories told in his book are on the frightening side.

Besides the human rights issue that discourage torture, there is one other major reason not to use torture in interrogations: it puts into question the accuracy of what the tortured said.

If you were to pull out my fingernails slowly with a pair of pliers, I would tell you anything you want to know. In fact, I would make stuff up if I thought it would make you stop.

That last sentence is why I believe innocent people confess. They want the interrogation to stop. I think it's that simple. There are probably other factors at play, but ultimately, I think people get worn down and can no longer resist repeated suggestiveness.

I am not implying that local police use water-boarding or other quasi-physical torture techniques. But a simple lack of sleep coupled with hunger and extreme mental bombardment obviously breaks some people. In truth, we all have a breaking point. It's part of being human.

Police interrogators are trained to find psychological vulnerabilities and apply pressure. It's not hard to find such areas on people in custody suspected of heinous acts. Add in the fact that, as in the 2 cases around here, the person's child was recently murdered and you have a balloon about to pop.

It is now the law in Illinois that all murder interrogations must be video recorded. That law was not in effect when the two fathers here in the Chicago area, confessed to murdering their children. However, at least one of their confessions was videoed.

The great thing about the video is that the cops know Big Brother is watching. And they know the video is going to be turned over to the defense attorney and possibly played at trial. With the video machine running, any and all monkey business will be captured, thus detectives tend to follow the rules.

I have seen interrogations stopped as soon as the suspect asks for a lawyer. I feel good about this, but sad that it took video surveillance to guarantee that it would happen.

But just because the cops can't beat a confession out of someone, doesn't mean they can't still wear them down. Police interrogations follow the Reid Technique. And it's quite effective.

The article on the Tribune's website described the methods of the Reid Technique as follows:

...interrogations are "well-thought-through psychological manipulations to get a confession."

Police do that by first developing a rapport with suspects. They then give them their Miranda rights, though in such a way that suspects feel they are being uncooperative if they invoke them. Finally, he said, police confront a suspect, saying they know he committed the crime but offering a way out that acknowledges guilt but to something less heinous.

I found this description to be dead-on accurate. Back in April, I was able to get a murder case dismissed. Naturally, I wrote about it because of how rare it happens. But in that case the interrogation was almost identical to what the Tribune described.

That case involved a murder that followed a failed car-jacking. The interrogating detective, as they all do, claimed he was the suspect's friend. He was there to help him. I haven't watched the video in months. But the detective said things like this:

I don't think you're a bad guy.

I don't think you planned for this to happen.

I don't think you planned for him (victim) to end up dead.

I think you just wanted his car.

Then the detective went a step further. He knew the suspect has a young son. He created a scenario that went something like this: if your son stole a bag of chips from a store how would you feel if he lied to you by denying it, when there was proof he had really stolen the chips? Wouldn't you want him to tell you the truth?

Of course the suspect indicated he would want his son to tell him the truth. Then the detective waited to see if he would take the bait. But he didn't.

The suspect, who later became my client, never broke. He maintained from the start he didn't know anything about the murder. But the detective wouldn't give up.

We know you did it. We have proof you did it. Other people know you did it. You know you did it. Stop this bullshit and just admit it.

In the end, it didn't work. Several hours later, the suspect eventually asked for a lawyer. The interrogation stopped. He was charged on next to no evidence. And what evidence they had was fabricated by the police, thus the later dismissal. A civil case may or may not come from the entire ordeal.

Last fall I was at a 2 day seminar downstate. It was dedicated to death penalty cases. One of the topics was false confessions. Currently, there are 2 very well known researchers that have done work on the subject, Dr. Richard Leo and Dr. Richard Ofshe.

Dr. Leo spoke on this matter at the seminar I attended. Dr. Leo described the phenomena of false confessions, his research, and case studies. He asked that we all recognize that they do happen and quite frequently.

According to the Tribune article, up to 25% of wrongful convictions involved false confessions. That's a very significant number and cannot, nor should not, be ignored.

Reid & Associates, creators and purveyors of the Reid Technique of interrogation, now recognize false confessions exist. They have created a chapter in their manual dedicated to this topic. However, and not surprisingly, they marginalize it's occurrence, claiming only minuscule rates.  

As an attorney, a confession is very difficult to deal with. Motions to suppress post-arrest statements are granted less than 1% of the time. If judges don't understand false confessions, asking a jury to buy it is a tough sell.

We were all advised to retain an expert on the subject, like Dr. Leo or Dr. Ofshe. That's sound advice if the money to hire them is available. A great number of the Illinois death penalty cases are litigated by public defenders. And Illinois makes money available for expert witnesses to those defended for free. This is good.

But what about in non death penalty cases? Most Illinois murder cases do not involve a possible death sentence. If the defendant confessed, most likely he's done. There are simply too many cases to sort out legitimate from false confessions.

Where detectives fail (and sometimes prosecutors too) is from lack of objectivity. They bend facts and evidence around their theory of the case. It's supposed to be the other way around. Once they make up their mind what happened and who did it, evidence to the contrary is ignored.

If they think the person waiting in the interrogation room is the bad guy, then he is the bad guy. And all questioning will be centered around that conclusion. Should there be any sort of an investigation, it will also revolve that conclusion.

Largely, I think the cops usually get the right person. But I have been part of too many cases that resulted in charges that followed sloppy and incomplete police work. If I can go stand at the crime scene and clearly determine the version of events the cops bought couldn't have happened, they can to. But more importantly, they already should have.

The Chicago criminal justice system operates with a fast-food mentality: It's cheap. It's quick. But it ain't always right. We defense attorneys are like the patron that checks the bag for accuracy before we pull away. But most don't. Most are in a hurry, thus the drive-in meal choice. And as Joe Pesci once said in a movie "they fu*k you in the drive through!"


False confessions exist. There is substantial proof. Instead of the criminal justice system looking at a confession as compelling proof of guilt, perhaps it should be viewed with suspicion.

The average felony suspect is not intellectually sophisticated. The interrogating officers are trained and skilled in their art. It's really not fair. I don't think most suspects really understand what's going on.

I have personally sat through an interrogation. I am educated. I can smell bullshit a mile away. But the client sitting next to me was not and could not. The detectives dangled an imaginary carrot in front of the client.

Just tell us (what we want to hear) and you will get to go home.
Why is that imaginary? Because the suspect isn't going home if he gives the detectives what they want. No, he's buying himself a case. I have told many, many people that if they are taken into custody never tell the cops anything, no matter what. Ask for a lawyer and shut up. If the cops have enough evidence to pass felony review, they already had it when you were picked up. Don't help them out and give them more.

But so many young men fall for tricks and traps. The coercion is mind blowing. And it's effect spine chilling. Imagine you're 18 and picked up by the cops. You're scared. You're put into a small room with no windows and no furniture. You're handcuffed to the wall. You're alone.

After several hours of being alone, you're confronted with an allegation of which you're innocent. You haven't slept. You're hungry. You want to go home. You deny the allegation. You're accused of lying. You're told there's proof of your guilt. You're told there's video. You're told there's eyewitnesses.

And then you're told that you're being linked to several other crimes. Lastly you're told that if you ever want to see your family again, you will sign a confession. You're given some McDonald's to eat. You're allowed to go to the bathroom. You're surrounded by friends. Some papers are put in front of you. You sign them. You're thanked.

And you're screwed. Badly.

You're not going home. You're going to spend a year in the county jail and perhaps several more in prison. Life, as you knew it, is officially over.

The above scenario never happens if a lawyer is requested. It never does. In truth, the cops don't go call you a lawyer. I rarely get calls to go to a police station, except for the pro bono work I do for First Defense Legal Aid. And even those calls are not coming from the cops. It's family of those just arrested that seek FDLA help. 

Why are so many people unable to say 4 magical words: I want a lawyer.


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