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False Confessions?
The guilty and the "innocent':
An examination of alleged cases
of wrongful conviction from false confessions
Harvard Journal of Law and Public
Policy; Cambridge; Spring 1999; Paul G. Cassell; Given the fallibility of human institutions, the possibility exists that
police might obtain a confession from an innocent person to a crime that he did
not commit. It is even possible that this "false confession" might, in turn,
lead to an erroneous conviction. Despite occasional claims that specific
individuals have been wrongfully convicted as the result of false confessions,
this specific risk has never been the subject of empirical study.
Professors Richard Leo and Richard Ofshe have attempted to fill this void
with what is sure to be a widely cited study of sixty cases of alleged
police-induced false confessions in the post-Miranda era.
According to the
authors, in twenty-nine of these cases the false confession resulted in the
wrongful conviction of an innocent person; These assertions are not advanced in
an effort to right wrongs in individual cases, but rather to justify possibly
dramatic changes in how the justice system handles interrogations and
confessions. Indeed, Leo and Ofshe conclude that the problem of false
confessions threatens the very "quality of criminal justice in America by
inflicting significant and unnecessary harms on the innocent."
They accordingly
recommend that judges should be empowered to review confessions for
"reliability" through close scrutiny of the "post-admission narrative" of
suspects.
In a previous article, I simply assumed that Leo and Ofshe correctly asserted
that all of their cases involved "innocent" persons and discussed what
implications might be drawn from this assumptions Yet this linchpin claim about
innocence is worth examining. All of Leo and Ofshe's policy recommendations rest
on conclusions drawn from police interrogation gone wrong. If they have studied
not interrogation failures but rather its successes, any justification for
change disappears.
More generally, scrutiny of their cases may shed light on an important
methodological question: how can such miscarriages of justice be accurately
identified? Leo and Ofshe rely in large measure on secondary sources for the
descriptions of the evidence against the defendants in their collection. This
approach is understandable. For many cases, court records are available only in
the local courthouses where the trial took place, while media accounts are often
readily accessible in computerized databases. Relying on secondary sources,
however, poses the risk of inaccurate recounting of the evidence. Examining
primary sources for the cases in Leo and Ofshe's collection reveals that this
is a very real problem.
Part I places the issue of false confessions in context. It notes that the
innocent are at risk not only from false confessions, but also from "lost"
confessions-that is, confessions that police fail to obtain from guilty
criminals that might help innocent persons who would otherwise come under
suspicion for committing a crime. In comparing these competing risks, a critical
issue is the relative frequency of false confessions when compared to lost
confessions, a frequency that thus far rests almost solely on the Leo and Ofshe
collection.
Part II then dives into the individual cases. It begins by narrowing the
focus to the twenty-nine persons who were convicted of crimes and then examines
nine of these twentynine cases in detail. Based on review of original trial
court records and other similar sources, the part concludes that each of these
nine persons were, in all likelihood, entirely guilty of the crimes charged
against them.
Part III explores the lessons that might be drawn from the high proportion of
guilty criminals in the Leo and Ofshe collection of "innocent" persons. This
fact suggests that academic research on miscarriages should not rely on media
descriptions of the evidence against defendants. Journalists will all too often
slant their reports in the direction of discovering "news" by finding that an
innocent person has been wrongfully convicted. Reliance on second-hand media
accounts can also obscure particular problem areas by over-generalizing the
false confession problem. When the Leo and Ofshe anthology is whittled down to
the handful of undisputed cases of wrongful conviction, the false confession
problem is revealed to be not pandemic in the American criminal justice system,
but rather concentrated among a narrow and vulnerable population: persons with
mental disabilities. Part III concludes by critiquing Leo and Ofshe's proposal
that judges should closely scrutinize the "fit" between the "post-admission
narrative" of a suspect and the crime facts. Their overbroad suggestion would
result in the suppression of many truthful confessions of criminals who may fail
to give full accounts of their crimes for various reasons. Instead of
suppressing confessions on reliability grounds, we should depend on juries to
decide their truth or falsity, just as we ultimately rely on juries to determine
the guilt or innocence of criminal suspects.
I. THE FALSE CONFESSION PROBLEM IN CONTEXT
When the police obtain a false confession from an innocent person, that
person is placed at risk of being wrongfully convicted. But this is not the only
risk to the innocent posed by police interrogations. The innocent are also
jeopardized when police fail to obtain a truthful confession from the true
perpetrator of a crime. That truthful confession could prevent suspicion from
wrongfully falling on an innocent person and could even exonerate an innocent
person who has been wrongfully charged with, or convicted of, a crime. As I
argued in my earlier article, Protecting the Innocent from False Confessions and
Lost Confessions-And From Miranda,6 weighing these competing possibilities
requires some assessment of the relative frequency of these two risks. The
available empirical evidence provides reason to believe that today the innocent
are more at risk from restraints on police that hinder their efforts to obtain
truthful confessions than from the lack of additional protections against the
comparatively rare risk of false confessions. Moreover, there is good reason to
believe that the
Supreme Court's decision in Miranda has exacerbated the risks to the
innocent. The Miranda decision has reduced the number of truthful confessions,
while at the same time doing nothing about, and probably even worsening, the
false confession problem by diverting the focus of courts away from the
substantive truth of confessions to procedural issues about how they were
obtained.
Professors Leo and Ofshe have written a reply to my analysis, challenging
these points. A detailed rebuttal of their critique is unnecessary here, but a
few responses are in order because they demonstrate the importance of carefully
analyzing the validity of the Leo-Ofshe collection of cases.
Leo and Ofshe first argue that it is impossible to derive any estimate of the
frequency of false confessions because of an obvious lack of precise records and
related methodological difficulties. A "humble" answer of "I do not know," they
write, is the researcher's only proper response to the question of how
frequently false confessions occur. The difficulty is that Leo and Ofshe fail
to follow their own suggestion. Leo and Ofshe ultimately argue that it is "well
established" that "psychologically-induced false confessions occur frequently
enough to warrant the concern of criminal justice officials, legislators, and
the general public." In the popular press, they have made even more sweeping
claims, such as false confessions happen "all the time."
However much Leo and Ofshe would like to disguise the fact, these are not "humble" claims of
ignorance, but rather empirical claims about the frequency of false
confessions-indeed, a claim allegedly strong enough to justify restructuring
police interrogations throughout America.
Leo and Ofshe are also surprisingly tight-lipped about what seems to be a
straightforward way to gain some understanding of the frequency of false
confessions. In my article, I suggested simply drawing a random sample of
criminal cases and determining the percentage of false confessions within the
sample. Leo and Ofshe eschew any such effort, arguing "[t]he project of
quantification is Cassell's, not ours or any other researchers studying . . .
false confessions." This claim is untrue, as my interest in quantification
through sampling is shared by others knowledgeable in the field. For example,
Dr. Gisli Gudjonsson, whom Leo and Ofshe describe as one of the world's "leading
authorities on false confessions," has undertaken precisely this project in no
less than three separate articles, each of which draws a sample with the goal,
among others, of determining the frequency of false confessions.
While Leo and Ofshe quarrel with the applicability of this research from Iceland to America,
they fail to come to grips with the overarching point that the sampling
methodology employed by Gudjonsson could be used to make some estimate of the
frequency of false confessions here. For example, the 1994 sample of 173 filed
cases from Salt Lake City drawn by Bret Hayman and me contains no evidence of
even a single case involving an alleged false confession. Similarly, it seems
unlikely that Richard Leo's 1993 sample of 182 interrogations in the San
Francisco Bay Area contains many-or perhaps even any-false confessions.
Leo
and Ofshe do not explain why they are unwilling to reexamine this sample to see
if it contains any false confessions. Interrogation researchers in this country
have also drawn other samples, apparently without ever encountering any false
confessions.
The dearth of false confessions in all these samples suggests that false
confessions occur quite infrequently, with the result that any effort to
determine frequency will necessarily involve a methodology for estimating low
probability events. My previous article offered one such approach. To estimate
the frequency of false confessions, one should canvass the available empirical
evidence for estimates of (1) the number of criminal cases; (2) the error rate
(that is, the wrongful conviction rate) in those cases; and (3) the proportion
of wrongful convictions attributable to false confessions. Combining these three
numbers will produce an estimate of the number of wrongful convictions from
false confessions. While I acknowledged that gathering evidence of the error
rate is quite difficult, I relied on what appears to be the only plausible
published estimate from Professor Ronald Huff and his colleagues. They surveyed
criminal justice professionals around the country and asked them to estimate the
error rate in the system. Leo and Ofshe call the resulting estimate of the
error rate (below one percent) "empirically worthless"
-apparently a new view
of the quality of the study, as Leo had previously cited this very estimate to
support one of his arguments. If anything, the Huff error rate estimate is
probably too high because of the well known human tendency to overestimate the
probability of extremely low frequency events. It seems reasonable to rely on
the Huff estimate to generate an upper-bound estimate of the frequency of false
confessions. My article then derives a possible range of wrongful convictions
from false confessions to provide an order-of-magnitude assessment of the
problem, an assessment suggesting that such wrongful convictions are quite
rare.
Although Leo and Ofshe refuse to offer even a ballpark assessment of the
annual number of wrongful convictions from false confessions, they remain
confident that the false confession problem dwarfs the lost confession problem.
Although my article explained why Miranda might harm the innocent by blocking
truthful confessions, they claim that no such problem occurs, avoiding any
need to weigh the competing risks. To reach this firm conclusion, they create a
caricature of both my argument and the nation's criminal justice system. Miranda
could harm innocent suspects, they claim, in only two "scenarios": the
"frustrated detective scenario," in which a suspect invokes his Miranda rights
and the frustrated detective nonetheless goes on to obtain a false confession
from an innocent person, and "the ever-diligent detective scenario," in which a
diligent detective continues to investigate a case after it has been solved and
is unable to obtain a confession from the true perpetrator of a crime because of
Miranda. These simplistic scenarios, which Leo and Ofshe misleadingly attribute
to me, fail to capture the more realistic risks Miranda poses to the innocent.
The most fundamental flaw in the scenarios is their simplifying assumption that
only one detective in one jurisdiction is investigating one crime. In the real
world, many investigators from many different jurisdictions investigate many
different cases. In some of these investigations, they will obtain confessions
that exonerate innocent persons. Indeed, Leo and Ofshe unwittingly recognize the
absolving power of confessions when they acknowledge that "reliable confessions
from the true perpetrators are among the leading sources of exoneration of the
wrongfully convicted .... If Miranda impedes police success in interrogation,
it is a logical corollary that it will also impede one of the "leading sources"
of exoneration. The only remaining question, then, is whether Miranda impedes
police interrogation.
Evidence of Miranda's harmful effects is mounting. For example, along with
various co-authors, I have developed empirical evidence of Miranda's substantial
harm to law enforcement. In my most recent articles, I have analyzed the
precipitous drop in crime clearance rates that followed immediately on the heels
of Miranda and concluded that Miranda severely hampered police effectiveness.
Interestingly, even before publication of this analysis, Leo himself concluded
that "Miranda appears to have an effect on the collateral functions of
interrogation" such as "clearing crimes."
Miranda's adverse effect on
clearance rates is of central importance to the innocent, because a reduced
clearance rate means that in some cases detectives fail to obtain confessions
from the true perpetrators of criminal acts that would allow them to "clear" or
solve the case. These lost clearances occur most often when police arrest a
suspect for one crime, but are prevented by Miranda from obtaining confessions
to other crimes he has committed. For example, if police apprehend an armed
robber at the scene of the crime, he may invoke his Miranda rights and prevent
police from learning that he has committed five other similar robberies. If an
innocent person has been charged, or even convicted, for one of these other
robberies, Miranda may well prevent his exoneration.
The possibility that Miranda harms the innocent by blocking confessions from
criminals finds support in real world observations. Professor Sam Gross's
detailed empirical study of wrongful convictions from eyewitness
misidentifications explained that before Miranda, the typical way in which a
miscarriage was discovered was that "the actual criminal was arrested on an
unrelated charged and, after being held in custody for a day or two, she
confessed to the perpetration of all the crimes charged to the misidentified
suspect" Since that time, Gross concludes, such exonerations through true
confessions appear to have declined significantly, with Miranda being a possible
cause.
In light of the competing risks to the innocent from false confessions and
lost confessions, the important public policy question becomes the relative
frequency of false confessions as a cause of wrongful convictions versus true
confessions as a cure for wrongful convictions. My previous article not only
argued that false confessions rarely cause wrongful convictions, but also cited
two studies suggesting that true confessions are among the most common means of
exonerating those wrongfully convicted. For example, Gross reported that
fifty-four percent of the wrongful convictions from eyewitness misidentification
were uncovered when the actual criminal confessed. Similarly, Arye Rattner's
more general collection of miscarriages found that the actual culprit's
confession was the leading means of exoneration, responsible for forty percent
of the exonerations. Leo and Ofshe do not dispute these figures but argue that
I "fail[ to mention" a more recent study in which, they dramatically proclaim,
"0% of the wrongfully convicted and incarcerated innocent were exonerated by a
confession." This contrived datum is meaningless. The study in question,
subtitled "Case Studies in the Use of DNA Evidence to Establish Innocence After
Trial," was specifically limited to the subject of its subtitle-exonerations
through DNA evidence. Thus, by definition, one hundred percent of the
exonerations in the study came from DNA, meaning that zero percent came about
through any other method. The only meaningful data that bear on the overall
proportions come from the two studies I cited, suggesting the prime importance
of confessions in exonerating the wrongfully convicted.
Because the innocent are today more at risk from lost confessions than false
confessions, I proposed replacing Miranda with a system of videotaping
interrogations. This would improve the lot of the innocent, because Miranda
reduces the numbers of truthful confessions, reducing the potential for
confessions to clear wrongfully convicted innocent persons. At the same time,
Miranda does nothing about the false confession problem. It appears to be common
ground among those who have studied the issue, including Leo and Ofshe, that
Miranda fails to protect against false confessions, since those who are innocent
will want to talk to police and waive their Miranda rights.
My argument is
relatively straightforward-not, as Leo and Ofshe intimate, a "newfound
discovery" that has gone "surprisingly unnoticed,"
but rather a simple
development of similar positions long advanced by many other knowledgeable
observers. Indeed, my conclusion appears to be reinforced by an essay recently
written by Richard Leo, in which he argued that "[i]t is even possible that
Miranda-despite its high-minded intentions-has undermined any protection the law
might have otherwise offered against the admission of false confessions into
evidence." Replacing Miranda with videotaping offers a real chance to identify
those rare cases of police interrogation gone bad, while at the same time not
impeding police in their efforts to obtain confessions. Instead of contending on
the merits of these issues, Leo and Ofshe single-mindedly maintain that their
collection of wrongful convictions demonstrates such a serious problem of
wrongful convictions from false confessions that we must restructure the
criminal justice system to erect new safeguards against this particular danger.
Because of the near-exclusive emphasis Leo and Ofshe place on these particular
cases, they should be closely scrutinized. If this examination reveals that the
alleged cases of "false" confessions of innocent persons are actually truthful
confessions from guilty criminals, Leo and Ofshe's policy recommendations could
be seriously flawed. With this premise in mind, then, we can turn to reviewing
the Leo-Ofshe collection.
II. THE LEO AND OFSHE COLLECTION OF FALSE CONFESSIONS
Professors Leo and Ofshe are on the right track in attempting to collect
empirical evidence on false confessions. Many fundamental issues in the criminal
justice system are grossly in need of factual illumination, with police
interrogation and confessions being high on the list. Moreover, an evaluation of
false confessions has never before been undertaken, and any criticisms of the
Leo-Ofshe project should give due regard to its difficulty and its importance.
It is hard to determine if police interrogation is often malfunctioning, but if
it is, that fact would have important policy consequences. Nonetheless, counting
the cases of "false" confessions raises sensitive methodological and evaluative
questions that must be handled far more carefully than done by Leo and Ofshe.
A. Defining Who Is "Innocent"
Discussion about risks to the innocent must first grapple with the question
of who qualifies as an "innocent" person. Previous research on miscarriages of
justice has generally focused on "wrong-person mistakes-the conviction . . . of
the factually 'innocent'." Moving beyond the factually innocent to the legally
innocent would raise a host of questions not readily susceptible to empirical
analysis: what kinds of state of mind defenses (including insanity and
entrapment) were erroneously rejected at trial, when did the quantum of proof
dip below the "beyond a reasonable doubt" standard, and so forth. Leo and
Ofshe
thus wisely avoid this quagmire by focusing on the more discrete and
researchable category of wrong person mistakes. Leo and Ofshe claim to have
discovered sixty cases in which an innocent person falsely confessed to a crime
he did not commit. This article focuses not on this entire collection, but
rather the subset of twenty-nine claimed cases of a false confession leading to
a wrongful conviction. For policy purposes, false confessions leading to
erroneous convictions are the major point of concern. If a person who has made a
false confession is not convicted-because the police do not arrest, the
prosecutor does not indict, or the jury does not convictthen the screens in the
system have at least worked to prevent the ultimate miscarriage of justice, the
conviction of an innocent person. To be sure, false confessions may result in
considerable trauma before a determination of innocence, and, in an ideal
system, no such false confessions would be obtained. I mean in no way to
minimize such concerns, but rather to narrow the focus to the evidence
justifying their claim that additional safeguards are needed in criminal
adjudication? Again, a venerable tradition supports this approach.
Leo and Ofshe also seem to adopt this view implicitly, as the main effect of their
policy proposals is not to reduce false confessions per se, but rather to
prevent wrongful convictions later in the process through such measures as
after-the-fact judicial scrutiny of the credibility of confessions.
B. Determining Who Is In Fact "Innocent"
With the subject clearly defined-factually innocent persons who have been
wrongfully convicted-the question next arises of how to determine who is
"innocent." One could easily take the position that "objective" truth is
unknowable and therefore such determinations lie beyond human capacity.
Professors Leo and Ofshe refreshingly contend that we can determine whether
defendants are truly guilty or innocent. Given that we have a judicial system
specifically designed to make such determinations, a problem then arises. One
could argue, as Ofshe has elsewhere, that "[i]f a decision is ever to be made
about questions of guilt or innocence, it should be made by a jury not by a
contributor for or readers of scientific journals."
The only way to avoid this
problem of the researcher as judge and jury is to confine analysis to cases of
undisputed wrongful convictions, an approach some researchers have adopted.
Here, however, Leo and Ofshe opt to follow what they describe as "[t)he leading
contemporary research" on miscarriages, a study by Professors Bedau and Radelet
on allegedly innocent persons convicted of capital crimes.
This is a cause for
concern, because Bedau and Radelet's catalogue of "innocents" ignores physical
evidence of guilt, incorrectly cites sources that in fact indicated defendants
were guilty, includes works of fiction as proving innocence,
and contains
other serious flaws. More recent work by the same authors is even worse.
Leo and Ofshe promise to avoid such concerns by limiting their collection of
"innocents" to cases in which "no physical or other significant and credible
evidence indicated the suspect's guilt; the state's evidence consisted of little
or nothing more than the statement 'I did it;' and the suspect's factual
innocence was supported .... Their methodology improves on Bedau and Radelet's
by providing a continuum of the evidence of innocence-from cases of "proven" to
"highly probable" to "probable" innocence. But, like the Bedau and Radelet
survey, the problem remains that Leo and Ofshe`s judgment as to who is innocent
is highly subjective and, in more than a few cases, demonstrably wrong. Some
concrete examples will illustrate this point. What follows are discussions of
nine of the twentynine cases, arranged in alphabetical order, in which Leo and
Ofshe claim that an innocent person was wrongfully convicted as the result of a
"false" confession. In these discussions, I review Leo and Ofshe's claim that
no "credible evidence" supported the defendant's guilt?
Based on a more
thorough description of the cases than Leo and Ofshe provide, the reader can
readily see that this claim is untrue and that substantial evidence supported
the guilt of each of these defendants.
1. Barry Fairchild
Leo and Ofshe have one case in their catalog in which they allege that an
innocent man was executed: Barry Fairchild. Fairchild confessed to, and was
convicted of, participating in the murder and rape of Marjorie Mason on February
26,1983. Relying primarily on secondary sources, Leo and Ofshe claim the
confession was coerced and that "no independent evidence connect[ed] Fairchild
to the crime."
The judicial opinions in the case give a decidedly different impression. On
the day of the murder, police chased two suspects who were driving the victim's
car. The suspects escaped on foot. Police later discovered the victim's body
and, among other things, a baseball cap bearing the inscription "CAT Diesel
Power." One witness reported seeing Fairchild wearing such a hat about a week
before the murder, and two officers also recognized the hat as having been worn
by Fairchild on prior occasions. Police also received a tip that Fairchild and
his brother had raped several women in the past. The women reportedly feared
coming forward because they felt Fairchild was dangerous.
Police received a
further tip from a different informant about Fairchild's involvement which
contained information that the police had independently confirmed. For example,
the informant told police that Fairchild and his brother had escaped the police
on foot after the victim's car was stopped. The account was consistent with
events occurring during the police chase.
Several days after the murder, the police received a report that Fairchild
was trying to escape to California by bus. They managed to stop the bus, but
Fairchild evaded them. When eventually caught after hiding in the woods for
several days, "Fairchild's attitude was: 'You got me!' He was willing to
talk." The police took Fairchild back to Little Rock where he gave a
videotaped confession. Although Leo and Ofshe claim that the videotape shows
Fairchild "looking away from the camera and responding to the prompting of
others in the room," this was not the view of the federal district court judge
who carefully evaluated this claim in response to Fairchild's habeas petition.
Judge G. Thomas Eisele, described as a "moderate and fair-minded" judge even by
those who opposed Fairchild's execution, concluded:
I watched Mr. Fairchild making his statements and . . . [h]is statements give
the feeling of truth to me because particularly when he is using his hands to
describe . . . 'And we went up this and down this hill,' he's making an uphill
or downhill [motion] with his hand just automatically as he talks. All of the
incidental body language is corroborative, it seems to me, of what is being
said. And what is being said . . . did not give[ me the impression that it had
been rehearsed . . Rather, it seems to have the indicia of spontaneity and
truth.
Judge Eisele concluded that "[t]he Court specifically finds that [Fairchild]
was not instructed or coached regarding the content of his confessions.
Two years later, on yet another habeas petition, Judge Eisele again rejected
such claims:
This is a death penalty case. It deserves the most careful and serious
consideration possible. Back at the time of the hearing in 1987, the Court
carefully observed and listened to the videotaped confessions-not once but
several times. In light of the issues now being raised. . . the Court has viewed
these videotapes yet again and has also reviewed the [earlier] transcript . . It
finds no reason to depart from the factual finding that I made then. On the
contrary, that review has reinforced the Court's confidence in those findings.
The Court is convinced that no reasonable person could listen to the evidence
presented at the two-day hearing and view the videotaped confessions and still
have any doubt about the involvement of Mr. Fairchild in the rape and murder of
Ms. Mason.
Fairchild's confession "went into explicit detail concerning the abduction,
rape, and robbery of the victim." Details in the confession were corroborated.
Fairchild, for example, said his accomplice had a "little old nickel plate" gun
that was a .22 or a .25. The bullets removed from the victim were .22 caliber.
Leo and Ofshe note that the prosecution acknowledged the confession "was, in
part, not true," apparently referring to the prosecution's stipulation that
Fairchild falsely confessed that his accomplice was Harold Green.
But it could
well have been that Fairchild committed the crime with his brother. If so, or on
the reasonable assumption that the accomplice was a friend of Fairchild's, what
Leo and Ofshe call a "glaring error of fact" actually is a perfectly
understandable deception that, if anything, makes the confession more
believable.
After confessing, Fairchild guided the officers on a crime scene tour and
"gave the directions which brought them all to the scene where Ms. Mason's body
had earlier been found. He pointed out where they left the body."
During the
tour, the officers asked Fairchild about missing jewelry from the victim.
Fairchild asked if a person who had the jewelry would get in trouble. After
being assured that she would not if she had no knowledge of the crime,
"Fairchild then told the officers that his sister had the [victim's] watch. The
officers then drove to Mr. Fairchild's house where they obtained the watch" from
Fairchild's sister. At trial, the victim's father testified that the watch, a
special mail order Cassio diver's watch tested waterproof to one hundred meters,
was "just like" the watch he gave to his daughter for her twenty-second
birthday. The victim's mother said the watch had a "unique" kind of strap on it
and was "Greta's watch." Reviewing this and other evidence, Judge Eisele
concluded that the evidence that the watch was the victim's was "very strong,
indeed, overwhelming." Leo and Ofshe concede Fairchild had a watch "similar"
to that owned by the victim, but note Fairchild testified that he bought the
watch from someone at a pool hall and then sold it to his sister. Fairchild's
trial story seems incredible on its face. Fairchild claimed that this person,
whom he knew only as "Ham," came up and offered to sell the watch.
The "pool hall" was "[j]ust kind of a place."
He did not know what street
it was on. Moreover, as the district court recognized, it was not possible for
the police officers working the case to know when Fairchild confessed that
Fairchild's sister would have such a watch, which in turn would be identical to
the victim's watch. The officers could only have learned these facts "out of the
mouth of Mr. Fairchild" when he confessed. The watch "by itself," the judge
concluded, "make[s] clear the involvement of Mr. Fairchild in the crimes against
Ms. Mason far beyond any reasonable doubt." Leo and Ofshe also claim Fairchild
was vulnerable to coercion because he was mentally retarded, citing an IQ test
conducted by Ruth Luckasson producing a score in the low 60s.
The district
court concluded, however, that "at some point, Ms. Luckasson began to lose her
scientific objectivity and skepticism." The Court recounted problems with her
findings, concluding "her critical opinions in this case [are] flawed and
unsubstantiated by the evidence." The court thoroughly reviewed all of the
evidence concerning Fairchild's mental abilities (in an opinion that, on this
issue alone, spans more than sixty pages in the Federal Supplement), reaching
the conclusion that Fairchild was "clearly not 'mentally retarded."'
This
finding was affirmed by the Eighth Circuit. The Arkansas Supreme Court reached
the same conclusion.
Leo and Ofshe discount all of the evidence of guilt based largely on a
segment aired on ABC's 20/20. In the program, various men claimed to have been
pressured to confess to the murder, and Fairchild recited claims of abuse as
well. The program conceded that the bulk of the allegations had been rejected by
Judge Eisele but failed to mention that Judge Eisele's rejection came only
after a seventeen-day evidentiary hearing, after which he made 133 pages of oral
findings from the bench, and entered a 413-page written order on the remaining
factual and legal issues. Judge Eisele concluded that the new claims "did not
change [his] prior finding that Fairchild's confessions were voluntary."
The
judge observed "there was no direct evidence presented at the hearing that
Fairchild had been forced to confess." Any abuse was improbable because it
would have taken place in "an area where many officers were present. And they
were constantly coming and going. And the officers present were not under only
one command. They were from a variety of police jurisdictions."
The judge also
found that supporting testimony tracking Fairchild's new story "was not credible
and was manufactured to conform with Fairchild's claims."
The Court of
Appeals, after "careful review of the record," upheld the district court's
finding that the confession was voluntary and added "[t]he evidence does not
support any other conclusion." Leo and Ofshe give no reason to credit the
allegations aired in the 20/20 program over the contrary-and conscientiously
determined-findings of the judicial system.
2. Joseph Giarratano
On February 4, 1979, Barbara Ann Kline and her fifteen year old daughter
Michelle were murdered in their apartment in Norfolk, Virginia. Michelle was
raped and killed some time before her mother. Police immediately suspected
Giarratano, who was living in the same apartment but had disappeared on the
night of the murders.
The next day, hundreds of miles away in Jacksonville, Florida, Giarratano
approached a uniformed police officer eating breakfast. Giarratano told the
officer that he had "killed two people in Norfolk, Virginia, and wanted to turn
himself in." Giarratano explained that he had killed a
"lady in Norfolk" in an argument over some money and then raped and strangled
the lady's daughter. Giarratano repeated the same account to another patrol officer, except he made
no statement about a sexual assault. The following day, Giarratano was
interviewed by two detectives from Norfolk who had examined the crime scene.
After they told Giarratano that "they had been there," Giarratano admitted his
earlier confession "was not the way it was." He proceeded to give a detailed
confession to the killings, explaining he had raped the daughter and then
strangled her. He left the apartment and later returned. When the girl's mother
arrived and unlocked the door to the apartment, Giarratano jumped out. She
started screaming, so he stabbed her two or three times.
(An autopsy revealed
that the victim had died from three knife wounds.) He
left two dogs behind in the apartment and headed
for Florida. Giarratano said he had stabbed the
mother because she "would know I was the one that killed Michelle and I wanted
to keep her from talking."
Within the next few weeks, Giarratano was interviewed by a staff psychiatrist
at a state hospital concerning the effects of drugs-cocaine, Dilaudid, and
possibly alcohol-that Giarratano had consumed at the time of the crimes. The
psychiatrist testified that the drugs would "loosen his controls."
As for
reversal of the time sequences and differing accounts of the crime, the
psychiatrist testified that this was attributable to the combination of drugs
resulting in "peripheral neuropathy, loss of recent memory" producing
"confabulat[ion]."
The defense psychiatrist reached the same conclusion. In a lengthy interview,
Giarratano described the crimes in detail, giving an account that was
"substantially consistent with the one which he gave the Norfolk police."
Giarratano said he killed the daughter when she infuriated him by resisting his
attempt to have intercourse and then killed the mother.
The psychiatrist
concluded: "Mr. Giarratano was very credible in his description [of the crime]
during the Clinic interview." Based on interviews with Giarratano and his
family members, the defense psychiatrist concluded Giarratano's "'previously
suppressed rage and anger' had been 'reactivated by the sequence of events
(with) Michelle' and that the murders were 'symbolic acts' by which the
defendant's hatred was discharged against persons he identified in his mind with
his mother and sister." It is worth noting that Giarratano had a history of
active involvement in drugs and violent outbursts.
To cast doubt on these repeated confessions, Leo and Ofshe rely on inaccurate
descriptions of the crime apparently generated by avowed death penalty opponents
seeking to overturn Giarratano's capital sentence. For example, while Leo and
Ofshe claim that hair samples did not link Giarratano to the crime,
in fact
one of the pubic hairs "found on Michelle's left hand, stomach and pubic area
was consistent in 'race, color and microscopic characteristics' with one of
[Giarratano's] pubic hairs." Leo and Ofshe report that one fingerprint found
at the scene of the crime matched Giarratano's, but in fact seventeen
matching prints were found. Leo and Ofshe also contend police found no blood
on Giarratano's clothing, but in fact human blood type O-the same as one of the
victim'swas found on the front and side of one of his boots.
Leo and Ofshe
further claim that the murder was committed by a right handed person and
Giarratano was left-handed with only limited use of his right hand due to
childhood neurological damage. Both points are questionable. A belatedly
hired defense analyst did opine, after viewing crime scene photographs, that
"the sharp edge of the knife . . . was upward. This is typical of a right-handed
person assaulting the victim from behind." As is obvious, this is a far cry
from proving that a right-handed person committed the crime; the sharp edge of
the knife would be "upward" on any number of different attack scenarios, and any
additional analysis would be largely guesswork without further information about
the precise position of the murderer at the time of the crime. And although Giarratano has told his apologists that the neurological damage in his right
hand was long standing, his own medical materials suggest that "right upper
extremity sensory deficit" was attributable to a wrist laceration associated
with his 1983 suicide attempt-some four years after the murders -- during which
Giarratano was hospitalized for "having severely slit his right wrist."
At
the time of the murders, it should be noted, Giarratano was sufficiently
dexterous to work on a scallop boat. The feeling one gets reviewing the
inaccurate second-hand accounts is that opponents of the death penalty have
distorted the record on Giarratano's guilt for their own purposes. Accordingly,
one should be exceedingly cautious in relying on their secondary accounts of the
"evidence" in the case.
3. Paul Ingram
Paul Ingram was arrested on November 28, 1988, following complaints of sexual
abuse from his daughters, then eighteen and twenty-two years old.
Ingram
waived his right to counsel and made incriminating statements that day.
Additional incriminating statements followed during an investigation over the
next few months. On May 1, 1989, Ingram pled guilty to three counts of third
degree rape with each of his daughters. In October of 1989, Ingram retained
new counsel and moved to withdraw his guilty plea. He claimed his original plea
resulted from "a variety of influences including deception, brainwashing,
religious and familial coercion" at the hands of friends, counselors, and
others.
At a hearing on the motion to withdraw the plea, Ingram denied participating
in any abusive conduct and claimed that the sexual acts he admitted were not the
products of conscious memory, but rather were "visualizations."
Ingram further
testified that, near the end of July, 1989, he suddenly realized that he did not
commit these crimes. The supporting expert for the defense was Richard Ofshe,
who testified that the incriminating statements resulted from accidental
hypnosis and fantasies during questioning. Ofshe, however, admitted
specifically that "[c)ertain factual questions are beyond the scope of my
professional expertise. I do not know nor do I have any opinion as to whether or
not Paul Ingram committed one or more sexual assaults on his daughters."
Three psychologists testified for the state and "generally agreed that Ingram's
statements were real recollections and not the products of any alleged trances
or hypnosis." One, a family counselor hired by the defense, submitted a
report "that reflected statements by Ingram acknowledging long-term abuse of his
children and involvement in 'incest, sodomy, and homosexual activity."'
After six days of testimony, the trial judge noted the obvious-that he was a
"neutral person in this controversy." Accordingly, the judge's findings,
after hearing directly from Ofshe, provide an opportunity to test Leo and
Ofshe's claim that their views would be accepted "by an overwhelming majority of
neutral observers." The judge, however, disagreed with Ofshe and found the
confession to be true.
After listening to the tape of Ingram answering police questions on the
afternoon of his arrest, the judge observed that "not terribly long" into it
Ingram "essentially confess[es] to molesting both of these young women."
Given that Ingram was a law enforcement officer, the judge also found it was
"highly, highly unlikely that he would be convinced to confess unless he were
guilty." Moreover, the admissions that daymade before any contact with
psychologists or others who allegedly coerced him-contained "'virtually
incontestable evidence of guilt."' During questioning, "Ingram told officers,
among other things, of sex practices used to prevent pregnancy with one of the
daughters, of that daughter's abortion. . . when she did become pregnant by him,
and of having anal intercourse with the daughter during her menstrual period so
that 'the bed wouldn't get messed up."' The abortion also provided supporting
physical evidence of sexual abuse, as Ingram did "not suggest that this abortion
did not in fact take place or was not verifiable."
The trial judge further found that the three state witnesses were "more
credible than Dr. [sic] Ofshe" and that Ofshe was
"considerably less qualified" than the other witnesses "to give opinions in this
area." Ofshe's
testimony was not credited, in part, because he was "not a clinical
psychologist" and "not an expert in sex abuse."
In addition, the judge found
that Ofshe conducted an "odd" experiment in an effort to show Ingram was
spouting back information fed to him by the police. While Ingram confessed to
a scenario fed to him by Ofshe, Ofshe had chosen facts that "came pretty close
to what one of the victims had accused the defendant of" rather than something
"totally foreign from anything that could probably be true."
With respect to
Ofshe's claim (based on "reading a dry record") that Ingram was in an "hypnotic
state, or in a trance" when he confessed, the trial judge stated: "I find that
to be strange. I wonder if that can be done [i.e., determining that someone is
in a hypnotic state from merely reading a transcript]. I have great cause for
concern with that." The judge also found it strange that two weeks after
Ingram pled guilty, Ofshe contacted him Ofshe told Ingram, "You're innocent," to
which Ingram responded, "No, I'm guilty." A few weeks later, Ingram switched
to agree with Ofshe.
The judge also concluded that Ingram's new claims were incredible. The judge
noted that Ingram's position was that "his mental state and his memory were
good" up to his arrest, then until mid-July of 1989 his memory was poor, and
then after July of 1989 "his memory was good again."
"I just don't believe
that," the judge concluded, emphasizing "I just have to say that straight out .
. . I believe his testimony is impeached, and I believe that he is somewhat of a
manipulator."ls The judge further observed that the two daughters had each
accused their father of abuse and that "there is no real reason that's been
given to me here in this courtroom, why they have or would falsely accuse their
father." Indeed, the daughters' allegations developed in a "rather logical"
fashion. To be sure, the court noted, there were "inconsistencies in their
statements" and "exaggerations" about fantastic satanic sessions that in all
likelihood never occurred. Such features, however, are "not an unusual thing"
when a person has "been subjected to severe sexual abuse over a period of
years." In any event, Ingram was not charged with any form of satanism but
rape of his daughters. "I just find that he did it," the trial judge concluded.
These findings were upheld by the Washington Court of Appeals,
and habeas corpus challenges to them were rejected by the United States District
Court for the Western District of Washington and the Ninth Circuit.
Leo and Ofshe do not appear to claim any new evidence has surfaced since
then, relying primarily on an old article by Ofshe himself. This is a curious
supporting citation. Ofshe wrote there that "[i]t is impossible for anyone other
than those directly involved to know whether or not Paul Ingram" sexually abused
his daughters and that
[t]he point of the present paper is not to argue Mr. Ingram's innocence. No
attempt has been made to develop the analysis and marshall [sic] evidence [to
that effect] . . . If a decision is ever to be made about questions of guilt or
innocence, it should be made by a jury not by a contributor for or readers of
scientific journals.
What appears to be the only new development since then tends to confirm
Ingram's guilt; at a 1996 hearing before Washington's Clemency and Pardons
Board, Paul Ingram's son made the first public disclosures about his own
childhood sexual abuse by his father. The Board also heard from Ofshe, but
denied clemency.
4. Richard Lapointe
In 1992, Richard Lapointe was convicted of sexually assaulting and murdering
his wife's eighty-eight year old grandmother, Bernice Martin, and then setting
her apartment on fire. Leo and Ofshe claim, citing a tract prepared by a group
called "The Friends of Richard Lapointe," that "[n]o physical evidence . . .
linked Lapointe to the crime."ln In fact, as the Connecticut Supreme Court noted
in affirming the conviction, "a stain on the victim's bedspread was human semen
from a person who was a secretor with Type A blood. [Lapointe] has Type A blood
and is a secretor. Also the stain lacked sperm, which is consistent with the
semen of a person who has had a vasectomy. [Lapointe] had a vasectomy" before
the murder. Other evidence also pointed to Lapointe. When a relative called
Lapointe's wife to express concern about the victim on the night of the murder,
Lapointe picked up another phone, without being asked to join the conversation,
and volunteered to check on the victim himself. He then took a less-than-direct
route to her apartment, where he smelled smoke and felt heat from the door.
Although unable to gain access, he telephoned the relative from a neighboring
apartment to report everything was fine. When the relative said she was going to
check herself, Lapointe promptly returned to the victim's apartment and
"discovered" the fire. After the murder, "before any information regarding a
possible sexual assault became known to the police or the public, Lapointe
stated [to a friend] that 'it was [a] shame they killed an old lady, but they
didn't have to rape her, too.' When later asked how he learned that the
victim had been sexually assaulted, Lapointe said "he had been informed by a
doctor at the hospital on the night of the murder."
The medical personnel
involved, however, unanimously testified to the contrary.
During a police
interview before suspicion centered on him, Lapointe also "exhibited
considerable curiosity concerning the results of the autopsy and asked if there
had been causes of death other than smoke inhalation." Ofshe and Leo claim it
was "virtually impossible" for Lapointe to commit the murder because his wife
provided an alibi for all but thirty to forty-five minutes of the day. But the
police reinterviewed Lapointe's wife on the day he confessed. She conceded that
Lapointe left their house around the time of the murder, contrary to the story
both she and Lapointe previously gave police.
On the day he confessed, Lapointe voluntarily came to the police station and
waived his Miranda rights. Tests performed later revealed that Lapointe had "a
full-scale intelligence quotient (IQ) of 92," within the average range.
Within an hour of questioning, Lapointe "became quiet, slumped down in his
chair, sighed and stated, 'I killed her.'" Lapointe then denied making that
statement and asked the detective whether it was possible to kill someone and
not remember. When the detective said it was possible, Lapointe confessed orally
and, in a one-sentence signed statement, admitted killing the victim and then
blanking out. The detective tried to elicit more details, and Lapointe gave
another brief confession. Next another detective interviewed Lapointe and
recounted the reinterview of Lapointe's wife that had destroyed his alibi.
Lapointe proceeded to give a more detailed account of his murder. He said, among
other things, that he removed the victim's underwear and threw it to the right
of the bed, where it was in fact found. He confessed to raping the victim and
then ejaculating on the bedspread. The semen was found on the bedspreadl8 and no
sperm was found on the victim's body. The detective asked whether the victim
screamed and Lapointe said she had not. To test Lapointe, the detective falsely
said that a neighbor had heard screams. Lapointe adamantly denied the victim had
screamed.l87 Lapointe said that he obtained a steak knife with a brown plastic
handle and stabbed and strangled the victim. A melted brown plastic knife handle
and blade were found near the victim.
Relying on second-hand newspaper accounts, Leo and Ofshe claim Lapointe's
confession should be discounted because of alleged inconsistencies. For example,
Leo and Ofshe claim the confession to penile rape was inconsistent with the
evidence because "[i]n fact, the victim was raped with a blunt instrument."
The medical examiner, however, did not attribute the victim's injuries to a
foreign object, but testified that the victim suffered "blunt trauma."
In
neither his report nor his trial testimony did he attribute these
injuries to a foreign object. Leo and Ofshe also contend that Lapointe's
confession to "killing" the victim on the couch was inconsistent with "[m]edical
testimony establish[ing] that she was not killed while on the couch."
There is
no discernible inconsistency between medical testimony and the confession on
this issue. Firefighters found the victim on the floor close to the couch,
and
the medical examiner testified that she was alive during the fire because the
stabs wounds were not the cause of death. There is thus no conflict with Lapointe's confession that he "stabbed Bernice in the stomach while she was
laying on the couch," then set the fire and left. In any event, all of the
evidence concerning Lapointe's confession and its alleged inconsistencies was
presented to the jury. Leo and Ofshe offer no new credible evidence to discredit
the verdict. It is worth noting that the continued unfounded suggestions that Lapointe is innocent remain a source of considerable distress for the victim's
family.
5. Jessie Misskelley
In 1994, Jessie Misskelley was found guilty of participating in the murder of
three eight-year-old boys - Steven Branch, Christopher Byers, and Michael Moore.
Police interviewed Misskelley about a month after the boys were found dead in a
creek-tied up, beaten, and mutilated. Although Leo and Ofshe assert the
confession was "inconsistent with the facts of the case,"
it was in fact proven
beyond a reasonable doubt to be consistent in its most important respect
- the
identity of the main killers.
About a month after the gruesome murders, police asked Misskelley to come to
the station house in order to answer some questions. Misskelley admitted that he
watched as two of his friends-Damien Echols and Jason Baldwin-beat and abused
the young boys, and that he (Misskelley) kept one of the boys (Michael Moore)
from escaping. Based on this incriminating statement, police arrested Echols
and Baldwin as principals in the murders and Misskelley as their accomplice. The
accuracy of Misskelley's identification of Baldwin and Echols as the killers was
established by guilty verdicts at a separate trial resting entirely on
independent evidence, because Misskelley's confession could not be used as
evidence at that trial. That independent evidence included clothing fibers
found on the victims' clothes that were microscopically indistinguishable from
items found in the Baldwin and Echols residences, and from various witnesses
who heard Echols and Baldwin admit committing the crimes.
The capital
sentencing phase also included grisly testimony from a defense psychiatric
expert who said Echols believed, among other things, drinking blood of others
gave him special powers.
At Misskelley's trial, the prosecution acknowledged some discrepancies
between Misskelley's confession and the crime scene, but identified a number
of consistencies knowable only by someone with first-hand knowledge of the
crime. These details included not only correctly identifying Echols and Baldwin
as the killers, but also the following:
Misskelley confessed that, when he left the scene, the Byers boy was already
dead on the ground; there was evidence that the creek contributed to the deaths
of the other two boys, but not the Byers boy.
Misskelley confessed that the Byers boy was cut on his penis; the Byers boy
was the only boy found with severe genital mutilations.
Misskelley confessed that one of the boys was cut on the face; one of the
boys had facial lacerations.
Leo and Ofshe also report that "numerous" witnesses placed Misskelley at a
wrestling competition forty miles from the crime scene.
This wrestling alibi
would, in the colorful phrase of reporters covering the trial, be "pinned for
the count." Two of the alibi witnesses had previously given statements to the
police that they were unaware of Misskelley's whereabouts on the night of the
murder. According to the reporters, the prior statements "destroyed any
credible
Misskelley alibi." In any event, at trial, the defense fully explored all
of the issues. Although Misskelley did not take the stand, his attorneys
presented extended testimony from an expert, none other than Richard Ofshe,
about the alleged false confession. The jury nevertheless convicted Misskelley, and nothing in Leo and Ofshe's account suggests that any significant
relevant evidence was kept from them.
Developments since Misskelley's trial, not discussed by Leo and Ofshe,
strongly confirm the verdict's accuracy. After his conviction, Misskelley
confessed two more times. On the drive to the state prison, after he was assured
that nothing he said could be used against him, Misskelley gave a detailed
statement about the crime. Prosecutors then arranged for a
judicially-approved interview of Misskelley, over the strenuous objections of
his defense attorneys. In the forty-minute recorded interview, Misskelley
provided details about the crime. Misskelley said that, when he got off work at
dinnertime, he went to a wooded area with his friends Echols and Baldwin.
When three boys entered the woods, Echols jumped them. When they resisted, he
(Misskelley) and Baldwin had entered the fray. Misskelley grabbed the one with
the blue boy scout uniform (Michael Moore) to prevent his escape.
To keep him
under control, Misskelley hit him repeatedly on the head. Misskelley then
watched as one of the other boys was cut on the penis, recounting that "I seen
blood fly."* Misskelley also explained how the boys were tied up with
shoelaces from their shoes. When first questioned by police, he had said that
the boys were tied up with rope to throw the police "off track."
Misskelley left
before Echols and Baldwin, carrying with him a bottle of whiskey, which he
busted under a highway overpass close to the woods. Prosecutors and defense
counsel went to the overpass and found a broken bottle at the indicated
location. The broken bottle neck matched a bottle of Evan Williams Kentucky
Bourbon, the kind Misskelley said he drank the day of the murders.
6. Bradley Page
Bradley Page, a student at U.C. Berkeley, was convicted of voluntary
manslaughter for the 1984 murder of his girlfriend, Bibi Lee. On the morning of
the murder, after several fights between Page and Lee left the atmosphere
"tense," Page, Lee, and another woman went jogging in a secluded area. Lee
separated from the other two; Page later went back to look for Lee by himself.
He returned fifteen minutes later seeming "angry," "worried," and "somewhat
scared and confused," claiming not to have seen her.
Page convinced the other
woman to drive back with him the ten miles to campus, leaving Lee to her own
devices, a decision the woman "was not comfortable with."Page did not seem
particularly concerned about Lee during the rest of the day. The next morning,
the police, who were summoned by one of Lee's worried roommates, were told by
Page that Lee had disappeared while jogging. Page denied that he was upset or
angry the morning of the run. A search with bloodhounds and Explorer scouts of
the area failed to locate Lee that day. Her body was eventually discovered
several weeks later in exactly the same area where Page had gone looking for her
while jogging.
After discovering the body, police questioned Page, who denied knowledge of
the crime. Page then agreed to take a polygraph test. On the third time through
the questions, Page began "wailing," making it impossible to continue the test
The polygraph examiner noticed that Page did not exhibit any physical signs of
crying. Based on the first two tests, the examiner concluppropriate
adult then is present during questioning to "advise the person being interviewed
and to observe whether or not the interview is being conducted properly and
fairly." Id. para. 11.16. It would be interested to see whether such an approach
could be transferred to the United States. Curiously enough, the biggest
obstacle might be Miranda doctrine, since the "appropriate adult" would arguably
be an attorney. Of course, once present an attorney would probably prevent
questioning of any sort-no matter how proper and fair. 386. See Cassell, supra
note 5, at 534-38. 387. See Commonwealth v. Daniels, 321 N.E.2d 822, 828 (Ma
1975) (suggesting expert testimony on mental retardation might be required at
confession suppression hearings). 388. See E. Paul Holmes et al, Learning
Street Smarts for an Urban Setting, 20 PSYCHIATRIC REHABILITATION JOURNAL 64
(1997). 389. See supra notes 89-90 and accompanying text (discussing
psychiatrist who lost "her scientific objectivity and skepticism" to render an
opinion that a defendant sentenced to death was mentally retarded and therefore
ineligible for the death penalty). 390. See, e.g., supra notes 200-26 and
accompanying text (noting involvement of Misskelley, who had low IQ, in crime).
The available research, however, suggests that overall very low IQ's are
disproportionately underrepresented in the criminal population. See JAMES Q.
WILSON & RICHARD J. HERRNSTEIN, CRIME AND HUMAN NATURE 154 (1985).
391.
For discussion of a more general response to the problem of wrongful convictions
from false confessions, see Cassell, supra note 5, at 538-56. 392. This may be
the appropriate point to explain briefly how I came to examine nine particular
cases in detail When preparing a response to the Leo and Ofshe's article, I had
initially intended to use a single case to illustrate problems associated with
their subjective determination of innocencemous opinion written by Judge Clinton White, a former
public defender from Berkeley not known for credulously accepting police
accounts of crimes. The court explained that "despite Page's claim to the
contrary," the prosecution's case "did not rely solely on his naked confession.
In reality, the confession was supported and corroborated by the internal
details Page supplied -- details that only the killer could know-such as the
location of the body, the location of head and nose injuries,
and the
method of burial." The Court of Appeals also noted that Page's explanation at
trial for the confession "strained the jury's credulity to the breaking point.
His explanation was rife with internal inconsistencies, and was also
inconsistent with the explanation he gave the officers in his final taped
statement."
Leo and Ofshe further assert that in 1994 Michael Ihde was identified as
Lee's murderer. This bold claim is supported with a citation to "CBS News"
(more precisely the "Connie Chung" show) which said that Ihde was a possible
suspect in the killing. Noting that Lee was an Asian-American, Leo and Ofshe
claim Ihde was the real killer because he admitted "that he killed three San
Francisco Area women-one of whom was non-white." In fact, Ihde
admitted killing a "black' woman. Ihde's modus operandi was also inconsistent with the
Lee murder.248 Leo and Ofshe claim that Ihde's "appearance was consistent with
the reported eyewitness evidence" in Page's trial.
This is apparently a
reference to testimony from a defense witness, who said she saw a person she
thought was Lee being pulled into a van by a man "in his mid-40s, 6 feet to 6
feet 3 inches, 220-225 pounds with a prominent beer belly, beard, and unkempt
curly hair." This testimony was severely undercut at trial,2 and in any event
is not remotely "consistent" with Ihde's appearance. At the time of the murder,
Ihde was a "meth freak," approximately six feet four inches, 150
pounds-wiry, as skinny as a rail, with bright red "carrot top" hair.
Ihde was also without a
car when Lee was killed.2s It is therefore unclear how Ihde could have driven to
the area where Lee was supposedly seen being pulled into a van, which was itself
several miles from where she was jogging. It is much less clear how Ihde would
have figured out how to drive back to bury Lee in precisely the same area where
she had been jogging with Page.
7. James Harry Reyos
James Harry Reyos was convicted in 1983 of murdering a Catholic priest,
Patrick Ryan, in a hotel room in Odessa, Texas. Leo and Ofshe list Reyos in the
"proven" innocent category. The source for this strong assertion is a letter
Dennis Cadra sent to the Texas governor two days before Cadra left the district
attorney's office that handled the case. Cadra was a prosecutor in the office
that prosecuted Reyos, but did not personally handle the trial.
Cadra`s letter argues it "was physically impossible for Mr. Reyos to have
committed the crime for which he was convicted."2 The letter recounts that
Father Ryan was murdered in Odessa sometime between 7:00 p.m. and midnight on
December 21, 1981. The letter claims, however, that Reyos was in Roswell, New
Mexico until 8:00 p.m. on the 21st and got a speeding ticket around Roswell at
12:15 a.m. early the next morning. This leaves only four hours and fifteen
minutes to drive 200 miles to Odessa to commit the murder and then return. To do
this, the letter concludes, Reyos "would have had to have averaged a driving
speed of over 111 miles per hour."
This all sounds quite persuasive until one compares the
letter's claims with the original trial transcript. To put Reyos in Roswell until 8:00 p.m. on the
21st, the letter relies on testimony from David Myers, a dormmate of Reyos's at
college, who testified (according to the account in the letter) that he hung out
with Reyos at some point "between the l9th and the 22nd."
The letter makes
further arguments to exclude all of these days but the 21st, creating Reyos'
alibi. Myers actually testified, however, that he had spent time with Reyos
"[s]ometime before Christmas of 1981," on a day that was "probably not the
24th." The first few lines of the trial transcript of the prosecutor's
cross-examination of Myers proves that the letter's representations about the
dates being limited to between the 19th and 22nd are simply inaccurate:
Q: Mr. Myers, you said this visit could have been the night of the 23rd?
A: Yes, sir.
Q: Or the night of the 22nd?
A: Right.
Q: You are not sure?
A: No, I am not.21
Myers's testimony, given a year-and-a-half after the murder, thus leaves
entirely open the possibility that he met Reyos on the 23rd, not to mention the
22nd, leaving Reyos without an alibi on the 21st. Not only was Myers unsure
about the date, but Reyos did not tell police when questioned five days after
the murder that he was with Myers on that night. Because it is unclear even
what day Reyos was with Myers, the seemingly precise "111 miles per hour"
calculation rests on a foundation of sand.
The ease of collapsing the supposed "proof" of Reyos's innocence should
itself be strong evidence supporting the jury's verdict. But even if Myers
firmly testified to hanging out with his old dorm mate on the night of the 21st,
the jury could have simply credited other trial testimony-none of which is
discussed in the letter. Olivia Gonzales, for example, testified that she saw
Reyos driving the victim's car by himself the day after the murder.
If the
jury believed her testimony-and nothing in the cross-examination cast real doubt
on it - it would be powerful evidence of guilt Evidence was also presented that Reyos performed oral sex on the victim the day before the murder, although Reyos
gave an incredible account that the victim had "forced" him to do it.
Nonetheless, it was undisputed that early on the day of the murder, Reyos went
to the victim's house seeking a ride.
The jury also had before it confessions made by Reyos. The letter discounts
these based on testimony from a psychologist concluding they were false
confessions. However, cross-examination at trial established that this opinion
rested heavily on Reyos's honesty during psychiatric examinations.
Moreover,
the psychologist relied exclusively on psychological profiles and never compared Reyos's confessions with the physical crime scene evidence. A comparison
suggests the confessions were truthful. Reyos first called a 911 operator about
the killing and said "[y]ou are talking to the killer."
When police came to
his hotel room to question him about the call, Reyos said he killed the victim
"[w]ith a razor, but I mostly beat him." The medical testimony established
that the victim was beaten to death and had one "linear laceration" that could
have been a razor cut. The defense offered no testimony to explain Reyos's
knowledge of the manner of death. Reyos later testified at trial that "I don't
recall anything after" the police opened the door to talk to him about the 911
call. Reyos was also able to describe features of the hotel where the victim
was murdered despite claiming to have never been there.
The police confirmed
that Reyos bought a case of Coors beer, and some Coors beer cans were found in
the hotel room where the murder was committed.
At the police station, Reyos reiterated in a "brashful manner"
that he
killed the victim and wanted to know why it was taking so long for the police to
record his statement. A public defender arrived and argued with Reyos,
unsuccessfully telling him to "shut up," "don't say anything," and "be
quiet." Ultimately, Reyos gave a recorded statement, first confessing to the
murder and then repudiating the confession. Although I have been unable to
locate a transcript of the confession, the Texas Court of Appeals later rejected Reyos's claims that the confession was inconsistent in relation to the other
evidence in the case.
The most compelling fact supporting Reyos's guilt is that all of the alleged
exculpatory evidence-including the alleged alibi-was capably presented to the
jury. No good rationale is offered as to why the presumptively conscientious
jurors found Reyos guilty beyond a reasonable doubt when he was innocent. The
jury's verdict was upheld in a unanimous opinion from the Texas Court of
Appeals, which noted that the "alibi was certainly not established as a matter
of law." Cadra's letter was also rejected. After receiving the letter, the
Texas Board of Pardons and Parole voted sixteen to zero against a pardon.
The
same information was pressed in a habeas petition, which the trial court in
Odessa rejected on grounds that it offered no new evidence to warrant revisiting
the case.
8. Linda Stangel
Linda Stangel was convicted of killing her boyfriend, David Wahl, by
recklessly pushing him to his death from a cliff. On November 12, 1995, Wahl
disappeared while on a trip with Stangel to the Oregon coast. Several weeks
later a body washed up in Washington, which was ultimately identified as Wahl's.
The injuries to the body suggested that his death was caused by a sudden impact,
such as falling from an extreme height. Stangel initially told the police that
she and Wahl got into a fight. Wahl left to go on a walk by himself around noon
at the oceanside Ecola State Park and never came back. She fell asleep in the
van for four to five hours. When she awoke, Wahl still had not returned, so she
drove the two hours home. Stangel never stopped on the way to seek help in
finding Wahl. Finally, at 7:30 p.m., nearly eight hours after Stangel last saw
Wahl, she called the police.
Stangel moved to Minnesota after Wahl's death but returned to Oregon in July
for Wahl's memorial service. Police officers Travis Hampton and Alan Corson
asked if Stangel would accompany them in an effort to run through the last day
Wahl was seen. Stangel wondered why police had not done this sooner and
indicated that it was appropriate under the circumstances.
The two officers
and Stangel retraced the route down the coast, eventually arriving at Ecola
Park.
At the park, Leo and Ofshe claim the two officers "obliged [Stangel] to walk
up the narrow, steadily rising bluff trail" where she "broke down in apparent
fear of the cliff edge as they climbed the trail" and confessed to accidentally
shoving Wahl off the cliff. The trial judge found a different version of the
facts to be credible after hearing testimony directly from officers Hampton and
Corson, defendant Stangel, and Richard Ofshe. While sitting in the parking lot
with the officers Stangel repeatedly looked over her shoulder toward the cliff.
Hampton asked if something happened to Wahl up there, but Stangel did not reply.
Hampton asked if there was something she had not told them, but Stangel again
did not reply. Hampton asked if she wanted to go up, and Stangel said yes. They
proceeded up the cliffside trail, arriving at a viewpoint. Stangel sat down and
said she was afraid of heights. Hampton asked if she wanted to go back, but
Stangel said no and led the officers further up the trail.
When their way was obstructed by a log, Stangel asked Hampton "out of the
blue" if hypnosis could help her remember what happened. Hampton asked her to
simply explain what happened. Stangel said, "What if I could tell you what
happened but not where it happened?" She explained that Wahl came at her,
that she was scared, and demonstrated a straight arm push. Hampton told her that
she was not guilty of murder if it was truly an accident. He asked Stangel to
elaborate, and she laughed and said she made the whole thing up. She was silent,
momentarily, and then told Hampton that she was afraid to talk because she would
be blamed. Stangel told Hampton that she wanted to continue up the trail.
After a short hike, they arrived at a viewpoint without a railing next to a
300 foot drop to the beach below. Stangel told the detectives that this was the
place where Wahl fell off the cliff. Stangel and the two officers spent the next
fifteen minutes at the viewpoint. Stangel described how Wahl went over the cliff
and demonstrated the event by moving the officers into Wahl's position. Stangel
told the officers that she and Wahl had been talking about their relationship.
She wanted to end it, but Wahl wanted to continue it. While they were talking,
Wahl gave her a slight push to scare her, and it frightened her, even though she
was not in fear of going over the edge. She then withdrew herself, yelled "fu*ker,"
and pushed him over the edge.
In the police car back at the parking lot, the officers took a recorded
statement from Stangel. On the day Wahl died, Stangel told him she "was going
back to Minnesota" without him. Wahl went to the beach for fifteen minutes, then
returned and asked Stangel to go with him up the trail. They walked slowly
discussing their relationship, reaching the edge of the "very steep" cliff.
Stangel stated:
We were talking about our relationship again. Then I'm like just forget about
it. And I proceeded to go near the edge of the cliff. And Dave came up behind me
. . . And, while we were standing there, he faked pushed me. And I'm afraid of
heights, so my natural reaction was to just push him back. I just said, "hey
f*r" and pushed him, accidentally.
Wahl was "inches," or "maybe a foot," from the cliff at the time. Wahl "made
this loud, annoying scream" as he fell to his death. Stangel made no attempt to
get medical attention for Wahl and was sure he was dead. Stangel then went back
to her car for a "couple of hours" and drove home without calling for help. She
told everyone, including the police, that Wahl just walked off because "I didn't
want to be accused and there were lots of fingers pointing at me right away."
At 9:00 p.m. the same day, when Stangel was safely back in her hotel room-and
presumably no longer needing to "escape the immediate stress of the narrow and
terrifying heights" that Leo and Ofshe claim induced the first confession
- she
waived her Miranda rights and gave another parallel statement. Stangel
recounted the same facts leading up to the fatal push and then explained, "He
had one hand on my back, one hand like on my stomach. I mean I'm out there in
space and he pretends to push and I freaked. So I pushed him back. . . It was
like a get the hell away from me kind of push."
At a suppression hearing, Stangel claimed the confessions were
"made up to make these officers happy." Ofshe testified for the defense as well, relying
in significant measure on information from Stangel* to conclude that her fear of
heights and the officer's statement that an accident was not a murder led to a
false confession.3 At the conclusion of the hearing, the court advised the
parties how it would rule: "I will accept Detective Hampton and Detective
Corson's version of events and find them to be believable and more believable
than the defendant." Similarly, the court concluded, "I do not accept Dr.
[sic] Ofshe's opinions regarding the coercion or the coercive nature of the
interrogation. I simply didn't believe him, and I do believe that Ms. Stangel
gave her statements freely and voluntarily, and that the detectives did not
coerce her into giving the statement."
At trial, the jury heard from the two officers and from Stangel and Ofshe.
During trial, Linda Stangel was caught telling several lies.
After hearing all
the evidence, the jury did not credit Stangel's and Ofshe's testimony and
returned a guilty verdict. The jury's verdict poses a serious methodological
issue for Leo and Ofshe. They promise to include in their collection only cases
in which the "overwhelming majority" of neutral observers would find the
confession to be false. Yet in this case, all twelve jurors unanimously found to
the contrary-beyond a reasonable doubt-after hearing directly from Ofshe and
after reviewing all of the available evidence. Leo and Ofshe do not suggest that
any direct evidence was withheld from the jury, noting only that the indirect
evidence that Stangel "passed" a polygraph test was excluded from the trial.
Leo and Ofshe appear to be unaware that Oregon law makes polygraph results
absolutely inadmissible, and their treatment of Stangel's allegedly
exculpatory polygraph test seems inconsistent with their refusal to credit
inculpatory tests in other cases. In any event, the exculpatory polygraph test
was an equivocal result from a defective machine - one of its four channels was
broken produced in the defendant's hometown where her mother worked with the
police department. All neutral observers in the judicial system in the Stangel
case-the judge and the twelve jurors-found the confession was not coerced, and
Leo and Ofshe offer no good reason for relitigating and discounting the
findings here.
9. Martin Tankleff
Martin Tankleff, a seventeen year old with an IQ of 124,
was convicted of
murdering the parents who adopted him, Arlene and Seymour Tankleff. Citing only
Tankleffs petition for habeas corpus, Leo and Ofshe claim "[n]o evidence linked
Tankleff to the crime." Two weeks before the murders, however, Martin Tankleff said that if he could "have a hit" on both of his wealthy parents, he
could drive any car he wanted. A few days before the murders Tankleff had an
ugly, public argument with his father. On the morning of the murders, police
responded to a 911 call and found Tankleff alone at home "soiled with
blood," his mother dead and his father grievously injured.
The police
noted that Tankleff's various stories were internally conflicting and
inconsistent with the physical evidence at the crime scene.
Tankleff agreed
to accompany police to the station house. There, an enterprising detective
arranged for a fictitious phone call to come in reporting that Tankleff's father
miraculously had regained consciousness and identified Tankleff as the attacker.
Tankleff offered various explanations for this, and then quickly
shifted to saying "it was like another Marty Tankleff that killed them."
After police administered Miranda warnings, Tankleff voluntarily made
what a reviewing court described as "a full confession."
Tankleff said that his
parents were fighting and accordingly turned to him for attention, with the
result that they were "smothering" him. As a result of this and other
resentments, he decided to kill them. He went to his parent's bedroom, hitting
his mother four or five times with a barbell. Because she was fighting him off,
he then went to the kitchen and got a knife and cut her throat and stabbed her.
Then he went to his father's den, "just knocked him silly" with the barbell, and
slashed his father's throat. He then showered and washed off the barbell and
knife. As Tankleff continued to explain the details and the detectives prepared
to reduce the confession to writing and videotape, an attorney called the
station house asking that questioning of Tankleff cease, a request the police
honored. Tankleff's confession came about ten minutes after the fictitious
phone call and a little more than two hours after questioning started.
Later
that day, a detective overheard Tankleff acknowledge to his sister that he
committed the crime.
Leo and Ofshe refuse to credit Tankleff's confession to killing his parents
with a knife and a barbell, which was recovered from his room, even though the
confession narrative was quite consistent with medical testimony about the
nature of the injuries. Leo and Ofshe argue the confession was inconsistent
with a negative test of the knife and barbell for blood traces, hair and
fibers, but these facts tracked Tankleff's confession that he had "washed off
the barbell and the knife" in the shower. Other testimony established that
both items were moved within hours of the murders. Leo and Ofshe further
state definitively that the injuries to the father "were caused by a hammer."
The treating physician, however, testified that the injuries "had been caused by
a hammer or an object similar to a hammer" and the possibility of a hammer
was not "to the exclusion of any other similar type weapon."
In any event
medical testimony established that the mother's injuries were "consistent with
having been caused by" the barbell taken from Tankleff's room,
and that the
father's injuries were caused by a "blunt instrument," with any further
specification impossible due to the emergency surgical procedures performed.*l
Leo and Ofshe claim that the time of death of the mother was much earlier than
indicated in Tankleff's confession -
not recognizing that the mother's time of
death could not be established with any precision by the medical examiner, but
was generally within the time frame indicated by Tankleff.
The jury also had
the benefit of testimony from a defense expert that Tankleff was "brainwashed,"but rejected this view and returned guilty verdicts.
III. LESSONS FROM THE CASES
The nine cases just discussed demonstrate that in a substantial portion of
Leo and Ofshe's collection, the allegedly "innocent" person was in all
likelihood properly found guilty at trial or by plea-particularly in cases where
the most that Leo and Ofshe are willing to venture is the view that the person
was "highly probably" or "probably" innocent, rather than "proven" innocent. The
guilt of these nine defendants, for whom original court records were available,
suggests that other defendants in the Leo-Ofshe collection may be guilty as
well.
To all this, some may reply that I have missed the forest for the trees,
that the point is not exactly how many miscarriages from false confessions
occur, but rather that they occur at all. But setting the record straight in
these cases is important in its own right, in order to avoid cruelly
traumatizing the victims' families and unfairly maligning the professionalism
of police, prosecutors, judges, and defense attorneys. More important, at least
three broader lessons can be learned from these mischaracterized cases of
innocence, as I explain in this Part. First, relying on news media accounts of
trials to determine "innocence" is dangerous, because of the media's
considerable bias towards discovering "news" by finding that the system
malfunctioned. Second, removing the spurious cases from the Leo-Ofshe collection
and examining the residual "undisputed" wrongful convictions reveals that the
false confession problem is not pervasive, but rather is concentrated among a
narrow population-those with serious mental problems. Finally, the cases
demonstrate that even those who are guilty of crimes will frequently give a
confession that is inconsistent with the known facts of the case. This presents
a serious problem for Leo and Ofshe's proposal to suppress confessions whose
post-admission narrative fails to closely track the facts of the case.
A. Problems in Determining "Innocence"
The first issue worth examining is how Leo and Ofshe could have wandered so
far astray on some of these cases of alleged "innocence." The question becomes
even more puzzling when we realize that Leo and Ofshe, to avoid precisely the
type of reevaluation undertaken here, promised to limit their collection of
cases to those lacking any "credible evidence" corroborating the defendant's
guilt. Yet in all of the nine cases just examined, such evidence plainly
existed.
While it is possible that Leo and Ofshe have simply played fast and loose
with the facts, the distortion in these cases is perhaps more simply
attributable to the kinds of secondary sources Leo and Ofshe relied upon. While
Leo and Ofshe describe their research as relying "where possible" on "primary"
sources such as "trial records,"3 the great bulk of it actually rests on
second-hand accounts. Some of these secondary sources were draped in red warning
flags that should have been heeded, such as a recounting of a trial from the
defendant's father, a book published by "the friends of" a defendant to raise
funds for his defense, and a habeas petition designed to win a defendant's
release from prison.m Many other sources were second-hand newspaper accounts
available in computerized databases. No doubt relying on such readily-available
information saves considerable time. Having spent innumerable hours collecting
original court records on just nine cases, I can attest to the practical
advantages of computerized research. But with the advantage of speed comes the
danger of error, a danger that becomes unacceptable in light of news media
biases.
While courts and juries legally must be impartial, journalists are not so
restricted and have an understandable interest in slanting evidence to suggest
wrongful conviction. This is a particularly serious problem in "investigative"
reporting because "many journalists deem investigative pieces successful only if
they uncover malfeasance, [creating] an incentive to interpret ambiguous facts
in the worst possible light." However well intentioned a reporter may be, the
fact remains that it is only "news" if an innocent person is convicted. One
reporter explained the ease of writing compelling yet biased stories this way:
"If you've got a crying mom, you've got a story. If you've got a crying dad, my
God, you've got two stories! If you don't get the other side of the story,
you've got to be swayed." Even entirely impartial media sources can also be
influenced by the agendas of others. This may account for the particularly
egregious misrepresentations found in secondhand descriptions of death penalty
cases. Family members or supporters of a prisoner may also believe, for
understandable reasons, that an innocent person has been wrongly convicted and
set out to use the media to influence the case through accounts of the
"evidence" that, predictably, put the best possible light on things. The normal
checks and balances found in other areas of journalism may operate less
effectively here. Prosecutors, and indirectly police agencies, operate under
rules of legal ethics that severely restrict the information that can be
provided about a case outside the courtroom. On the other side, the enforcement
of similar rules against defense attorneys is problematic and, in any event,
supporters of the defendant outside the legal profession are free to give their
views. To be sure, crime victims can, and in some cases do, respond. But in
other cases they may not. Victims often have no stomach for public battles over
the crime, believing that the issues will be resolved in the courtroom. One
reporter described the resulting asymmetries in sexual abuse cases as follows:
Those accused of sexual abuse have an overwhelming interest in discrediting
the child and family members accusing them . . . They resort to war by public
diplomacy. The other side-therapists, family, friends-cannot answer back in
kind. For all those concerned about the victim. . . maintaining privacy is
crucial. . . No one who cares about the human costs of crime to the victim will
lightly compound it. As a result, the message carried to the media is often
heavily biased in favor of the perpetrator.
It should be noted that a disproportionate number of Leo and
Ofshe's
innocents were men who committed crimes against women or children. Some have
argued that the media is structurally biased against accepting claims from or
supportive of such victims. All this suggests that relying on second-hand media
accounts is not a reliable means of determining the accuracy of convictions, as
the media will inevitably manufacture more "innocents" than really exist. At the
very least, primary sources such as trial transcripts should be carefully
consulted before crediting a news story about a "wrongful" conviction.
B. Overgeneralizing the Problem of False Confessions
While second-hand media reports inflate the number of reported cases of
wrongful conviction from false confession, an important additional question is
whether such reports are skewed in any systematic way. After all, the news media
might give us a general sense of what is happening, even if it exaggerates the
extent to which it is happening. But there is good reason to believe the media
not only creates miscarriages but also creates a particular kind. For all the
reasons just given, the media's greatest interest is in depicting wrongful
convictions in a dramatic it-could-happen-to-you fashion. In an effort to appeal
to its audience, the media is more inclined to find "average" persons who have
been wrongly convicted possibly obscuring the fact that more unique populations
are especially at risk.
The hypothesis that the Leo-Ofshe collection is skewed could
be tested if we could compare it to a more reliably identified collection of
wrongful convictions. Professor Sam Gross' research on eyewitness
misidentification provides such a means. He restricted his research to cases of
"undisputed" misidentifications-those in which there was a clear determination
of innocence, preferably from the prosecuting authority that originally charged
the defendant. There is undoubtedly considerable wisdom in this conservative
approach, as even Richard Ofshe has acknowledged. The problems with the
subjective determination of "innocence" in the Leo-Ofshe collection, like
similar problems elsewhere, suggests that reliance on second-hand sources
combined with understandable enthusiasm for the enterprise of discovering
miscarriages may produce more such cases than really exist. Although using
undisputed cases suffers from the limitation of requiring the willingness of
officials to admit error, police and prosecutors would seem to have ethical
obligations to reverse genuine cases of wrongful conviction and, in a number of
cases, have in fact done so. In any event, the problem of official reluctance to
admit error likely affects only the number of wrongful convictions, not their
nature.
Only a relative handful of Leo and Ofshe's cases would satisfy the criterion
of undisputed wrongful conviction. It appears that in none of the cases of
"probable" or "highly probable" innocence has there been an official
acknowledgment of error. Even among the fifteen "proven" cases of wrongful
conviction from false confession, many are disputed. Prosecutors believed Lavale
Burt was guilty of murder. The district attorney who prosecuted Steven Linscott
specifically declined to declare him innocent. In the case of George Parker, the
prosecution apparently continued to press for his conviction, only to be blocked
by an appellate court.* State police continued to believe Peter Reilly committed
the crime after an appellate court overturned the conviction.
The guilt of
James Reyos has been discussed previously. Prosecutors continue to believe
that Earl Washington was guilty of rape and murder. Indeed, in commuting
Washington's death sentence as one of his last acts in office, Governor Douglas
Wilder said that he was not fully convinced that Washington was innocent and
that Washington "had knowledge of evidence relating to the crime which it can be
argued only the perpetrator would have known." Governor Wilder also noted, in
remarks that could apply to the death penalty cases discussed here, that the
capital punishment opponents pressuring him to grant a full pardon did "not
enjoy a grasp of the specific facts of the case."
As a result, assuming the recitations in secondary sources have accurately
recounted the facts in the remaining cases, nine of Leo and Ofshe's twenty-nine
wrongful conviction cases (approximately one-third) are undisputed: Bradley
Cox, Ralph Jacobs, William Kelley,
Laverne Pavlinac, John Purvis,
Melvin Reynolds, Christopher Smith,
David Vasquez, and Johnny Lee
Wilson. When these nine defendants are examined, a striking common feature
emerges-eight of the nine, all but Bradley Cox, are mentally
retarded or have
other serious mental problems. This means that, after extensive research, Leo
and Ofshe have uncovered only one undisputed case in the last quarter century in
which a mentally normal person was wrongfully convicted from a false confession,
and that case appears to offer few generalizable lessons about police
interrogation. More important, the high concentration of the mentally infirm
among the undisputed cases suggests that, for the most part, false confessions
are caused not by police questioning techniques in general but rather by the
application of those techniques to certain narrow, mentally limited
populations.
Although more research is clearly needed on this question, there is nothing
new in recognizing that those with mental limitations are at special risk of
false confessions. As long ago as 1963, the President's Panel on Mental
Retardation concluded that "[s]ome of the retarded are characterized by a desire
to please authority: if a confession will please, it may be gladly given."
Other commentators have expressed similar concerns.
Consistent with these cautions, American courts "have long recognized
that confessions by mentally retarded persons are somewhat suspect."
Leo and Ofshe could perform a valuable service if they analyzed interrogation
tactics that posed particular risks to this population. But identifying false
confessions solely among this constricted population is not the limited project
Leo and Ofshe have in mind. Instead, they wish to proceed more broadly and, for
example, heap scorn on Fred Inbau and the other authors of the most widely used
police interrogation manual. Leo and Ofshe claim these authorities "persist in
the self-serving and misguided belief that contemporary psychological methods
are not apt to cause an innocent suspect to confess-a fiction that is flatly
contradicted by all of the scientific research on interrogation and
confession." I have suggested that, to the contrary, Leo and Ofshe are guilty
of rhetorical overstatement in claiming that common police questioning
techniques are "apt" to cause false confessions.
But even setting that aside,
Leo and Ofshe fail to acknowledge that the manual expressly recognizes the
special problems that arise in questioning those with mental problems, warning
that "an innocent person with a psychological affliction may seem to be
guilty." This admonition is followed with a cautionary example in which a
innocent suspect with an "unstable personality" aroused suspicions during
interrogation. Moreover, in an article directed to law enforcement authorities,
Fred Inbau has specifically written that "special protection must be afforded
[to persons of below-average intelligence] . . . to minimize the risk of
obtaining untruthful admissions due to their vulnerability to suggestive
questioning." Questioning should proceed, Inbau instructed, "with all
reasonable precautions to guard against untrustworthy admissions, bearing in
mind the suspect's particular vulnerability to suggestiveness with respect to
possible explanatory conduct." Thus, far from deserving condemnation, Inbau
should be commended for alerting law enforcement communities to a particularly
perilous area for false confessions. If criticism is to be directed anywhere, it
might be towards Leo and Ofshe for suggesting more generally that all police
interrogation should be regarded with suspicion. This overbroad indictment will
inevitably, and unfortunately, distract at least some attention away from where
it apparently should be focused-the mentally retarded.
Precisely what safeguards are needed to protect the mentally retarded is
difficult to say. American courts already specially scrutinize confessions from
the retarded under the voluntariness test. The miscarriages collected by Leo
and Ofshe establish that this scrutiny is imperfect, although they do not
establish the extent of the problem. Because of such examples, some have
proposed restrictions on police questioning of the mentally retarded. Judicially
enforceable rules for police questioning would, however, raise considerable
practical difficulties. As a result, police training may be the best
preventative medicine and could, perhaps, even be done with materials from
Inbau. Oversight of police questioning of the retarded may be best handled
through continued judicial scrutiny of the voluntariness of confessions and
expert testimony to juries on the peculiar susceptibilities of the retarded to
this problem.At the same time, caution is needed in applying these rules.
Those with mental illness are particularly likely to fall victim to crime and
thus may be especially severely harmed by restrictions on police investigation.
Also, in other areas of the law, doctrines benefiting the mentally retarded have
led to biased mental testing to prove that defendants suffered from this
disability.
And, finally, the retarded are not immune from criminal temptations.
Nonetheless, a focus on the possibility of false confessions given by those with
mental limitations appears to offer a chance of a targeted-and
successful-response to the existing false confession problem.
The examination of undisputed cases also reveals one disturbing point about
Leo and Ofshe's analysis that, unfortunately, must be made: their accuracy in
identifying cases of false confessions is distressingly low. In total, Leo and
Ofshe analyzed twenty-nine cases of wrongful convictions from false confessions.
Of these twenty-nine, the nine undisputed cases did not require any special
identification because all parties conceded the convictions should be
overturned. Removing these nine uncontested cases leaves twenty in which the
truth of the confession was disputed. The analysis presented here demonstrates
than in nine of those twenty cases-Fairchild, Giarratano, Ingram, Lapointe,
Misskelley, Page, Reyos, Stangel, and Tankleff-Leo and Ofshe have incorrectly
concluded that the defendants were probably innocent. Even giving Leo and
Ofshe the generous benefit of the doubt that they were entirely right on the
remaining eleven cases, their success rate in identifying false confessions in
the disputed cases can be no better than eleven of twenty (fifty-five percent),
barely better than one would expect from flipping a coin to decide a
controverted issue.
This low batting average raises serious questions about the admissibility of
expert testimony resting on Leo and Ofshe's research about false confessions.
The admissibility of expert testimony on false confessions is quite
controversial-some courts allow it while others exclude it.Although this
is not the place for an extended discussion of these competing approaches,
the clear trend in the cases is that, at the very least, courts should preclude
any testimony on the truth or falsity of a particular confession. Moving
beyond that, expert testimony might in theory be justified on interrogation
conditions that might produce false confessions. On this point, however, a
practical difficulty arises. Before allowing such testimony, courts must find
that it pertains to "scientific knowledge." In making this determination,
courts can consider the acceptance of particular conclusions within a relevant
scientific community. It is not at all clear that acceptance of conclusions
about false confessions yet exists given the preliminary nature of false
confession research. Professor Welsh White has recently noted that the empirical
data on false confessions could be described as "tentative and fragmentary."
Professor Saul Kassin, himself a leading researcher on the subject of false
confessions, has gone further and concluded that "the topic of confession
evidence has largely been overlooked by the scientific community. As a result of
this neglect, the current empirical foundation may be too meager to . . .
qualify as a subject of 'scientific knowledge' according to" the rules governing
expert testimony?
Testimony resting on Leo and Ofshe's research, at least concerning how
"false" confessions are produced, does not appear to satisfy the requirements to
be admissible expert testimony. Before accepting expert testimony, courts should
"consider the known or potential rate of error" from a particular technique.
Leo and Ofshe's technique results in an error rate -at least forty-five
percent-that is unacceptably high. Moreover, the rules of evidence generally
permit expert opinion based on "facts or data" that are "of a type reasonably
relied upon by experts in the particular field." Experts in the field of
miscarriages would certainly look to primary court records first, as even Leo
and Ofshe seem to concede. Yet in practice their analysis quite frequently
departs from the preferred approach. Their analysis only rarely cites-much less
discusses-primary court records, even where judicial opinions are readily
available in published reporters. Of course, judicial records are not the only
sources that should be consulted; the point is that they certainly ought to be
among the main sources consulted. Because of the high error rate and failure to
follow accepted research techniques, courts should not allow expert testimony
resting on Leo and Ofshe's analysis of any of the particular cases discussed
here. Courts certainly need more reliable research on this important subject,
and I add my voice to those who are encouraging further investigation of the
false confession problem.
C. Problems With Post-Admission Narrative Analysis.
Rather than focusing on particular subpopulations at special risk for false
confessions, Leo and Ofshe propose more sweeping changes to confessions law.
Among other things, Leo and Ofshe suggest that courts should "carefully
scrutinize" a confessor's "post-admission narrative" against the known facts of
the case. In their view, "[t]he fit between the specifics of a confession and
the crime facts determines whether the 'I did it' admission should be judged as
reliable or unreliable evidence." They further argue that, if the discrepancies
are substantial enough, courts should conclude that the confession is unreliable
and suppress it.
As a general proposition, there is nothing wrong with examining confessions
to see whether they track the crime facts and reveal details about the crime
that only the perpetrator would know. No doubt juries routinely make such
evaluations in assessing confession evidence. Leo and Ofshe propose, however, to
go further and require courts to make a specific determination about "fit," with
that determination governing the admissibility of defendants' statements. Such a
proposal goes well beyond traditional judicial scrutiny, which focuses on the
"voluntariness" of the confession, and would in effect substitute judges for
the jury as the trier of these important, and often outcome-dispositive, facts.
Because this far-reaching change would govern the admissibility of all
confessions, not just those from the vulnerable population of the mentally
retarded, its desirability rests on proof that it would especially suppress
false confessions but not true ones. There are substantial practical reasons
for doubting that the proposal would be so discriminating.
To begin with, many guilty suspects do not give a "confession" to the crime,
but rather make only an incriminating statement. By definition, such a statement
will fail to fit the facts of the crime, even if it accurately suggests guilt.
Consider, for example, a suspect's claim that he was with the victim on the day
of the murder, but left shortly before she was killed. Such a statement may be
quite important to a successful prosecution of the suspect, but the
prosecution's entire theory will be that the suspect did not leave before the
murder and that this part of the narrative does not fully track the facts of the
crime. This scenario unfolds very frequently. Bret Hayman and I found in Salt
Lake City that, among suspects who gave incriminating statements, thirty-six
percent provided something less than a confession. An even larger percentage
comes from Leo's empirical study in northern California, which found that, among
suspects giving incriminating statements, sixty-three percent gave something
less than a "full" confession. Both these studies suggest that vast numbers
of suspects' incriminating narratives will be at odds with the facts of the case
simply because suspects do not confess to the crime in its entirety.
Presumably Leo and Ofshe, if required to elaborate on this point, would
respond that mere incriminating statements are not subject to their proposal;
instead, only "confessions" of the form "I did it" would be subject to the new
rules. In another article, they refer to Black's Law Dictionary definitions
of "confession" and "admission." The dictionary defines a "confession" as a
statement in which a suspect "acknowledges himself to be guilty of the offense
charged, and discloses the circumstances of the act or the share and
participation which he had in it." An "admission" is defined as "[t]he avowal
of a fact or of circumstances from which guilt may be inferred, but only tending
to prove the offense charged, and not amounting to a confession of guilt."
If Leo and Ofshe's proposal is triggered by a "confession" but not by an
"admission," then judges will have to reliably distinguish between the two.
Scant precedent suggests they could do so. For example, the Supreme Court held
in Miranda that, for self-incrimination purposes, "[n]o distinction can be drawn
between statements which are direct confessions and statements which amount to
'admissions' of part or all of an offense." Perhaps part of the reason the
Court avoided this quagmire is that no distinction can effectively be made.
Consider, for example, the common scenario of a suspect refusing to confess to
the crime in all its horror. Leo and Ofshe recognize this possibility,
providing the illustration of a guilty suspect who confesses that he kidnapped
and killed a child, but is unwilling to confess to also raping her. They
would apparently allow the jury to hear this statement in the suspect's trial
for murder, kidnap, and rape, but do not explain why. They have two possible
grounds for admitting this statement that it is only an "admission" and therefore
not subject to their rules, or that it is a "confession" subject to their rules,
but sufficiently close to the facts to be admitted. On either theory, numerous
problems will develop.
On the first theory-that the statement, with its relatively minor deviation
from the truth, is treated not as a "confession" but only as an "admission"
- then virtually all statements from suspects will fall outside the scope of the
new rules. No doubt virtually all confessions contain at least some minor
deviation from the truth which, it could be argued, transform them from
confessions into admissions.
On the second theory-that the statement, while deviating slightly from the
truth, is a "confession" but nonetheless admissible because it sufficiently
tracks the crime -courts will be forced to decide difficult questions of when
confessions hew closely enough to the facts. The hypotheticals are endless and
perplexing. Suppose the suspect admits kidnapping, but not murder or rape? Or
admits consensual sex in violation of a statutory rape statute, but not forcible
rape or kidnapping or murder? Or admits taking the child for a ride, but not
with the intent to obtain ransom or commit a felony-typically elements of
kidnapping? Or admits stalking the child, but not giving the child a ride?
All of these involve a confession to some element of the charged or an uncharged
crime, but it is not clear which of these statements qualify as "confessions"
subject to the Leo and Ofshe proposal. If any of these statements are defined as
"confessions," they will be at odds with important parts of the crime and,
therefore, apparently suppressible under the Leo and Ofshe proposal that judges
should scrutinize the "fit" of the confession.
The problems only mount when we realize that the guilty suspect, even if
"confessing" to committing all of the charged crimes, such as murder, kidnap,
and rape, might nonetheless provide a post-admission narrative that deviates
from the crime's facts. This is a widely recognized problem. As one
knowledgeable observer recognized, "even 'true' confessions are often riddled
with half-truths because suspects want to paint the most favorable picture
possible." The popular Inbau manual reports that many offenders "w | |
