Deliberations

Taking On False Confessions

False confessions.  Two words that capsulize just how tough a criminal defense lawyer's task can be.

No wonder they talk about it so much.  In the last few days alone, a public defender and Simple Justice have traded thoughts on whether videotaping interrogations prevents false confessions or merely records them, and Grits for Breakfast points to a defendant who falsely confessed to murder after long questioning in which he was threatened with the death penalty if he didn't confess. 

There's a new book that brings evidence and history to these conversations, and to the briefs criminal defense lawyers must file when clients confess under pressure.  It's Police Interrogation And American Justice, by University of San Francisco law professor Richard Leo, published by Harvard University Press.

"A systematic feature of American criminal justice"

Here is what lawyers, judges, and the public need to know, grounded in study after study.  False confessions not only happen, but they happen commonly:

The problem of false confession is not limited to a small number of cases.  These studies reveal that false confessions are therefore not an anomaly but a systematic feature of American criminal justice, despite procedural safeguards such as Miranda rights and a constitutional prohibition against legally coercive interrogation techniques.  . . . Unless police change their procedures for selecting suspects and their interrogation practices, false confessions will continue to occur regularly.

How can this be true in 2008?  Leo explains that the problem isn't that we haven't progressed from the days of bright lights and the third degree.  To the contrary, sadly, the problem is that we have progressed.  Leo narrates the development of increasingly sophisticated techniques of police interrogation, techniques that manage to break down a defendant's psychological defenses and build a detailed and compelling story for the jury at the same time. 

"A dangerous piece of evidence"

And it matters, of course.  You didn't need studies to know that, but Leo gathers the studies all the same.  False confessions mean mistaken convictions:

Taken together these studies demonstrate that a false confession is a dangerous piece of evidence to put before a judge or jury because it profoundly biases their evaluations of the case in favor of conviction -- so much so that they will allow it to outweigh even strong evidence of a suspect's innocence.  . . . Jurors simply do not appropriately discount false-confession evidence, even when the defendant's confession was elicted by coercive methods and the other case evidence strongly supports his innocence.  False-confession  evidence is thus highly, if not inherently, prejudicial to the fate of any innocent defendant in the American criminal justice system.

There are briefs to be written out of this book.  If enough of them win, the reforms Leo proposes in his final chapter might begin to take hold.

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Note:  As often happens, forensic psychologist Karen Franklin's excellent "In The News" blog was well ahead of me in discussing Leo's book.

Wisconsin, Where Juries Matter

I often find myself writing about cases where jury trials were messed up, from badly to horribly, and appellate courts forgave -- or didn't see -- the problem. 

"This case must be retried on facts"

There's been a run of exceptions lately, though, right in Deliberations's backyard.  In the last several weeks, different Wisconsin appellate panels have looked at trials where criminal juries saw or heard something they shouldn't have.  In each case, the courts reversed the convictions with striking firmness and clarity.  Examples:

State v. Stanley on December 12, a drunk driving case where the deliberating jury asked whether it was still "operating" if the defendant got into a car when the motor was already running.  Quoting a prior case, State v. Proegler, the trial court told them that "operation" meant “either when a defendant starts the motor and/or leaves it running.”  The court of appeals said that facts mattered, and that Mr. Proegler in the prior case had admittedly driven to the place where police found him.  Stanley's case was different:  "We do not read the statute or the Proegler case to include as operators passengers who slide into the driver’s seat of a running vehicle and fall asleep."

State v. Champlain on December 5, where the defendant had to sit through trial -- and write notes to his lawyer -- wearing a visible "armband taser device."  The court held that it was not only ineffective assistance for his lawyer not to object, but that the trial court should have determined whether the armband was necessary even without an objection. 

State v. Cooper on December 4, where the state used a "show-up" identification that should have been suppressed under the Wisconsin Supreme Court's 2005 State v. Dubose case.  Dubose was decided after Cooper's trial judge had ruled that the identification would be admitted, but before Cooper's trial.  The court of appeals held that Cooper's counsel was ineffective for not asking for reconsideration of that ruling after Dubose came down, and that anyway the trial court should have granted postconviction motions based on Dubose. 

State v. Burton on October 31, where a police "gang expert" testified for the state.  The court of appeals was mad: 

The expert's testimony insinuated, without any basis, that Burton was a part of the gang culture, if not actually a member of a gang. It recast the case as being about gang retaliation or gang culture, anathema to the reasonable citizen, when there was no evidence that the shootings were gang crimes. Not only that, the testimony also purported to explain away the inconsistencies of witnesses simply because gangs infested the neighborhood in which the witnesses lived. If this had any probative value, which we doubt, it was far outweighed by prejudice. Ascribing the purported motivations or truth-telling tendencies of an entire neighborhood to one of its residents is not an acceptable form of impeachment. This case must be retried based on facts, rather than insinuation or stereotyping.

Another court in another state -- or here, on another day -- might have steered these cases toward a finding of harmless error, waiver, or some other way to salvage the trial, citing the burden on society when trials have to be done twice.  There's a place for those arguments sometimes, but they're overused.  I can personally report that life is going on as usual in Wisconsin even though these trials will be repeated.  And a different burden on society -- the one we bear when nobody cares what juries see and hear -- is lifted.

(Photo of a Wisconsin field after this week's snows by Cathy Stanley-Ericksen at http://www.flickr.com/photos/madcitycat/2110974734/; license details there.)