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Untruth or consequences: Why false confessions happen and what to do

InterrogationAn innocent client is the scariest client a lawyer will ever have, according to the old saying.

Make a mistake and you help put an innocent man behind bars. Win acquittal – against all odds – and everyone says the system worked.

Imagine the fear factor when the client is not only innocent, but has – unbelievably – given police a full confession to the crime.

It happened to Fairfax lawyer Jonathan Shapiro.

“I don’t know why I said those things, and I’m not guilty,” his young client told Shapiro at their first meeting. Shapiro had just reviewed a videotaped interview where the client had admitted – in detail – having sex with several children in his household.

The police interview that produced the confession was not violent and not illegal, but it was “highly manipulative,” Shapiro said, especially for his vulnerable client. Fearing a jury, Shapiro and the client entered a plea agreement without any sentencing conditions.

Both lawyer and client – identified only as “Russell” – had second thoughts, however. “We couldn’t sleep at nights,” Shapiro said.

Shapiro persuaded a judge to let him withdraw the plea deal. Hearing analysis of the false confession from a forensic psychologist, a jury acquitted the client on all counts.

A common phenomenon

False confessions happen more than most people would imagine, said lawyers and law professors at a recent program on false confessions.

Of convicted defendants exonerated by DNA, a fourth had false confessions involved in their cases, said one participant at the day-long session at the Washington & Lee University law school.

One man who pleaded no contest after giving a purported false confession is in prison and hoping for clemency now that co-defendants have dropped claims that he was involved in a 2003 murder.

Earl Washington of Fauquier County came within nine days of being electrocuted in Virginia’s electric chair for a murder he admitted to. He was later cleared by DNA evidence.

Experts say false confessions can appear solid, but can be readily extracted from vulnerable suspects. Washington had an I.Q. in the range of 69.

Most false confessions are not just simple statements saying, “I did it.” They are “highly detailed and chock full of details that only the killer would know,” said Steven A. Drizin, a law professor who said he “collects” false confessions.

Innocent suspects learn details of a crime in the course of improper police questioning, Drizin said, an effect known as “contamination.”

Many of those who falsely confess have cognitive or intellectual limitations that make them more vulnerable to persuasive police tactics.

Eric Wilson, one of four sailors who all separately confessed – falsely – to involvement in a 1997 Norfolk rape and murder, said he was led to make a false statement because he was raised to trust authority figures.

Even the advent of advanced crime scene analysis techniques has failed to reduce the incidence of false confessions, the experts said, because of the powerful impact of any confession by a suspect.

“False confessions can trump DNA and can corrupt other evidence,” Drizin said.

Detectives adjust their theories to accommodate DNA evidence and even experts accommodate false confessions by altering their conclusions, Drizin said.

Confessions “end the investigation,” said University of Virginia law Prof. Brandon Garrett. “No other leads get developed,” he said.

Defendants intimidated and scared

One confession can start a cascade effect, with alleged co-defendants joining in with false confessions, a phenomenon seen in both the so-called “Norfolk Four” case, involving Wilson, and the Central Park Five, the experts said.

The Central Park Five were teenagers who signed confessions to the notorious 1989 beating and rape of a woman in Central Park in New York City. All were convicted, spent years in prison and were exonerated after the actual perpetrator confessed.

It came of being unsophisticated – “being inexperienced, being vulnerable” – explained Raymond Santana, one of the five. He described feeling physically threatened as one detective lunged at him in an interview room, before he was “rescued” by the “good cop” member of the interrogation team.

Wilson – one of the Norfolk Four – said he too experienced the “good cop-bad cop” routine when he was questioned. One detective pinned his arms to his chair and backed him into a corner, saying he would face the electric chair if he did not describe how the crime occurred.

He eventually offered details that satisfied the police. Growing up in a small town in Texas, “we were taught to respect the police, respect authority,” Wilson said. “You do what they say.”

“These stories should be Exhibit A for legislation to require police to record all interrogations from beginning to end,” Drizin said.

Some Virginia police agencies are starting to do just that, said Stephen A. Northup, a retired Richmond lawyer who represented Eric Wilson.

Richmond and Fairfax County now make full recordings of interviews with suspects, lawyers reported.

Nevertheless, Northup held little hope for passing a statewide requirement. “The Virginia House will never pass a bill to tell law enforcement how to do their jobs,” he said.

Clemency sought for Albemarle man

Virginia law provides an “actual innocence” procedure for exoneration based on post-conviction evidence, but – under current law – that avenue is closed for those who enter guilty pleas or “Alford pleas.”

An Alford plea – in which a defendant denies guilt but admits the evidence warrants conviction – is now a stumbling block for Robert P. Davis of Albemarle County.

Davis, an 18-year-old with developmental issues, was fingered by two neighbors – a brother and sister – as an accomplice in the brutal killing of a mother and her toddler son. He confessed after a 24-hour interrogation in a cold police interview room.

Even with an expert prepared to question the methods used to extract Davis’ confession, the possibility of a life sentence led Davis to take a plea deal for a 23-year sentence in 2004, his lawyer said.

Since then, both the brother and sister signed statements saying Davis had no part in the crime. Davis’ clemency petition was not acted on by former Gov. Bob McDonnell. It now is before Gov. Terry McAuliffe.

Davis’ lawyer, Steven D. Rosenfield of Charlottesville, declined to comment on the prospects for clemency.

Rosenfield said “without a doubt” the legislature should consider making the actual innocence process available without regard to the defendant’s plea. A House of Delegates committee this month carried over until next year a proposal to do just that.

“Anybody associated with the criminal justice system knows that innocent people plead guilty and the legislature is ignoring that reality,” Rosenfield said.

Police technique questioned

Police detectives often are trained in what’s known as the “Reid technique” for questioning suspects.

“Reid is central to interrogation practice in the U.S.,” said James Trainum, a retired Washington police detective and expert on interrogation and false confessions.

People confess because they believe it will provide a short-term benefit and because they are under a false perception that confession is in their best interest, Trainum said.

An interrogation begins with a conversational interview designed to test for deception, he explained, and moves into a series of tactics designed to block denials and make confession seem like the best decision, Trainum said.

Detectives trained in the Reid technique don’t learn enough about the problem of contamination, Trainum said. They are not warned against divulging crime scene details or showing photographs and other evidence.

When a suspect puts specific details in a confession, the confession seems reliable because only the criminal should have known those facts. Police can inadvertently provide the details, Trainum said.

“We don’t even know we’re doing it, it’s so subtle,” he said. That’s why it’s important for interrogations to be fully recorded on videotape, he said.
Courtroom tips

Judges, especially those who do not come from a background of criminal practice, might be skeptical of an attack on the reliability of a confession.

“Think it through and be prepared to educate them,” Rosenfield told defense lawyers at the W&L conference, which featured an expert on the psychology of false confessions.

“I think you’ve got to attack on two fronts,” said Shapiro, urging a vigorous defense on the facts while undermining the validity of the confession.

Look closely at the information police had when they extracted a confession, urged Drizin and fellow Northwestern University law Prof. Laura Nirider.

Examine whether the confession includes any facts the police did not already know, Nirider said.

If the confession includes information that police believed was correct at the time, but was later shown to be incorrect, the confession should be highly suspect, said Drizin.

There is recognition now that interviews of juvenile suspects should be handled differently from those of adults, Nirider said. A set of guidelines published by the International Association of Chiefs of Police can be a useful cross examination tool, she said.

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