Thursday, October 30, 2008

Guest Shot: The case for videotaping interrogations

The following opinion was originally published in the Los Angeles Times on October 24, 2008

The case for videotaping interrogations
A suspect's false confession to a murder opened an officer's eyes.

By Jim Trainum

October 24, 2008

I've been a police officer for 25 years, and I never understood why someone would admit to a crime he or she didn't commit. Until I secured a false confession in a murder case.

I stepped into the interrogation room believing that we had evidence linking the suspect to the murder of a 34-year-old federal employee in Washington. I used standard, approved interrogation techniques -- no screaming or threats, no physical abuse, no 12-hour sessions without food or water. Many hours later, I left with a solid confession.

At first, the suspect couldn't tell us anything about the murder, and she professed her innocence. As the interrogation progressed, she became more cooperative, and her confession included many details of the crime. The suspect said she had beaten the man to death and dumped his body by a river. She said she made purchases with the victim's credit card and tried to withdraw cash using his ATM card. Surveillance video from the ATM showed a woman who resembled the suspect, and an expert said the signature on the credit card receipts was consistent with the suspect's handwriting.

Even the suspect's attorney later told me that she believed her client was guilty, based on the confession. Confident in our evidence and the confession, we charged her with first-degree murder.

Then we discovered that the suspect had an ironclad alibi. We subpoenaed sign-in/sign-out logs from the homeless shelter where she lived, and the records proved that she could not have committed the crime. The case was dismissed, but all of us still believed she was involved in the murder. After all, she had confessed.

Even though it wasn't our standard operating procedure in the mid-1990s, when the crime occurred, we had videotaped the interrogation in its entirety. Reviewing the tapes years later, I saw that we had fallen into a classic trap. We ignored evidence that our suspect might not have been guilty, and during the interrogation we inadvertently fed her details of the crime that she repeated back to us in her confession.

If we hadn't discovered and verified the suspect's alibi -- or if we hadn't recorded the interrogation -- she probably would have been convicted of first-degree murder and would be in prison today. The true perpetrator of the crime was never identified, partly because the investigation was derailed when we focused on an innocent person.

The case was a turning point for me, personally and professionally. I still work as a police officer in Washington, but I also teach a class on interrogations and false confessions, and I work with law enforcement agencies nationwide to help them prevent false confessions.

I've learned that this is a nationwide problem. Of the 220 wrongful convictions in the U.S. that have been overturned based on DNA evidence, nearly 25% involved a false confession or false incriminating statements, according to the Innocence Project. In each of those cases, DNA proved that the confession was false.

Threats and coercion sometimes lead innocent people to confess, but even the calmest, most standardized interrogations can lead to a false confession or admission. Those who are mentally ill or mentally disabled may be particularly vulnerable, but anyone can be dazed when confronted by police officers who claim to hold unshakable evidence of one's guilt. Some confess to crimes because they want to please authority figures or to protect another person. Some actually come to believe they are guilty, or confess to do penance for some unrelated bad behavior. Innocent people come to believe that they will receive a harsher sentence -- even the death penalty -- if they don't confess.

Videotaping interrogations is proved to decrease wrongful convictions based on false confessions. When the entire interrogation is recorded, attorneys, judges and juries can see exactly what led to a confession. Police officers become better interviewers over time, as they review tapes of their interrogations, and confessions are easier to defend in court. The only police officers I've met who don't embrace recording interrogations are those who have never done it. Too many police officers still wrongly believe that recording interrogations will be logistically difficult and expensive, and that guilty suspects won't confess if they know they are being recorded.

More than 500 jurisdictions nationwide record interrogations, but only 10 states, plus the District of Columbia, mandate the practice. California's Legislature passed bills in 2006 and 2007 that would have required interrogations to be recorded. Both were vetoed by Gov. Arnold Schwarzenegger. A third bill died in committee this year. California legislators should not give up. They must make this issue a priority and pass legislation to make our criminal justice system stronger and more accurate.

It may be impossible to fully understand why innocent people confess to crimes they didn't commit. What is undeniable is that some do -- and that we need to enact reforms to prevent more wrongful convictions and ensure that the right people pay for these crimes.

Jim Trainum is a detective in Washington's Metropolitan Police Department.

Sunday, October 26, 2008

Troy Davis - A Reprieve

The 11th Circuit Court of Appeals in Atlanta, GA has issued a stay of Troy Davis' execution, which had been scheduled for Monday, October 27, 2008. This is the latest twist in a roller-coaster ride of stays and denials in his case. The stay allows Troy to pursue a federal habeas corpus action based on his actual innocence. The Antiterrorism and Effective Death Penalty Act of 1996 requires a federal appeals court to approve such a request before a new lawsuit can be filed.

Troy's legal claims rest on the recantations of seven of the prosecutions nine trial witnesses. In 1989, they said Troy killed an off-duty Savannah police officer. In 2008, they say police coerced their identification of Troy, and that one of the two non-recanting witnesses is the actual killer. Courts are understandably reluctant to believe recantations. If the witness lied under oath before, how can he or she be believed now? Nonetheless, many wrongful convictions have been overturned precisely because judges listened to recanting witnesses, found them credible and found their reasons for lying in the first place (often police coercion) persuasive.

But Georgia state law has a "catch-22" that raises the bar even higher and prevents most recantations from ever being heard by a judge. It's called the "purest fabrication" doctrine and it denies hearings even when extremely persuasive recantation affidavits have been submitted. The "purest fabrication" doctrine means that post-conviction hearings don't have to be held to evaluate the credibility of recanting witnesses unless the defendant can show, by other, independent proof before the hearing is held, that the original testimony was absolutely false.

The stay granted to Troy by the 11th Circuit is conditional, and there is no guarantee he will be allowed to move forward with a habeas petition. Before his lawyers can file a habeas petition, they must clear two difficult legal hurdles in briefs they are to file with the 11th Circuit.

First, they must show that his lawyers could not have previously found the new evidence supporting his innocence no matter how diligently they looked for it. And they must show that the new testimony, viewed in light of all the evidence, is enough to prove “by clear and convincing evidence that…no reasonable fact finder would have found [him] guilty.”

The 11th Circuit added a twist. It asked the parties to address whether Davis can still be executed if he can establish innocence under the second standard but cannot satisfy his burden under the first, due-diligence question.

In other words, should an innocent person be killed by the state because his trial lawyers failed to find evidence of his innocence before he was convicted?

Tuesday, October 21, 2008

Guest Shot: Troy Davis case: Execution clearly would be callous act

This opinion was originally published in the Atlanta Journal-Constitution on October 21, 2008.

Troy Davis case: Execution clearly would be callous act

Tuesday, October 21, 2008

Georgians are known for their fairness, faith and decency. Unfortunately, Georgians may become known for something that runs directly counter to our core values if we proceed with the execution of Troy Anthony Davis on Monday. I have served on the state Senate Judiciary Committee for 12 years, and while I am opposed to the death penalty, even supporters can agree that we do not want to see an innocent person executed.

Last Tuesday, the U.S. Supreme Court declined to consider if the death penalty should be barred in cases where there are substantial claims of innocence when it turned aside the appeal of Davis, an inmate on Georgia’s death row.

Justice is not served when the courts refuse to hear substantial claims of innocence. In Davis’ case, such claims have never been given a fair hearing in a court of law as a result of procedural bars.

Grave doubts permeate Davis’ case. In the years following his conviction, seven of the state’s nine non-police witnesses have recanted in sworn affidavits or changed their testimonies. Several have cited police coercion at the time of the crime. No court has ever heard testimony from the individuals who came forward after conviction alleging that one of the state’s original eyewitnesses is the actual killer of Officer Mark MacPhail.

No physical evidence tied Davis to the crime and a weapon was never found. He was convicted solely on the basis of faulty eyewitness testimony — the single greatest cause of wrongful convictions nationwide. Eyewitness misidentification accounted for 75 percent of wrongful convictions in more than 200 DNA exonerations.

Georgians have become aware of just how unreliable eyewitness identification evidence is as we have watched seven men exonerated — all convicted on the basis of eyewitness testimony — after spending years in prison for crimes they didn’t commit.

Willie Otis “Pete” Williams is one of those men. Williams spent nearly 22 years in prison for crimes he didn’t commit. Three people testified on the witness stand that he was the attacker in two separate incidents, one of which was a brutal rape. When asked of her certainty after identifying him, the survivor of the rape reported that she was 120 percent sure that she had picked out the right man. However, DNA evidence proved these identifications were incorrect.

Some states are beginning to move away from the death penalty because of growing concerns about innocence, unfairness, discriminatory application, lack of efficacy and other reasons. The death penalty was intended to be reserved for the worst offenders, but in practice, it is arbitrary and unfair. The system is fraught with error, plagued by poor legal representation, and discriminates on the basis of income, race and geography. Since executions resumed in May, all but one has been carried out in the South.

By choosing not to hear Davis’ claims, the U.S. Supreme Court and the Georgia state courts ostensibly declared that it is permissible to execute a convicted person who could likely prove his innocence. This is a standard civilized society should not accept.

It will be a travesty of justice for Georgia and our nation if an innocent person is executed. Proceeding with the execution of Troy Davis is callous, careless and irreversible.

Vincent Fort, a Democrat, represents Senate Dist. 39 in Atlanta.

Wednesday, October 15, 2008

Guest Shot: The Long Road To The Davis Case

The following opinion was published on October 14, 2008 at

The Long Road To The Davis Case
Andrew Cohen Examines A Ga. Murder Case That May Send An Innocent Man To His Death

(Attorney Andrew Cohen analyzes legal issues for CBS News and

The decades-long, law-and-order-fueled trend toward restricting appellate avenues in criminal cases may be reaching its gruesome but inevitable conclusion in the case of Troy Davis, a death row inmate who apparently will be executed soon despite a series of post-trial revelations about his lack of culpability that ought to shock the conscience of even the most ardent supports of capital punishment.

Davis, who is black, was charged, tried and convicted in Georgia for murdering a white police officer. He was sentenced to death in 1991. There was no physical evidence linking him to the crime. There was no DNA. There was no murder weapon found on him. Since his trial, seven of the nine main prosecution eyewitnesses against him have recanted their trial testimony. Some of these witnesses claim police coercion or harsh interrogation tactics caused them to be untruthful at trial.

Moreover, a handful of witnesses have stepped forward to claim that another man has confessed to the crime. This “other man,” according to the Atlanta Journal-Constitution, is one of the two remaining trial witnesses who, not surprisingly, still claims that Davis shot the officer. The final eyewitness (of the nine we are concerned with) initially told the police that he could not identify Davis at the crime scene before later changing his tune at trial and incriminating Davis. Even during this new age of DNA there has been no great movement to resolve these legal and factual conflicts.

Short of seeing a videotape of that other fellow’s confession, it’s hard to imagine a scenario that more clearly calls out for a full and independent evidentiary hearing, or even a new trial, to assess the validity of the changed narrative about Davis’ role in the crime. And, indeed, in an earlier time in our history it is quite likely that the federal courts would have ensured such a review. No more. The highly-politicized, step-by-step closing of the courthouse doors to appeals like this-the intentional restriction of meaningful appeals rights-may send an innocent man to his death.

When Davis’ appeal on these issues made it to the Georgia Supreme Court the judges there denied him any relief and declared in a 4-3 vote that there must be “no doubt of any kind” but that the trial testimony was of the “purest fabrication” in order to warrant interceding on Davis’ behalf. Got that? It takes only the absence of “reasonable doubt” to convict someone of murder but in Georgia to properly investigate a condemned man’s strong claim of innocence judges have to have “no doubt” at the outset of the inquiry that the inquiry will prove his innocence. How, one dissenting Georgia justice asked, can anyone ever meet such a standard?

It’s a game that Davis can’t win; and that’s precisely how leaders of the anti-appeal movement have wanted it. As the criminal justice system has become more conservative, the courts and the Congress have relentlessly created (or recognized) barriers to meaningful appellate review. The stated reason, of course, has always been to diminish frivolous appeals by prison inmates who have nothing better to do with their time than test the judicial system. But today the barriers are so high that they are keeping beyond the reach of substantive review the sorts of vital questions raised by Davis and his attorneys.

Having lost in Georgia, and at the lower federal court level, the defense then asked the United States Supreme Court to declare that the State violates the Eighth Amendment’s prohibition against cruel and unusual punishment when it executes an innocent man (or doesn’t even hold a full hearing on his strong claims of innocence). At a minimum, the defense believed, the Justices would look closely at the stringent, new “pure fabrication” rule the Georgia High Court came up with in the Davis appeal.

But it isn’t going to happen. The same Supreme Court in Washington, which delayed Davis’ execution last month, announced on Tuesday that it would not, after all, take the case on its merits. This virtually guarantees that Davis will be executed despite the grave doubts about his guilt. There will be no evaluation of the Eighth Amendment in these circumstances; no considered review of the new Georgia rule; no ardent discussion between Justices Scalia and Stevens about when, if ever, a defendant like Davis can ever get that meaningful new look from the courts.

Why the Justices turned away from a case they had sniffed at last month may forever remain a mystery. But what is perfectly clear is that Georgia has now created a virtually unassailable bar to criminal defendants whose shaky convictions are later subverted through the discovery of new evidence or the dissolution of the accuracy, reliability and credibility of important trial evidence. After decades of success, subtle and otherwise, the anti-appeal movement has just now reached its crescendo or, depending upon your point of view, its nadir.

Sunday, October 05, 2008

William Coleman Hunger Protest Update, by Geoff Coleman

oday marks the 6th annerversary of the false allegations being made. Bill remains resolute in his protest and has been force fed at least three times. Osborne CI, have not advised us on his condition of health other than to say he is "ok". We suspect that he was force fed on the 3rd October 2008 which would fall in line with previous feed interventions.

Bill`s condition will get worse and it will result in permanent damage. Both Bill and his family and friends do not want him to die and urge for the circumstances surrounding his case to be investigated as well as the allegations itself, as the police and athorities failed to do so.

Please visit his web site which is updated daily.

Thank you

Thursday, October 02, 2008

Oh Canada, Part 2 - Judge's blast not enough, wrongfully convicted man says

Originally published by members of the Canadian Press on October 2, 2008.

Judge's blast not enough, wrongfully convicted man says

October 2, 2008

TORONTO — A judicial report's damning criticism of key players in a forensics scandal that saw innocent people branded as child killers in Ontario doesn't go far enough, a victim of wrongful conviction said Wednesday.

While the report found the failings of an "arrogant" forensic pathologist and his bosses were at the heart of the miscarriages of justice, William Mullins-Johnson said those responsible need to be held to further account.

"If they can't, then this whole thing of restoring public confidence goes for naught," said Mullins-Johnson, 38, who spent 12 years in jail for the rape and suffocation of his niece, who actually died of natural causes.

"They invented a crime. They pulled it out of their head and said, 'This guy is guilty of this.' "

Stephen Goudge's findings and 169 recommendations do offer a "little" comfort, said Mullins-Johnson, who added that his horrendous experience still gets "under his skin."

In blunt terms, Goudge's 1,000-page report slams Dr. Charles Smith, the once esteemed pathologist, as well as Ontario's former chief coroner James Young and his deputy, Jim Cairns.

All three played a critical role in wrongful prosecutions that ripped families apart and damaged lives, Goudge concludes.

His assessment of Smith, based on months of evidence, is especially harsh.

The former star in his field "admitted his own arrogance" and dogmatically presented poorly informed and undisciplined opinions on which others relied, Goudge wrote.

The doctor also deliberately frustrated attempts to call him to account and "actively misled" his superiors and the courts.

"Smith was adamant that his failings were never intentional," Goudge wrote.

"I simply cannot accept such a sweeping attempt to escape moral responsibility."

Smith was not on hand for the release, but said in a brief written statement he was "optimistic" the report would have a "positive impact" on pediatric forensic pathology in Ontario.

Goudge, who made no findings of criminal or civil liability, called on the Ontario government to consider compensation for those affected by Smith's work, something the province said it would do.

"Justice Goudge recommends that we develop an approach to compensation, and that is what we will do," said Attorney General Chris Bentley, who added an expert panel would be struck to study the issue.

The judge, however, was careful to note that Smith did not work in a vacuum.

The tragic story is "equally the story of failed oversight," he said, taking aim at Young and Cairns.

Having developed a "symbiotic" relationship with the province's former chief forensic pathologist, they allowed their blind confidence in Smith to persist until the very end and "after much damage had been done."

Despite the poorly defined legislative framework in which he worked, Young must bear the "ultimate responsibility for the failure of oversight," the Ontario Court of Appeal justice concludes.

"Dr. Young continued to defend the indefensible in the name of saving the reputation of the (coroner's office)," Goudge wrote.

"When he finally did act, it was to protect the reputation of the office and not out of concern that individuals and the public interest may already have been harmed."

It was, the report states, "far too little, far too late" and occurred after a decade of "lost opportunities" to fix the situation.

By then, Smith had erroneously concluded a mother had killed her 11-month-old son who had knocked his head on a table, and in another case, insisted a mother had stabbed her seven-year-old daughter to death - when a dog-mauling was responsible.

To minimize the chances of such travesties, Goudge makes recommendations aimed at the training, oversight and accountability of pediatric forensic pathology.

Among other things, he calls for accredited training at Canadian medical schools to certify forensic pathologists.

He also wants the province to create a clear legislative framework for forensic pathologists, along with establishing a specialized forensics unit, a council to oversee the chief coroner's office, and the position of chief forensic pathologist.

Goudge called on the government to provide more money and resources for the forensics field, something he noted was especially needed in more remote and First Nations areas.

The government promised to bring in fresh legislation in line with Goudge's suggestions.

Premier Dalton McGuinty said the province was keen to restore public confidence in its battered pathology system.

"A tragedy has unfolded here in Ontario and we're looking for ways to move beyond that and to redress the wrongs," McGuinty said. "We need to turn the page."

Community Safety Minister Rick Bartolucci apologized on behalf of the province.

Several of Goudge's other recommendations amount to a warning to forensic pathologists to guard against overstepping the limits of their expertise, and to explain complicated findings in unambiguous language.

He urged specialized training for police and prosecutors in pediatric death investigations, and called on trial judges to be critical of expert witnesses.

Gouge also recommended that more than 140 other cases involving forensic pathology be reviewed.

Bentley said the government would move as quickly as it can on the reviews "for those who live in the shadow of suspicion."

When asked if any criminal charges could follow Goudge's report, Bentley said that would be up to the police.

Lawyer James Lockyer, of the Association in the Defence of the Wrongfully Convicted, said that the report would help set aside some miscarriages of justice that have occurred, and would "go a long way" to preventing future wrongful prosecutions.

The findings represent a devastating blow to Smith, once admired across the country for his expertise.

But they might also tarnish the sterling reputation that Young has enjoyed.

The former chief coroner was instrumental in helping lead Ontario's response to the SARS crisis in 2003 and to the huge blackout in August of that year.

He later became a special adviser to the federal deputy minister of public safety.

For more information about Dr. Charles Smith, his victims and the Goudge Report, see the Charles Smith Blog.

Oh Canada, Part 1 - Mom's the word: Milgaard ruling incomprehensible

This opinion was originally published in the Calgary Herald on October 1, 2008.

Mom's the word: Milgaard ruling incomprehensible
"If it was your child, what would you do?"

Naomi Lakritz
Calgary Herald

Wednesday, October 01, 2008

When Justice Edward MacCallum issued his report last week on David Milgaard's wrongful conviction, he accused David's mother, Joyce, of "using" the media to further her son's cause. Well, looking back now, as a former reporter for a Winnipeg newspaper, who covered Joyce's numerous press conferences, wrote stories about her battle to free her son, and was at the prison gates the day David was released, all I can think of is the line from that Bill Withers' song: "If it feels this good being used . . ."

Judge MacCallum, what do you think Joyce should have done? Sit at home and keep quiet, hoping that just by chance, someone might notice David was in prison for a crime he didn't commit? Write courteous letters to Saskatchewan justice officials and be written off by them in turn as one of the many cranks out there?

There isn't a mother in Canada who doesn't understand what Joyce did and why she went about it the way she did. You fight. How could you not? Doing anything less simply doesn't occur to you. The son who is wrongly convicted as a teen doesn't exit the gate of Stony Mountain penitentiary until he is a man of 40, but he is finally free. I ask you, Judge MacCallum, what should Joyce have done differently?

"(MacCallum) didn't say," Joyce says, reached in Toronto Tuesday. The report gave the impression that "nobody did anything wrong, except me. We were the bad guys. It was hurtful. It was hard to read those statements."

Joyce calls the inquiry a waste of time, except for its recommendations, which include the establishment of an independent review board for wrongful conviction cases.

"My whole purpose was to thank the media. I wouldn't have gotten David out if it weren't for the media," Joyce says. "If it was your child, what would you do?"

The road to Stony Mountain prison runs past a large pond and winds up the hill to the forbidding limestone edifice at the top. The prison has been there since 1876. The road to the gate borders a field where, during David's time behind bars, the inmates at Rockwood, the prison's minimum security section, raised a herd of beef cattle.

School Road, in the town of Stony Mountain, borders the other side of the prison. School Road is lined by a day-care centre, curling rink, cemetery and K-8 school -- all within almost shouting distance of the prison. In the field between the prison and school, thick with mosquitoes in summer, the Canada Day fireworks display is held.

The prison's proximity means town residents can hear the guards issuing mundane orders to the inmates about exercise period being over, or that so-and-so is to report to the kitchen. It also means that officials have had periodic trouble with "throw-overs" -- drug packages tossed over the prison fence by the friends of inmates who hide in the wooded lots of homeowners along School Road.

In 1992, the Supreme Court quashed David's conviction for the 1969 murder of Saskatoon nurse Gail Miller, and he walked through those prison gates into a crowd of media, supporters and lawyers, pale, fragile, and understandably inarticulate at his newfound freedom. A few years later, DNA evidence exonerated him once and for all.

In June 2007, Joyce spoke on the occasion of receiving an honorary doctor of laws degree from the University of Winnipeg: "During the 30 years it took to get David cleared and compensated, I spent a great deal of time in prayer. I talked to God a lot. I remember once reading in our textbook, 'Trials are proofs of God's care' and I said to God, 'I just wish you wouldn't care so much!' But He did and He does, and I learned to trust Him and to see a higher purpose in what we went through."

Joyce's purpose all those years was expressed in three words on the signs plastered to her car, and on the buttons that studded her purse and were pinned to her coat. Those three words were: "Free David Milgaard." No thanks to the justice system, David is free.

"I think he's done wonderfully well. To see him come out of this has been wonderful," Joyce says. Part of David's journey included a trip to Brazil where he was deeply moved by the suffering of the poor. "This was his way of healing," she says. He's also written a book of poetry.

The last time I went home to Manitoba, I drove past Stony Mountain prison on my way to visit friends in the town. Everything is just as it was -- the road leading up to the gate, the tranquil pond with birds soaring above, the barbed wire fences, the prison watchtowers, the drive along School Road, and the prairie stretching away to the horizon, as if it couldn't distance itself fast enough or far enough from the ugly yellow prison on the hill. David Milgaard would still be in there, if it weren't for his mother.

How MacCallum can castigate her is incomprehensible. Joyce Milgaard is the kind of mother we all wish we had -- and one we fervently hope we're never called on to be.