Can a Jury Believe What It Sees? Videotaped Confessions Can Be Misleading

The following opinion by Jennifer Mnookin was published by the New York Times on July 13, 2014.

LOS ANGELES — LAST week the F.B.I., the Drug Enforcement Administration and other federal law enforcement agencies instituted a policy of recording interrogations of criminal suspects held in custody. Only a minority of states and local governments have a similar requirement, but the new rule, which applies to nearly every federal interrogation, will most likely spur more jurisdictions to follow suit. It’s not far-fetched to think that such recordings may soon become standard police practice nationwide.

Supporters of the practice present recordings as a solution for a host of problems, from police misconduct to false confessions. But while there are lots of good reasons to require them, they are hardly a panacea; in fact, the very same qualities that make them useful — their seeming vividness and objectivity — also risk making them misleading, and possibly even an inadvertent tool for injustice.

Support for electronic recording has been accelerating in recent years, and its backers now come from all sides of the criminal-justice process. Though some in law enforcement remain critical of the idea, firsthand experience with recording tends to turn law enforcers into supporters — it eliminates uncertainty about police conduct and lets investigators focus on the interrogation rather than taking detailed notes.

Likewise, criminal prosecutors find that when a defendant confesses or provides incriminating information, the video offers vivid and powerful evidence. At the same time, it aids defendants because the very presence of the camera is likely to reduce the use of coercive or unfair tactics in interrogation, and documents illegitimate behavior if and when it does occur. And a recording provides judges and juries with information about what took place in a more objective form.

Given this chorus of support, what’s not to like?

The short answer is that, according to recent research, interrogation recording may in fact be too vivid and persuasive. Even seemingly neutral recordings still require interpretation. As advertisers and Hollywood directors know well, camera angles, close-ups, lenses and dozens of other techniques shape our perception of what we see without our being aware of it.

In a series of experiments led by the psychologist G. Daniel Lassiter of Ohio University, mock juries were shown exactly the same interrogation, but some saw only the defendant, while others had a wider-angle view that included the interrogator. When the interrogator isn’t shown on camera, jurors are significantly less likely to find an interrogation coercive, and more likely to believe in the truth and accuracy of the confession that they hear — even when the interrogator explicitly threatens the defendant.

Professor Lassiter and other psychologists have consistently shown this “camera perspective bias” across a substantial series of experiments, finding in one study that even professionals like judges and police interrogators are not immune.

Experiments like these feed a larger concern: whether the police, prosecutors, defense lawyers, judges or jurors can actually tell the difference between true and false confessions, even with the more complete record of interactions that recorded interrogations provide.

We know that false confessions really do occur, even in very serious crimes, and probably more frequently than most people expect. But why? We know something about certain interrogation techniques, as well as defendant vulnerabilities like youth or mental disability, that may create heightened risks for false confessions. But we don’t yet know enough about the psychology of false confessions to be able to accurately “diagnose” the reliability of a given confession just by watching it.

The problem is that many of the red flags that frequently occur in false confessions — like unusually long interrogations, the inclusion of inaccurate details, or the police “feeding” some crime-related information to the suspect — can also occur in the confessions of the guilty. This means there’s no surefire way to tell false confessions and true confessions apart by viewing a recording, except in extreme cases.

And yet by making confessions so vivid to juries, recording could paper over such complications, and sometimes even make the problem worse. The emotional impact of a suspect declaring his guilt out loud, on video, is powerful and hard to dislodge, even if the defense attorney points out reasons to doubt its accuracy.

This doesn’t mean that mandating recording of interrogations is a bad idea. Routine recording will serve to make them fairer and less coercive — and this might well help reduce the number of false confessions.

But we need to recognize that by itself, video recording cannot stop all the problems with interrogations, prevent false confessions or guarantee that we will spot them when they do occur.

We are still a long way from fully understanding why the innocent confess during interrogations, and why we believe them when they do — regardless of what we see on camera.

Jennifer L. Mnookin is a professor of law at the University of California, Los Angeles.

Darryl Howard will be tried again

The following opinion by Radley Balko appeared in the July 11, 2014 Washington Post.

In March, I posted a long report on a likely wrongful-conviction case in Durham, N.C. Darryl Howard was convicted of killing a mother and her daughter based entirely on testimony from eyewitnesses, many of whom have since changed or recanted their stories. More important was what was not at Howard’s trial — critical evidence pointing to another killer. Though there’s ample evidence that the two women were sexually assaulted before they were killed, the prosecution insisted that wasn’t the case, likely because DNA testing on the semen found in one of the women excluded Howard. (Testing on the DNA found in the second woman since then also excludes Howard.)

In May, North Carolina Superior Court Judge Orlando Hudson overturned Howard’s conviction with a blistering opinion that excoriated the police and prosecutors for withholding the evidence and for making false statements to jurors. The prosecutor in the case was then-Assistant District Attorney Mike Nifong, who of course would go on to win election as district attorney, then be removed from office after the Duke lacrosse debacle for withholding evidence and making false statements to a judge. Nifong’s protege and successor Tracey Cline was later removed from office herself, again after multiple allegations of misconduct, including withholding evidence.

I noted in the original article that the case could have been an opportunity to review prior convictions in the perpetually troubled Durham DA’s office. An upcoming election also presented an opportunity for Durham voters to put some new blood in office. Instead, the voters elected Roger Echols, an heir to the Nifong legacy. Tracey Cline was Nifong’s top deputy. Echols was Cline’s.

Not only is the DA’s office trying Howard again, they’re also fighting to make sure Howard remains in prison until that trial happens. Fortunately, Hudson isn’t having any of it.

Judge Orlando Hudson said Friday he intends to release 52-year-old Derrick “Darryl” Howard on unsecured bond unless he’s blocked by a prosecution appeal to the state Court of Appeals.

It’s unclear when a ruling might be issued, but Howard’s defense attorney, Jim Cooney, said it could be as soon as Friday.

Hudson ordered a new trial in May after ruling there was no physical evidence connecting Howard, who is serving an 80-year prison sentence, to the 1991 drug-related deaths of Doris Washington and her 13-year-old daughter, Nishonda.

Howard was convicted of two counts of second-degree murder in 1995. . . .

Hudson called the case against Howard by former Durham prosecutor Mike Nifong “horrendous.” . . .

Howard’s wife of 15 years, Nannie Howard, said after the hearing that she’s always had faith in her husband and is hopeful that he’ll be released.

“I’m overjoyed, happy, elated. I’m nervous – all those wonderful emotions that come to play in a moment like this,” she said. “But at the end of the day and through it all, I knew my husband was innocent and I am just so thankful beyond words that I can express right now that he is on his way home.”

Howard can’t go home just yet, though. The prosecution has won a temporary stay while it appeals the decision to grant Howard bond.

You can’t help but wonder what sort of calamity needs to happen for things to change in Durham.

Why Won't California Release Innocent Men from Prison? Gov. Jerry Brown has the power to exonerate them, but he won't use it.

The following opinion by Steven Greenhut was published by Reason.com on July 4, 2014.

SACRAMENTO — Gov. Jerry Brown and the legislature have been cutting down on prison overcrowding to comply with a federal court order, thus leading to a "realignment" policy that moves inmates from state-run prisons to county jails and a policy that may result in some early releases.

Whatever one thinks of the governor's handling of this matter, it's hard to understand why he hasn't pursued his prison-reduction efforts by harvesting some low-hanging fruit – i.e., releasing from prison those inmates who almost certainly are not guilty of the crimes for which they've been convicted. The governor, after all, has the power to grant clemency and pardons.

Why not act on the evidence surrounding the so-called California 12?

Those are the 12 California prison inmates whose cases have been investigated by the California Innocence Project, a legal clinic at the California Western School of Law in San Diego. The group has secured the exoneration of 11 California inmates. U-T San Diego in March reported on its client, Uriah Courtney, who served eight years of a life sentence for rape before DNA evidence pointed to the real perpetrator.

Each year, the school's legal team receives more than 2,000 claims from inmates. It brings to mind the line from the prison movie, "The Shawshank Redemption," in which one of the characters says, "Everybody's innocent in here. Didn't you know that?" But while many people claim to be innocent in prison, some of them actually are innocent. And while the numbers might not be large, the sense of injustice is overpowering.

"I'm pretty darn cynical," the project's director, Justin Brooks, told me after a Friday rally at the Capitol steps. Of the thousands of cases his team reviews, they usually end up with one or two. These are cases where he is 100 percent convinced of the inmate's innocence. But even when the evidence is strong, it's hard to get action on the cases.

Prosecutors aren't always cooperative when it comes to reviewing some of their possible past mistakes, although Brooks says that San Diego County District Attorney Bonnie Dumanis has been an admirable exception. She always sits down and looks at the evidence.

But the courts are reluctant to reopen a case unless there is some new piece of evidence or a new technology (i.e., DNA), he explains. If, for instance, the defense simply did a bad job or didn't call a witness who could have exonerated the defendant, then it's nearly impossible to get a new hearing.

For instance, one of the California 12 is Quintin Morris, who has served 17 years in prison for three counts of attempted first-degree murder, even though another man later admitted the crime. The court found that such a confession should have been presented at the trial and rejected efforts to free him.

As the Innocence Project explains on its website, "A federal judge noted that his hands were tied and he could not reverse Q.T.'s conviction because there were no 'legal avenues to do so.' The judge expressed serious concern over whether Q.T. committed the crime and suggested that Q.T. specifically apply for a pardon from the governor."

All of the California 12 cases are equally disturbing, and while Brooks says his group is pursuing legal avenues on all of them, their best hope remains petitioning the governor for pardons, as the federal judge has recommended in the Morris case.

So last year, Brooks and two colleagues marched 712 miles to the Capitol to get some publicity for their cause. And after another year of inaction from the governor, they came back to the Capitol and again tried to spark some publicity.

"We've had several conversations with the Innocence Project and their materials are being reviewed," said the governor's office, in response to my inquiry.

On the Capitol steps, I talked to Tim Atkins, who spent 23 years in prison for murder before being released after the Innocence Project found that the conviction was based on a faulty eyewitness report. He described his nightmare — one that finally ended with an apology and exoneration from the same judge who had sentenced him years ago.

"Any kind of injustice affects us all," Atkins said. Maybe if the cost-saving argument doesn't reach the governor, a simple ethical one might.

Steven Greenhut is the California columnist for U-T San Diego.

‘Presumption of innocence’ fading away

The following opinion by Michael Swickard was published on July 2, 2014 by the Albuquerque Journal.

“The media’s the most powerful entity on earth. They have the power to make the innocent guilty and to make the guilty innocent, and that’s power. Because they control the minds of the masses.”

— Malcolm X

Several times a week there is something in the media that makes me queasy. Someone will have been arrested, so the media give all the details of the crime in such a way that for most people there is no other conclusion than the person is guilty. Every detail is on the front page for all to see, even those details that the police plant in the press to move the case forward.

The presumption of innocence is one of the founding principles of our country. But over the years, citizens have lost that presumption. In the Old West, often the low-down dirty varmint was hung and then given a trial. Example: at Boot Hill in Tombstone, Ariz. is this marker:

“Here lies George Johnson hanged by mistake 1882.

He was right, we was wrong,

But we strung him up, and now he’s gone.”

Several times a month I protest the way the media frame the story such that guilt can be the only conclusion. I protest to the media that they only carried the prosecution’s message. They are usually huffy about any criticism since everyone knows that when someone is arrested, they are guilty.

Not the issue

They answer the defendant will get his or her day in court. But that is not the issue. The jury pool is contaminated by the media framing the story from the prosecution’s point of view. The media often are intimidated by the police and if they do not play ball, so to speak, they are frozen out of the information loop.

Further, as some of us remember, there have been several seemingly iron-clad cases against citizens that subsequently turned out to be incorrect. What is remembered is that the person was handcuffed and perp-walked into the jail on nighttime television. It is rarely remembered that the person was really innocent.

Other times the police are fishing and the media work hand-in-hand, such as the attention paid to the boyfriend of Katie Sepich, a Las Cruces woman murdered in 2003. The boyfriend turned out years later to be completely innocent. But he was the number-one suspect for a while. The media cried foul when he hired an attorney… whispering only guilty people do that. Again, he was completely innocent.

Arrest is big news

The arrest is big news. We citizens hear of the charges on the front page with all the personal details, including the name of the arrested person’s dog. Story after story is published that gives the details of the facts of the case over and over again with no prosecution stone left unturned. No exculpatory evidence is mentioned.

Then, the story changes for some citizens and we learn they are innocent of the charges. But many Americans do not see the clearing of innocent citizens since the story of innocence is usually published in the middle of the newspaper next to the bookmobile schedule.

Again, what we are talking about is the presumption of innocence. This is an American legal principle that requires our government to prove the guilt of the defendant, and even more importantly, it relieves said defendant of any burden to prove his or her innocence. If someone decides not to defend themselves against charges, they are still presumed innocent unless and until convicted of the crime. At least that is the theory.

Haste to be first

One of the problems I am seeing is the reporter’s haste to be the first with the story, right or wrong.

The problem is that journalists no longer consider that they are in the middle of a story; rather, they become, in effect, junior policemen because that is where the information is initially. And again, the police and prosecution play the journalists as far as they can to win their case.

Perhaps the Constitution is dead; perhaps there is not even a First Amendment.

Perhaps the journalists who rush to judgment will find themselves one day on the wrong side of the law and truth and the presumption of innocence.

(Michael Swickard hosts the syndicated radio talk show “News New Mexico” from 6 to 9 a.m. Monday through Friday on a number of New Mexico radio stations and through streaming. Email: michael@swickard.com)

Why Connecticut needs a conviction integrity unit

The following opinion by David R. Cameron was published in the New Haven, CT Register on June 19, 2014.

The greatest shortcoming in the American system of criminal justice is its propensity to wrongfully convict individuals of serious crimes and then, once evidence surfaces that suggests a wrongful conviction, refuse to reopen the investigation.

In recent years, as prosecutors have become increasingly aware of the frequency and various causes of wrongful convictions, some have created a conviction integrity unit to reexamine the evidence in cases in which there’s good reason to believe a wrongful conviction occurred because of mistakes in the initial investigation, eyewitness misidentifications, perjury of witnesses, and/or official misconduct.

Since 2007, such units have been created in more than a dozen cities and counties across the country — first in Dallas and then in Chicago and Cook County, San Jose and Santa Clara County, California, Manhattan and Brooklyn in New York, Detroit and Wayne County, Denver and, most recently, Philadelphia and Cleveland.

In most of the cases reviewed, the convictions have remained in place. Nevertheless, the re-examinations have resulted in the dismissal of 33 convictions in Dallas, four in Manhattan and seven thus far in Brooklyn.

There are instances in which the evidence of actual innocence that surfaces after a conviction is so persuasive that prosecutors will ask a court to throw out a conviction.

The most authoritative proof of actual innocence is, of course, the presence at the scene or on the victim of the DNA of someone other than the person convicted of the crime. The New York-based Innocence Project reports that, since 1989, 316 wrongful convictions have been thrown out because of DNA evidence that conclusively tied someone other than the person convicted for the crime. In Connecticut, three such exonerations have occurred over the past eight years.

But those cases are a proverbial drop in the large bucket of wrongful convictions that have occurred over that 25-year period, both in the U.S. and in Connecticut. There are some cases in which, although there is some DNA evidence that points to someone else as the perpetrator, that evidence doesn’t constitute proof of actual innocence.

And there are many, many others in which there is no DNA evidence at all. Indeed, experts estimate that in roughly 95 percent of all convictions for serious felonies there’s no DNA evidence at all.

For those cases, the only recourse of the wrongfully convicted is a habeas petition for a new trial or release on the grounds of actual innocence. But as we have seen, the habeas process in Connecticut is deeply flawed: The appeals drag on for years, the Superior Court judges who hear them often seem to be unschooled in criminal law and make egregious errors in interpreting evidence, and the prosecutors care only about defending their convictions.

Take, for example, the case of Richard Lapointe. Lapointe was convicted and sentenced to life without parole in 1992 for the sexual assault and murder of Bernice Martin, his wife’s 88-year-old grandmother, in Manchester in 1987.

In 2011, a habeas judge rejected his appeal for a new trial. The Appellate Court reversed the judge a year later and ordered a new trial on the grounds that the state’s failure to turn over a detective’s notes deprived him of a fair trial. The notes suggested the fire set by the murderer was set when Lapointe was home with his wife and son.

It also ruled that his first habeas lawyer provided ineffective assistance by failing to raise the state’s suppression of the notes as an issue. The state appealed the reversal to the state Supreme Court last year and we now await, 22 years after his original conviction, a decision whether Lapointe will receive a new trial.

And yet there has been evidence for some time that suggests that someone other than Lapointe committed the crime. A woman driving by the housing complex where Martin lived at about the time of the murder had to swerve to avoid hitting a man running “like he was being chased by a pack of dogs” from the housing complex. The man didn’t look at all like Lapointe.

A man who had been at a bar in the vicinity of the housing complex and who resembled the running man committed a strikingly similar sexual assault in a neighboring town four days later.

Several partial DNA profiles were found on the inside lining of gloves found on and near the bed where the woman was attacked, none of which matched Lapointe’s DNA.

A pubic hair on the sweater the woman had been wearing contained mitochondrial DNA — the DNA contributed by a person’s mother — that came from someone other than the woman or Lapointe.

Lapointe was convicted on the basis of his supposed confession to the crime. But there is ample evidence from detectives’ notes of his nine-hour interrogation that Lapointe, who is developmentally disabled, provided a false confession.

Every likely wrongful conviction should be regarded as a cold case waiting — and demanding — to be solved. But rather than reopening the Martin investigation and looking at it as an unsolved cold case, the state has continued to defend the original conviction.

In recent years, Connecticut has enacted important legislation designed to prevent wrongful convictions. It has required that confessions to serious crimes be videotaped, in order to prevent false confessions.

And in 2012, it mandated the blind or double-blind administration and sequential presentation of a suspect and fillers in a lineup or photo array in order to minimize eyewitness misidentifications — the single most frequent cause, by far, of wrongful convictions.

The state now leads the country in preventing wrongful convictions. There is no reason it should not also lead it in correcting the wrongful convictions that occurred in the past. Rather than relying exclusively on a habeas process that is overloaded with frivolous appeals and drags out appeals for decades, the state should follow the example of many large cities across the country and create a conviction integrity unit in the office of the chief state’s attorney.

David R. Cameron is a professor of political science at Yale and a member of the state’s Eyewitness Identification Task Force.

New York Legislature ignores shameful reality, refuses to act on wrongful convictions

The following editorial was published by the Buffalo News on June 30, 2014.

Lynn DeJac Peters had her life stolen from her, permanently by cancer earlier this month and, prior to that, for almost 14 years by the State of New York. There’s only so much anyone can do about cancer, but there’s a lot that New York can do about sending innocent people to prison. But it won’t – or, at least, it hasn’t.

Albany had the chance to do that this month and, once again, it failed. If that isn’t the secret shame of this boastfully progressive state, then the state is simply beyond shame.

It’s not that New York purposely convicted DeJac Peters of murdering Crystallyn Gerard – her own daughter – knowing she was innocent of the crime. A terrible confluence of human failing and inadequate systems led police, prosecutors, a jury and a judge to believe she had committed one of the worst crimes imaginable. It was due only to the diligence of Buffalo police cold case detectives that this terrible miscarriage of justice was discovered and ultimately accepted by the Erie County District Attorney’s Office.

DeJac Peters was released from prison in 2007. Just two years ago, with the State of New York dragging its heels – par for the course – she was awarded $2.7 million for 14 years of hell on earth she endured because of New York’s mistake.

The issues that lead to many wrongful conviction aren’t a mystery. Principal among them are witness misidentification and false confessions. They are problems caused by human error. What is needed are better systems that will diminish the likelihood those defects will grind up more New Yorkers.

Other states have changed procedures regarding lineups and other identification procedures and have also begun recording interrogations, which helps to guard against false confessions. New York hasn’t done that. It needs to. If DeJac Peters were the only person ever to have been wrongfully convicted, an ethical state government still would be compelled to examine the issues. But she is not the only one. Far from it.

Anthony Capozzi, also of Buffalo, was wrongfully convicted of rape. While he rotted in prison, the real rapist began murdering women in Western New York. The man suspected of killing Crystallyn, Dennis P. Donohue, is now in prison for murdering Buffalo resident Joan Giambra – nine months after Crystallyn was killed. There is a cost for failing to come to grips with this problem, and it is measured in blood. New York shrugs.

Only this month, another infamous case of wrongful conviction was finally settled. In 1989, five New York City teenagers were wrongfully convicted in the notorious Central Park Five case. The teens, some of whom falsely confessed while under intense police pressure, were convicted of a brutal assault on a jogger in Central Park. In 2002 the convictions were overturned because the men – they were no longer teenagers – were innocent. Someone else had committed the crime. Their civil case was settled only this month for a total of about $41 million – 12 years after their exonerations.

In his State of the State address, Gov. Andrew M. Cuomo recognized the problems in New York’s criminal justice system and pushed for reforms.

A deal had been taking shape in Albany this month to make a decent start on dealing with the issues of misidentification and false confession, but in the rush to end the session, and apparently over concerns about the costs of recording equipment, it didn’t happen. Again.

Some reports suggest the issue could be taken up in a fall session of the Legislature. It needs to be. Albany doesn’t understand – or doesn’t care – that every delay puts more innocent people at risk, not only for wrongful conviction, but for being victimized by someone who should have been sent to prison but escaped notice because the wrong person was convicted.