Bluhm Blog

ENOUGH 2!

ADDENDUM:  On November 16, Cook County Circuit Court Chief Judge Paul Biebel granted the motion to vacate of all four defendants in the Englewood case: Vincent Thames, Terrill Swift, Michael Saunders, and Harold Richardson.  The Charles Johnson case has been continued to December 9 when Judge Joseph Kazmierzki will decide whether Charles Johnson will get a chance for a new trial.

4 Men Convicted in 1994 Murder Get New Trials on DNA Evidence: MyFoxCHICAGO.com

 

 

   ENOUGH!

           Enough! When I learned that Cook County prosecutors had finally moved to vacate the convictions of five men who were wrongfully convicted as teens of a 1991 murder and rape in Dixmoor, the word that kept ringing in my head was -- “Enough!” One of those men was my client, Robert Taylor, who walked out of prison on Thursday (see below). 

         Enough! How many Chicago area police officers are going to obtain false confessions from black children because they use the same tactics on them that they use on adults?  How many more prosecutors are going to ignore multiple red flags that these “confessions” are unreliable?  How many juries will convict defendants because they can't imagine that anyone would confess to a crime they did not commit?   

         The freeing of the Dixmoor Five may prove to be just the tip of the juvenile false confession iceberg. On November 16, a Cook County Circuit Court Judge is going to determine whether the convictions of four other teenagers from Englewood should be vacated.  In an eerily similar factual scenario to the Dixmoor case, Terrill Swift (see below), Michael Saunders, Harold Richardson, and Vincent Thames each confessed to a 1995 murder and rape.  They were convicted despite DNA that excluded them prior to trial.  That same DNA has now been matched to an adult serial killer who went on to kill and rape other women. 

 

TERRILL SWIFT



 

                         

MICHAEL SAUNDERS       HAROLD RICHARDSON

        The very next day, November 17, a Cook County judge will decide whether Charles Johnson, who is serving life without parole, will get a new lease on life. Johnson, along with Larod Styles and two other teenagers, confessed to a December 1995 murder and armed robbery of two South Side used car dealers.  The teens were convicted even though dozens of fingerprints at multiple crime scenes did not match any of them.    Several of these prints have now been matched to a man who left his fingerprints and palmprints in two places: on cars touched by the killers on the lot before the murders and on the adhesive side of a window sticker that the killers peeled off a car they stole from the lot after the murder.  This stolen car was abandoned a block from “Mr. Fingerprint’s ” home.  No connection exists between "Mr. Fingerprints" and and any of the defendants. 



       CHARLES JOHNSON                         LAROD STYLES

         And then there is Daniel Taylor.   Only 17, Taylor signed a detailed confession to a 1992 North Side double murder after being interrogated by Chicago Police for hours.  Taylor had what appeared to be a rock-solid alibi: he was in the Cook County jail at the time of the crime. Prosecutors tried him anyway, arguing that although a “Daniel Taylor” was in custody, it was not “the Daniel Taylor.” All appeared lost for Taylor after he was convicted and both state and federal courts turned down his appeals. 

DANIEL TAYLOR

         Recently, however, my colleagues at the Center on Wrongful Convictions found new evidence showing that the Chicago Police knew all along that the right Daniel Taylor was in custody.  The police had interviewed Taylor’s  cellmate who confirmed Taylor’s alibi.  They never turned over their reports of this interview to the defense.  Based on this new evidence, the Seventh Circuit Court of Appeals recently granted Taylor permission to seek relief in the federal courts.  For the first time in two decades, Taylor has hope that he may be freed. 

         Enough! It’s not enough to be outraged by these cases.  The following steps must be taken to prevent false and coerced confessions of youthful suspects in the future. 

         First, strict time limits should be placed on juvenile interrogations.  Officers who insist on interrogating children with tag teams, in the middle of the night, and for hours on end must know that they risk losing any resulting confessions.  Similarly, such high pressure tactics as lying about evidence, minimizing the crime or its consequences, and suggesting that a suspect could go home, avoid jail, or “get help” if he confesses, should be forbidden when the suspect is under the age of 18.

         Second, all interviews and interrogations of children must be electronically recorded.   Without a recording, there’s no way to know if the confession is voluntary or if the details in the confession came from the suspect or were fed to him by the police.  Unrecorded confessions of child suspects should be inadmissible at trial.

         Third, judges must act as gatekeepers of unreliable confessions.  Currently, judges must allow into evidence even the most fanciful of confessions unless they find coercion from law enforcement. But judges must have the power to exclude confessions when they are untrustworthy.  Before confessions are presented to juries, the State should be required to prove that they are corroborated by other evidence and not contaminated by police-fact feeding. 

         Finally, courts should allow experts to educate jurors about false confessions and should give juries cautionary instructions about the reliability of confession evidence.  Police officers, prosecutors, and judges should receive training on the risks associated with false confessions, how to distinguish reliable from unreliable confessions, and the vulnerabilities of children to police pressure.

         These suggested reforms may not be enough to stop Cook County’s vicious cycle of false and coerced confessions of teens. But we must shake up the system before any more children are forced to spend the prime of their lives locked up for crimes they confessed to, but did not, commit.           

   

    JAMES HARDEN

Steven A. Drizin is the Legal Director of the Center on Wrongful Convictions at Northwestern University School of Law. 

Ms. Right (Ann Coulter) is So Wrong About the Central Park Jogger Case

In her new book, Demonic: How the Liberal Mob is Endangering America, Ann Coulter riffs on the Central Park Jogger case and uses the case as a prime example of how liberals, especially those "Innocence Project defense style lawyers" undermine the rule of law by rewriting history to undermine faith in the criminal justice system.  Coulter has been all over the internet recently raging about the Jogger case, presumably to promote her book and to respond to some criticism she took from the New York Times in its review of Sarah Burns's recent book on the Jogger case. In that review, Maggie Nelson, in discussing the continuing public fascination with the case, wrote that "coarser pundits like Ann Coulter continue to exploit the case."

The book chapter in Demonic (which I did not buy, but which I read in the book store) is an expansion of earlier articles Coulter wrote in 2002 in the wake of a New York judge's decision to grant the Manhattan District Attorney's motion to vacate the convictions of the jogger defendants.  Reading the chapter, one gets the impression that Coulter investigated the case, delved deeply into the facts, and came to the conclusion that the original police account of what happened to the jogger -- the account in the boys' confessions -- is the truth.  A closer look at her sources, however, indicates she did no such thing.  She basically lifted her account directly from the Armstrong Report, a report written by New York attorney Michael Armstrong, among others, and commissioned by then New York City Police Commissioner Raymond Kelley in the wake of the jogger defendants' exonerations. 

The Armstrong Report, however, did not come to the conclusion that the boys' confessions were reliable.  He and his colleagues, after analyzing the confessions, simply came to the opinion that the boys's confessions were slightly more reliable than the confession of Matias Reyes (whose DNA did match DNA on the jogger's sock) and that it was "more likely than not" that the boys participated in the attack on the jogger.  This is a far cry from a finding that the jogger case defendants were absolutely guilty and an admission that the boys were certainly not guilty beyond a reasonable doubt.  Indeed, if I recall Armstrong's testimony before the New York City Council (I also testified before the Council), he and his colleagues on the panel did not question the decision to vacate the boys's convictions so much as defend the conduct of the police and argue with the conclusions of some that the boys were absolutely innocenct.  Morever, Armstrong and his colleagues, in an attempt to reconcile the boys' confessions (which did not mention Reyes) with Reyes', came up with a theory of the crime -- a theory that he admitted was speculation -- that was a far cry from the brutal rape and attempted murder described in some of the boys's confessions: 

We adopt the view that the most likely scenario for the events of April 19, 1989 was that the defendants came upon the jogger and subjected her to the same kind of attack, albeit with sexual overtones, that they inflicted upon other victims in the park that night. Perhaps attracted to the scene by the jogger’s screams, Reyes either joined in the attack as it was ending or waited until the defendants had moved on to their next victims before descending upon her himself, raping her and inflicting upon her the brutal injuries that almost caused her death.

Like Sarah Burns, I have studied extensively the cases of the Central Park jogger defendants.  I share her belief that to the extent these confessions got some of the facts right, the police suggested the facts to the boys, either through leading questions, showing crime scene photos to the boys, or taking them to the crime scene.  Since the exoneration of the joggers, this phenomenon of police contamination -- the inadvertent feeding of inside information about the crimes to the suspect -- has been found to be rampant in known cases of false confessions.  Coulter trumpets the fact that the boys were not coerced into confessing but again she misses the point.  Simply because the police did not browbeat or torture the boys into confessing does not mean that their confession are reliable.  In virtually every known wrongful conviction based on false confessions, courts have ruled that confessions were voluntary and admitted them into evidence that were later proven to be false.

The biggest problem with Coulter's take is not her analysis of the Jogger case facts.  It is her analysis of the role the media played in the jogger cases and has played in the innocence movement.  It is not liberal media who hates the rule of law or who is responsible for undermining faith in our criminal justice system.  If anything, the so-called liberal media either adopts uncritically the police and prosecutor's line up to and during criminal trials or plays to the fears of the public, fueling their anger, and convicting defendants in the press. This is precisely what happened in the jogger case as the right wing media (so admired by Coulter) and the left wing media (so despised by her) described the teens in animalistic terms, took their confessions as the gospel truth, and ignored the gaping holes in the prosecutors' cases.  The role of the press, right wing and left wing, in convicting innocent defendants before trial and by eroding the presumption of innocence, has been far more damaging to the criminal justice system than anything the Innocence Projects have ever done.  Morever, it is the intransigence of police and prosecutors (and pundits) in the wake of DNA evidence and other evidence of actual innocence that poses the greatest threat to public confidence in the criminal justice system. 

Advance Preview: Definitive Book on Central Park Jogger Case Destined to be a Classic

Sarah Burns

 

 

In June of 2002, I read an article in the New York Times stating that the NYPD was opening a reinvestigation of the Central Park Jogger case.  The reinvestigation was prompted by a claim by Matias Reyes, a convicted murderer and rapist, that he alone had raped the Central Park Jogger.  The story, written by William K. Rashbaum, was on page B2 of the Times, indicating the hesitance with which the Times was playing the story.  The fact that a murderer would confess to the crime after 13 years intrigued me but it was the other information that excited me -- the source of the information was James Kindler -- someone inside the DA's office -- who said that famed Manhattan DA Robert Morgenthau had commenced an investigation into the claims.  Although Kindler did not release Reyes's name or details of the investigation, another inside source did.  "Preliminary" DNA test results showed that Reyes's DNA was "consistent" with some of the evidence left at the crime scene but was not a conclusive match. Even Jesse Berman, one of the original lawyers for one of the Central Park Five defendants soft-pedaled the news, echoing what would later be a common refrain of the NYPD: "One possibility is that they're guilty and he is too."  

At the time I read this article, I was in full research mode, hunting for proven false confessions for an article I would later write and publish with Richard A. Leo. I had accumulated over 100 proven false confessions and was knee-deep into analyzing these confessions.  Some were proven false when the true perpetrator came forward to admit to the crime.  Others were proven false by DNA evidence.  But few cases involved both types of evidence.  The Central Park Jogger revelation was a detour but one I could not pass up. My article with Richard Leo (The Problem of False Confessions in the Post-DNA Age) would have to wait.

That summer, I dug deep into the Central Park Jogger case, and reviewed much of the same information that newcomer Sarah Burns did in preparation for her riveting new book The Central Park Five: A Chronicle of A City Wilding (to be published in May by Knopf).  I read two books -- Timothy Sullivan's Unequal Verdicts: The Central Park Jogger Trials and Harlan Levy's And the Blood Cried Out: A Prosecutor's Spellbinding Account of DNA's Power to Free of Convict -- and countless newspaper articles from the time of the crime through the time of the trial.  I also did some investigation into Matias Reyes, a serial rapist, who had terrorized women on the Upper East Side in and around the Park between September 1988 and his arrest in August 1989.  By the end of the summer, even before the DNA results were announced in early September, I had reached a stunning conclusion -- the Central Park Jogger defendants were innocent. 

Sarah Burns's exploration of the Central Park Jogger case is the first book to reflect back on the Central Park Jogger case in the eight years since the five teenage defendants were exonerated.   Both Sullivan's and Levy's books (Levy devoted a chapter to the CP Jogger case), were premised on the idea that the defendants were guilty.  Indeed, Sullivan's book questioned the jury's decision not to convict Korey ("not Kharey") Wise of the most serious crimes of rape and attempted murder. Once published, Burns's book will become the definitive text on a case that is still unfinished.  

Several things make Burns's book so special.  Burns, who first got interested in the case when she spent a summer interning at the law office of civil rights attorney Jonathan Moore, had complete access to the trial transcripts.  Her detailed account of their trials shows how the lawyers who represented the boys failed them. She is an equal opportunity critic -- taking the defense attorneys as well as the police and prosecutors to task for their courtroom performances and for failing to make the connection between the Jogger assault and Matias Reyes's crimes.  

Although the defense lawyers (with the possible exception of Colin Moore and Mickey Joseph) were ineffective, even Clarence Darrow would have had a hard time winning an acquittal. The reasons for this, detailed thoroughly in Burns's book, have to do with the power of confession evidence and the climate in which the crime occurred.  Burns takes the readers back to the New York of the 1980's and 1990's when crack cocaine was wreaking havoc on the streets, few people were willing to brave Central Park at night, and New York was averaging one murder every four hours.  She also delves deeply into the racial divide in the city and fits the Jogger case into a uniquely American myth -- that of the bestial black male with a special fondness for white women.  Although life in the City is much better now than in the late 1980's, the racism which tainted the Jogger case from the beginning still lurks beneath the surface, occasionally rearing its ugly head from time to time.  Because of this, Burns is right to suggest that all may not be well in Gotham City and that a miscarriage of justice like the Central Park Jogger case is still possible today.  

In one other way Burns's book succeeds like no other.  She spent hours interviewing the jogger defendants and their families and helps to debunk many of the myths surrounding the boys.  Most of the boys were not serious troublemakers with lengthy rap sheets; most did not come from broken families.  Although they were not saints, they were not the feral beasts and animals portrayed by even the papers with the best journalistic standards at the time.  With one or two exceptions, the Fourth Estate dropped the ball, feeding the public's frenzy for vengeance and convicting the boys long before they were tried.  Burns follows the boys from the time of their arrests to the time of their release and to the present day. We learn of their despair, their loneliness, their hopelessness and we learn of their resiliency, their hopes, their dreams.  She has done what few have dared to do to date -- she found a way to humanize them.

In the wake of the exonerations, I was invited to come to New York to testify at a quickly-convened city council hearing to discuss the need to electronically record police interrogations in the wake of the exonerations.  The subject was too raw and the hearings were bogged down in in-fighting between those who sided with the defendants and those who backed the police.  Although the boys were exonerated and most reasonable people recognize that they were innocent of the attack on the Jogger, many of the detectives and prosecutors involved in the case still cling to the belief that they are guilty. It became apparent to me, that the Jogger case defendants, as long as the city and the police officers (and some prosecutors) continued to persist in publicly questioning the innocence of the boys, would never be poster boys for reforming the criminal justice system in New York.  It is eight years since I testified in New York City and while the New York DA's office recently published a protocol for electronic recording, it is discretionary, not obligatory, and recording of interrogations is still the exception not the rule.

The Central Park Jogger case remains a dark stain on the criminal justice system in New York City.  Until six men and women were exonerated by DNA evidence in Beatrice Nebraska in 2008, the Jogger case stood as the single greatest miscarriage of justice in terms of the numbers of wrongful convictions in a single case.  To date, none of the boys has received any compensation for the between 8 and 13 years of their lives that were stolen and the civil lawsuit against the police officers is still languishing in the courts.  Here's hoping that Burns's book (and a documentary with her father, Ken Burns, to follow) force the good people of the City to finally confront the Central Park Jogger case in all of its complexities and to start the process of healing the racial divide that still lingers over two decades after the crime.

 

Center on Wrongful Convictions client Randy Steidl leads the charge toward abolition of the death penalty for all, while awaiting his personal justice from the Governor

 
RANDY STEIDL (Chicago Tribune photo)

Yesterday, on the eight-year anniversary of the mass commutation of 167 Illinois death sentences by former Governor George Ryan, the Illinois General Assembly passed a bill abolishing the death penalty in Illinois.  Assuming current Governor Pat Quinn signs the bill--and it is a moral imperative that he do so--Illinois will complete a process that began over ten years ago when Ryan announced a moratorium on the death penalty because the capital punishment system in Illinois was "broken."

The floor debates last week in the Illinois House and this week in the Illinois Senate were emotional and enlightening, and at times approached great oratory.  Those in favor of repeal cited racial bias in the system, geographic disparity in the imposition of death sentences, cost, morality, and the need to join the rest of the civilized world in renouncing this barbaric form of punishment.  But by far the most pervasive theme was innocence.  The names of Illinois's death row exonerees were read, stories of innocence were shared, and the frequency of wrongful conviction was pronounced too great to permit capital punishment.

When innocence was discussed, no name was mentioned more often than that of Gordon "Randy" Steidl, a longtime Center on Wrongful Convictions client who was exonerated after serving more than 12 years on death row and more than 17 total years in prison.  Randy tirelessly advocated and lobbied for repeal of the death penalty, and he was present when both votes were taken.  House Sponsor Karen Yarbrough introduced him to her colleagues and invited them to apologize to him; Senate Sponsor Kwame Raoul repeatedly invoked Randy's name and gestured to him while summing up the arguments in favor of repeal.  There is no more eloquent, compelling, and fiercely passionate opponent of the death penalty than Randy Steidl, and this legislative victory belongs to him as much as to anyone else.

As death penalty opponents anxiously await Governor Quinn's signature on the abolition bill, Randy awaits Governor Quinn's signature on an equally important document.  In 2002, while still in prison, Randy filed a clemency petition with Governor Ryan, seeking an innocence pardon to relieve him of the two wrongful murder convictions that sent him to death row.  In the crush of death penalty clemency petitions filed at the end of Governor Ryan's term, Randy's request was overlooked.  After Randy's release from prison in 2004 on a federal writ of habeas corpus, he renewed his request with Governor Blagojevich.  Again, his petition remained untouched on the Governor's desk.  Last month, Governor Quinn pardoned numerous people who had filed clemency petititions in 2003 and 2004, but Randy's petition was passed over once more.  Although Illinois lawmakers recognize that Randy Steidl is an innocent man who was wronged by the system, he has not been officially exonerated nor has he received one penny of State compensation.

It would be just, and fitting, if Governor Quinn's next act after signing the death penalty abolition bill would be to grant Randy Steidl an official pardon based on his innocence.

To learn more about Randy's case, please see the Center's summary: Summary of the Randy Steidl case

The Death Penalty and Police Interrogations: Former FBI Agent Lets the Truth Slip Out

JIM SACIA

There are numerous false confession cases where innocent defendants confessed to crimes they did not commit after being threatened by interrogators with the death penalty.  Such threats of harm almost always lead courts to suppress any resulting confessions from suspects as involuntary.  Even though I have seen this practice numerous times in reviewing interrogations, in cases where police do not record the interrogation, they always deny even mentioning the death penalty.  I have never seen a case where a police officer --in the absence of a recording -- has affirmatively said: "Yes, I told him that he was going to get the death penalty and that by confessing and accepting responsibility, he would avoid the death penalty."  Never........  Until yesterday.

As many of you may know, the Illinois House voted to abolish the death penalty yesterday.  The abolition bill goes to the Senate (where it has a fighting chance to pass) and then to the Governor.  The debates over abolition were intense and often quite eloquent.  The prospect of executing an innocent person was the argument that seemed to carry the day, especially given Illinois's record of twenty exonerations of death row inmates.  During the debates, representative Jim Sacia, a former FBI Agent from Pecatonica, IL. argued that the death penalty is needed because threatening defendants with the death penalty often can make them talk to authorities to help solve crimes.  "Don't take that tool from law enforcement," Sacia told his fellow legislators.

Thanks Rep. Sacia for being so honest about what really happens behind the closed doors of the interrogation.  Your comments will be used to make the case that the FBI, which has long opposed recording of interrogations, is perhaps most in need of this reform.  I wonder how many of your 302s (The form used to create summaries of witness interviews) actually said:  "Just prior to confessing to the crime of ____, SA Sacia and SA ____ threatened the suspect with the death penalty."  Here's betting that not a single one did....

 

 

 

 

Clyde Kennard and More Poetic Justice

My last blog discussed how the effort to exonerate civil rights icon Clyde Kennard has paid unexpected dividends for other Mississippi exonerees who have either died or served their sentences and thus are ineligible for relief under Mississippi's post-conviction statutes. Yesterday, Tucker Carrington, director of the Mississippi Innocence Project, sent this message along about yet another exoneration based on a "Kennard Motion" in Hinds County.  

In an interesting case out of Hinds County (Jackson), Mississippi, Matthew Norwood was exonerated today after prosecutors recently discovered evidence showing that he had not, in fact, been involved in an armed robbery for which he served fifteen years.

Norwood had been accused of an armed carjacking -- and identified, along with another perpetrator, by the victim.  Norwood, sixteen at the time of his arrest, had always maintained his innocence.  When offered a plea to several months in a "boot camp" -- as opposed to the forty years he faced if convicted at trial -- he entered a "best interest"/Alford plea.  Unfortunately, he was removed from the boot camp for non-compliance and re-sentenced to serve fifteen years.  He completed that sentence a couple of years ago.

During the course of an unrelated investigation of a crime that occurred around the time of the carjacking, law enforcement recently discovered credible evidence that Norwood was not involved in the robbery/carjacking.  The prosecutors alerted the court, who then assigned counsel.  The case had an odd posture, however. Norwood had served the balance of his sentence and was thus not able to use Mississippi's post conviction statute to gain relief.

Here's where Kennard comes into the story.....

After Kennard was exonerated, a white supremacist named Richard Barrett appealed the exoneration order to the Mississippi Supreme Court, arguing that the trial court had no power under Mississippi law to enter the order.  In a short but powerful decision, the Supreme Court wrote that "rules are made to secure justice, not defeat it" and that "all courts have the inherent power to correct and make their judgments speak the truth."

This language was then tapped into by the lawyers for Norwood as precedent in their successful effort to persuade the Hinds County trial court to exonerate Norwood.  As Carrington wrote, it was a classic case of "poetic justice."

One Miracle Begets Another in Mississippi Courtroom

 

              

CLYDE KENNARD                                    LARRY RUFFIN

 

 

Several years ago, I was blessed to have played a role in the exoneration of civil rights icon Clyde Kennard, a man who was framed for a burglary he did not commit after he persisted in seeking admission to what is now known as the University of Southern Mississippi. Kennard was a University of Chicago student who left college early to enlist in the armed forces during WW2.  After his service was over, he went to Hattiesburg to take over the chicken farm of a sick relative and sought admission to the local college.  He was framed for stealing 25$ worth of chicken feed and sentenced to Parchman, Mississippi's notorious work camp where inmates toiled in the hot sun picking cotton and doing other hard labor.  He was diagnosed with cancer and ultimately released but died before he could be exonerated.  

After the sole witness recanted his testimony and signed an affidavit, I and others (students from Adlai E. Stevenson high school in suburban Chicago) sought to obtain a posthumous pardon.  When that effort failed, a group of prominent Mississippians filed a Motion for Judgement of Exoneration and Declaration of Innocence to exonerate Kennard. Although there was no precise precedent for such a motion, the State agreed to the relief, and Kennard was exonerated by Forrest County Court judge Robert Helfrich in 2006.  

A white Supremacist named Richard Barrett and some of his followers took an appeal of Helfrich's decision, arguing that Mississippi law did not allow for dead people to file for post-conviction relief or for a declaration of innocence.  In Gill v. State, 

No. 2006-CA-01687-SCT (August 16, 2007),

the Mississippi Supreme Court affirmed a lower court ruling that Barrett's group had no standing to intervene in this matter.  Morever, the Court recognized that the motion was akin to an untimely Motion for Judgment Notwithstanding the Verdict.  Although the JNOV motion was filed well beyond the 10-day time line, the Court held that [r]ules are made to secure justice, not defeat it” and that “[a]ll courts have the inherent power to correct and make their judgments speak the truth.”

 

 

Fast forward to the same Forrest County Courtroom four plus years later -- September 17, 2010. The New Orleans Innocence Project filed motions to clear and exonerate three men -- Phillip Bivens, Bobby Ray Dixon and Larry Ruffin -- who had falsely confessed to a brutal rape and murder in 1979.  Dixon and Bivens, terrified they would be executed, even agreed to testify against Ruffin at his trial.  Ruffin died in prison after serving 23 years.  He did not live to see the day when DNA testing linked a single perpetrator -- Andrew Harris, a man already in prison for rape to the crime.

 

 

Again, Judge Helfrich was asked to vacate the convictions of innocent men.  Again, these motions were not objected to by the State.  Helfrich vacated the convictions of Dixon and Bivens and the two men walked out of prison and into the arms of their loved ones.  Ruffin, however, will have to wait until after the State brings charges against Harris.  What basis will lead to Ruffin's exoneration?  It will be none other than the precedent set by the Clyde Kennard exoneration.  Attorneys for the IP-NO filed a "Kennard" motion to exonerate Ruffin. 

On the day that happens, in the words of Dr. King, "the arc of the moral universe will have bent a little further toward justice" in Hattiesburg MS.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

More From Arkansas: WM3 are not the only Arkansas boys to have been wrongfully convicted based on false confessions

My trip to Little Rock for the WM3 benefit was my third or fourth trip to that city and the third case involving a juvenile who was pressured into confessing to a crime he did not commit.  Let me tell you about the other two.  Most recently, the Center on Wrongful Convictions of Youth was asked to submit an amicus brief in the case of Thomas Cogdell, a 12 year old boy who was convicted of murdering his younger sister in Camden, Arkansas in 2006.  The boy's confession was patently false, the product of police coercion that reduced him to an incoherent mess.  He had a breakdown of sorts after being repeatedly accused of the crime and told that the crime had to have been committed by him or his mother.  The interrogation is one of the most riveting examples of psychological torture I have ever seen. There is no physical abuse and much of what the cops did was probably legal and permissible when used to question adult suspects.  But when police use the same high pressure tactics on children that they use on adults, they not only risk traumatizing a child but they risk obtaining a false confession.  In Thomas's case, after his breakdown, they turned off the cameras, fed him a meal, and then questioned him further before he finally confessed.  They rehearsed the story with him, brought him back in and put his "statement" on tape.  When his mother was finally allowed to see him, you can hear him whisper to her that he made the whole thing up.

Thomas's DNA was not on the sewing tape used to bind his sister (another male's was) nor were his fingerprints or DNA on the bags that were placed over her head to suffocate her. He also could not lead the police to where his mother's wallet had been tossed. To the extent that some of the facts in his confession were consistent with crime evidence, we'll never know whether the police fed him those facts during the dinner break because they stopped recording.

Thomas was tried and convicted of the murder and the conviction was upheld on appeal. Dorcy Corbin of the Public Defender Commission took the case to the Arkansas Supreme Court which reversed the conviction on the ground that police had not properly secured Thomas' waiver of his constitutional rights because Thomas expressed a lack of understanding of the word "waiver" and the police gave him an erroneous definition.  He is free today but  prosecutors have not formally announced whether they will seek to retry him.  A retrial is unlikely, however, as the State has no case without the confession.

To read our Amicus Brief, click here http://www.cwcy.org/resources/91_attach_Brief%20of%20Amicus%20Curiae%20for%20TC-CWCY%201.13.10.pdf

To read Cathy Frye's excellent article on the case, click here: http://epaper.ardemgaz.com/Repository/getFiles.asp?Style=OliveXLib:ArticleToMail&Type=text/html&Path=ArDemocrat/2010/04/21&ID=Ar00104&Locale=

I did not fare as well in the other Arkansas case I worked on and the case still keeps me up at night.  Kirk Otis was a mentally retarded black kid who was manipulated into confessing to the botched robbery and murder of a white Arkansas State Professor Barney Smith in Stuttgart, Arkansas.  The confessions were the result of multiple interrogations by teams of detectives who clearly fed facts to Otis until he could repeat back a story that fit their theory of the crime.  The State filed capital murder charges against Otis (even though it could not obtain the death penalty against a 14 year old) but a vigorous defense by Arkansas Public Defender Latrece Gray convinced the jury to convict him only of manslaughter.  (I think that this is the best that a young black kid can hope for in a case involving the murder of a white victim and to me is a clear indication that the jury believed that Otis might have been innocent).  In my first amicus brief before the Court, I argued that "Kirk Otis was convicted solely on the basis of varied, inconsistent, and uncorroborated statements he made over a period of five days in which he was exhausted, confused, sad and withdrawn." Otis was too young and mentally incapable of making a voluntary confession and made several conflicting statements in his repeated confessions, none of which gave police any new details they did not already know about the murder.  Otis could not lead them to the murder weapon (which was never recovered) or the fruits of the robbery.

Also disturbing was the alleged motive for the murder.  According to the confession, Otis had tried to rob Mr. Smith and shot him after Smith allegedly called him a racial slur.  I don't believe Smith would have used such language with Otis and do not think Otis would have reacted to such language by killing Smith.  This always sounded like a police-supplied motive to me to sell the confession to the jury sadly, it is one I have seen in several other false confession cases over the years.

The only good news about this case is that the Otis was released by the State Parole Board after serving only four years of a 10 year sentence, a result which would not have occurred unless the Board had serious qualms about his guilt.

For an article about the Otis case, see http://www.law.northwestern.edu/news/article_full.cfm?eventid=1769

To read the brief, see http://cwcy.org/resources/38_attach_Otis%20v%20%20Arkansas.pdf

I am committed to doing everything I can to help free the WM3.  But freeing these boys is not going to put an end to juvenile false confessions in Arkansas.  Law enforcement officers in this state have not learned a thing since the Miskelley confession and will continue to obtain false confessions unless the courts and the legislatures step in to protect children or the public demands changes in police policy. Here's where I would start:

1)  All conversations, interviews, and interrogations of any kind between authority figures and children, whether they be child witnesses, child victims, or child suspects must be electronically recorded in their entirety.  Arkansas does not require recording and as in the Cogdell, Miskelley, and Otis cases, police selectively record the interrogations, turning on the camera when it suits their needs and off when it doesn't.  If police fail to record the entire interrogation and have no legitimate excuse for doing so, they should be precluded from introducing any of the confession into evidence.  This is the "all or nothing" rule.

2) Courts need to limit the length of interrogations with children to no more than four hours at a time and need to give children frequent breaks to use the rest room, to eat, to sleep and to drink.

3) Children need access to competent adults to inform them of their constitutional rights and to make sure that they fully understand them before giving them up.  If police officers are not up to the task -- and the TC case proves they are not -- police officers should be required to take children immediately to magistrates or judges or even trained laypersons who can administer the Miranda warnings to children or else children should be given access to lawyers. At a minimum, courts should no longer accept a simple affirmation of understanding (a "nod of the head" or a "yes") as evidence that the child understood his or her rights when asked "Do you understand these rights which I have read to you?" by police.  Police officers should require that the juvenile suspect be asked to explain to the officer in his or her own words what each right means after it is given. Any confessions that are obtained in the absence of meaningful consultation with competent adult counsel should not be admissible in adult court proceedings against children.

4) Courts should require greater corroboration of confessions taken from juveniles. Does the confession fit the facts of the crime? Did the child lead police to evidence it did not already know about?  Courts should consider holding pre-trial reliability hearings to answer some of these questions before allowing judges and jurors to answer them at trial.

5) Children should be allowed to call experts to testify about developmental differences between children and adults that make children uniquely vulnerable to police interrogation and at greater risk of falsely confessing when pressured by police.

6) Police need to adopt new protocols for questioning children.  The aggressive, domineering, accusatory interrogation practices used with adults cannot be used with teenagers.  The focus of questioning should be on gathering information not on trying to persuade a child to accept a pre-conceived story or theory of how the crime was committed by the police.  Such protocols already exist for interviewing child victims in sex abuse cases and can easily be tweaked to use with child suspects.  Serious consideration should be given to prohibiting police officers from lying to juvenile suspects about evidence they have gathered.

 

 

 

 

 

Justice for the West Memphis Three? Issue of Juror Misconduct is Game-Changer In Arkansas Supreme Court

Just returned from a star-studded concert for the West Memphis Three in Little Rock, Arkansas.  For those who may not know of the WM3, check out www.wm3.org and http://www.freewestmemphis3.org, two of the best websites in the business, to educate yourselves about this terrible wrongful conviction which has cost three young teenagers (Damien Echols, Jason Baldwin, and Jesse Miskelley from West Memphis, Ark.) seventeen years of their lives so far.

My involvement in the case has been as a passive observer until recently when the Center on Wrongful Convictions of Youth (www.cwcy.org), was asked to file an amicus brief in the case before the Arkansas Supreme Court based on juror misconduct. Here's the issue we weighed in on in a nutshell and one of the strongest issues that will be argued in Damien Echols's case on September 30 in Little Rock.

Could Damien Echols and Jason Baldwin have received a fair trial when a juror, on his own initiative, decided to introduce the confession of Jesse Miskelley into the jury deliberations, even though the United States and Arkansas Constitutions barred that evidence from trial and the court specifically instructed the jurors not to consider it?

The answer of course is resounding "No" and here is why:

Confession evidence is the most powerful evidence in a court of law.  Admission of a confession  can render a trial superflous and almost guarantees a conviction.  Even when confessions are uncorroborated, undermined by DNA evidence, filled with errors, taken from juveniles or the mentally retarded, etc, jurors have a hard time discounting them because they can't get past their own belief that they would never confess to a crime they did not commit, especially a murder which could result in a death sentence.  Jurors need to be educated about false confessions -- the fact that they are far more common than people think (20-25% of 258 DNA exonerations), that they occur most often in murder cases (80% of documented false confessions), and that there are ways to distinguish between true and false confessions.

At the very least, the Constitution demands that a defendant have the chance to attack the reliability of the confession through cross-examination, expert testimony, and all the other tools of the adversary system. Cross-examination is so crucial to the truth-seeking function of our adversary system, that without it, it is like skipping the trial altogether and just convicting the defendant on the untested word of the agents of the State. For this same reason,  courts do not allow the confession of one defendant to be introduced into evidence against another defendant at trial unless the defendant on trial has the ability to cross examine the confessor in the flesh.  When one defendant fingers another one, jurors need to know what promises were made to that defendant, what benefits he is receiving for his testimony in terms of a sentence reduction, and what circumstances led to the confession in the first place.  In Jesse's case, he recanted his confession and refused to testify against Jason and Damien despite the fact that he could have walked out of prison in little or no time for doing so.  Jesse's unwillingness to testify against Jason and Damien prevented the prosecution from even mentioning the fact that Jesse had made a statement to the jury in the Echols/Baldwin trial.

At Damien's and Jason's trial, however, one of the detectives let slip the fact that Miskelley had made a statement, prompting an immediate call for a mistrial by the defense.  The detective did not say anything about the details of Jesse's statement -- just the fact that he made one -- and the judge felt compelled to instruct the jury to disregard the detective's testimony on this point and to not consider the fact that Jesse made a statement in its deliberations.

New evidence has developed post-trial to indicate that the jury foreman, concerned that the State's case against Echols and Baldwin was weak, took the law and the Constitutions into his own hands and reminded his fellow jurors that Jesse had confessed.  He not only discussed the fact that Jesse confessed, but he also brought into the jury room the details of the confession (as reported in the media), pronounced them to be true, and argued to the fellow jurors that people do not confess to crimes they did not commit.  Affidavits from jurors and juror's notes demonstrate that Jesse's confession was put up on a chart and weighed along with other evidence in determining Echols and Baldwin's guilt. Once that confession was discussed during deliberations, Jason and Damien had no chance of being acquitted.  None.  Nada. Zilch.

This newly discovered evidence of juror misconduct is a game-changer.  The beauty of this issue is that nothing short of a new trial can remedy it.  The error is structural, fundamental, and so prejudicial that it can never be deemed "harmless."  And it is not an issue that requires the court to blame the police, the prosecutors, the defense lawyers or the trial judge.  It happened without the knowledge of all the parties and had it been known to the trial court at the time it heard the direct appeals of Damien and Jason, the court would have had no choice but to order a mistrial.

The issue of juror misconduct also relieves the Supreme Court of having to opine about the innocence or guilt of Jason and Damien.  Nor does it require the Court to find that Jesse's confession is false (whether true or false is irrelevant, the fact that the defense was deprived of the chance to demonstrate its unreliability through cross-examination is all that matters).  And it is newly discovered evidence that was not before the Court when it affirmed the convictions of the boys.  The Court can order a new trial and uphold the credibility and integrity of Arkansas's justice system at the same time.

For those interested in reading the CWCY's amicus brief (written in large part by my colleague Laura Nirider), scroll down this page to get to the link:http://cwcy.org/CasesViewDetail.aspx?id=10

 

 

Another Illinois False Confession?: The Case of Henry Koh

Henry Paul Koh

I recently was asked to do an interview with a Korean television station about the Jerry Hobbs case.  During the course of the interview, the interviewer spoke with me about another case she was investigating -- the case of Henry Koh, a man from Northbrook (only a stone's throw from my home) who has been charged with the brutal stabbing murder of his son.  According to the interviewer, the only evidence that the police have in the case is a so-called confession.  Below is a story about the case which raises serious questions about the investigation conducted by Northbrook police and serious concerns about the reliability of Koh's confession.  

http://www.youtube.com/watch?v=BrYfPfgtgJ8&feature=youtube_gdata_player

I am not going to opine about the reliability of the confession here.  I know far too little about the investigation and have not viewed the entire interrogation or transcript.  But I am very concerned about the police procedure during the interrogation, most notably, the use of a Korean police officer as an interpreter during the interrogation.  This is standard practice in Illinois and common practice in other jurisdictions but it has got to change.  The reason is simple and to understand why I ask you to think about the role of the interpreter in a courtroom.  

The normative or idealized view of the court interpreter is that of a conduit of information, an automaton who simply translates from one language to another word by word. It is somewhat unrealistic to expect interpreters to be able to act this way in real time but nonetheless, the point here is that they are supposed to be as unbiased as possible.  Their loyalty is to the court and their mission is to be as accurate as possible.  Contrast this with the untrained police interpreter.  While he has no formal training as an interpreter, he does have training as an interrogator.  He or she also has divided loyalties -- to the suspect who depends entirely on the interpreter and to the police, who are clearly trying to get the suspect to confess.  In studies of cases involving police interpreters, Professor Susan Berk-Seligson of Vanderbilt University, a forensic linguist, has demonstrated that the police interpreters constantly shift back and forth between the "conduit" role and the role as "co-constructor" of the police narrative.  Suspects also come to depend on interpreters and see them as their advocates, their "saviors" and police officer/interpreters can easily take advantage of this great power imbalance.  If a police officer interpreter tells a suspect that it is in his best interests to confess to a crime, for example, it may carry even more weight with the suspect than if an interrogator uses this tactic.  The use of police officers as interpreters can thus add to the coercive atmosphere of the interrogation and more importantly, can compromise the reliability of the resulting confession.  

Whether this actually occurred in the Koh interrogation remains to be seen but the court should closely scrutinize the role of the interpreter when evaluating the voluntariness and the reliability of the confession.  And Illinois should follow the course of more enlightened states like Minnesota who require interpreter certification and training and use interpreters who are no affiliated with the police departments during interrogations.