In tomorrow's NYTimes, Jim Dwyer writes about the latest victory for the Innocence Project -- the exoneration of Douglas Warney, a man who falsely confessed to the murder of William Beason of Rochester, N.Y. who died between Decemebr 31, 1995 and January 2, 1996. The IP had sought post-conviction testing of a number of items from the crime scene but were rebuffed by the Honorable Francis A. Affronti who bought the lame arguments of the prosecution -- 1) that DNA testing could not provide significant new evidence for the jury; and 2) exclusionary test results would not make a difference because Warney could have committed the crime with another person. But what if the DNA evidence excludes Warney and identifies another perpetrator with no connection to Warney? argued IP lawyers, Vanessa Potkin and Peter Neufeld, to no avail.
Turns out the judge should have listened. Without notifying the IP, the prosecutors from Monroe County submitted the material for testing and lo and behold, Warney was excluded. When the profile was submitted to CODIS, the DNA matched Eldred L. Johnson, Jr. who quickly confessed to investigators after they confronted him with the evidence and said he was the sole killer. Mr. Johnson was in prison for slitting his landlady's throat in Utica, a crime that took place two weeks before Beasons' murder. He was not arrested until 1998 when he was accused of stabbing three other people (all crimes which might have been prevented).
The Warney case has long been thought to be a false confession. Professors Richard Ofshe and Richard Leo, in their classic 1998 article classified it as a "highly probable" false confession. Morever, the case bore many of the hallmark signs of a false confession. A highly vulnerable suspect (mentally ill, low I.Q.) is interrogated for more than six hours, and gives a series of confused and inconsistent statements implicating himself in the murder. The interrogation is not recorded but the confession is reduced to a two page typed statement that Warney signed. The details of the confession do not match the objective evidence of the crime and Warney did not lead the police to any evidence they did not already know. He also made numerous significant mistakes (he said he drove his brother's car to the murder but the brother had not owned that car for six years, he claimed that he committed the crime with a cousin who was locked up in a secure treatment center at the time of the crime, he claimed he was cut on his hands by the victim while stabbing him, yet his hands bore no cuts, etc. There were, however, some facts that police held back which they claim that Warney provided to them. We now know that these "facts" must have been supplied by police. It appears that Sgt. John Gropp, the detective who questioned Warney, fed these details to him during the interrogation (this is precisely what was proven in the recently concluded Earl Washington case).
Without a recording of the interrogation, there is simply no way for prosecutors to know whether the information in the confession that only the true killer would know was provided by the suspect or was intentionally or inadvertently suggested to the suspect by the investigators. At every stage of the proceedings, prosecutors harped on Warney's purported knowledge of these crime scene fact to overcome the many other weaknesses in their case. This practice must stop. Judges should no longer allow prosecutors to make such arguments in the absence of an electronic recording of the statement. Any unrecorded statements should be presumed to be inadmissible. The only way that prosecutors should be able to use such statements is if the suspect leads police to evidence that the police did not already know like the murder weapon or the fruits of a robbery. Perhaps, the Warney case will provide the momentum needed to get legislation in New York passed requiring that all custodial interrogations be electronically recorded.
There are other lessons as well. Judges should not factor in the apparent strength of a confession in deciding whether or not to grant DNA testing. DNA test results can reduce what appears to be a rock-solid confession to jello. The fact that a suspect confessed should not, in any way, prevent a suspect from prevailing on a post-conviction DNA motion.
Stay tuned for more details as coverage of this fascinating case continues.