Bluhm Blog

Hamid and Umer Hayat: "It's the Sorriest Interrogation , the sorriest confession, I've ever seen"

Former FBI Agent James Wedick, a superstar at the agency, is the latest casualty in the war on terror.  After viewing the interrogation tapes of Umer and Hamid Hayat, Wedick, the G-man though and through, was stunned.  He immediately called the defense attorney and told him -- "it's the sorriest interrogation, the sorriest confession, I've  ever seen."  As hard as it was for him to criticize his former colleagues and his beloved former employer, he felt compelled to testify for the defense, the first such time he had ever opposed the agency. But as Mark Araz writes in his excellent story in the LA Times, Wedick never got the chance.  His testimony was strongly opposed by "prosecutor from Washington," who called him a "hired gun." And the judge refused to allow Wedick, the most decorated FBI agent ever to serve in Sacramento, Ca. and a man whose attention to detail in a host of the public corruption prosecutions in the 1990's led Director Freeh to give him an award as the investigator of the year, to testify in court.  Hamid Hayat, a hapless young man with a sixth grade education, was convicted of 2 counts of lying to the FBI and one coutn of providing "material support" to Al Qaeda. The jury deadlocked on the father's case but Umer must face a re-trial.

Had Wedick been permitted to testify he would have pointed out how agents spoonfed the details of the confessions to the Hamids, how the FBI was unable to corroborate any of the information in the confessions, including the most important fact -- whether the Hamids had ever attended a training camp in Pakistan.  He would have highlighted to the jury all of the inconsistencies between Umer and Hamid's confessions about such critical details as where the training camp was located, the physical layout of the camp, the weaponry at the camp, and the dress of the jihadists.  In short, he would have laid the groundwork for the jury to understand why the confessions were most certainly unreliable, if not false.

Arax's story is not only a story of two wrongful convictions -- it is a powerful story of how the FBI has changed since 9/11.  Desperate to sniff out Al Qaeda cells, millions of dollars in taxpayer money is being spent on investigations being led by rookie agents who lack the expertise to lead them.  Caution is being thrown to the wind, procedures are being tossed out the window, civil liberties are being trampled all in the name of catching terrorists.

It's a wonderful story which I hope leads to a 60 Minutes piece or some other expose so that many more viewers can see another side of the War on Terror.   

http://www.latimes.com/features/printedition/magazine/la-tm-wedick22may28,1,2719542.story?ctrack=1&cset=true

Sandra Kemper Case: Polygraph Test Results Admissible to Show Cops Lied about Test Results

Sandra Kemper, a suspect in an alleged arson that took the life of her son, denied nine times that she had anything to do with the fire.  Then the St. Louis County police detective resorted to one of the oldest tricks in the book -- he told Kemper that she had failed a lie detector test.  Later that day, Kemper admitted that she set the fire to get out from under the burden of being the sole provider to her family and to collect insurance proceeds.  But the confession did not fit the facts of the crime, the motive evidence was weak, and Sandra had passed the lie detector test with flying colors.  In pre-trial motions, Sandra's counsel succeeded in convincing the judge to allow him to call a polygraph expert to both verify that Sandra had passed and to comment on the unprofessional nature of the polygraph exam.  The theory being that the way in which the polygraph was conducted was part of the "totality of circumstances" necessary for the jury to determine if the confession was voluntary and trustworthy.  Then, at trial, the judge reversed himself after the evidence was admitted and declared a mistrial.  Earlier this week in State ex. rel Kemper v Vincent,  No. SC87246, the Missouri Supreme Court held that the trial court should have allowed the evidence that Kemper passed into evidence under the "rule of completeness," an evidentiary rule that holds that a party may introduce evidence of the circumstances of a conversation, writing, or statement to enable the jury to have a complete picture."  Better yet for Kemper, the Court held that double jeopardy prohibited the State from retrying her.  Where the defense opposes a mistrial, double jeopardy bars a retrial unless there was a"manifest necessity" for the mistrial.  Since the trial judge's basis was error as a matter of law, no such necessity existed.  End of story.

Yogurt Shop murder conviction overturned

It's one of the most controversial confession cases on the books.  Four young men were charged with murdering four teenage girls in December 1991 who worked at the Austin TX "I Can't Believe It's Yogurt Shop."  The four men were Maurice Pierce (believed by police to be the ringleader), Forrest Wellborn (belived to be the driver), Robert Springsteen IV and Michael Scott.    The investigation was at a standstill in 1999 when members of a cold case squad interviewed Springsteen and Scott and after hours of intense and highly coercive interrogations obtained confessions from the two which also named Pierce and Wellborn.

(The infamous photo above shows Austin detective Robert Merrill holding a gun to the back of the head of Michael Scott during the interrogation).  Prosecutors could not get an indictment against Wellborn and charges against Pierce were dropped but both Scott and Springsteen were convicted.  Springsteen was sentenced to death (although he is no longer eligible for the death penalty b/c he was 17 at the time of the crime.)  Not a shred of physical or forensic evidence linked any of the boys to the crime, in part, because the killers, who are also believed to have sexually assaulted the girls, torched the place when leaving.  The confessions were also replete with errors and much of the correct information in the confessions was already known to police. 

Now, after one of the longest delays in TX appellate court history, the TX Court of Criminal Appeals, in a sharply divided opinion has reversed the conviction of Robert Springsteen.  the basis -- prosecutors introduced portions of Scott's confession at Springsteen's trial without giving Springsteen the chance to cross-examine Scott, a practice now outlawed by the United States Supreme Court in Crawford v. Washington.  Prosecutors used the same tactic in Scott's case, suggesting that his conviction will likely be reversed as well.

To read the complete ruling -- which will allow prosecutors to use Springsteen's confession on retrial because the court found it was "voluntary" -- see
http://www.cca.courts.state.tx.us/opinions/HTMLOpinionInfo.asp?OpinionID=14031

For background on the case: http://www.news8austin.com/content/special_coverage/yogurt_shop_murders/
Excellent coverage of the case can also be found in the Austin Chronicle: http://www.austinchronicle.com/issues/dispatch/2002-08-23/pols_feature3.html

Boy Scout Trip to Hell

Imagine for a minute that you are 14 years of age.  You and your cousin are Boy Scouts from the Southwest Side of Chicago.  You go to visit your Troop leader, a Chicago police officer from the Youth Division, assigned to Area 3, located at 39th and California.  Instead of going up to the Third Floor, your curiosity gets the better of you and you venture to the second floor.  You come upon a scene that scars you for life.  You say a burly white cop with bushy red hair torturing a black suspect who is handcuffed and leg shackled to a wooden chair.  You see wires hooked up the subject, a black box with a crank handle to generate electricity, hear  the cop screaming racial slurs and hurling threats at the suspect.  And then he fixes his eyes on you.   You take off and go to the third floor to seek cover from your scout leader but are ordered off the premises. You later learn the name of the officer -- Jon Burge.  For thirty plus years, these two teenagers, afraid of what might happen to them, kept silent. But no more.  In this compelling interview, Frank Sirtoff tells ABC news what he saw for the first time.

http://abclocal.go.com/wls/story?section=local&id=4186371#scouts

Video of this interview can be downloaded from the above link.  Last week, a judge ordered that a Report from a special prosecutor about the systematic torture of suspects by Chicago police officers under the command of Jon Burge will be released in a few weeks.

Remembering Girvies Davis

Girvies Davis, a functionally illiterate 20 year old whose social history was filled with terms like "retarded" and "slow" was executed by the State of Illinois in May 1995 for the murder of Charles Biebel, a crime that many, including me, believe was based on a false confession .  Five months before he was executed, David Schwartz, then a recent graduate of law school working for a Chicago law firm, was assigned to Davis's case.  Schwartz mounted a very persuasive campaign to try to save Davis's life.  It was one of the first such campaigns to rely on internet technology to spread news about Davies case.

Davis was a victim of bad timing. His date with death came in 1995, several years before Professors Richard Ofshe and Richard Leo published their seminal work on false confessions, before Barry Scheck, Peter Neufeld, and Jim Dwyer, published "Actual Innocence," the first full portrait of the role that DNA evidence was playing in exposing wrongful convictions, three years before the landmrk conference at Northwestern Law School gathered together the largest ever assembly of exonerated death row inmates, and seven years before the United States Supreme Court decided Atkins v. Va., outlawing executions of the mentally retarded. Nevertheless, Schwartz raised enough questions about Girvies Davis' guilt  that Governor Jim Edgar should have halted the execution. 

Davis was arrested on August 30, 1979,  after holding up an auto supply store in East St. Louis, Ill.  While in custody, he confessed to more than a dozen crimes -- robberies, attempted murders and murders -- including the Biebel murder.  Police claimed that many of these confessions were initiated by the illiterate Davis who supposedly wrote a jail guard a note saying he wanted to confess.  Davis told a far more harrowing story of why he confessed.  He was taken from his cell for a midnite ride, driven to an out of the way place where authorities removed his leg irons and handcuffs and given a choice: either sign the confessions or start running in which case we will shoot you for trying to escape. 

Although Davis did admit his involvement in two auto parts store robberies, police proved that he had nothing to do with at least three other such robberies to which he had confessed.  They arrested and convicted two other men of these crimes.  Altogether, police disproved more than a half dozen of Davis's confessions.

On May 17, 1995, Davis was executed. Five years later, a new Governor, George Ryan declared a moratorium on the death penalty, after Illinois's exonerations from death row grew to equal and then surpass its executions since the death penalty had been reinstated.  Still convinced the capital system was broken and frustrated by the legislature's refusal to fix it, Governor Ryan later commuted the death sentences of all on Illinois' death row before leaving office in 2004.  Every year on the anniversary of Davis's death, David Schwartz remembers his former client and friend.  He remains haunted by Davis's execution and by his failure to be able to stop it.  His commentary in yesterday's Tribune appears below:

http://www.chicagotribune.com/news/opinion/chi-0605210007may21,1,3935421.story

If John Spirko is executed by the state of Ohio, it will demonstrate that false confessors who do not have DNA evidence to prove their innocence, likely will fare no better today than those who were executed before the DNA revolution rocked the criminal justice system with full force and fury.  Only this time, it will be Spirko's lawyers and the state of Ohio that will forever be haunted by the spectre of executing an innocent man.

Beware of "Facts that only the true perpetrator could have known"

For Earl Washington, it was the location of a blue, blood-stained shirt left by the killer at the crime scene.  For Douglas Warney, it was the fact that the victim was cooking chicken at the time of his death and that he was wearing a red-striped night shirt. For Bruce Godschalk, it was the fact that the rapist removed a tampon from the victim and threw it against the wall. These facts -- which police claimed were non-public and which could only have been known by the true perpetrators -- gave the false confessions of Warney and Washington some credibility and made it easier to convict them (and in Washington's case, sentence him to death).   

Never mind that the confessions of all three men were replete with errors (which the true killers would not likely have made). The confessions were rescued by the few key facts the men supposedly got right. When the cases went to trial, prosecutors simply portrayed the men as liars, dismissing the errors as evidence that the men were unwilling to come clean about what really happened.  And when the cases reached the appellate courts, it was the "non-public" facts that led courts to affirm their convictions. 

As a rule, focusing on such non-public information is one way to distinguish reliable from unreliable confessions.  The problem is that in the absence of a recording of the entire interrogation, there is simply no way of knowing whether the information was inadvertently or intentionally suggested by law enforcement officers to the suspect.  Fortunately, for Warney, Washington, and Godschalk, DNA evidence exonerating them conclusively proves that interrogators fed these details to the men.  But what about the thousands of confessions police take each year in which there is no conclusive DNA evidence......

The case of John Spirko is a perfect case in point.  Spirko is scheduled to be executed in July in Ohio for the murder of Betty Jane Mottinger.  His appeals have been exhausted, the Pardon Board has twice denied him clemency, and he has been issued several reprieves by the Governor, the latest for DNA testing which is not likely to be conclusive.  What is keeping Spirko on death row?  Two "non-public" facts which were attributed to him by a Postal Inspector who claims that Spirko gave him information that only the true killer would have known.  Inspector Paul Hartman claims that Spirko told him that " a red stone had been pried from a ring worn by the victim" and that the victim's handbag had "loop handles and was cream-colored."   Spirko's statements about the death of Mrs. Mottinger were filled with errors, he could not lead police to a single piece of evidence they did not already know (when  asked to identify the safe house where she was held before being killed, he led the police on a wild goose chase), no physical evidence links him to the crime and none of the fingerprints found at the post office from where Mottinger was abducted, were Spirko's.  And Spirko had a decent alibi for the time of the crime- he was taking his sister to the doctor and meeting with a parole officer.

The NY Times Editorial on the Warney case was entitled "DNA is Good for the Soul."  This may be so but the soul of the criminal justice system will never be free until the lessons of the DNA revolution are applied by courts and governors to non-DNA cases like John Spirko's.   

Douglas Warney, A False Confessor, is Exonerated by DNA Evidence

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.

False Confession in Arson case leads to civil settlement

Arson is a crime that is ripe for false confessions.  Arson science is anything but exact.  Even in cases where investigators can determine a fire was set intentionally, it is rarely the case that they can know with certainty who set it.  This is why investigators almost always need a confession to close the case. And this is where the potential for false confessions lies.  Some of the most brutal psychological interrogations I have seen on tape have occurred in suspected arson cases.   Fortunately for Nicholas Mears, all of these tactics were captured on tape by the Sioux Falls, S.D. police department which has been recording interviews for some time.  When faced with the recording during a defense motion to suppress, Judge Joseph Neiles tossed out the confession, citing the fact that Detective Jerry Mundt "repeatedly lied to the defendant about a claimed videotape of him starting the fire" and ruling that  Mears' confession was "beyond all possible doubt" involuntary and therefore not admissible as evidence in court.  Going a step further, Judge Neilus also wrote that the facts in the suspect's confession were "almost laughable" and it was "difficult to believe how any fire could have been set in the manner described by the defendant."

In a soon to be released article in the Wisconsin Law Review, Richard Leo, Peter Neufeld, Brad Hall, Amy Vatner and I argue that judges should do exactly what Judge Neiles did in this case -- after evaluating the voluntariness of the confession, they should assess the confession's reliability by comparing the facts in the confession to the objectively knowable facts of the case and also look to see if the confession lead the police to any other evidence of which they were not aware.  Under our proposed standard, even confessions which may be considered voluntary should be excluded from evidence if they are unreliable because the power of confession evidence is so strong that juries may convict even on the basis of unreliable or false confessions. 

Mears, who spent a month in jail, before the confession was tossed, settled a lawsuit for an undisclosed amount against the detective for "intentional infliction of emotional distress."

http://www.argusleader.com/apps/pbcs.dll/article?AID=2006605130308

11th Hour Reprieve for Claimed False Confessor Given to Allow DNA Testing

Only two days before his scheduled execution (5/12/2006) North Carolina death row inmate Jerry Wayne Conner was given a reprieve by the state Supreme Court so that he could obtain DNA testing.   The case marks the first time that the Supreme Court has ruled on a 2001 DNA statute allowing for post-conviction testing under some circumstances.  The case is also important because the testing has been authorized even though Conner had confessed to murdering a mother and daughter in 1990.  Many prosecutors argue that when a suspect has confessed, his identity was not an issue at trial, and therefore he should not be allowed to use the post-conviction statutes.  Some courts have upheld these arguments which would mean that false confessors would be denied what may be the only vehicle to prove their confessions false and save their lives.   In Conner's case, reason prevailed, the tests were ordered, and all now await the results to see if Conner will join the ranks of the wrongfully convicted or the ranks of the recently executed.   Earlier this year, Governor Taft of Ohio granted a reprieve to John Spirko to enable him to obtain DNA testing of physical evidence left over from the 1982 murder of Betty Jane Mottenger in Elgin, Ohio.  Spirko, who also claims that he falsely confessed (and there is strong evidence of this), has had his death sentence commuted twice and is now scheduled to die in mid-July.   You'll hear more from me about this case as the events unfold.      

One of Great Happy Endings to False Confession Nightmare

The story of Chris Ochoa is one of the best in the annals of proven false confessions.  Arrested in connection with the murder and rape of 20 year old Nancy DePriest at an Austin, TX Pizza Hut, Ochoa was beaten and coerced into confessing to the killing by Hector Polanco, a legendary Austin detective known for his brutality and for coercing false confessions.  Ochoa was so terrified of Polanco and so convince he would get raped in jail and get the death penalty, that he not only pled guilty in exchange for a life sentence, he named his friend Richard Danziger as an accomplice and testified against him at trial.  Danziger was beaten in prison and suffered brain damage.  Ochoa continued to maintain that he was guilty (in the hopes of getting paroled) when Achim Marino, the true killer had a religious conversion in prison, and began telling anyone who would listen (including then Gov. George W. Bush) that he raped Nancy and that he could lead police to some of the evidence connected to the crime.  Noone listened to Marino until Ochoa contacted the Wisconsin Innocence Project to seek DNA testing which not only exonerated him and Danziger but fingered Marino.  The story gets better.

After his release, Ochoa befriended Jeannette Popp, Nancy DePriest's mother, who soon became a powerful anti-death penaly speaker. Ochoa and Popp often spoke together at colleges and universities around the country (they came to Northwestern).  Their presentation was a living testament to the power of forgiveness and reconciliation. Ochoa had earned two associate degrees through correspondence courses and had almost completed his bachelor's degree when he was released. A University of Texas-El Paso business law class and talks he gave at different law schools about his experience inspired him to become part of the system that had put him away.

Today, Ochoa will walk down the aisle in a cap and gown as he graduates from the University of Wisconsin law school where he settled after he was released from prison.   Ochoa, who grew up in El Paso, hopes to one day become a prosecutor so he can control investigations. He calls American justice the best system in the world, but says corrupt investigators and prosecutors have broken it.  "The funny thing is, says Ochoa, I couldn't stand lawyers and cops  .... You don't want to push an innocent man into prison to further your political career."