Bluhm Blog

False Confessions Cost Companies Money as Well as Police Departments

Many of the same police interrogation trainers also are called in by companies who investigate thefts.  It is also often standard practice for these interrogators to use lie detector tests to induce confessions.  Not surprisingly, when such tactics are used in internal investigations (where the stakes are arguably lower, the due process protections are significantly less and the ground rules for investigators are even more nebulous than they are for police officers), false confessions are a problem.  Many companies who have coerced proven false confession employees have had to pay out sizeable civil judgments to employees, including big punitive damage awards.  The latest such case to hit my radar screen is a $7.5 million dollar judgment from a San Diego jury against Autozone, a Memphis, TN based car rental company.  For more information, see the blurb below:

A San Diego County jury hit a Memphis, Tenn.-based auto parts chain with $7.5 million in punitive damages in a case brought by a former employee in its Chula Vista store alleging false imprisonment, coerced confession and wrongful termination.
Joaquin Robles claimed a security guard coerced him into confessing that he stole $820, costing him his job. In a 2002 trial, Robles was awarded $73,150 in compensatory damages and, against the security guard only, $5,000 in punitives because the judge ruled the security guard's level of discretionary authority didn't rise to the level of management agent. Robles appealed and a three-judge panel agreed a jury should decide on punitives against AutoZone. On April 13, the jury found they were warranted because AutoZone had a policy authorizing coercive interrogation tactics.

Case: Robles v. AutoZone, GIS6945
Court: San Diego County Superior Court, San Diego

Researchers, wrongful conviction lawyers, and criminal defense lawyers might learn something by studying some of these verdicts.  It hardly seems fair that a man who loses his job and $73,000 in back pay gets $7.5M while Earl Washington, who lost 18 years of his life, received only $2.5M.  There may be obvious differences in the law which account for this (as well as the fact that many law enforcement officers and prosecutors are deemed immune from civil liability) but perhaps the laws may need to be changed to make it recovering from state investigators who coerce false confessions as easy as it is to recover in the private context.

 

Video of Controversial Interrogation in LeBrun case

It's a case that may be one of the low points in the jurisprudence of confessions in the post-Miranda age.  A deeply divided en banc panel of the 8th Circuit Court of Appeals decided that Michael Edward LeBrun was not "in custody" for Miranda purposes and that his resulting confession to the murder of his former Navy Shipmate Andrew Muns was not involuntary.  All told six judges thought that Naval Criminal Investigative Service (NCIS) Agents crossed the line into unconstitutional coercion when they interrogated LeBrun 32 years after the death of his shipmate.  Now you can see for yourself.  The Kansas City Star is publishing portions of the videotaped interrogation on its website at: http://www.kansascity.com/mld/kansascity/14508547.htm

The case is a low point because NCIS officers made a direct and explicit promise of leniency to LeBrun in order to induce the confession.  They told him that the statute of limitations had expired on "spontaneous murders" and promised him that if he confessed and said that the murder was spontaneous, he would not be prosecuted.  Here is the key portion of the transcript:

LEBRUN: So, am I hearing that I won't be prosecuted?
GREBAS: That's what you are hearing.
LEBRUN: Is that what I am hearing?
GREBAS: That's what you are hearing.
EARLY: If it's [the killing of Ensign Muns] spontaneous and that's the truth, you will not be prosecuted.
GREBAS: That's absolutely right.
LEBRUN: I am here to tell you there was no premeditation.
EARLY: All right.
LEBRUN: It was spontaneous.
EARLY: Okay.
GREBAS: So it was, let me get this clear. It was spontaneous?
LEBRUN: Correct.
GREBAS: If this is true, then you killed him and it was over, it was over the money; is that right?
LEBRUN: I don't know what it was over.

Historically, such promises of leniency have always been considered a tactic that is apt to cause false confessions and typically result in suppression of any statements.  Here, the Eighth Circuit held that such promises are only one factor in determining whether the confession was voluntary, further blurring one of the few clear lines in confession law.

There are also signs that the confession not only was coerced but was unreliable.  After earlier interviews (he was interviewed at least four other times), LeBrun began to think he might have repressed memories of the killing and even asked his interrogators if they could recommend a therapist to help him unlock the memories.  In one of the portions of the video shown online, he describes the killing as one he did in a blackout.  Although Le Brun re-enacts the killing on camera, it is not clear whether he is simply making up a scenario suggested to him by the police or acting from his own memory of what really occurred.

Earl Washington Awarded $2.25 Mil.

A federal jury on Friday awarded $2.25 million to Earl Washington, a mentally retarded man who spent 18 years in Virginia prisons (9 on death row) for a murder and rape committed by another man.  Washington's attorney, Peter Neufeld, said after the decision that the case boiled down to "two men in a room with the door closed. When they walk out, there's a confession with all kinds of nonpublished details."  Every criminal and civil case in which the interrogations are not recorded boils down to this same scenario.  Unless and until police are required to record the entire interrogation process, false confessors will continue to get convicted and in some cases sent to death row.  Washington was luckier than most.  Special Agent Curtis Reese Wilmore had second thoughts about his trial testimony (a guilty conscience) and sent a memo to the prosecutors in which he claimed he was not sure whether the key piece of information that convicted Earl-- the fact that the killer left a bloodstained blue shirt left in a drawer at the victim's home -- came from Washington or whether he suggested that information.  In my experience, it is rare that law enforcement officers have such internal struggles. 

More legal battles lie ahead before Earl can collect the $2.25 mil.  If the estate of Agent Wilmore can't pay the judgment, Earl's attorneys will need to get the state to pay for the damages under a theory that Agent Wilmore was acting as the agent of the State.  Here's hoping that the State steps up to the plate without extending this long nightmare any longer.

President of Reid & Associates Testifies for Earl Washington in Civil Case

Joseph P. Buckley III took the stand yesterday in the civil trial in Earl Washington's case for the plaintiff! For those who do not know Mr. Buckley, he is the President of John E. Reid & Associates, the leading interrogation training firm in the United States.  See www.reid.com His firm often consults with police departments on interrogations and has testified in defense of police departments in civil cases, most notably in the civil suit of Michael Crowe against the Escondido Police Department.  (Police in this case coerced false confessions from two teenage boys, Michael Crowe and Joshua Treadway, to  the murder of Michael's sister, Stephanie, in a case that was the subject of a Court TV Special and Movie: The Interrogation of Michael Crowe")

Using Mr. Buckley as an expert was a stroke of genius by Peter Neufeld, co-director of the Innocence Project, and one of Earl's lawyers in the civil suit.  Who can better testify about the standard of care in police interrogations than the man whose firm trains more interrogators than any other?   Mr. Buckley testified that Earl's interrogators did not follow the Reid technique and made crucial mistakes that Reid specifically cautions against, inlcuding using leading questions, revealing to Earl  facts that only the true perpetrator would have known, failing to hold back key information from Earl to see if he could provide it independently, and failing to corroborate the confession.  Mr. Buckley testified that in Washington's case, the only explanation for the fact that Washington knew these critical  details is that the interrogators must have fed him the information.  Press accounts do not describe how Mr. Buckley came off to the jury, but here's hoping that  Mr. Buckley continues to step up to the plate in cases where poor police interrogation practice contributes to false confessions. 

Another irony in the case is that Richard Leo, a noted false confession expert and one of the main critics of the Reid technique, also testified for Earl Washington.  Leo, Dr. Richard Ofshe, and Saul Kassin, have long argued that aspects of the Reid technique are psychologically coercive and can cause the innocent to falsely confess.  Hopefully, the jury will see that the police conduct must really have been incompetent for these two adversaries to agree, and award Washington a sizeable civil judgment for the 18 years he spent imprisoned (including 9 on death row) for a crime he did not commit.

Are False Confessions at Heart of Lodi Terror Conviction?

When Umer (father) and Hamid Hayat (son) were arrested in June 2005 on charges of providing material support to Al Qaeda terrorists and lying to the FBI, federal authorities claimed that they had infiltrated a trained Al Qaeda sleeper cell in Lodi, California, an agricultural town which is home to over 2500 Pakistanis.  After a ten week trial, in which Hamid was convicted and the jury deadlocked in Umer's case,  it now appears that all that was proven was that the Hayats may have lied to the FBI and that these lies themselves could have been induced by aggressive and coercive police interrogation tactics, precisely the kind that have been linked to false confessions.  The FBI also used the testimony of a snitch, a naturalized citizen of Pakistani descent, who was paid over $225,000 in salary and expenses, to infiltrate the community.  If press reports are correct, the evidence against the Hayats was extremely weak and the confessions bear many of the hallmarks of false confessions.

There were failures to offer any descriptions of the terror network or the camp, the men did not lead the FBI to any non-public information that could be corroborated, and there were inconsistencies between the father and the son's confessions about the most critical point, whether Hamid attended a Pakistani training camp.  Umer, an ice cream vendor who spoke broken English,  after numerous denials and much prodding, told agents that he had visited his son at a training camp out of curiosity in late 2004. He described a basement in a different province in which 1,000 masked men, including Americans, fired machine guns and learned to pole vault.  Hamid, a cherry picker, with a sixth grade education, described a camp with as few as 35 men in the field.  While others were training, he remained in the kitchen and peeled vegetables.  The FBI produced no evidence that these training camps existed or that the men attended them.  They also produced no links to anything Al Qaeda.

Interrogation techniques show that both men were easily manipulated by the agents.  When Hamid was asked how he was to receive attack orders from Muslim clerics, he said "Maybe, uh, send a letter or anything like that, maybe."   Unhappy with the answers, the FBI interrogator said "No, I don't think they're gonna send a letter, I think you're gonna have to talk to someone here in Lodi."  And after the agent brought up the cleric's names, Hamid complied with the suggestion that one of the clerics would contact him.  Similar compliant behavior was exhibited by Umer -- who was so under the spell of his new friends, that during a break in the interrogation, he invited the lead FBI agent to a wedding reception later that day.

And what about the snitch, Naseem Khan.  The FBI hired him to investigate Lodi businesses who they believed were funnelling money to training camps and Muslim clerics who were recruiting for the jihad.    He was hired on the basis of claim to having seen Osama Bin Laden's chief deputy in Lodi -- a claim proven to be patently false.

During closing argument, the prosecutors hammered home the point that the confession must be true because "why would anyone confess to attending a training camp after 9-11, if it weren't true?" And asked the jurors to convict Hamid beause he had " a jihadi heart and a jihadi mind."  In defending the convictions, prosecutors downplayed the lack of evidence, pointing to the fact that they stopped a terrorist attack before it happened and before the evidence could be developed further.    Maybe.  But if this is all the FBI could dig up on a terror cell in Lodi after spending millions of dollars during 2.5 years, one has to wonder if the so-called terrorist cells in Lodi were real or just figments of their imagination. 

This is not the last folks will hear about this case. The father has been released from custody and is awaiting a decision to be retried. And a juror on the son's case has already stated that she was pressured by an overbearing foreman into changing her not guilty verdict into a guilty verdict.  Stay tuned.

Are "Chickens Finally Coming Home to Roost" in Chicago Police torture scandal?

When asked by reporters about the assasination of JFK, Malcolm X replied that  it was merely a case of "chickens coming home to roost," suggesting that the violence that the Kennedy administration was inflicting in Vietnam was finding its way back home.  There are many in Chicago who are eagerly awaiting the release of a detailed report on the systematic torture of murder suspects by Chicago police in the 1970's and 80's under the direction of former Police Commander Jon Burge to see if Burge and other officers from Area 2 Police Headquarters will finally be indicted.  An article in today's Chicago Tribune suggests that two special prosecutors want to publicly release their report -- which cost the County $5.7 million dollars -- but that lawyers for the officers are fighting the release.

Will it be a costly whitewash? Will the prosecutors rely on the statute of limitations as an excuse for failing to indict the officers?  What kind of justice will be given to the 180 plus victims who were beaten, suffocated with typewriter bags over their heads, electroshocked in their gentials, and burned on radiators?  We' ll all have to wait and see until at least May 12 when Criminal Court Chief judge Paul Biebel will decide whether to release the report.

Readers who want to know more about the modern day use of police torture in Chicago and around the world should google John Conroy's stories in The Reader and buy his excellent book "Unspeakable Acts, Ordinary People". 

Welcome Bloggers and Readers

Welcome to My Blog on False confessions. False confessions have been a bit of an obsession with me ever since I represented a 10 year old boy who was wrongfully convicted of a murder he confessed to but did not commit.  I hunt for them, prowling at all hours of the night on the internet to find stories about false confessions.  I collect" false confessions" like some people collect coins, stamps, or baseball cards.  Using the documents I obtain about each case, I try to "autopsy" each case to learn as much as possible about the causes of false confessions and to use what I learn to try to prevent such tragedies from recurring.

In this blog, I hope to inform my readers of much of what I have learned from my work and to create an army of advocates for the one major reform which could do more than any other to remedy the problem of false confessions -- the mandatory electronic recording of all police interrogations.    As you can see, I've been practice blogging on this subject to myself for about a month.  Read the archives to get a sense of what to expect in future blogs.