The interrogation tactics of three Naval Criminal Investigative Service ("NCIS") agents were on trial last week in a court martial proceeding against Petty Officer 3rd class Elva Graves. Graves, who stood trial on charges that she killed her 11 month old son Juan and abused her one month old daughter -- Kayla, argued forcefully that she was pressured by agents into a false confession. The alleged coercion was the "accident scenario" technique, one of the most commonly used psychological tactics in the investigator's arsenal, and a tactic that has been linked to numerous false confessions.
The accident technique is an implied promise of leniency. Accidents are not crimes. Accidents do not get punished or if they do, they are not punished as severely as intentional crimes. Although interrogators are careful not to say, "if you admit to an accident, you will not be charged," they don't have to be so direct to get their message across. The technique works best in cases where the evidence can be interpreted in one of two ways -- either as an accident or as an intentional crime. "We can write this up as an accident or as a premeditated crime," interrogators often tell suspects. We think you didn't mean to harm your child, but we need to hear that from you..." This technique worked like a charm in the case of Elva Graves.
Civilian police officers had closed their investigations into Juan's death (which had been ruled a case of Probable S.I.D.S. and Keyla's abuse. Two days before Graves was scheduled to leave the Navy, she contacted NCIS to make sure that she was free and clear to leave the Navy. NCIS agents used this call as an opportunity to bring Graves in for an interrogation.
Near the end of a 4 1/2 hour interrogation, only the final portion of which was recorded, a special agent suggested to Graves that Juan's death must have been an accident. "Parents get frustrated all the time" he said gently, feigning sympathy. "It would be better if you told us what really happened." According to the agents' testimony, Graves then bowed her head and sobbed, and said that Juan had been crying too much on Dec. 12, 2002. At 3:30 a.m., Graves then walked into Juan's room. "Mommy needs her sleep" she said as she slipped her hand over the boy's mouth until the crying stopped -- maybe 15 or 20 seconds. "You mean until he stopped breathing?," a special agent asked Graves. According to the agents, Graves then hung her head and nodded. Graves laterallegedly told the agents that she fractured Kayla's legs about a year after Juan died when her daughter struggled as she tried to change her diaper.
In opening statements, prosecutors argued that Graves's own words, along with scratches and bruises on Juan's face and the fractures on Kaylas' knees, proved that Graves was a killer and child abuser. "At its root, this case is about a parent's frustrations carried to horrible extremes," the lead prosecutor railed in his opening statement. Graves' attorney, however, said the confession was coerced by three investigators who were blinded by tunnelvision and used their belief that foul play was involved to launch an interrogation filled with trickery and intimidation against a weak, dependent woman still racked with guilt over her son's unexplained death. At trial, the agents described a non-confrontational interrogation, a veritable "walk in the park" in which Graves was advised of her constitutional rights, offered food, drinks and breaks, and told her she was free to leave at any time. But under cross-examination, the agents did admit to feigning sympathy and to falsely implying that doctors believed Juan was killed intentionally while they believed he died accidentally.
Dueling experts testified about whether the confession was consistent with the medical evidence. This testimony was probably a wash. Prosecution witnesses testified that the medical evidence supported a manual suffocation while the the defense claimed that the prosecutors' experts adjusted their conclusions after the fact to fit the acts described in her NCIS statement.
"You've got a bunch of true believers in here, because they've got a confession," Graves' defense counsel said in his impassioned closing statement to the jury. "Tell them she is not guilty." After seven days of testimony, a jury of four officers and two chief petty officers filed into the courtroom to deliver their verdict: not guilty on all counts.
Victories such as this one are few and far between and speak highly of the quality of defense counsel and the fairness of some military proceedings. Was Graves coerced into confessing? Or was her interrogation the "walk in the park" claimed by NCIS interrogators? Did she kill one child and abuse another? Or was she pressured into giving a false confession? Although these questions are not always answerable, the only real way to get at the truth is to require that NCIS interrogators electronically record the entire interrogation and not the final confession. This reform is no less critical for military justice where the stakes can be as high as they can be for criminal justice.
Excellent coverage of the Graves case can be found in the San Diego Union Tribune from 6/24/06-7/5/06 in articles written by Steve Liewer. As an aside, NCIS investigators in the Southwest region need look no farther than San Diego County for the benefits of electronic recording. Authorities there have been electronically recording interrogations of suspects for more than a decade. It seems incongruous that criminal suspects would get greater protections that members of our armed forces.