Bluhm Blog

Three New Must Read Tales of False Confessions

             

In 2008, three books were published detailing the cases of six men who were wrongfully convicted of brutal murders on the basis of their "confessions."  All are must-reads and should be added to the collections of anyone interested in the literature of wrongful convictions. 

Let's start with In Spite of the System, Gary Gauger's (with Julie Von Bergen) haunting first person account of his wrongful conviction in connection with the murder of his beloved parents Ruth and Morrie Gauger.  Short and sweet, this book clocks in at just under 200 pages, and can be read in a single sitting.  Beginning with Gary's account of the day he first noticed his parents were missing and the discovery of his parents' bodies, the book proceeds chronologically through his interrogation, arrest, trial, conviction, incarceration (including time on death row), and his exoneration.  As a client and longtime supporter of the Center on Wrongful Convictions, and a man whose story has been featured in the award-winning play "The Exonerated," I've heard Gary's story many times and it always remains fresh.  This book, based in part on letters Gary wrote from jail to his friend Nikki, gives the reader a true insight into Gary's character.  Filled with Gary's musings about farming (Gary was a budding organic farmer when arrested), Gary's dreams and thoughts about getting back to the farm helped sustain him through the chaos of prison life. The letters also contain very insightful comments about the need for better communication between trial lawyers and clients, the importance of family support for those wrongfully accused, and the almost pathological need for some in law enforcement to insist on a convicted person's guilt even in the face of powerful and overwhelming evidence of innocence.  It is an inspiring and uplifting tale, a tribute to Gary's indomitable spirit.  The book deserves a wider audience.  Self-published, it can be ordered at www.garygauger.com

A Criminal Injustice, Richard Firstman's and Jay Salpeter's book on the twenty year struggle to free Marty Tankleff, is a tour de force of a young man's (only a teenager when he was arrested for murdering his parents) and his family's struggle to regain Marty's freedom against a corrupt Suffolk County criminal justice system.  The book works on all levels.  Two thirds of the book is taken up with telling the back story of the case -- the tony suburb of Belle Terre, the lives of the victims, Marty's privileged, if not spoiled childhood, his relationships with his parents and extended family,  the business disputes between Marty's father and one of his partners that ultimately led to the murders, and the challenges faced by Marty's trial, appellate, and post-conviction lawyers.  Marty was privileged to have quality lawyers at every stage of the process, a reminder that confession evidence is so powerful, that even the best and brightest lawyers face and uphill battle.  The final third of the book reads like a detective novel because that is exactly what it is -- an account of Jay Salpeter's great gumshoe work to develop the evidence that eventually would prove that Marty was innocent and that a trio of other men, connected to Tankleff's father's business partner, were responsible for the killings. Salpeter and a team of lawyers worked for years for Tankleff on a pro bono basis, not only because they believed in his innocence, but because the power of Tankleff's personality, his own dedication to his case and his indomitable spirit, inspired them.  "Get busy living, or get busy dying" says Morgan Freeman in the Shawshank Redemption as he reflects on how he survived all those years in prison for a crime he committed as a youth.  That's precisely what Marty did --he refused to be defined by his surroundings and his circumstances -- he became his own strongest advocate. This attitude, captured by Firstman and Salpeter -- leaves me no doubt he will succeed in his new, post-prison life.

The Wrong Guys by Tom Wells and Richard Leo (one of the leading social scientific experts on police interrogations and false confessions), tells the tragic story of the murder of Michelle Moore-Bosko, a young Norfolk Virginia woman who was the wife of a Navy seaman.  The tragedy is compounded when Norfolk Police focus on another Navy man, Danial Williams, a neighbor, who supposedly showed an interest in Michelle, and browbeat this mentally vulnerable man into confessing to the murder and implicating several other Navy men.  As the Norfolk police pursue these men, they obtain four confessions from the men, and ultimately arrest eight men in connection with the crime.  It is a case of police tunnelvision gone haywire.  None of the confessions are corroborated by physical evidence -- the crime scene suggests a single perpetrator -- and DNA testing later not only excludes the men as the rapists but links an eighth man to the crime, a man named Omar Ballard, who has a history of assaulting women, who knew the victim, did not know the other men, and who later confessed to committing the crime alone.  When Ballard surfaced, police simply changed their story to accomodate Ballard, arguing, without any evidence, that Ballard met up with the sailors in the parking lot where they planned to rape Michelle.  Four men -- Williams, Eric Wilson, Joe Dick, and Derek Tice, were convicted of Ballard's crime (Ballard was also convicted).  There's no happy ending to this complex and gripping tale.    Despite a powerful push for clemency, see www.norfolkfour.org, Governor Tim Kaine, of Virginia, has yet to right this wrong.  Let's hope he reads this book which convincingly demonstrates why the confessions are false and why the men have been wrongfully convicted.

Human Lie Detector Machines?

As I watched Donovan McNabb and my beloved Eagles lose yet another NFL Championship game, I was deluged by promos for Fox's New Television Show "Lie To Me." http://www.fox.com/lietome/ The show features one of my favorite actors Tim Roth (of "Pulp Fiction" and "Reservoir Dogs" fame) as Dr. Cal Lightman, an expert at detecting whether a person is lying by analyzing their eye, facial, and other involuntary body movements. Lightman fancies himself as a human lie detector machine and the promos show scenes of him and the others he works with detecting lies during police interrogations. It's a fascinating premise for a television show and has great potential to be a hit but does it have the potential to mislead the public and increase the risk of wrongful convictions? Perhaps. There are a number of law enforcement officers who believe that they are human lie detector machines. (For a recent example, see Rick Firstman and Jay Salpeter's excellent new book about the Marty Tankleff case, A Criminal Injustice, where Detective James McCready, the interrogator who obtained Marty's confession to murdering his parents, claims that he is better at detecting lies than a lie detector) http://www.acriminalinjustice.com/. They make snap judgments about a suspect's innocence or guilt based on their analysis of a suspect's non-verbal responses to questions. These snap judgments often lead interrogators to launch into highly confrontational interrogations and to refuse to take no for an answer from a suspect. Such tactics can and do lead to false confessions. The problem is that these judgments are often wrong. Signs of nervousness are mistaken for signs of deception. And even when they are correct, the fact that a suspect is being deceptive about one thing does not mean he is guilty of committing the crime he is questioned about. Study after study of the lie-detecting ability of officers shows that while they are extremely confident in their ability to detect deception, especially if they have received training, they are not much better than the average person at detecting deception -- perhaps a little better than chance. Even if the best interrogators were able to detect deception 80% of the time, a 20% error rate would be intolerable and would lead to massive numbers of wrongful convictions. Interestingly, there is some common ground between some of these experts at human lie detection and advocates for the wrongfully convicted. Dr. Paul Ekman, whose work is the basis for "Lie to Me," appears to be a strong supporter of the need to require electronic recording of interrogations. In "Last Call," an October 14, 2008 Op-ed in the New York Times in which Op-ed editors asked a few writers and thinkers what questions they wanted Senators McCain and Obama to answer at their final debate, Dr. Ekman wrote: "Senator Obama helped pass a law in Illinois that requires the police to make audio or videotapes of interrogations of murder suspects. Would either of you require federal law-enforcement agencies to record all interrogations of witnesses as well as suspects in felony cases? And would you urge Congress to encourage recordings by state and local police departments?"

Grisham-Turow discuss death penalty

Ten years ago, a conference on wrongful convictions and the death penalty at Northwestern University School of Law launched the Center on Wrongful Convictions.  The conference brought together, on one stage, 29 former death row inmates who had been exonerated and freed from prison.  The event received national news coverage and many who attended or otherwise heard about it were shocked to learn of the high incidence of wrongful convictions in capital cases.

 

In October 2007, the Center sponsored another thought-provoking event concerning the death penalty, this one featuring two best-selling authors -- John Grisham and Scott Turow -- who discussed their personal journeys leading to death penalty opposition.  The discussion was moderated by former Chicago Tribune editorial board member Cornelia Grumman, who won a Pulitzer Prize for her editorials about the Illinois death penalty system.

 

Through the wonders of YouTube, folks who did not attend the 2007 forum can now view it on their computers, albeit in five separate parts:

 

Part 1: http://www.youtube.com/watch?v=KESB0Ef_F10

Part 2: http://www.youtube.com/watch?v=VpEIWSO2EPI

Part 3: http://www.youtube.com/watch?v=QBI6btoOGMU

Part 4: http://www.youtube.com/watch?v=234ZsNV7ZqI

Part 5: http://www.youtube.com/watch?v=vCMWDFcW4to

Beatrice Six Fallout: No More Plea Bargains, says Prosecutor

In the wake of the Beatrice Six case, the wrongful convictions of six men and women in Beatrice, Nebraska in a 1985 murder and rape case (five of the defendants plead guilty, four of whom had falsely confessed), Gage County Attorney Randall Ritnour has come up with a solution. Beginning February 1, Ritnour has vowed that his office will no longer offer or accept plea bargains. Ritnour said he will not reduce or dismiss felony charges once they have been filed against a defendant in return for a guilty plea. The only reason he would accept a guilty plea to lesser charges would be if the evidence implicating the person changed in a significant way. Ritnour is sounding all of the right notes, selling this reform by promising to more carefully screen cases to prevent overcharging, one of the key problems with unfair plea bargaining but I can't help but think that this reform sidesteps the major lessons of the Beatrice Six case. The defendants in Beatrice did not plead guilty because of overcharging, they pled guilty because police officers and psychologists acting as agents for the police coerced four defendants into confessing to crimes they did not commit. These officers clearly fed details of the murder and rape to the suspects to make their confessions appear credible and then induced the suspects to confess by threatening them with the death penalty if they did not. In other words, the interrogations themselves were a form of plea-bargaining. There are many problems with plea bargaining, including prosecutorial abuse of the process by overcharging and harsh mandatory sentencing schemes that give guilty and innocence defendants little choice but to plead in order to minimize their exposure, but here's hoping that the Beatrice Six case causes Ritnour (who was not the prosecutor at the time of the confessions) to insist that all interrogations of suspects be electronically recorded (a new Nebraska law will require this in serious cases), that he and his deputies and local police officers receive training in the subject matter of false confessions, that he require that confessions be corroborated before charging defendants or proceeding to trial, and that he have a heart to heart with the officers who are investigating the cases about their interrogation tactics. One more thing to consider -- the threat of the death penalty was a key reason why some of these defendants falsely confessed (just as it was in the earlier Murdock, Nebraska false confession of Matthew Livers). Perhaps, Ritnour should consider supporting the abolition of the death penalty in Nebraska, or, at the very least, a policy forbidding police officers in the state from mentioning it during interrogations.

Innocence trumped by technicality

Many folks react with frustration upon hearing that a criminal has been released on a “technicality,” such as an illegal search or lack of a speedy trial. I find it much more infuriating, however, when innocent convicts cannot have their new evidence heard due to tortured legal reasoning (an even more insidious form of “technicality”).

For instance, the Illinois Post-Conviction Hearing Act permits a prisoner to challenge his conviction based on new evidence of actual innocence. But exactly what is “new evidence”?

Let’s take an example. John Q. Unfortunate is charged with an armed robbery that was actually committed by Larry, Curly, and Moe. John knows who the actual robbers were, but not surprisingly, they refuse to testify on his behalf. Larry flees the jurisdiction, Curly lies and says he wasn’t involved, and Moe takes the Fifth. John is convicted based on a mistaken identification and is sentenced to a long prison term.

Years later, however, Larry, Curly, and Moe have a change of heart and sign sworn affidavits admitting their own participation and exonerating John. Is this new evidence? Logically, one would assume so because their accounts weren’t heard at the original trial.

But logic does not always drive the law. Read what one Illinois appellate court panel recently wrote on the subject:

“[E]vidence is not newly discovered when it presents facts already known to a defendant at or prior to trial, though the source of these facts may have been unknown, unavailable or uncooperative.”

In other words, because our John Q. Unfortunate knew before trial who the real offenders were, the recent confessions of Larry, Curly, and Moe cannot be offered as new evidence. On the other hand, had John not learned their identities until after trial, he could now present the affidavits as “newly discovered” evidence and possibly win his freedom. Talk about a “technicality”!

No conceivable societal interest is furthered by the refusal to consider new proof of innocence. The aforementioned appellate court ruling is either blatantly incorrect (my view), or else the Illinois Post-Conviction Hearing Act should be amended so that new evidence of innocence may be offered at any time (also my view). Let us hope that our legislators will be brave enough to take this step without fear of being labeled soft on crime. Remember, for every innocent person locked up for a crime she did not commit, there is at least one unpunished criminal still at large.