My trip to Little Rock for the WM3 benefit was my third or fourth trip to that city and the third case involving a juvenile who was pressured into confessing to a crime he did not commit. Let me tell you about the other two. Most recently, the Center on Wrongful Convictions of Youth was asked to submit an amicus brief in the case of Thomas Cogdell, a 12 year old boy who was convicted of murdering his younger sister in Camden, Arkansas in 2006. The boy's confession was patently false, the product of police coercion that reduced him to an incoherent mess. He had a breakdown of sorts after being repeatedly accused of the crime and told that the crime had to have been committed by him or his mother. The interrogation is one of the most riveting examples of psychological torture I have ever seen. There is no physical abuse and much of what the cops did was probably legal and permissible when used to question adult suspects. But when police use the same high pressure tactics on children that they use on adults, they not only risk traumatizing a child but they risk obtaining a false confession. In Thomas's case, after his breakdown, they turned off the cameras, fed him a meal, and then questioned him further before he finally confessed. They rehearsed the story with him, brought him back in and put his "statement" on tape. When his mother was finally allowed to see him, you can hear him whisper to her that he made the whole thing up.
Thomas's DNA was not on the sewing tape used to bind his sister (another male's was) nor were his fingerprints or DNA on the bags that were placed over her head to suffocate her. He also could not lead the police to where his mother's wallet had been tossed. To the extent that some of the facts in his confession were consistent with crime evidence, we'll never know whether the police fed him those facts during the dinner break because they stopped recording.
Thomas was tried and convicted of the murder and the conviction was upheld on appeal. Dorcy Corbin of the Public Defender Commission took the case to the Arkansas Supreme Court which reversed the conviction on the ground that police had not properly secured Thomas' waiver of his constitutional rights because Thomas expressed a lack of understanding of the word "waiver" and the police gave him an erroneous definition. He is free today but prosecutors have not formally announced whether they will seek to retry him. A retrial is unlikely, however, as the State has no case without the confession.
To read our Amicus Brief, click here http://www.cwcy.org/resources/91_attach_Brief%20of%20Amicus%20Curiae%20for%20TC-CWCY%201.13.10.pdf
To read Cathy Frye's excellent article on the case, click here: http://epaper.ardemgaz.com/Repository/getFiles.asp?Style=OliveXLib:ArticleToMail&Type=text/html&Path=ArDemocrat/2010/04/21&ID=Ar00104&Locale=
I did not fare as well in the other Arkansas case I worked on and the case still keeps me up at night. Kirk Otis was a mentally retarded black kid who was manipulated into confessing to the botched robbery and murder of a white Arkansas State Professor Barney Smith in Stuttgart, Arkansas. The confessions were the result of multiple interrogations by teams of detectives who clearly fed facts to Otis until he could repeat back a story that fit their theory of the crime. The State filed capital murder charges against Otis (even though it could not obtain the death penalty against a 14 year old) but a vigorous defense by Arkansas Public Defender Latrece Gray convinced the jury to convict him only of manslaughter. (I think that this is the best that a young black kid can hope for in a case involving the murder of a white victim and to me is a clear indication that the jury believed that Otis might have been innocent). In my first amicus brief before the Court, I argued that "Kirk Otis was convicted solely on the basis of varied, inconsistent, and uncorroborated statements he made over a period of five days in which he was exhausted, confused, sad and withdrawn." Otis was too young and mentally incapable of making a voluntary confession and made several conflicting statements in his repeated confessions, none of which gave police any new details they did not already know about the murder. Otis could not lead them to the murder weapon (which was never recovered) or the fruits of the robbery.
Also disturbing was the alleged motive for the murder. According to the confession, Otis had tried to rob Mr. Smith and shot him after Smith allegedly called him a racial slur. I don't believe Smith would have used such language with Otis and do not think Otis would have reacted to such language by killing Smith. This always sounded like a police-supplied motive to me to sell the confession to the jury sadly, it is one I have seen in several other false confession cases over the years.
The only good news about this case is that the Otis was released by the State Parole Board after serving only four years of a 10 year sentence, a result which would not have occurred unless the Board had serious qualms about his guilt.
For an article about the Otis case, see http://www.law.northwestern.edu/news/article_full.cfm?eventid=1769
To read the brief, see http://cwcy.org/resources/38_attach_Otis%20v%20%20Arkansas.pdf
I am committed to doing everything I can to help free the WM3. But freeing these boys is not going to put an end to juvenile false confessions in Arkansas. Law enforcement officers in this state have not learned a thing since the Miskelley confession and will continue to obtain false confessions unless the courts and the legislatures step in to protect children or the public demands changes in police policy. Here's where I would start:
1) All conversations, interviews, and interrogations of any kind between authority figures and children, whether they be child witnesses, child victims, or child suspects must be electronically recorded in their entirety. Arkansas does not require recording and as in the Cogdell, Miskelley, and Otis cases, police selectively record the interrogations, turning on the camera when it suits their needs and off when it doesn't. If police fail to record the entire interrogation and have no legitimate excuse for doing so, they should be precluded from introducing any of the confession into evidence. This is the "all or nothing" rule.
2) Courts need to limit the length of interrogations with children to no more than four hours at a time and need to give children frequent breaks to use the rest room, to eat, to sleep and to drink.
3) Children need access to competent adults to inform them of their constitutional rights and to make sure that they fully understand them before giving them up. If police officers are not up to the task -- and the TC case proves they are not -- police officers should be required to take children immediately to magistrates or judges or even trained laypersons who can administer the Miranda warnings to children or else children should be given access to lawyers. At a minimum, courts should no longer accept a simple affirmation of understanding (a "nod of the head" or a "yes") as evidence that the child understood his or her rights when asked "Do you understand these rights which I have read to you?" by police. Police officers should require that the juvenile suspect be asked to explain to the officer in his or her own words what each right means after it is given. Any confessions that are obtained in the absence of meaningful consultation with competent adult counsel should not be admissible in adult court proceedings against children.
4) Courts should require greater corroboration of confessions taken from juveniles. Does the confession fit the facts of the crime? Did the child lead police to evidence it did not already know about? Courts should consider holding pre-trial reliability hearings to answer some of these questions before allowing judges and jurors to answer them at trial.
5) Children should be allowed to call experts to testify about developmental differences between children and adults that make children uniquely vulnerable to police interrogation and at greater risk of falsely confessing when pressured by police.
6) Police need to adopt new protocols for questioning children. The aggressive, domineering, accusatory interrogation practices used with adults cannot be used with teenagers. The focus of questioning should be on gathering information not on trying to persuade a child to accept a pre-conceived story or theory of how the crime was committed by the police. Such protocols already exist for interviewing child victims in sex abuse cases and can easily be tweaked to use with child suspects. Serious consideration should be given to prohibiting police officers from lying to juvenile suspects about evidence they have gathered.