Bluhm Blog

Does rehabilitation matter anymore? The case of William Heirens

At the age of 17, in 1946, William Heirens, a sophomore at the University of Chicago was arrested on burglary charges after he walked into an open door of an apartment and pilfered a one dollar bill from a dresser.  A chase ensued and according to police, Heirens pulled out a gun, pointed it at a police officer, and pulled the trigger.  The gun, also a stolen item from a previous burglary, misfired.  During a struggle with the police officer over the gun, the officer smashed two flower pots over Heirens' head, causing him to become unconscious.

Taken into police custody in June of 1946, Heirens has never again tasted freedom.  He has been incarcerated now for over 61 years.  At the time Heirens was arrested, the Chicago police department was under tremendous pressure to solve two of the most notorious murders in Chicago history.  In December 1945, Frances Brown was found shot to death in her apartment.  The words "For heaven's sake catch me before I kill more.  I cannot control myself" were scribbled in lipstick on her apartment wall. The press had a field day with this evidence, pumping up the public's fear that a crazed serial killer (dubbed "The Lipstick Killer") was on the loose.  These fears were further fanned in January 2006 when the newspapers published accounts of the abduction of 6 year old Suzanne Degnan from her home on Chicago's Northside and told how her body parts were scattered in sewer basins around the city.  Readers of Chicago's many dailes were riveted by the newspaper coverage of the case and repulsed at the fact that the Chicago police had made no headway in the investigation after nearly six months.

With the almost unbearable pressure on police to solve these cases, enter Bill Heirens.  Heirens was a serial burglar who had already been sent away from home to a boarding school as a result of a teenage crime spree.  When he returned to Chicago, he went back to his old ways and amassed a treasure trove of items from his burglaries, including furs, cash, weapons, war bonds, and jewelry.  Almost immediately, the Chicago detectives focused on Heirens as a potential suspect in the unsolved murders.  There was no evidence to support this hunch but they pursued Heirens with desperation, violating almost every rule in the book to get him to confess.  The 17 year old was subjected to a polygraph test (which he passed), a sodium pentothal test without his consent, and given a spinal tap (in a case of voodoo science, doctors believed that they could tell whether Heirens was malingering by analyzing his spinal fluid).  They claimed Heirens made damaging admissions under the "truth serum," maintaining that the Degnan crime had been committed by an alter ego named "George Murman."  These results were leaked to the press and the case was pronounced solved long before any of the other evidence was in. 

PHOTOS OF BILL HEIRENS AT THE COOK COUNTY JAIL AFTER HIS ORDEAL AT THE HANDS OF CHICAGO   POLICE OFFICERS

                  

A ransom note left at the Degnan scene was tested for fingerprints and the Chicago police crime lab was unable to lift any prints from the note.  They sent the note to the FBI lab and low and behold his prints appeared.  Original handwriting analysis of the note and the message on the wall of the Brown killing excluded Heirens.  Another famed expert was brought in (the same man who linked Bruno Hauptmann to the ransom note in the murder of the Lindbergh baby) and low and behold there was a match.  And so it went throughout the summer as the police claimed that evidence had been linked to Heirens.

As the case against Heirens appeared to get stronger, his attorneys and then his parents pressured him to confess and plead guilty to avoid the death penalty.  As he was debating what to do, a Chicago Tribune reporter named George Wright, published the Heirens' confession.  The only problem was that there was no confession -- he made it up out of whole cloth. 

The fake confession was the last straw and Heirens agreed to confess to the crimes.  At the appointed time, he entered a room that was filled to capacity with police officers and members of the press.  Then State's Attorney Tuohy had turned the event into a media circus.  When Heirens was asked what happened -- he asked Tuohy if Tuohy wanted the truth and then astonished everyone by claiming that the truth was that he did not kill anybody.  An embarassed Tuohy took the deal off the table (one life sentence for the three murders) and insisted that if Heirens still wanted to plead guilty, he would have to serve three consecutive life sentences (the third murder was of a woman named Josephine Ross).  And so he did -- he confessed -- a confession filled with details of the crime that did not fit the evidence and lacking details that should have been known by the killer.   He confessed in order to save his life. 

For the past 61 years, Heirens has been fighting in the courts to establish his innocence.  Although he has come close on several occasions, relief has been denied in the courts, by a succession of Governors, and by the Parole Boards.  Meanwhile, he has amassed a prison record that few can match.  He has been a model prisoner, a jailhouse lawyer who has freed many others, an accomplished painter, and was the first inmate to earn a four year college degree.  Today, at age 78, Heirens is an obese diabetic who is losing his eyesight and is confined to a wheelchair.  He poses no threat to anyone and is a good parole risk.  If ever there was a case for parole based on rehabilitation, Bill Heirens, is deserving of parole. But is 61 years in prison enough retribution (assuming that Heirens is guilty)?

The story in Sunday's Tribune on the case of Bill Heirens tackles some of these tough questions.  Included in the story is eight and one half minutes of video of Bill as he makes his case to the readers and the public.

http://www.chicagotribune.com/services/newspaper/premium/printedition/Sunday/chi-heirens_bd29jul29,0,75977.story

Bill Heirens is my client.  I fully understand that the Degnan family wants him to die in prison.  I recognize that many people would like to chop him up in pieces and scatter his parts in sewer basins and believe that if my daughter had been one of Heirens' victims that I would fight to see that he was never released.  But if a parole system is to have any credibility, at some point, the cries of personal and public vengeance must give way to other goals of our criminal justice system, namely goals of fundamental fairness in sentencing and the goal of rehabilitation.   

Where do we draw the line? What is enough punishment for his crimes? Has he served enough time? All I know is that he is the longest serving inmate in the Department of Corrections and one of the longest serving in the United States.  Thousands of men with much worse prison records and who were much worse parole risks have been paroled for murders since his incarceration, including such notorious Illinois killers as Nathan Leopold, none of whom had credible claims of actual innocence.  Heirens has been rehabilitated for decades -- prison psychiatrists have given him a clean bill of health and supported his release and even members of the Parole Board, as far back as the 1960's and 1970's, have recognized that he is rehabilitated.  If rehabilitation is to have any meaning in our criminal justice system, then Heirens must be released.

The fight to win parole for Heirens is not just a fight for the body of William Heirens -- it is part of a much bigger fight, a fight for the soul of the criminal justice system.

HEIRENS TODAY     IN 1946

       

For more information on the case of Heirens' innocence, see http://www.law.northwestern.edu/depts/clinic/wrongful/documents/Heirenspetition.pdf

Iowa Cold Case Squad Solves Murder with DNA but Gathers False Confession in the Process

In January 2007, Jasper County (Iowa) Sheriff Mike Balmer was beaming with pride (and with good reason) as he announced that a Cold Case Squad of the Iowa Department of Criminal Investigation had cracked the 20 year old unsolved murder of Karen Weber, a 32 year old woman who was found stabbed to death (and the apparent victim of a sexual assault) near a gravel road northwest of Prairie City on April 20, 1986. The case was solved after investigators found a match of DNA recovered from cigarette butts left at the crime scene and the DNA of Martin Duffy, a 45 year old man whose DNA in the form of saliva wound up in the state database after he was convicted for drunk driving in 2005.

Case solved? Not quite. Authorities knew that at least one other offender was involved because DNA from semen recovered from the victim did not match Duffy. On January 18, 2007, investigators travelled to Eldon, Missouri in search of answers. They went to Eldon to interrogate James Lee Cox, a man who they learned had been stabbed by Duffy in an unreported incident less than two weeks after the Weber murder. Thinking that perhaps the stabbing may have been connected to the Weber murder, investigators interrogated Cox for hours and left Eldon with a confession from Cox that he was present at the crime scene with Duffy and that he had held down Weber's arms while Duffy raped her.

Case solved? Not so fast. Cox's DNA did not match the DNA from semen recovered from Weber's body. This meant that either Cox was present at the murder but did not rape Weber or ejaculate (an an unknown third perpetrator did) or that Cox, who recanted his confession, was innocent of the murder and had been pressured into falsely confessing to the crime. The case grew even more complicated when a second DNA match was found. The semen was linked to a third man in the Iowa Department of Corrections serving a 40 year gig for drug possession and dealing. This as yet unnamed third party knew and was friendly with Duffy but did not know Cox.

Today, the final shoe dropped in the case for Cox, who was represented ably throughout these proceedings by defense attorneys Richard Phelps and Maria Rhutenberg. Prosecutors agreed to the dismissal of charges against Cox, recognizing that the DNA evidence (and the expected testimony of the third, as yet unnamed party) exonerated Cox of the crime. In light of this new evidence, the falsity of Cox's confession became apparent (it was filled with factual errors and failed to mention the presence of the other male whose DNA was found at the crime scene).

Although the investigators are at fault for their role in obtaining a false confession (and causing Cox to serve 7 months in jail under a murder rap), Jasper County Attorney Steve Johnson deserves credit for not prolonging Mr. Cox's wrongful incarceration and for working with defense counsel to clear up the mistake. I've seen far too many cases in which prosecutors switch theories to accomodate a false confession and take innocent men to trial rather than admit error. It's refreshing to find one involving a prosecutor who is more concerned with justice than with his conviction rate.

Must Read: Mistakes Were Made (But Not By Me)

Why was it so hard for our President to admit that there were no W.M.D.'s in Iraq or that Saddam had no links to Al Qaeda? Why is it so difficult for some prosecutors and police officers to accept the reality of a wrongful conviction? Answers to these and other questions can be found in a new book by eminent social psychologists Carol Tavris and Elliot Aronson.  In Mistakes Were Made (But Not By Me): Why We Justify Foolish Beliefs, Bad Decisions, and Hurtful Acts, Tavris and Aronson explain that the reason why humans have so much difficulty in admitting error is our need for self-justification, an all too human tendency.

To protect our self-worth, even when faced with evidence of our errors, our first impulse is to dig in and justify our position with even more tenacity.  We reject any evidence that disconfirms our original beliefs and find alternative explanations to explain why we were right in the first place.  The engine that causes us to self-justify is cognitive dissonance -- the uneasy feeling that surfaces when we hold two ideas that cannot be reconciled (e.g., the system works, the defendant is guilty, innocents don't confess versus the system makes mistakes, the defendant is innocent, some innocents can be induced to confess falsely). Dissonance produces mental anguish and causes us to look for a way to reduce it.  There are plenty of good external reasons for self-justification (loss of job, reputation, preventing harm to a colleague) but it is the more powerful internal reasons that often are the cause -- we want to think of ourselves as honorable and competent. 

How do we reduce dissonance?.  One of the ways is denial , write the authors: "the greatest impediment to admitting and correcting mistakes in the criminal-justice system is that most of its members reduce dissonance by denying that there is a problem."  The authors cite Joshua Marquis, the oft-quoted Oregon District Attorney, as one of the great deniers. 

Using examples from real cases, the authors discuss how cognitive dissonance and self-justification influence almost every decision made by police officers and prosecutors in the course of a wrongful conviction.  They single out certain iindividuals who admitted their mistakes as modern day heroes, including former Indiana prosecutor Thomas Vanes for changing his position on the death penalty after learning that he had participated in a wrongful conviction.

To combat the powerful engine of self-justification in the criminal justice system, Tavris and Aronson call on police academies and law schools to teach students about their own vulnerabilities for self-justification.  (Aside: The study of the causes and consequences of wrongful convictions is one way to train officers and students.) Judges, prosecutors, defenders, and officers receive almost no information about their cognitive biases, how to recognize them, to correct them, and how to manage the dissonance that is created when their belief systems are confronted with disconfirming evidence.  Some of the specific reforms advocated by the authors mirror those that form the reform agenda of the Innocence Network , including mandatory videotaping of interrogations and independent innocence commissions.

Mistakes were Made is a highly engaging book, one that I simply could not put down.  For those engaged in educating law students about self-justification, it should be mandatory reading material for your courses, right alongside Keith Findley and Michael Scott's groundbreaking law review article The Multiple Dimensions of Tunnelvision in Criminal Cases at 2006 Wisconsin Law Review 291-397. 

For non-lawyers, there are life lessons here that go well beyond how to recognize and understand self-justification in the criminal justice system.  The book devotes one even more ink to the ways in which we deceive ourselves in our work, our relationships with others, our marriages, etc. 

Prosecutors Seek to Deny Compensation to Man Pressured into False Guilty Plea

In an earlier post (11-4-2006), I told the story of James Ochoa, the Orange County man who was excluded by DNA evidence in a carjacking case, yet chose to plead guilty after prosecutors continued to press charges against him at trial.  At the time of trial, prosecutors knew that DNA found on the sweatband of a cap found in the stolen car was not Ochoa's.  They also knew that his fingerprints did not match those found on the car.  But two eyewitnesses identified him so they took the case to trial.  Three days into the trial, Ochoa was offered a plea deal.  Plead guilty and you'll get out in two years.  The deal was too tempting, especially given that the judge told Ochoa, who had several priors, that if he was convicted, he would go away for life.  Over his attorney's advice, Ochoa pled guilty.  The twenty year old spent 10 months in prison when the very same DNA that prosecutors ignored linked to another man, Jaymes T. McCollum, was in L.A. County jail on carjacking charge.

Once released, Ochoa sought compensation for the time he served in prison under a California statute. Under the law, signed by then Gov. Gray Davis a few years ago, incarcerated people who later were proved innocent are entitled to receive compensation at the rate of $100 a day, which in Ochoa's case would come to about $30,000. But as L.A. Times Columnist Dana Parsons writes in a recent column -- http://www.latimes.com/news/columnists/la-me-parsons30jun30,1,1996254.column?coll=la-news-columns  -- the State Attorney General is disputing Ochoa's claim for compensation.  Never mind that the county prosecutors took a man who was excluded by DNA to trial. Never mind that the police and prosecutors stopped investigating the case even after the DNA came back.  Never mind that it was these decisions by prosecutors that placed Ochoa in a position where he would have to decide whether to roll the dice for an acquittal or risk going away for life.  Deputy Atty. Gen. Catherine Chatman wrote that the A.G.'s office "does not intend to present evidence in opposition to Mr. Ochoa's claim."  But in the body of her report, Chatman discusses the two key elements that a person "must prove" under state law to qualify for compensation. The first is innocence; the second is that the person didn't do anything to "contribute to the bringing about of his arrest or conviction…. "  Ochoa is innocent, Chatman writes, but by pleading guilty, a decision she says was clearly voluntary, he contributed to his own arrest and conviction.  According to Chatman, "Mr. Ochoa's fear of a lengthy prison term and the mistaken but positive eyewitness identification appear to have been the truly motivating factors" behind his decision.

To Ochoa's new attorney, Joshua Stock, there is more to Ochoa's decision than meets the eye.  He has responded by attaching a sworn affidavit from Ochoa's trial attorney, claiming that the trial judge told Ochoa that he'd give him the maximum sentence if he were convicted. The remarks were made in court but the judge "went off the record" when he said it.  As Stock realizes, however, such off the record conversations are not uncommon and would not convert Ochoa's plea into an involuntary plea.  He's worried that the hearing officer now has the legal cover to deny Ochoa's claim.

Parsons's writing about the case underscores the absurdity of the way in which courts have defined what is and is not a voluntary plea (or a voluntary confession):

"If the purpose of the law is to compensate the wrongly convicted, and if a man who knows he's innocent pleads guilty because he fears getting a maximum sentence based on false testimony and a judge's warning, how is that a voluntary plea?  Literally, I get it. Ochoa wasn't water-boarded. But in the world of common sense? Why should a plea, made under the threat of a life sentence, be held against someone who is factually innocent?"

To make sure he wasn't reading the situation wrong, Parsons sought a second opinion from Scott Baugh, the head of the Orange County Republican Party and the former Huntington Beach assemblyman who wrote the compensation law that Davis signed. To Baugh, the AG's position makes no sense: "I find it outrageous that you can force someone into a Hobson's choice of 25 years to life or pleading to a crime he didn't commit and spending two years in prison, and call it a voluntary decision. Even if the judge said nothing, he's facing 25 years to life or a two-year plea bargain. "That's not a voluntary decision, if he's an innocent man. It's not the spirit of the statute, at all, that I carried."

Both Baugh and Parsons agree that some innocent false confessors should not be entitled to compensation.  "Hypothetically," Baugh says, "if some guy who was mouthing off and he says he did something he didn't do and later was proved innocent, he contributed to his own incarceration. In those cases, law enforcement has got to do what it's got to do."

The problem with Baugh's approach is how can one ever really know whether some guy was just mouthing off or whether police officers, during an interrogation, pressured the suspect into falsely confessing, giving the suspect the same or a similar choice to that facing Ochoa -- confess and you'll get leniency, maintain your innocence and you will get hammered.  The truth is that in the absence of a recording of the entire interrogation, courts (and hearing officers) are often in no position to decide whether a confession is "voluntary or involuntary." In almost every DNA exoneration involving a false confession, trial courts have determined that the confessions were voluntary (believing officers' claims over suspects claims of coercion), decisions which are frequently upheld on appeal.  Except in the those rare cases involving truly voluntary confessions -- like that of John Mark Karr and other mentally ill persons who confess out of a need for attention -- or where a suspect confesses for reasons that are unrelated and external to police coercion (like to protect another gang member), the fact that a confession or guilty plea is legally "voluntary" should not be determinative of whether compensation is due.

(The right to compensation is not the only right that can be forfeited by a "voluntary" confession or guillty plea.  Courts have construed state post-conviction DNA statutes to deny inmates who have pleaded guilty or confessed the right to seek DNA testing.)

Prosecutors Who Uphold Justice in Confession Cases

Confessions are the most powerful evidence in a court of law.  When faced with claims of false or coerced confessions, some prosecutors, concerned more with preserving convictions than with the truth or fearful of alienating the police officers who took the confession, refuse to even acknowledge the possibility of problems with the confession.  In the annals of wrongful convictions such stories are legion.  A recent 3-part series by Richard Webster in the New Orleans Business Journal is just the latest example of investigative journalism to cover this topic.  To access these stories, check out:
http://www.neworleanscitybusiness.com/viewStory.cfm?recid=19189

But stories of prosecutors who do the right thing are not given enough attention. Here are two such stories worthy of telling.  One of the most gruesome murders in New Mexico's history is known as the Torreon Cabin murders, named after the spot where the bodies of four people (2 adults and 2 children) were discovered.  Police eventually arrested four men and charged them with the crime in May of 1996.  Only two were convicted, including Lawrence Nieto, who confessed on videotape to being present when the crime was committed.  Now, ten years after Nieto's conviction, a television reporter has discovered and aired a missing videotape of Nieto's interrogation.  This tape, which was not produced to the defense, shows police officers browbeating Nieto into confessing, suggesting crime facts to Nieto, and other standard, but routinely denied by officers in court, tactics.  In this case, the District Attorney, when showed the tape, agreed to a new trial for Nieto.  The prosecutor is Mark Pickering the Assistant DA from Torrance County.  To view portions of the tape and reporter Larry Barker's report, see:

http://www.krqe.com/video/expanded.asp?ID=6662

A second story is also worth viewing.  It involves the confession of Robert Green, man who confessed to a string of arsons in Indiana.  Prosecutor Helen Marchal told reporters that she could not file charges against Green because an arson case requires three things: proof that it was an intentional fire, proof there was a motive and proof there was an opportunity.  

"And in this particular case, at this time, we can only prove one thing -- that there was an intentional fire," said Marchal.

 

Many prosecutors, with a confession in hand, would have filed arson charges against Mr. Green.  But this prosecutor, citing her ethical obligation to pursue only those charges which can be proven in court, is holding off until physical evidence can be tied to the suspect.

To view this story, see:  http://www.wishtv.com/Global/story.asp?S=6620168&nav=0Rce

Second Yogurt Shop Murder Conviction Overturned

 

On May 25, 2006, I first posted about the Yogurt Shop Murder case, one of the most controversial confession cases in the annals of false confessions.  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 (believed 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 were only able to secure convictions against Scott and Sprongsteen and were forced to drop charges against Pierce and Wellborn.  In the May post, I reported that Springsteen's conviction had been overturned because 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 and now his conviction has been reversed as well.  This makes the record for prosecutors in the Yogurt Shop case 0 for 4 (which may be a blessing if the boys are indeed innocent.)

The 5-4 opinion reveals a sharply divided court and at least four judges who need additional education about the issue of coerced persuaded/internalized false confessions.  The majority of the court, in an opinion written by the Chief Justice Tom Price, rejected the lower court's belief that the admission of  the co-defendant's statements was harmless. 
                   

Without the corroborating statements from Springsteen, jurors could reasonably have determined that key portions of Scott's confession were known to the public or suggested to him by the interrogating police officers, Price wrote.  Viewing the videotape of Scott's confession, Price wrote that numerous details in the confession were open to question, including:           

         

•Scott's knowledge that two weapons were used in the crime. Scott first told police that Pierce had a .38-caliber revolver and then said it may have been a .22-caliber pistol. Police encouraged Scott to believe the gun was a .22, which more closely fit the facts of the crime, Price wrote.

         

•Scott's knowledge that one of the teens was still alive after she was shot. "It was the detectives who first suggested to the appellant that 'one of the girls . . . was shot twice.' Only after this suggestion did (Scott) first remember that Springsteen shot one of the girls a second time," Price wrote.

         

•Scott's statement that the shop's front doors were locked, and that a key had been left in the lock, was information that firefighters may have disseminated to the public, Price said.

         

•The teens were found naked and bound with articles of their own clothing, but when first questioned, Scott repeatedly said he remembered they had been tied with an electrical cord. Only after a detective intimated that the girls were unclothed did Scott confess that they were stripped naked and tied with their clothes, Price said.

         

•When booked into jail, Scott was asked whether he had ever considered killing himself. He answered yes — on Dec. 6, 1991, the day of the yogurt shop murders. Prosecutors said the statement implicated Scott beyond his confession to police. But, Price wrote, "the jury might also reasonably have discounted this evidence as nothing more than confabulation on the appellant's part — another unreliable by-product of . . . faulty memory-enhancing techniques used by the police."

                   

In a dissenting opinion joined by three colleagues, Presiding Judge Sharon Keller attacked the majority's reasoning.           

         

"The court faults the police for using leading questions that suggested the answers they wanted (Scott) to give. But why would leading questions motivate appellant to confess falsely to involvement in such a serious crime?" Keller said, saying that Scott was not a mental weakling and that he frequently disagreed with statements made by interrogating officers.

                   

"A leading question should not so massively corrupt (Scott's) memory as to make him believe he was involved in a crime that he was not in fact involved in," Keller wrote.

It wasn't the leading questions that corrupted his memory but the preceding interrogation techniques which caused Scott to doubt his own memory and to come to believe that he might have committed the crime.  For example: 

When Scott could not tell his interrogators precisely what Pierce had said, they insisted that he did remember, and described for him a process they called “revivification,” whereby the mind is like a VCR in which memory is stored, “and you have the ability to bring that stuff back if you think about it hard enough and you clear your head of all this other stuff.”

This is an extremely dangerous techniques that can cause a suspect to conjure up false memories. 

Other warning signs that the confession was false include the fact that Scott remained unsure throughout the interrogation about whether he actually remembered what he was saying or whether he was using information he gained from the police to concoct the story they wanted to hear. During the course of his interviews, he frequently complained to the detectives that he did not know whether what he was telling them constituted accurate memory or just his best guess as to what they wanted him to say.

At one point, Scott remarked in frustration: “I don't remember doing any of this shit.”
For more information, see http://keyetv.com/local/local_story157110712.html

 

Pete Shellem: Saving the world one innocent person at a time

"If you save the life of one person, it is as if you saved the world," the Talmud teaches us.  If this is true, then Pete Shellem, a journalist for the Patriot News (based out of Harrisburg, Pa). has saved the world at least four times and is now working on his fifth. 

Patty Carbone.

Steven Crawford.

Barry Laughman.

David Gladden.

These four were wrongly convicted of homicides they did not commit.  All told they had served 66 years in prison.  They would have likely died there if not for Shellem and his solid investigative reporting. For an article describing Shellem and his good works, check out Mario Cattabiani's piece entitled "The Sleuth" in the American Journalism Review at www.ajr.org/Article.asp?id=4341

After "The Sleuth" ran, Shellem published his most recent piece on May 27, 2007, "In a case of look-alikes, was the wrong man convicted?"  available on the Patriot News website for
free (as are all of Shellem's stories).  The story raises serious questions about the guilt of Charles T. "Ted" Dubbs who was convicted of two sexual assaults of women on jogging trails in Lancaster County in May 2002 on the basis of photo idnetifications.  New evidence, namely a confession by Wilbur Cyrus Brown II, a serial rapist who assaulted two other women on the same part of the jogging trails and 11 other similar attacks across the state, has to date failed to persuade the local prosecutor of Dubbs' innocence despite the fact that the crimes are nearly identical in all respects, particularly in the words used by the assailant and the nature of the sexual assault.  First District Attorney Heidi Eakin has an explanation for why Brown is lying -- he's a copycat criminal who is trying to get back at her for insisting that the cases in Lancaster County be prosecuted instead of allowing him to plead guilty to all of the crimes in Dauphin County.  After reading Shellem's story, this seems far-fetched.  Is this another case of prosecutorial tunnelvision, a refusal to accept the fact that an innocent man was convicted?  Stay tuned.  A hearing on Dubb's post-conviction petition is set for July 9th.

Making Criminals Out of Victims in Rape cases

In an earlier post, I discussed several cases in which police officers did not believe claims of sexual assault victims and then turned their interrogation tactics on the victims in an attempt to get them to recant.  The two most dramatic such cases involved teen victims from the Minneapolis area.  A detective in White Bear Lake, MN, was caught on tape interrogating aggressively a teenage girl who had claimed she was raped.  He didn't believe her and tried to get her to recant; she did not and it later turned out she had been telling the truth.  A video surveillance camera from a mall parking lot captured her assailant when he dropped her off after the abduction. Here's a snapshot of that case -- http://www.truthinjustice.org/abduction.htm  This was followed by a second case from Inver Grove Heights, MN where officers were successful in coercing a teenage victim to recant her claims she had been sexually assaulted.  http://wcco.com/topstories/local_story_311142618.html

The parents of the teen in the White Bear Lake case insisted that police keep investigating the case.  They were so persuasive that a new task force took over the case and did DNA testing on the blindfold used by the perp.  A complete profile was developed and prosecutors filed a "John Doe" complaint in the case in order to keep open the option of bringing charges when or if the perp's identity was discovered. http://wcco.com/topstories/local_story_116211636.html

Just last week, news broke of the arrest of a man in connection with yet another assault of a teen (a 12 year old) in nearby Coon Rapids. The man, whose DNA was not in the state database, fit the description given by the White Bear Lake teen.  The arrestee's DNA is now being compared with the profile of the John Doe perp to see if there is a match.  If there is, the parents persistence would have paid off.  For more on this developing story, see http://wcco.com/topstories/local_story_128194044.html

Compare the picture of the arrestee with the description provided by the White Bear Lake teen.

      

Chris Mitchell, 46

ARRESTEE IN COON RAPIDS

                                    

Sketch of abduction suspect in White Bear Lake case. The suspect is described as a white male between 40 and 50 years old with gray hair. He is around 5'9" tall and 200 pounds. He had a mustache and goatee at the time of the abduction

             

"Have you ever had a cop in your face?" Using YouTube to educate public about false confessions

The use of websites to inform and educate the public about specific cases involving false confessions has been a very effective means of advocacy.  Some of the best websites out there include www.martytankleff.org and www.norfolkfour.com and www.wm3.org  These websites are chock full of information about the cases and also provide general background information about the problem of false confessions. 

As effective as these websites are, however, they do not take the reader inside the interrogation room to see exactly what kinds of police tactics can cause false confessions.  In this regard, the website of the Committee to Free Ryan Ferguson, a Columbia Missouri teen who was convicted of the murder of  Kent Heitholt, a local sportswriter in 2005, breaks new and exciting  ground.  Ryan Ferguson's support team has posted nearly ten minutes of live video of the interrogation of his co-defendant, Chuck Erickson, on YouTube. (The video can also be seen at www.freeryanferguson.com)  The video, entitled "Have You Ever Had A Cop in Your Face", comes complete with commentary which highlights the problematic police interrogation tactics used to get Erickson to confess and which aims to convince viewers that Erickson's confession is false, has received over two thousand hits on YouTube to date and the numbers are growing.  http://www.youtube.com/watch?v=dCyKnc1BVV8.

The video makes a compelling case that Erickson's confession is false. Erickson's confession is the only evidence linking Ferguson to the crime.  The crime remained unsolved for two and one-half years until Erickson told a friend he had a dream that he had killed Heitholt.  Police questioned Erickson who implicated Ryan Ferguson.  The video (or at least the excerpts on the web) shows that Erickson did not know non-public details of the crime (like what was used to strangle the victim) and made numerous errors when he guessed at other details (like the number of times the victim was beaten with a blunt object). It also shows Erickson claiming that he fabricated the confession and that he was basing his confession on information he gleaned from newspaper articles.

Ryan's conviction is on appeal. The appeal has been argued before the Missouri appellate court and a ruling is due any day now.  Stay tuned.

  

Don't F with the FBI II

An earlier entry of mine on this subject speculated that U.S. Attorney Paul Charlton of Arizona had been fired by Attorney General Alberto Gonzales for his inistence that the FBI and other Federal law enforcement agencies electronically record statements of suspects. My post led several readers to question whether his support of recording was the main reason for the firing (others speculated it was his resistance to seeking the death penalty in certain cases as well as his unwillingness to vigorously prosecute illegal immigrants caught crossing the border with small amounts of marijuana). But last week, Kyl Sampson, Attorney Gonzales's hatchet man for the firings, ended all speculation. Sampson testified that indeed Charlton's support of electronic recording (and for a pilot project) over the objections of all of the federal agencies and other within the Justice Department, was a key reason for his firing. Documents disclosed by the DOJ reveal the internal debate about recording and recycle many of the traditional arguments in favor and against recording. (For a review of the documents, read Glenn Greenwald's article in Salon magazine http://www.salon.com/opinion/greenwald/2007/03/20/doj_recordings/index.html).

There are several fascinating things about this debate that demonstrate to me that there may be a tremendous opportunity for advocates to push hard for electronic recording in federal cases. First, Charlton's reasons for wanting a recording policy stem from the fact that his office had lost numerous cases (or was required to plead down others) because of the lack of an electronic recording. Jurors who were polled after these losses repeatedly told Charlton and his AUSAs that the lack of a recording hurt their cases. rthe FBI and the other agencies (the DEA, ATF, USMS).

Second, Charlton's opinion apparently was shared by the majority of the Working Group of the Criminal Chiefs of the US Attorneys, a powerful group of prosecutors who might have the clout needed to push this issue further (if a new Attorney General is appointed).

And finally, the FBI and other agencies list as one of their reasons for opposing recording a desire to conceal from jurors the conduct of its officers in obtaining confessions for fear that jurors might not take kindly to the aggressive (and legal) tactics used routinely by agents. The FBI's opposition was described uin the DOJ memo as follows: " As all experienced investigators and prosecutors know, perfectly lawful and acceptable interviewing techniques do not always come acoss in recorded fashion to lay persons as a proper means of obtaining information from defendants." Next to this entry -- which was underlined -- were the handwritten comments of an unknown skeptic who wrote "So we want to hide the truth? Don't want the jury to reach its own judgment?"

What are the FBI and other agencies really saying when they seek to conceal from juries the truth about their interrogation tactics? For one, it shows a profound distrust of juries, one which is belied by the experience of prosecutors in Minnesota and elsewhere who have been presenting recorded interrogations to juries for years. Jurors understand that obtaining confessions is not always pretty and are willing to cut agent's slack as long as they do not threaten suspects of promise leniency or suggest to the suspect the facts of the crime that only the true perpetrator would know. Two, the lack of a recording allows agents to plausibly deny that they coerced statements or to otherwise "sanitize" their recollection of the interrogation practice. It is also an open invitation for agents to lie when testifying about what went on during the interrogation. Finally, their fear that juries will not understand their tactics also extends to judges. Judges usually get the first crack at reviewing statements when they are asked to decide if a confession is voluntary or involuntary. The FBI's desire to conceal this information from judges speaks volumes about what they think about the ability of judges to make accurate decisions regarding the voluntariness and reliability of suspects' statements.

In light of all of the recent exonerations, many of which have been the result of DNA testing, and the significant percentage of exonerations which are based on false confessions (20-25%), our criminal justice system can no longer simply accept a federal agent's word about what happened during the interrogation, especially when a simple recording can give judges and juries a complete (depending upon when the camera is turned on) and thorough account of what was said during an interrogation. Federal judges, federal legislators, and federal prosecutors should continue to bring pressure upon the federal law enforcement agencies to start recording interrogations routinely. The firing of Paul Charlton is an opportunity to pierce the veil of secrecy that has long shrouded the actions of federal officers during interrrogation. It is an opportunity that those of us who favor recording should not and must not miss.