Tuesday, October 28, 2008

Tankleff: New Firm Will Fight Wrongful Convictions

October 28, 2008

Juliet Papa-1010 Wins-New York, NY

Marty Tankleff wrote 50,000 letters during his 17 years behind bars proclaiming his innocence in the murder of his parents.

"I don't want to have to hear another person say I wrote 50,000 letters to get out of prison," Tankleff said.

Tankleff served 17 years in prison for the 1988 murder of his parents before he was exonerated in 2008 based on evidence secured by investigator Jay Salpeter.

Tankleff and Salpeter are now part of the Fortress Innocence Project -- the first national firm focused exclusively on investigating wrongful convictions. The pair along with others, including Ruben "Hurricane" Carter (pictured), announced the formation of the firm Monday.

"Hurricane" Carter did 20 years and faced execution before he was released and now offers hope.

"The truth will live on...because the truth is invincible," Carter said.

The organization is also seeking legislative help in monitoring law enforcement agencies and improving their practices.

Thursday, October 23, 2008

Wrongly convicted Fla. man pardoned

October 23, 2008

Bill Kaczor-Fort Mill Times-Fort Mill, SC

Alan Crotzer already has received $1.25 million in compensation for spending more than 24 years in prison for crimes he didn't commit, and Tuesday he was pardoned for two other offenses.

Gov. Charlie Crist and the Florida Cabinet unanimously forgave him for stealing beer in 1979 when he was 18 years old and introducing contraband - marijuana - while he was in prison in 1991.

"I just think it's important that when somebody obviously has changed their life that you recognize that, you give them a second chance," Crist said. "I'm very proud of Alan Crotzer."

Crist had urged the Legislature to pass Crotzer's compensation bill and he signed it into law earlier this year.

Crotzer was released after 24 years, 6 months and 13 days when DNA evidence in 2006 proved he was innocent of abducting and raping two women from a Tampa home during a robbery. He doesn't need a pardon for those 1982 convictions because they have been overturned in court.

He hopes the pardon will help him achieve his dream of returning to prison as an inspector for the Department of Corrections.

"I put so much behind me, but there's so much in front of me I've got to do," Crotzer said afterward. "Prison offers nothing but corruption and chaos and mayhem. They can hardly feed them, clothe them or house them, and there needs to be some reform."

The governor and Cabinet, sitting as the Board of Executive Clemency, also ordered that records of the two crimes be expunged, although a lawyer for the Florida Department of Law Enforcement argued that couldn't be done.

FDLE Assistant General Counsel John Booth cited a 2004 Florida Supreme Court ruling saying under state law a pardon cannot be used to expunge records when there's a guilty finding because it "does not have the effect of eliminating guilt or the fact of conviction." It can be used, though, is cases where judges withhold adjudication of guilt.

Justice Harry Lee Anstead dissented from the 6-1 ruling. He wrote that the majority had overturned a legal precedent going back more than a century that says a pardon "blots out the existence of guilt."

Crist said the law is whatever the Supreme Court says it is on any given day.

"They have a couple new members over there don't they? A couple might come," Crist said. "We can, if we want, send them a test."

Crist recently appointed two new justices and two more are leaving next year, including Anstead, who will reach the mandatory retirement age of 70 in March.

"There is gray area," said Crotzer's lawyer, Mark Schlakman, board chairman of the Innocence Project of Florida. "The governor and Cabinet sitting as the Clemency Board have extraordinary power, virtually unbridled power within this realm."

Crotzer, 47, said he wants to keep showing the world "I'm not that monster they try to make me be. I am a new person."

Until the compensation bill was enacted, Crotzer supported himself by working for a plant nursery in Tallahassee, where he now lives. He's now working part-time for the Department of Juvenile Justice speaking with young delinquents about what can happen to them if they don't turn away from crime.

Although wrongly convicted in 1982, Crotzer acknowledged he erred in the beer theft, which resulted in a robbery conviction. He said he remained outside a store while some friends went in to take the beer.

Crotzer told the board he took the rap for bringing marijuana into prison rather than snitch on a guard. He said the guard smuggled it in and ordered him to sell it.

"They knew somebody brought it to me, but they wanted me tell on him, and I couldn't tell on him and survive I don't think," Crotzer said.

He is one of nine Florida convicts proven innocent by DNA. Eight have been freed. One died just before he was exonerated.

Monday, October 20, 2008

DNA Evidence Frees 2nd Man

Thomas Winslow Was Convicted In Rape, Murder Of 68-Year-Old Woman

October 20, 2008

KETV.com-Omaha, NE

Thomas Winslow, the second man convicted in the rape and murder of a woman 19 years ago, was released from prison Friday after DNA evidence cast doubt on his conviction.

His co-defendant, Joseph White, was the first man in Nebraska to be released from prison on proof of DNA evidence.

Winslow will finish paper work in Gage County, Neb., and then head to Omaha, where he'll be discharged from the Omaha Correctional Center. Winslow said the ruling was a longtime coming.

In a statement, Winslow said that law enforcement had told him physical evidence and testimony proved his guilt, though he had no memory of committing the crimes of which he was accused.

He said he had spent many years in prison actually believing he was guilty. "Unless someone has been accused of a crime as terrible as what happened to Mrs. Wilson and are told repeatedly by the police and the prosecutor that they have the evidence that will put them in the electric chair, you simply cannot understand the fear and the pressure I was experiencing," Winslow wrote. "

Winslow, along with Joseph White, was convicted in the rape and murder of 68-year-old Helen Wilson.

DNA evidence also could not place six other co-defendants at the crime scene. It did point to a third person, whom authorities are still seeking.

"That evidence clearly shows there was a third individual involved," said Gage County attorney Randy Ritnour on Wednesday. "That cast doubt on the testimony of everybody who testified in White's trial, because none of them mentioned this particular individual."

Wednesday, October 15, 2008

Capital Punishment Opponents Tour State of Montana

October 15, 2008

Flathead Beacon-Kalispell, MT

David Kaczysnki’s brother Ted, cemented in history as the “Unabomber,” will never be executed. Instead he will spend the rest of his life in prison, a reality that David embraces. But David, who originally tipped off authorities about his brother, is fully aware of how Ted arrived at the life sentence: a government-appointed, all-star defense team; a multi-million dollar trial and, in almost all regards, a lot more help than the average death row inmate ever receives.

To date, 130 death row inmates have been exonerated by DNA evidence and opponents of capital punishment, like David Kaczynski, say it’s clear that many of those inmates never received proper legal representation. That’s a major reason Kaczynski recently wrapped up an 11-day speaking tour across Montana with other anti-death penalty advocates to encourage Montana to abolish capital punishment. Last year, New Jersey became the first state to get rid of capital punishment since the U.S. Supreme Court restored it in 1976. Courts in other states like New York have ruled that the death penalty is unconstitutional.

“We have a delivery system and that system is failing,” Kaczynski said in an interview.

On Oct. 6, Kaczynski was one of five speakers who told their stories at Kalispell’s Museum at Central School as part of a national anti-death penalty movement called Journey of Hope…Violence to Healing, sponsored here by the Montana Abolition Coalition. The tour hit 50 locations throughout the state between Oct. 2 and Oct. 12. Speakers included family members of both victims and the convicted, as well ex-death row inmates who were exonerated.

The tour comes at the home stretch of election season, and capital punishment will once again be an issue at the 2009 Montana Legislature. In the 2007 session the Senate passed a bill to abolish the death penalty in Montana and replace it with life without the possibility of parole. The Montana House Judiciary Committee ultimately tabled the bill by a margin of one vote. Lethal injection, which has recently been questioned in court nationwide for its constitutionality, is the only form of death penalty in Montana.

One of Montana’s two death row inmates, Ronald Allen Smith, has been in the news over the past year because officials in Canada, his home country, stated that they wouldn’t save him from execution in Montana for murders he committed in Flathead County in 1982. The death penalty is illegal in Canada.

In an interview following the Kalispell presentation, Kaczynski said capital punishment affects people in tangible ways, not the least of which is what he calls a drain on resources, both human and financial. To emphasize his point he said that before a court declared the death penalty unconstitutional in New York, the state spent $200 million on seven death row inmates who were never executed. He also said that in his brother’s trial the federal government “spent $5 million to kill him and $3 million to save his life.”

“This really isn’t about sympathy,” Kaczynski said. “It’s about compassion on one level, but it’s really about rationality."

Kaczynski said his fight against the death penalty began after he received a phone call from Bill Babbitt, whose brother Manny was convicted of murder in California. Upon reviewing the details of Manny’s case and comparing them to his brother’s, he said he saw clear injustices in the legal system.

The high-profile case of his Harvard-educated, white brother, Kaczynski said, produced very different results than for Babbitt, an un-educated black Marine who served in Vietnam. Despite similarities in the case – both men were diagnosed schizophrenics and charged with first-degree murder – Babbitt was given the death penalty. During trial, Kaczynski said Babbitt was stuck with an alcoholic attorney who lacked criminal trial experience and who was later disbarred. The poor, colored and mentally ill, Kaczynski believes, are unfairly targeted by capital punishment.

“My concern is we’re executing a lot more Manny Babbitts in the country than we are Ted Kaczynskis,” he said.

Shujaa Graham, who also spoke in Kalispell, said while he was in prison for robbery in California in the 1970s, he was charged with the murder of a guard. Graham spent four years on death row until an outside movement persuaded authorities to give him one more trial. He was then proven innocent and exonerated, but he says today, “I’ve been out 20 years and I still struggle every day.”

“I’m here in spite of the system, not because of the system,” Graham said.

Among the other speakers on Oct. 6 was Bud Welch, whose daughter was killed in the 1995 Oklahoma City bombings. Welch said he was always an opponent of the death penalty but after the bombings he struggled with that belief. It wasn’t until he met Timothy McVeigh’s father and saw the pain it inflicted on the McVeigh family as well as his own that he again grew strong in his anti-capital punishment beliefs.

“(Execution) would be an act of revenge and hate,” Welch said. “Revenge and hate simply was not part of my healing process.”

Kaczynski thinks the judicial system should use its resources better.

“If we invest that energy in crime prevention and healing for victims’ families, it’s really a no-brainer,” Kaczynski said. “Instead of investing all the money in something negative, put it in something positive.”

Tuesday, October 14, 2008

Prosecutor in one of Dallas County's DNA exonerations no longer supports death penalty

October 14, 2008

Jennifer Emily-Dallas-Morning News- Dallas, TX

James A. Fry, who prosecuted Dallas County exoneree Charles Chatman, said he is "shaken to the core" because of the number of exonerations throughout the country and problems with eye witness testimony.

Once a staunch supporter of capital punishment, Mr. Fry said no longer supports it because of the problems in the criminal justice system highlighted by the exonerations.

"I don't think the system can prove who is guilty and who is innocent," he said in an interview at his office in Sherman where he practices family law.

Mr. Fry prosecuted Mr. Chatman in 1981 for the rape of the exonerated man's former neighbor. Mr. Fry said that at the time, he believed the victim had correctly picked out Mr. Chatman from a photo lineup.

This week, The Dallas Morning News is running stories from its 8-month examination of the county's 19 DNA exonerations that show that eyewitness testimony can be flawed.

Dallas County has had more DNA exonerations than any other local jurisdiction since 2001 when the state began allowing post-conviction DNA testing. Unlike most other counties, Dallas County has preserved decades of evidence.

Monday, October 13, 2008

DNA Exonerations

The Dallas Morning-News examined flawed police and prosecution practices that put men behind bars. Click on the link for the entire story.

Thursday, October 9, 2008

DNA Deadline

October 9, 2008

Detroit Metro Times- Detroit, MI

Requests for DNA testing from about 150 Michigan prisoners crowd Donna McKneelen's office at the Innocence Project at Cooley Law School in Lansing, where she's co-director.

She wonders if she'll have time to usher petitions for testing — which could prove some of the inmates were wrongfully convicted — through the court system in the next three months. The deadline looms because Michigan's law allowing post-conviction testing of DNA evidence expires in December.

Earlier this year, the Michigan House passed a bill to extend the measure to 2012, but that legislation is stalled in the state Senate. If it's not passed by the session's end in December, prisoners' ability to use testing to prove their innocence is gone.

"This is the last opportunity for these inmates," McKneelen says. "There's no process left. If they don't file under this statute there is no other avenue for them to get DNA testing."

Wayne Kuipers (R-Holland) chairs the Senate Judiciary Committee, which the bill must pass to reach the full chamber. He did not return several telephone calls and e-mails seeking comment.

Three Michigan men have been exonerated by DNA testing: Eddie Joe Lloyd, was released in 2001 after the national Innocence Project in New York handled his case, and Ken Wyniemko and Nathaniel Hatchett left prison in 2003 and in April, respectively, after Cooley attorneys requested testing that proved their innocence.

Michigan's exonerations are among 220 the Innocence Project reports nationwide. "DNA is a credible, powerful scientific tool," says Marla Mitchell-Cichon, co-director of the Cooley project with McKneelen. "Its use in post-conviction cases should continue."

In 2000, the Michigan Legislature passed the law allowing DNA testing in cases where evidence existed, hadn't been analyzed before trial and could exonerate the convicted person. It became effective Jan. 1, 2001 but was limited to eight years.

Lawmakers enacted the deadline because they were worried about flooding the courts with requests and figured that eight years was enough time to process cases in the pre-DNA era. But the Cooley project — Michigan's only organization dedicated to such work — hasn't been able to complete investigations into the 3,500 requests they've received. Some 150 requests are yet to be vetted.

The research is lengthy, McKneelen says, because while the law allows evidence to be tested, there is no requirement police or prosecutors automatically provide that evidence. So McKneelen and the students must first determine if evidence even exists; that can take months of Freedom of Information Act requests or negotiations with police departments.

"Some departments are absolutely wonderful. They're organized. There are records for everything. They're cooperative. But unfortunately that's not the case in all counties. There are some counties that are far more difficult than others," she says.

Since 2001, the Cooley team has submitted 13 cases for screening, including Hatchett's and Wyniemko's. Some other tests proved guilt or were inconclusive. Results in at least four cases are due in the next several months.

Now, the December deadline for post-conviction testing in Michigan has McKneelen worried about those last 150 requests.

"We really are up against trying to determine whether to file all the cases we have remaining, even those cases that we've not completed the investigation in," she says. "We don't file frivolous claims. That's why we still need the statute."

Scientific improvements also have increased the possibility of testing in old cases. If samples were small or contained more than one person's DNA, earlier tests could have been inconclusive, but today's technology could yield a result.

"We can now go back and ask for further testing and we could get a result. We have this constantly changing technology," McKneelen says.

Rep. Paul Condino (D-Southfield), chair of the House Judiciary Committee, says he's optimistic that after the November election, the Legislature will resume work on the DNA bill and other measures. "I remain convinced that they will move the bill during the lame duck session," he says.

McKneelen says enacting the testing law is a matter of public safety. "Unless the state Senate makes this bill a priority," she says, "innocent people will remain in prison while the actual perpetrators of crime remain at large."

Tuesday, October 7, 2008

How People Tell Cops They're Guilty Even When They Aren't

Untrue Confessions

October 6, 2008

Emily Horowitz-Counter Punch-Petrolia, CA

Khemwatie Bedessie, a 39-year-old immigrant woman in New York City, was convicted last year of raping a 4-year-old at a daycare center in Queens, though the facts of the case strongly suggest she is innocent. Her conviction resulted solely from a confession, which she says is false and was coerced from her by a detective.

In the 1930s, the Supreme Court outlawed “the third degree” during police questioning. Interrogators can no longer beat people, keep them awake for days, or threaten them with death to get a confession. Rogue behavior still surfaces. Chicago is still investigating a police district that routinely applied electric shocks to suspects less than a generation ago. But this isn’t the Depression Era, and coercive interrogations are no longer supposed to be allowed.

It’s not the 1980s, either. That decade marked the eruption of the McMartin Preschool case, in which several California childcare workers, among them elderly women, were accused of most bizarre and extreme sex abuse against children. McMartin, with its claims of mutilated rabbits and sodomy in underground tunnels, turned into the longest and most expensive criminal case in U.S. history, before it collapsed in 1990, with acquittals and hung juries. Dozens of copycat cases from the same period have since been debunked, and today child protection authorities tell us they know child sex abuse investigations can go haywire, but they have ways to keep them on track so people aren’t treated unjustly.

Even so, Khemwatie Bedessie was accused and convicted without any substantial evidence, except for her confession. Was it really coerced and false, as she claims? We’ll probably never know for sure because police didn’t record the interrogation that led to her self-incriminating statements. Lack of recording is one reason Bedessie deserves the benefit of the doubt. Her interrogation should have been videotaped, just as all questioning should be when people are detained during investigation of serious crimes. Among law enforcement agencies around the country, videotaping is catching on, and that’s laudable. But even if taping becomes universal, it won’t come near to eliminating false convictions based on false confessions. To make a real dent in the problem, we need to first recognize that when it comes to investigating crimes, we’re still in the epoch of the Inquisition.

Bedessie case is instructive, and it has a back story. She is one of nine siblings from Guyana, and grew up very poor there. At age 3, she was kicked in the head by a donkey; after that she suffered bouts of writhing and foaming at the mouth, which her family calls “seizures” or “anxiety attacks.” She never received medical treatment for them, and because classmates teased her about the attacks she dropped out of school after fifth grade. She cannot add or subtract small numbers, and her writing looks like a 7-year-old’s. After coming to the United States five years ago, she lived with her mother and worked 11-hour shifts, doing cleaning at a small daycare center in Queens. There she was known by the children as “Teacher” and by their parents as “Anita.”

One preschooler was a boy I will call Sam. At Bedessie’s trial this spring, Sam’s mother testified that when she first put him in daycare at age two so she could take a job, she was anxious about leaving him. Soon she started asking him if anyone there was sexually abusing him. She asked randomly and frequently. “No, mommy,” Sam always replied.

Then, one day in winter 2006, Sam developed a fever and a rash on his buttocks. At the doctor’s, he was diagnosed with flu. But his mother, again, felt worried. Again, she asked him about abuse. This time Sam, now 4, said “yes.” Taken to a hospital, he told a nurse he’d been raped by “Anita” – not his name for Bedessie but his mother’s. A police officer was called, but Sam would not repeat the statement. And medical personnel did not change their diagnosis of the rash. They still made no finding that it was caused by sexual abuse.

That left nothing except a preschooler’s word – which was spotty, and could have been tainted by his mother’s constant questions. And there was another problem with the case: it is astronomically rare for females as old as Bedessie to commit sex crimes against tiny children. Given this fact, what is the probability that the rape of a 4-year-old by a middle-aged woman would be discovered purely by accident, by questioning a child whose original complaint – which triggered the questions to begin with – had nothing to do with sex abuse? The likelihood is miniscule. The most probable explanation for Sam’s allegation of rape is that it was false, evoked by his mother’s fears and the boy’s suggestibility.

Not surprisingly, the detective in charge of the case, Ivan Borbon, was getting nowhere after a week of investigating. But instead of calling it quits, he decided to bring Bedessie in for questioning. Wearing plain clothes and driving an unmarked car, Borbon arrived at the day care at 9 a.m. one day. Bedessie said she thought he was a child protection worker. Borbon did not alert her to the misconception, and he told her they were going to his “child protection” office. It turned out to be a police interrogation room. There, Bedessie later testified, Borbon began cursing at her and calling her a child molester. He displayed a tape recorder and said he’d “wired” Sam. He claimed he had, on tape, the sounds of Bedessie forcing the child to have intercourse with her in the daycare bathroom. Incredulous, she asked him to play the tape. He refused, cursed some more, and said Bedessie had two choices. She could say then and there that she had raped Sam and she would be released to go home. Or – as she put it at trial – she could continue to profess innocence and “go to Rikers and never see my mommy” again.

“I do whatever he tell me to do,” Bedessie later testified. She says she has no memory of confessing (family members say she dissociates when she has her “anxiety attacks”).

But she did make a confession, after only three hours in custody. It was videotaped. In her statement, she responds to questioning by describing being fully penetrated sexually, for several minutes, on a toilet, by preschooler Sam. She characterizes the penis of this 4-year-old as being as long as a ballpoint pen, and of “about two inch thickness.” She speaks a notably creolized English, and it is not clear she understands everything she is asked. At trial a year later, she said she did not know the meaning of the words “masturbation,” “stroking,” “orgasm” or “immoral.”

Bedessie’s attorneys tried to put a witness on the stand: Richard Ofshe, an internationally recognized expert in false confessions. The judge would not allow it. He said the jury could make up its own mind about the veracity of Bedessie’s incriminating videotape. After only a couple of hours’ deliberation, they convicted her.

Though Ofshe did not testify, he watched Bedessie’s confession and interviewed her before her trial. He finds her account of coercion very credible, and says many people make false confessions after much less time than the three hours it took for Bedessie to begin her statement. Her description of the interrogation, Ofshe says, sounds like many others he has heard, in which evidence later surfaced to show that the defendant was innocent, even though he or she had earlier confessed. Ofshe and every other researcher who has studied false confessions note that they are easily extracted by interrogators. That’s because of how interrogation works – even when it’s done legally.

The Arizona v. Miranda decision, with its caveats about the right to stay silent and its offers of lawyers, was issued by the Supreme Court in 1966. Since then, legal police questioning supposedly has dispensed with 24/7 marathons and physical assault. Now, interrogations concentrate on psychology. But even when everything is on the up and up , questioning in detention is no tea party. According to the law, cops can get people to talk by yelling, insulting them, invading their personal space, saying there’s evidence when there isn’t, and feigning sympathy about the crime (“After all, she was dressed like a slut. I know she was asking for it, huh?”).

A widely used training manual recommends that the interrogator physically crowd up next to the suspect and insist he or she is guilty, cutting off any bodily or verbal protestation of innocence. “The interrogator must rely on an oppressive atmosphere of dogged persistence,” advises the manual, “leaving the subject no prospect of surcease. He must dominate the subject and overwhelm him.” These techniques “suggest that only confession will bring interrogation to an end.” In this way, the manual instructs, it is possible “to induce the suspect to talk without resorting to duress or coercion.”

But, at some point on the continuum of trickery, duress and threats, cops can step over a line. The resulting confession is what most people think of when they read reports from organizations such as the Innocence Project. According to that group, in over of quarter of DNA exonerations, innocent defendants pleaded guilty or made false confessions. Many such confessions and pleas were produced because police officers promised leniency at sentencing in exchange for a confession. Such deals are not allowed. Or the interrogator threatened bodily harm, warning the suspect, for instance, that confessing would be the only way to avoid the death penalty. (Bedessie says that Borbon, the detective who interrogated her, told her about the terrible treatment accused child molesters get at Rikers. He said she could avoid going there by confessing).

According to a raft of social science and psychology research done over the past two decades, techniques like these are especially likely to produce false confessions when used on juveniles, the mentally ill, the poorly schooled, immigrants, and those with impaired cognition (Bedessie fits at least two of these categories).

It’s also agreed that illegal practices occur frequently in the interrogation room, and that cops later lie about them on the stand. And when there is an argument about veracity, research suggests that no group of people – not judges, prosecutors or juries – can tell whether a confession is true or false simply by reading a transcript or watching the video. That is why not just the confession should be recorded, but also the full interrogation that led up to it. The idea is to avoid methods that – as the Supreme Court has put it – “shock the conscience” and “offend the community’s sense of fair play and decency.”

Ten years ago, only two states were recording interrogations. Now, nine states and the District of Columbia do, and they are joined by more than 500 local police departments nationwide (some record only for murder cases, others for lesser felonies as well). Increasingly, taping is the trend. It’s spreading relatively slowly, but it’s spreading, says Northwestern University legal scholar Steven Drizin, an expert on false confessions who has advocated for taping for years. He thinks the scales would really tip if federal agencies started making recordings.

So far, the feds have said “no.” But last year, media eyebrows were raised when the DOJ released documents related to how eight U.S. Attorneys were fired under former Attorney General Alberto Gonzales’ watch. Speculation is that one of the fired attorneys, Paul Charlton, in Arizona, was let go because he was investigating Republican Congressman Rick Renzi, a Bush loyalist, about a 2005 real estate deal. Either that or Charlton angered the DOJ for not prosecuting enough obscenity cases based on adult porn. Gonzales’ office demurred, saying that a major reason Charlton was canned was that he wanted to start a pilot project for the FBI and other federal agencies to start experimenting with videotaped interrogations. When the documents came out, one of them – from the FBI – objected to Charlton’s idea and commented that “as all experienced investigators and prosecutors know, perfectly lawful and acceptable interviewing techniques do not always come across in recorded fashion to lay persons as a proper means of obtaining information from defendants.” More pointedly, the memo mentioned worries that jurors could find “proper interrogation techniques unsettling.”

Couple these anxieties with steady media attention to the problem of false confessions, and it might seem odd that judges, juries, and the public in general still find it so hard to believe that someone like Khemwatie Bedessie would say she was guilty if she wasn’t. Inside and outside the courtroom, what is the problem?

The most proximate answer is that, logistically speaking, the U.S. is heavily invested in a criminal justice system that would be paralyzed without confessions. Ninety-two per cent of felony convictions are obtained by plea bargains or confessions. That’s a far higher rate than in other countries (Italy’s, for example, is 8 per cent, and Norway doesn’t allow plea bargaining at all).

Relying on confessions to prosecute crimes is thrifty because it avoids the need for costly investigations. But it’s also very destructive to justice, according to Jerusalem University criminologist Boaz Sangero. Writing in a recent issue of Cardozo Law Review, he lists several problems. The first is that, after a suspect is apprehended, police tend to ignore serious investigation; instead, they focus on getting a confession. And once the confession is obtained, any other work going on at all typically ends. The push to handle cases this way encourages misbehavior in the interrogation room.

Further, reliance on confessions promotes disgraceful conditions of detention. Jails are often worse than prisons. Filth, bad food, lack of sunlight, crowding and violence pressure people to say they did something – anything, whether it’s true or not – just to get out of lockup. Then, because they’ve confessed, we figure it’s OK to keep others like them in awful cells – and to bring in more detainees for interrogation. It’s a vicious circle, and most who get trapped in it are poor, uneducated, and unacculturated. Their marginal status is bound up with the moralistic judgment that they are different from us, and therefore bad. Their badness reinforces our willingness to keep a bad system in place. It probably also allows us to export illegal interrogation – our 1930s-era torture, updated – to places like Abu Ghraib and Guantanamo.

Beyond fear of the bad “other” and desire for a bargain, though, there’s a more fundamental, existential reason why dependence on self-incrimination is mean and unfair. As Sangero notes, any kind of interrogation which focuses on obtaining confessions – legal or illegal – probably violates people’s rights. That’s because, from the point of view of self-interest, confession makes no sense at all. People are asked to help themselves by condemning themselves. It is deeply irrational.

That irrationality is especially apparent in the many confessions made, even though they were not extracted directly by police questioning. In fact, as Sanjero notes, it’s possible that most confessions arise not from external coercion but from states of dependency and abjection that people internalized before they were ever interrogated.

Historical and legal records abound with examples. After Charles Lindbergh’s baby was abducted, over 200 people walked into police stations and said they were the kidnapper. More than 30 told authorities they were the murderer of a woman who came to be known as “The Black Dahlia” – a Hollywood actress whose mutilated body was found in a vacant lot in Los Angeles in the 1940s. In a case that truly smacks of internalized abjection and desire for quick death, Heinrich Himmler lost his pipe while visiting a concentration camp during World War II. A search ensued, but on returning to his car Himmler found the pipe on his seat. Meanwhile, the camp commandant reported that six prisoners had already confessed to stealing it.

Since they are not products of police interrogation, no amount of videotaping will eradicate these confessions. Yet, we accept them. At least partly, this is because quick admissions of guilt are cheap, and easy on the justice system. But, more fundamentally, the very concept of confession is deeply embedded in our culture.

It was not always so. Ancient Jewish law barred criminal confessions. In Talmudic commentary – cited in the Supreme Court's Miranda decision, by the way – the rabbinical scholar Maimonides notes, “The court shall not put a man to death or flog him on his own admission.” Additional evidence and witnesses are needed, Maimonides explains, because the impulse to confess is, by definition, self-destructive. Of a man who professes guilt, there is always the possibility that he is “one of those who are in misery, bitter in soul, who long for death …perhaps this was the reason that prompted him to confess to a crime he had not committed, in order that he be put to death.”

Since the 1551 Council of Trent, however, the Roman Catholic Church has taught that confession is good for the soul – yea, even necessary, to save it and purge it of impurity. This religious notion has since been incorporated into law and into the modern, secular definition of the self. Being a fully realized person today requires full disclosure to family, friends, and even (in the case of writers, artists and public figures) to the polity: of one’s deepest emotions, darkest sexual impulses, and past misdoings. Confession isn’t just good for the self. We need confession to be a self.

But when self meets soul in the modern justice system, it’s a train wreck of contradiction. As Yale University comparative literature scholar Peter Brooks notes in his book Troubling Confessions, “That we continue to encourage the police to obtain confessions whenever possible implies a nearly Dostoevskian model of the criminal suspect … we want him to break down and confess, we want and need his abjection since this is the best guarantee that he needs punishment, and that in punishing him our consciences are clear.” On the other hand, our Mirandan insistence “that the suspect’s will must not be overborne, that he be a conscious agent of his undoing, of course implies the opposite, that we don’t want Dostoevskian groveling in the interrogation room, but the voluntary (manly?) assumption of guilt. Hence the paradox of the confession that must be called voluntary while everything conduces to assure that it is not.”

It wasn’t so long ago that masters of American jurisprudence were actively grappling with this contradiction. In the 1966 Miranda decision, Earl Warren recommended that the police find other evidence to solve a crime than the “cruel, simple expedient of compelling it from [the suspect’s] own mouth.” Twelve years before Warren made that statement, Abe Fortas, who later would replace Warren on the Supreme Court, wrote that “Mea culpa belongs to a man and his God. It is a plea that cannot be exacted from free men by human authority.”

Today, Sangero agrees with these liberal lawmakers from a bygone era. He wholly opposes the eliciting and use of confession to solve and prosecute crimes. But, if confession isemployed, he believes the case should never go forward unless meaningful evidence is first gathered from sources independent of the confession – evidence that strongly shows, rather than merely suggests, that the suspect committed the crime. Many people fear that such a policy would allow lots of guilty people to go free. Sangero dismisses their worries. Forensic science in the U.S. today is so sophisticated and high tech, he says, that police have only to use it. All that is required to convict criminals justly is that the cops do their job.

Sangero is very leery of putting too much emphasis on recording. Sure, he says, it’s needed. But narrowly focusing on videotaping reforms does not encourage the police to redirect investigations away from defendants’ self-incrimination and toward the gathering of independent evidence. Obsession with recording can encourage practices such as “non-detentive interviewing.” It’s an increasingly common ploy, in which suspects are seduced into chatting – as Bedessie was when she was visited by the supposed “child protection worker,” who turned out to be a policeman – without being read their Miranda rights. Only after the car door is locked, the drive has begun, and the interrogation room is sighted, does the suspect get officially detained and put before a camera. By then, for someone like Bedessie, it may well be too late to take exercise one’s Miranda rights.

Bedessie is now in the first year of a 25-year prison sentence. Her post-conviction legal work is being done by prominent Manhattan attorney Ron Kuby. He believes she has a good shot at having her conviction overturned because of the trial judge not letting the jury hear expert testimony about false convictions. Nowadays, that’s solid grounds for appeal, and even the assistant DA who prosecuted the case knows it. Pretrial, she advised the judge that it wouldn’t hurt the state’s case to let the defense put on a witness to warn jurors that Bedessie might have falsely incriminated herself. It wouldn’t matter because the confession spoke for itself. And no jury would think otherwise.

Thursday, October 2, 2008

Appeals court overturns conviction of DNA exonoree

Thursday October 2, 2008

Houston Chronicle-Houston, TX

The Texas Court of Criminal Appeals on Wednesday overturned the sex crime convictions of a Dallas man proven innocent by DNA testing after 25 years in prison.

The court's decision to grant relief to Steven Phillips makes him the 35th Texan officially exonerated by DNA evidence and the 221st nationally, according to the Innocence Project, a New York-based legal center specializing in wrongful convictions. Texas has the most such exonerations of any state.

The appeals court upheld the ruling of a state district court in Dallas, which recommended in August that Phillips' convictions be overturned.

Phillips was convicted in separate trials of sexual assault and burglary and sentenced to 30-year sentences stemming from a 1982 attack on a Dallas woman. He then pleaded guilty to nine similar sex crimes, fearing he would receive life sentences if convicted by a jury.

Last year, DNA testing excluded Phillips as the perpetrator in the crimes for which he was convicted. Additional DNA testing earlier this year linked the sexual assault and burglary to Sidney Alvin Goodyear, who died in prison in 1998.

After a lengthy investigation over the last year, Dallas County prosecutors now believe Goodyear committed all 11 crimes that sent Phillips to prison.

Phillips is one of 20 men in Dallas County since 2001 whose convictions have been tossed aside by state district judges based on DNA testing of evidence, although one of those men will be retried by prosecutors.

Wednesday, October 1, 2008

Exonerated Man off Death Row

Speaker shares compelling story

October 1, 2008

Ann Wallace The Leaf-Chronicle Clarksville, TN

He spent more than 17 years behind bars on death row in a Florida prison for a crime he did not commit.

He is Juan Melendez who will be the featured speaker at two community forums scheduled at 2 p.m. and 7 p.m. Oct. 7 that free and open to the public.

Melendez was exonerated and released in 2002.

“He is very passionate about that not happening to someone else,” said the Rev. Jodi McCullah, director of the Wesley Foundation, the United Methodist Student Center adjacent to Austin Peay State University campus.

McCullah said the forums will be held in the Gentry Auditorium located in the Kimbrough Building on campus.

“We wanted to provide a thought provoking educational program on campus and this issue is something that I feel strongly about,” said McCullah.

Melendez has a compelling story to share.

“He spent 17 years, eight months and one day on death row for a crime that he did not do. His story is particularly interesting,” said McCullah who advocated a life without parole option instead of capital punishment.

The number of people released from death row across the country when evidence of their innocence emerged now stands at 130, according to McCullah.

Stacy Rector, executive director of the educational advocacy organization Tennessee Coalition to Abolish State Killing, said 2007 data indicates Tennessee has 90 people currently on death row status which includes two women.