Once More Into the Breach

[T]he court conducting a harmless-error inquiry must appreciate the indelible impact a full confession may have on the trier of fact, as distinguished, for instance, from the impact of an isolated statement that incriminates the defendant only when connected with other evidence. If the jury believes that a defendant has admitted the crime, it doubtless will be tempted to rest its decision on that evidence alone, without careful consideration of the other evidence in the case. Apart, perhaps, from a videotape of the crime, one would have difficulty finding evidence more damaging to a criminal defendant's plea of innocence.

Justice Kennedy, concurring in Arizona v. Fulminante.

Fulminante concerns coerced confessions. It acknowledges, as the courts have acknowledged for years, that coercd confessions are never admissible in court because they're unreliable. When sufficiently pressured, people will say what the questioner wants to hear, regardless of whether it's true. (Take that, waterboarding.) Everyone on the court agreed with that principle.

But Kennedy's concurrence addresses another of the case's issues (it's a strange case with fractured opinions addressing three separate issues and Justice Souter neither opining nor voting on one of them): what's the effect of a confession on a jury. And his point is pretty much beyond argument. It's believed. True or false, the jury believes it.

Why wouldn't they? People don't just go around confessing to crimes they didn't commit. Juries know that. We all know that. And, oh, yeah, we're all wrong.

Obviously not everyone confesses to everything, but lots of people confess to lots of things that just aren't so. Over 200 people confessed to kidnapping the Lindbergh baby (though the man who was charged, convicted, and executed for the crime wasn't one of them). Five young men confessed to raping and brutally beating and leaving for dead an investment banker jogging in Central Park, and served years in prison for the crime they didn't commit. I once had a client who confessed to raping an baby who, police, medical professionals, and prosecutors all properly concluded, had not been raped. In some 25% of the cases of DNA exonerations, the wrongly convicted had previously confessed.

Of course, lots of guilty people confess, too. It's a reasonable assumption, I think, that most confession have at least some truth to them. But the false ones are serious problems. They distract police, lead to the prosecution and conviction of the innocent, and leave the guilty free.

How extensive is the problem? Nobody knows. What we do know is that it's real.

But there's another sort of false confession, too. The one that never occurred. Jailhouse snitches and others seeking revenge or hoping for assistance from police and prosecutors are all too often willing to come forward with the information that someone confessed to them. (The snitching problem is pervasive, and one of these days I may give it a post of its own. In the meantime, read the Snitching Blog.)

Which brings us, once again, to Cameron Todd Willingham. The latest alleged evidence proving (I'm not sure whether it's "evidence" or "proving" that should be qualified with quotation marks) that he killed his kids and was, therefore, properly executed, is his confession. Here's the story. shortly before the execution, Willingham's ex wife visited him. According to her husband, Willingham confessed to her on that occasion. She denies that, and she (unlike her husband) was there. (The whole thing is carefully laid out by Scott Henson at Grits for Breakfast.)

Of course, this isn't news. The claim that Willingham confessed was made and fully discredited back in 2004. But lies have a way of coming back at you. Again and again. Just think about the birthers, the death panel insisters, the truthers, the Holocaust deniers.

And Governor Perry and now-Judge Jackson and David Martin and the Corsicana Sun.

And people will believe.

And it's a damn shame.