Ooops

My client had confessed.

Let me back up.  The baby was brought to the emergency room, where the doctor tried but simply couldn't save her.  The doc did decide two things though.

• She'd been killed.
• She'd been raped.

Suspicion quickly settled on my client.  He met with the detective at the station.  After a couple of hours, he confessed to killing the child to get her to stop crying.  But he wouldn't concede that he'd raped her.  That's just not something he'd do.  No way, no how.

He demanded a lie detector.

The detectives left and a different one came in carrying a box he set up on the table in the interrogation room.  This, he explained, is a voice-stress analyzer.  It's better than a lie detector, he said, because it's perfect.  Never wrong.  100% accurate.

Cool, figured my client.  I'll be cleared now.  I certainly never raped that baby.

So he answered the questions, admitted the killing, denied the rape.

You lied about the rape, the detective said.  We can tell.  The machine is never wrong.

And after a while, with goading and suggestions from the detective

Of course you didn't mean to rape her.  It was just an accident, right, while you were changing her diaper?  We've all done that.

And he admitted it.  Yeah, that's what happened.  I was so ashamed.

Except, see, it didn't happen.  The child wasn't raped.

Once the pathologist examined the body, it was clear.  The doc at the ER, young, new, inexperienced, just made a mistake, saw A and thought B. 

Don't try this at home.  Most of those mistakes don't get caught.  Pathologists, including the one in this case, are too often inclined to discover whatever the police tell them they're likely to find.

My client isn't alone.  Those of us who till the fields of criminal defense know, have known for some time, that innocent people confess.

Check out the DNA exonerations.  About 35% of the folks who were convicted of crimes and then exonerated by DNA had confessed.  And as John Schwartz writes in today's New York Times, "Confessing to Crime, but Innocent," the confessions aren't just boilerplate.  Schwartz reports on a study and law review article by Brandon Garrett who collected and analyzed false confessions.

Professor Garrett said he was surprised by the complexity of the confessions he studied. “I expected, and think people intuitively think, that a false confession would look flimsy,” like someone saying simply, “I did it,” he said.

Instead, he said, “almost all of these confessions looked uncannily reliable,” rich in telling detail that almost inevitably had to come from the police. “I had known that in a couple of these cases, contamination could have occurred,” he said, using a term in police circles for introducing facts into the interrogation process. “I didn’t expect to see that almost all of them had been contaminated.”

I suspect that's because Garrett hasn't spent the time in the trenches that I have.  But read the abstract and you see the problem.

A puzzle is raised by cases of false confessions: How could an innocent on convincingly confess to a crime? Postconviction DNA testing has now exonerated over 250 convicts, more than forty of whom falsely confessed to rapes and murders. As a result, there is a new awareness that innocent people falsely confess, often due to psychological pressure placed upon them during police interrogations. Scholars increasingly examine the psychological techniques that can cause people to falsely confess and document instances of known false confessions. This Article takes a different approach, by examining the substance of false confessions, including what was said during interrogations and how the confession statements were then litigated at trial and postconviction. Doing so sheds light on the phenomenon of confession contamination. Not only can innocent people falsely confess, but all except two of the exonerees studied were induced to deliver false confessions with surprisingly rich, detailed, and accurate information. We now know that those details could not have likely originated with these innocent people, but rather must have been disclosed to them, most likely during the interrogation process. However, our constitutional criminal procedure does not regulate the postadmission interrogation process, nor do courts evaluate the reliability of confessions. This Article outlines a series of reforms that focus on the insidious problem of contamination, particularly videotaping interrogations in their entirety, but also reframing police procedures, trial practice, and judicial review. Unless criminal procedure is reoriented towards the reliability of the substance of confessions, contamination of facts may continue to go undetected, resulting in miscarriages of justice.

See, I remember the guy in Texas who was shown photos police took at the crime scene.  Then detectives took him there. Police questioned him at the scene.

Is that spot, next to the couch, was that where the Pepsi cup was?

Well, sure.  He knew the answer.  They'd shown him a photo of the cup next to the couch not thirty minutes before.  But it sure helped the jury believe.

Hell, it helps them believe even when the confession's details are false.  Schwartz tells the story of Earl Washington, Jr.

Some defendants’ confessions even include mistakes fed by the police. Earl Washington Jr., a mentally impaired man who spent 18 years in prison and came within hours of being executed for a murder he did not commit, stated in his confession that the victim had worn a halter top. In fact, she had worn a sundress, but an initial police report had stated that she wore a halter top.

And, of course, that's the problem.  Justice Kennedy laid it out in Arizona v. Fulminante where the issue was a coerced confession.  The Court used the case to overturn settled law and decide that a conviction after the wrongful admission of a coerced confession didn't require automatic reversal but was subject to what they call "harmful error analysis."  Kennedy wrote about the analysis.

That said, the 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 video-tape of the crime, one would have difficulty finding evidence more damaging to a criminal defendant's plea of innocence.

The problem is real.  The jury believes, wants to believe.  And so do the courts.  And the police and the prosecutors.  Don't believe me?  Here's Schwartz again.

In one such case involving Jeffrey Deskovic, who spent 16 years in prison for a murder in Poughkeepsie, prosecutors argued that the victim may have been sexually active and so the DNA evidence may have come from another liaison she had. The prosecutors asked the jury to focus on Mr. Deskovic’s highly detailed confession and convict him.

But really, it just doesn't happen.  I mean really, these folks were waterboarded or something, right?  And even then.  But maybe you should check with Earl Lowery.  He spent 10 years in prison before DNA exonerated him.  Schwartz again:

He has trouble putting the past behind him. “I was embarrassed,” he said. “You run in to so many people who say, ‘I would never confess to a crime.’ ”

He does not argue with them, because he knows they did not experience what he went through. “You’ve never been in a situation so intense, and you’re naïve about your rights,” he said. “You don’t know what you’ll say to get out of that situation.”

Just another innocent guy who did the time.

But he did confess.