Where Mistakes Are Almost Never Made

Paul Kennedy refers to it as "the (in)justice system."  Which pretty well makes the point.

But he's like me.  Just a simple little blawgger.  Read, I suspect, mostly by folks who already agree with us about these things.  So for most of the other blawggers I encourage people to read.  They write well and honestly about things that people should hear.  They think carefully.  They have things to teach even to those who generally get it.  You can learn from them.  I do.   

Still, when they we talk about false confessions or the evisceration of the 4th Amendment or some innocent person being killed by the police for not understanding English or how the court just rode roughshod over the law to ensure that some poor sod can continue to get fucked or . . . .

For the most part, we're preaching to the choir.  Of course, some have a bigger choir than others, but the point remains.  What's really necessary is to reach beyond.

So, on Sunday night, turn on your TV and tune it to Al Jazeera America for the first episode of The System with Joe Berlinger.*  

Berlinger's the guy who made Paradise Lost: The Child Murders at Robin Hood Hills.  This time he's taken on not just one case but the whole shebang.  He told Capital New York

Having made a number of films about the justice system, I have become aware of problems, so we started with that. What are the issues? Paradise Lost involved a false confession, and in my opinion some alleged prosecutorial misconduct. So I wanted to use the series to look at those issues at a systemic level. How do we get wrongful convictions? Or misapplication of justice? It is not just a wrongful conviction series, it is about the misapplication of justice. We spoke to experts, and I have my own set of knowledge. Instead of just focusing on a case and what the problems were, i wanted to to focus on an issue and find cases around the issue.

The System isn't a single documentary, it's a series of 8 to be shown once a week each on a different topic, each focusing on, it seems, two specific cases.  Berlinger talks to the folks who were convicted, to their devastated families, to their lawyers, to reporters who covered the cases, to investigators. He talks to law enforcement and (if they'll let him) prosecutors.  And he talks to the families of victims who typically remain convinced, regardless of evidence to the contrary, that the cops nailed the right person.  
It is as restrained and calm and quiet as can be.  Narrated by and with the regular presence on camera of Berlinger himself.  Scraggly beard.  Soft spoken.  Restrained.  And all the more damning for that.

The first episode, "False Confessions," looks at the case of Kirstin “Blaise” Lobato from Las Vegas. She was convicted of the rape and murder of a homeless man based largely on her supposed confession. Except it seems she wasn't.  It appears, instead, that what they took to be a confession was in fact a description of her own rape a month earlier on the other side of the city.  They might be able to find out what really happened if the prosecutor would just test the fucking DNA.  Though if they did, it might turn out that . . . . 

The other story in that episode is Jeff Deskovic's.  I've mentioned him here a couple of times before, and a few years ago I had the pleasure of having a drink with him at a celebration when Illinois repealed its death penalty law.  (He probably doesn't remember me.)  Jeff was in high school when he confessed to raping and murdering a classmate.  That confession led to 16 years in prison.  In his case, they did finally test the DNA.  Which wasn't his.  Cause he didn't do it.

It's powerful stuff.  

The second show, about Mandatory Minimums, is less successful.  Again it looks at individual cases.  Orville Lee Wollard is spending 20 years in a Florida prison because he fired a warning shot - inside his own house - into the wall. Didn't hurt anyone.  Scared the guy who was preparing to attack his daughter.  Let's run that down again.  Inside his own home.  Warning shot into the wall.  Hurt nobody. 20 years. On the other hand, if the guy who shot and killed 16-year-old Hadiya Pendleton in Chicago had gotten a 20 year sentence for his earlier gun offense he'd have been in prison and Hadiya would likely still be alive.  The contrast isn't really fair.  

The problem in Chicago isn't that Hadiya's killer didn't get a mandatory minimum.  Oh, a longer sentence in that case (or the other case in Chicago Berlinger presents) might have prevented that particular shooting.  But criminal laws and penalties built on individual tragedies pretty much always have severe and deeply troubling unintended consequences.  In any event, the Florida and Chicago cases aren't really comparable.  And frankly, the most serious problems with mandatory minimums aren't in gun cases but in drug cases. 

And then there's Flawed Forensics.  In this instance, it's hair comparisons that sent John Huffington to prison in Baltimore for 30 some years and Willie Manning to death row in Mississippi.  The bullshit comparisons were done by the FBI.  As were thousands of others.  And countless more by state criminalists trained incompetently by the FBI.  DNA in Huffington's case showed that hair wasn't his. He's out now, awaiting retrial (there is that messy fingerprint still to deal with).  Mississippi doesn't want to do DNA testing. Manning's execution was called off with just a few hours to go when the FBI sent out word that it's false testimony led to his conviction.  But he's still on the row.  And Mississippi won't allow the DNA testing because . . . you know.

And there are the victims' families.  Who insist, bullshit hair comparisons and DNA exclusions be damned.  Willie Manning should be executed.  Today.  John Huffington should be back in prison and never again see the light of day.

Of course, we know that hair comparison is the least of it.  Fingerprints, bite marks, breathalyzers, even when the science is good (it mostly isn't) its subject to human error and dishonesty.  There are the pathologists who don't cut open the bodies.  The drug analysts who don't bother actually analyzing the drugs.  And then there's the FBI.  It's lab's problems are by now well known.  They have been since Fred Whitehurst blew the whistle, got forced out, sued and won 1.16 million dollars.  And, again, it's their lab that did the hair comparisons that provided the key evidence that got Manning and Huffington convicted.

If there's a story to The System it's that the system ain't all it's cracked up to be.  Those of us who deal with it every day know that.  So do it's victims.  Other people need to know it, too.

Fred Whitehurst, on camera near then end of the Flawed Forensics episode makes the point.

We need systems that we trust.  But we don't need to trust them blindly.

There's a pretty good case to be made that we can't fairly trust them at all.  Joe Berlinger's making a pretty good start at getting the word out.



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*My thanks to the publicists at Al Jazeera America who sent me screeners of the first three episodes. 

Even Though She's a Satanist, She May Not Be a Mass Murderer

That's Miranda Barbour.  She's 19. The mother of a 2-year old.  The cops say that she and her husband Elytte killed Troy LaFerrara, apparently an almost randomly unlucky guy.  She stabbed him 20 times while her husband strangled him. They got to him through an ad they pub on Craigslist. They'd planned to kill other folks during their three weeks of marriage.  They wanted to, as a couple, kill someone.  The other plans didn't work out.  This one did.  C'est la vie.

She claims to have killed at least 22 times since she was 13, though not as many as 100.  (She says she stopped counting after 22.)  As part of a Satanic cult, she says.  Murders in Alaska and Texas and North Carolina and California and, of course, Pennsylvania where she and Elytte are supposed to have killed LaFerrara. 

The FBI is investigating all those killings.  So are local authorities.  She says she can show them where the bodies are.  Help clear up the backlog of unsolved cases.  Bring peace to the families of the victims. 

Except, you know, maybe you guessed, there don't seem to be any unsolved homicides that match. And Miranda?  Her father, Sonny Dean, says her story isn't true.  It can't be true.  Francis Scarcella, of the Daily Item, 

The father of Barbour’s child, also a satanist, was murdered, she said during the jailhouse interview.
“I didn’t kill him,” Barbour said. “But I know all about it.”
Barbour wouldn’t provide details of the alleged murder, but her father said: Believe very little of what Miranda says. She has a long history of extreme manipulation and dishonesty. I would be very surprised if any evidence was found concerning other victims in the states of Alaska, Texas, California and North Carolina.” All are states in which Barbour said she had killed someone.
Miranda, her father said, is simply a liar.
“Miranda lives in a fantasy world made up in her own mind,” Dean said. “She craves attention, is selfish, dishonest and manipulative,” he said.

Oh, maybe one guy in Alaska.  That time when she was 13 and ran away from home.  She might have killed then.  But really, that's the only chance she'd have had.  The rest of her life she's either been locked up or watched like a hawk.

“She is good at manipulating people,” her father said. “She is the most manipulative person I have ever known.”
His daughter has spent most of her life in and out of treatment facilities after she became hooked on heroin, Dean said.
“But she was able to talk the doctors into letting her out of treatment,” he said. “We couldn’t stop it from happening and she was out.”

What to do?  As they didn't quite sing in The Sound of Music, How do you solve a problem like Miranda? 

After all, she's either a mass murderer or she's that crazy, drug-addicted, lying, manipulative, bitch living in a total fantasy world her father says she is.

Northumberland County DA Tony Rosini knows the answer.  The Barbours should be killed.  He's going after the death penalty for both of them.  And Sonny's cool with that - or at least cool with killing his daughter.

As a Christian, he said in a written statement for LaFerrara's family, he's struggled with the death penalty.  Now he's at peace with it.

However, as the reality of it settled in over the past few weeks, I believe God has brought me peace with the fact that capital punishment, if chosen by the jury, is an appropriate end in this situation. In that case, I would stand side by side with you, take your hand, and silently pray that some good may come of this.

Which has a certain generosity of spirit toward the LaFerrars if not exactly towards his daughter.  But then, she is a Satanist.  

Satanism is real,” he said. “It is a growing cult that will go to great lengths to seize our children. You don’t have to be affiliated with the ‘Church of Satan’ to worship him.

Sigh.

Meanwhile, Miranda's mother and grandmother drove 600 miles from North Carolina to Sunbury to see Miranda in the local jail.  They were told to hurry.  So they did.  Arriving shortly after she was transferred to a state prison where, they learned, they won't be allowed to see her for 10 to 12 days.   

No word yet on whether they think Miranda should be killed.  Even if she is a Satanist.

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.

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.