We have been following the case of Bennie Moses, in which the trial began early last week. Mr. Moses faces multiple lifetimes in prison if convicted of charges that included raping and having sex with his daughter from the time that she was 12 until she was 21. He was arrested in July of 2009.
We will have a fuller discussion of the nature of the charges and the arguments in this case when the case concludes and the jury reaches its verdict.
At one point, this seemed to be a relatively straightforward, even open and shut case. But this case has become less clear as time has gone on.
One problem arose from the questioning of Mr. Moses’ mother, Mattie Graham. It appears that the prosecution had a rather limited purpose for bringing in Ms. Graham as their witness. It is certainly far from clear that she helped the prosecution and she probably overall helped the defense.
Toward the end of questioning on re-direct, Ms. Serafin appeared to grow impatient with Ms. Graham’s defense of her son. She asked her if her son had told her that he had admitted to having sex with his daughter (her granddaughter) to the police.
Ms. Graham said no and began to cry.
She then asked if she would think that was wrong. And she said, “of course I would” and began sobbing uncontrollably.
In the context of her testimony, that little bit at the end probably added nothing. She had no direct knowledge either way as to whether her son did or did not have sex with her granddaughter.
Moreover, of course there is a gray area and context to the defendant’s “confession” to the police, which we will talk about in greater detail at a later point, but needless to say, as the video shows and Mr. Moses himself testified, the confession came at the end of a nine-hour interview session that started at 6 pm and ended at 3 am.
The confession also took place after he was told he was not under arrest, that he was free to leave, and then when he tried to leave they prevented him from doing so. Frankly, he should have demanded an attorney, but the entire circumstances were more than a bit questionable.
The mother did not know any of this, and as I said, the question to her really did not change her testimony – all it did was make the woman miserable.
It seemed for a time that even Ms. Serafin sensed this, however, that idea was put to rest yesterday.
The defense had called Chereese Camacho, one of Mr. Moses’ ex-wives, to testify. And she was a firebrand on the stand, very powerful and assertive.
During the cross-examination, once again Michelle Serafin went for the jugular, asking Ms. Camacho if Mr. Moses had told her that he admitted to the police that he had had sex with his daughter.
However, Ms. Camacho was clearly ready for the question, as she did not blink. She said she was aware of what happened at the police station.
But then she said that it did not change her mind, because she did not believe it.
When asked why that was, she boldly said, “I would question the circumstances under which it was derived.”
Ms. Serafin pressed her luck one too many times, and the second time it got flipped on her.
Originally, the jury was only allowed to see the six minute “confession” of Mr. Moses. However, defense attorney, Deputy Public Defender Emily Fisher, fought for and got the judge to show an extended version of the video. It showed an additional forty-minutes, that had been clipped where he had denied committing any crimes.
Judge Mock announced at the outset that he had selected the edit points, but even this extended version of the video does not do justice to the extent and length of the interrogation.
Ms. Serafin, as she cross-examined Mr. Moses, tried to trip him up with regards to his confession. She hammered on him, asking him why he lied to the police about committing the crime. He told her that he decided to go along and tell them what they wanted because he just wanted it to end and get it over with.
He also said he realized that they were lying to him.
There was a section at the beginning of the interview that was not shown in court, in which Mr. Moses asked if he were under arrest. The officer told him that he was not under arrest and he could leave at any time. Soon after, a sergeant came in and told him he’s not going anywhere.
There is a growing amount of evidence questioning confessions and their veracity. The Innocence Project, for instance, sites that 25% of their exonerations of Death Row cases are due to false confessions.
Back in September, we excerpted from a New York Times article, “Confessing to Crime, but Innocent.” In it they highlight the case of Eddie Lowery, who spent ten years in prison for a crime that he did not commit. The only evidence to tie him to a rape was a confession.
The Times reports, “At trial, the jury heard details that prosecutors insisted only the rapist could have known, including the fact that the rapist hit the 75-year-old victim in the head with the handle of a silver table knife he found in the house. DNA evidence would later show that another man committed the crime.”
In a lot of these cases, incriminating facts can get into confessions through poor interrogation techniques that give defendants all the information they need to produce facts “that only the perpetrator could know.”
“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,” Professor Grandon Garrett of the University of Virginia wrote. “However, our constitutional criminal procedure does not regulate the postadmission interrogation process, nor do courts evaluate the reliability of confessions.”
The problem in this case is that the individual did not even confess to the core crime, nor did he add any details that would verify that he was actually confessing.
Despite Ms. Fisher’s win on getting the jury to see more of the interview, the jury is not being allowed to see the full nine hour interrogation, so it is difficult for them to evaluate the context under which he ultimately confessed, not to the crime of rape, but to the lesser crime of having sex with his daughter (after she turned 18).
Before we get too far afield with this discussion, I bring in the details of the confession mainly to show how gray an area this was. It is increasingly my belief that confessions made outside of the presence of an attorney should be inadmissible precisely for the reasons the professor cites.
However, this is not a story which bears on the ultimate guilt or innocence of Mr. Moses. The readers should recognize that there is additional evidence that could be used to convict Mr. Moses, even if the jury ultimately decides that they cannot rely on the confession.
For that we will wait until the verdict to evaluate the evidence and testimony that arose in this case.
—David M. Greenwald
“Ms. Serafin as she cross-examined Mr. Moses tried to trip him up with regards to his confession. She hammered on him, asking him why he lied to the police about committing the crime. He told her that he decided to go along and tell her what she wanted because he just wanted this to end and get it over with. He also said he realized that she was lying to him.” By “lied to the police,” she was being sarcastic? Was Ms. Serafin at the confession? Please clarify who the “she’s” are here. Thanks.
You caught that one before we changed it, the second she was the police detective, actually she was an interrogation specialist of some sort.
dmg: “Back in September, we excerpted from a New York Times article, “Confessing to Crime, but Innocent.” In it they highlight the case of Eddie Lowery, who spent ten years in prison for a crime that he did not commit. The only evidence to tie him to a rape was a confession.”
In New York as in CA, a person who does not plead guilty cannot be convicted on his/her confession alone…
“Moreover, of course there is a gray area and context to the defendant’s “confession” to the police, which we will talk about in greater detail at a later point, but needless to say, as the video shows and Mr. Moses himself testified, the confession came at the end of a nine-hour interview session that started at 6 pm and ended at 3 am.”
Whether an interrogation is coercive in nature (including overly long) depends on various factors:
1) Were bathroom breaks permitted?
2) Did defendant confess only after being subjected to hours and hours of interrogation (sleep deprivation)?
The confession must be a product of the defendant’s free will.
The problem with these type of stories are that most people hear the crimes and say the guy should be convicted and should go to jail. Which I agree with. This emotional and “shocking the conscious” that crimes like this tend to get a reaction rather than reason.
That is why it is so critical to have checks on the Gov, DA, and Prosecutors. It is far to easy to say “as long as the guilty guy goes to jail” don’t nitpick.
The bigger issue and problem is, the more unethical DAs can use this emotional reaction and bend or ignore the rules, knowing most people will just say who cares, the guy is a dirt bag and he should go to jail. This is the smoke and mirrors that the DA uses to conceal his unethical actions, just as many politicians do.
Every time a politician gets caught, they yell “this is political”. Key words such as these fool many that are not paying attention and stop looking for the truth. In reality, who cares if it is political, is it True?
I think the appeal courts will throw out the confession. A nine hour interrogation done into the early morning hours will probably be ruled as coercion. Things the court will consider when making this determination will be was there custody, was the suspect free to leave, did he ask for counsel, was he give bathroom breaks, was he offered food, was he given water, how many cops were in the room, how many different cops had a shot at him, did he try or request to leave, the tactics uses, was it reasonable, and the Suspect’s state of mind. It does not matter if the Government said he could leave and was not arrested, it only matters what he and a reasonable person would believe.
The bottom line, this type of behavior by the DA is normal and troubling. It has become so common place that most don’t even question it. This type of lawyer tricks to hide most of the interview, only show the good parts, manipulate and degrade witnesses all point to the “win at all cost, damned the rules and ethics”. This is a very slippery slope.
RR: “The bigger issue and problem is, the more unethical DAs can use this emotional reaction and bend or ignore the rules…”
Please be specific as to what “rules” you think the DA has broken in this case?
Let me be a little more specific in what I am driving at. I get that you are uncomfortable about how this interrogation went down. But unfortunately there are no specific “time limits” on interrogations that I know of. So it becomes a question of the “totality of the circumstances”, which is fought out in court after the interrogation has already taken place. My thought has always been law enforcement/DAs need more specific “rules” as to what they can and cannot do during an interrogation, rather than just leave it up to the “totality of the circumstances”.
The case of Monica Lewinsky comes to mind. 17 FBI agents descended on her, and took her to a hotel room to be “questioned”. When Kenneth Starr was asked whether Lewinsky was unlawfully detained, his answer was “she was always free to leave”. That statement does not pass the smell test. A young 21 year old female cornered by 17 FBI agents in a hotel room is not going to believe she is “free to leave”. No reasonable prudent person would think they had the right to leave in such a situation.
Clearer rules need to be spelled out for law enforcement/DAs when it comes to interrogations bc of the potential for abuse IMHO.
“Please be specific as to what “rules” you think the DA has broken in this case?”
I don’t think the DA has broken any rules in this case. I do think she was unnecessarily mean in some of her questions, but there is no rule against being mean.
The problem is as the professor indicated there is no clear guideline spelled out for when a confession should be permissible and when it should not. To me,this is another example where the rules of the court have trailed being the findings of science. We tend to take people at their word when they confess and yet it may be that the confession was coerced by putting undue stress on the individual. Jurors are just laymen, they should have to be arbiters of such scientific studies on confessions that are just now really emerging.
“Clearer rules need to be spelled out for law enforcement/DAs when it comes to interrogations bc of the potential for abuse IMHO. “
Completely agree.
What of this over 18-year-old daughter? What is her testimony?
Totally off topic, but of interest to the Vanguard: The Sac Bee is reporting that the legislation which removes some collective bargaining rights for most PEUs in Wisconsin was just passed: [quote] MADISON, Wis. — The Wisconsin Senate voted Wednesday night to strip nearly all collective bargaining rights from public workers, approving an explosive proposal that had rocked the state and unions nationwide after Republicans discovered a way to bypass the chamber’s missing Democrats.
The Senate requires a quorum to take up any measures that spend money. But Republicans on Wednesday separated from the legislation the proposal to curtail union rights, which spends no money, and a special committee of lawmakers from both the Senate and Assembly approved the bill a short time later.[/quote]
Rules, code of ethics, fair play, doing the right thing, seeking the truth verses seeking the win, bending the truth, out and out lying, concealing facts that hurt your case verses being open and honest letting the chips fall where they may………
All of the preceding can be interpreted differently and seen differently by each individual. Some will feel stronger about some than others. So when you add in all the legal terms, hearsay, exculpatory issues and other things that come into to play, how can anyone say what the rules are, much less when they are broke. It is against the law to lie under oath and commit perjury, yet many, including the DA, get on the stand and say “I don’t remember” or “I have no recollection of that”, in fact that is and usually is a lie, but lawyers have found this loop hole and since no one can “prove” what you remember, the lie cannot be proved. So lying is a crime, but it is legal to lie and say you can’t remember since that cannot be proven. This is unethical to me.
So just as this so called law can be bent or worked around, so can many others, such has prolonged and unreasonable interrogations, or not putting witnesses on the stand by the DA because it hurts his case, or putting the witness on trial and degrading, badgering or “legally” intimidating a witness to make them either look bad to the jury or to get even for them not saying what you want and finally the DA can influence his investigator to find what he wants and to ignore what he does not want, therefore corrupting the entire process, not to mention cutting outrageous plea deals with people who everyone knows is lying just to get the deal, but the DA is going to go after his star witness for lying since it would hurt his case, so every smiles, judges take the plea and it is used against some other guy, regardless if he is guilty or not. Of course proving this is another story. Many people think if you can’t prove something it must not be true.
The system is too easy to manipulate by corrupt or unethical DA’s, but the same system that should enforce DA behavior is almost required to protect DA behavior for reasons like, to protect the system or keep faith in the system, to prevent lawsuits, DA are in the same fantasy category that some corporations are in and that category is “Too big to fail” so the rules do not apply and they break the rules they get bailed out.
So, David, what are the “Prosecutorial Tricks” you’ve promised us? Please be specific. Just list in concise form, if you please.
And, what is the “Another Reason Why Confessions Ought to Be Limited For Establishing Guilt” you’ve discovered. Please be specific.[quote]“If there was one moment when Illinois’ death penalty began to die, it was on Feb. 5, 1999, when a man named Anthony Porter walked out of jail a free man.” (Chicago Tribune)[/quote] One more off-topic item tonight, but this makes 15 states that won’t be killing innocent people anymore in the people’s name. Guess this means they’ve got to take care of the guilty ones for their entire lives too.
Will California do the same with a Democratic, former-AG in the Governor’s chair?
[quote]“It is against the law to lie under oath and commit perjury, yet many, [b]including the DA[/b], get on the stand and say “I don’t remember” or “I have no recollection of that”, in fact that is and usually is a lie….”[/quote]Mr. Rabbit, when did Mr. Reisig get on the stand? When did he do that, then commit perjury? Guess I missed the story. Did you read it in the [u]Enterprise[/u]? The [u]Vanguard[/u]? The [u]Bee[/u]? The [u]Daily Democrat[/u]? FindLaw? LexixNexis? Or, as usual, just in the deep recesses of someone’s fantasy world?
dmg: “I don’t think the DA has broken any rules in this case. I do think she was unnecessarily mean in some of her questions, but there is no rule against being mean.”
This is a matter of prosecutorial style. Some prosecutors play “good cop”; others choose to play “bad cop”. But prosecutorial style is generally a matter of discretion, not of law. Funny thing is, in my experience, the “good cop” routine plays better in court. Reminds me of the old adage “you get more w honey than w vinegar”!
I agree it was a matter of prosecutorial style, sometimes people are rude. There is nothing illegal about being rude, though it’s not necessary most of the time.
Was that one of the “Prosecutorial Tricks”?
If I had to choose it again, I would have chosen a different word than “tricks”
Trick: a cunning or deceitful action to device; an attempt to get you to do something foolish or imprudent; an illusory feat; considered magical by naive observers; to deceive somebody; An act or procedure intended to achieve an end by deceptive or fraudulent means; A stupid, disgraceful, or childish act or performance; A peculiar event with unexpected, often deceptive results; clever act designed to confuse; to practice trickery or deception; a deceitful, cunning, or underhand action or plan; a malicious plan to deceive; any clever maneuver to divert the real issue.
Sounds like it fits most any lawyer and should have a picture of DA Reisig next to the definition.
To Justsaying: Your theory of if it is not in the Dem or other local paper it must not be true. Pretty naive theory. But none the less put up or shut up, I said what I said, it is true and it is not tell Mr. Reisig to come after me……just remember, if it is true it is not liable or slander, so no case. So how is this for a theory of proof big boy, since Reisig ani’t coming after me, it must be true.
Go back and play in your sandbox.
[b]Mr. Rabbit[/b], I think you know it wasn’t the definition of “trick” that I’d requested of David. But, thanks anyway.
I was hoping for at least a tiny bit of truth to justify his allegation about “prosecutorial tricks” as well as to support his contention that he’d uncovered yet “another reason why confessions ought to be limited for establishing guilt.”
I admit I’m troubled that–while David wasn’t forthcoming–I’ve provided you one more opportunity to pass along another of your allegedly cute (but obviously unsupported) Reisig slams.
[quote]“Your theory of if it is not in the Dem or other local paper it must not be true. Pretty naive theory.”[/quote] Not positing a theory at all, just acknowledging that I haven’t read about Reisig committing perjury or trying to avoid it by claiming poor memory and asking you for your source. Now that I think about it more, I haven’t read anything about him being charged or convicted of any crime. Have you?[quote] “….put up or shut up, I said what I said, it is true and (if) it is not tell Mr. Reisig to come after me……just remember, if it is true it is not liable or slander, so no case. So how is this for a theory of proof big boy, since Reisig ani’t coming after me, it must be true. Go back and play in your sandbox.”[/quote]The fact that you haven’t been captured, [b]Mr. Rabbit[/b], doesn’t prove the truth of the things you keep saying about Reisig. Most likely, of course, he could not care less about you and what you say about him. Or, maybe, he couldn’t find your name in the phone book.
It’s a mystery to me why all of David’s “Judicial Watch” anecdotes set you off so and drive you to such personal attacks against Reisig and against your fellow blog participants who don’t happen to agree with your unsupported Reisig smearing tactics. I think I just have to give up trying to figure it out.