Last week, we broke down two troubling aspects of the Daniel Marsh case. The frequent response when we have raised the issue of the confession has been whether we believe that he falsely confessed – in this case, no, we do not. There was enough other evidence to convict Mr. Marsh – which actually makes the way the confession was handled all the more troubling, as it was unnecessary.
It is as though the result is the only thing that matters in a case involving, at that point, a 16-year-old juvenile. Empirically, we know that false confessions happen and we know that they are far more frequent among juveniles. During the suppression hearing, the prosecution made the case that Mr. Marsh was more sophisticated than many other juveniles – nevertheless, he was not an adult.
During that suppression hearing, Andrea Pelochino of the Public Defender’s office argued that Daniel Marsh’s youth, inexperience and mental health challenges made him uniquely susceptible to the suggestions of law enforcement and a veteran FBI special agent.
Ms. Pelochino cited research on juvenile susceptibility versus that of adults to confess or possibly falsely confess under pressure. She argued that his apparent sophistication does not matter.
She argued that his past experiences with law enforcement made him more and not less vulnerable. He had developed a level of trust for Officer Ellsworth, who used that trust to lure Mr. Marsh to the police station under a false guise that he would be dealing with a wholly different matter. He told him that he would call his mother as a way for Mr. Marsh to relax, but did not do so.
So the first problem here is that Daniel Marsh was a juvenile. His mother was not allowed to be present. He had no lawyer. There was no one acting in loco parentis here.
The second question is that, while he initially waived his Miranda rights, at what point did he reassert them? When the judge ruled on whether Marsh reasserted Miranda, he noted that, under Miranda v. Arizona, there is no magic word or combination of words that create the renewed right to remain silent after Miranda rights are initially waived.
He then evaluated whether the repeated requests to go home were the invocation of the right to remain silent. He evaluated the circumstances in which his requests were at first ignored; then eventually he was told that he could not go home, that he was going to be arrested and detained at the juvenile detention facility.
Judge Reed ruled that this request was ambiguous or equivocal.
But the experts we talked to at the time were skeptical of the judge’s ruling on Miranda, noting that courts have to give juveniles the benefit of the doubt, that they may not know their rights or be able to assert them the way an adult would.
Judge Reed ruled, however, that in this case the evidence does not show the defendant having difficulty communicating, and therefore he never invoked his right to remain silent when he asked to go home.
The third problem here is the length of the interrogation. His was only five hours, but for a juvenile to be under that kind of pressure and separated from support mechanisms is a long time. Eventually not able to end the interview, not able to assert his right to remain silent, he broke down.
What is particularly troubling here is the way that the police managed to do this. As Ms. Pelochino would argue at the suppression hearing, the police and FBI agent carefully crafted a theme to capitalize on Mr. Marsh’s youth, inexperience and mental health infirmities. The FBI agent lured him into a false sense of security, offering to “help” Mr. Marsh and to “heal” him.
We heard this when the confession was played during the trial.
We see this at play during the confession when Mr. Marsh at times wanted to leave, and at times wanted his attorney or his parents present, but was denied all of those. In a hearing this past spring, Judge Reed allowed the confession, but we can see the problems.
Veteran FBI Special Agent Chris Campion repeatedly told Daniel that he was his healer: “Now, Daniel, this is your time to heal, I am here to heal you, this is your refuge.”
This is a common tactic by interrogators – they create conflict and attempt to back the individual into the corner so that he or she sees the only way out of the situation is to confess.
As we noted last week, “Youth are more naive, trusting, fearful and more easily misled. Investigators can more easily suggest to juveniles that they face harsher consequences if they don’t confess, and much lesser consequences if they do. After hours of interrogation, studies have shown, many youthful suspects will conform their stories to cues from detectives, believing they can then finally go home.”
Police and prosecutors like to use a totality of the circumstances argument, and here we offer one.
Daniel Marsh was a 16-year-old. He was lured to the interrogation room under false pretenses and agreed to waive his Miranda rights, believing he would be interrogated on a knife incident. He was kept in the interrogation room for five hours, denied his mother, an attorney, or the chance to leave.
The veteran FBI Agent Campion then gave him an out and promised to heal him, ultimately inducing him to confess to the crime.
As we have noted, there are a number of false convictions that end at this point. They have the confession and little other evidence. Sometimes the jury weighs the confession so heavily that they ignore exculpatory and contradictory evidence.
In this case, you have physical evidence, and the fact that Mr. Marsh had bragged to his friends about the crime, to bolster the confession, but other than the fact that the confession was videoed, the police abandoned evidence-based practices in how they went about obtaining the confession. Under other circumstances, we would be alarmed more than we are at how this was conducted.
It is clear that many in the community are satisfied at the bottom line that a heinous murderer was caught and convicted and will not be able to kill again. Nevertheless, as we look forward, we should be troubled by the treatment of this 16-year-old.
—David M. Greenwald reporting