“Looking back” will feature reprints of articles that Jeff previously wrote while a columnist at The Westchester Guardian, which encompass topics that are applicable here in CA as well as across the country and not simply applicable to NY.
By Jeffrey Deskovic
The American Psychological Association, together with the University of Ohio, recently sponsored a conference in El Paso, Texas, on False Confessions, featuring a virtual Who’s Who in the field. It was a verse crowd including false confession experts, clinicians and researchers, defense attorneys, police officers, The Texas Innocence Project, The Justice Project, and a representative from a local Texas District Attorney’s office. I was invited as the Keynote Speaker.
Allison Redlich gave a presentation on the relationship between false confessions, false guilty pleas, and the mentally ill. She also discussed some of the reasons that the mentally ill plead guilty to crimes that they are innocent of involving the fact that their stay in jail tended to be longer than that of other people since few cared enough about hem to bail them out. And wanting to get out of jail, some figure that they have served most of the time already anyway.
Still others reason that their public defender is inept and that they would likely be convicted anyway, given the reality of the current state of many public defender offices, including the built-in handicap of often being assigned too many cases at the same time, and the extreme budgetary differences between public defender offices and prosecutors. And, given that eight out of ten people who confess are found guilty, I would say that that is a pretty accurate perception.
Redlich also mentioned that states in which there is a “three strikes and you’re out” law, some of the mentally ill plead guilty to crimes they are innocent of in order to protect a friend. In those cases, conviction would result in their friend being convicted of their third strike, and therefore going away for life, whereas they would only get a few years.
Solomon Fulero is a False Confession Expert, who spoke of the process of getting False Confession Expert testimony admitted into the court. He mentioned that in order to get the testimony into court, it must pass the Daubert and Frye Tests, legal cases establishing the standards through which new scientific methods must pass before being allowed into the courtroom and put before a jury. Two of the more important standards involved are whether or not there is a consensus within the scientific community regarding the science and methodology, and whether the research involved has been peer-reviewed.
Fulero mentioned that in those states in which False Confession Expert testimony had not been allowed into the courtroom, it was because inept lawyers had not asked sufficient questions of the expert, thus failing to lay a proper foundation. He stated that another problem occurred when defense attorneys did not have enough money to hire an expert and would, out of desperation, hire small-town psychologists who did not fully understand the science. As an example, he detailed a case in which the psychologist told the court that the literature was not peer-reviewed. Fulero encouraged the lawyers at the conference not to use as experts those who are not truly knowledgeable, because to do so only makes it more difficult for expert testimony to get admitted in other cases.
He stated that False Confession Experts are allowed to testify as to the characteristics of false confessions, and then whether those characteristics are present in the confession at issue. But they are not allowed to go beyond that. They may not give a direct opinion as to whether they considered a particular confession false or not.
He went on to illustrate some cheap tricks that prosecutors have used during cross-examination. One tactic that he mentioned was that prosecutors often ask whether the expert is being paid for his testimony, as if an expert is not paid for their services. For answering that question Fulero said, “No, I am being paid for my time, the same as you are.” Another tactic exposed involves when prosecutors ask how often the expert has testified for the prosecution; an attempt to show that they are biased. That question is inappropriate because prosecutors know very well that they are not allowed to call a false confession expert as a witness because it would constitute evidence-bolstering. Fulero suggested the right answer to that question is, “As often as I am asked.”
I delivered two presentations in El Paso. The first one was an ‘at-large’ presentation, meaning that it was open to students at the school as well as to anybody in the community who wished to attend, without charge.
There were about 50 people in the auditorium for my first presentation. I told my story of being arrested and the circumstances involved, as well as the judicial history of my case, and my prison experience. I then went on to discuss various reforms that I have been advocating for. I mentioned, amongst those reforms, the need to upgrade the quality of defense the poor receive by leveling the playing field economically, and talent-wise, between prosecutors’ offices and public defenders. I also advocated limiting the number of cases that a public defender must handle simultaneously.
I mentioned ending the tactics which lead to false confessions, such as lying by police, claiming to have evidence that they do not have, the use of the polygraph and lengthly questioning for hours on end, as well as false promises and threats. I emphasized the need for videotaping all police interrogations. I then spoke of over-hauling all the identification procedures, creating a standardized evidence preservation system, and also of how there needs to be criminal penalties for police and prosecutors who deliberately withhold evidence from the defense.
Then, right there, in Texas, which is an “execution machine”, I launched into an impassioned plea against the death penalty, mentioning how its existence will result in the continued execution of innocent people; how it is a waste of resources, explaining that, in New York, we spent over $200 million over a nine-year period while executing nobody. I explained how it prevents victims’ family members from healing and coming to closure by constantly reminding them with the attendant publicity that appeals generate.
I referred to how, just two months earlier, the Governor of Alabama, Bob Riley, had gone ahead and executed Darryl Grayson while not allowing him to have a DNA test performed in his case, even though there was semen available to test, in addition to a witness’s affidavit that Grayson was in their company, passed out from alcohol at the time of the incident.
I then informed the audience that the Governor was planning to do the same thing to Thomas Arthur, who was scheduled to be executed the next day, Sept. 27, without having allowed him access to a DNA test. I made brief mention of the facts of the case, including that the victim’s wife had told police that a stranger broke into her house, raped her, and then killed her husband.
I further explained that the police did not believe her, and arrested her. And, after she was found guilty, they offered her reduced time in prison in exchange for implicating Mr. Arthur. I further detailed that there was a rape kit with DNA in it, hairs found in the victim’s wife’s car, and blood-soaked pants of the victim’s wife, all of which could be tested to determine whether Arthur was guilty or innocent, but that the Governor was refusing to allow those tests. I gave them the Governor’s phone number, listed on the website and invited them to call him and tell him that they wanted him to allow the testing. I was happy to learn that a stay of execution was granted the next day for 45 days, but it was only on the issue of the method of execution, so that the state might change its execution protocol. I encourage people to call the Governor, at 334-242-7100, and demand DNA Testing for Thomas Arthur.
The next day marked the official beginning of the conference. I made a point of attending the lectures of the other presenters, allowing time before lunch to prepare myself for delivery of the keynote speech.
Because the subject of this event was False Confessions, and given that the organizers wanted there to be plenty of time for questions, I had to tailor my presentation accordingly. I spoke about the circumstances of my arrest, trial, post-conviction struggle, and included a bit about my prison experience. I lightly touched upon a few needed reforms, then segued into the causes of false confessions, based upon my experience. I referenced the tactics which resulted in false confessions that other presenters had noted, and indicated how those tactics contributed to my false confession.
The Reid Technique
The Reid Technique is an interrogation methodology which is utilized by law enforcement agents across America. Nationwide, false confessions have been the cause of wrongful convictions in 25% of the 208 DNA-based exonerations to date. The technique I am about to describe is the methodology that is employed by the law enforcement officers in the process of obtaining those false confessions. In his presentation, Joseph P. Buckley, author of Essentials of the Reid Technique: Criminal Interrogation and Confessions revealed that he holds over 600 contracts to teach this technique to law enforcement agencies all over the country. He claimed that his system does not lead to false confessions. I will outline the process, and let readers decide for themselves whether or not the method is coercive and likely to lead to false confessions.
As I mention the techniques in his presentation, readers may recall the circumstances of my false confession, and come to their own conclusions with regard to those who were involved with the planning, coordination, and oversight of what happened to me. I would like to point out, that according to his own testimony, which is in my trial transcripts, as well as in the Appellate Division Brief, Chief Eugene Tumolo knew that the terms of employment of polygrapher Daniel Stephens was to execute a procedure known as “GTC”- an acronym for “get the confession”.
He, Tumolo, drove to the interrogation site in Brewster, which proves that he knew that I, a 16-year-old youth of Peek- skill, was being driven to the Village of Brewster. Trial testimony stated that there were listening devices in the interrogation room and in the next room, where he, Tumolo, Detectives Levine and McIntyre, listened to what was happening to me next door. Stephens testified that at times he left the room to consult with Tumolo and the other officers. Further, he testified that at the end, after the false confession had been obtained, he, Tumolo, entered the room and proceeded to interrogate me even further.
Of course, the presence of Joseph Buckley at a conference on False Confessions seemed a bit strange to me. However, as one of the pioneers of the method known as the Reid Technique, along with Reid and Imbau, his input was valuable. My review of the technique is based upon information that he presented, as well as material written by Saul Kassin, entitled, A Critical Appraisal Of The Reid Technique.
The technique is employed by a majority of law enforcement agencies in their interrogation procedures. The conversation between suspect and police is divided into two parts: Interview, and Interrogation. The colloquy begins as an interview, characterized by open-ended questions, in which there is an even-keeled discussion between the police and the one they are questioning. It is only when the police have a hunch that the suspect is lying that it switches to interrogation.
The determination as to whether a suspect is lying is based upon a checklist of fifteen characteristics, out of which, if the police check off any four of them, it is taken to infer guilt, and the mode then switches to interrogation.
The problem, however, as prominent False Confession Expert Saul Kassin points out, is that “nervousness, fear, confusion, hostility, story changes or contradictions, are all signs that a man in an interrogation room is lying, particularly in the eyes of someone as naturally suspicious as a detective. Unfortunately, these are also signs of a human being in a state of high stress.” Kassin points out that the training that Buckley gives out, despite its claim to place police in a position to attain high levels of accuracy, has been shown to place police in no better a position to detect truth from lies than chance. Once that determination has been made within the mind of the interrogator, however, the communication switches to interrogation mode, which he described as “a monologue, of 80/20, wherein the police talk 80% of the time and the suspect 20%, and innocence is taken off of the table.” Any protestations of innocence are not accepted and are, instead, swept past and ignored with a renewed sense of energy and vigor, as the interrogation continues.
There are three processes involved: Isolation for some period of time, which increases stress and the incentive to relieve that stress; Confrontation, in which the interrogator accuses the suspect of the crime, expresses certainty in that opinion, and blocks all denials, sometimes citing real or manufactured evidence to support the charge; and Minimization in which the sympathetic interrogator morally justifies the crime in the form of an alternative version of events, such as that it was spontaneous, accidental, provoked, or the result of peer pressure.
Studies by False Confession expert Dr. Gudjohnson have shown that in the interrogation room some people are more vulnerable than others, particularly if they are characteristically prone to exhibit social compliance or interrogative suggestibility. Youth, naiveté, a lack of intelligence, cultural upbringing, and social anxiety as well as various psychological disorders, present unique vulnerabilities to watch for. There are problems within each component.
Problems with isolation
I would like to again quote False Confession expert Kassin, who indicates, “Prolonged isolation is likely to be accompanied by fatigue, feelings of helplessness, and deprivation of sleep, food and other biological needs; mental states that impair complex decision-making.” Yet, there are no limits taught within the Reid Technique as to the length of isolation which would acknowledge these realities.
Problems with Confrontation (and “Taking Innocence Off Of The Table”)
It is one thing to confront someone with the truth, but it is quite another to confront suspects with non-existent evidence. The presentation of false evidence is implicated in the vast majority of false confessions. The problem is that the idea is conveyed to an innocent suspect that “no matter what, you are going to be arrested for this; it is just a matter of whether you are going to make it worse on yourself by lying, maintaining your innocence.” Additionally, Kassin references studies that he and other researchers have done which show that innocent people sometimes internalize guilt for outcomes they did not produce.
Problems With Minimization
The problem with minimization is that when a suspect is worn down and frightened, in desperation they look for an out. And, when it is suggested that a criminal act is understandable, that implies that there will be no consequences for making an admission, and so confessing falsely is seen as a way out of the situation. Then, once the false admission is made with the belief that that is how it will be understood, what follows is something altogether different. Whereas an understandable reaction/act is not a crime and would therefore not be prosecuted or punished, the person now finds him or herself arrested and charged with a crime by a prosecutor who is not presenting events as understandable. Instead, even as a police officer testifies as to an “admission” to something understandable, a prosecutor uses that as proof that a “cold-hearted crime” has been committed and therefore the defendant should be sent to prison, often for a life sentence.
Yet this incongruence is allowed to stand.
Buckley claimed that his Technique, when done properly, does not result in false confessions, despite many cases which show that is exactly what is produced. As I see it, his Technique amounts to nothing more than psychological coercion, which, in addition to being a violation of the Fifth Amendment, has a penchant for resulting in false confessions. Many of the experts present at the conference severely attacked his statements both during the questioning phase of his presentation, and during their own presentations, frequently offering scientific studies and arguments against him. By the time everybody was done, his methods had been professionally and thoroughly discredited.
In a paragraph that captures the technique in a nutshell, Kassin states “the Technique is to remove suspects from familiar surroundings and place them in a small, barely furnished room housed within the police station. Against this physical backdrop, a nine-step process begins with positive confrontation and the development of alternative themes, and ends with a full written or oral confession. Conceptually this approach is designed to get suspects to incriminate themselves by increasing the anxiety associated with denial, plunging them into a state of despair and minimizing the perceived consequences of confession.”
Is there anybody out there, who does not believe that the methods described above are coercive, and lead to false confessions?
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