Obtaining and Using False Confession Experts in Post-Conviction Claims

Transcript

nacdl is the association of the nation's criminal defense bar hour number two so we're going to talk about investigating a false confession claim in this next phase and what we do once we decide to take a case for investigation purposes and it involves investigating within the four corners of the confession and what additional investigation outside of the confession that we do but when we think about these cases we find it helpful to use a framework that richard leo developed and that he and i wrote an article about which are the three pathways to a false confession these are three errors that occur in every single case of a proven false confession the first is the misclassification error what made the police think that the innocent person was guilty that's your first question you have to answer why did they go wrong in the first instance the next question of course is the coercion error and this is the stuff of voluntariness and miranda challenges that you're all accustomed to doing in your pre-trial motions how was the client convinced persuaded pressured tortured cajoled beaten into confessing and the final error which is really in my mind the most important error at trial and in post conviction is the contamination error the first two errors explain why someone was arrested and explained why somebody was charged the contamination error explains why somebody was convicted why is that confession so detailed how did the client know what to say you need to answer these three questions in order to form a compelling narrative of innocence the first of these three errors that we try to answer in our investigations is the misclassification error again as steve said is how did the police get the wrong person in the interrogation room in the first place so to answer that question you need to know that there are two stages generally of police questioning that happen in any given criminal case there's the interview stage and then there's the interrogation stage the interview stage is information seeking it's an officer sitting with a lot of different people maybe asking open-ended questions about a crime where were you when this happened what do you know about the victim what can you tell us about the way that this about what you saw or what you didn't see open-ended questions the officer isn't doing a lot of talking they're letting the person that they're questioning do a lot of the talking it's information gathering then there's the second stage interrogation this is the type of questioning that happens not to gather information but to get an admission that's the goal of interrogation it happens after the police have come to the judgment you are guilty and now we need to get that admission out of your mouth the interview which is uh the first of these two stages that often behaves what often involves what's called behavioral analysis this is a read an associate's term it essentially in my view and our view equates to human lie detection it's the the concept that deception lying manifests itself totally involuntarily in certain behaviors mannerisms choice of words things like that that involuntarily express themselves while you're talking and the theory behind behavioral analysis is that a properly trained detective can read these unconscious signs of deception so this is a page from the read interrogation manual which is called criminal interrogations and confessions and it shows it's an instructs instructions for detectives who are conducting this first stage interview where they're asking open-ended questions where they're letting the person that they're questioning kind of spout off and answer these questions at length all the while they're evaluating that person for these behavioral cues so according to reed and associates you can see on the left-hand side deceptive denials these are things that if said indicate deception and on the right-hand side you can see truthful denials things that if said are supposed to indicate that the person is telling the truth deceptive denials i honestly wouldn't do that it means you're lying i swear i didn't do this all so bad don't say that to the cops it means you're lying on the other hand apparently what you're supposed to say instead of those sort of quote-unquote qualified statements you're supposed to be using descriptive language i did not rape her means you're telling the truth i didn't do that to her on the other hand means you're lying that doesn't have that descriptive language on and on it goes specific denials i don't own a gun means you're lying too specific broad denials is truthful i've never had sexual contact with that student or any other important right um these are the sorts of things that that that reid trains uh its detectives to be looking at during these these behavioral analysis uh interviews and it goes on this is from a presentation by the president the current president of read and associates which i should say is the most widely used interrogation training method in the country it has been for decades this is a presentation that joe buckley the president of reed gave at the university of arkansas and in it he describes the differences according to the principles of behavioral analysis the difference is between a truthful individual and a deceptive individual i like this one a truthful individual is composed concerned and cooperative kind of sounds like a boy scout on the other hand a deceptive individual slouches so watch out for that a truthful person will have open palms while they speak i've always found that one interesting and you can see there are different things they're looking for they're looking for attitude they're looking at non-verbal behavior and verbal behavior that your choice of words according to read is even a giveaway as to whether you're lying if you give reasonable answers a smooth tone of voice that means you're lying uh if you say i can't recall that means uh i'm sorry that means you're lying as well if you refer to god or religion don't do that because then you're just sunk in the eyes of reading associates so you can see on and on i think this makes the point that this behavioral analysis is basically a bunch of garbage reading associates claims an 85 accuracy rate they claim that these types of behavioral analysis techniques are 85 percent accurate in detecting whether the person you're speaking to is telling the truth or lying but virtually every study out there shows that even a person trained in behavioral analysis even the most experienced seasoned police officer really does know better than chance no better than about around the neighborhood of 50 give or take about telling whether the person is lying or not people are not lie detectors people speak in different ways i'm sure i've just in in the in the course of giving this presentation maybe my palms weren't open you know i mean these sorts of mannerisms manifest all over the place there's no human behavior or physiological response that is unique to lying that's what the science out there shows so even if police officers get it right and somebody is being deceptive in the interrogation they don't necessarily doesn't necessarily mean that they're being deceptive about the crime with which they're being charged people tell lies for a variety of different reasons sometimes to protect their themselves or or loved ones doesn't necessarily mean that just because you're not telling the entire truth to the police that you murdered and raped a 15 year old girl so it's it's bad science for both those reasons and not only is it bad science it's inherently contradictory it leads to some totally crazy results you've got the case of michael crowe out in california which i sure i'm sure a lot of us know a 14 year old boy was interrogated about the death of his sister um and eventually gave a persuaded what looked to be a persuaded false confession that he had done it but why did they suspect the brother would kill a sister in the first place well after the girl's body was found they thought that he didn't show enough uh emotion upon discovering the body he had a sort of a what they thought was a lack of emotional response to this so i thought that was suspicious and they interrogated him under the principles of behavioral analysis but you can you contrast that with jeff deskovic's case for example in other cases jeff deskovic because out of new york he was a 17 year old student a little bit of a he was he was a student and there was a girl in his class a classmate of his who was murdered and she had been a friend of jeff's and he had what the police regarded was an overly emotional response so in that case the overly emotional response is what caused the interrogation you can see these contradictions in behavioral analysis you can't get it right but it causes such a toxic chain of events to be put into place the consequences of misclassification and of relying on this behavioral analysis science uh is the perpetuation of this human lie detector mythology that increases police confidence in the accuracy of these completely erroneous judgments so it leads to investigator bias that carries throughout the course of the entire investigation that's passed on to the prosecutor that carries on even post-conviction and most importantly for our purposes this behavioral analysis stuff is can be what triggers the decision to change a questioning session from an interview open-ended non-confrontational to an interrogation confrontational accusatory premised on the fact that the person you're talking to is guilty but there are other types of misclassification errors out there there's criminal profiling themes that abound amongst law enforcement just some of these if there's no signs of forced entry it must be an inside job the last person who is with the victim must be the killer if it's a loved one who dies at home a family member must be responsible all serial killers are white we saw that one um in the beltway uh sniper context quite a bit a trip it's incredibly frequent for law enforcement to attribute what they call a gang motive to a crime that occurs in a neighborhood that is quote unquote gang infested and another common profiling theme is that if a killing appears to be a particularly bloody particularly violent there must have been satanic motivations at play so anytime i see a report prepared by a criminal profiler that describes the kind of person who would have committed the crime i take a much more close look at that case there are a number of documented proven false confessions where police because they hadn't any leads and because a case was growing cold retained a criminal profiler and got a description of the kind of person who would have committed the crime and jeff deskovitz's case i see jeff here they found that they got a profile of the person who they said he was five for ten white or hispanic was knew the victim um was was a loner um and the vic the the perpetrator turned out to be over six feet black and a stranger to the victim but that profile caused them to focus on people in her immediate circle in her school and led them astray so here's a good example of the power of these sorts of profiling myths um in the west memphis three case which is of course a very high profile case out of west memphis arkansas uh involving the deaths of three eight-year-old boys who were killed in a particularly or at least it appeared were killed in a particularly brutal fashion their bodies were found naked submerged in a stream of water they'd been hogtied with their own shoelaces and the bodies were covered with what appeared to be cuts and bruises and lacerations and mutilations of various kinds it's a horrible discovery for the people of this small town and it triggered one of these profiling myths because of the apparent brutality of this crime it must have been satanically motivated and these are two early police reports that uh were from that case you can see on the left of very very early police reports right after the after the discovery of the body the case number uh in the box 93-05-0555 well after the criminal profiling myth of satanism took place took hold and began to spread you can see in later police reports lower right that case number changed six 93.0566 another uh snapchat from the west memphis three case this is again shows the power of these misclassification myths and how they can saturate and contaminate every part of an investigation once they take hold this is a a receipt of evidence gathered during the execution of a search warrant at jason baldwin's house one of the defendants you can see the items highlighted in in yellow let's see they found 10 black shirts up there top another black shirt and then four black shirts down at the bottom this was gathered as evidence and was actually introduced in tr at trial against this kid the fact that he owned black shirts that was viewed as evidence of satanism which in turn was viewed as evidence of guilt this is how pervasive and ridiculous these misclassification errors can become so i'm going to go through this rather quickly because this is the stuff of the voluntariness pre-trial hearings that most of you are accustomed to but the coercion error feeds off the misclassification error the suspect who they are convinced is innocent for whatever reason denies that they were involved in the crime the more the suspect denies the angrier the police officers get the more frustrated it gets the more frustrated the police officers get the more they up the pressure on the suspect and the more likely it is that they will cross that gray line between what is and is not acceptable coercion the interrogation process unlike the interview is guilt presumptive it's accusatorial it's suggestive it is an interrogator dominated interaction more than 90 percent of the talking is going to be done by your interrogator and they are allowed to use deception to be allowed to manipulate and they're allowed to use coercive psychological methods that either suggest or imply a benefit or some some harm to the defendant if you look at enough of these tapes as i have what you see is that they almost always begin the same way there's a break after the interview the interrogator leaves the room lets the suspects do for a few minutes and then comes back into the room and with the suspect stealing seated the interrogator stands over him and says we're not here to talk about whether you committed the crime we already know that our investigation has shown us that and then they may launch into a few false evidence ploys what we need to know is why you committed the crime because why you committed the crime will enable us to help you and that confrontation that first accusation of guilt or the belief that the suspect is guilty then comes to lead the interrogator to interrupt every time the suspect tries to assert his innocence or deny and joe buckley is very clear about this he's got his tapes with the reed associates group and he says you have to interrupt these assertions of innocence because the more suspect asserts his innocence the more psychologically tied he gets to that position and we have to break him from that position oftentimes they will move closer to the suspect they'll move their seat closer and then they use both minimization and maximization the maximization of the interrupting of denials the certainty of the evidence against them the overstatement of the evidence against them the use of false evidence ploys but the minimization involves providing the suspect a face saving excuse for why they committed the crime if you just if it was just an accident we can work with that if it was impulsive not premeditated if it was in self-defense in a rape case if it was consent both legal and moral excuses that explain why the suspect might have committed the crime sometimes it's it's the race to the witness phenomenon in multiple defense cases everybody wants that witness status as opposed to the suspect status just tell us you were there we know you weren't the primary perpetrator here you were there and you played a big role and you get a lot of interlocking confessions where everybody's the witness and they're pointing the fingers at each other the classic read technique is the presentation of an alternative question a forced choice question that gives the suspect one of two choices and the suspect if he's rational and he's going to answer the question is going to pick the lesser of two evils was this planned or did it happen in the spur of the moment okay and we know and you'll hear about more about this in the third hour when we talk about the psychological science backing for the power of minimization but when suspects hear these alternative scenarios that imply leniency they think just that if i accept that lesser scenario i'm going to be treated more leniently they don't have to be told that they get it they read between the lines through a process called pragmatic implication reed tells his interrogators that's not our fault if they read between the line we can't be responsible for the what they think but in fact that's what the entire interrogation process is it's about shaping and confining the choices of the suspect and making some of those choices appear rational and others appear unrational irrational and so the power of minimization is often as you saw in the initial video when children are involved people confess because they think that by doing so they'll be allowed to go home and when you are under pressure for that long home is the great life preserver the opportunity to get out to be with family and to put an end to the stress of an interrogation and in each one of these cases that was the reason that caused the defendant to crack it's important to talk a little bit about polygraphs and their role in interrogations there are legions of polygraph-induced false confessions or voice stress analyzer-induced false confessions these are instruments that police officers use purportedly to tell whether or not a suspect is being deceptive with regard to the crime at issue but more often than not they are used as ruses to break a suspect down to a place of hopelessness and get the suspect to confess many times you will see a suspect ask for a polygraph let me take a polygraph i'm sure i'll pass it and police officers will comply but sometimes they lie about the results of that polygraph and when that polygraph is not the life preserver it's not the um the vehicle that's going to save the suspect it becomes that much easier to manipulate them into confessing so how do police officers use these to break a suspect down we're going to show you a tape a very brief blurb of a video i may need lara's help here let's see this is an interrogation of a young man named matthew livers who was a client at the center on wrongful convictions uh oh let's see something came up all you had to do was stand up yeah and this is the way the interrogators approached him after he took the polygraph test and thought that the polygraph test was going to be his savior guys i got nothing to do with this let's let's just let's just get this out here okay we're seeing a different side of you okay before you were pleasant you're you know we're starting to see a different person come out listen we trust these this is a tool that's used well listen let me let me speak okay this is the tool that's used okay if you came in here you knew that you answered questions and the questions that you were honest about show that you're honest we have no reason to lie to you but let me ask you a question that specifically has to do with the death of wayne you flap the chart we've been these guys have been doing hundreds of these hundreds listen we can see you we've been watching you okay we've been watching you're involved in this up to your ears and if you think this will go away this is a high profile case this will not go away how am i involved in this i'm not you are involved i can read the questions they ask you in your emotions or just point off the chart i mean your subconscious body is telling the machine you cannot fool it i didn't have anything to do with this you did i did not you did i did not bill you did all right i'm sorry you did okay we now know we now know the two of us know and this will look like donuts with a bone this will not go away for you so this machine doesn't know you it's an unbiased observer and we place utmost faith in the results of this machine and it found that you were lying and laura i need your help all right there we go okay actually it's my turn anyway there you go okay so we've talked about the misclassification error which is you know how did police get the wrong person in the interrogation room in the first place and we've talked about the coercion error which is once that person is in the interrogation room how do they get motivated to make a statement that is so drastically against their self-interest as a false confession so then there's the third error that we investigate when we look at these cases and it's the contamination error once that will is broken once you decide to make that damning admission how do you know what to say about a crime when you weren't even there that's the contamination error and that's a key part of the story that you've got to be able to explain when litigating these cases so what is contamination generally it's when facts are adopted by the person who's giving the confession by sources and here she adopts these facts from sources other than his or her own personal knowledge this happens all the time and you can see it especially when of course the interrogation is videotaped a lot of the time the source of contamination is actually the interrogating officer he's doing the interrogation he's using leading questions perhaps showing photographs of the crime scene perhaps even taking the person back to the crime scene to walk through it to say look this is you know this is how it looks of course this is all a process of education the person being questioned hears these leading questions sees these photographs and then knows what later to describe after their will has been broken and they decide to falsely confess we have a case involving a young woman who was killed by being shot in the head and the young man who was being interrogated about it didn't know that didn't know how she died he just knew that she'd been murdered and the interrogation was recorded and it reveals this extraordinary guessing game you know his name is his name is brendan and they say to him brendan how did she die just tell us and he says well we punched her no that's not right so they say well brendan you know what else did you do what else and he says well uh we stabbed her no wrong so they say brendan okay what else what else something with the head brandon something with the head and he says um we choked her wrong so they say no something with the head come on come on he says okay we and now he's totally at a lot he says we cut off her hair and they say they're getting frustrated of course they say no and and finally he just says look i can't i can't remember i don't know i can't think of anything else and they say to him brendan why don't you just come out and tell us who shot her in the head and he says oh the other guy did that and they say brendan why didn't you just tell us that and he said i think quite truthfully because i couldn't think of it you just couldn't think of another way that somebody would be killed um but that when we saw that in this particular confession was just such a powerful instance of of this sort of macabre process of contamination that can happen during these false confession cases um but it doesn't have to only come from the officers and i should say sometimes often this is comes from the officers inadvertently of course they're frustrated with this guy's not giving them what they think they know and they sort of slip into leading questions inadvertently but there are other ways that this can happen contamination can occur when a case is very high profile or as it happens to somebody in the community the defendant may well know rumors gossip about what happened may well have read newspaper articles about the case that's what happened in in the daniel viegas case that i mentioned earlier the drive-by shooting in el paso at some point during the questioning he actually tells the officers i read about this case in the el paso times i know who was shot i went to school with those guys and that's part of what he eventually incorporates into his confession and then finally there's innocent knowledge of the crime scene there are cases where somebody confesses to a crime that happened at their house well it's going to be no big surprise that they can draw a map of the layout of the house with perfect accuracy it doesn't mean anything about whether they're guilty or innocent it just knows that they means that they know where their own bathroom is but of course these are all different ways in which a person can be educated about a crime scene about the way a crime happened without actually having participated and when we look into these cases that's a critical thing that we try to answer how did this person know what they said during the interrogation this is a beautiful quote on the right hand side before i change slides from commander neil nelson who's an officer in saint paul minnesota he says after and he's speaking about the power of a recording in this instance he says after reviewing a recorded interrogation you realize maybe you gave too much detail as you tried to encourage the suspect and he just regurgitated it back beautiful if only all police officers thought that way i thought like commander nelson but he's describing this this problem of contamination so what do we do when we have a confession how do we try to answer this question about contamination about how the person knew what it is they were talking about that ended up in the confession well we ask ourselves two questions fit and contamination what's fit this is basic does the confession match the crime scene facts did they get things right okay we go detail by detail we break down every single detail in the confession i often do it in a chart form who what where when why what type of gun was used what was what happened right before what happened right afterwards was anything said any detail that ended up in that final statement i write down and then i go back through the police reports and i try to just do a basic comparison what did they get right and what did they get wrong but there's a key second step to that process most remember most people who have been exonerated and who falsely confessed did get a lot of those facts right in their confession so you have to ask a second question how did they get them right that's where contamination comes into play and that's when i take this sort of list of all the details who what where when why and i try to say well look for this detail is there any way the person might have known this other than being present at the crime scene is this a fact that was widely circulated in the news is this a fact that was disclosed to them by the police officers during the interrogation which of course it helps if you have a recording to answer that question um does this the bottom line is does the confession contain contain accurate but non-contaminated details if it does that's a red flag for truthfulness if it doesn't that's a red flag for falsity and that's a powerful argument against falsity if this person can't get anything right unless they're being told that's a powerful message to send to the courts interrogators are briefed by most of the other investigators in these cases before they go in the interrogation room it's important that they know all the facts so it's really important to begin from the minute the body is found up until the time of interrogation to find out what knowledge the police officers had about how the crime occurred and if that knowledge was present before the interrogation and it ends up in the actual confession you have an inference there that there may have been contamination so i mentioned that i often do this in chart form i wasn't kidding it's not um it's not you know the most exciting thing you've ever done but you what you end up with is such a powerful tool for demonstrating truth or falsity this is just a real short little example of a particular confession in one of our in one of the cases we've been involved with um these are two details right um on the top row it's a detail about whether the crime was planned ahead of time or not the second bottom row is where did the crime take place these are two details that were that ended up in the final confession planning where it happened so for the first top row you can see they gave a statement to the police this particular defendant gave a statement to the police um about planning there was a phone call early in the morning they discussed whether or not they were going to go to the scene and then they went um this is an uncontaminated detail nobody told this person this information the defendant said that this was planned without it being suggested to him by the police officers there was nothing in the media about planning totally uncontaminated but in this case there was no physical evidence no telephone records nothing to actually indicate that this planning had happened so the person got this fact wrong okay so we look at row two where did the crime take place this defendant said it took place in the woods uh behind the truck wash well okay this actually turned out to be correct that is the location of where this particular crime happened but if you look back then you can identify that ah in fact this was a contaminated detail this was all over the news that this crime happened as it turned out in the woods behind the truck wash it was all over the news and it was fed to the person during the interrogation we knew that from the transcript of the interrogation and if you do this and play this out over the course of the entire confession what we ended up with in this case was this amazing chart that showed where there was contamination the person got it right where there was not contamination the person got it wrong over and over and over and when you play that out that is so powerful then you can say quite accurately this person couldn't say a single thing about how this crime happened without having it placed in his mouth by someone else so this is something else we like to do when we look at some statements unrecorded statements this is a portion of a handwritten confession from a case out in new york um i the defendant's name known individual by the name of bugs who i owed 200 to for some crack that i received from him to sell instead of selling the crack i used it for my own personal use this is strange language and let me say that the defendant in this case is 16 years old is this how a 16 year old talks i don't think so right since this period i've been using it on and off this is a very formalistic language and this isn't his story this isn't the story of a 16 year old the language itself is the language that a police officer would use i know an individual by the name of bugs no one talks like that when you see a confession like this with this type of formalized sort of law enforcement language we point that out too as evidence of cont that at least raises an inference of contamination okay so we've talked about the three areas we've talked about misclassification coercion and contamination those three things that we always sort of focus our investigation around and i want to show you how it plays out in a case with a tape recorded interrogation and then after that we'll talk about how to do it when you don't have the benefit of recording so we talked a little bit already about robert davis's case at the beginning this is the case from virginia from 2003 in which a woman named nola charles was stabbed to death at home and a cover-up fire was set the smoke from which then killed her three-year-old son from smoke inhalation the two teenage daughters who slept in the downstairs of the house were able to get out of the house on time uh ahead of time without being harmed the immediate suspects were teenage neighbors of of the charles's named rocky and jessica fujin part of the fugitive family they were siblings jessica suffered from mental illness and she was friends with the daughter of the woman who was killed rocky and jessica brother and sister were brought in they were interrogated by police and each gave statements implicating themselves in the crime statements which i believe happen to be true both of them though implicated a host of others a host of others all students from their school and they included 18 year old robert davis in that list of names now the police checked out all those lists of names all those other names most people had a rock-solid alibis robert's alibi was that he was at home asleep his mom was at home asleep in her room it's not a great alibi the police decided to interrogate him so he was arrested shortly after midnight on february 22nd 2003 at gunpoint and they proceeded to interrogate robert davis who they believe was the third perpetrator and i pulled out some video clips from this interrogation so i can show you i hope the ways in which robert davis who's 18 years old a fairly intelligent savvy kind of you know quote normal seeming guy could go from vehement denials over the course of this interrogation to admitting to a horrible arson murder that he had nothing to do with um and it's this kind of story that we look to be able to tell when we investigate these kinds of cases so i'd like to start out with a clip showing the types of accusations that were made against robert the way the police achieved them do the other thing don't turn around just face that way for me and then if you would do the same thing with your other hand take two steps forward your hands down of thomas charles you will be charged with attempted murder of the two child daughters katie and wendy you're charged with breaking and entering with the intent to commit larceny and the nighttime during the time that things took place in that house now this is a time right here when you need to step up and say what you saw what happened because we already got most of it and i tell you what if you don't speak for yourself and you're in that house by yourself and doing everything yourself and you're going to get the water stop stop telling me i am telling you the truth i am telling you i have nothing to do with this i swear to god i will take i i swear to god all my life right now that i did not do nothing of this matter i have nothing to do with this i will take a polygraph test right there to prove to you that i did not have nothing to do with this you know and i know that i'm not capable of doing something like this i cannot i cannot even kill a [ __ ] fly man okay so that's so those are some of the accusations and denials that happened at the beginning of this interrogation and as we know from behavioral analysis robert's already in the thick of it because he said stuff like i swear to god i didn't do this which of course means you're guilty of sin um he also says you know i'm not capable of doing something like this i couldn't even kill a [ __ ] fly all of this is like you know deception written all over it according to to reed uh and associates but you can notice a couple of other things from the clip the posture right i mean these officers are cornering robert robert's 18 years old he's well over six feet tall he's a big big guy but they've got him in the corner literally isolating him as well as figuratively um and and you can see that the sort of physical sense of pressure in the video as well and you can see they tell him from the beginning we know we know he did this crime there's certainty we know it was you robert and that's the power of the accusation of course he responds at first with denial then it proceeds to what we call the false evidence ploy the other hand take two steps forward do you know your skin is the worst thing that was for dust can you see it dust is made of muscles you thin skin that can be picked up that dna that stuff right here if you touch the only thing the glove will be picked up and match with the shirt the same thing with gloves i can imagine the exact rewards right exactly of course he did just lie about the evidence there was no dna evidence at all anywhere on the scene there was no physical evidence whatsoever linking robert to this crime scene but he was just told essentially that his dna evidence was at the scene this is part of the process of what steve referred to as maximization of presenting the evidence of guilt as completely unshakable and part of the process of breaking that suspect's confidence down and down and down until the point of hopelessness threats and promises i told your mom that i would sit there trying to keep you from the most ultimate punishment you can get and i'm trying to do that and you're not even helping me help you i can't do no liking to between son only you can get out of this is by talking the truth and saying you're a part of it and the thing is you're not gonna get out of the robert i'm not gonna lie to you you're not gonna get out of it but you might you might save your life and the thing is if you don't come out and tell the truth and admit is right there's a lot of people in this house a lot of people have different roles if you were just in the house that's one of those being in the house is one thing no matter what she's loving you and i'm doing my best to kind of keep that family time alive no matter what you've done she said i still love you he's my son no matter what he's done and that's the sandra i know and i'm trying to okay so now we're talking about real pressure right you've got somebody in this interrogation room who's 18 years old who's been told that his dna is on the scene the officers won't listen to him protesting his innocence and now they're telling him that he faces the ultimate punishment and that his mother knows that he's facing the ultimate punishment and in effect his mother is going to be devastated by his death or by 90 years incarceration unless he tells uh what the police officer believes to be the truth and so you can see now this this process of reducing robert down he's he's he's being brought absolutely down to this place of hopelessness right you're gonna we know you did it we've got your dna evidence completely false we've got your dna evidence on the scene and you're gonna get the death penalty and how is your mom gonna handle that unless i can go in front of the judge and say you cooperated okay that gets robber to a place where he decides to confess this goes on over the course of hours of course and now we come to the contamination error once robert gets to that place how does he know what to say robert i got someone else doing that you didn't know that you know what that act is and and we know and that's the thing that has something wrong with it that's yours all right robert i'm gonna tell you what else and you can sit here and say i got three of the stories telling me what you did and why you keep not going to say it was either way or doing the other act of the same thing except the fact you know exactly did you not stand when you're really but if that helps you maybe i can maybe we can do that yeah i couldn't have described contamination better myself right um if we have to start telling you what you already know that does defeat the purpose it absolutely does um and that's how that's just an example of how it plays out in these interrogations um so that's how robert comes to confess to stabbing nola charles he goes on to give other details that are similarly contaminated just as that one was um and then i've got to show you this because i just like the end of this interrogation uh but of course that just pissed the officer off it wasn't like a smart move but it's the truth right he was lying full pledge to his face um but you can see there with the arc of an interrogation that it lasted six hours but compressed into those little clips how robert was moved from somebody who said give me a polygraph test i did not do this i swear to god i didn't do this i wouldn't even kill a [ __ ] fly how he moved down that arc of hopelessness until he was in a place where he just said what can i say i did to get me out of this okay so that's the kind of story that you want to be able to tell when you have a recording but there are a lot of cases that don't involve recordings sadly so we have a couple of suggestions for how to tackle this sort of investigation um absent to recording and i think i'm actually supposed to turn it over to steve at this point so i will sit down so we show you these video clips and and they seem to be ludicrous and we laugh when we hear it but robert davis was convicted of first degree uh first degree murder and he's still in prison today and he had a phenomenal criminal defense lawyer who moved to suppress his confession and if that confession with those kinds of threats isn't enough to be coercion what is but once he lost that confession he was faced with the suppression was faced with a kid who was looking at the death penalty in a state that executes people faster than in any other state in the country and so he entered an alfred plea and we're working on robert's case in a clemency fashion so it is it is it seems to us ludicrous that there are judges that would allow this to happen but it happens and it happens all too frequently so when you don't have a recording it's a much harder job but it's not impossible and as i said before what you need to do is you need to follow the police investigation and find out when the facts were discovered by the police we know that police talk to one another and that interrogators do not interrogate suspects unless they have most of the facts and so if the only correct information in that confession comes from the police you have the ability to argue that it was contamination and devonte sanford is a case another unbelievable case where a 14 year old boy confessed and he had an awful attorney and he pled guilty and is serving all well over 50 years in michigan for a quadruple murder that was committed by a man who turned out to be a contract serial hitman and he came forward and admitted to it and he was in possession of the gun and he can't get out of prison in part because there was a drawing that was made of the crime scene that he agreed to that suggested he had been inside the house but he didn't do the drawing next thing you do is you compare information in the public domain to correct information in the confession when they get the facts right you need to find a source for those facts sometimes they will get facts right but it's a matter of a 50 50 guess in one of our cases prosecutors went to town over the fact that the victim was shot in the left side of the head or that somebody somebody was carrying a a baseball cap in his right front pocket you know there's a 50 50 chance that it's going to be on the left side of the head as opposed to the right side of the head and we found it much more important that he said to the suspect which side of the head did you shoot him in he happened to guess right and that was considered to be a fact that only the true perpetrator would know the same thing goes for rumors and gossip and news reports you need to find a source for the information this is not on the slide but the dna if you will in a contamination case without a recording is what's called a false fed fact and what happens in these cases and there are quite a few of them is that early in an investigation police officers develop a theory of how the crime must have occurred and they get the suspect to adopt that theory and later on after all the test results are in we find out that that theory was wrong and so the fact that the suspect confessed to a false theory especially if you have police reports that suggest the police had this theory is a false fed fact and is extremely powerful evidence of contamination there was a false fed fact in nicole harris's case the police officers who went back to the crime scene for whatever reason couldn't envision how this child had strangled himself the bed sheet that the string was hanging from would have been thrown from the bed and it was on the ground and that didn't seem like a logical way for someone to kill themselves so a police officer took a phone from one room stretched the cord to see if it would go all the way into the bedroom and came up with the idea that the child had been strangled by his mother with the phone cord the very first confession that nicole supposedly gave was to strangling her child with the phone cord but when the police went to the medical examiner and showed them the phone cord and the elastic band it was clear that the ligature marks on the child's necks came from the elastic band so they had to get nicole 20 hours later to admit to wrapping the elastic band around the child's neck that false-fed fact was in every single pleading we filed we argued that it was evidence of contamination and nobody picked it up until the seventh circuit and we got a wise judge who recognized that that was evidence of contamination and that the confession was false why would someone falsely confess to going to the trouble to strangle someone with a phone in another roof home court from another room and then later on change that story to something that is arguably less heinous using a string that's right in her own presence so false fed facts are the gold you look for in these cases now we investigate within the four corners of the confession and we try to find sources for all the information in the confession both right and wrong um and then we look outside the confession and we do any kind of forensic testing that can be done including dna testing even dna testing that's not going to be dispositive dna testing if there's an exclusion the more exclusions there are of pieces of evidence the more powerful the evidence is that somebody may be innocent we've done ballistics testing even though ballistics testing may not be the most reliable form of testing but in illinois we have a statute that allows us to do the ballistic testing to make a motion for ballistic testing and in one case the ballistics that the police said came from the gun that was recovered in our client's possession actually were found to be a closer match to other ballistics evidence that was in the ibin database fingerprints are of course you should retest fingerprints just like with dna even if the science is not as exacting if there are other people's fingerprints at the crime scene that other person is a criminal that other person doesn't know your client and that other person has a pattern and practice of committing crimes similar to the one at hand that can be gold in undermining the reliability of a confession we go out in the field no post-conviction lawyer should file anything unless they've seen the crime scene you've got to go out in the field and you it's often helpful to have a tour guide with you someone from the victim's family somebody who the victim grew up with who can help walk you through the crime scene and help you find and identify witnesses we interviewed almost all of the other of the original witnesses in the case there are always almost always in chicago multiple sources of police contamination and multiple errors in the same case so if there is a coerced confession and a false confession you almost always find a false and coerced witness statement and over the years once they are no longer under the thumb of the law these witnesses may recant so we we do it we do a lot of re-interviewing of witnesses we file all the post-conviction discovery motions we look for and try to find brady material anywhere we can um we look and see whether the the attorney involved has any history of iac or malpractice complaints to buttress any iic claims we look anywhere we can for information where there is discussion about this crime we stalk well lara stalks online chat rooms and we we look at facebook and look at people's facebook pages and we look at the comments in newspaper articles on online articles to see people who are talking with authority about our clients innocence and we've been able to track them down as witnesses find them and use that information in cases obviously pattern and practice evidence with regard to officers is critical and in chicago there are as in most or many jurisdictions there is often one or two cops whose name come up over and over again in the context of false or coerced confessions we look for patterns of similar crimes in the same neighborhood it's not easy to find these patterns but you can get them through newspaper accounts sometimes and you also look for arrests of people who have been arrested for similar crimes to see whether or not you might be able to find and locate the true perpetrator you know obviously if you can point the finger at somebody else you have a stronger case in in challenging a false confession post-conviction if you can try to identify the real perpetrator if you can narrow the circle of other suspects you should try to do that sometimes it's not possible to do that sometimes all you have is a dna exclusion so your alternate suspect is mr dna or mr fingerprint but it's not essential to identify a real perpetrator there are some things we'll talk about with regard to multiple false confession cases i'll do this quickly but the central part jogger case taught me a lesson that all of us should learn and and it's one that that requires that you look at the statements of all of the defendants and compare them against each other because when you do that you will often see that they are rife with the kind of inconsistencies that suggest that a story was formulated that it was fed to one defendant and then the bat story was used to browbeat the other defendants into adopting the same or a similar story but even even when that happens there are going to be inconsistencies among the accounts especially when the suspect has to go on videotape and try to remember what happened or or do it without it being written down for him to sign and when you look at the central park jogger cases you see all kinds of inconsistencies on virtually every major aspect of the crime and that was one of the reasons in addition to the dna evidence why the state ultimately agreed to a motion to vacate the conviction the dna evidence was powerful it was the central force for doing uh for undoing that conviction but even the district attorney's office in their affidavit recognized that they had to grapple directly with the confessions and deconstruct them lara has talked about some of this stuff as well with bob milan portions and she's going to talk about how you translate the results of your investigation into a viable claim or am i going to talk about that after the break thank god you