You Have the Right to Remain Innocent

by James Duane

  Unfortunately for Ruffin, as is usually the case, the police had cards they were not laying on the table. Although he did not know it at the time, Ruffin had been brought in for questioning as a suspect not because he had ever been seen in that neighborhood, as far as the police were aware, but because the victim had seen him in the building where she worked, miles from where she lived. (Unfortunately, this kind of mistaken identification is not unusual; when a victim has been through a terrible trauma like sexual assault, the natural and overwhelming desire is to spend every waking moment scanning the faces of people nearby, hoping against all odds that perhaps the perpetrator will show up again somewhere. And the danger that the victim will make a mistake is especially great in a case like this one, where the victim was a white woman and the defendant a black man, because all of us have greater difficulty in making reliable cross racial identifications.)81

  This means that Ruffin was, unfortunately, the victim of a most unlikely coincidence. Now that the police were aware that he once had a girlfriend in that same neighborhood, they became more certain of his guilt, and that fact was used to help convict him at trial. When Ruffin took the witness stand in his own defense and truthfully testified that he was innocent, almost the entire cross-examination by the prosecutor was devoted to forcing him to admit that he had once spent time in that same neighborhood making regular visits to another woman—a fact that he never would have had to explain to anyone if he had not told the police about it. The prosecutor asked a long line of sarcastic questions, conveying his disbelief in the defendant’s insistence that this rape victim had mistakenly picked out a totally innocent man who just happened to have a former girlfriend who lived miles from his home, but in the same neighborhood where that victim was attacked in her home.82 You have to admit, that does sound a little far-fetched. But it was the truth. Unfortunately for Earl, the prosecutor, just like the police, found that this alleged coincidence was a little too implausible to believe, and apparently the jury did too. But they were all wrong about him, and he spent twenty years locked up in a box because of their mistake. And all because of information—truthful information—that an innocent man foolishly volunteered to give to the police.

  Of course, it is certainly possible that Ruffin might have been convicted without that information. After all, there is the possibility that he would have been convicted based only on the testimony by the victim, who said that she was sure he was the one. But we can never know for sure. Truthful information he gave to police might have made the difference between his freedom and two decades in prison.

  A few years ago, Michael Morton was released from a Texas prison where he had spent almost twenty-five years of a life sentence for a crime that he did not commit.83 He was released after it was discovered that a corrupt prosecutor had failed to turn over evidence to Morton’s lawyers that would have been extremely helpful to the defense, including DNA evidence that practically proved his innocence. The prosecution had virtually no evidence against Morton at all, except for truthful information that he shared voluntarily with the police.

  The last time Morton ever saw his wife alive, she was sleeping in their bed when he left for work. Several hours later, while she was home alone with their young son, someone broke into the house and brutally murdered her. There was also evidence that she had been sexually assaulted. But there was never any eyewitness or physical evidence to suggest that Morton had committed the crime. In fact, their son—who saw the murder—later told the police that the killer was not his father, but a man he called “a monster.” The police and the prosecutor never gave that information to Morton or his lawyers.

  When Morton heard about the crime, of course, he was devastated. He instinctively, foolishly, made the terrible decision to talk to the police and tell them the answer to everything they asked him about. By the time they were done with their investigation, they had no direct evidence connecting him to the crime, no witness or physical evidence to prove his guilt. In fact, they had nothing against him at all, except for unfortunate coincidences and ambiguous circumstances that he had willingly shared.

  For example, Morton admitted to the police that the night before the murder, he and his wife had been in a little argument.84 It had been his birthday, and he was disappointed that she had fallen asleep before they could engage in some romantic intimacy. In fact, he had actually left her a handwritten note in their bathroom before he left for work the next morning, expressing his disappointment with that fact. In the opinion of the prosecutor, and then the jury, and then the Texas Supreme Court, this evidence was the most important evidence against Morton, because it showed his supposed motive to commit the crime. There were many other details that Morton gave the police—truthful answers from an innocent man—that were also used to help convict him. For example, when the police asked where and when Morton had eaten dinner with his wife the night before, he made a terrible mistake of telling the police the truth. (Why do I say that it was a terrible mistake? Because, just like the information Earl Ruffin gave the police about his former girlfriend, it was information that could not possibly help his defense, or help the police identify the true killer.) He revealed to the police that he and his wife had eaten dinner together at a local restaurant at about nine thirty in the evening.

  Before I go any further, I need to ask you to take a moment and consider the following question: How on earth could evidence like that possibly be used to help convict an innocent person? If an innocent man like Morton tells the police where and when he had taken his wife out to dinner the night of his birthday, how could that be used to help implicate him in her murder at their home the next day? Even if you are unusually intelligent and imaginative, chances are that you will have to admit to yourself, I cannot possibly see how that could be used against him. But you would be wrong.

  When Morton told the police the time that he had dinner with his wife, he was unwittingly giving the government what turned out to be “critical evidence” against him, because any evidence that you give to the police, even truthful information, can be used to help convict you if it is interpreted by an incompetent or corrupt expert witness. And there are countless bogus experts out there, all more than willing to testify in exchange for the generous compensation that is paid to them by willing prosecutors who are anxious to make a case against the only suspect they can find.

  In Michael Morton’s case, the prosecutor called a witness at trial who offered his “expert opinion” that, based upon his examination of the contents of Morton’s wife’s stomach following her autopsy, she was killed within four hours of her last meal. This testimony was simply wrong, as we now know, because we all now know that Morton was innocent, and that his wife was not killed until after he’d left for work. But this junk science supposedly proved that Morton was alone with his wife at the time of her killing, because he was the one who told the police what time they had dinner together, and because he was the one who told the police what time he left for work! The police never would have been able to make that argument if Morton had not spoken to them.

  Just two years ago, Glenn Ford was released from a Louisiana prison, where he had spent more than twenty-nine years on death row, awaiting execution for a murder that he did not commit. He was released after the local prosecutor revealed that they had evidence in their possession to prove that he could not have committed the crime.85 To make matters even worse, Ford learned shortly after his release that he had lung cancer, and he died a few months later at the age of sixty-five. There is absolutely no way that he would have been convicted of anything had he exercised his right to remain silent. The police had no evidence against him except for the truthful information that they were given by this innocent man.

  About thirty years ago, in the New Orleans area, a jewelry merchant was found shot and killed in his store.86 There were no witnesses, no fingerprints, no photos or videos of the killer or the killing. The police had almost nothing to go on. When they interviewed the victim’s friends
and neighbors, no surprise, they found that the victim had a number of acquaintances with whom he was in occasional contact. One of those individuals was Glenn Ford, a black handyman whom Ford sometimes employed to fix things around the store. The police naturally decided that they would question Ford to see what he might know.

  Ford should have sent word to the police in writing, perhaps through an attorney, that he knew about their interest in meeting with him, but that he would very respectfully decline to answer any of their questions. But that is not what Ford did. And if you have been reading this book from the beginning, by now you can of course guess his tragic mistake. Just like most innocent men who foolishly think they have nothing to hide, Ford went down to police headquarters in the middle of the night to talk with them. He did not take a lawyer, although he did go with his father. Surely neither man ever imagined that they would never again see each other alive outside of a jail cell.

  Ford did not admit that he was guilty, because he was not. He told the police truthfully that he did not commit the crime, that he was not there at the time of the shooting, and that he had no idea who had committed the crime. (Even that was a mistake. Even if that was all he had told the police, it could have possibly been used to help convict him, as we have seen, if the officer had any mistaken eyewitnesses or experts who would claim that he was there at the time, or if the police thought he seemed suspiciously nervous or calm.) But he did not stop there. He also told police that, by an unfortunate coincidence, he had been at the jewelry shop, apparently just a few hours before the shooting, and had asked the merchant if he had any work for Ford to do. When the merchant said he had no work to offer, Ford asked if he could borrow some money in advance. But the merchant declined that request as well. Ford told the police that he then left the store. There was no other witness to that meeting, and no way the police could have learned those details from any other source if Ford had not told them himself. But armed with this information, the police and the prosecutor concluded that Ford had both the motive and the opportunity to commit the crime.

  To make matters worse, Ford also admitted that, right after he left the jewelry store, he walked around to the back and urinated in the alley behind the store. Why did he tell the police such a thing? It certainly could not have helped him look more innocent, or help the police find the real killer. But this is what innocent people do when they talk to the police—they keep talking for hours, volunteering everything they can possibly think of, even if it could not possibly help anyone except a corrupt prosecutor. That detail certainly did not prove that he was guilty, but it was mentioned by the prosecutor at the trial, and even mentioned later by the Louisiana Supreme Court when it summarized the relevant “evidence” against Ford. Apparently they interpreted his act as if it somehow confirmed his malice or hostility.

  When the police asked if Ford had any alibi witnesses who could verify where he was at the time of the killing, he was very happy to tell them that he did have such witnesses, and he volunteered their names and contact information. But when the police met with those alibi witnesses, they turned out to be worse than useless for Ford’s defense. They tried to be helpful, because they told the police that Ford was indeed with them at what the police and their expert thought was apparently the time of the killing. Can you guess what happened next? That’s right: after the police found that Ford had alibi witnesses who could verify that he was with them at the apparent time of the killing (which is not unusual for an innocent suspect), their “expert” changed his opinion about the likely time of the death. Now the killing was placed at a time when Ford’s witnesses could not verify his whereabouts; suddenly those witnesses became useless to Ford. But they were not useless to the prosecutor.

  The police also learned from these alibi witnesses that not long after the killing, Ford had discussed with them his desire to sell a gun in his possession. There was no evidence that Ford owned or used the gun illegally, or that he desired to sell the handgun in a manner that would violate the law. But in the opinion of the police and the prosecutor and the jury and the state supreme court, this was just too much to write off as mere “coincidence.” Under Louisiana law, Ford could not be convicted on the basis of such circumstantial evidence unless it was enough to exclude beyond all reasonable doubt any alternative hypothesis that was consistent with his innocence. But the jury and the state supreme court both concluded there was no way that all of these incriminating and suspicious details could possibly be written off as innocent coincidence. Ford was then sentenced to death, and it took more than thirty years for everybody to learn that he was entirely innocent—and convicted on the basis of nothing but information and leads that he had volunteered when he met with the police that night.

  Any time you agree to talk to the police or government investigators, you are rolling the dice and taking a terrible chance with your life. You do not know what you are up against, because you do not necessarily know what crime they are really investigating. They may tell you, but what they say may be a lie. You also do not know what evidence they already think they have against you. They may tell you, but again, they might only be lying. And even if you are completely innocent, there is absolutely no way you could possibly have any idea whether the truthful details you give the police could tragically get you ensnared in a web of ambiguous circumstances, later leaving you in the position of trying in vain to convince the jury that it was all just an amazing coincidence.

  I once heard a young prosecutor telling a jury in closing argument that “there are no coincidences,” and he seemed perfectly sincere. The obvious problem is that there really are coincidences—that is why we have a word for them—and some of them are so extraordinarily implausible that they almost defy belief. A few years ago, a young couple in South Africa met in college, fell in love, and became engaged before they discovered that they were biological siblings, raised by their estranged parents in separate cities.87 Two lovers in England were married before they learned that they were actually twins who had been adopted by separate families as babies.88 Two California girls met in an online hunt for roommates after they chose to attend the same college in Louisiana, then became close friends and later roommates before they discovered that they were born in different cities to different mothers but had the same biological father.89 Such things are so strange and bizarre that they are hard to believe, but in a world with more than seven billion people, just about anything can happen once in a while.

  Unfortunately for innocent criminal suspects, their life and liberty rest in the hands of prosecutors, jurors, and even appellate judges who have no specialized training or insight into probability or statistics. Heaven help the poor fool who volunteers the remarkable fact that he once had a girlfriend in the same neighborhood where some victim mistakenly says he raped her, or the fact that he had an argument over sex with his wife the night before somebody else broke into their house and killed and sexually assaulted her, or the fact that he was trying to sell a gun not long after somebody else shot a man who refused to give that suspect some money that same day. At that point, your only hope is to pray that your lawyer can help persuade the jury that these suspicious circumstances were just a “coincidence.” You may know in your heart that you were telling the truth and are totally innocent, but you may still spend the rest of your life sitting in a prison cell pondering how unlikely it all was.

  Let me show you just how easily the police can trick you, either deliberately or unintentionally, into making an incriminating statement. Take a look at the following short report about what the police found recently at a crime scene. Read it over once to yourself, just once, but read it nice and slowly, out loud if you prefer:

  Earlier today at 8:00 a.m. in Miami, Florida, special agents of the Miami Police Department revealed that they had found the bodies of two nursing students who had been sexually assaulted and murdered in their apartment. The two victims were roommates at the Miami University Department of Nursing. Their bodies were found and
identified for the police by Diana Wilson, a young woman who was the twin sister of one of the victims. Police estimate that the victims were killed sometime around midnight, although their bodies were not found until shortly after sunrise.

  Now that you have read that short story, see if you can answer the following questions correctly without looking back at the facts you have just read about this crime report.

  In what city and state did the crime take place?

  How many women were found murdered at that crime scene?

  What sort of a college were they attending?

  What time do police think the crime took place?

  After you have read and answered those four questions, ask yourself: Are you certain about the accuracy of some or all of your answers? Absolutely certain? So sure that you would be willing to risk your life and liberty? Remember your answers to those questions for just a couple minutes, but do not go back yet to see if you are right or wrong. The truth will astound you.

  In the last few years, as I have traveled around the country speaking about the Fifth Amendment, I have asked my audiences these same questions after reading them the same fictional news report about a crime scene in Miami. Every time I do, I ask the audience members to listen as closely as they can as I read them this narrative. I warn them in advance that I will be questioning them on what they have heard, so they are listening very closely. In fact, in order to give them the greatest possible motivation to listen as closely as they have ever listened to anything in their lives, I even warn them that I will be trying to trick them.