“The cops started telling him they wanted to hear about the gun,” said Foxall, but he denied having a gun. “That’s when they really got out of control and started yelling at him. He started to feel personally threatened. He actually did wind up saying something about a gun. He told them he had a gun that night but didn’t use the gun.”
So where was the gun? In a canny impulse, Felix made up a story: that he had left the gun with his grandfather. “I thought this was brilliant,” said Foxall. “If he put something in there that was demonstrably false, there would be something wrong with the confession: he doesn’t have a grandfather. Both grandfathers are dead.”
Once the badgering had carved the confession roughly into shape, the officers taped it, although it lacked a critical detail, one they had neglected to feed him. Felix learned it three days later in court when he was handed the charge sheet and saw the date of the murder. He stared at the document and realized that he had the perfect alibi: on the day that Antonio Ramirez had been gunned down, Felix had been locked up in a juvenile detention facility.
For that he could thank the tough love of his grandmother. On probation for theft, he had violated the conditions by hanging out in a bad neighborhood that had been declared off-limits. As a punishment milder than jail, authorities offered an ankle bracelet for electronic monitoring, but his grandmother refused to allow her phone to be set up to make the required transmissions. She wanted him in custody—for his own good, it turned out—and so that is where he spent thirty-one days, one of them by lucky coincidence the day of the murder.
The charges were dropped, of course, and Foxall was greatly relieved. “I would have hated to have had to try the case,” he said. “It would have been very scary. Juries don’t want to believe that somebody will confess to a crime he didn’t commit.” Judges, either. “When we were standing there with the juvenile hall record, the judge said, ‘Well, I don’t understand—why would he confess?’ ”
Most questionable confessions cannot be proven false with absolute certainty, and police and prosecutors who rely on them usually shift and shuffle past new evidence that defeats the lie. Many oppose testing for DNA years after a conviction, and the Supreme Court has refused to find a constitutional right to such evidence.7 Under the Bush administration, federal prosecutors required defendants pleading guilty to waive any claim to subsequent DNA testing, a policy reversed by Obama’s Justice Department.8 Even where DNA recovered from a rape victim doesn’t match a suspect’s, new theories of the crime are immediately spun by embarrassed cops and district attorneys: that their man was still guilty as an accomplice, that the genetic material came from another criminal, unidentified. A parcel of doubt often remains.
Not so in Felix’s case. The falsehood of his admission was so obvious that it helped open the way to modest reform. At the urging of public defenders in Oakland, the police department instituted, then rescinded, then reinstated a policy of videotaping all statements. It equipped eleven interview rooms to record perpetually, so that the entire run of questioning leading up to the climactic confession—not just the final few minutes—is on record for judges and juries to evaluate. In keeping with professional guidelines on interrogation techniques, the suspect is not told that he is being taped (lest he hesitate to incriminate himself), and if he asks, the police officer “may deny the fact that the interview is being recorded,” according to Oakland’s manual.9
Yet the department took no action against the two interrogators. Detective Cruz remained a prominent homicide investigator for the Oakland Police Department. Sergeant Dunakin switched to a traffic unit where he could do what he loved, ride a Harley-Davidson.10
Felix was not unique. A 2004 study found three prisoners who had admitted to crimes that had been committed while they, too, had the perfect alibi of being in jail. Of 125 confessions later proven inaccurate by DNA mismatches or the discovery of the real perpetrators, forty came from minors under eighteen and seven from children under fourteen, whose special vulnerability to tricks of interrogation has been established by extensive social psychology research.
One of the forty, Allen Jacob Chesnet, sixteen, confessed to murdering a neighbor after Maryland police prompted him with specifics, showed him pictures of the crime scene, and pretended that the lab had called with a DNA match. He surmised, as many children do, that he’d be jailed if he kept up his denials and could go home if he confessed, so he gave a statement. It was full of errors and omissions: He said that he’d stabbed the neighbor once, but in fact she’d been stabbed repeatedly, the police knew. He didn’t mention—because he didn’t know—that she’d also been strangled with her bra strap and hit on the head with a porcelain figurine.
He also told the police that she had stabbed him in the hand and that he had bled. But after the true lab results showed that his DNA did not match blood at the scene, he was still not released. It was campaign season, and the district attorney, in a heated race, didn’t seem eager to admit error in such a high-profile case. He kept Chesnet in jail with adults for two months more, until safely reelected. During that time behind bars, the boy was knifed once and raped twice.11
Clearly, cops in some departments tend to bear down hard when the crime is serious or sensational. Almost all of the study’s 125 false confessions involved murders (81 percent), rapes (9 percent), or arson (3 percent), whose gravity can generate intense pressure for quick arrests. Children who come under suspicion in such cases are easily manipulated.
Researchers find that the lower the age, the higher the willingness to make a phony admission simply to end the unpleasant stress of aggressive questioning. Even while playing the role of suspects during mock interrogations, one-quarter of jailed juvenile delinquents—no strangers to the machinations of criminal justice—said they would falsely confess to halt the process.12
Real examples are plentiful. Before finding the actual culprits, police extracted admissions to arson from a nine-year-old in Providence, Rhode Island, and two ten-year-olds in Salem, Virginia, and Galveston, Texas. Anthony Johnson, eleven, confessed falsely to murdering an elderly neighbor in Omaha, Nebraska.13
Two Chicago boys, ages seven and eight, caused a national sensation in 1998 when they told police during interrogation that they had killed Ryan Harris, an eleven-year-old girl found beaten on the head, her underpants stuffed in her mouth. The boys, confined for several days in a psychiatric institution, became poster children for the ills of America’s inner cities, which seemed shrouded in doom. Then, three weeks later, the lab found semen on the girl’s clothing, not within the capability of seven- and eight-year-olds, no matter how malevolent. Charges were dropped, but only against the remarkable reluctance of the Chicago police superintendent and the Cook County state’s attorney, who remained gripped by the intoxicating power of the confession. They could not concede error. They could not free themselves from the fiction that the boys were somehow involved, even when the DNA identified the rapist and murderer as Floyd M. Durr, who had previously been accused of three other sexual assaults in the neighborhood where Harris had been found.
All the components of the criminal justice system—police, prosecutors, judges, jurors—lag far behind the understanding of human behavior that has been accumulated during decades of psychological study. That body of knowledge, confirmed by the hard experience of real cases and the recent precision of DNA testing, should make the false confession completely visible in the landscape of social problems, no more obscure or mysterious than crime itself. Yet professionals at every level create conditions that foster lies of guilt. Interrogation trainers teach manipulation, police use deception, prosecutors display a stubborn eagerness to accept admissions containing inaccuracies and contradictions. And the case law assembled by judges over the decades regulates interrogations too loosely.
There is nothing novel about false confessions. Some have been famous, others absurd. Some fifty women in Salem confessed to being witches. About two hundred people offered themselves to
authorities as the kidnappers of Charles Lindbergh’s baby in 1932, perhaps in some demented lust for notoriety. Psychologists reported that one man admitted to a murder to impress his girlfriend. Another did the same to confuse and retaliate against police who had arrested him at a party for drinking. A woman trying to hide an extramarital affair confessed just to convince her husband that she wasn’t where he suspected: Gee, honey, I couldn’t have been having sex with Joe, ’cause I was killing that guy on the other side of town!14
Police sometimes play along with the nonsense. In Florida, they closed about twenty unsolved murders in 1979 by spending four days prompting disjointed, error-ridden confessions from Jerry Frank Townsend, whose IQ between fifty and sixty defined him as mentally retarded. His statements, recorded with frequent pauses, misstated the races and ages of some victims; a thirteen-year-old black girl killed in the daytime was transformed by Townsend into a white girl he said he’d murdered at night. Nevertheless, despite the lack of physical evidence, he spent twenty-two years in prison, and the real serial killer and rapist, Eddie Lee Mosley, continued his spree.15
The psychological literature is clear: while false confessors include people with normal intelligence, those with IQs in the retarded range are especially vulnerable. Many tend to answer yes to every question, even the nonsensical: Does it ever snow here in the summer?16 “The mentally retarded are slow thinking, easily confused, concrete (as opposed to abstract) thinkers, often lack the ability to appreciate the seriousness of a situation, may not understand the long term consequences of their actions, and tend to have short attention spans, poor memory, and poor impulse control,” write the law professor Steven A. Drizin and the psychologist Richard A. Leo. “The mentally retarded tend also to be highly submissive (especially eager to please authority figures), compliant, suggestible, and responsive to stress and pressure. As a result, people with mental retardation are disproportionately represented in the reported false confession cases.”17
THE CENTRAL PARK JOGGER
Interrogation techniques taught by professional trainers influence the questioning that produces false confessions. The methods also produce true confessions; it’s just hard to tell the difference.
One police tool is the cunning lie about evidence, carefully concocted to convince the suspect that persistent denial is futile in the face of overwhelming fact. “We are allowed, by law, to use guile and ruse, and we do,” Detective Tom McKenna told New York magazine. That was thirteen years after he had persuaded a fifteen-year-old that his fingerprints would be found on the clothes of the raped and beaten woman called the Central Park jogger, where no useful prints had been found at all. “People only give things up when you tell ’em you got ’em,” the detective said. “But to frame somebody and leave the right son-of-a-bitch out in the street? I’m irate anyone would infer that.”18
Yet the New York City police did leave the right son-of-a-bitch on the street, and he committed four more rapes in the summer of 1989, murdering one victim who was pregnant. Meanwhile, one Latino and four black teenagers were charged on the basis of contradictory confessions, given after fourteen to thirty hours of interrogation, that got most details wrong, including such basics as time and place.
The crime in Central Park set off alarms along the racial frontier. Just after dark that night, dozens of youths from Harlem had rampaged through the park, attacking white joggers and bikers in a random spree they called “wilding.” From the sanctuary of white privilege, the spasm of angry pleasure looked like a breach in the firewall that had somehow held back the roiling fury of the ghetto, now released to ignite long-standing stereotypes and fears of black aggression.
One victim became the symbol of the night and of the broader dread. Until she identified herself years later as Trisha Meili, she was known only as the Central Park jogger, and by her most superficial qualities: white, twenty-eight, a graduate of Wellesley and Yale, a promising Wall Street investment banker, just the sort of outline that might sketch the daughter, wife, sister, colleague, classmate, friend of any affluent New Yorker. For hours she lay bleeding into the ground, her moans unheard until a couple of construction workers passed by well after midnight. She had been beaten so badly that her left eye had come out of its socket, and she had lost three-quarters of her blood. After twelve days in a coma, she began a very slow and incomplete recovery, but she left behind every shred of memory about the attack.
Into that vacuum stepped Detective McKenna and his colleagues. From the boys’ accounts, the officers appear to have used standard methods of isolation, deception, implied leniency, and reductions of moral responsibility. The teenagers had no contact with parents or lawyers for many hours, and they were deeply fatigued. One was told the fingerprint lie, and others were told they were just witnesses, not suspects. They all said later that they thought that once they confessed, they would be allowed to go home, a typical belief among youth in custody. If the cops had actually made such a pledge, the confessions would not have been admissible, for case law requires interrogators to avoid promises of leniency they cannot or will not keep, especially involving the severity of the charge or punishment. Instead, a skillful questioner weaves a web of implication that induces a suspect to invent his own hopes and expectations, a technique that is hardly different from an explicit promise in the mind of the suspect, yet is acceptable to the courts.
Finally, the teenagers engaged in the common practice, often encouraged by the interrogators, of minimizing their role by picturing others at the heart of the action: I felt pressured by my peers and didn’t want to be there; I was standing at the side just watching, not raping, not beating. (In other cases, police sometimes float the notion that the victim provoked the crime. Trainers warn them not to give suspects an argument they can use in their defense at trial.)
The investigators might have been suspicious that four of the boys placed the location of the attack seven or eight blocks from the actual spot and said it had occurred forty-five minutes later than reasonably possible, given other evidence. Moreover, all the accounts differed from one another, and no forensic evidence linked the boys to the place or the victim. DNA testing was primitive then, but hairs found on one youth, originally thought to be Meili’s, could not be matched. Nor could a semen stain on her sock. Nonetheless, the police believed the boys’ confessions, which were videotaped and admitted into evidence. They were convicted and sentenced to five to fifteen years.
After they had served their time and the statute of limitations had expired, Matias Reyes, a prisoner doing thirty-three years to life for the subsequent rapes and murder, came forward to say that he had attacked the Central Park jogger alone. Unlike the teenagers, he was able to draw a detailed map and describe exactly what happened where.
To his credit, the Manhattan district attorney, Robert Morgenthau, did what few prosecutors are willing to do: he reinvestigated the case and determined that Reyes’s DNA matched the semen, that the hairs on one boy’s clothes were not the jogger’s, and that hair and blood on a nearby rock, supposedly the assault weapon, were not hers either. Eleven months of investigation turned up no connection between Reyes and any of the boys, so the prosecutors were convinced that he had acted alone. But the police department was not, holding to the theory—now an implausible theory—that the boys had been involved along with Reyes or had conducted an initial attack before Reyes happened along. That proposition was based on nothing except the confessions and a stiff-necked refusal to admit a colossal mistake.
HUMAN LIE DETECTORS
Absolutes are hard to come by in the criminal justice system, so they are manufactured. A verdict becomes a fact, and a fact is not easily revised, even though it is a synthetic sort of fact, like an umpire’s close and disputed call at second base. It creates a new reality, which may not be what really happened. The game moves on as if the runner were obviously out, as if the defendant were clearly guilty.
A confession is the same. Once police and prosecutors obtain it, they
tend to treat it as a fact, and research has shown that it colors their interpretation of the evidence, leading them to credit what confirms the guilt and discount what does not. “A suspect’s confession sets in motion a virtually irrefutable presumption of guilt among criminal justice officials, the media, the public, and lay jurors,” write Drizin and Leo. Police “typically close the investigation, clear the case as solved, and make no effort to pursue other possible leads—even if the confession is internally inconsistent, contradicted by external evidence, or the result of coercive interrogation.”19 Judges set higher bail, prosecutors pursue more serious charges, and juries are more likely to convict. Confessions carry more weight than eyewitness testimony or other evidence, and even confessions that later prove false bring guilty verdicts—in 73 and 81 percent of cases researched in 1998 and 2004.20
Furthermore, mock jurors do not disregard confessions that they recognize as coerced, even when instructed by a “judge” to discount them entirely. In one experiment, volunteers were offered one of three versions of a murder case: no confession, immediate spontaneous confession, or a “high-pressure” confession after suffering pain and threats by a gun-waving detective. Many of the jurors saw the high-pressure confession as involuntary and gave lip service to the law by saying that it would not influence their verdict. But it had great influence nonetheless, pushing the conviction rate far above the version that lacked any confession at all.21
Rights at Risk: The Limits of Liberty in Modern America (Vintage) Page 9