7. District Attorney’s Office for the Third Judicial District v. Osborne, No. 08-6 (2009), leaving the state legislatures and Congress to specify the conditions under which post-conviction DNA testing is conducted. At the time, forty-six states had laws governing such evidence. The 5–4 opinion, written by John Roberts, was joined by Anthony Kennedy, Antonin Scalia, Thomas, and Samuel Alito. Dissenters were Stevens, David Souter, Stephen Breyer, and Ruth Bader Ginsburg.
8. Jerry Markon, “Justice Dept. to Reverse Bush-Era Policy on DNA Tests,” Washington Post, Nov. 18, 2010, p. A4.
9. “Bureau of Investigation (BOI) Policy and Procedure Manual: Interview Room Audio/Video Recording Equipment,” Policy 08-04, Bureau of Investigation, Oakland Police Dept., Dec. 27, 2008. A bill passed by the California legislature requiring videotaping statewide was vetoed by Governor Arnold Schwarzenegger. Radley Balki, “Schwarzenegger Vetoes Justice,” FoxNews.com, Nov. 5, 2007.
10. In March 2009, Dunakin and another motorcycle cop were shot to death after pulling over a driver who then fled and killed two other officers before dying in a shoot-out—the worst attack on policemen in Oakland’s history. The shooter was Lovelle Mixon, a parole violator. Henry K. Lee, “Mark Dunakin—a Cop Committed to Oakland,” San Francisco Chronicle, March 23, 2009, p. A8; “The Officer Down Memorial Page, Inc., Honoring All Fallen Members of the Oakland Police Department,” http://www.odmp.org/agency/2872-oakland-police-department-california.
11. The actual murderer, later identified by fingerprints and DNA, was sentenced to forty years. Steven A. Drizin and Richard A. Leo, “The Problem of False Confessions in the Post-DNA World,” North Carolina Law Review 82 (March 2004).
12. Naomi E. Sevin Goldstein, Lois Oberlander Condie, Rachel Kalbeitzer, Douglas Osman, and Jessica L. Geier, “Juvenile Offenders’ Miranda Rights Comprehension and Self-Reported Likelihood of Offering False Confessions,” Assessment 10, no. 4 (2003), pp. 359–69.
13. Drizin and Leo, “Problem of False Confessions.”
14. Kassin and Gudjonsson, “Psychology of Confessions.”
15. Drizin and Leo, “Problem of False Confessions.”
16. Kassin and Gudjonsson, “Psychology of Confessions.”
17. Drizin and Leo, “Problem of False Confessions.”
18. Chris Smith, “Central Park Revisited,” New York, Oct. 14, 2002. See also Drizin and Leo, “Problem of False Confessions”; and Jim Dwyer, “One Trail, Two Conclusions; Police and Prosecutors May Never Agree on Who Began Jogger Attack,” New York Times, Feb. 2, 2003.
19. Drizin and Leo, “Problem of False Confessions.”
20. Kassin and Gudjonsson, “Psychology of Confessions,” citing Richard A. Leo and Richard J. Ofshe, “The Consequences of False Confessions: Deprivations of Liberty and Miscarriages of Justice in the Age of Psychological Interrogation,” Journal of Criminal Law and Criminology 88, no. 2 (1998), pp. 429–96, and Drizin and Leo, “Problem of False Confessions.”
21. Saul M. Kassin and Holly Sukel, “Coerced Confessions and the Jury: An Experimental Test of the ‘Harmless Error’ Rule,” Law and Human Behavior 21, no. 1 (1997), pp. 27–46.
22. “Illinois Governor to Commute All Death Row Sentences,” AP, Jan. 11, 2003.
23. Joseph Buckley, interview with author, May 11, 2006. John E. Reid & Associates Inc., Investigator Tips, http://www.reid.com/educational_info/r_tips.html?serial=11833857901642783&print=[print. The company and its methodology were developed by Reid, a Chicago police officer from 1936 to 1947, who died in 1982. Material in this and other sections on the Reid Technique is also drawn from Buckley, e-mail to author, Feb. 22, 2011.
24. Frank Horvath, J. P. Blair, and Joseph P. Buckley, “The Behavioural Analysis Interview: Clarifying the Practice, Theory, and Understanding of Its Use and Effectiveness,” International Journal of Police Science and Management 10, no. 1 (2008), pp. 101–18.
25. Ibid., p. 107.
26. Ibid.
27. Kassin and Gudjonsson, “Psychology of Confessions.”
28. Leo, “Miranda’s Revenge.”
29. Supplementary Report, Police Department, County of Suffolk, N.Y., Sept. 14, 1988, p. 9; http://www.courttv.com/news/tankleff/docs/report1.html.
30. Saul Kassin, interview, The Oprah Winfrey Show, Oct. 20, 2008.
31. McCready on Oprah and from trial testimony.
32. Martin Tankleff, interview, Oprah, Oct. 20, 2008.
33. Frazier v. Cupp, 394 U.S. 731 (1969). The Court did not address the lie explicitly and did no analysis but relied on “the totality of the circumstances” test; other issues were considered more relevant, including whether the police had the obligation to halt questioning when the suspect wondered aloud if he should talk to a lawyer. Since the interrogation occurred before Miranda’s admonition that questioning must cease when an attorney is requested, the justices found no violation in this case.
34. State v. Cayward, 552 So. 2d 971 (Fla. App. 2 Dist. 1989).
35. Reid & Associates, “The Use of Visual Aids During an Interview or Interrogation,” Investigator Tips, http://www.reid.com/educational_info/r_tips.html?serial=1215011884372476&print=[print.
36. Reid & Associates, “A Review of Legal Issues Concerning Trickery and Deceit During an Interrogation,” Investigator Tips, http://www.reid.com/educational_info/r_tips.html?serial=1107286261495331&print=[print.
37. Rochin v. California, 342 U.S. 165 (1952). The warrantless break-in was based on “some information” about narcotics sales, and the vomited capsules were found to contain morphine. “This is conduct that shocks the conscience,” Justice Felix Frankfurter wrote for a unanimous Court. “Illegally breaking into the privacy of the petitioner, the struggle to open his mouth and remove what was there, the forcible extraction of his stomach’s contents—this course of proceeding by agents of government to obtain evidence is bound to offend even hardened sensibilities. They are methods too close to the rack and the screw to permit of constitutional differentiation.”
38. Kassin interview, Oprah.
39. Kassin and Gudjonsson, “Psychology of Confessions.”
40. Gisli H. Gudjonsson and James Alexander Culpin MacKeith, “False Confessions: Psychological Effects of Interrogation,” in Reconstructing the Past: The Role of Psychologists in Criminal Trials, edited by Arne Trankell (Deventer, Netherlands: Kluwer, 1982), pp. 253–69.
41. Hugo Münsterberg, On the Witness Stand (Garden City, N.Y.: Doubleday, 1908), cited in Kassin and Gudjonsson, “Psychology of Confessions.”
42. A witness had heard Steuerman say that he’d murdered two people, and a teenager testified that his father, Joseph Creedon, had told him that he and Peter Kent had done the killings after Steuerman had signaled for them to enter the house. Steuerman, Creedon, and Kent all denied the accusation, but a fourth man, Glenn Harris, admitted to being the getaway driver. None was charged. Bruce Lambert, “Youth Says Father Admitted to ’88 Long Island Murders,” New York Times, Nov. 14, 2005.
43. One witness quoted in the book worked at one of Steuerman’s bagel stores where his son, Todd, a convicted narcotics dealer, allegedly sold drugs and paid the police to look the other way. The witness told the author that she once saw the senior Steuerman and McCready enter the store together and go to the back room where a safe was located. A second witness, Danny Hayes, was told by Seymour Tankleff that he’d argued with Steuerman over his son’s drug dealing in the store, was fearful, and that if “anything happened,” he should tell the police. Hayes did, but nothing came of it. Bruce Lambert, “New Book Casts Doubt on Police Detective’s Role in 1988 Long Island Killings,” New York Times, Dec. 27, 2008; Richard Firstman and Jay Salpeter, A Criminal Injustice: A True Crime, a False Confession, and the Fight to Free Marty Tankleff (New York: Random House, 2008).
44. Alfonso A. Castillo, “Martin Tankleff Accuses Investigators,” Newsday, March 24,
2009. After release, Tankleff worked as a paralegal on wrongful convictions for a Garden City, Long Island, law firm and planned to go to law school. Claude Solnik, “Q&A with Martin Tankleff, Paralegal at Quadrino Schwartz in Garden City,” Long Island Business News, March 31, 2010.
45. Alan Hirsch, “Threats, Promises, and False Confessions: Lessons of Slavery,” Howard Law Journal 49, no. 1 (Fall 2005), p. 37, citing Simon v. State, 37 Miss. 288, 293 (1859), and Wyatt v. State, 25 Ala. 9, 12–13 (1854).
46. Ibid., citing Dinah v. State, 39 Ala. 359 (1864).
47. Bram v. United States, 168 U.S. 532 (1897).
48. Arizona v. Fulminante, 499 U.S. 279 (1991). The Court cited Bram’s citation of the “however slight” statement, “which under current precedent does not state the standard for determining the voluntariness of a confession.”
49. Hirsch, “Threats, Promises, and False Confessions,” p. 48.
50. Reid & Associates, “Conducting a Custodial Behavior Analysis Interview,” Investigator Tips, http://www.reid.com/educational_info/r_tips.html?serial=11987740111611314&print=[print.
51. Reid & Associates, “Use of Visual Aids During an Interview or Interrogation.”
52. Ibid.
53. Davis’s criminal record made him ineligible to possess a firearm. The 2008 Supreme Court decision, District of Columbia v. Heller, No. 07-290 (2008), confirming a Second Amendment right to keep guns in the home, did not alter the federal prohibition against gun ownership by convicted felons.
54. Missouri v. Seibert, No. 02-1371 (2004).
55. On the other hand, there is no duty to warn someone of his right to refuse consent to a search, as there is to warn him of his right to refuse to answer questions. Schneckloth v. Bustamonte, 412 U.S. 218 (1973).
56. Charles Peters, “Judge Him by His Laws,” Washington Post, Jan. 4, 2008, p. A21.
57. Commonwealth v. DiGiambattista, 442 Mass. 423 (2004).
58. Camera angle is also a factor. Researchers have discovered that a confession tends to look voluntary when only the suspect is shown on the screen, but more questionable when the interrogator is pictured as well. “Videotaped Confessions Can Create Bias Against Suspect,” Science Daily, March 15, 2007.
59. Noah Schaffer, “Tale of the Tape: Recorded Interrogations Level the Playing Field, Despite Initial Fears,” Lawyers Weekly, April 2, 2007.
60. Dave Orrick, “Why Some Police, Prosecutors Resist Videotaping Interrogations,” Chicago Daily Herald, May 16, 2002.
61. DiGiambattista, 442 Mass. 423.
62. Reid & Associates, “The Importance of Accurate Corroboration Within a Confession,” Investigator Tips, http://www.reid.com/educational_info/r_tips.html?serial=1102008820455822&print=[print.
CHAPTER THREE: THE ASSISTANCE OF COUNSEL
1. Johnson v. Zerbst, 304 U.S. 458 (1938).
2. Betts v. Brady, 316 U.S. 455 (1942), rejected an appeal to require state courts to provide counsel unless exceptional circumstances existed.
3. Gideon v. Wainwright, 372 U.S. 335 (1963). Since Gideon had no lawyer, Chief Justice Earl Warren asked Abe Fortas, who was later elevated to the Court, to represent him. Twenty-two states’ attorneys general filed an amicus curiae brief arguing on Gideon’s behalf.
4. Anthony Lewis, “The Silencing of Gideon’s Trumpet,” New York Times Magazine, April 20, 2003, p. 50. See also Lewis, Gideon’s Trumpet (New York: Random House, 1964).
5. Strickland v. Washington, 466 U.S. 668 (1984).
6. Halbert v. Michigan, No. 03-10198 (2005).
7. One exception is in a capital case, where some states, including Alabama, where Hinton was tried, require the defense attorney to have at least five years’ experience.
8. Brady v. Maryland, 373 U.S. 83 (1963).
9. These and other factual details of the case come from Hinton v. State of Alabama, Nos. CC-85-3363.60 and CC-85-3364.60, Brief of the Appellant; Hinton, No. CR-04-0490, Opinion, Criminal Court of Appeals, 2006; and Hinton, No. 1051390, Opinion, Supreme Court of Alabama, 2008.
10. Bryan Stevenson, e-mail to author, Dec. 2, 2005.
11. Hinton, Brief of the Appellant, pp. 18–19.
12. Bryan Stevenson, interview with author, Feb. 10, 2010, e-mail to author, June 12, 2011. Hilton v. Alabama, CR-04-0940 (2011).
13. Strengthening Forensic Science in the United States: A Path Forward (Washington, D.C.: National Academies Press, 2009).
14. Out of two hundred randomly reviewed cases, nineteen were found to have serious errors. Nick Bunkley, “Detroit Police Lab Is Closed After Audit Finds Serious Errors in Many Cases,” New York Times, Sept. 25, 2008; “Detroit Lawyers Criticize Crime Lab Probe,” Detroit Free Press, Oct. 9, 2008.
15. Melendez-Diaz v. Massachusetts, No. 07-591 (2009). The decision was 5–4, the opinion by Antonin Scalia.
16. American Bar Association Standing Committee on Legal Aid and Indigent Defendants, Gideon’s Broken Promise: America’s Continuing Quest for Equal Justice, Dec. 2004. See also reports on Michigan and New York by the National Legal Aid and Defender Association, http://www.mynlada.org/michigan/michigan_report_execsum.pdf and http://www.nlada.org/DMS/Documents/1192201979.35/FINAL%20Franklin%20County%20%28October%202007%29%20version%209%200.pdf.
17. The dichotomy violates state law. Gideon’s Broken Promise, p. 12. Texas Fair Defense Act of 2001, Tex. Code Crim. Proc. Ann. art. 26.04.
18. Gideon’s Broken Promise, described by Chief Criminal Judge Michael Spearman of King County Superior Court in Seattle.
19. Gideon’s Broken Promise, pp. 24–25, consultant Robert Spangenberg, Spangenberg Group.
20. Ibid., p. 25.
21. Adam Liptak, “Public Defenders Get Better Marks on Salary,” New York Times, July 14, 2007, quoting study by Radha Iyengar of Harvard.
22. Transactional Records Access Clearinghouse, Syracuse University, “Illegal Reentry Becomes Top Criminal Charge,” http://trac.syr.edu/immigration/reports/251/; “Immigration Enforcement Under Obama Returns to Highs of Bush Era,” http://www.trac.syr.edu/immigration/reports/233/, and “Five Southwest Border Districts Account for Majority of DHS Immigration Criminal Enforcement” and “Prosecution Time for DHS-Immigration Cases,” Tables, http://trac.syr.edu/immigration/facts/.
23. Solomon Moore, “Push on Immigration Crimes Is Said to Shift Focus,” New York Times, Jan. 12, 2009.
24. Defenders refused to take new cases in various jurisdictions in Rhode Island, Connecticut, Maryland, Florida, Tennessee, Kentucky, Ohio, Minnesota, Arizona, Montana, and Washington State. Missouri public defenders appealed a lower court order to continue taking cases to the state supreme court. David J. Carroll, Research Director, National Legal Aid and Defender Association, interviews with author, Jan. 27, 2009, and Sept. 26, 2011.
25. Erik Eckholm, “Citing Workload, Public Lawyers Reject New Cases,” New York Times, Nov. 8, 2008. The states where public defenders refused to take more cases were Florida, Missouri, Kentucky, Tennessee, Minnesota, Maryland, and Arizona. See also American Council of Chief Defenders, “Resolution on Caseloads and Workloads,” Aug. 24, 2007. Caseload limits were recommended by the National Advisory Commission on Criminal Justice Standards.
26. Pascal F. Calogero Jr., Chief Justice, Supreme Court of Louisiana, State of Judiciary address to legislature, May 3, 2005.
27. Ken Armstrong, “Grant County Settles Defense Lawsuit,” Seattle Times, Nov. 8, 2005. Settlement Agreement in Best v. Grant County, No. 04-2-00189-0, in Superior Court State of Washington for Kittitas County, Oct. 31, 2005, http://www.defender.org/files/archive/GrantCountyLitigationSettlementAgreement.pdf. The caseload is calculated as 150 “case equivalents,” with more serious prosecutions, such as murder, counting as two cases, and less serious, such as probation violation, as one-third of a case.
28. Ad
ministrative Office of Courts, Alabama. The percentage rose from 66 in 2000 to 69 in 2003 and 2004. Although there is no statewide system, several local districts have public defenders.
29. Joe Curtin and Doug Mackey, consultant and staff member, Criminal Justice Coordinating Committee, Jefferson County Attorney’s office, interview with author, Nov. 7, 2005.
30. “In the Matter of the Review of Issues Concerning Representation of Indigent Defendants in Criminal and Juvenile Delinquency Cases,” Order, Nevada Supreme Court, Jan. 4, 2008.
31. Lydia Diane Jones v. State, No. CR-03-1351, Alabama Court of Criminal Appeals, Opinion, 2005. Partial transcripts of trial hearings on counsel’s conflict are also contained in this opinion.
32. Results of jury form, “Mitigating Factors in the Case,” New York Times, May 3, 2006. Nine jurors each found these factors to be mitigating: “That Zacarias Moussaoui’s unstable early childhood and dysfunctional family resulted in his being placed in orphanages and having a home life without structure and emotional and financial support eventually resulting in his leaving home because of his hostile relationship with his mother,” and, “That Zacarias Moussaoui’s father had a violent temper and physically and emotionally abused his family.” Four jurors also cited evidence that his father and two sisters were psychotic, and three mentioned that he “was subject to racism as a youngster [in France] because of his Moroccan background, which affected him deeply.”
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