Tagged: confessions

‘Making a Murderer’ – A Broader Debate

“Making a Murderer,” the Netflix series about Steven Avery, who may or may not have murdered Theresa Halbach in a rural Wisconsin town, has created a healthy controversy. Everybody is asking: “Did he do it? Or was he framed by the police?” Avery served eighteen years in jail for a crime he did not commit until he was exonerated by DNA evidence in 1999. His multi-million dollar lawsuit against the county, he alleges, is the motive for the police charging him with murder. Avery, along with his nephew Brendan Dassey, a mentally-challenged teenager, were convicted in separate trials.

The 10-part series is controversial. The documentarians are accused of biased reporting intended to prove the defendants are innocent. But that’s unfair;  ultimately, the series  demonstrates something true and more important: that despite the guilty verdicts we really do not know who killed Halbach, how, or why. The prosecution presented a strong circumstantial case, but this evidence is carefully dissected, and a viewer can readily believe that what little there was had been planted by the police. Moreover, Dassey’s “confession” in which he “guessed” at what the police wanted to hear, and later repeatedly recanted, is utterly uncorroborated by anything the police could find and appears to be the unreliable product of well-known unsavory police interrogation tactics.

We should broaden the debate beyond guilty or not guilty,  because “Making a Murderer” raises several fundamental questions about the criminal justice system.

First, what is the goal of our system? Is the goal to yield results that society is willing to accept? To be sure, we hope the adversary system and the use of juries lead to reliable results. But we know that, as the documentary shows, tragic mistajes are made, eyewitnesses are mistaken, and that the most we can ever hope for is uncertainty.  Is that enough?

Does the criminal adversary system really produce a fair fight? Avery’s retained lawyers worked incredibly hard, were unstintingly loyal, and were highly effective. Dassey was indigent and was assigned an attorney who, from the beginning, believed and announced that his client was guilty despite Dassey’s protests of innocence, and in fact,  handed the prosecution evidence to use against him. After this attorney was removed, new counsel was appointed and did the best he could. But once again we revisit the age-old maxim that the quality of justice depends on how much money you have.

Did the prosecutors perform their constitutional duty to be “ministers of justice”? Whether one buys the claim that Avery was framed, it’s clear that the prosecutor accepted whatever came from the police without any independent reflection. Even after the court ordered the local police to stay out of the investigation, they stayed deeply involved and produced the only “evidence” of guilt. The prosecutors believed Dassey’s fantastic tale of bloodthirsty sexual assault even though not a drop of blood or any other forensic evidence could be found to support it. Moreover, disregarding his ethical obligations, the prosecutor repeatedly made highly prejudicial statements to the media revealing extensive inflammatory details about the crime.

A few other thoughts. The absence of any racial issues – everyone involved is Whites – simplifies the legal and policy questions raised by the film. This is an excellent opportunity. But in their place we see issues of class and culture at play in a small rural community in middle America, a culture we really can’t penetrate. How do rumor, personal history, kinships, friendships, and resentments impact the quality of justice here?

In the final analysis, nobody really knows why or how Theresa Halbach died. Avery may be innocent, a degenerate, or a predator; Dassey may be no more than an immature, mentally-deficient teenager. They may have killed her, or maybe they did not. The title alone raises the provocative question: did the police “make” a murderer by framing a case against Avery? Or did society “make” a murderer by wrongly imprisoning a young man for eighteen years on the basis of a single mistaken identification? One can always fault the messengers, but the series raises important questions.

Related Readings:

Student Perspective: The Etan Patz Case – Confession, Lack of Physical Evidence and Reasonable Doubt

POST WRITTEN BY: Alexander Zugaro (’15), Pace Law School

The story of the 6-year-old boy, Etan Patz, who had gone missing in SOHO Manhattan in 1979, is one that stretches over several decades. Now, after a ruling on November 24, 2014 by Judge Maxwell Wiley and almost a three month long trial, the story is reaching a conclusion. In 2012, after police re-opened the investigation, Pedro Hernandez confessed to law enforcement that he was responsible for the disappearance and murder of Etan Patz. He told law enforcement that he strangled Etan and disposed of his body. Mr. Hernandez was an 18-year-old man working in a neighborhood convenience store at the time of Patz’s disappearance.

However, this past fall a hearing was held regarding the admissibility of Mr. Hernandez’s confession. Hernandez’s defense attorney, Harvey Fishbein, argued that Hernandez was schizophrenic and bipolar at the time he made his confession. As such, Mr. Hernandez did not understand he could reassert his right against self-incrimination even after he waived his Miranda warnings. Yet, Judge Maxwell Wiley ruled on November 24, 2014 that the confession was admissible, stating that Hernandez waived his Miranda rights and that such waiver was done knowingly and intelligently.

To date the prosecution has not been able to find any evidence corroborating Hernandez’s confession, except a statement made by Hernandez’s brother who told police that Hernandez had confessed to him two years prior to his arrest and a statement made to members of his prayer group in the summer of 1979, none of whom came forward to testify until after Mr. Hernandez was arrested. The body of Etan Patz was never found, and prosecutors have not presented any physical evidence tying Mr. Hernandez to the boy’s disappearance.

The significance of Judge Wiley’s ruling is that the jury was able to hear Hernandez’s confession and will decide on whether they believe his confession is reliable. Defense attorney Frishbein stated that “Mr. Hernandez is extremely suggestible because of his low I.Q. and other mental handicaps. Anyone who sees these confessions will understand that when the police were finished with him, Mr. Hernandez believed he killed Etan Patz, but that doesn’t mean that he did.” On the other hand, however, the lead prosecutor stated that Mr. Hernandez’s statements contain little-known details about the crime that would be hard for someone to invent. Because Judge Wiley ruled that Hernandez’ confession is admissible, the prosecution was able to present this confession as evidence to the jury, leading to the inevitable back and forth between Mr. Fishbein and the prosecutors about the reliability and weight of the confession.

Generally, if a defendant makes a videotaped confession coupled with voluntary admission to at least one other person, such evidence would be nearly impossible for the defense attorney to overcome. However, since in this case there is no tangible evidence corroborating the confession, will the jury doubt the accuracy of Mr. Hernandez’ confession? Time will soon tell.

Since the beginning of the trial on January 30, 2015, the defense has continued to undermine the reliability of Hernandez’s confession. Not only has the defense argued that the confession was a fantasy invented under police pressure by a man with a weak and malleable mind, plagued by a personality disorder, Mr. Fishbein has presented evidence of an alternative suspect who might have been responsible of Etan Patz’ disappearance. Witnesses place Jose A. Ramos, a man convicted of child molestation in an unrelated case, near Etan Patz’s home around the time of the murder. Ramos was dating Ms. Susan Harrington, who was hired to walk Etan Patz to and from school. The defense witnesses further testified that Ramos met Etan Patz and that he had been in the Patz’s apartment. Although Etan Patz’s mother denied Ramos was ever in their apartment, by presenting this evidence, the defense further undermined Hernandez’s confession.

The confession of Mr. Hernandez has become the focal point of the entire trial. As the attorneys are delivering their closing arguments, many people following the case and trial, I’m sure, have developed their opinions. For me, it was important to realize and understand that an innocent defendant and a defendant being not guilty are two very different things. The defense attorney has to create a reasonable doubt in the jurors’ minds that Hernandez has possibly not committed the alleged crime in order to succeed. Mr. Fishbein’s efforts to cast this doubt by introducing an alternative suspect theory, by undermining the reliability of the original confession, and by pointing to the lack of physical evidence have been clear. However, it is difficult to tell what the outcome of this case will be. As the jury is about to retire to deliberate, the long anticipated verdict will soon be revealed bringing this case to a close after decades of waiting.

Related Readings:

NY Court of Appeals Upends Police Tricks Behind Interrogation Doors

False confessions have long been recognized as one of the leading causes of wrongful convictions. Case studies have proven that an individual’s confession to a crime is not always indicative of the confessor’s actual guilt. In fact, a number of external factors may lead an individual to falsely confess to committing a crime. According to studies conducted by the Innocence Project, many false confessions have been prompted by conditions in which the confessor was placed under  duress during police interrogations, or was prodded to give false information as a result of police coercion or subterfuge tactics. Laurie Shanks, clinical professor of law at Albany Law School in Albany, recently explained that “[t]here’s a perception that people don’t confess to crimes they didn’t commit, [b]ut the science is that absolutely they do.”

Yet, the rule of law determining the voluntariness of a confessor’s statement, when such statements are adduced by police subterfuge, has remained a vital and perplexing issue within our criminal justice system. The admissibility of such confessions has been a hotly debated topic among criminal defense practitioners and prosecutors, irrespective of recent case studies proving the fallibility of such confessions. In spite of recent findings, prosecutors have continued to hold the upper hand when arguing that such confessions are voluntary and admissible at trial, relying on the proposition that certain police ruses are essential to conducting meaningful interrogations of suspects, and vital to the police’s ability to expeditiously solve certain crimes.  Under this guise, the Courts have heeded to the government’s “demands” and have consequently become more laxed in uprooting such questionable police tactics –noting that confessions are “essential to society’s compelling interest in finding, convicting, and punishing those who violate the law.” McNeil v. Wisconsin, 501 U.S. 171, 181 (1991). As such, courts around the nation have routinely accepted that “deceit and subterfuge are within the ‘bag of tricks’ that police may use in interrogating suspects.” State v. Schumacher, 37 P.3d 6, 13-14 (Idaho Ct. App. 2001); See also United States v. Bell, 367 F.3d 452, 461 (5th Cir. 2004) (observing that deception is “not alone sufficient to render a confession inadmissible”).  

In New York, however, it appears that the courts are becoming less reluctant to address this significant legal issue , and more inclined than many of their sister state courts to fully determine on a case by case determination whether a confession could be deemed involuntary when police misrepresentations work to overcome a confessor’s will. See N.Y. Criminal Procedure Law § 60.45 [2][b][i]  (treating as “involuntarily made” a statement of a defendant that was  elicited “by means of any promise or statement of fact, which promise or statement creates a substantial risk that the defendant might falsely incriminate himself”).

Notably, the New York Court of Appeals has recently made clear that not all police subterfuge is acceptable during the interrogations of suspects. People v. Thomas, 2014 WL 641516 (N.Y. 2014). In Thomas, the defendant had been prodded by police to take responsibility for injuries suffered by his four-month-old son, who died from intracranial injuries purportedly caused by abusively inflicted head trauma, in order to save his wife from arrest. The Court held that the defendant’s confession,  admitting that he had inflicted traumatic head injuries on the infant, was involuntary as a result of “[t]he various misrepresentations and false assurances used [by] [police] to elicit and shape [the] defendant’s admissions.” Id. The court explained that the police officers false representations to the defendant had manifestly raised a substantial risk of false incrimination. The Court was extremely troubled by police lying to the defendant “that his wife had blamed him for [their] [son’s] injuries and then threatened that, if he did not take responsibility, they would “scoop” Ms. Hicks out from the hospital and bring her in, since one of them must have injured the child.” Id.  The Court also observed that “there [was] not a single inculpatory fact in defendant’s confession that was not suggested to him. He did not know what to say to save his wife and child from the harm he was led to believe his silence would cause.” Id.

The New York Court of Appeals also recently affirmed the Second Department’s decision in People v.  Aveni, 100 A.D.3d 228 (2d Dep’t 2012) where the appellate court  had also found that the defendant’s confession was coerced  as a result of the police repeatedly deceiving the defendant about the status of his girlfriend’s health condition. In Aveni, the defendant had been prompted by police to make incriminating statements about the herion overdose of his girlfriend. During interrogation, the police had falsely told the defendant that his girlfriend was still alive, “and implicitly threaten[ed] him with a homicide charge if he remained silent.” The court explained that the police made the defendant believe that “the consequences of remaining silent would lead to the [girlfriend’s] death, since the physicians would be unable to treat her, which “could be a problem” for him.” Id. In upholding the Second Department’s decision, the NY Court of Appeals observed that “[t]he false prospect of being severely penalized for remaining silent, raised by defendant’s interrogators, was, in the court’s view, incompatible with a finding that defendant’s confession was voluntary beyond a reasonable doubt.” People v. Aveni, 2014 WL 641511 (N.Y. 2014).  It noted that “the Appellate Division used the correct legal standard in its reversal, [and] [i]ts determination that the potential to overwhelm defendant’s free will was realized was plainly one of fact.” Id.

Steven Drizin, clinical professor at Northwestern University School of Law in Chicago commented on the recent decisions in New York, noting that “[t]he court did not set any hard and fast rules, but it did issue some clear warnings that these tactics will be scrutinized closely in future.”  He explained that until now “[t]here’s been too much deference given to police officers, and they’re accustomed to having free rein with suspects behind interrogation doors.”

Related Readings

Second Circuit: Admittance of Co-Defendant’s Redacted Confession Violated Confrontation Clause

A recent decision by the Second Circuit Court of Appeals may provide guidance to criminal defense practitioners seeking to (1) suppress the involuntary confession of a client, and (2) limit the impact of a co-defendants’ redacted confession being admitted at trial. The Second Circuit, sitting en banc, affirmed a panel’s decision to vacate the convictions of three defendants found guilty of conspiring to commit a Hobbs Act robbery, among other things, and brandishing a firearm in furtherance of a crime of violence. The Court had been asked by the government to review a panel decision that had formerly held that the “confession” of one of the defendant’s was involuntary and should not have been admitted against the declarant at trial. The government also sought review of the panel’s determination that the admission of the “confession” was also prejudicial to the declarant’s co-defendants, requiring a new trial. United States v. Taylor, 736 F.3d 661 (2d Cir. 2013).

A panel of the Court had held that the defendant’s Miranda waiver was not knowing and voluntary, given that the defendant was clearly mentally incapacitated during his interview with federal agents. Id. at 669. The panel noted that the defendant had ingested a quantity of Xanax pills immediately before his arrest, and not long before the interrogation by the FBI had begun. The panel pointed out that the defendant was “in and out of consciousness while giving his statement, and in a trance or a stupor most of the time when not actually asleep.” Id. at 670. As such, the panel determined that “the officers’ persistent questioning took undue advantage of [the] [defendants’] diminished mental state, and ultimately overbore his will.” Id. The panel concluded that the admission of the defendant’s involuntary confessions was a critical part of the prosecution’s case, and could not be deemed “harmless error beyond a reasonable doubt.” Id. at 672.

Notably, the Second Circuit (en banc) withdrew the panel’s prior decision, and issued a superseding opinion. States v. Taylor, 2014 WL 814861, (2d Cir. 2014). It not only reaffirmed the panel’s prior decision in all respects, but further held that the admission of the defendant’s “confession” at trial violated the Confrontation Clause rights of the other co-defendants. The Court ruled that the redacted confession simply did not comply with Bruton, and made it obvious to jurors that the declarant had implicated his co-defendants in the crime. The Court explained that the redacted version of the defendant’s statement suggested that the original statements contained actual names.

The Court took observance of the fact that the redacted statement had contained both the declarant’s name and the name of the government’s cooperating witness (“Luana Miller”), while referencing the other co-defendants by “two other individuals” or “driver.”  Id. The Court reasoned that the redacted confession allowed jurors to notice that “Miller is the one person involved who was cooperating, and [] infer that the obvious purpose of the meticulously crafted partial redaction was to corroborate Miller’s testimony against the rest of the group, not to shield confederates.” Id. at *11. The Court noted that “[i]f the defendant had been trying to avoid naming his confederates, he would not have identified one of them-Miller-in the very phrase in which the names of the other confederates are omitted.” Id.

The Court explained that “[o]nce it becomes obvious that names have been pruned from the text, the choice of implied identity is narrow. The unnamed persons correspond by number (two) and by role to the pair of co-defendants.” Id. at *12. The Court noted that the “obviously redacted confession … points directly to the defendant[s], and it accuses the defendant[s] in a manner similar to … a testifying codefendant’s accusatory finger.” Id. (quoting Gray, 523 U.S. at 194).  The Court concluded that the “awkward circumlocution used to reference other participants, coupled with the overt naming of Luana Miller (only), is so unnatural, suggestive, and conspicuous as to offend Bruton, Gray, and Jass.” Id.

While the Second Circuit’s decision is applaudable, it may leave many criminal defense practitioners pondering over the slew of similar cases that have come before the Circuit in the past without any success on this  issue. Both the language and form (identifying by name the declarant & cooperator(s), while others as “person/individual”) that the Court identified in Taylor appears to have been customarily approved by the Courts. Indeed, Federal prosecutors have routinely been able to utilize such redacted confessions, although the defense has routinely objected to its admission based upon the obvious nature of the redaction and the likelihood that the jury will infer that their client had been implicated by their cohort.  Nevertheless, the Second Circuit has finally spoken against this once unfettered practice, and provided some much needed guidance on the issue.

Related Readings

No Recording of Police Interrogation in New York

On May 1, 2009, Jonathan Lippman, Chief Judge of the State of New York, announced the creation of the New York State Justice Task Force—one of the first permanent task forces on wrongful convictions in the United States. The Justice Task Force was formed to study wrongful convictions, learn the causes of wrongful conviction, and propose recommendations to make wrongful convictions less likely to occur

Information about the Task Force, its mission and members, as well as its recommendations, can be found here.

Among other criminal justice proposals, the Task Force is unanimously recommending electronic recording of police interrogation because

recording can aid not only the innocent, the defense and the prosecution, but also enhances public confidence in the criminal justice system by increasing transparency as to what was said and done during the interrogation. Indeed, among its many benefits, recording helps identify false confessions; provides an objective and reliable record of what occurred during an interrogation; assists the judge and jury in determining a statement’s voluntariness and reliability; prevents disputes about how an officer conducted himself or treated a suspect, and serves as a useful training tool to police officers.

Over 800 jurisdictions nationwide, including the states of Alaska, Minnesota and Illinois, regularly record police interrogations. A 2004 study conducted by Illinois officials of 200 locations that implemented this reform found that police departments overwhelmingly embrace the measure as good law enforcement whose time has come. www.innocenceproject.org

Certainly recording of interrogation could have prevented the wrongful conviction of Jabbar Washington, whose case is discussed once again in the New York Times this morning.

But legislation to require recording of police interrogation is being blocked in New York by the recalcitrance of the NYC District Attorneys. Why don’t our district attorneys join collective efforts to improve the criminal justice system? Why shouldn’t New York be in the forefront of criminal justice reform? Why are we lagging behind?