The Criminal Justice System Gone Awry

Professor Brandon L. Garrett's sobering article, "Getting guilty right," published in the Boston Globe on March 28, presents the results of his study of 250 erroneous convictions using court records and archives housed at the Innocence Project. Garrett's book, Convicting the Innocent: Where Criminal Prosecutions Go Wrong, will be published in April, and expands on the conclusions he reaches in his Globe article.

Garrett uses the example of Neil Miller, wrongly convicted of a 1989 rape, to draw attention to the shortcomings of the criminal-justice system. By the time a new DNA test was performed thanks to the work of attorneys from the Innocence Project, Miller had served almost ten years in prison for a crime he did not commit. What went wrong in Miller's case? The DNA evidence in his case was not conclusive, and the "photo arrays" shown to the victim were handled in a "suggestive way." The victim did not positively identify Miller as her attacker until she saw him in the courtroom where it "was obvious that he was the suspect in her case." What did the jury see? "A victim pointing confidently to Neil Miller in the courtroom and declaring that he had attacked her." Conviction was a foregone conclusion.

Garrett discusses the methodology of his study:

In each case, the trial record can be read like a kind of airline accident report, a set of clues that points to what sent an innocent person to jail and let the real culprit go free. To amass the first systematic record of how these false guilty verdicts were reached, I located more than 200 trial transcripts, together with plea hearings, police reports, and judicial decisions in the cases of the first 250 convicts freed by DNA tests from 1989 through early 2010. With the help of law student research assistants, I then combed through the voluminous records. The results suggest real cause for concern about the accuracy of types of evidence that our courts routinely rely upon. Time and again, certain things went wrong, starting in the early stages of a case and later shaping what happened in the courtroom: the way eyewitness testimony was elicited, the reliability of forensic evidence, the handling of interrogations, and the way the investigations themselves were conducted.

He urges the American law-enforcement system to "learn from its mistakes ... to make things better." Garrett makes specific suggestions on how police can ensure the accuracy of eyewitness testimony and avoid false confessions, some of which come after the individual endured "high-pressure interrogation tactics over many hours." Garrett urges police to record entire interrogations and cautions against reliance on forensic evidence that may "sound scientific but actually depend on subjective judgment." Until the science has been improved, "judges need to carefully scrutinize forensics in their courtrooms." He ends on a hopeful note:

The costs of these wrongful convictions are now clear, as are the benefits of adopting reforms. A decade ago, only a handful of states had relaxed the strict rules that limited convicts’ ability to reopen their cases for new DNA testing, and now all but two states have done so. A decade ago, few police departments videotaped interrogations, and now over 750 do so. It took years to exonerate these innocent people and to understand what these cases can teach us about how to make our criminal justice system more accurate. Slowly but surely in reaction to these troubling cases, we are beginning to see the stirrings of a criminal procedure revolution.

False Confessions

Everyone in law enforcement knows that "nothing is more powerful than a confession." Robert Kolker, in the New York article "I Did It," goes on to state that

Decades of research on jury verdicts has [sic] demonstrated that no other form of evidence--not eyewitnesses, not a video record of the crime, not even DNA--is as convincing to a jury as a defendant who says "I did it." The police, of course, understand the power of confessions and rely on interrogation techniques to produce them quickly so they can clear their cases.

Kolker describes the case of Frank Sterling, a New York man who spent eighteen years in jail for a murder he did not commit.

Despite having a solid alibi, Sterling confessed to the murder and his videotaped confession was the "centerpiece" of the prosecution's case. A few days later, the police learned that another man was telling people that he'd committed the murder, but they chose not to pursue the lead as Sterling had already confessed. Why did Sterling confess to the murder if he did not commit it? He says that the police wore him down during twelve hours of interrogation and that he was deprived of sleep. They did not ask him to describe the crime, but rather asked him a number of leading questions. Sterling now feels that he wasn't in his right mind at the time and just wanted the ordeal to come to an end. He would have said anything the police wanted him to say if it meant he could go home. This, of course, is one criticism that has been leveled at aggressive interrogation techniques used against suspected terrorists.

The police officers who interrogated Sterling employed techniques laid out in a well-known handbook, Criminal Interrogation and Confessions, by John E. Reid and Fred Inbau. First published in 1962, the handbook defined "the culture of police-interrogation training for the past half-century." Kolker describes the technique as follows:

The procedure basically involves three stages meant to break down a suspect's defenses and rebuild him as a confessor. First, the suspect is brought into custody and isolated from his familiar surroundings. ... Next the interrogator lets the suspect know he's guilty ... The interrogator then floats a theory of the case, which the manual calls a "theme." ... In the final stage, the interrogator cozies up to the subject and provides a way out. This is when the interrogator uses the technique known as "minimization"...

This leads to a confession. The Reid method is described in some detail here.
This method "wasn't physically coercive, [but] was certainly psychologically so. The Supreme Court's 1966 Miranda decision singled out the Reid method for creating a potentially coercive environment, citing it as one reason suspects needed to be informed of their right to remain silent."

After Sterling had served four years of his sentence, his appeals lawyer filed a new motion to overturn his conviction, which was rejected. The lawyer filed four more motions over the next eght years, but none was successful. In 2004, they sought the assistance of Cardozo Law School's Innocence Project, which "has won wide acclaim for its work in freeing the wrongly convicted." DNA evidence pointed to the man who had said he'd committed the murder shortly after Sterling's conviction, and he eventually confessed. Sterling was freed in April of this year.

How can false confessions be prevented? Probably the easiest way is to videotape "every minute of every police interrogation," a practice that is made much easier since the advent of digital recordings. Kolker reports that eighteen states (more than 800 jurisdictions) are now taping interrogations. New York is among the states that do not videotape whole interrogations (usually only confessions), although the State Bar Association has called for videotaping the entire interrogation. Click here for more information about the Association's work to reduce the incidence of wrongful convictions in New York State. Two police precincts in New York City will test recording interrogations in early 2011. Despite opposition from some members of the police force, "research shows that police and prosecutors forced to tape their interrogations often wind up supporting the practice [which] can lead to fewer motions to suppress and fewer claims that suspects were unduly deceived or abused."