Earlier this year PLN reported on the phenomenon of suspects who falsely confess to crimes they did not commit. [See: PLN, April 2011, p.18]. As false confessions occur in wrongful conviction cases with disturbing regularity, this article revisits and expounds on this important topic and the tragic consequences that can result.

In the days before DNA testing could scientifically and conclusively prove whether a person committed certain crimes, a suspect who confessed was considered guilty, period.
No recantation, appeal, habeas corpus action or post-conviction evidence could dig the confessor out of his or her self-made hole, with the possible exception of proven physical coercion by the police. Now, however, more than 40 people have been exonerated by DNA evidence in cases where they had confessed to offenses they demonstrably did not commit.

The question is why, and how, false confessions occur.

A frequent factor in false confessions is faulty police work. The most commonly shared characteristics among people who falsely confess are mental illness and youth. According to research into false confessions conducted by Professor Brandon L. Garrett at the University of Virginia School of Law, over half the people who provided false confessions were either mentally ill or under 18 years old or both.

But aren’t the police supposed to take precautions when questioning mentally impaired or easily-misled people who might give false confessions, and shouldn’t their confessions seem questionable if they didn’t actually commit the crime? They should, said Garrett, but instead “almost all of these confessions looked uncannily reliable,” often containing details about the crime that it seemed only the perpetrator could know. So where did such details some from? Usually from the police.

An example of how false confessions can happen is the case of Eddie Lowery, a young man who, after partying hard, drove his vehicle into a parked car the same night that a rape occurred. Police grilled Lowery for more than seven hours, stating from the beginning that they knew he had committed the rape. They let him take a lie detector test, then told him he failed.

“I didn’t know any way to get out of that, except to tell them what they wanted to hear,” said Lowery. “And then get a lawyer to prove my innocence.”

Lowery’s naïveté shows the lack of education in the United States as to how crimes are prosecuted and how the judicial system actually works.

Lowery was convicted of the rape despite a lack of physical evidence, based solely on his coerced confession. He spent 10 years in prison and was paroled before DNA evidence revealed that he could not have been the rapist. Even then, he was surprised to hear about other false confessions.

“I beat myself up a lot” for having confessed, said Lowery. “I thought I was the only dummy who did that.”

So how did numerous convincing details about the rape get into Lowery’s confession? The police put them there.

According to Lowery, after his initial confession the police went over the details of the crime with him. If he got the facts wrong they would correct him. For instance, when they asked him how he gained entrance and he said “I kicked in the front door,” they corrected it to “back door,” the entrance actually used by the rapist.

Lowery was eventually exonerated; he filed suit and received a $7.5 million settlement and an apology from Riley County, Kansas officials in January 2010. See: Lowery v. The County of Riley, U.S.D.C. (D. Kan.), Case No. 5:04-cv-03101-JTM.

It has been known for some time that police might inadvertently leak facts during an interview, thus contaminating a confession, so Prof. Garrett expected to find some examples of contamination when he began his research.

Yet he found that almost all of the 40 cases of false confessions he examined included detailed information that was provided by the police yet attributed to the person who confessed, in order to bolster the credibility of their confession.

That’s what happened to Earl Washington, Jr., a mentally-disabled man who served almost 18 years in Virginia and came within hours of being executed for a murder he did not commit. The telling fact that proved his confession false was that he said the victim had worn a halter top, when in fact she had worn a sundress. However, an initial police report had stated that she wore a halter top, proving that the details in his confession actually came from the police.

Washington was exonerated, pardoned and awarded $2.25 million against the estate of a police investigator who had facilitated his false confession. Washington and state officials subsequently agreed to a $1.9 million settlement, including attorney fees. See: Washington v. Wilmore, U.S.D.C. (W.D. Va.), Case No. 3:02-cv-00106-NKM-BWC.

According to Steven A. Drizin, co-founder and director of the Center on Wrongful Convictions at Northwestern University’s School of Law, the importance of contamination during police interrogations cannot be overstated. While honest police errors or misinformation might lead to a wrongful arrest, “it’s contamination that is the primary factor in wrongful convictions,” he noted.

Another way that police investigators obtain confessions is to get suspects to agree to a “what if” hypothetical situation concerning a crime. The police ask a suspect to theorize how the crime might have occurred, and then use the suspect’s hypothetical statement as the basis for a “confession.”

Why do police focus on innocent suspects and pressure them into giving confessions? “You become so fixated on ‘This is the right person, this is the guilty person,’ that you tend to ignore everything else,” stated Jim Trainum, a former police officer and expert on training officers to avoid false confessions.

When Kevin Fox’s 3-year-old daughter was sexually assaulted and murdered, the police focused on him as the perpetrator and ignored his requests for a lawyer. When he didn’t break down after 14 straight hours of interrogation, they screamed at him, showed him a picture of his daughter bound and gagged with duct tape, told him his wife and father had abandoned him, falsely claimed they had forensics evidence implicating him in the crime, and threatened to have jail prisoners rape him.

Finally, he agreed with one detective’s hypothetical account of how his daughter might have died in an accident and he had panicked and faked the crime scene. Fox spent 8 months in jail in Will County, Illinois before being cleared by DNA evidence that identified a sex offender who was later convicted of the crime.

On April 7, 2010, the Seventh Circuit Court of Appeals found that Will County police had framed Fox for the rape and murder of his daughter. The appellate court upheld the verdict in a lawsuit Fox and his wife had filed against the county, but reduced the $15.5 million awarded by a jury to $8 million. See: Fox v. Hayes, 600 F.3d 819 (7th Cir. 2010). [Also see: PLN, Nov. 2008, p.21].

In some cases, however, even DNA evidence might not be enough to overcome a false confession. Juan Rivera of Waukegan, Illinois was convicted three times, most recently in 2009, for the rape and murder of an 11-year-old girl despite DNA evidence that excluded him. Prosecutors said the girl may have been sexually active before she was killed and the DNA didn’t prove Rivera’s innocence.

Rivera, who had an IQ of 79 and was 19 years old at the time, confessed to the murder following three days of intense police questioning. His attorneys said the confession included words that were beyond Rivera’s vocabulary, and claimed police investigators hinted at details they wanted Rivera to say. Additionally, Rivera was on electronic monitoring at the time of the crime and the monitoring records indicated he was at home. Regardless, he was convicted and sentenced to life.

“I think what we are seeing right now is there has become an overdependence on confessions,” said Lawrence C. Marshall, a Stanford University law professor and co-founder of the Center on Wrongful Convictions who is representing Rivera on appeal.

Lake County, Illinois resident Jerry Hobbs III was more fortunate, though that’s a relative term. Following hours of high-pressure police interrogation, Hobbs confessed to murdering his 8-year-old daughter and her 9-year-old friend.

DNA from semen found in his daughter’s body excluded him as the perpetrator. Nonetheless, prosecutors pushed on and planned to seek the death penalty, claiming the DNA might have ended up in his daughter randomly since she was found in a part of the woods where people went to have sex, even though her body was fully clothed.

The charges against Hobbs were dropped after the DNA was found to match a man who had been charged with rape and robbery in another state, but prosecutors refused to apologize.

“I don’t believe law enforcement did anything wrong in this case,” said Lake County State’s Attorney Michael Waller.

Hobbs, who spent five years in jail, was released in August 2010; he has since filed a lawsuit against law enforcement officials, claiming they coerced him into giving a false confession “through extreme psychological abuse as well as physical force.” See: Hobbs v. Cappelluti, U.S.D.C. (N.D. Ill.), Case No. 1:10-cv-07649.

This leads us back to the question of why an innocent person would confess to a horrible crime. “The interrogation itself is stressful enough to get innocent people to confess,” said John Jay College of Criminal Justice psychology professor Saul Kassin. “But add to that a layer of grief and shock and perhaps even some guilt – ‘I should have been there’ – and then that the parent is trying like hell to be cooperative because they want the murder of their child solved.”

Researchers have identified trauma, sleep deprivation and highly manipulative interrogation techniques as factors that contribute to false confessions. False confessions are responsible for around a quarter of all wrongful convictions, but there are other factors as well.

“We know that for certain kinds of people, particularly those with mental illness and mental deficiencies, but other people as well, the psychological intensity of an interrogation can prove absolutely as torturous as physical pain,” said Marshall.

A study by two Iowa State University (ISU) psychologists, published online on February 11, 2011 by the journal Law and Human Behavior, found that experimental participants who were subjected to mock interrogations were more likely to confess to illegal activities in order to avoid immediate consequences, even when the potential long-term consequences were less desirable. The study examined the pay-off structure, or cost-benefit analysis, of interrogations.

“Some interrogation methods – like physical isolation and the presentation of false evidence – have immediate consequences for suspects that encourage them to confess. Though they also face consequences that encourage them to deny guilt – such as the possibility of conviction and incarceration – these consequences are more [long-term],” said Prof. Stephanie Madon, one of the study’s authors.

“So the suspect is weighing these two consequences at once and that’s going to shape their behavior. That’s what we were interested in understanding. Which of these consequences is going to influence confession decisions – those that are happening right now, or the ones that may happen in the future?”

The study, based on two experiments, concluded that people may be inclined to confess during police interrogations in order to stop the immediate stress or fear they are experiencing despite the possibility of more serious consequences, such as prosecution and conviction, in the long-term.

Unfortunately, most jurisdictions are not trying to discover and correct errors, such as coercive police interrogations, that result in false confessions. Will County is an exception. The Will County Sheriff’s Department (WCSD) announced it would hire an outside consultant to examine the Fox case to determine whether crime investigation procedures should be changed.

“Obviously, there were some things that went wrong in this investigation,” said WCSD spokesman Pat Berry. “We are in the process now of vetting a couple of firms ... that will come in and review the Fox case for us.”

Will County’s attitude is laudable. It should be followed by other police agencies implicated in false confessions and those that wish to avoid them. Even a simple policy change requiring that all interrogations be video recorded would be an improvement.

Critics have questioned the “Reid Technique,” in which police investigators are trained to rely on faulty assumptions about what constitutes deceptive behavior in a suspect to force a confession. This includes basing the interrogation on the suspect’s verbal and non-verbal cues and mood, or “baiting” the suspect. Even supporters of the Reid Technique acknowledge that it can be misused.

“There is a lot of coercion that can happen, short of the [former Chicago police commander Jon] Burge case where they are torturing someone to get confessions,” observed licensed polygraph examiner Fred Hunter. Burge was convicted of perjury and obstruction of justice in connection with his torture of suspects to obtain confessions in the 1980s. [See: PLN, March 2003, p.1]. He was sentenced to 4½ years in federal prison in January 2011.

The problem is that police interrogations are “not simply to get information,” said Dr. Robert Galatzer-Levy, a psychiatrist on the faculty of the Chicago Institute for Psychoanalysis and the University of Chicago. Instead, they are “well-thought-through psychological manipulations to get a confession.”

“People say, ‘I’d never confess, not in a million years,’” Galatzer-Levy stated. “But it turns out that people who are vigorously interrogated will confess – even if they’re innocent. The terrified but rational person might give police a story just to end the interrogation, or because they think it might improve their situation.”

“You can’t believe you’d ever confess to something you didn’t do,” agreed Rob Warden, who with Steven A. Drizin co-authored the book “True Stories of False Confessions” (Northwestern University Press, 2009). “But at some point people simply lose their will to resist. That’s the danger of prolonged interrogation.”

Meanwhile, wrongful convictions based on false confessions continue to come to light. On September 26, 2011, the Innocence Project presented DNA evidence to a Missouri court that indicated George Allen, Jr., serving a 95-year sentence for murder, was not guilty. Semen from two men was found on the victim’s robe, and DNA tests conducted in 2010 revealed that neither belonged to Allen.

Allen, who suffers from schizophrenia, was charged with the murder after he confessed to police officers who reportedly prompted him to give answers to their questions that fit the crime scene. They sometimes asked him to change his answers to make his confession seem more accurate.

Professor Garrett’s recently-released book on wrongful convictions, “Convicting the Innocent: Where Criminal Prosecutions Go Wrong,” is worthwhile reading for those who want to learn more about this topic; he covers not only false confessions but also erroneous eyewitness testimony, improper police lineups, faulty forensics evidence and unreliable jailhouse snitch testimony. Another good resource is “Actual Innocence: When Justice Goes Wrong and How to Make it Right,” by Barry Scheck, Peter Neufeld and Jim Dwyer, which is available from PLN’s book store (see page 53).

Sources: Chicago Tribune, www.physorg.com, www.chron.com, www.news.iastate.edu, www.nbcchicago.com, www.johnemaki.com, Huffington Post

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