An article written by staff attorneys from Northwestern Law School’s Center on Wrongful Convictions of Youth and a former Northwestern Law student was recently published in the Rutgers Law Review journal. In Arresting Development: Convictions of Innocent Youth, Joshua Tepfer, Laura Nirider, and Lynda Tricarico analyze a select group of exonerations in an effort to determine what factors might make children and adolescents more susceptible to wrongful convictions and what possible reforms could be enacted to reduce the occurrence of these convictions.

A key finding of the study showed that in more than 55% of the 103 youth exonerations examined, a false confession or false statement by another youth contributed to the wrongful conviction. Younger children were more likely to falsely confess than older children. Whereas sixteen-year-olds and eighteen-year-olds falsely confessed in 18.8% and 16.7% of the cases, respectively, false confessions occurred in more than half of the cases of eleven-to fourteen-year-olds. In an interview with Nirider and Tepfer, Nirider said that these findings were the most interesting to her. Although she suspected that younger exonerees would be more likely to falsely confess—both in comparison to adult exonerees and among youths themselves—the rate at which they did was higher than originally thought.

Tepfer was most surprised by the findings surrounding guilty pleas. Prior to the study, the authors hypothesized that like false confessions, younger exonerees would be more likely to plead guilty to crimes they did not commit. The study revealed, however, that while 7.9% of adult exonerees pled guilty, the rate was only 6.8% for the 103 youth exonerees. In order to derive the statistic for adult exonerees, 214 cases from the Innocence Project database were examined. The authors consulted a youth psychologist who explained that since juveniles tend to be greater risk-takers, they may be more willing to accept the risks of going to trial. Additionally, juveniles are more likely than adults to use moral reasoning in making decisions as opposed to practical reasoning. As such, they may be more inclined to follow the “only the guilty should plead guilty” guideline.

Given the high number of false confessions and false statements among youth exonerees, the authors note that “the threat of wrongful conviction can spread like a virus from one child to his friends and acquaintances.” Thirty-two percent of the 103 cases studied involved a multi-defendant exoneration. In other words, those individuals were exonerated alongside at least one of their co-defendants. Of the 214 adult cases examined, only 9.8% involved multiple defendants. The Central Park Jogger Case is the most well-known example of a multi-defendant wrongful conviction, a case that eventually led to the exoneration of five innocent men convicted during their teenage years. Their convictions were largely the result of false confessions and false statements made during police interrogations.

On average, the 103 youth exonerees included in the study were 16.6 years old when the crimes occurred, 16.8 years old when they were accused, 18 years old when convicted and 31.7 years old at the time of exoneration. African-Americans represented 57.3% of the youth exoneree pool, with whites and Latinos representing 24.3% and 14.6%, respectively; the remaining 3.9% were of an unknown race.

The findings presented in this article help to validate the authors’ beliefs that children and adolescents are uniquely susceptible to wrongful convictions, especially given their tendency to falsely confess and make false statements. In Roper v. Simmons (2005) and Graham v. Florida (2009), the Supreme Court recognized that juveniles do not possess the same risk-weighing capabilities as adults, and they are more vulnerable to comply with outside pressures. As noted in the article, the enactment of reforms such as recording police interrogations, developing more appropriate interrogation procedures and requiring the presence of an attorney during police questioning can help reduce the number of youth wrongful convictions that occur.

For more information on youth wrongful convictions, please visit the Center on Wrongful Convictions of Youth website. Click here to read the complete article, Arresting Development: Convictions of Innocent Youth.

Does it seem ridiculous that prosecutors would force defendants who entered into a plea agreement, often the only choice for those facing long prison sentences and little money to mount a credible defense, to waive their rights to future DNA testing that might result in their exoneration? Well, that is exactly the Faustian bargain that many faced in federal prosecutions since the Innocence Protection Act was passed by Congress during the Bush administration. So, someone facing the death penalty, even if innocent, to avoid the death chamber, could never pursue their innocence claims if they agreed to accept a sentence of life without the possibility of parole. OK, that sounds fair, doesn”t it?

In a move to bring a little justice to the Justice Department, Attorney General Eric Holder has ordered the U.S. Attorneys throughout the country not to enforce the Bush-era regulation that ordered prosecutors to force defendants pleading guilty to sign away their rights to DNA testing.

While President Obama recently chose not to pardon or commute the sentences of anyone who might have been wrongfully convicted, at least his Justice Department has made a move in the right direction. New York Times editorial

There are thousands, if not tens of thousands, of people serving life sentences for crimes they did not commit. Thousands more innocent men and women in our prisons likely accepted plea deals to avoid longer sentences and even the death penalty. According to most experts, in over 25 percent of all wrongful convictions, the defendants falsely confessed to a crime they did not commit. Damien Echols, on death row in the infamous West Memphis 3 case, has recently had his case reopened in a unanimous decision by the Arkansas Supreme Court based upon new DNA testing results that point to his innocence. Under this regulation, had he accepted a plea deal to avoid the death penalty, which was not offered to him at the time of his conviction at any rate, it would matter little that someone else”s DNA was found at the crime scene of the murder of three little boys in 1993, he would not be able to prove his innocence and would likely be forced to spend the rest of his life in prison even though innocent.

We must recognize that we have a broken criminal justice system that will imprison the innocent or even force them to make deals they are in no position to refuse. Prosecutors, whether in Suffolk County, New York, Jonesboro, Arkansas, or Washington D.C., will too often do anything to obtain a conviction with little regard for the administration of justice. Judges, either because they were once prosecutors or with an eye to their next election, will often go along with the prosecution rather than hold them to a standard of justice that protects the innocent and rightfully convicts the guilty.

Every day it seems we read about another wrongfully prosecuted individual freed from prison based upon new DNA or other evidence that proves their innocence, often decades after they were convicted. Recognizing that wrongful convictions happen, is it not time that prosecutors join with others in providing a minimum of protections such as videotaping police interrogations, to ensure the guilty go to prison and the innocent go home?

The practices of the Memphis (TN) Police Department surrounding the recording of confessions have come into the spotlight recently with the case of Jessie Dotson. Dotson was convicted and sentenced to death in October for the 2008 murder of six people, including his brother and two nephews. His confession was featured on the A&E program The First 48, a documentary series that chronicles homicide investigations in several cities across the country.

The trial judge, however, did not allow Dotson”s confession to be admitted in court because the recording was edited by A&E for the television program, and the original version was erased. As a result, the testimony of Deputy Chief Toney Armstrong, the police officer who took the confession, was solely based on his memory. The only documentation of the confession that existed was a single paragraph from an interrogation that lasted more than five hours.

Dotson took the stand at his trial and testified that his confession was coerced by the Memphis Police, who held him for hours in the interrogation room. Although 18 states have passed laws requiring the recording of interrogations, Tennessee is not among them. In Memphis, according to a FOX13 report, the interrogation policy encourages the investigator always to obtain a written statement and to “paraphrase the defendant”s version of the crime if they agree to talk but refuse to sign a statement.”

For more information on his case, see the video below.

Former NYPD detective Jay Salpeter got many suspects to confess to crimes during his nearly 20 years on the police force. Now working as a private investigator and assisting in the fight to free several wrongfully convicted individuals, Salpeter is certain that he never took a false confession while working as a detective. Last weekend, I spoke with Salpeter, who retired from the police force in 1991 and was recently featured on PBS FRONTLINE’s “The Confessions.” He is best known for his role in overturning Marty Tankleff’s conviction and has been active in the case of the West Memphis Three.

You can read the full transcript of my interview here, but I will highlight some of the major points that Salpeter raised in our discussion.

First, we talked about the reaction that many individuals have when they hear about false confessions (my family and friends included) — namely, that they would never falsely confess to a crime. After all, why would you confess to something you didn’t do? Salpeter stresses that until one is put into that situation, he or she does not know what the outcome would be. When individuals are brought in for interrogation, they are removed from their familiar surroundings, have no access to family or friends, and are sometimes forced to endure hours and hours of questioning.

Salpeter does note, however, that individuals who are not familiar with their rights, specifically the right to have an attorney present, are easy targets for false confessions. The responsibility to ask for an attorney belongs to the individual brought in for questioning, not the police department. When asked what piece of advice he would give to an individual walking into an interrogation situation, Salpeter says to politely give your name and date of birth and ask for an attorney. He stresses, “Never, ever be put into a situation where you walk into that [interrogation] room.” He urges the public to become better educated about their rights.

Salpeter is very supportive of the reforms passed in many states and municipalities requiring the recording of full interrogations. He points out that these reforms not only protect the potential targets of a false confession, but also the detectives. If a defendant takes the stand, for example, and falsely testifies that a detective was violent in the interrogation room, the recording can be used to contradict that testimony. Salpeter also believes that another area of reform should focus on holding detectives and prosecutors legally accountable for their actions.

On his work to free the West Memphis Three, Salpeter believes that this could be a landmark death penalty case if Damien Echols, the only defendant to be sentenced to death, is exonerated. In 2007, new forensic evidence indicated that none of the DNA found at the original crime scene matched the DNA of the defendants. On November 4, 2010, the Arkansas Supreme Court reversed a lower court ruling and granted new hearings for the West Memphis Three defendants.

More information about Salpeter can be found on PBS’s webpage.

On Thursday, October 21, the Kentucky Supreme Court overturned the 2007 conviction of John Terry, who was found guilty of manslaughter and tampering with evidence in the 2004 killing of Linda Elmore. Elmore’s body was discovered in March 2004 under an overpass in Louisville, Kentucky. She had been stabbed multiple times.

Detective Gary Huffman of the Louisville Metro Police Department developed a relationship with Terry in the months following Elmore’s killing, as Terry provided him with a number of details related to the crime. At the time, Terry was a 43-year-old homeless man who only had an eighth grade education. Among other things, he told Huffman that on the night of the murder, he saw a drug dealer named Tonk fleeing the area. Huffman brought Terry along with him to search for Tonk, and provided Terry with food and money for his assistance.

The Arkansas Supreme Court reversed and remanded a lower court ruling and has granted Damien Echols, Jason Baldwin and Jessie Misskelley a new hearing. “…we reverse and remand for an evidentiary hearing , at which the circuit court shall hear Echols”s motion for a new trial and consider the DNA-test ”with all other evidence in the case regardless of whether the evidence was introduced at trial” to determine if Echols has established by compelling evidence that a new trail would result in acquittal”

Echols”s wife Lorri Davis said, “Damien is thrilled with the court’s decision. It is the best news he has heard in his case in the 17 years he has been on death row.”

Capi Peck, of the advocacy group Arkansas Take Action, added,“We look forward to a full evidentiary hearing that presents all evidence of the innocence of Damien Echols, Jason Baldwin and Jessie Misskelley. These young men were convicted of a brutal crime someone else committed, and we hope the State moves quickly to overturn their convictions and seek to prosecute those responsible.”

DNA testing and other powerful forensic evidence — combined with a sworn affidavit that the original jury foreman engaged in blatant misconduct that contributed to the jury’s decision — prove that these men were wrongfully convicted of the murders of the three children in 1993.

There was no physical evidence, eyewitness testimony or motive tying the three local teens to the murders. They were arrested based on nothing more than a coerced, false confession from Misskelley which he immediately disavowed. Damien Echols was sentenced to death; Jessie Misskelley and Jason Baldwin were sentenced to life imprisonment.

Echols’s appeal before the court sought to overturn the decision of circuit court Judge David Burnett who interpreted Arkansas’s DNA testing statute so narrowly that it drastically limited the possibility of any wrongfully convicted person of obtaining justice using DNA results. In 2001, the Arkansas Legislature passed a law granting post-conviction access to DNA testing. The law passed largely as a result of widespread doubts about the convictions of Echols, Misskelley and Baldwin.

DNA testing of dozens of pieces of evidence found at the crime scene conclusively showed that no DNA from the murders matches Echols or the other two men. DNA testing does, however, link Terry Hobbs, stepfather of murder victim Steven Branch, to the crime scene. A hair found in the knot used to bind Michael Moore matches Terry Hobbs. DNA also links a hair at the murder scene to another man, David Jacoby, who was with Hobbs on the day of the crimes and who provided Hobbs with an alibi. Of the scores of people the three victims were seen with on the day of their murders, the only DNA matches are Terry Hobbs and the man Hobbs was with on the day of the murders.

Additionally, three eyewitnesses have come forward and provided sworn statements that they saw Steven Branch, Christopher Byers and Michael Moore, with Terry Hobbs, at 6:30 p.m. on Wednesday, May 5, 1993, before the boys disappeared and were murdered. According to sworn affidavits by the three witnesses, Hobbs was hollering at the children and ordering them to return to his house. The new evidence establishes that Terry Hobbs was the last person to have physical custody of the three boys before they disappeared and were murdered.

According to the nation’s leading forensics experts, scientific evidence also demonstrates that most of the wounds on the victims were caused by animals at the crime scene, after their deaths – not by knives used by the perpetrators, as the prosecution claimed and was the centerpiece of the prosecution’s case. Moreover, these experts also completely discredited the prosecution’s insinuation that a knife recovered from a lake near Jason Baldwin’s home caused the wounds on the victims. As well, these forensic experts deemed the testimony of a jailhouse informant and a faux “expert” in “occult studies”—a man who admitted on the witness stand that he had received his “Ph.D.” from a mail-order diploma mill without attending a single class—to be completely unreliable.

Lloyd Warford, a prominent Arkansas attorney who is a former prosecutor and state official, has presented a sworn affidavit to the Arkansas Supreme Court detailing the contents of improper conversations that the jury foreman, Kent Arnold, had with him while the trial was in progress. In those conversations, the jury foreman told Warford that he had prejudged Echols’s and Baldwin’s guilt and that to ensure that the other jurors would convict the defendants, he exposed the jurors to news reports of Jessie Misskelley’s confession. During one conversation, the jury foreman told, “…the prosecution had presented a weak case, and that the prosecution had better present something powerful the next day (the end of the prosecution’s case) or it would be up to him to secure a conviction.”

The case will return to the lower court and a judge will soon be assigned to hear the new evidence.

CNN

Associated Press

Politics Daily

The case of the Norfolk Four will be featured on PBS”s “Frontline” on November 9th. In the piece, one can watch the confession of Derek Tice, one of the men convicted of rape and murder of a Norfolk, Virginia, woman in 1997. Mr. Tice, along with three fellow sailors, served up to 11 years in prison before Tim Kaine, Virginia”s governor, granted them conditional pardons. They were freed last summer. It is shocking to listen to the young man clearly admit to the brutal crime and go on to provide details of the murder, even implicatng his friends. Even more troubling is why three other young men would confess as well to a brutal crime none of them committed. The answer can be found in part in the techniques used by police interrogators to gain convictions, techniques that are effective on the innocent as well as the guilty. In this case, law enforcement relied on the sailors’ confessions to secure their convictions, and disregarded DNA evidence that pointed to another man, Omar Ballard, who confessed to the crime himself while serving prison time for another rape.

A troubling aspect of many false confession cases is that, like Tice, defendants appear to actually possess detailed knowledge of the crime. A recent study of over forty false confessions by Professor Brandon L. Garrett of the University of Virginia School of Law found that contamination was present in every single one of the confessions he studied. Police interrogators apparently simply fed confidential information about the crime to the suspect being questioned.

The show will include an interview with decorated former New York City police detective Jay Salpeter, whose investigative work led to the exoneration of Martin Tankleff in Long Island in 2007, and who has uncovered new evidence in the case of Damien Echols, who is on death row in Arkansas. If anyone doubts the ability of police interrogators to obtain a confession from an innocent person, Salpeter demonstrates to producer Ofra Bikel just how easy it can be.

For more on the Norfolk Four case, read Jeffrey Toobin”s article in the New Yorker.

New York State may just have the most wrongful convictions of any state in the nation, and false confessions comprise almost 50% of all exonerations in the state. Robert Kolker of New York Magazine , with the assistance of Falseconfessions.org, explores one case, that of Frank Sterling, and the larger question: Why do innocent people confess to crimes they did not commit?

According to the U.S. Supreme Court, confessions are the most compelling piece of evidence that can be brought into a trial, and statistics support the fact that when a confession, whether true or false, is introduced in a trial for consideration by a jury, they almost always convict.

Recently back from Arkansas, where I spent the afternoon with Damien Echols on death row in the infamous West Memphis 3 case, one is reminded that he was convicted based upon a false, coerced confession from a local teen that implicated Echols and his co-defendant, Jason Baldwin, even though the “confession” was barred from Echols”s trial. Nevertheless, jurors heard about it on news reports, and the jury foreman in the case felt it was his duty to inform his fellow jurors about the confession even though the constitution forbade them from considering it as evidence.

Is there a way to stop jurors from considering a false confession and convicting an innocent person? Not likely. In 800 jurisdictions nationwide, some form of recording of interrogations is required. But law enforcement must be mandated to videotape interrogations from the beginning to the end, so jurors can see the truth about false confessions, be exposed to the tricks that are routinely played on defendants in the interrogation room, and decide for themselves whether someone is telling the truth when they confess.

False confessions happen and, in most cases, the result is a conviction and long prison sentence. According to experts, in 25 percent of all wrongful conviction exonerations a false confession was a deciding factor. In one study, over 80 percent of false confession exonerations occurred in murder convictions. We recently learned that during the 1980s in Chicago more than 100 men were tortured into confessing to crimes they did not commit, with four ending up on death row and 22 remaining imprisoned today.

False confessions often contain descriptions of the crimes that do not match the crime scene. For example, in the West Memphis 3 case, Jessie Miskelley, Jr. confessed to his involvement in the murder of three eight-year-olds, stating that he was with them at 9:00 a.m., although it was later established that the children were in school at the time, rendering his comments obviously false.

Now, according to The Substance of False Confessions, a law review article based upon a study of 40 false confessions by Professor Brandon L. Garrett of the University of Virginia, we learn that the confessions contained detailed descriptions of the crimes based upon the defendants being fed confidential information from the investigations, in many cases purposely, by police interrogators.

A New York Times article on Professor Garrett”s study pointed out that the majority of the confessions analyzed were elicited from those who were mentally disabled and/or were juveniles. “Of the exonerated defendants in the Garrett study, 26 — more than half — were ”mentally disabled,” under 18 at the time, or both. Most were subjected to lengthy, high-pressure interrogations, and none had a lawyer present.”

One of the false confession exonerees profiled in the study, Jeffrey Descovic, 16 at the time of his arrest, served 15 years in prison for a rape and murder he did not commit. He was convicted and sentenced to life in prison even though DNA testing prior to his trial revealed that another person”s DNA was found on the body of the murder victim. That crucial piece of evidence that eventually led to his exoneration years later had not trumped his false confession in the eyes of the prosecutor, the judge or the jury. The man whose DNA was found on the victim went on to commit other crimes, including the murder of another young girl.

…Let”s Hope the Arkansas Supreme Court Does Too

On Saturday evening in Little Rock, 2,500 Arkansans gathered to hear Eddie Vedder, Natalie Maines, Johnny Depp, Patti Smith, Ben Harper and some of their friends play music and talk about the case of the West Memphis 3. The artists, and many who came to seem them, are convinced that a terrible crime has been committed, not only in the tragic deaths of the three children found in a drainage ditch in West Memphis, Arkansas, in May 1993, but also in the wrongful convictions of Damien Echols, Jason Baldwin and Jessie Misskelley.

Vedder and his colleagues have been involved in efforts to free Damien Echols and the others for years. They have dedicated their time and money after having thoroughly reviewed the evidence that led to the convictions. Like many—including the Center on Wrongful Convictions at the Northwestern University School of Law and the 13,000-member National Association of Criminal Defense Lawyers, whose amicus brief is part of the court record under review—they are convinced that, based upon new evidence uncovered in the case, any reasonable person today would vote to acquit, which is the legal standard for granting a new trial.

The West Memphis 3 have been imprisoned for 17 years, with Echols on death row, for a crime in which there was no credible physical evidence, no weapon found, no motive, and no connection between the suspects and the victims. Instead, a terrified, inflamed, and shell-shocked community was sold the false confession of Jessie Misskelley, a mentally disabled 16-year old with an IQ of 67. A panicked community, desperate police, and a rush to judgment resulted in the wrong men being convicted.

The Arkansas Supreme Court will hear oral arguments on September 30^th in Damien Echols’s appeal for a new trial. The court will consider new DNA and forensic evidence, as well as allegations of shocking juror misconduct. Court-authorized DNA tests have excluded Echols, Baldwin and Misskelley as the source of any and all DNA recovered from the crime scene. DNA testing, however, links Terry Hobbs, stepfather of one of the murdered children, to the crime, as his DNA was found in the knot in shoelaces used to tie up one of the murdered children.

The court will also consider evidence that the original jury foreman engaged in blatant misconduct that led to the conviction of Damien Echols and Jason Baldwin for murder, by introducing Jessie Misskelley’s coerced confession into jury deliberations when it was explicitly barred from consideration because Jessie had recanted and refused to testify against the other two. In fact, Misskelly’s statements to police that linked him and his friends to the crime, in which he says he was with the children at 9:00 a.m. the morning of their murder, were clearly false, as the children were safe at school that day until late afternoon. After being lied to by police that he failed a polygraph test that he actually had passed, Miskelley finally told them what they wanted to hear.

As last weekend’s concert demonstrated, Damien Echols, Jason Baldwin and Jessie Misskelley may have been convicted, but they have not been forgotten. And the world will be watching when the Arkansas Supreme Court hears arguments in the West Memphis 3 case on September 30^th.