Confession Suppression: Why we need the exclusionary rule

Defense attorney Katherine Scardino, blogging over at Women In Crime Ink, says a Texas death row inmate "hit the jackpot" when a federal judge granted a new trial because of police misconduct. Writes Scardino, the defendant:

is currently in the process of being removed from Death Row and returned to the Harris County Jail. His name is Robert Fratta. Our own Kelly Seigler was the prosecutor.

In 1994, Robert Fratta was accused of hiring two men to kill his wife. The couple was going through a very contentious divorce/custody fight during that time, and Fratta apparently made several statements to friends about him wanting her dead.

Fratta’s two co-defendants were Howard Guidry and Joseph Prystash. All three men received death sentences.

In all capital cases where the jury has sentenced an individual to death, there is an automatic direct appeal. The convicted person also has a Federal appellate process available to him as well, and it was through this avenue that Fratta’s case got reversed and a new trial granted.

What is important is why. When the police officers arrested Mr. Guidry and brought him to the police station to question him about the death of this lovely, young woman named Farah Fratta, the officer told Mr. Guidry that he could not see his attorney, and then lied to him and said that the lawyer had given Guidry permission to talk to the officers.

So, he did and confessed to being the triggerman in the killing and to being hired by Mr. Fratta, and also implicating the other accomplice, Prystash. After all the dust settled . . . after all the objections and rulings . . . after all three men went through a jury trial in State court (where Guidry’s confession was admitted into evidence in front of each jury, and other hearsay testimony was admitted, but later ruled to be inadmissible) . . . and after all three defendants were sentenced to death . . . after all the appeals . . . Guidry and Fratta walked out of the appellate maze with a chance at a different verdict in State court.

Scardino asks two questions in light of this story, though I could certainly think of many more:

Do you think Fratta should get a new trial because of the behavior of the officer with a co-defendant?

Do you even think Fratta should be sentenced to death when he was not the triggerman?

For myself, I'd answer "Yes" and "Yes." As long as we're going to have the death penalty, I don't think a scoundrel who enlists a hit man is less culpable than the person who pulled the trigger himself. But I definitely agree that the confession obtained through subterfuge should be thrown out, and doing so would require giving both men a new trial.

It's not for the guilty but the innocent that such protections are in place: false or coerced confessions are too common to allow police to break the rules without consequence. There are also practical reasons to follow the rules. Police officers who lied to Guidry wound up blowing their case and costing taxpayers hundreds of thousands of not millions of dollars.

Equally culpable, Scardino notes in response to a commenter, is the judge who failed to grant a Motion to Suppress.

An anonymous commenter replied to Scardino that "Somehow I can't find compassion for someone too stupid to keep his mouth shut." But it's easy to say you have no compassion for someone you believe is guilty - much more difficult in instances where we know the accused was innocent. I'd defy anybody to read the terrible story of Christopher Ochoa and Richard Danziger and tell me they feel no compassion, particularly for Mr. Danziger.

Police interrogtion is a guilt presumptive and coercive process, and as a result, false confessions happen more frequently than most people realize. In Austin's infamous Yogurt Shop murders, more than 50 different suspects confessed to the crime!

It's hard to believe Houston police thought it was okay to lie to somebody about their lawyer's advice in order to interrogate them alone after they'd requested counsel. Harder still to believe the prosecutor in the case - former GOP District Attorney candidate Kelly Siegler - convinced a judge to allow the confession, anyway.

And there's the rub: The system is broken - its checks and balances frequently don't work. There are simply no meaningful oversight mechanisms to prevent or punish misconduct by state actors. Will those officers face discipline or prosecution for violating these guys' civil rights? No. Will the judge be held accountable by the Commission no Judicial Conduct? Hell no. For that matter, why didn't the Court of Appeals or the CCA step in to fix this obvious error before the federal courts ever saw this case?

This is why, despite many sound arguments against the exclusionary rule (which allows a judge to exclude evidence from trial if it was obtained in violation of a defendant's constitutional rights), as long as alternative accountability mechanisms fail so obviously and continuously, I think getting rid of it would be a disaster.

The cost and embarrassment of mistrial are virtually the only meaningful consequences restraining state actors. If police departments don't hold cops accountable for violating someone's civil rights, and judges allow such abuse without fear of professional consequence, there's nothing left but the exclusionary rule to prevent the justice system's wholesale corruption.

UPDATE/CORRECTION: According to Houston attorney Mark Bennett, Scardino:

has it wrong. The decision didn't hinge on the police misconduct in obtaining Guidry's confession; the Fifth Circuit opinion doesn't even mention misconduct.

This is a pre-Crawford Confrontation-Clause case. Even if Guidry's confession had been legally obtained, it would have been inadmissible in Fratta's trial, as Judge Harmon and the Fifth Circuit held Prystash's confession was.

Bennett adds some chiding comments and further explanation at his blog Defending People.