Canales: Record custodial interrogations

Yesterday I testified on behalf of the Innocence Project of Texas in support of Rep. Terry Canales' HB 1096 requiring recording of custodial police investigations, which is one of the outstanding recommendations of the Timothy Cole Advisory Panel on Wrongful Convictions the Legislature has not yet acted upon. Rodney Ellis is carrying the companion bill in the Senate.

Nationally, false confessions occurred in about 25% of cases resulting in DNA exonerations. (Notably, causes of false convictions can overlap: Someone misidentified by an eyewitness may plea guilty to avoid a harsher sentence or the death penalty.) While most DNA exonerations involved sexual assault cases, however, false confessions were particularly prevalent in murder cases, which account for 75% of false confessions listed in the National Exoneration Registry.

The legislation protects both innocent defendants as well as protecting law enforcement from false accusations. It also generates better evidence for prosecutors and avoids spurious suppression hearings over alleged coercion.

Texas has had a number of high-profile cases involving false confessions, including the Yogurt Shop murders (where dozens of people falsely confessed), Christopher Ochoa (who falsely implicated an innocent co-defendant, Richard Danziger), and Stephen Brodie, a deaf man exonerated last year after 17 years behind bars for a murder he didn't commit for a 1992 sexual assault conviction. Texas law requires recording of oral confessions already, but not of the interrogation leading up to it. So a statement may be recorded saying "I did it," but if the jury can't see the hours-long discussions that led up to it, they've little context for understanding whether a false confession was likely.

John Chancellor from the police chiefs' association registered against the bill but no one from law enforcement testified in opposition, preferring not to explain to the committee their reasons for opposing it. Having spoken to Mr. Chancellor, IMO that's because their reasons are increasingly strained and spurious. The main issue I've heard is cost, which in this day and age - especially considering all the costs of wrongful convictions - is truly a red herring. For starters, the recording requirement wouldn't apply in most cases. The legislation first filed in 2009 was broader, requiring recording of all custodial interrogations, but the current bill only applies in the most serious offenses like murder, kidnapping, and sexual assaults.

Further, the cost of recording equipment has declined so much that law enforcement claiming poverty seems silly. Conversing at the back of the hearing room, I mentioned to Chancellor that anybody with a PC and a USB port could buy a recording apparatus for under $50, but he replied that some smaller departments don't even own computers. If that's the case, I said, those agencies don't need to be the ones investigating murders, kidnappings and sexual assaults. If departments truly don't have the resources to own a single computer, they have no business whatsoever as the primary investigator of major crimes. They should be passing those puppies off to the Texas Rangers, I told him. Most do, he said, which seemed to moot his point, but he still wouldn't back off registering against the bill.

Grits was particularly pleased to find that Patrick O'Burke - a former DPS Narcotics Division chief who now trains law enforcement in interrogation techniques, including for the US government in Iraq - showed up to support the proposal. O'Burke made the important point that recording interrogations makes for excellent training materials and allows agencies to learn from both their successes and mistakes. He told the committee that, now that he's a professional trainer, he'd pay good money for some of the videos from his own cases, which included interrogations from more than 50 murder investigations and countless other crimes.

Rep. Steve Toth expressed concern that confessions might be excluded if interrogations weren't recorded, asking Shannon Edmonds from the prosecutors' association to suggest mechanisms that would incentivize recording interrogations that wouldn't invoke the exclusionary rule. However, there are several good faith exceptions to the bill that IMO should eliminate those issues. Basically the bill takes all the "what ifs" law enforcement raised in prior sessions and created good faith exceptions for things like spontaneous declarations, malfunctioning equipment, when the defendant refuses to be recorded, or when exigent circumstances render recording infeasible. Those exemptions weaken the bill but to me they also moot the concern over the exclusionary rule. Like the issue of cost, that seems to me more like an excuse to oppose the bill than a reason.

Overall, the committee seemed sympathetic and I'm optimistic they'll pass it out.