False confessions roundup

Here are several recent items on the topic of false confessions which merit Grits readers' attention:

• Brendan Dassey, Max Soffar, and the false-confession playbook
• Study finds that sleep deprivation leads to false confessions
• Why people make false confessions
• A look at false confessions
  
• The dangerous psychology of how false confessions rewrite witnesses memories
• Taser's effect on cognition may undermine police questioning

More criminal justice bills pre-filed at the Texas Lege

Here are a few more bills (see here, here, here and here for earlier installments) from the first week of pre-filing at the Texas Legislature that may merit Grits readers' attention:

Can prison spending be limited to population/inflation growth rates?
There are a couple of bills out there to restrict state spending to the combined effects of inflation and population growth, like this one, so it's worth mentioning that state prison spending has far surpassed those rates consistently for more than three decades. Also, there's a basic math problem with a constitutional amendment proposed by rookie Sen. Charles Perry limiting budget growth to the sum of inflation and population growth (or personal income growth, whichever is lesser). However, to actually index spending you would multiply those rates, not add them. Over time, his method would systematically under-fund the budget if not corrected. Perhaps if legislators want a smaller budget, they should propose cuts instead of constitutional amendments.

Whither border security funding if highway money spent on highways?
Also on the budget front, SB 139 by rookie Sen. Charles Perry and SB 184 by Sen. Charles Schwertner would cease using money from the state highway fund to finance the Department of Public Safety. The questions then become: Where does DPS funding come from? And, is their border security profile sustainable without tax increases?

How to raise local property taxes everywhere
HB 191 by Rep. Jim Murphy creating mandatory minimums for people convicted of multiple misdemeanors would launch a new 21st century jail building boom in Texas. County commissioners and Sheriffs, if they're wise, will come out of the woodwork to oppose this. In many counties in recent years, rising jail costs have been the primary driver for local property tax increases.

Record custodial interrogations
State Sen. Rodney Ellis has once again filed legislation to require recording interrogations of people suspected of serious, violent offenses. Make me philosopher king and I'd require recording of all custodial interrogations, but this is a good start. Last session state  Rep. Terry Canales carried  companion legislation in the House and Grits expects him to file the bill again in the 84th session.

Prioritize saving lives over prosecution in overdose cases
Rep. Ryan Guillen put forward a version of a Good Samaritan bill, HB 225, to make it a defense to prosecution on drug charges for people who call 911 when someone they're with overdoses. There have been several versions of this kicking around over the years. Last session a version cleared committee but, like many criminal justice reform bills, never received a vote on the House floor.

Grants, policies for police bodycams
In 2003, state Sen. Royce West carried legislation that created a grant fund for police departments to apply to install dashcams in patrol cars, and most of them did. Now he's filed SB 158 which would authorize the state to issue grants for police body cams and requires those using them to create written policies that govern their use and train on them. The difference between this and the one authorizing dashcams is that in 2003, Sen. West also passed a measure authorizing a statewide bond election for money to pay for them (which voters approved) and requirements for racial profiling reporting that were more stringent if departments didn't have cameras in their cars. This bill presently includes neither as many carrots nor sticks as his earlier legislation. For body cams to be adopted as widely as dashcams, there'd need to be a pot of money to fund these grants and some incentive for departments to use them.

No probation for illegal immigrants?
In SB 174, Sen. Joan Huffman recommends that "illegal aliens" be denied the chance to receive community supervision as a punishment, another potential budget buster for both state prisons and county jails. If this bill doesn't receive a gigantic "fiscal note" it will be proof once and for all that the Legislative Budget Board's mechanism for assessing bills' fiscal cost is utterly and profoundly broken.

Roundup: Naming the new Travis DA's office, and other stories

Here are a few odds and ends that didn't make it into independent posts this week but deserve Grits readers' attention:

Troopers association litigation fails
A judge dismissed the civil suit against the state from the Texas State Troopers Association, which faces penalties and the removal of boardmembers over an illegal telemarketing scheme. Reported the Austin Statesman, "In its lawsuit, the troopers association accused the attorney general’s office of trying to bully the group into signing an agreement that called for fines and the resignation of executive director Claude Hart and board members Lee Johnson, Anne Johnson and Herschel Henderson. Those leaders would also be banned from working for or volunteering with any Texas group that purports to benefit public safety, the document states." Further, "According to the organization’s 2012 tax forms, the group raised more than $3.2 million and paid $2.5 million of it to a telemarketing firm. The association’s largest expense, $311,000, was for salaries. Other costs included $76,000 for lobbying and $35,000 in benefits to members." For long-time readers, this is a different group from the Texas Highway Patrol Association, though the economics of their telemarketing program operated on the same model.

Audit draft criticizes Dallas probation on technical violations
Reported the Dallas Morning News, a leaked TDCJ-CJAD audit of the Dallas County probation department found that "officers did not follow court or department policies more than two out of three times when handling 'technical violations' by probationers, according to a preliminary draft of an audit" obtained by the paper. But "Michael Noyes, the head of Dallas County adult probation, said he doesn’t believe the numbers in the state’s draft report are accurate. He said auditors from the Texas Department of Criminal Justice may have confused strict policies that apply to probationers only in certain court programs and applied them to all probationers."

CCA: New punishment hearing because prosecutor failed to turn over snitch jacket
The Texas Court of Criminal Appeals this week ordered a new punishment hearing in a capital  murder case because the prosecution did not reveal that a confidential informant planted a shank in the defendant's cell that was used to argue his "future dangerousness." Remarkably, "Following the evidentiary hearing, the trial court found that the State did not fail to produce exculpatory evidence or knowingly present false testimony. However, the trial court also found that [the informant] fashioned and planted the shank as described. Therefore the evidence that applicant possessed the shank was false. The trial court also found that this evidence was central to the State’s future dangerousness case and to the jury’s decision at punishment." The court deferred to those findings, including the declaration prosecution "did not fail to produce exculpatory evidence," even though the exculpatory evidence they failed to produce was the basis for a new punishment hearing.

Out of control: A substantive claim
Note to prosecutors: Before accusing someone of committing fraud to obtain a controlled substance, first make sure the substances you're after are, you know, controlled. In another CCA habeas writ granted this week, the "Applicant was convicted of attempting to obtain a controlled substance by prescription fraud and was sentenced to two years’ imprisonment." Her prevailing habeas claim: "there is no evidence that Naproxen is a controlled substance." The trial court agreed, the CCA agreed, bada bing, bada boom, relief granted. This sounds like another episode where lengthy crime lab wait times may have ended up coercing a plea from someone for a crime they didn't commit.

All in the family bank robbing
From the "only in Texas" file, and Texas Monthly's Skip Hollandsworth.

Dumb: Life in prison for pot brownies?
With a possible first-degree felony sentence for drug possession of 5-99 years, it's possible, if unlikely, for a 19-year old defendant to spend the rest of their life in prison on a weight-based drug charge, a possibility touted in KEYE-TV's report on a Williamson County case. But how ridiculous is it for authorities to include the brownies in calculating the weight of the controlled substance (hashish) being used to bump that charge up to first-degree felony levels? Really?

If the feds can do it ...
Now that DOJ has told the FBI, DEA, and other federal investigators to begin recording custodial interrogations, shouldn't the Texas Legislature follow suit and require it for law enforcement agencies here? The Lege considered such legislation in 2013 and, next spring will have an opportunity to polish off this last, unimplemented recommendation from the Timothy Cole Advisory Panel on Wrongful Convictions.

The era of mass incarceration in America is not over
Regular readers know we're seeing declining incarceration rates in Texas, like many other large states, but most American states have seen incarceration increase over the last decade, judging from these data.

Naming the new Travis DA's office
Travis County is trying to decide an eponym for a new building that will house the District Attorney's office. Some are saying "Ronnie Earle," but I think it should be named after Richard Danziger. Or perhaps, in light of the current DA's recent history, the "Happy Hour Tower." Offer up your own suggestions in the comments.

Anatomy of a false confession

At the Austin Chronicle, Jordan Smith has an excellent, extended story on an Austin case involving a husband who falsely confessed to murdering his wife, only to have DNA exculpate him. The whole article is well worth reading but here's a notable excerpt describing research about how and why false confessions occur:

The problem with false confessions, experts say, is that many people – even people within the criminal justice system – find it hard to comprehend that a person would actually admit to something that he didn't do. But it happens, and not rarely. According to the Innocence Project, 25% of wrongful convictions overturned by DNA evidence involve a false confession. And many of those confessions actually contain details that match the crime – details that were not in the public domain, says Saul Kassin, a social psychologist and expert in false confessions who is a professor at John Jay College of Criminal Justice in New York. The problem is that all of those details are already known to police, and through the process of interrogation those details can, and do, shape a person's confession, with police – purposely or inadvertently – divulging details of the crime.

Once a confession is made, it's incredibly powerful, say Kassin and others who study false confessions and the tactics that lead to them; jurors often consider a confession infallible evidence, he explains, even though research clearly demonstrates that is not always the case. Among the most vulnerable suspects are those actually innocent, Kassin points out – in many ways, innocence is their enemy. "When I ask innocent people, 'First of all, why didn't you lawyer up?' they tilt their head and look at me like I'm crazy ... and say, 'Well, I didn't need a lawyer, I didn't do anything wrong,'" he says. "They volunteer to take lie detector tests, they volunteer their keys, their shoes, their cars, and they just don't apprehend that there is any risk. And their explanation is as simple as, 'I didn't do anything wrong, I have nothing to do with it, I have nothing to fear, I have nothing to hide – in fact, the more they get to know me, the more they'll see that I didn't do it,'" he continues. "People believe in the transparency of their innocence."

The problem can be compounded by the fact that police generally believe they have a good sense for determining which of the people they encounter during an investigation should be elevated to suspect status. In fact, according to research done by both Kassin and by Iowa State University psychology professor Christian Meissner and others, police are actually no better at determining who is lying to them than are untrained laypeople. Indeed, some of the signs police are trained to believe indicate deception, and techniques they're taught to use in interrogations, may negatively impact their ability to determine lies from truth.

The dominant method of interrogation used in the U.S. is known as the Reid Technique, named after its originator, former Chicago cop John Reid. It's an adversarial and persuasive technique designed to yield compliance from suspects – police are taught to assess in a first interview whether a person should be considered a suspect and then, once that determination is made, to not allow the suspect any ability to deny their involvement in the crime. "It is an excellent ... psychological approach to getting confessions from criminals," Kassin says. "I think the problem begins with this. I always say this: If every person interrogated was the criminal, the Reid Technique would be perfect. The problem is [police] often bring innocent people into the interrogation room." (In fact, during one early use of the technique by Reid himself, a false confession was extracted from a man whose wife had been murdered; it took more than five decades for the man to be exonerated.)

Police have long been taught, for example, that nonverbal cues, like hair touching, leg bouncing, and shifting eye movements, indicate deception. The research says otherwise. "These things ... are in the folklore of police training," says Meissner, but "there is plenty of research to show that they're not reliable." Also problematic are techniques police are allowed to use inside the interrogation room – including techniques that "manipulate the perception of consequences," says Melissa Russano, a professor of criminal justice at Roger Williams Univer­si­ty. Specifically including lying to a person about evidence – saying that a fingerprint or DNA ties a person to a crime, when in fact no such evidence exists – or implying leniency, "stressing the importance of cooperation [with police] ... [suggesting] if you cooperate, things will be better for you and if you don't, things are going to get worse," Russano details.

Taken together, investigation detail leakage, faulty assumptions about who is lying, and heavy-handed, perception-altering interrogation tactics increase the likelihood of a false confession.

According to Russano, current research reflects that the heavy-handed tactics traditionally taught to police investigators are less effective and riskier than more information-based approaches, in which detectives use investigative interviewing and rapport-building techniques – open-ended questioning, timeline-building, and fact-checking. "Really, the science is showing that it's about how people tell their stories and how they remember events" that can reveal whether a person is lying, says Meisser. "It's about the cognitive properties of how they tell their stories that tend to be very important." This less adversarial approach is widely used elsewhere in the world, but U.S. police retain their decades-old reliance on the abrasive, unscientific, old-school approach.

Regardless of the technique, however, each confession should be tested for reliability by seeking corroborating evidence. And the very best form of corroboration, says Kassin, is when a suspect provides a detail or fact that police did not already know. "So, if he leads the police to the body, or to the murder weapon, or to whatever was stolen, that is gold-standard, corroborated evidence."

Of a half-dozen recommendations by the Timothy Cole Advisory Panel on Wrongful Convictions, the last one the Texas Legislature has not yet acted on is a requirement to record custodial police interrogations in serious cases. One hopes that this case and other examples of coercive interrogation techniques will spur the Legislature to rectify that oversight when the 84th session convenes in 2015.

Jury: Coercive interrogation, false arrest violated rights of innocent woman accused of murder

Hephzibah Olivia Lord won her false arrest lawsuit against Dallas Detective Dwayne Thompson three years after she was arrested and later released on a murder charge when her boyfriend committed suicide, the Dallas Morning News reported. The jury concluded Thompson, a detective prominently featured on A&E's reality TV show, The First 48, acted with malice after viewing a tape of an interrogation where he flew into a profanity-laced rage. Reported the News' Kevin Krause (Jan. 17):

Thompson and his murder cases have been featured prominently on the popular A&E reality show The First 48. The show’s premise is that officers’ chances of solving a murder are “cut in half if they don’t get a lead within the first 48 hours.”

Thompson, a former Army captain who served in Saudi Arabia during Operation Desert Storm, was suspicious of Lord almost from the beginning. She alleged in her lawsuit, filed almost three years ago, that he lied about certain evidence while ignoring other evidence that was favorable to her.

One of Thompson’s former colleagues in the homicide unit testified against him during the trial. Kim Sanders, who retired from the Police Department in 2008 after more than 30 years, told the jury he believed Lord was innocent based on his review of the evidence. He also questioned Thompson’s tactics while questioning Lord shortly after her boyfriend died.

In a video of the interrogation, Thompson asks Lord basic questions about what happened that night. He then explodes without warning into a rage and screams accusations at Lord, telling her over and over that she is lying and that he knows she killed Burnside.

During one of the more dramatic moments of the trial, Thompson’s lawyer acknowledged fearing that the jury could be swayed by a video of that intense interrogation. The lawyer, Jason Schuette, looked at Lord and told her he didn’t think she killed Burnside.

About the interrogation, Sanders said the interview amounted to intimidation and called the tone and line of questioning a “formula for a false confession.”

[Lord's lawyer Don] Tittle told jurors during his closing arguments that a verdict for his client would curb police abuses and reduce the chances of someone being arrested for murder when the evidence isn’t there.

As Grits noted on Wednesday, to me it wasn't just Thompson on trial but the Reid technique of interrogation, whose central tenets were on display in Lord's interrogation video: Intimidation, accusation, psychological manipulation, lying about evidence, cutting off denials ... these methods are taught to police interrogators across the country and, as Mr. Sanders told the jury, amount to a "formula for a false confession."

The Reid technique was developed to fill a void in the years after "third-degree" interrogation tactics were banned, using psychological manipulation rather than physical force to coerce interrogations but based on a similar approach. The US Supreme Court's famous Miranda warning was instituted in part as a (insufficient) buttress against the method's coercive tactics.

Ironically, one of the most prominent cases on which Det. John Reid, its creator who built a consulting empire around the approach, built his reputation in the 1950s resulted in a false confession that wasn't exposed until the poor forester, Darrel Parker, was exonerated and released in 1991. "In August 2012, the state of Nebraska issued a declaration of innocence to Parker and agreed to pay him $500,000. Attorney General Jon Bruning publicly declared that Parker was wrongly convicted and apologized."

In the U.K. and several other countries, the Reid technique has been abandoned in favor of a less confrontational method focused more on gathering information than extracting a confession. Dubbed the PEACE technique, the name is a mnemonic for Preparation and Planning; Engage and Explain; Account, Clarify and Challenge; Closure; and Evaluation. In the United States, though, the Reid method reigns supreme.

One reason police have resisted requirements to record interrogations - despite the superior evidential value of recordings in court - is that Reid methods often appear coercive and prejudicial to an outside viewer. That's because they are. When they're employed against a guilty suspect, people don't tend to care. But when they're employed against the innocent, they undermine the credibility of the investigation and the investigator. And in the case of Hephzibah Olivia Lord, a Dallas jury decided that, coupled with her false arrest, it violated her civil rights.

RELATED: From Texas Monthly, "How to get a teenager to admit to a crime he didn't commit."

'How to get a teenager to admit to a murder he didn't commit'

My old pal Nate Blakeslee from Texas Monthly provides the answer to the question in the title in this new article. Page two of the story's web version has an excellent discussion of how and why false confessions occur.

See related Grits posts and this item for links to past Grits coverage of topics related to false confessions.

Daniel Villegas granted habeas relief, but not home for Christmas

After a year and a half delay since a trial court recommended he be freed and declared actually innocent, the Texas Court of Criminal Appeals agreed to grant habeas corpus relief to Daniel Villegas last week (see earlier Grits coverage). But they denied his actual innocence claim with only the barest of explanations in a terse ruling, instead basing relief on ineffective assistance of his trial counsel. The El Paso Times reported that the trial court won't have jurisdiction over the case until January 13, for reasons I don't completely understand, at which time he's expected to be released on bond until the DA decides whether to re-try the case. (Most observers consider that unlikely; a recanted, apparently coerced confession contradicted by other witnesses was the only evidence against him.) Until then, Villegas, who was sentenced to life in prison in 1995, is waiting in the county jail while he, his family and supporters await a belated Christmas present in January.

There were a handful of other interesting habeas corpus writs granted on the same hand down list.

Serena Staglin of Dallas County had a capital murder conviction overturned and reduced to a second degree felony, for which she will now face re-sentencing. See the court's ruling. Staglin pled guilty to a second degree felony to avoid the capital murder charge, but at sentencing continued to insist on her innocence, causing the court to throw out her plea deal and order the capital murder trial to go forward. She was convicted and sentenced to life imprisonment, but in her habeas writ argued that "she would have withdrawn her problematic testimony" if her lawyer had advised her of the consequences. The CCA reinstated the original plea deal and ordered her back to Dallas County for re-sentencing based on ineffective assistance of counsel. The sentence range for a second degree felony is 2-20 years; her capital murder sentence was life without parole.

Jamal Ahmed of Harris County was granted relief by the court after he was sentenced to four years in prison for a state jail felony, a crime for which the maximum sentence is only two years. Oops.

The CCA did grant one actual innocence claim last week after laboratory testing proved that Jerrell Bell, who was convicted in Harris County of possessing less than a gram of cocaine, in fact "did not possess a controlled substance." Seems like the crime lab should have caught that one on the front end, but at least his conviction was overturned.

Long delay by CCA in El Paso false confession case

The HuffPost Crime Blog had an article this week profiling a habeas corpus writ involving an alleged false confession case out of El Paso that the Court of Criminal Appeals has been sitting on for nearly a year and a half. The story opened:

Is Daniel Villegas innocent?

According to a district judge, at least 18 alibi witnesses, the jury foreman, one of his alleged shooting victims, the former mayor of El Paso and a local businessman who has turned into his most vocal advocate, the answer is an unequivocal yes.

Daniel Villegas, 36, is serving a life sentence for the shooting deaths of teens Armando "Mando" Lazo, 18, and Robert England, 17, in Northeast El Paso. He has been incarcerated since 1995.

Villegas, who was 16 at the time of the killings, confessed, but claimed immediately after he was separated from then-El Paso police Detective Al Marquez that the confession was aggressively coerced.

According to the HuffPost article:

In August 2012, Judge Medrano ruled that Villegas' confession was coerced -- something that Villegas communicated to juvenile officers immediately following his removal from the custody of Detective Marquez.

"For our justice system to work it must make two important promises to its citizens: A fundamentally fair trial and an accurate result," Judge Medrano told a courtroom. "If either of these two promises are not kept, our system loses its credibility, our citizens lose their faith and confidence in our court system, and eventually our decisions and laws become meaningless."

This summer, supporters of Daniel Villegas marched on the Capitol a year to the day of Medrano's ruling, hoping to get the Texas Court of Criminal Appeals to address Villegas' case. Supporters included former El Paso Mayor John Cook, who said he believed Villegas should be granted a new trial, as well as several former death row inmates who lived to be vindicated.

But the appellate court has not so much as set a hearing.

Ironically, Villegas rejected a plea bargain for a 10 year sentence in the double homicide because, he said, he didn't believe an innocent person could be convicted in America. That was nearly 20 years ago. Cases like these, Grits has repeatedly maintained, argue strongly for a requirement that police record interrogations, at least in the most serious cases. But in this case, even the version of the confession obtained by police doesn't match up with other facts in evidence, according to the judge's findings and published reports. I have no idea why the Court of Criminal Appeals has waited to long to confirm or reject the district judge's ruling, but it sure seems like it's time for them to get on the stick.

Innocence news and notes

Here are a number of recent innocence-related stories that merit Grits readers attention. The Michael Morton documentary described in the final bullet airs tonight:

• Slate: How junk science and anti-lesbian prejudice got four women sent to prison for more than a decade
• Tulsa World: National exoneration registry tracks wrongfully convicted inmates
• Wrongful Convictions Blog: Misbehaving prosecutors almost always get off scot-free
• The New Yorker: The Interview: Do police interrogation techniques produce false confessions?
• Huffpost: Confession contamination in Cook County: Demonizing youth in false confession narratives
• The Innocence Blog: Demystifying false confessions
• CNN: Exonerated: Cases by the numbers
• CNN: 'An Unreal Dream: The Michael Morton Story,' premieres as CNN FILMS broadcast on Thursday, Dec. 5

The upsides of recording custodial police interrogations

Regular readers know that requiring police to record custodial interrogations, especially in the most serious cases, is the final recommendation of the Timothy Cole Advisory Panel on Wrongful Convictions that the Texas Legislature has yet to implement. The Crime Report this week published a good overview of the hows and whys of the issue, noting that the International Association of Police Chiefs has embraced the idea:

The International Association of Chiefs of Police has made wrongful convictions a priority. A recent article from Police Chief Magazine reported that the best practices to avoid false confession include recording the entirety of interrogations, and keeping secret some crime details to ensure innocent suspects do not just parrot back inside information gleaned from their interrogators.

Richard Leo, an academic who has been doing empirical research on police interrogation practices for 20 years and is a frequent expert witness in cases involving false confessions, said he is seeing a growing movement nationally to record confessions.

Leo said the movement has developed because of greater understanding of what causes false confessions. He listed, for example: 

• lying to suspects about the evidence against them;
• the length of interrogations;
• the propensity of people to comply with authority;
• mental illness or low intelligence;
• and implications from police interrogators that if a suspect makes an admission, he is “not admitting to a crime or admitting to something that has very serious consequences.”

Not only does recording interrogations help prevent false convictions (or at least identify them after the fact), it also provides better evidence for prosecutors and juries, prevents he-said she-said disputes about what went on in interrogation rooms, serves as a buffer against police misconduct, and prevents false accusations against police interrogators. “I think that police officers and prosecutors, properly trained, could do this and do it well,” said a prosecutor quoted in the story. “It would just enhance the cases and take away a lot of the arguments about coercion and force and things of that nature.”

One hopes the Texas Legislature will prioritize this issue when it re-convenes for its 84th session in 2015.

See related Grits posts:

• Shaky science, un-recorded confession lie form basis of El Paso habeas writ
• El Paso case highlights need for recording interrogations
• Canales: Record custodial interrogations
• Record interrogations, reduce false confessions
• Police arguments against recording interrogations allow fear to impede self interest
• Latest exoneration highlights problem of false confessions
• Are false confessions 'coerced' or 'persuaded'?
• CCA orders Yogurt Shop retrial based on possibility of false confessions
• Jurors from false confession case call for recorded interrogations
• Recording interrogations makes loads of sense
• Expert: Yogurt Shop case a prime example of false confessions
• False confessions a "systematic feature of American justice"
• Recording confessions saves much grief for police
• Police interrogation a 'guilt presumptive' process
• Would you confess to a crime you didn't commit to save your life?
• If CIA can record interrogations, so can police
• Abilene PD requires recording interrogations
• El Paso conference brought together top minds to prevent false confessions
• Why record interrogations?
• Juries need more, better information to prevent false convictions

Shaky science, un-recorded confession form basis of El Paso habeas writ

Jordan Smith at the Austin Chronicle has an excellent new story out ("Science goes to court," Nov. 1) regarding a habeas writ challenging a child-murder conviction out of El Paso. The defendant is seeking relief based on Texas' new law, authored this year by state Sen. John Whitmire and Rep. Sylvester Turner, allowing relief when new scientific developments contradict expert testimony at trial. (In this interest of full disclosure, this was legislation your correspondent helped promote on behalf of my employers at the Innocence Project of Texas.)

As is likely to be the case in much of the litigation surrounding this new habeas provision, the debate centers on whether the defendant's writ relies on new science or evidence that should have been available at the time of trial - in this case biomechanical modeling that has debunked many of the underlying premises of "shaken baby syndrome" and other expert testimony about child trauma. Wrote Smith:

Biomechanics has long been relied on for injury prevention and repair – the development of air bags in vehicles, of helmets to protect football players' heads, of replacement hips and knees – but only recently has biomechanics been incorporated into a criminal law context, to describe with scientific certainty the force needed to cause specific injury. Biomechanical engineering is pivotal to the reconsideration of cases of so-called "shaken baby syndrome," or SBS, and has demonstrated that simple shaking by an adult cannot create the force necessary to kill a child.

"Many if not most non-physicians assume that physicians, skilled in the art of medicine, must have particular knowledge of injury mechanisms. This assumption is wrong," John Plunkett, a veteran pathologist and expert in the diagnosis of child injuries who has been a vocal critic of SBS, wrote in an affidavit filed along with a new appeal in Avila's case. For the most part, physicians, such as Raschbaum, "need not know or apply injury mechanics if they are responsible for diagnosis and treatment," Plunkett continued. "However, if a physician ventures from diagnosis and treatment to speculation of the ultimate force, stress, or energy required to cause injury, he/she must understand mechanics ... and perform or refer to the appropriate experiments."

At the time of [Rigoberto] Avila's trial, and first appeals, biomechanics was not being applied to criminal cases involving child abdominal injuries, a leading cause of death in children, Plunkett and other experts say. Now, Plunkett wrote, such an analysis prior to deciding whether an injury is criminal or not would be "mandatory."

The argument that Avila's conviction was based on faulty, pseudo-scientific conclusions is at the heart of a new appeal filed in September. The appeal cites passage this spring by state lawmakers of Texas' first-in-the-nation law to allow for appeals based upon relevant and newly ascertainable, or evolved, science that contradicts evidence used at trial. The new statute took effect Sept. 1, and is an acknowledgment that criminal law – rigid and, importantly, wedded to finality – must evolve to keep pace with scientific advances.

The principal dispute, Smith reported, surrounds whether biomechanical research regarding child trauma is new science or merely old science re-packaged:

El Paso District Attorney Jaime Esparza does not agree that Avila's case falls under the new law. In a motion filed in October on Esparza's behalf, prosecutor Tom Darnold argues that there is nothing new about the science involved in the case that would warrant review. "Avila acknowledges that the relevant scientific knowledge, that is, the physics of impacts, dates back to Newton and has not undergone significant change since Avila filed his first writ application" 10 years ago, reads a motion to dismiss the case. And even "Reimann notes [in his affidavit] that his analysis of these types of issues is 'based on introductory physics normally presented in a general physics course required for biological, health-science, and pre-med students,'" Darnold noted. As such, the "materials Avila has submitted ... defeat his claim that the scientific knowledge, or the method on which that relevant scientific knowledge is based, has changed since the time he filed his first writ application." And the fact that biomechanics was understood and practiced at the time Avila was tried means only that his lawyers didn't exercise "reasonable diligence" in seeking out that knowledge to present at trial. The plain language of the new law, he notes, "does not authorize the consideration of the merits of a subsequent writ ... based on scientific knowledge that was previously available but not commonly used, or based on scientific knowledge that was previously available but simply was not sought out by the doctors or attorneys in the case."

While it's true that biomechanics takes basic Newtonian physics – the law of bodies in motion – and applies it to living tissues, there is nothing at all static about the science involved, says Peter Stephens, a retired forensic pathologist. And when he hears people dismiss the science as not new or say something like, "'We've moved beyond Newtonian physics now,' most of us just roll our eyes." The fact of the matter, says Stephens, is that using biomechanics as a diagnostic tool for childhood injury is fairly cutting-edge – particularly when it comes to assessing abdominal injuries, like that which ultimately killed Nicholas.

The whole "shaken baby syndrome" (SBS) fiasco - where a field of expert testimony arose in the 1970s to prosecute cases without the underlying science having been tested (see background here) - was one of the brands of junk science under consideration when this new legislation was passed. Grits has no direct knowledge about when new biomechanical modeling that debunked SBS was applied to other types of injuries like the ones in this case. But the idea that the claim should be denied because the physics of impacts "dates back to Newton" is a laughable stance that ignores the history of SBS and the belated rise of biomechanical modeling that has only recently countered it.

Indeed, later this month in Dallas a "World Conference on Infant Head Trauma" will convene to evaluate the evolving status of science in this area. According to the event's website, "The World Congress on Infant Head Trauma brings together international speakers to find common ground and debate controversial topics in pediatric forensic pathology. This unique congress focuses primarily on the pathology and etiology of head trauma (and its mimics) and not the overarching issue of child abuse." This is still very much an evolving field.

In the wake of the new law, not to mention the National Academy of Sciences report in 2009 calling into question an array of non-scientific forensics, we're going to see more habeas writs focused on the question of "what did science know and when did it know it?" That's as it should be.

The case also highlights the drawbacks of failing to record custodial police interrogations. (Regular readers will recall that requiring such interrogations to be recorded is the final, un-enacted recommendation of Texas' Timothy Cole Advisory Panel on Wrongful Convictions.) Here's how Smith described the circumstances of the disputed confession:

Around 11pm that night, as Raschbaum worked on Nicholas [the child victim] at the hospital, Avila was taken to the El Paso PD to give a statement to Det. Tony Tabullo, then a 24-year veteran of the force. Avila was already a suspect in the case, and around 11:30pm Tabullo advised him of his rights before beginning the interview. At roughly 2:10am, Avila signed a statement wherein he detailed that he had been watching TV when Dylan told him that Nicholas wasn't breathing; per Tabullo's instructions, Avila read and placed his initials before and after each paragraph of the statement, and next to the time and date – 23 separate places in all – before signing off on the document.

What happened next is disputed. Accord­ing to Tabullo, after he took Avila's statement he found out that Polaroid photos of Nicholas' body had been brought to the police station. Those photos, he testified, revealed a large area of bruising across Nicholas' chest (the bruised area was seven inches by three inches, according to the autopsy report) that resembled a shoe print. Armed with this information, Tabullo said, he returned to Avila and confronted him with what he considered evidence that Avila had stomped on the baby's chest. Tabullo asked Avila if he could see his shoe; Avila complied. "Well, I asked him," after inspecting Avila's sneaker, "do you want to tell me the truth?" Tabullo testified. "He said yes. He shed a few tears and started telling me the truth."

The truth, according to a second statement Tabullo said Avila offered, hours later, at 5:46am, was that while Avila was watching the basketball game at Macias' apartment he got up and went to the bedroom where Nicholas was alone. "I saw him laying on the floor," reads the second statement. "I don't know what came over me, but I walked over to him and stamped on him with my right foot." Avila then allegedly picked Nicholas up and brought him into the living room where Dylan shook Nicholas to try to "wake him up" and then hit him on the chest with a magazine. Avila called 911. Why had he done it? According to the second statement, it was because he was "jealous" that Macias paid so much attention to the toddler.

According to Avila, Tabullo fabricated that second statement. He said that when Tabullo returned to the interview room where he'd been left after making his first statement, Tabullo confronted him with the photos of the alleged shoe-print bruise. Avila said he knew nothing about the injury, he testified in court. Tabullo told Avila he would have to wait a while longer in an interview room. Tired, Avila asked if he could leave; no, not until Tabullo was "done with you," he testified. Avila was tired and was falling asleep as they talked, he recalled. "I said, 'Is it okay if I go to sleep,' and he says, 'Yes,'" Avila testified. "He goes, 'I just need to make some changes on the statement.' He says, 'If you want ... I'll wake you up when I'm done.'" And that, said Avila, is what he did. When Tabullo woke him up later, Avila said, he was told only that he needed to sign his statement again, and that he could then leave. Avila says he did as he was told – without ever reading the new statement. He was then arrested.

Although there is certainly reason to suspect the validity of the second statement – it was conducted by Tabullo alone and was not recorded, and unlike the first statement, Avila did not initial any of the paragraphs, though Tabullo said that's because Avila told him that he trusted the detective and didn't need to go through that – the damage was done.

How much better would it have been for everyone if Avila's interrogation had been recorded? Without a recording no one besides the two men involved can know for sure what happened in that interrogation room. One of them is lying and it's impossible to know who. Maybe in 2015 the Texas Legislature will finish the tasks assigned it by the Tim Cole panel and finally require recording of custodial interrogations. Otherwise, there's little doubt similar situations will continue to arise, calling convictions into question and muddying the waters for appellate courts trying to suss out the mess after the fact.

Good House bills deserve floor votes as session's end draws near

There's very little time left for bills in the Texas House of Representatives to receive votes on the House floor before deadlines next week close off their chances to become law. There are several bills presently sitting in the Calendars Committee that I'm especially hopeful may make it onto the list to receive votes before the bell tolls on hundreds of House bills next week:

• HB 1608 by Hughes requiring government to obtain a warrant to obtain personal cell phone data,
• HB 1096 by Canales requiring law enforcement to record custodial interrogations for the most serious offenses, and 
• HB 104 by Gonzales abolishing the Driver Responsibility Surcharge for two years while the Legislature and stakeholders look for alternative trauma hospital funding.

Hughes' bill has broad bipartisan support from 108 House members, including eleven members of the Calendars Committee; if that level of support can't secure a floor vote I don't know what it will take. Canales' legislation is a key priority of my employers at the Innocence Project of Texas and one of the last few recommendations of the Timothy Cole Advisory Panel on Wrongful Convictions that the Legislature has yet to implement. And Gonzales' bill is a bipartisan effort to correct what's arguably the worst public-policy error by the Texas Legislature in the 21st century (which is saying something) - repealing a statute which even the original bill authors agree was a mistake that needs to be eliminated. (See more on HB 104 from Paul Kennedy.)

All of these bills deserve a place on one of the final calendars of the session when the House can approve House bills.

Relatedly, Grits had earlier recommended several additional bills for House floor votes and I'm pleased to see one of them, HB 990 by Thompson, which would authorize creation of a state sentencing commission, was placed on Saturday's calendar. (There are also a number of prefiled amendments aimed at the TDCJ Sunset bill which will be heard that day.) A pair of drug-reform bills Grits favors, though, CSHB 184 and HB 2914, continue to linger in the Calendars Committee and deserve floor votes. And I'd like to see the House vote on HB 1790 by Longoria which would provide positive incentives for probationers to succeed in addition to merely threatening revocation for failure. There's still time left to pass substantive criminal-justice reform legislation this session, but not much.

UPDATE (5/4): HB 1790 has been posted for a vote on Tuesday's House floor calendar, as has HB 912, known universally as "the drone bill." There are two more calendars yet to be published on which the other bills could still be added.

El Paso case highlights need for recording custodial interrogations

Rep. Terry Canales' HB 1096 requiring law enforcement to record custodial confession in the most serious cases passed out of the Texas House Criminal Jurisprudence Committee yesterday. Then, as if on cue, reporter Jordan Smith has published a story in The Nation this week describing an apparent false confession case out of El Paso. In 1993, Daniel Villegas was arrested for a drive-by shooting. Wrote Smith:

Villegas insisted he had nothing to do with the crime and said he was with a group of friends—who were babysitting and watching the movie White Men Can't Jump—when the shooting occurred.

Yet, hours after he was brought in for questioning, just before 3AM, Villegas made a statement confessing to the crime. The confession alone would be enough to send Villegas to prison for life.

But 19 years later, in August 2012, El Paso County District Judge Sam Medrano declared that Villegas, who is now 35, should be given a new trial. The confession obtained by Detective Alfonso Marquez was coerced, he ruled, and the court-appointed attorney who represented Villegas at trial was severely ineffective. “For our justice system to work it must make two important promises to its citizens: A fundamentally fair trial and an accurate result,” Medrano told a packed courtroom on the morning of August 16. “If either of these two promises are not kept, our system loses its credibility, our citizens lose their faith and confidence in our court system, and eventually our decisions and laws become meaningless.”

El Paso prosecutors have pushed back against the court’s ruling, filing objections to Medrano's findings and urging the state's highest criminal court, the Texas Court of Criminal Appeals—known to be fond of finality rather than a stickler for certainty—to affirm Villegas' conviction. Villegas, in the meantime, remains behind bars. Whether he will get a new day in court is now in the CCA’s hands.

Villegas' case remains a potent example of the insidious problem of false confessions, the incomplete or sloppy police work that often accompanies them, and the damage done by defense attorneys who fail to investigate or to defend their clients—in Villegas' case, a story that has almost certainly landed the wrong person in prison while a killer remains unpunished for his deeds.

Villegas was a juvenile, interrogated for hours late into the night, and got many facts wrong in his recitation of events, from where he shot the victim (in the back, he said, but in reality it was the front) to what sort of gun he used (Villegas said he used a shotgun; it was a .22 caliber pistol) and what kind of car he was in (he said a white sedan; witnesses said it was maroon). Then in 2011, in response to billboards placed around town asking for help, a witness came forward who saw the shooting and named the alleged real culprits, two brothers who police had questioned about the shootings but stopped pursuing after Villlegas' confession. One is now dead, the other is in federal prison on drug trafficking charges. The latter man was called to testify at Villegas' habeas corpus hearing but took the Fifth, refusing to testify because his testimony might tend to incriminate him. Remarkably, he did testify that the DA's office had never interviewed him in preparation for the habeas hearing.

Often false convictions stem from a confluence of error as opposed to a single, well-defined cause and  Villegas' case is no exception, combining pretty blatant ineffective assistance of counsel with the apparent false confession. Wrote Smith:

Villegas was actually tried twice for the deaths of Lazo and England. The first time he was represented by a hired attorney who fought hard to counter the state’s case, which was—and remains—built solidly on the confession obtained by Detective Marquez. That trial ended in a hung jury. The state decided to give it another go, but by this time, the Villegas family no longer had money to pay for a defense lawyer, says Mimbela. Although the original attorney offered to continue on, the trial judge refused, appointing an entirely new attorney, John Gates, just sixty days before the retrial.

To say that things did not go well the second time around is an understatement: Gates failed to call any of Villegas' alibi witnesses. In fact, according to veteran criminal defense attorney Joe Spencer, Villegas' current attorney—hired by [John] Mimbela—Gates failed to do anything more to prepare for the case than to read over the transcripts of the first trial. He then failed to do anything with the evidence the transcripts provided.

HB 1096, which if in place at the time would have required Villegas' entire interrogation to be recorded instead of only his confession statement,  is one of two bills moving this session implementing key recommendations of the Timothy Cole Advisory Panel on Wrongful Convictions. Now the bill heads to the House Calendars Committee which so far has been extremely picky about which bills it's been posting for floor votes. This legislation, however, deserves an up or down vote by the full House sooner than later.

See related Grits posts:

• Canales: Record custodial interrogations
• Record interrogations, reduce false confessions
• Police arguments against recording interrogations allow fear to impede self interest
• Latest exoneration highlights problem of false confessions
• Are false confessions 'coerced' or 'persuaded'?
• CCA orders Yogurt Shop retrial based on possibility of false confessions
• Jurors from false confession case call for recorded interrogations
• Recording interrogations makes loads of sense
• Expert: Yogurt Shop case a prime example of false confessions
• False confessions a "systematic feature of American justice"
• Recording confessions saves much grief for police
• Police interrogation a 'guilt presumptive' process
• Would you confess to a crime you didn't commit to save your life?
• If CIA can record interrogations, so can police
• Abilene PD requires recording interrogations
• El Paso conference brought together top minds to prevent false confessions
• Why record interrogations?
• Juries need more, better information to prevent false convictions

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.

Reforming state jails, prosecution as grant management, and other stories

Just a few odds and ends that didn't make it into their own, individual posts:

Narcotics task force cops robbed drug dealers instead of arrest them
Reported the McAllen Monitor, "Two Mission narcotics investigators have been arrested alongside other local law enforcement officers in a federal corruption probe focusing on drug loads stolen from the criminals they had been tasked with taking down." The alleged perpetrators were part of "a joint drug task force made up of Hidalgo County and Mission officers." Long-time readers may recall that multi-county task forces were placed under jurisdiction of the Department of Public Safety back in 2005, with most of them going under within a year, either because they refused DPS supervision or, the rest of them, when Gov. Perry pulled the plug on their funding. But some multi-agency task forces soon formed among agencies all within the same county, as in this example, and clearly some of the same problems still arise. See more on the latest episode from Texas Watchdog.

Conservative plan for reforming state jails
The Texas Public Policy Foundation's Jeanette Moll argued in an Austin Statesman editorial that Texas hamstrung the state jail system "before the first state jail even opened its doors" by implementing direct sentencing instead of using them as a short-term probation sanction. She suggested that, "With hundreds of millions of dollars spent each year on state jails, and outcomes worse than prison, state jails are in dire need of reform." (See related Grits coverage on Ms. Moll's proposals.)

'Texas DPS marks 10,000th match in open cases'
So reported the Texas Tribune. The looming question: Will the Legislature spend money to expand DNA testing capacity at Texas crime labs, not to mention DWI blood testing and other areas where crime labs have backlogs.

Just say "No" to sobriety checkpoints
The Fort Worth Star-Telegram asks "Should Texas have sobriety checkpoints?" For reasons previously stated, Grits votes no.

Strong probation for meth-head driver who hit cyclist
A round of apology letters, an 18-month ban on coaching youth sports teams, and $8,000 in restitution are among "unique" probation conditions for a meth-using driver who struck a stopped motorcycllist from behind in Weatherford.

His only apology is for apologizing
The Waco Tribune interviewed former county tax assessor Buddy Skeen who's currently in jail for misuse of public funds and regrets agreeing to apologize for his actions in open court as a condition of his plea. "I wasn’t punished for my crime. I was punished for my political affiliation."

School discipline roundup

The Texas Education Report has updates on the controversy over RFID use in two San Antonio schools (see related Grits coverage), a report on the hundreds of millions spent by large school districts on disciplinary systems, and another report on a pilot program at Waco ISD aiming to reduce disciplinary referrals, a subject that's lately received national attention. See a related, recent report from the Texas Criminal Justice Coalition titled, "Community Solutions for Youth in Trouble."

Girls' experience in the juvenile justice system
See the Texas Criminal Justice Coalition's recent report.

Prosecution as grant management?
Is there seemingly no failure in public life which cannot be criminally prosecuted?

Peach state criminal justice reform?
Watch what Georgia does on scaling back criminal justice spending. If it can pass in the Peach State, it's got a chance in the Texas Lege.

Private Prison Exec a Grade A Creep
Thomas Weirdsma, the senior vice president of project development at private prison company GEO Group, in my book is a Grad A creep. He's been taking heat lately for a video deposition in which he said that giving false testimony to government agencies "happens all the time." But the real scandal comes from evicting his immigrant daughter in law and allegedly threatening to use his immigration agency connections to have her deported if she pressed charges against his son after she endured "multiple drunken beatings, a near drowning in a bathtub, and an attempted suffocation with a pillow," the Boulder Daily Camera reported earlier this year. Ick! Awarding the daughter-in-law a $1.2 million verdict, jurors found that the Weirdesmas, father and son, each engaged in "outrageous conduct" during the episode, which sounds to me like an understatement.

Huge fine for HSBC money laundering
Finally, a serious punishment for an international bank for money laundering. I'd come to think banks and businesses had been declared effectively exempt from money laundering enforcement, so this is a good sign. A $1.9 billion fine will serve as an actual deterrent for a big company, as opposed to the relatively penny ante "deferred prosecution" cases we've seen in the past. Some despair, though, that no executives are ever personally prosecuted in money laundering cases; particularly at banks like HSBC they're considered "too big to jail." MORE: From Paul Kennedy and Scott Greenfield.

Harsh CIA interrogations ineffective
So concluded the most extensive-ever analysis on the topic, though it's a conclusion I once thought professional interrogators had reached many decades ago following the Wickersham Commission.

Record interrogations: Reduce false confessions

CBS News' 60 Minutes last night had a disturbing story on the subject of false confessions, honing in on police interrogation of juveniles in Chicago, which the story called the nation's false confession capital. In a bizarre twist, a Chicago prosecutor insisted she believed in the guilt of exonerated defendants even after DNA had cleared them and implicated a convicted rapist. She suggested the rapist who's DNA was discovered (who is now deceased) coincidentally wandered by an open field after the fact and had sex with the corpse of a 14 year old, AFTER the boys who'd confessed had committed the deed. The courts disagreed, though, based on a close analysis of the recorded confessions, and released them with an accompanying finding of actual innocence.

The story reminded me Grits failed to link to a recent story from the Texas Tribune about proposed legislation by state Sen. Rodney Ellis to require police to record custodial interrogations, which was one of the recommendations of the Timothy Cole Advisory Panel on Wrongful Convictions that the Texas Lege failed to act on last session. Critics of the bill rely on several highly questionable claims, but once you get past red herrings about cost and logistics, it comes down to these two: Criminals might "get off" if unrecorded confessions are suppressed and jurors would not understand often-aggressive interrogation techniques that may lead to an eventual confession.

As for the former, it's a phony argument. The bill explicitly allows un-recorded confessions to be admitted if police can show "good cause" why they weren't recorded, the definition of which includes all of the hypotheticals being tossed out by critics, and more. In any event, a disputed confession may later be retracted whether it's recorded or not. A recording, though, may help convince a jury the defendant is guilty anyway, or provide evidence that would otherwise not exist if the confession turns out to be false. The bill only requires interrogations to be recorded regarding serious crimes: murder, kidnapping, human trafficking, sexual assault and child abuse.

In some ways, the second reason - fear of public perception about police interrogation techniques - is based more in reality than the fear that confessed criminals will be releaesd, though Grits still doesn't consider it a particularly strong argument. American police tend to employ tactics derived from the Reid technique, which assumes guilt and relies on an accusatory style, cutting off denials and using psychological manipulation to secure confessions. European police, by contrast, tend to rely on an information gathering interview method, with the goal of interrogations more geared toward gathering data which can be confirmed or denied through investigation, as opposed to ending the investigation in the interrogation room. The Reid formula can appear coercive to an outside observer, and indeed the method was first developed in the 1940s as a substitute for overtly coercive "third degree" style interrogations.

OTOH, the accusatory style poses a greater risk of false confessions and thus merits greater skepticism when a confession is the only evidence, particularly in the most serious cases. Indeed, concerns with the Reid technique have troubled courts for years. New York magazine reported in 2010 that "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." So it's understandable police might fear those methods would be viewed unfavorably, given that even the Supreme Court has openly expressed fear of its potentially coercive effects.

Even so, with recording interrogations now the law in 19 states, according to the Tribune, there's ample evidence that law enforcement can overcome such skepticism and still achieve convictions. And overall, the benefits of recording far outweigh the detriments. Former US Attorney Geoffrey Stone wrote last week that:

After some hesitation and resistance, law enforcement's reception of these statewide recording mandates has become extremely positive. They recognize the many benefits of recording confessions: detectives are better able to concentrate on the interview rather than on note taking; there are no longer disputes about what was said and done during the interrogation; officers who might otherwise be tempted to play fast-and-loose with the rules are deterred from doing so; it is more difficult for interviewed suspects to bring trumped-up charges against police officers for alleged misconduct; and public confidence in the fairness of the criminal justice system is enhanced. All in all, this common sense reform has worked extraordinarily well.

Nonetheless, there are still some national, state and local law enforcement organizations that vehemently oppose statewide laws or court rules on electronic recording. Although they no longer dispute that recording is, in theory, a good idea, they nonetheless insist that each police and sheriff department in the nation should be free to adopt its own "best practices," which means that every local department could decide for itself whether or not to record, and if so when and how. Their reasons for opposing statewide rules are sketchy, at best. For example, they argue that "every locale is different" and that defense lawyers will use recordings to "get guilty criminals off." These are simply unwarranted objections.

Which doesn't mean those objections won't be repeatedly trotted out by law enforcement and the media as Sen. Ellis' bill progresses. Similar objections were raised when the state required recordings at traffic stops after 2001, though none of the Chicken Little predictions were borne out in reality. Given the ubiquity and ease of recording in the 21st century, IMO the practice will inevitably become widespread and in the future will be considered a no-brainer. The question is whether Texas will wait for more tragedies and overturned convictions before acting to formally require it.

• Police arguments against recording interrogations allow fear to impede self interest
• Latest exoneration highlights problem of false confessions
• Are false confessions 'coerced' or 'persuaded'?
• CCA orders Yogurt Shop retrial based on possibility of false confessions
• Jurors from false confession case call for recorded interrogations
• Recording interrogations makes loads of sense
• Expert: Yogurt Shop case a prime example of false confessions
• False confessions a "systematic feature of American justice"
• Recording confessions saves much grief for police
• Police interrogation a 'guilt presumptive' process
• Would you confess to a crime you didn't commit to save your life?
• If CIA can record interrogations, so can police
• Abilene PD requires recording interrogations
• El Paso conference brought together top minds to prevent false confessions
• Why record interrogations?
• Juries need more, better information to prevent false convictions

False confessions and 'corroboration inflation'

Forensic pscyhologist Dr. Karen Franklin has a thoughtful post on the effects of false confessions on experts' analysis of evidence and on legal actors in the justice system. Yes, she says, false confessions have "produced profound miscarriages of justice," but:

What if, once police elicit a false confession from a suspect, it contaminates everything and everyone in touches -- from the prosecutor, the judge, and even the suspect's own attorney all the way to the fingerprint identification and even, perhaps, the DNA match?

That is the troubling thesis raised by Saul Kassin, a pioneer in the psychological study of false confessions, in an article in the current issue of the American Psychologist.
 
"Corroboration inflation"

Research shows us that such a contaminating effect is plausible. For example:

• Fingerprint experts who were told the suspect had confessed were more likely to change their opinion and make an incorrect match, as compared with experts who were told the suspect was already in custody at the time of the crime
• Polygraph examiners were significantly more likely to opine that an inconclusive chart showed deception when they were told the suspect had confessed.

Such findings may extend to other forensic science that requires subjective judgments, Kassin argues, including comparative analyses of ballistics, hair and fiber, shoeprints, tire tracks, handwriting and even DNA.

See the rest of the post for more and also an abstract of the academic article she based it on.

External review suggested for botched Austin Yogurt Shop investigation

Grits was fascinated to see this week that "The Austin Public Safety Commission on Monday passed a resolution that would establish a process and provide funding for the external review of selected major cold cases, starting with the infamous 1991 yogurt shop slayings." Here's why:

Vice Chairman Kim Rossmo ... [gave] a short presentation on the weak evidence that took two men to trial in the notorious murder investigation, which he described in a written statement in advance of the meeting as having "suffered from ‘tunnel vision' and ‘group think.' "

"It appears detectives are trying to twist the evidence to fit pre-existing theories, rather than adjusting their beliefs to accommodate the new DNA evidence," wrote Rossmo, a Texas State University criminology professor and former police detective. "A proper investigation requires an open mind and a constant exploration of alternative suspects. It appears this has not occurred in any meaningful way in the tragic Yogurt Shop Murders case."

At the meeting, Rossmo argued that:

"Groupthink" within the Police Department has hindered progress in the investigation, Rossmo told fellow commissioners. He said that investigators had failed to take a fresh look at the case, even as poor evidence gathered from a crime scene damaged from fire and water had contributed to faulty theories against the four teenagers originally arrested in the crimes, Rossmo said.

More than 50 people interviewed had falsely confessed to committing the crimes, but police had relied heavily on the confessions of the two teens whose convictions were later overturned, Rossmo said.

"There are strong emotions surrounding this case," he said. "However, strong emotions have been shown to interfere with clear thinking."

The Statesman noted that "Some commissioners said they did not agree with Rossmo's criticisms but voted in favor of the resolution because they said a fresh set of eyes could develop new leads." (See more from the Austin Chronicle here and here)

The Yogurt Shop confessions were so notoriously unreliable that, when the Texas Court of Criminal Appeals' Criminal Justice Integrity Unit wanted to explore the subject of false confessions, they brought in a national expert who described the case as a textbook example of how they are obtained.

Likely Rossmo's suggested review stems from concerns raised in December by the Austin Chronicle's Jordan Smith that tunnel vision and hubris prevented police and prosecutors from pursuing other, more likely suspects even after DNA evidence disproved the state's theory and contradicted the confessions. Her reporting identified other problems besides false confessions, like APD reworking forensic results to support their weak case:

For example, the city's fire investigator, Melvin Stahl, concluded from reviewing the crime scene that the fire had started in a corner of the shop where supplies were stored. Later, after investigators obtained from [Michael] Scott a confession that he started the fire on the bodies of the girls by using an accelerant, investigators went out and got a second opinion from ATF agent Marshall Littleton that matched Scott's confession; Stahl then recanted his conclusions and reworked his theory to match Littleton's. "That stunk to high heaven," says [retired APD Sgt. John ] Jones. "That bothered me."

Having now learned much more from the Forensic Science Commission's Todd Willingham/Ernest Willis investigation about how flaky and unscientific arson investigations were in Texas back in the early '90s, we can't be surprised at such shenanigans, but they indicate how the law enforcement first identified a theory then cherry-picked or manufactured evidence to support it instead of looking at the evidence and deriving conclusions from it.

The case deserves the external review and I hope the commission does a thorough job. I also hope that prosecutors and APD can avoid taking justified criticism personally and reacting with hostility and defensiveness, which is typically what's happened before now. The case was botched, the prosecution was botched, and afterward officials seemed more interested in justifying their errors than correcting them or pursuing other viable suspects.

OTOH, it's been more than 20 years. Why review it now? Because those who do not learn from their mistakes are inevitably doomed to repeat them.