Police-Induced False Confessions Are All Too Common.
By: S. Michael Scadron
Tags: Interrogation, False Confessions, Criminal Justice, False Accusations, Confessions

The Courts Still Don’t Get It.

The videotape is fuzzy, but one can see a boy, age 14, sitting in a police station. Michael Crowe is being questioned by several officers as a suspect in the murder of his 12-year-old sister, Stephanie. She was stabbed several times in her bedroom in the family’s home in Escondido, California, sometime between late night January 20, 1998, and early the next morning. Police found no sign of forced entry. Nor did they find any knives at the scene consistent with the murder weapon, nor any bloody clothing. They questioned all of the Crowe family members, but they soon turned the focus of the investigation to Michael.

At first, Michael denies any knowledge of Stephanie’s murder, but the detectives are troubled by his story. The officers advise him of his rights under Miranda, including his right to a lawyer and his right to remain silent. But he has nothing to hide and silence implies guilt, doesn’t it? As with so many suspects, particularly those who are innocent, he thinks it best to cooperate. Although the police have no evidence that incriminates Michael, they see him as less emotionally distraught over his sister’s death than they think he should be. They suspect sibling rivalry at play.

The police question Michael for 12 hours over the course of three days. His interrogation is recorded on video. During the interviews Michael sits by himself, without a lawyer present, his folks aware only that he has been put in protective custody, but unaware that Michael is being interrogated. With scant evidence, they’ll need a confession to blame the killings on him. In coaxing one from him, the law doesn’t require them to be truthful. Courts allow deception in criminal interrogations. A useful tool, indeed.

Officer Scarella is bluffing. He asks Michael why Stephanie’s hair would be in his room. There is no reason, the frightened boy concedes. The detectives leave the room, as they will do many times over the course of the interrogation, allowing Michael time to ponder his circumstance and, hopefully, come around. Clearly, he’s fearful. Who wouldn’t be in such a setting? Do they really think he killed his own sister? He’d played nicely with her before bedtime the night of the murder. He loved his sister.

When they return, Officer Claytor asks Michael whether he’d be willing to take a truth verification test. The results of such a test are infallible, he says. Officer McDonough tries to bond with the suspect, telling him they can work through this together. This is a classic good cop, bad cop routine. Michael is willing to take the test. He doesn’t realize he’s being sucked into a process that will lead him to confess to the murder.

The officers repeat the test questions over and over. Did you take your sister’s life? Michael denies any involvement in her death. The test results show you lied, they lie to him. Now Michael is distraught, tearful. He’s left alone again. When the detectives return they try to convince him that the situation is hopeless. Officer Claytor tells him blood was found in his room (another lie). Michael is frustrated that they won’t take no for an answer. “Why are you doing this to me,” he asks. McDonough, the “good cop,” says he needs therapeutic help and recommends that he write a letter to his dead sister confessing all. This he does. In the letter he writes that “I’m only doing this because they told me I’m insane.” Indeed, they have him nearly convinced that there are two Michaels, one good and one evil.

The officers tell him, again and again, that if he confesses, he’ll get help, otherwise it’ll be jail. Lying again, they tell him that there’s an avalanche of evidence that he must head off or be crushed by it. He accepts their offer to end the interrogation, and they take him elsewhere. Off camera, the detectives place Michael under arrest and tell him, falsely, that his folks now hate him. By now, Michael is convinced he has a split personality. Relieved, he gives a vague confession though he knows none of the details of the stabbing such as the number of times Stephanie was stabbed, and he repeats that he has no memory of killing his sister.

Later, the cops arrest two teenage accomplices. One eventually states, under relentless questioning, that he was only a lookout. The other denies the crime altogether. After the case is set for trial, a mentally ill transient is arrested, discovered with Stephanie’s blood on his shirt. The boys are freed and ultimately a court proclaims Michael to be factually innocent. The families of all three boys sue and Michael wins a $7.25 million-dollar settlement.

(Michael Crowe, video (part 1); Michael Crowe, video (part 2); Michael Crowe, video (part 3))

Michael Crowe’s interrogation is a classic case of false confession, and unfortunately his experience is not at all unique. According to the Innocence Project, of 367 DNA exonerations since 1989, when the first DNA exoneration took place, 28% involved confessions to crimes that the exoneree did not commit. Twenty-one of the exonerated prisoners had served time on death row. In 49% of these cases the exoneree was 21 years old or younger; 33% were 18 or younger; and ten percent had mental health or mental competency issues.

Coercive interrogations frequently result in wrongful convictions rooted in false confessions. Yet, despite the unreliability of confessions given under duress, courts tend to allow evidence of them anyway, often overlooking other compelling evidence pointing to innocence. As a result, not only are innocent suspects locked-up, but the real culprits are left to kill, rape, or commit other crimes, time and again.

The Reid Technique and Its Legacy

Michael Crowe was a victim of the Reid technique, a method of interrogating suspects developed in the 1950s by John E. Reid, an American psychologist, polygraph expert, and former Chicago police officer. Under this method, the interrogation is an accusatory process in which the investigator tells the suspect that the results of the investigation indicate that he did in fact commit the crime. Ideally, the demeanor of the investigator is understanding and non-demeaning, with the goal of gradually making the suspect comfortable with telling the truth. However, the interrogation always carries with it the assumption of guilt and the attendant risk of confirmation bias — meaning that the investigator has already concluded that the suspect is guilty and is looking only for answers that confirm this belief. Indeed, in 2012 a Canadian court found that the Reid technique is “a guilt-presumptive, confrontational, psychologically manipulative procedure whose purpose is to extract a confession.” http://www.calgaryherald.com/news/Alberta+judge+slams+Reid+interrogation+technique/7223614/story.html

To be fair, Detective Reid didn’t set out to devise a method of interrogation that would result in false confessions, but abuses of his methods, such as treating the accused suspects aggressively and telling them lies about the amount of evidence, have had the tendency to cause the accused to become psychologically overwhelmed, as in the case of Michael Crowe.

The Reid technique, dating back decades, doesn’t call for videotaping the interrogation, a protocol that has become accepted in some jurisdictions more recently. It does, however, anticipate having the suspect prepare a recorded confessional statement (audio, video, or written). Saul Kassin, professor of psychology at the John Jay College of Criminal Justice in New York City, a staunch critic of coercive police interrogations, has strongly recommended the electronic recording of criminal interrogations, along with other reforms to protect the most vulnerable members of the population. In an interview given to a psychologist connected to the American Psychological Association, Kassin addressed the obvious core question as to why anyone would confess to a crime they didn’t commit. “The very short answer,” Kassin explained, “is that everyone has their breaking point.” Kassin Interview

In his interview, Kassin identified three categories of false confessions. The first, which has limited relevance to coercive interrogations, are voluntary confessions where people willingly confess to a crime they didn’t commit, usually in the context of a high profile case that is in the news, such as happened in the notorious Lindbergh kidnapping case in 1932 where 200 people volunteered confessions and all of them were false. The next two categories differ fundamentally in that they are induced by police. Of these, the first is a category that Kassin labels “compliant false confessions.” These are the most common type. Compliant false confessions occur where individuals who know they are innocent break down and confess in order to extract themselves from a very stressful situation. Michael Crowe’s confession would seem to fit this category.

The second is what Kassin refers to as internalized false confessions where persons vulnerable to manipulation are brought in and deny involvement in the crime until the interrogators use tactics such as lying about the evidence and making up statements supposedly provided by friends or family of the accused. Then, after hours of being told they’re guilty, the suspects come to believe it themselves. (Such aggressive tactics were used in the Crowe interrogation, but because Crowe never became convinced that he actually killed his sister, he doesn’t fully meet the criteria for this category). The suspects who come to believe they are guilty may even be led into reenacting the crime, such as in the Melissa Calusinski case (discussed below) where, after denying guilt 79 times, the young day care worker demonstrated for the detectives how she slammed the boy in her care on the ground.

Steven Drizin, clinical professor of law at Northwestern University, a legal expert who has handled cases involving false confessions (see The Problem of False Confessions in the Post-DNA World by Drizin & Leo) also speaks to the several reasons why innocent people are led to confess, primarily the “coerced — compliant” type, i.e.: one who is eager to escape a coercive interrogation based on a promised benefit or to avoid theoretical harm. Those most vulnerable to falsely confessing include youths, low IQ individuals, or people with unstable personalities or mental states.

The worst part of these cases is that even when the suspect later recants his confession, judges and juries tend to believe the original confession.

Call for Remedies

Kassin concludes that the number one rule for reform is to record the entire process. As of 2020, only 25 states required the recording of police interrogations.

Most of the Crowe interrogation was captured on video in three segments [links]and remains accessible via You Tube. However, as shown, Michael’s actual confession occurs off-camera. Now Senator Amy Klobuchur (D-Minn.), then a prosecuting attorney, was interviewed in connection with the Crowe prosecution. In her interview, she advocated in favor of the taping of criminal interrogations designed to extract confessions, reasoning that doing so may actually be helpful to prosecutors lest false accusations be leveled against the police.

Aside from videotaping interrogations, Kassin calls for such protective measures as blind testing in forensic science labs, and admissibility of confession experts in court. See, e.g. The Social Psychology of False Confessions by Kassin & Kiechel.

***

There have been numerous cases of false confessions resulting in wrongful convictions over the past few decades. A review of three high-profile cases involving criminal convictions based on false confessions in the United States is like a lesson in arithmetic: The West Memphis Three, the Norfolk Four, the Central Park Five. The facts of these cases are amply set forth in books, documentaries, a range of internet sites, plus various magazine articles and blogs. What follows is an analysis of how each of these cases share the classic elements of police-induced false confessions:

(1) a horrific crime that carries with it pressure for quick resolution;

(2) grounds for suspicion that certain individuals (usually young, low IQ, or mentally impaired) took part in the crime;

(3) detectives acting on such suspicions by conducting lengthy and aggressive interrogations aimed solely at extracting confessions of guilt;

(4) tunnel vision that prevents the authorities from questioning their assumptions or looking elsewhere for answers, even when flaws in the case become evident; and

(5) the persistent belief by police and prosecutors that the criminal justice system got it right in the face of compelling evidence that a mistake was made, thus delaying justice for the accused, usually for decades.

The West Memphis Three (1993)

Horrific Crimes: After an extensive search, three eight-year-old boys were found in a muddy creek, stripped and hogtied.

Grounds for Suspicion: The police suspected a cult killing and focused on three teen boys (ages 16, 17, and 18) who lived nearby, each of whom had some history of minor criminal infractions, and/or mental health issues.

The Interrogations and Convictions: One month after the murders, police interrogated 17-year-old Jessie Misskelley who had an IQ of 72 (categorizing him as borderline intellectual functioning) for roughly 12 hours. Miskelley was questioned alone. Only two segments of his 12-hour interrogation, totaling 46 minutes, were recorded. The boy quickly recanted his confession, citing intimidation, coercion, fatigue, and veiled threats from police. He said he was scared of the police during his confession.

Though he was informed of his Miranda rights, Misskelley later claimed he did not fully understand them. Even so, in 1996 the Arkansas Supreme court ruled that his confession was voluntary and that he did, in fact, understand the Miranda warnings and their consequences.

Later that year, Misskelley made additional statements to police against the advice of his lawyer, implicating the other two boys: Damien Echols and Jason Baldwin. He immediately recanted, saying he was coerced into confessing. Even though Misskelley’s confession did not comport with the evidence from the crime scene, he and Baldwin were convicted of murder and sentenced to life in prison without parole, while Echols was convicted and sentenced to death.

Tunnel Vision: Once the police decided that the crime had cult overtones, they focused exclusively on the suspects (particularly Echols because of his interest in the occult), while ignoring other leads. For example, early on the police regarded two other teenage boys with a history of drug offenses, as suspects. One of them was familiar with the victims, and both had departed for California soon after the bodies were discovered in the creek. They were arrested in California and questioned in connection with the West Memphis crime. One of them said he might have killed the victims, although he quickly recanted that aspect of his statement. Even though the California authorities sent blood and urine samples to WMPD and found deception on polygraphs they gave to the boys, the WMPD turned away from that lead.

Other flaws in the case, such as bite marks that didn’t match those of the suspects, blood at the crime scene that was never tested, and the fact that the bodies of the victims had been moved from the creek and left to decay on the creek bank, exposed to sunlight and insects, combine to suggest that the police should have questioned their assumptions and biases about the case, but continually refused to do so.

Persistent Refusal to Acknowledge the Injustice: West Memphis generated much controversy and became the subject of several documentaries: Paradise Lost (1993), Paradise Lost: The Child Murders at Robin Hood Hills (1996), and Paradise Lost Two: Revelations (2000). Celebrities and musicians, convinced of the boys’ innocence, held fundraisers on their behalf. Nevertheless, all appeals during the mid-1990’s fell on deaf ears. In 2007, eleven years after the convictions of the three suspects, DNA collected from the crime scene was tested based on improved technology, and none was found to match DNA from Echols, Baldwin, or Misskelley. Even so, prosecutors, while conceding the lack of DNA evidence, stated that they stood by the convictions. Echols petitioned for a re-trial based on a state law permitting post-conviction testing of DNA evidence due to technological advances made since the initial trials were held which might lead to exoneration of the wrongly convicted, but the original trial judge disallowed the evidence.

In 2010, the Arkansas Supreme Court ordered a lower judge to consider whether newly analyzed DNA evidence might exonerate the three. Those hearings were never held. Instead, in 2011, after weeks of negotiations, the three were released from prison as part of a deal whereby the defendants entered what is known as an “Alford plea” allowing them to plead guilty to lesser murder charges while still asserting their innocence. Although the three likely would have been exonerated in a new trial, that would have meant at least two more years of prison time, not a happy circumstance, especially considering that the health of one of the defendants was already precarious. Prosecutor Scott Ellington stated that, although he still believed the men guilty, they would likely be acquitted if a new trial were held because of the powerful new legal counsel representing them, the loss of evidence over time, and the change of heart among some of the witnesses.

Governor Mike Beebe refused to pardon the men unless there was evidence that someone else had committed the crime. Never mind the compelling evidence that the three were factually innocent, the state was hell bent on adhering to the convictions in what can only be considered an all-out effort to save face.

After 18 years of fighting for their innocence, the West Memphis defendants have yet to be fully exonerated. Even so, they have relished their freedom and moved on in life. For example, Echols has become an artist, movie producer, and author, while Baldwin has been involved in movie production.

The Norfolk Four (1997)

Horrific Crimes: The 18-year-old wife of a 19-year-old sailor was found to have been raped, stabbed multiple times, and strangled to death.

Grounds for Suspicion: The police suspected that multiple offenders were involved in the stabbing death of the sailor’s wife and initially focused their attention on eight sailors who lived in the same apartment complex as the victim, one of whom was said to be obsessed with her. Ultimately, the charges against four of the eight would be dismissed due to lack of evidence.

The Interrogations and Convictions: Four Navy sailors — Dick, Tice, Williams and Wilson -– were convicted of the rape and murder of the sailor’s wife, Michelle Moore-Bosko, in separate trials held in 1999 and 2000. Two of the men pled guilty before trial after being threatened with the death penalty, while the other two were convicted following their trials. The convictions of all four were based largely on their confessions which they each maintained had been coerced after hours of interrogation. Williams, who was interrogated for nine hours, said he felt threatened and treated like a criminal until he was overwhelmed and worn down. Dick, who was said to be of limited mental capacity, maintained his innocence for hours, claiming he was on duty on his ship at the time of the murder. However, the relevant ship records weren’t sought by police and eventually were destroyed before the New York Times published a feature on the case in August 2007.

Wilson, who was acquitted of murder but found guilty of rape, recanted his confession and explained that he had given in to detective Glen Ford’s aggressive interrogation. Years later, Ford would be convicted of unrelated federal corruption charges. Wilson would then liken him to a bull dog that when it has its teeth in you, won’t let go.

A fifth man, Omar Ballard, a man who was acquainted with the victim, readily confessed in 1999, insisting that he had acted alone. Indeed, he was the only one of the suspects whose DNA matched that collected at the crime scene, and whose confession was consistent with the other forensic evidence.

Three of the sailors who made false confessions were convicted of rape and murder and sentenced to one or more life sentences without the possibility of parole. The fourth sailor (Wilson) was convicted of rape and sentenced to 8½ years in prison.

Tunnel Vision: Unlike the other four suspects who were led to confess, Omar Ballard provided details about the killing that were consistent with the physical and forensic evidence. Years later his DNA was found to match that found at the crime scene, and, indeed, his was the only DNA that was ever found at the scene. Ballard was serving time in prison for two other violent crimes (including the beating and rape of a 14-year-old girl) committed in the vicinity of where the Boskos lived when he was first arrested for Michelle Bosko’s rape and murder in 1997. He was the last of the suspects to be arrested, but he wasn’t indicted until years later when the DNA confirmed the truth of his confession. He pled guilty to the crime and was sentenced to 100 years in prison, 59 of which were suspended by the court.

Notwithstanding the compelling evidence that Ballard acted alone in committing the crime, police continued to believe that multiple offenders were involved in Bosko’s murder, and it was this unwavering belief and refusal to question their assumptions, rather than the evidence, that resulted in four false confessions and wrongful convictions.

Persistent Refusal to Acknowledge the Injustice: Early appeals by the four Norfolk sailors met with mixed results. Williams lost his appeal in 2000, while Tice’s conviction was reversed in 2002 because the trial judge had not allowed his lawyer to question Ballard about his written confession. At his re-trial, however, the same judge refused to allow Ballard’s confession or statements to be introduced as evidence because he found they weren’t properly authenticated. Tice was again convicted and given two life sentences.

Tice’s second conviction was overturned in 2006 because, as the appellate court held, the police violated the well-established rule that once a suspect has invoked his right to remain silent, the police must stop questioning. [cite]. The court concluded that without DNA or physical evidence and no eyewitnesses, Tice would likely have been acquitted had his confession not been part of the trial record. However, the state appealed to the Virginia Supreme Court, which reaffirmed and reinstated his conviction.

Tice filed a petition for habeas corpus in 2009. The Judge vacated Tice’s rape and murder convictions on the ground that he’d been denied the constitutional right to effective counsel. This decision was affirmed by the U.S. Court of Appeals for the Fourth Circuit in 2011, and Tice was freed later that year when that same court ruled that the lower court should have thrown out his confession.

Wilson had been released from prison in 2005 after having completed his sentence. He filed a petition for habeas corpus in 2010 challenging his conviction, but the court refused to hear his case because he was no longer in custody and, thus, could not petition for habeas relief.

By 2005, the Norfolk Four had gained the attention of the media and major law firms out of concern that they’d been railroaded by the interrogations. Also, around that time the Innocence Project became involved. In support of the efforts to clear the names of the defendants, a Virginia forensic consulting firm issued a 60-page report that concluded that none of the Norfolk four had been involved in the rape and murder of Moore-Bosko, and that Ballard was solely responsible as he had claimed.

That year, attorneys for Dick, Tice, and Williams petitioned for clemency from Virginia governor Mark Warner, as they were each serving life sentences. Their petition was supported by several retired FBI agents and most of the original jurors who had initially voted to convict Tice and Wilson. Warner didn’t rule on the petition, but his successor, Tim Kaine, granted a conditional pardon to the three in 2009, which gained their release from prison, but didn’t vacate their convictions. Accordingly, they were still required to register as sex offenders with local authorities and remained felons.

As a result of additional evidentiary proceedings in 2016, the convictions of Williams and Dick were vacated by U.S. District Judge John A. Gibney who ruled that the two defendants did not commit the rape and murder to which they had pled guilty and “no sane human being could convict them based on the available evidence.” Williams v. Brown, et al., C.A. №3:09CV769 (E.D. Va. Sept. 26, 2016), at 6.

Subsequently, the state ended its long-standing opposition to their claims of innocence and withdrew all charges against them.

In November 2016, the Virginia Attorney General instructed the Norfolk police to videotape all interrogations and confessions relating to homicides. In 2017, Governor Terry McAuliffe granted absolute pardons to the Norfolk four. The four filed a civil suit against the city and state for their wrongful convictions. The City of Norfolk settled for $4.9 million and the state for an additional $3.5 million.

As in West Memphis, nearly two decades had gone by before the Norfolk sailors received justice, if one can call it that. No one can give them back the lost time. At least, at the end of the day, the Norfolk defendants, unlike the West Memphis teens, were fully exonerated.

The Central Park Five (1989)

Horrific Crimes: A 28-year-old female investment banker who was jogging in the park, was raped, beaten senseless and left for dead, although in time she would partially recover.

Grounds for Suspicion: The police concentrated on a large group of African-American and Hispanic teenagers who had been “wilding” (going berserk and harassing folks) in the park the night of the crime, soon narrowing their focus to five young men in particular. Another possible suspect unconnected to the group was briefly questioned in the park the same night, but he was let go.

The Interrogations and Convictions: The five black and Latino youths aged 14 through 16 were convicted of rape, assault and other charges in two separate trials related to the brutal beatings of the female jogger, Trisha Meili. (A sixth boy pled guilty to reduced charges). Each of the young men — Anton McCray, Kevin Richardson, Yusef Salaam, Raymond Santana and Korey Wise — confessed to acting as an accomplice to the rape, either by holding the young woman down or touching her while someone else raped her. All of the confessions, except Salaam’s, in some cases with the parents present, were videotaped, but the hours of questioning that preceded the confessions, were not. Within weeks following their confessions, each of the suspects recanted.

None of the youths had counsel present during their interrogations, and each confession contained errors as to the time and place of the crime. Also, each confession varied as to who participated, including naming several youths who were never charged. None of the DNA of the five suspects matched the DNA recovered at the crime scene from two semen samples for an unidentified man, nor was there any other physical evidence linking any of the five to the crime.

Numerous pre-trial hearings were held and ultimately the court ruled the videotaped confessions admissible. The court also accepted Salaam’s unsigned statement as evidence, noting that Salaam had lied to police about his age and showed them false identification. Also, Salaam was implicated in the rape by the confessions of the other four boys.

Ultimately the five youths were convicted of assault. The four who were under 16 were sentenced to 5–10 years, while Korey Wise, age 16, was sentenced to 5–15 years.

Tunnel Vision: At the outset, detectives might have been justified in thinking members of the gang who had assaulted strangers in the park that night other than the jogger had also participated in the more brutal attack on the jogger. There was massive media coverage of the event and public outrage. A real estate developer named Donald Trump (not yet considering a run for the presidency, but already quite opinionated), took out ads in several of the city’s newspapers calling for the return of the death penalty. Responding to Mayor Ed Koch’s call to the people of New York to remove hate and rancor from their hearts, Trump’s ads stated as follows:

“Mayor Koch, I want to hate these murderers and I always will…. How can our great society tolerate the continued brutalization of its citizens by crazed misfits? Criminals must be told that their CIVIL LIBERTIES END WHEN AN ATTACK ON OUR SAFETY BEGINS.”

However justified the police might have been in focusing on the gang of teens at the start of their investigation, once they obtained confessions from the five who were ultimately convicted of assault, they exhibited tunnel vision by ignoring the inconsistencies in the confessions. For example, they ignored differences in the time and place of the crime and precisely who participated in the crime. Also, they ignored the fact that the DNA of one single individual recovered from the crime scene was no match for any of the suspects. And most notably, they didn’t consider the fact that the narrow grassy area of the north woods through which the victim was dragged before being raped made it unlikely that multiple attackers were involved. The trail was 18 inches wide and there was no evidence of footprints of more than one assailant. Finally, the police disregarded the contrast between the statements by the suspects that accurately described certain attacks that they actually committed against other people in the park with the several inaccurate descriptions of the attack on the jogger.

As an error of omission that years later would come back to haunt investigators, they stopped to briefly question a Hispanic teenager unconnected to the larger gang the night of the crime, by the name of Matias Reyes, but they didn’t further investigate him.

Persistent Refusal to Acknowledge the Injustice: As in West Memphis and Norfolk the Central Park defendants had to wait a long time for exoneration. In the years following their convictions they continued to maintain their innocence at hearings and before the parole board, all the while acknowledging their participation in other wrongdoing in the park that night. Their claims of innocence largely fell on deaf ears until 2002 when Matias Reyes told officials that it was he who had raped the female jogger that night. By 2002, all of the defendants except Korey Wise had served their sentences. That year, Wise met Reyes at the Auburn Correctional Facility where they were both being held (Reyes was serving a life sentence) in upstate New York. Whether their meeting prompted Reyes to confess to the attack on Meili is not entirely clear. What is known is that during the summer of 1989, Reyes raped four more women, killing one, and was interrupted while robbing a fifth. It was for these crimes that he was serving a life sentence.

In confessing, Reyes gave a detailed account of his attack on Meili that was corroborated by other evidence, and, most importantly, unlike the five defendants, his DNA matched the DNA evidence at the scene. Based on this newly discovered evidence, Manhattan District Attorney Robert Morgenthau recommended vacating the convictions of the five men.

While supporters of the Central Park Five continued to claim that their confessions had been coerced by the police, Morganthau’s recommendation to vacate the convictions was adamantly opposed by the lead prosecutor, Linda Fairstein, as well as by members of the NYPD. Nevertheless, the convictions were vacated by the New York Supreme Court on December 19, 2002. By then, all five defendants had completed their sentences.

Following these events, Police Commissioner Raymond Kelly convened a panel to review the case. The resulting report, issued in 2003, concluded that the five men whose convictions had been vacated had most likely participated in the beating and rape of the female jogger and that the most likely scenario was that both the defendants and Reyes had assaulted her, possibly successively. Around that time, Linda Fairstein resigned her position with the D.A.’s Sex Crimes Unit, devoting her time to writing crime novels. The notion that the five boys had participated in the crime along with Reyes demonstrates the power of confirmation bias. Despite the compelling evidence that Reyes had acted alone, the authorities could not bring themselves to concede that a mistake had been made.

The persistent belief by city officials that in prosecuting the five boys, by now grown men, the city and police department had done no wrong, continued for years. Mayor Mike Bloomberg refused to pursue settlement of a lawsuit for malicious prosecution that was filed in 2003. Instead, he spoke to the media of his confidence that NYPD did exactly what they should have done after the terrible crime took place. As late as 2011, the city’s Corporation Counsel for Public Safety reiterated on behalf of the city that the charges were based on abundant probable cause, including confessions that withstood intense scrutiny.

Finally, in 2014, after the election of Bill de Blasio, the city settled the lawsuit with the five defendants for $41 million. In 2016, the five men received an additional award of $3.9 million from the state for emotional and economic damages cause by their incarceration.

An unrepentant Donald Trump chimed in with an opinion piece in the New York Daily News in 2014, in which he said that the settlement was a disgrace and the men were likely guilty. During the 2016 campaign, Trump repeated his belief that the five were guilty and that their sentences shouldn’t have been vacated.

Numerous books and documentaries have been made thoroughly detailing the case. Ken Burns, Sarah Burns and her husband David McMahon premiered their documentary film about the case at the 2012 Cannes Film Festival, a year after Sarah Burns’ book, The Central Park Five, was published. In 2019, When They See Us, a four-episode miniseries, was released on Netflix, igniting renewed interest in the topics of false confessions, the criminal justice system, and the lives of the five men subsequent to their exoneration. That television account of the case so infuriated Linda Fairstein that she threatened to sue Netflix, claiming that the show falsely portrayed the police interrogations and her role in directing them.

Each of the wrongfully convicted men have moved forward with their lives. Although they live in different places, each of them is active with various innocence projects, and have been instrumental in reforming New York’s criminal justice practices, including methods to prevent false confessions.

***

Court Justifications

As is evident, prosecutors in the United States continue to advocate for convictions in cases based on confessions that result from coercive interrogations, despite the extensive evidence that such confessions are unreliable. Unfortunately, many courts justify allowing such evidence simply by finding that a particular confession was voluntary. The “voluntary” standard is general enough to afford courts with wide discretion in making the critical evidentiary ruling. Many courts consider a confession voluntary unless it was physically beaten out of the suspect, ignoring the psychological trauma attendant to long hours of aggressive interrogation, particularly among the young and most vulnerable people.

In an article entitled “Kids Waive the Darndest Constitutional Rights: The Impact of J.D.P. v. North Carolina” (American Criminal Law Review vol. 49, summer 2012), attorney Abigail Kay Kohlman argues that despite a need for the doctrine of “parens patriae” (the doctrine that permits the state to step in and protect juveniles and others who can’t protect themselves) to apply in police interrogations, the United States Supreme Court has stopped short of providing safeguards for juvenile’s rights against self-incrimination in such settings. In J.D.P. v. North Carolina, 564 US 261 (2011), the Court considered the plight of a 13-year-old student who was questioned by police in a school conference room about a neighborhood burglary. The Court decided that a child’s age should be taken into account in determining whether he was in custody and, thus, entitled to Miranda warnings “so long as the child’s age was known to the officer… or would have been objectively apparent….“ This decision, while somewhat progressive, does nothing to safeguard the rights of persons who don’t have a clear understanding of their rights even when they are provided, nor does it address the desirability of requiring the assistance of counsel where juveniles or others who can’t protect themselves, unknowingly waive their rights.

While the cases discussed above each resulted in eventual exoneration, or reduced sentences, this was only after it became clear that the original conviction was no longer sustainable. As a result there are innocent people still in prison today because neither prosecutors nor the courts are willing to recognize the injustice done to the most vulnerable people — underage, low IQ, mentally impaired — by harsh interrogations. The strange and heartbreaking case of Melissa Calusinski presents one stunning example. See [links to Front Line & Dr. Oz episodes about the case].

***

Melissa Calusinski

Calusinski was a 22-year-old day care worker of lower than average IQ in Lake County, Illinois when in January 2009 she discovered Ben Kingan, a 16-month-old boy in her care, unresponsive and foaming at the mouth in his bouncy chair. Within a short time after, the boy died. Melissa voluntarily submitted to police questioning without a lawyer present, waiving her Miranda rights. During a more than nine-hour interrogation that was videotaped, she adamantly professed her innocence, denying that she had done anything to harm Ben no less than 79 times. On the 80th try, however, Melissa reached her breaking point, confessing to the police version of what they imagined and told her must have happened — that she had picked up the child and slammed him hard on the ground.

During Melissa’s interrogation, detectives used aggressive tactics in order to coax a confession from her. According to her appellate lawyer, she was interviewed by two large detectives while seated in the corner of a 9” by 12” room. With little sleep in the time between the trauma of the child’s death and her interrogation, Melissa was intimidated and disoriented as her interrogators repeatedly cursed and slammed their fists on the table in order to convince her of the scenario they insisted had to have happened. Even so, she can be seen on the video repeatedly insisting that she’s no baby killer, that she didn’t crack Ben’s skull. But as Saul Kassin says, everyone has their breaking point. The aggressive tactics used by the detectives, combined with Melissa’s below normal verbal comprehension (borderline verbal IQ of 74) that made her particularly prone to suggestion, ultimately led her not just to confess, but to re-enact the crime that had been, in effect, imagined by her interrogators. She soon recanted her confession, insisting that she had been traumatized by the interrogation.

At her 2011 trial, with the use of an x-ray, the prosecution insisted that the boy suffered a skull fracture at Calusinski’s hand. Indeed, they repeated their skull fracture theory 32 times before the jury, even though Eupil Choi, the coroner at that time, had failed to take cross sections of the purported fracture, relying instead on his own internal and external examination during the autopsy, when, as he put it, he “felt” the fracture. At the same time, prosecutors downplayed an October 2008 injury to the boy’s head — six weeks prior to his death — as minor even though it had caused a bump that day care workers felt necessary to report to the boy’s mother. What’s more, prosecutors minimized the fact that Ben was a head banger who, according to day care workers, on numerous occasions had thrown back his head likely exacerbating the prior injury. Years later, in 2015, after Thomas Rudd had replaced Choi as coroner, an enhanced version of the x-ray used at trial was discovered in the state’s files that demonstrated there was no fracture whatsoever. The enhanced version of the x-ray used at trial, coupled with past x-rays, showed that the boy’s head had grown in size subsequent to the 2008 injury, likely causing brain swelling, further proof that the old injury was, in fact, the likely cause of death. In 2015, based on the newly discovered information, Rudd re-classified the boy’s death from “homicide” to “undetermined.” However, all of that came several years after the 2011 trial. At time of trial there was primarily the condensed version of the x-ray and Choi’s testimony. Based on such evidence along with her damning confession, Melissa was convicted of murder and sentenced to 31 years in prison. Abundant testimony that Melissa was a gentle, caring person who loved children, apparently fell on deaf ears.

At a post-trial hearing in 2016, the same judge who’d presided over the 2011 trial rejected Calusinski’s plea for a new trial, apparently unconvinced by her insistence that she’d confessed only after 10 hours of coercive questioning left her terrified and exhausted. Moreover, the Court found that the x-ray in the prosecutor’s file was simply an enhanced version of the x-ray presented at trial and, thus, did not qualify as new evidence justifying a new trial. The court’s view was that the defense itself could have enhanced the x-ray used at trial but simply failed to do so. Clearly, evidence of a pre-existing condition, as compelling as it was, wasn’t as persuasive as Calusinski’s confession, despite her 79 adamant denials that preceded it.

In 2018, an Illinois appeals court upheld Calusinski’s murder conviction, subsequent to which the Illinois Supreme Court declined to consider her appeal. With state appeals exhausted, in 2019, Melissa’s appellate attorney, Kathleen Zellner, well known for her success in overturning several wrongful convictions, filed a petition for habeas review in federal court. As part of the habeas petition, the defense is arguing that by failing to produce a readable x-ray, prosecutors withheld evidence in violation of the United States Supreme Court’s 1963 decision in Brady vs. Maryland. Brady requires that the prosecution produce evidence potentially favorable to the defense that is material to the case. Had the enhanced x-rays been timely revealed, Melissa never would have been arrested much less prosecuted for a crime that never happened.

Several court dates have been set and then postponed, most recently because of Covid-19, but the defense remains hopeful because the court has apparently expressed a willingness to hear additional expert testimony. There is no court date at present, but if the court ultimately allows expert analysis of Melissa’s case, the only conclusion can be that she is innocent, guilty only of a coerced false confession that fits squarely into Kassin’s third category: “internalized false confessions.”

The Path Forward

The unwillingness of courts to safeguard the rights of criminal suspects by more carefully scrutinizing police-induced confessions, particularly those involving young, vulnerable suspects, has not only resulted in wrongful convictions, but as shown, has allowed guilty suspects to remain at large to rape and murder again.

The following precautions would go a long way toward safeguarding the rights of the accused:

First, videotaping criminal interrogations — not just the confession, but the entire interrogation — is a must. About half of the states now require videotaping interrogations for serious crimes. New York enacted legislation requiring such in the wake of the Central Park Five. Of course, as can be seen from the Calusinski case, videotaping a lengthy, aggressive interrogation doesn’t always sway the court. There is a strong pull for achieving a final resolution of a horrific crime to satisfy public outrage. Even so, videotaping is an imperative first step.

Second, limiting the length of the interrogation would go a long way to assure that the suspects won’t be so overwhelmed and disoriented that they will say anything their interrogators put in their heads. Criminologist Saul Kassin points out that according to a survey of police departments nationwide the average criminal interrogation is approximately 1.6 hours. By contrast, of 125 proven false confessions, 34% lasted from 6–12 hours, and 39% from 12–24 hours, with the average lasting 16.3 hours. (See Kassin, False Confessions: Causes, Consequences, & Implications for Reform (2014)).

As shown by the cases discussed above, each interrogation leading to a false confession lasted far longer than the average criminal interrogation. The Central Park Five teenage suspects were questioned for days. Calusinski, a young woman with low verbal comprehension, was interrogated for more than nine hours. In Norfolk, the actual culprit, Omar Ballard readily confessed without inducement, whereas the innocent suspects were questioned for nine hours or more. The use of lengthy interrogations brings to mind an old joke about a boastful prosecutor who claims that he can convict the guilty in a couple of hours, but convicting the innocent takes a little longer. In the final analysis, lengthy interrogations are toxic and should ideally be limited to no more than two hours.

Third, courts should exercise stricter judicial oversight to better assure that police-induced confessions are consistent with the other available evidence. For example, in West Memphis bite marks on the victims didn’t match those of the suspects. In Central Park, The DNA from the crime scene didn’t match any of the five suspects and their confessions were inconsistent with one another. In such instances, where the confessions have been recanted and do not comport with the available evidence, the courts should be on high alert to scrutinize, with a healthy degree of skepticism, the confessions and the circumstances attendant to them. Unfortunately, as in the Calusinski case, where the same judge who presided over the trial also ruled on a post-trial motion for a new trial, confirmation bias played a key role in upholding the conviction. Also, a good ole boy mentality often comes into play where a judge gives undo weight to a prosecutor’s perspective, especially where, as in the cases analyzed in this article, there is a public outcry to resolve the cases quickly and with finality. Lastly, as Kassin points out in his writings and interviews, a confession in and of itself has powerful influence over judges, juries, lay witnesses, and forensic experts that may bias them and overwhelm their assessment of the other evidence. Thus, courts must be careful to assess any police-induced confession resulting from a lengthy and aggressive interrogation in the context of the other available evidence.

Finally, a judicial or legislative rule requiring that underage, low IQ, or mentally impaired individuals be represented by counsel during police interrogations and pre-trial criminal proceedings, although unlikely to be adopted, would be the ultimate fix needed to prevent police-induced false confessions. As Jason Flom of the Innocence Project stated on a Dr. Oz show about the Calusinski case, had Melissa uttered just four words — “I want a lawyer” — she never would have been arrested, much less prosecuted. Calusinski case interview (Jan. 2020).

In European countries, where Miranda has no applicability, the European Convention for Human Rights (ECHR), a creature of the Counsel of Europe, affords criminal suspects with the right to due process and a fair trial which includes the right to assistance of counsel. The European Court for Human Rights in Strasburg, France (ECtHR), the judicial arm of the ECHR, has established a long line of precedent that interprets those rights to include the right of suspects to counsel both at trial and at criminal pre-trial interrogations.

While the United States is not subject to the European convention, it is bound by the United Nation’s International Covenant on Civil & Political Rights (ICCPR) which guarantees rights to due process and a fair trial, similar to the ECHR. Unlike the European convention, the ICCPR doesn’t have judicial oversight, but it is monitored by the UN Human Rights Committee which reviews regular reports by State parties on how the rights are being implemented.

American courts would do well to recognize a right to counsel at criminal interrogations aside from the requirements of Miranda, but it is unlikely that they will do so. At the very least, children and young adults vulnerable to suggestion (low IQ, mental instability, etc.) should be precluded from being questioned without a lawyer present. Such practice would prevent many police-induced false confessions and wrongful convictions based on them.

Possibly, federal habeas review of the Calusinski case will point the way. One can only hope.