Why I Believe in the Reality of False Confessions - Part 1

“You’ve got to be kidding me! Why would anyone confess to something they didn’t do? I can’t believe that.” If I’ve heard it once, I’ve heard it one hundred times. When I first got involved with wrongful convictions, I had no problem believing false confessions occur. For me, they were commonplace. That’s right. Commonplace. So common that it took me a while to understand why other people have such a difficult time accepting that it really happens and it can destroy someone's life. Let me explain.

My Experience as a child
I always thought my two sisters and I were fairly “normal” growing up. Later, I found that in order to dispel such a myth, all I had to do was to get married. A spouse, coming from an entirely different family system, will be very quick to point out your idiosyncrasies and the weird ways of your family! So, it’s important to understand how different “normal” may be from family to family.

Read more: Why I Believe in the Reality of False Confessions - Part 1

Going Beyond Swain - actual innocence in procedural matters

At the very end of the hearing, there was an important exchange that might have gone unnoticed by a person focusing only on Lorinda's future, but which represents a titanic shift in how Michigan law might some day be interpreted. Justice Markman asked Moran a broader question about the argument of innocence being in the background of these hypothetical and theoretic discussions about 'what is a Brady violation?' and 'does this meet the Cress standard?'. In an informed, articulate and confident tone, Moran states,

I certainly accept and promote the idea that there is a background principle that actual innocence matters. And that actual innocence should inform the way this court interprets these various provisions, just as the Federal Courts do, in the habeas analogy, that actual innocence gets you past procedural problems of all sorts, the statute of limitations, procedural default, that you otherwise could not get through without a strong showing of actual innocence.

What the average person on the street thinks every time they hear about such a case is this: "If the person is truly innocence, why should procedure get in the way? If a person is truly innocent, is justice done when the person is kept in prison for the rest of their life? Yes, we need the law, but whatever happened to justice, mercy and Truth?"

Reflecting on Temujin's lawsuit against the MDOC

Far too often with terrible consistency I have witnessed, albeit second-hand, how little justice there is in our penal system. Though there are policies in place that are supposed to protect prisoners from abuse, when a guard or staff takes a disliking toward a prisoner, they can make that prisoner's life a living hell. They will not be called on the carpet by their superiors; often they are encouraged.

Michigan Dept of Corrections LogoTemujin is a solitary prisoner fighting against the Michigan Department of Corrections, usually without a ghost of a chance to prevail. But this was a civil case; not criminal. It was before a group of 8 jurists from all walks of life; not before a panel of judges. Temujin has suffered greatly in his incarceration. One of the reasons he suffers so much is that he has learned to stand up for what he believes is right, and doesn't back down. (His fight has not been just for himself, but also for many fellow prisoners he and his late wife, Amiko, have helped in the past, helping them to file legal papers and give them some sense of hope.) This time Temujin was able to bring the issue out into the open before people who have not experienced what he has, but who know what is right and what isn't; most of all, people from outside the system.

Temujin, as usual, was armed with notebook after notebook of facts at his disposal.

More about Temujin's CaseReflecting on Temujin's lawsuit against the MDOC

2015: Year of the Video Recordings

2015 saw the greatest increase in general awareness of wrongful convictions in recent memory. You can read the attached article by the National Registry of Exonerations for how this furthers our understanding of the changing landscape.

But I think 2015 is the year of something much bigger. 2015 was the year of the body and dash cams. Add to that the steady proliferation of videocams now in everyone's phones. Together they may do more to prevent wrongful convictions than we will ever know. We won't be able to count the times a prosecutor, who may have pursued a case otherwise, chooses not to because she\he can see what actually happened and who actually did the crime.

Having said that, there will still be those prosecutors with a "win at all cost" mentality, who will continue to unscrupulously find ways to explain away the evidence. A common tactic today is one is that when DNA is analysed and does not belong to the convicted person, prosecutors create wild scenarios introducing the idea of there being two perpetrators. Never mind that it is an entirely different scenario than the one they presented to convict the person! These prosecutors present this without embarrassment, without any sign of having reevaluated their original conclusions because the DNA excludes the person. It is hard to believe how they can explain away a video recording, but I'm sure they will come up with something. 

Any Ol' Confession will do!

"I can't believe they did that, and then justified it!!!", my wife overhears me while reading a news blurb about yet another travesty of justice.  "Why do you act so shocked? You know that goes on all the time." 

Yes, unfortunately, I know all too well. But I don't want to stop being shocked just because I've heard it before with slightly different details.  Unfortunately, you don't have to look very far, like this one: Kosgar Lado is a 21-year-old Sudanese refugee in Lansing, MI, who was another victim of cross racial misidentification. And to top it off, he's mentally ill. We know that mentally challenged people are 9 times more likely to be bullied into a false confession, which is pretty much what happened here. This is the center of Lado's "confession" to Hogan, his interrogator:

Hogan: “Why, why did this happen?”Kosgar Lado
 
Lado: “I don’t know.”
 
Hogan: “Why him?”
 
Lado: “I don’t know.”
 
Hogan: “Oh please, it’s not gonna help you.”
 
Lado: “I just shot him.”
 
Lado then begins to cry, according to the transcript.
 
At the end of interrogation, however, Lado twice tells Hogan, “I didn’t shoot nobody.”

 

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You don't have to hear or see on video the "confession" to know that Lado was probably saying with a lot of frustration and sarcasm, "OK, OK, you want me to say I shot him? Then 'I just shot him'. Now, leave me alone!". That was his "confession". Anyone can read the transcript and know that, despite those four words, Lado was categorically denying that he had anything to do with it. But law enforcement, at times, can act like a bully with a grade school maturity level. You can almost hear their inner voices screaming, "Ha! We got him!", and nothing else, no amount of explanation can change their minds that Lado just admitted doing the crime.

New Year Reflections

Nancy Petro

Progress in the area of wrongful convictions is slow, but 2012 was a good year. We don't think we could do much better than to point you to Nancy Petro's blog, 2012: A Banner Year for the Cause of Reducing Wrongful Conviction on The Wrongful Convictions Blog. It is an excellent review of the advances made this year. Among her points were: The establishment of an inquiry whether a prosecutor will face criminal charges for his role in convicting an innocent man, the expansion of innocence projects to other countries, the New Jersey Supreme Court issuing new guidelines regarding eye witness identification, prosecutors beginning to lose reelections because of their handling of wrongful conviction cases, and other insights.

There is no question that the pendulum is beginning to swing back . . . not with great speed . . . but it is beginning to change direction. The advent of DNA exonerations historically is without precedence as a way of testing the veracity of past convictions. Now, every week we hear of a new DNA or non-DNA exoneration. Prisoners who have been incarcerated for decades have been proven innocent. It is worth pointing out that rarely do we hear that it was a matter of the jury just getting it wrong. This is most always some form of prosecutorial misconduct, forced false confessions, intentional misreporting or incompetent forensics, or tunnel vision on the part of prosecutors so that the jury never gets the straight scoop. No one thought  our system was perfect, but few thought it was capable of so many wrongful convictions. 

However, 2012 has not diminished our system's capacity to wrongfully convict. The general population reads about exonerations, the righting of a wrong. What they do not read about is the unfathomable resistance that still pervades our criminal justice system, holding it back from a true, heart-felt self-examination. Consider these few areas of which there are many more:

A Little Part of History

marlingaMost people would like to be a part of history. Even if you can’t “make history”, it’s kind of exciting to at least be there. That occasion graced me the other day with little fanfare, no warning, and little talk afterward. But I’d like to tell you about it.

One of PI's advisor's, Ken Wyniemko, has begun a radio series, which we have been recording and you can read about here. As an exoneree, Ken has devoted his life to reforming the criminal justice system so what happened to him doesn't happen to others.

This was the fifth show. Since it is not far from where I work, I was able to sit in the studio this day. One of the guests was Carl Marlinga. Carl was the Macomb County Prosecutor during the time that Ken was convicted. Carl was not directly involved in Ken’s case, but this occurred under “his watch” and he has stepped up and taken responsibility. This is not the first time that Ken and Carl have been together. With a sense of incredible gratitude and respect, Ken noted that Carl is the only person who has apologized to him. We’re not talking about reading a cold, soulless script, but a deep, sincere apology for the terrible injustice inflicted upon an innocent person by the very authority that is supposed to protect its citizens. Carl has become a strong advocate for the issue of wrongful convictions, helping others to understand how they come about and what to do about it.

Read more: A Little Part of History