The Problem of Police Contamination
Thanks for inviting me to participate.
Welcome from Chicago, the “False Confession Capital of the United States” or so we have been dubbed in a recent episode of 60 Minutes.
The show featured two cases from the Chicagoland area from the 1990’s which are reminiscent of New York’s Central Park Jogger case. In these two cases — known as the Englewood Four and Dixmoor Five — nine black teens were charged and later convicted in separate rape murders (in the interest of full disclosure, I was one of the defense attorneys in both of these cases). DNA evidence at the time of trial excluded the boys but prosecutors persisted in their belief that the boys had gang-raped their victims before murdering them. Their theory — that these nine teenage boys must have raped these women but failed to ejaculate.
Recent, more sophisticated DNA testing, however, told a different story. When the DNA profiles were placed in the CODIS database, they hit to two different adult male convicted rapists with long and violent rap sheets. As in the Jogger case, some in law enforcement still insisted that the boys were guilty. Fortunately, a Cook County judge rejected these claims, finding it unbelievable that nine teenage boys would engage in sexual intercourse without leaving a DNA trace. In a classic case of what Dan Medwed calls “the prosecution complex,” however, Cook County State’s Attorney Anita Alvarez continued to defend the convictions on 60 Minutes, a move which some have speculated may have damaged her career. For a more detailed account of these cases, see Joshua A. Tepfer, et. al, Convenient Scapegoats: Juvenile Confessions and Exculpatory DNA in Cook County, 18 Cardozo J. L. & Gender 631-684 (Spring 2012).
As I watched 60 Minutes, my mind turned to the ways in which the four books reviewed here related to the Englewood and Dixmoor cases. The confessions in these cases were filled with the kinds of details that only the true perpetrators could have known. When CBS News Correspondent Byron Pitts first read Terrill Swifts’ 21 page false confession, he was convinced of Terrill’s guilt because of the level of detail in the confession. It’s the same way I felt back in 2002 when I watched the video confessions of the Central Park Jogger defendants. How could these teenagers produce such detailed confessions if they were innocent? As Brandon Garrett points out in Convicting the Innocent, there is only one explanation — police contamination (fact-feeding). In cases of multiple false confessions. all the police really need is one contaminated false confession. That confession then becomes the script which other detectives use to browbeat the co-defendants into accepting.
In the absence of an electronic recording of the entire interrogation, suspects don’t stand much of a chance of convincing a jury that their confessions were coerced or false. As Dan Simon points out in In Doubt, jurors have great difficulty accepting the idea that anyone would confess to a crime they did not commit, especially a murder or other crime that could result in death or a lengthy prison sentence. Moreover, in a classic case of the “cover-up being worse than the crime,” the trial process actually encourages prosecutors to prepare police witnesses to testify that the details came from the suspect in an uninterrupted narrative with no prompting, prodding or persuasion from the police. It’s not a case of suborning perjury. Without a recording, everyone has plausible deniability about police contamination. The collective memory of the officers involved — often months or years after the fact — is washed clean of any contamination. During trial preparation, prosecutors prepare the officers to testify in ways that are persuasive to juries. There is nothing more persuasive than a police officer who testifies that the reason he knew the suspect was guilty was because the suspect came up with details that only the true perpetrator could have known.
In both the Dixmoor and Englewood cases, prosecutors solidified their cases by getting one of the defendants to plead guilty, and in Dixmoor, persuaded the most vulnerable defendant to testify against his co-defendants. As Stephanos Bibos points out in the Machinery of Criminal Justice, today, the leverage that prosecutors exert in plea negotiations — as a result of the draconian, often mandatory sentences for crimes — can convince even the innocent to plead guilty. The fact that one defendant pleaded guilty in the Englewood and Dixmoor cases only solidified the system’s belief that these were righteous convictions and no doubt contributed to the State’s Attorney’s prosecutorial complex about the case.
The problem of police contamination was not discovered by Brandon Garrett. Professor Richard Leo and Richard Ofshe have been writing about it for years. But the most enduring contribution of Professor Garrett is the finding that police contamination is epidemic in false confessions, not episodic. The prevalence of contamination provides the single strongest argument for electronic recording of the interrogation process. By slowing down the action of the interrogation, jurors can actually see the way in which facts are leaked to suspects during the interrogation. A recording should also prevent police officers from plausibly denying contamination and prosecutors from preparing them to testify that the suspect was the source of the details.
Will more transparency of the interrogation process disinfect it of contamination? Will knowledge of contamination lead judges and juries to make more reliable decisions in confession cases? Will jurors see contamination or will they be blinded by their faith in the power of confession evidence? Will these recordings make appellate judges less likely to affirm convictions based on contaminated confessions? The jury is still out on all these questions. The answer to these questions, however, may well depend on the ability of criminal defense attorneys to operationalize Professor Garrett’s research in criminal courtrooms throughout the United States — to make jurors see how contamination corrupts the search for truth. See Laura H. Nirider, Joshua A. Tepfer, and Steven A. Drizin, Combating Contamination in Confession Cases, 79 U.Chi.L.Rev. 837-862 (Spring 2012). I like our chances.