The guilty and the "innocent':
An examination of alleged cases
of wrongful conviction from false confessions
Harvard Journal of Law and Public
Policy; Cambridge; Spring 1999; Paul G. Cassell;
Given the fallibility of human institutions, the possibility exists that
police might obtain a confession from an innocent person to a crime that he did
not commit. It is even possible that this "false confession" might, in turn,
lead to an erroneous conviction. Despite occasional claims that specific
individuals have been wrongfully convicted as the result of false confessions,
this specific risk has never been the subject of empirical study.
Professors Richard Leo and Richard Ofshe have attempted to fill this void
with what is sure to be a widely cited study of sixty cases of alleged
police-induced false confessions in the post-Miranda era.
According to the
authors, in twenty-nine of these cases the false confession resulted in the
wrongful conviction of an innocent person; These assertions are not advanced in
an effort to right wrongs in individual cases, but rather to justify possibly
dramatic changes in how the justice system handles interrogations and
confessions. Indeed, Leo and Ofshe conclude that the problem of false
confessions threatens the very "quality of criminal justice in America by
inflicting significant and unnecessary harms on the innocent."
recommend that judges should be empowered to review confessions for
"reliability" through close scrutiny of the "post-admission narrative" of
In a previous article, I simply assumed that Leo and Ofshe correctly asserted
that all of their cases involved "innocent" persons and discussed what
implications might be drawn from this assumptions Yet this linchpin claim about
innocence is worth examining. All of Leo and Ofshe's policy recommendations rest
on conclusions drawn from police interrogation gone wrong. If they have studied
not interrogation failures but rather its successes, any justification for
More generally, scrutiny of their cases may shed light on an important
methodological question: how can such miscarriages of justice be accurately
identified? Leo and Ofshe rely in large measure on secondary sources for the
descriptions of the evidence against the defendants in their collection. This
approach is understandable. For many cases, court records are available only in
the local courthouses where the trial took place, while media accounts are often
readily accessible in computerized databases. Relying on secondary sources,
however, poses the risk of inaccurate recounting of the evidence. Examining
primary sources for the cases in Leo and Ofshe's collection reveals that this
is a very real problem.
Part I places the issue of false confessions in context. It notes that the
innocent are at risk not only from false confessions, but also from "lost"
confessions-that is, confessions that police fail to obtain from guilty
criminals that might help innocent persons who would otherwise come under
suspicion for committing a crime. In comparing these competing risks, a critical
issue is the relative frequency of false confessions when compared to lost
confessions, a frequency that thus far rests almost solely on the Leo and Ofshe
Part II then dives into the individual cases. It begins by narrowing the
focus to the twenty-nine persons who were convicted of crimes and then examines
nine of these twentynine cases in detail. Based on review of original trial
court records and other similar sources, the part concludes that each of these
nine persons were, in all likelihood, entirely guilty of the crimes charged
Part III explores the lessons that might be drawn from the high proportion of
guilty criminals in the Leo and Ofshe collection of "innocent" persons. This
fact suggests that academic research on miscarriages should not rely on media
descriptions of the evidence against defendants. Journalists will all too often
slant their reports in the direction of discovering "news" by finding that an
innocent person has been wrongfully convicted. Reliance on second-hand media
accounts can also obscure particular problem areas by over-generalizing the
false confession problem. When the Leo and Ofshe anthology is whittled down to
the handful of undisputed cases of wrongful conviction, the false confession
problem is revealed to be not pandemic in the American criminal justice system,
but rather concentrated among a narrow and vulnerable population: persons with
mental disabilities. Part III concludes by critiquing Leo and Ofshe's proposal
that judges should closely scrutinize the "fit" between the "post-admission
narrative" of a suspect and the crime facts. Their overbroad suggestion would
result in the suppression of many truthful confessions of criminals who may fail
to give full accounts of their crimes for various reasons. Instead of
suppressing confessions on reliability grounds, we should depend on juries to
decide their truth or falsity, just as we ultimately rely on juries to determine
the guilt or innocence of criminal suspects.
I. THE FALSE CONFESSION PROBLEM IN CONTEXT
When the police obtain a false confession from an innocent person, that
person is placed at risk of being wrongfully convicted. But this is not the only
risk to the innocent posed by police interrogations. The innocent are also
jeopardized when police fail to obtain a truthful confession from the true
perpetrator of a crime. That truthful confession could prevent suspicion from
wrongfully falling on an innocent person and could even exonerate an innocent
person who has been wrongfully charged with, or convicted of, a crime. As I
argued in my earlier article, Protecting the Innocent from False Confessions and
Lost Confessions-And From Miranda,6 weighing these competing possibilities
requires some assessment of the relative frequency of these two risks. The
available empirical evidence provides reason to believe that today the innocent
are more at risk from restraints on police that hinder their efforts to obtain
truthful confessions than from the lack of additional protections against the
comparatively rare risk of false confessions. Moreover, there is good reason to
believe that the
Supreme Court's decision in Miranda has exacerbated the risks to the
innocent. The Miranda decision has reduced the number of truthful confessions,
while at the same time doing nothing about, and probably even worsening, the
false confession problem by diverting the focus of courts away from the
substantive truth of confessions to procedural issues about how they were
Professors Leo and Ofshe have written a reply to my analysis, challenging
these points. A detailed rebuttal of their critique is unnecessary here, but a
few responses are in order because they demonstrate the importance of carefully
analyzing the validity of the Leo-Ofshe collection of cases.
Leo and Ofshe first argue that it is impossible to derive any estimate of the
frequency of false confessions because of an obvious lack of precise records and
related methodological difficulties. A "humble" answer of "I do not know," they
write, is the researcher's only proper response to the question of how
frequently false confessions occur. The difficulty is that Leo and Ofshe fail
to follow their own suggestion. Leo and Ofshe ultimately argue that it is "well
established" that "psychologically-induced false confessions occur frequently
enough to warrant the concern of criminal justice officials, legislators, and
the general public." In the popular press, they have made even more sweeping
claims, such as false confessions happen "all the time."
However much Leo and Ofshe would like to disguise the fact, these are not "humble" claims of
ignorance, but rather empirical claims about the frequency of false
confessions-indeed, a claim allegedly strong enough to justify restructuring
police interrogations throughout America.
Leo and Ofshe are also surprisingly tight-lipped about what seems to be a
straightforward way to gain some understanding of the frequency of false
confessions. In my article, I suggested simply drawing a random sample of
criminal cases and determining the percentage of false confessions within the
sample. Leo and Ofshe eschew any such effort, arguing "[t]he project of
quantification is Cassell's, not ours or any other researchers studying . . .
false confessions." This claim is untrue, as my interest in quantification
through sampling is shared by others knowledgeable in the field. For example,
Dr. Gisli Gudjonsson, whom Leo and Ofshe describe as one of the world's "leading
authorities on false confessions," has undertaken precisely this project in no
less than three separate articles, each of which draws a sample with the goal,
among others, of determining the frequency of false confessions.
While Leo and Ofshe quarrel with the applicability of this research from Iceland to America,
they fail to come to grips with the overarching point that the sampling
methodology employed by Gudjonsson could be used to make some estimate of the
frequency of false confessions here. For example, the 1994 sample of 173 filed
cases from Salt Lake City drawn by Bret Hayman and me contains no evidence of
even a single case involving an alleged false confession. Similarly, it seems
unlikely that Richard Leo's 1993 sample of 182 interrogations in the San
Francisco Bay Area contains many-or perhaps even any-false confessions.
and Ofshe do not explain why they are unwilling to reexamine this sample to see
if it contains any false confessions. Interrogation researchers in this country
have also drawn other samples, apparently without ever encountering any false
The dearth of false confessions in all these samples suggests that false
confessions occur quite infrequently, with the result that any effort to
determine frequency will necessarily involve a methodology for estimating low
probability events. My previous article offered one such approach. To estimate
the frequency of false confessions, one should canvass the available empirical
evidence for estimates of (1) the number of criminal cases; (2) the error rate
(that is, the wrongful conviction rate) in those cases; and (3) the proportion
of wrongful convictions attributable to false confessions. Combining these three
numbers will produce an estimate of the number of wrongful convictions from
false confessions. While I acknowledged that gathering evidence of the error
rate is quite difficult, I relied on what appears to be the only plausible
published estimate from Professor Ronald Huff and his colleagues. They surveyed
criminal justice professionals around the country and asked them to estimate the
error rate in the system. Leo and Ofshe call the resulting estimate of the
error rate (below one percent) "empirically worthless"
-apparently a new view
of the quality of the study, as Leo had previously cited this very estimate to
support one of his arguments. If anything, the Huff error rate estimate is
probably too high because of the well known human tendency to overestimate the
probability of extremely low frequency events. It seems reasonable to rely on
the Huff estimate to generate an upper-bound estimate of the frequency of false
confessions. My article then derives a possible range of wrongful convictions
from false confessions to provide an order-of-magnitude assessment of the
problem, an assessment suggesting that such wrongful convictions are quite
Although Leo and Ofshe refuse to offer even a ballpark assessment of the
annual number of wrongful convictions from false confessions, they remain
confident that the false confession problem dwarfs the lost confession problem.
Although my article explained why Miranda might harm the innocent by blocking
truthful confessions, they claim that no such problem occurs, avoiding any
need to weigh the competing risks. To reach this firm conclusion, they create a
caricature of both my argument and the nation's criminal justice system. Miranda
could harm innocent suspects, they claim, in only two "scenarios": the
"frustrated detective scenario," in which a suspect invokes his Miranda rights
and the frustrated detective nonetheless goes on to obtain a false confession
from an innocent person, and "the ever-diligent detective scenario," in which a
diligent detective continues to investigate a case after it has been solved and
is unable to obtain a confession from the true perpetrator of a crime because of
Miranda. These simplistic scenarios, which Leo and Ofshe misleadingly attribute
to me, fail to capture the more realistic risks Miranda poses to the innocent.
The most fundamental flaw in the scenarios is their simplifying assumption that
only one detective in one jurisdiction is investigating one crime. In the real
world, many investigators from many different jurisdictions investigate many
different cases. In some of these investigations, they will obtain confessions
that exonerate innocent persons. Indeed, Leo and Ofshe unwittingly recognize the
absolving power of confessions when they acknowledge that "reliable confessions
from the true perpetrators are among the leading sources of exoneration of the
wrongfully convicted .... If Miranda impedes police success in interrogation,
it is a logical corollary that it will also impede one of the "leading sources"
of exoneration. The only remaining question, then, is whether Miranda impedes
Evidence of Miranda's harmful effects is mounting. For example, along with
various co-authors, I have developed empirical evidence of Miranda's substantial
harm to law enforcement. In my most recent articles, I have analyzed the
precipitous drop in crime clearance rates that followed immediately on the heels
of Miranda and concluded that Miranda severely hampered police effectiveness.
Interestingly, even before publication of this analysis, Leo himself concluded
that "Miranda appears to have an effect on the collateral functions of
interrogation" such as "clearing crimes."
Miranda's adverse effect on
clearance rates is of central importance to the innocent, because a reduced
clearance rate means that in some cases detectives fail to obtain confessions
from the true perpetrators of criminal acts that would allow them to "clear" or
solve the case. These lost clearances occur most often when police arrest a
suspect for one crime, but are prevented by Miranda from obtaining confessions
to other crimes he has committed. For example, if police apprehend an armed
robber at the scene of the crime, he may invoke his Miranda rights and prevent
police from learning that he has committed five other similar robberies. If an
innocent person has been charged, or even convicted, for one of these other
robberies, Miranda may well prevent his exoneration.
The possibility that Miranda harms the innocent by blocking confessions from
criminals finds support in real world observations. Professor Sam Gross's
detailed empirical study of wrongful convictions from eyewitness
misidentifications explained that before Miranda, the typical way in which a
miscarriage was discovered was that "the actual criminal was arrested on an
unrelated charged and, after being held in custody for a day or two, she
confessed to the perpetration of all the crimes charged to the misidentified
suspect" Since that time, Gross concludes, such exonerations through true
confessions appear to have declined significantly, with Miranda being a possible
In light of the competing risks to the innocent from false confessions and
lost confessions, the important public policy question becomes the relative
frequency of false confessions as a cause of wrongful convictions versus true
confessions as a cure for wrongful convictions. My previous article not only
argued that false confessions rarely cause wrongful convictions, but also cited
two studies suggesting that true confessions are among the most common means of
exonerating those wrongfully convicted. For example, Gross reported that
fifty-four percent of the wrongful convictions from eyewitness misidentification
were uncovered when the actual criminal confessed. Similarly, Arye Rattner's
more general collection of miscarriages found that the actual culprit's
confession was the leading means of exoneration, responsible for forty percent
of the exonerations. Leo and Ofshe do not dispute these figures but argue that
I "fail[ to mention" a more recent study in which, they dramatically proclaim,
"0% of the wrongfully convicted and incarcerated innocent were exonerated by a
confession." This contrived datum is meaningless. The study in question,
subtitled "Case Studies in the Use of DNA Evidence to Establish Innocence After
Trial," was specifically limited to the subject of its subtitle-exonerations
through DNA evidence. Thus, by definition, one hundred percent of the
exonerations in the study came from DNA, meaning that zero percent came about
through any other method. The only meaningful data that bear on the overall
proportions come from the two studies I cited, suggesting the prime importance
of confessions in exonerating the wrongfully convicted.
Because the innocent are today more at risk from lost confessions than false
confessions, I proposed replacing Miranda with a system of videotaping
interrogations. This would improve the lot of the innocent, because Miranda
reduces the numbers of truthful confessions, reducing the potential for
confessions to clear wrongfully convicted innocent persons. At the same time,
Miranda does nothing about the false confession problem. It appears to be common
ground among those who have studied the issue, including Leo and Ofshe, that
Miranda fails to protect against false confessions, since those who are innocent
will want to talk to police and waive their Miranda rights.
My argument is
relatively straightforward-not, as Leo and Ofshe intimate, a "newfound
discovery" that has gone "surprisingly unnoticed,"
but rather a simple
development of similar positions long advanced by many other knowledgeable
observers. Indeed, my conclusion appears to be reinforced by an essay recently
written by Richard Leo, in which he argued that "[i]t is even possible that
Miranda-despite its high-minded intentions-has undermined any protection the law
might have otherwise offered against the admission of false confessions into
evidence." Replacing Miranda with videotaping offers a real chance to identify
those rare cases of police interrogation gone bad, while at the same time not
impeding police in their efforts to obtain confessions. Instead of contending on
the merits of these issues, Leo and Ofshe single-mindedly maintain that their
collection of wrongful convictions demonstrates such a serious problem of
wrongful convictions from false confessions that we must restructure the
criminal justice system to erect new safeguards against this particular danger.
Because of the near-exclusive emphasis Leo and Ofshe place on these particular
cases, they should be closely scrutinized. If this examination reveals that the
alleged cases of "false" confessions of innocent persons are actually truthful
confessions from guilty criminals, Leo and Ofshe's policy recommendations could
be seriously flawed. With this premise in mind, then, we can turn to reviewing
the Leo-Ofshe collection.
II. THE LEO AND OFSHE COLLECTION OF FALSE CONFESSIONS
Professors Leo and Ofshe are on the right track in attempting to collect
empirical evidence on false confessions. Many fundamental issues in the criminal
justice system are grossly in need of factual illumination, with police
interrogation and confessions being high on the list. Moreover, an evaluation of
false confessions has never before been undertaken, and any criticisms of the
Leo-Ofshe project should give due regard to its difficulty and its importance.
It is hard to determine if police interrogation is often malfunctioning, but if
it is, that fact would have important policy consequences. Nonetheless, counting
the cases of "false" confessions raises sensitive methodological and evaluative
questions that must be handled far more carefully than done by Leo and Ofshe.
A. Defining Who Is "Innocent"
Discussion about risks to the innocent must first grapple with the question
of who qualifies as an "innocent" person. Previous research on miscarriages of
justice has generally focused on "wrong-person mistakes-the conviction . . . of
the factually 'innocent'." Moving beyond the factually innocent to the legally
innocent would raise a host of questions not readily susceptible to empirical
analysis: what kinds of state of mind defenses (including insanity and
entrapment) were erroneously rejected at trial, when did the quantum of proof
dip below the "beyond a reasonable doubt" standard, and so forth. Leo and
thus wisely avoid this quagmire by focusing on the more discrete and
researchable category of wrong person mistakes. Leo and Ofshe claim to have
discovered sixty cases in which an innocent person falsely confessed to a crime
he did not commit. This article focuses not on this entire collection, but
rather the subset of twenty-nine claimed cases of a false confession leading to
a wrongful conviction. For policy purposes, false confessions leading to
erroneous convictions are the major point of concern. If a person who has made a
false confession is not convicted-because the police do not arrest, the
prosecutor does not indict, or the jury does not convictthen the screens in the
system have at least worked to prevent the ultimate miscarriage of justice, the
conviction of an innocent person. To be sure, false confessions may result in
considerable trauma before a determination of innocence, and, in an ideal
system, no such false confessions would be obtained. I mean in no way to
minimize such concerns, but rather to narrow the focus to the evidence
justifying their claim that additional safeguards are needed in criminal
adjudication? Again, a venerable tradition supports this approach.
Leo and Ofshe also seem to adopt this view implicitly, as the main effect of their
policy proposals is not to reduce false confessions per se, but rather to
prevent wrongful convictions later in the process through such measures as
after-the-fact judicial scrutiny of the credibility of confessions.
B. Determining Who Is In Fact "Innocent"
With the subject clearly defined-factually innocent persons who have been
wrongfully convicted-the question next arises of how to determine who is
"innocent." One could easily take the position that "objective" truth is
unknowable and therefore such determinations lie beyond human capacity.
Professors Leo and Ofshe refreshingly contend that we can determine whether
defendants are truly guilty or innocent. Given that we have a judicial system
specifically designed to make such determinations, a problem then arises. One
could argue, as Ofshe has elsewhere, that "[i]f a decision is ever to be made
about questions of guilt or innocence, it should be made by a jury not by a
contributor for or readers of scientific journals."
The only way to avoid this
problem of the researcher as judge and jury is to confine analysis to cases of
undisputed wrongful convictions, an approach some researchers have adopted.
Here, however, Leo and Ofshe opt to follow what they describe as "[t)he leading
contemporary research" on miscarriages, a study by Professors Bedau and Radelet
on allegedly innocent persons convicted of capital crimes.
This is a cause for
concern, because Bedau and Radelet's catalogue of "innocents" ignores physical
evidence of guilt, incorrectly cites sources that in fact indicated defendants
were guilty, includes works of fiction as proving innocence,
other serious flaws. More recent work by the same authors is even worse.
Leo and Ofshe promise to avoid such concerns by limiting their collection of
"innocents" to cases in which "no physical or other significant and credible
evidence indicated the suspect's guilt; the state's evidence consisted of little
or nothing more than the statement 'I did it;' and the suspect's factual
innocence was supported .... Their methodology improves on Bedau and Radelet's
by providing a continuum of the evidence of innocence-from cases of "proven" to
"highly probable" to "probable" innocence. But, like the Bedau and Radelet
survey, the problem remains that Leo and Ofshe`s judgment as to who is innocent
is highly subjective and, in more than a few cases, demonstrably wrong. Some
concrete examples will illustrate this point. What follows are discussions of
nine of the twentynine cases, arranged in alphabetical order, in which Leo and
Ofshe claim that an innocent person was wrongfully convicted as the result of a
"false" confession. In these discussions, I review Leo and Ofshe's claim that
no "credible evidence" supported the defendant's guilt?
Based on a more
thorough description of the cases than Leo and Ofshe provide, the reader can
readily see that this claim is untrue and that substantial evidence supported
the guilt of each of these defendants.
1. Barry Fairchild
Leo and Ofshe have one case in their catalog in which they allege that an
innocent man was executed: Barry Fairchild. Fairchild confessed to, and was
convicted of, participating in the murder and rape of Marjorie Mason on February
26,1983. Relying primarily on secondary sources, Leo and Ofshe claim the
confession was coerced and that "no independent evidence connect[ed] Fairchild
to the crime."
The judicial opinions in the case give a decidedly different impression. On
the day of the murder, police chased two suspects who were driving the victim's
car. The suspects escaped on foot. Police later discovered the victim's body
and, among other things, a baseball cap bearing the inscription "CAT Diesel
Power." One witness reported seeing Fairchild wearing such a hat about a week
before the murder, and two officers also recognized the hat as having been worn
by Fairchild on prior occasions. Police also received a tip that Fairchild and
his brother had raped several women in the past. The women reportedly feared
coming forward because they felt Fairchild was dangerous.
Police received a
further tip from a different informant about Fairchild's involvement which
contained information that the police had independently confirmed. For example,
the informant told police that Fairchild and his brother had escaped the police
on foot after the victim's car was stopped. The account was consistent with
events occurring during the police chase.
Several days after the murder, the police received a report that Fairchild
was trying to escape to California by bus. They managed to stop the bus, but
Fairchild evaded them. When eventually caught after hiding in the woods for
several days, "Fairchild's attitude was: 'You got me!' He was willing to
talk." The police took Fairchild back to Little Rock where he gave a
videotaped confession. Although Leo and Ofshe claim that the videotape shows
Fairchild "looking away from the camera and responding to the prompting of
others in the room," this was not the view of the federal district court judge
who carefully evaluated this claim in response to Fairchild's habeas petition.
Judge G. Thomas Eisele, described as a "moderate and fair-minded" judge even by
those who opposed Fairchild's execution, concluded:
I watched Mr. Fairchild making his statements and . . . [h]is statements give
the feeling of truth to me because particularly when he is using his hands to
describe . . . 'And we went up this and down this hill,' he's making an uphill
or downhill [motion] with his hand just automatically as he talks. All of the
incidental body language is corroborative, it seems to me, of what is being
said. And what is being said . . . did not give[ me the impression that it had
been rehearsed . . Rather, it seems to have the indicia of spontaneity and
Judge Eisele concluded that "[t]he Court specifically finds that [Fairchild]
was not instructed or coached regarding the content of his confessions.
Two years later, on yet another habeas petition, Judge Eisele again rejected
This is a death penalty case. It deserves the most careful and serious
consideration possible. Back at the time of the hearing in 1987, the Court
carefully observed and listened to the videotaped confessions-not once but
several times. In light of the issues now being raised. . . the Court has viewed
these videotapes yet again and has also reviewed the [earlier] transcript . . It
finds no reason to depart from the factual finding that I made then. On the
contrary, that review has reinforced the Court's confidence in those findings.
The Court is convinced that no reasonable person could listen to the evidence
presented at the two-day hearing and view the videotaped confessions and still
have any doubt about the involvement of Mr. Fairchild in the rape and murder of
Fairchild's confession "went into explicit detail concerning the abduction,
rape, and robbery of the victim." Details in the confession were corroborated.
Fairchild, for example, said his accomplice had a "little old nickel plate" gun
that was a .22 or a .25. The bullets removed from the victim were .22 caliber.
Leo and Ofshe note that the prosecution acknowledged the confession "was, in
part, not true," apparently referring to the prosecution's stipulation that
Fairchild falsely confessed that his accomplice was Harold Green.
But it could
well have been that Fairchild committed the crime with his brother. If so, or on
the reasonable assumption that the accomplice was a friend of Fairchild's, what
Leo and Ofshe call a "glaring error of fact" actually is a perfectly
understandable deception that, if anything, makes the confession more
After confessing, Fairchild guided the officers on a crime scene tour and
"gave the directions which brought them all to the scene where Ms. Mason's body
had earlier been found. He pointed out where they left the body."
tour, the officers asked Fairchild about missing jewelry from the victim.
Fairchild asked if a person who had the jewelry would get in trouble. After
being assured that she would not if she had no knowledge of the crime,
"Fairchild then told the officers that his sister had the [victim's] watch. The
officers then drove to Mr. Fairchild's house where they obtained the watch" from
Fairchild's sister. At trial, the victim's father testified that the watch, a
special mail order Cassio diver's watch tested waterproof to one hundred meters,
was "just like" the watch he gave to his daughter for her twenty-second
birthday. The victim's mother said the watch had a "unique" kind of strap on it
and was "Greta's watch." Reviewing this and other evidence, Judge Eisele
concluded that the evidence that the watch was the victim's was "very strong,
indeed, overwhelming." Leo and Ofshe concede Fairchild had a watch "similar"
to that owned by the victim, but note Fairchild testified that he bought the
watch from someone at a pool hall and then sold it to his sister. Fairchild's
trial story seems incredible on its face. Fairchild claimed that this person,
whom he knew only as "Ham," came up and offered to sell the watch.
The "pool hall" was "[j]ust kind of a place."
He did not know what street
it was on. Moreover, as the district court recognized, it was not possible for
the police officers working the case to know when Fairchild confessed that
Fairchild's sister would have such a watch, which in turn would be identical to
the victim's watch. The officers could only have learned these facts "out of the
mouth of Mr. Fairchild" when he confessed. The watch "by itself," the judge
concluded, "make[s] clear the involvement of Mr. Fairchild in the crimes against
Ms. Mason far beyond any reasonable doubt." Leo and Ofshe also claim Fairchild
was vulnerable to coercion because he was mentally retarded, citing an IQ test
conducted by Ruth Luckasson producing a score in the low 60s.
court concluded, however, that "at some point, Ms. Luckasson began to lose her
scientific objectivity and skepticism." The Court recounted problems with her
findings, concluding "her critical opinions in this case [are] flawed and
unsubstantiated by the evidence." The court thoroughly reviewed all of the
evidence concerning Fairchild's mental abilities (in an opinion that, on this
issue alone, spans more than sixty pages in the Federal Supplement), reaching
the conclusion that Fairchild was "clearly not 'mentally retarded."'
finding was affirmed by the Eighth Circuit. The Arkansas Supreme Court reached
the same conclusion.
Leo and Ofshe discount all of the evidence of guilt based largely on a
segment aired on ABC's 20/20. In the program, various men claimed to have been
pressured to confess to the murder, and Fairchild recited claims of abuse as
well. The program conceded that the bulk of the allegations had been rejected by
Judge Eisele but failed to mention that Judge Eisele's rejection came only
after a seventeen-day evidentiary hearing, after which he made 133 pages of oral
findings from the bench, and entered a 413-page written order on the remaining
factual and legal issues. Judge Eisele concluded that the new claims "did not
change [his] prior finding that Fairchild's confessions were voluntary."
judge observed "there was no direct evidence presented at the hearing that
Fairchild had been forced to confess." Any abuse was improbable because it
would have taken place in "an area where many officers were present. And they
were constantly coming and going. And the officers present were not under only
one command. They were from a variety of police jurisdictions."
The judge also
found that supporting testimony tracking Fairchild's new story "was not credible
and was manufactured to conform with Fairchild's claims."
The Court of
Appeals, after "careful review of the record," upheld the district court's
finding that the confession was voluntary and added "[t]he evidence does not
support any other conclusion." Leo and Ofshe give no reason to credit the
allegations aired in the 20/20 program over the contrary-and conscientiously
determined-findings of the judicial system.
2. Joseph Giarratano
On February 4, 1979, Barbara Ann Kline and her fifteen year old daughter
Michelle were murdered in their apartment in Norfolk, Virginia. Michelle was
raped and killed some time before her mother. Police immediately suspected
Giarratano, who was living in the same apartment but had disappeared on the
night of the murders.
The next day, hundreds of miles away in Jacksonville, Florida, Giarratano
approached a uniformed police officer eating breakfast. Giarratano told the
officer that he had "killed two people in Norfolk, Virginia, and wanted to turn
himself in." Giarratano explained that he had killed a
"lady in Norfolk" in an argument over some money and then raped and strangled
the lady's daughter. Giarratano repeated the same account to another patrol officer, except he made
no statement about a sexual assault. The following day, Giarratano was
interviewed by two detectives from Norfolk who had examined the crime scene.
After they told Giarratano that "they had been there," Giarratano admitted his
earlier confession "was not the way it was." He proceeded to give a detailed
confession to the killings, explaining he had raped the daughter and then
strangled her. He left the apartment and later returned. When the girl's mother
arrived and unlocked the door to the apartment, Giarratano jumped out. She
started screaming, so he stabbed her two or three times.
(An autopsy revealed
that the victim had died from three knife wounds.) He
left two dogs behind in the apartment and headed
for Florida. Giarratano said he had stabbed the
mother because she "would know I was the one that killed Michelle and I wanted
to keep her from talking."
Within the next few weeks, Giarratano was interviewed by a staff psychiatrist
at a state hospital concerning the effects of drugs-cocaine, Dilaudid, and
possibly alcohol-that Giarratano had consumed at the time of the crimes. The
psychiatrist testified that the drugs would "loosen his controls."
reversal of the time sequences and differing accounts of the crime, the
psychiatrist testified that this was attributable to the combination of drugs
resulting in "peripheral neuropathy, loss of recent memory" producing
The defense psychiatrist reached the same conclusion. In a lengthy interview,
Giarratano described the crimes in detail, giving an account that was
"substantially consistent with the one which he gave the Norfolk police."
Giarratano said he killed the daughter when she infuriated him by resisting his
attempt to have intercourse and then killed the mother.
concluded: "Mr. Giarratano was very credible in his description [of the crime]
during the Clinic interview." Based on interviews with Giarratano and his
family members, the defense psychiatrist concluded Giarratano's "'previously
suppressed rage and anger' had been 'reactivated by the sequence of events
(with) Michelle' and that the murders were 'symbolic acts' by which the
defendant's hatred was discharged against persons he identified in his mind with
his mother and sister." It is worth noting that Giarratano had a history of
active involvement in drugs and violent outbursts.
To cast doubt on these repeated confessions, Leo and Ofshe rely on inaccurate
descriptions of the crime apparently generated by avowed death penalty opponents
seeking to overturn Giarratano's capital sentence. For example, while Leo and
Ofshe claim that hair samples did not link Giarratano to the crime,
one of the pubic hairs "found on Michelle's left hand, stomach and pubic area
was consistent in 'race, color and microscopic characteristics' with one of
[Giarratano's] pubic hairs." Leo and Ofshe report that one fingerprint found
at the scene of the crime matched Giarratano's, but in fact seventeen
matching prints were found. Leo and Ofshe also contend police found no blood
on Giarratano's clothing, but in fact human blood type O-the same as one of the
victim'swas found on the front and side of one of his boots.
Leo and Ofshe
further claim that the murder was committed by a right handed person and
Giarratano was left-handed with only limited use of his right hand due to
childhood neurological damage. Both points are questionable. A belatedly
hired defense analyst did opine, after viewing crime scene photographs, that
"the sharp edge of the knife . . . was upward. This is typical of a right-handed
person assaulting the victim from behind." As is obvious, this is a far cry
from proving that a right-handed person committed the crime; the sharp edge of
the knife would be "upward" on any number of different attack scenarios, and any
additional analysis would be largely guesswork without further information about
the precise position of the murderer at the time of the crime. And although Giarratano has told his apologists that the neurological damage in his right
hand was long standing, his own medical materials suggest that "right upper
extremity sensory deficit" was attributable to a wrist laceration associated
with his 1983 suicide attempt-some four years after the murders -- during which
Giarratano was hospitalized for "having severely slit his right wrist."
the time of the murders, it should be noted, Giarratano was sufficiently
dexterous to work on a scallop boat. The feeling one gets reviewing the
inaccurate second-hand accounts is that opponents of the death penalty have
distorted the record on Giarratano's guilt for their own purposes. Accordingly,
one should be exceedingly cautious in relying on their secondary accounts of the
"evidence" in the case.
3. Paul Ingram
Paul Ingram was arrested on November 28, 1988, following complaints of sexual
abuse from his daughters, then eighteen and twenty-two years old.
waived his right to counsel and made incriminating statements that day.
Additional incriminating statements followed during an investigation over the
next few months. On May 1, 1989, Ingram pled guilty to three counts of third
degree rape with each of his daughters. In October of 1989, Ingram retained
new counsel and moved to withdraw his guilty plea. He claimed his original plea
resulted from "a variety of influences including deception, brainwashing,
religious and familial coercion" at the hands of friends, counselors, and
At a hearing on the motion to withdraw the plea, Ingram denied participating
in any abusive conduct and claimed that the sexual acts he admitted were not the
products of conscious memory, but rather were "visualizations."
testified that, near the end of July, 1989, he suddenly realized that he did not
commit these crimes. The supporting expert for the defense was Richard Ofshe,
who testified that the incriminating statements resulted from accidental
hypnosis and fantasies during questioning. Ofshe, however, admitted
specifically that "[c)ertain factual questions are beyond the scope of my
professional expertise. I do not know nor do I have any opinion as to whether or
not Paul Ingram committed one or more sexual assaults on his daughters."
Three psychologists testified for the state and "generally agreed that Ingram's
statements were real recollections and not the products of any alleged trances
or hypnosis." One, a family counselor hired by the defense, submitted a
report "that reflected statements by Ingram acknowledging long-term abuse of his
children and involvement in 'incest, sodomy, and homosexual activity."'
After six days of testimony, the trial judge noted the obvious-that he was a
"neutral person in this controversy." Accordingly, the judge's findings,
after hearing directly from Ofshe, provide an opportunity to test Leo and
Ofshe's claim that their views would be accepted "by an overwhelming majority of
neutral observers." The judge, however, disagreed with Ofshe and found the
confession to be true.
After listening to the tape of Ingram answering police questions on the
afternoon of his arrest, the judge observed that "not terribly long" into it
Ingram "essentially confess[es] to molesting both of these young women."
Given that Ingram was a law enforcement officer, the judge also found it was
"highly, highly unlikely that he would be convinced to confess unless he were
guilty." Moreover, the admissions that daymade before any contact with
psychologists or others who allegedly coerced him-contained "'virtually
incontestable evidence of guilt."' During questioning, "Ingram told officers,
among other things, of sex practices used to prevent pregnancy with one of the
daughters, of that daughter's abortion. . . when she did become pregnant by him,
and of having anal intercourse with the daughter during her menstrual period so
that 'the bed wouldn't get messed up."' The abortion also provided supporting
physical evidence of sexual abuse, as Ingram did "not suggest that this abortion
did not in fact take place or was not verifiable."
The trial judge further found that the three state witnesses were "more
credible than Dr. [sic] Ofshe" and that Ofshe was
"considerably less qualified" than the other witnesses "to give opinions in this
testimony was not credited, in part, because he was "not a clinical
psychologist" and "not an expert in sex abuse."
In addition, the judge found
that Ofshe conducted an "odd" experiment in an effort to show Ingram was
spouting back information fed to him by the police. While Ingram confessed to
a scenario fed to him by Ofshe, Ofshe had chosen facts that "came pretty close
to what one of the victims had accused the defendant of" rather than something
"totally foreign from anything that could probably be true."
With respect to
Ofshe's claim (based on "reading a dry record") that Ingram was in an "hypnotic
state, or in a trance" when he confessed, the trial judge stated: "I find that
to be strange. I wonder if that can be done [i.e., determining that someone is
in a hypnotic state from merely reading a transcript]. I have great cause for
concern with that." The judge also found it strange that two weeks after
Ingram pled guilty, Ofshe contacted him Ofshe told Ingram, "You're innocent," to
which Ingram responded, "No, I'm guilty." A few weeks later, Ingram switched
to agree with Ofshe.
The judge also concluded that Ingram's new claims were incredible. The judge
noted that Ingram's position was that "his mental state and his memory were
good" up to his arrest, then until mid-July of 1989 his memory was poor, and
then after July of 1989 "his memory was good again."
"I just don't believe
that," the judge concluded, emphasizing "I just have to say that straight out .
. . I believe his testimony is impeached, and I believe that he is somewhat of a
manipulator."ls The judge further observed that the two daughters had each
accused their father of abuse and that "there is no real reason that's been
given to me here in this courtroom, why they have or would falsely accuse their
father." Indeed, the daughters' allegations developed in a "rather logical"
fashion. To be sure, the court noted, there were "inconsistencies in their
statements" and "exaggerations" about fantastic satanic sessions that in all
likelihood never occurred. Such features, however, are "not an unusual thing"
when a person has "been subjected to severe sexual abuse over a period of
years." In any event, Ingram was not charged with any form of satanism but
rape of his daughters. "I just find that he did it," the trial judge concluded.
These findings were upheld by the Washington Court of Appeals,
and habeas corpus challenges to them were rejected by the United States District
Court for the Western District of Washington and the Ninth Circuit.
Leo and Ofshe do not appear to claim any new evidence has surfaced since
then, relying primarily on an old article by Ofshe himself. This is a curious
supporting citation. Ofshe wrote there that "[i]t is impossible for anyone other
than those directly involved to know whether or not Paul Ingram" sexually abused
his daughters and that
[t]he point of the present paper is not to argue Mr. Ingram's innocence. No
attempt has been made to develop the analysis and marshall [sic] evidence [to
that effect] . . . If a decision is ever to be made about questions of guilt or
innocence, it should be made by a jury not by a contributor for or readers of
What appears to be the only new development since then tends to confirm
Ingram's guilt; at a 1996 hearing before Washington's Clemency and Pardons
Board, Paul Ingram's son made the first public disclosures about his own
childhood sexual abuse by his father. The Board also heard from Ofshe, but
4. Richard Lapointe
In 1992, Richard Lapointe was convicted of sexually assaulting and murdering
his wife's eighty-eight year old grandmother, Bernice Martin, and then setting
her apartment on fire. Leo and Ofshe claim, citing a tract prepared by a group
called "The Friends of Richard Lapointe," that "[n]o physical evidence . . .
linked Lapointe to the crime."ln In fact, as the Connecticut Supreme Court noted
in affirming the conviction, "a stain on the victim's bedspread was human semen
from a person who was a secretor with Type A blood. [Lapointe] has Type A blood
and is a secretor. Also the stain lacked sperm, which is consistent with the
semen of a person who has had a vasectomy. [Lapointe] had a vasectomy" before
the murder. Other evidence also pointed to Lapointe. When a relative called
Lapointe's wife to express concern about the victim on the night of the murder,
Lapointe picked up another phone, without being asked to join the conversation,
and volunteered to check on the victim himself. He then took a less-than-direct
route to her apartment, where he smelled smoke and felt heat from the door.
Although unable to gain access, he telephoned the relative from a neighboring
apartment to report everything was fine. When the relative said she was going to
check herself, Lapointe promptly returned to the victim's apartment and
"discovered" the fire. After the murder, "before any information regarding a
possible sexual assault became known to the police or the public, Lapointe
stated [to a friend] that 'it was [a] shame they killed an old lady, but they
didn't have to rape her, too.' When later asked how he learned that the
victim had been sexually assaulted, Lapointe said "he had been informed by a
doctor at the hospital on the night of the murder."
The medical personnel
involved, however, unanimously testified to the contrary.
During a police
interview before suspicion centered on him, Lapointe also "exhibited
considerable curiosity concerning the results of the autopsy and asked if there
had been causes of death other than smoke inhalation." Ofshe and Leo claim it
was "virtually impossible" for Lapointe to commit the murder because his wife
provided an alibi for all but thirty to forty-five minutes of the day. But the
police reinterviewed Lapointe's wife on the day he confessed. She conceded that
Lapointe left their house around the time of the murder, contrary to the story
both she and Lapointe previously gave police.
On the day he confessed, Lapointe voluntarily came to the police station and
waived his Miranda rights. Tests performed later revealed that Lapointe had "a
full-scale intelligence quotient (IQ) of 92," within the average range.
Within an hour of questioning, Lapointe "became quiet, slumped down in his
chair, sighed and stated, 'I killed her.'" Lapointe then denied making that
statement and asked the detective whether it was possible to kill someone and
not remember. When the detective said it was possible, Lapointe confessed orally
and, in a one-sentence signed statement, admitted killing the victim and then
blanking out. The detective tried to elicit more details, and Lapointe gave
another brief confession. Next another detective interviewed Lapointe and
recounted the reinterview of Lapointe's wife that had destroyed his alibi.
Lapointe proceeded to give a more detailed account of his murder. He said, among
other things, that he removed the victim's underwear and threw it to the right
of the bed, where it was in fact found. He confessed to raping the victim and
then ejaculating on the bedspread. The semen was found on the bedspreadl8 and no
sperm was found on the victim's body. The detective asked whether the victim
screamed and Lapointe said she had not. To test Lapointe, the detective falsely
said that a neighbor had heard screams. Lapointe adamantly denied the victim had
screamed.l87 Lapointe said that he obtained a steak knife with a brown plastic
handle and stabbed and strangled the victim. A melted brown plastic knife handle
and blade were found near the victim.
Relying on second-hand newspaper accounts, Leo and Ofshe claim Lapointe's
confession should be discounted because of alleged inconsistencies. For example,
Leo and Ofshe claim the confession to penile rape was inconsistent with the
evidence because "[i]n fact, the victim was raped with a blunt instrument."
The medical examiner, however, did not attribute the victim's injuries to a
foreign object, but testified that the victim suffered "blunt trauma."
neither his report nor his trial testimony did he attribute these
injuries to a foreign object. Leo and Ofshe also contend that Lapointe's
confession to "killing" the victim on the couch was inconsistent with "[m]edical
testimony establish[ing] that she was not killed while on the couch."
no discernible inconsistency between medical testimony and the confession on
this issue. Firefighters found the victim on the floor close to the couch,
the medical examiner testified that she was alive during the fire because the
stabs wounds were not the cause of death. There is thus no conflict with Lapointe's confession that he "stabbed Bernice in the stomach while she was
laying on the couch," then set the fire and left. In any event, all of the
evidence concerning Lapointe's confession and its alleged inconsistencies was
presented to the jury. Leo and Ofshe offer no new credible evidence to discredit
the verdict. It is worth noting that the continued unfounded suggestions that Lapointe is innocent remain a source of considerable distress for the victim's
5. Jessie Misskelley
In 1994, Jessie Misskelley was found guilty of participating in the murder of
three eight-year-old boys - Steven Branch, Christopher Byers, and Michael Moore.
Police interviewed Misskelley about a month after the boys were found dead in a
creek-tied up, beaten, and mutilated. Although Leo and Ofshe assert the
confession was "inconsistent with the facts of the case,"
it was in fact proven
beyond a reasonable doubt to be consistent in its most important respect
identity of the main killers.
About a month after the gruesome murders, police asked Misskelley to come to
the station house in order to answer some questions. Misskelley admitted that he
watched as two of his friends-Damien Echols and Jason Baldwin-beat and abused
the young boys, and that he (Misskelley) kept one of the boys (Michael Moore)
from escaping. Based on this incriminating statement, police arrested Echols
and Baldwin as principals in the murders and Misskelley as their accomplice. The
accuracy of Misskelley's identification of Baldwin and Echols as the killers was
established by guilty verdicts at a separate trial resting entirely on
independent evidence, because Misskelley's confession could not be used as
evidence at that trial. That independent evidence included clothing fibers
found on the victims' clothes that were microscopically indistinguishable from
items found in the Baldwin and Echols residences, and from various witnesses
who heard Echols and Baldwin admit committing the crimes.
sentencing phase also included grisly testimony from a defense psychiatric
expert who said Echols believed, among other things, drinking blood of others
gave him special powers.
At Misskelley's trial, the prosecution acknowledged some discrepancies
between Misskelley's confession and the crime scene, but identified a number
of consistencies knowable only by someone with first-hand knowledge of the
crime. These details included not only correctly identifying Echols and Baldwin
as the killers, but also the following:
Misskelley confessed that, when he left the scene, the Byers boy was already
dead on the ground; there was evidence that the creek contributed to the deaths
of the other two boys, but not the Byers boy.
Misskelley confessed that the Byers boy was cut on his penis; the Byers boy
was the only boy found with severe genital mutilations.
Misskelley confessed that one of the boys was cut on the face; one of the
boys had facial lacerations.
Leo and Ofshe also report that "numerous" witnesses placed Misskelley at a
wrestling competition forty miles from the crime scene.
This wrestling alibi
would, in the colorful phrase of reporters covering the trial, be "pinned for
the count." Two of the alibi witnesses had previously given statements to the
police that they were unaware of Misskelley's whereabouts on the night of the
murder. According to the reporters, the prior statements "destroyed any
Misskelley alibi." In any event, at trial, the defense fully explored all
of the issues. Although Misskelley did not take the stand, his attorneys
presented extended testimony from an expert, none other than Richard Ofshe,
about the alleged false confession. The jury nevertheless convicted Misskelley, and nothing in Leo and Ofshe's account suggests that any significant
relevant evidence was kept from them.
Developments since Misskelley's trial, not discussed by Leo and Ofshe,
strongly confirm the verdict's accuracy. After his conviction, Misskelley
confessed two more times. On the drive to the state prison, after he was assured
that nothing he said could be used against him, Misskelley gave a detailed
statement about the crime. Prosecutors then arranged for a
judicially-approved interview of Misskelley, over the strenuous objections of
his defense attorneys. In the forty-minute recorded interview, Misskelley
provided details about the crime. Misskelley said that, when he got off work at
dinnertime, he went to a wooded area with his friends Echols and Baldwin.
When three boys entered the woods, Echols jumped them. When they resisted, he
(Misskelley) and Baldwin had entered the fray. Misskelley grabbed the one with
the blue boy scout uniform (Michael Moore) to prevent his escape.
To keep him
under control, Misskelley hit him repeatedly on the head. Misskelley then
watched as one of the other boys was cut on the penis, recounting that "I seen
blood fly."* Misskelley also explained how the boys were tied up with
shoelaces from their shoes. When first questioned by police, he had said that
the boys were tied up with rope to throw the police "off track."
before Echols and Baldwin, carrying with him a bottle of whiskey, which he
busted under a highway overpass close to the woods. Prosecutors and defense
counsel went to the overpass and found a broken bottle at the indicated
location. The broken bottle neck matched a bottle of Evan Williams Kentucky
Bourbon, the kind Misskelley said he drank the day of the murders.
6. Bradley Page
Bradley Page, a student at U.C. Berkeley, was convicted of voluntary
manslaughter for the 1984 murder of his girlfriend, Bibi Lee. On the morning of
the murder, after several fights between Page and Lee left the atmosphere
"tense," Page, Lee, and another woman went jogging in a secluded area. Lee
separated from the other two; Page later went back to look for Lee by himself.
He returned fifteen minutes later seeming "angry," "worried," and "somewhat
scared and confused," claiming not to have seen her.
Page convinced the other
woman to drive back with him the ten miles to campus, leaving Lee to her own
devices, a decision the woman "was not comfortable with."Page did not seem
particularly concerned about Lee during the rest of the day. The next morning,
the police, who were summoned by one of Lee's worried roommates, were told by
Page that Lee had disappeared while jogging. Page denied that he was upset or
angry the morning of the run. A search with bloodhounds and Explorer scouts of
the area failed to locate Lee that day. Her body was eventually discovered
several weeks later in exactly the same area where Page had gone looking for her
After discovering the body, police questioned Page, who denied knowledge of
the crime. Page then agreed to take a polygraph test. On the third time through
the questions, Page began "wailing," making it impossible to continue the test
The polygraph examiner noticed that Page did not exhibit any physical signs of
crying. Based on the first two tests, the examiner concluded that Page "tested
deceptive for the entire test," and responded particularly when injury to Lee's
head was mentioned.
Questioning resumed and Page said, "Well, if I did something I must have
blacked it out." The investigators indicated they did not believe him. Page
responded, "I remember hitting and kicking her, and wailing on her, or going off
on her," but claimed not to remember when or where this occurred.
get further details were unavailing, and questioning stopped. When questioning
resumed, one of the investigators made a "direct accusation." Page was silent
for a moment, then confessed he saw Lee on his return and tried to kiss her and
talk to her. When Lee pulled away, Page became angry and backhanded her,
knocking her to the ground. Lee seemed to be unconscious and her nose was
bleeding. Page also confessed that he returned that night, had sex with her
body, and then covered her with dirt to give her a "decent burial."m The
officers then attempted to take a taped statement from Page. He "essentially
related the same story" but seemed somewhat "confused, tentative or vague . . .
[But] [d]espite these indications of imperfect memory, Page was very specific
regarding many of the details of the assault." When a district attorney arrived
to confirm the confession several hours later, Page attempted to recant the
confession, claiming he confessed only because, among other reasons, he felt
guilty for leaving Lee behind. When asked to explain how he came up with the
details of the assault story, Page said he had made various assumptions or
Relying on second-hand accounts from Page's father, a defense psychologist,
and a friend of the victim, Leo and Ofshe conclude that "Page's confession
failed to lead to corroboration, and abundant evidence supported the conclusion
that he was innocent." The California Court of Appeals viewed matters
differently in a unanimous opinion written by Judge Clinton White, a former
public defender from Berkeley not known for credulously accepting police
accounts of crimes. The court explained that "despite Page's claim to the
contrary," the prosecution's case "did not rely solely on his naked confession.
In reality, the confession was supported and corroborated by the internal
details Page supplied -- details that only the killer could know-such as the
location of the body, the location of head and nose injuries,
method of burial." The Court of Appeals also noted that Page's explanation at
trial for the confession "strained the jury's credulity to the breaking point.
His explanation was rife with internal inconsistencies, and was also
inconsistent with the explanation he gave the officers in his final taped
Leo and Ofshe further assert that in 1994 Michael Ihde was identified as
Lee's murderer. This bold claim is supported with a citation to "CBS News"
(more precisely the "Connie Chung" show) which said that Ihde was a possible
suspect in the killing. Noting that Lee was an Asian-American, Leo and Ofshe
claim Ihde was the real killer because he admitted "that he killed three San
Francisco Area women-one of whom was non-white." In fact, Ihde
admitted killing a "black' woman. Ihde's modus operandi was also inconsistent with the
Lee murder.248 Leo and Ofshe claim that Ihde's "appearance was consistent with
the reported eyewitness evidence" in Page's trial.
This is apparently a
reference to testimony from a defense witness, who said she saw a person she
thought was Lee being pulled into a van by a man "in his mid-40s, 6 feet to 6
feet 3 inches, 220-225 pounds with a prominent beer belly, beard, and unkempt
curly hair." This testimony was severely undercut at trial,2 and in any event
is not remotely "consistent" with Ihde's appearance. At the time of the murder,
Ihde was a "meth freak," approximately six feet four inches, 150
pounds-wiry, as skinny as a rail, with bright red "carrot top" hair.
Ihde was also without a
car when Lee was killed.2s It is therefore unclear how Ihde could have driven to
the area where Lee was supposedly seen being pulled into a van, which was itself
several miles from where she was jogging. It is much less clear how Ihde would
have figured out how to drive back to bury Lee in precisely the same area where
she had been jogging with Page.
7. James Harry Reyos
James Harry Reyos was convicted in 1983 of murdering a Catholic priest,
Patrick Ryan, in a hotel room in Odessa, Texas. Leo and Ofshe list Reyos in the
"proven" innocent category. The source for this strong assertion is a letter
Dennis Cadra sent to the Texas governor two days before Cadra left the district
attorney's office that handled the case. Cadra was a prosecutor in the office
that prosecuted Reyos, but did not personally handle the trial.
Cadra`s letter argues it "was physically impossible for Mr. Reyos to have
committed the crime for which he was convicted."2 The letter recounts that
Father Ryan was murdered in Odessa sometime between 7:00 p.m. and midnight on
December 21, 1981. The letter claims, however, that Reyos was in Roswell, New
Mexico until 8:00 p.m. on the 21st and got a speeding ticket around Roswell at
12:15 a.m. early the next morning. This leaves only four hours and fifteen
minutes to drive 200 miles to Odessa to commit the murder and then return. To do
this, the letter concludes, Reyos "would have had to have averaged a driving
speed of over 111 miles per hour."
This all sounds quite persuasive until one compares the
letter's claims with the original trial transcript. To put Reyos in Roswell until 8:00 p.m. on the
21st, the letter relies on testimony from David Myers, a dormmate of Reyos's at
college, who testified (according to the account in the letter) that he hung out
with Reyos at some point "between the l9th and the 22nd."
The letter makes
further arguments to exclude all of these days but the 21st, creating Reyos'
alibi. Myers actually testified, however, that he had spent time with Reyos
"[s]ometime before Christmas of 1981," on a day that was "probably not the
24th." The first few lines of the trial transcript of the prosecutor's
cross-examination of Myers proves that the letter's representations about the
dates being limited to between the 19th and 22nd are simply inaccurate:
Q: Mr. Myers, you said this visit could have been the night of the 23rd?
A: Yes, sir.
Q: Or the night of the 22nd?
Q: You are not sure?
A: No, I am not.21
Myers's testimony, given a year-and-a-half after the murder, thus leaves
entirely open the possibility that he met Reyos on the 23rd, not to mention the
22nd, leaving Reyos without an alibi on the 21st. Not only was Myers unsure
about the date, but Reyos did not tell police when questioned five days after
the murder that he was with Myers on that night. Because it is unclear even
what day Reyos was with Myers, the seemingly precise "111 miles per hour"
calculation rests on a foundation of sand.
The ease of collapsing the supposed "proof" of Reyos's innocence should
itself be strong evidence supporting the jury's verdict. But even if Myers
firmly testified to hanging out with his old dorm mate on the night of the 21st,
the jury could have simply credited other trial testimony-none of which is
discussed in the letter. Olivia Gonzales, for example, testified that she saw
Reyos driving the victim's car by himself the day after the murder.
jury believed her testimony-and nothing in the cross-examination cast real doubt
on it - it would be powerful evidence of guilt Evidence was also presented that Reyos performed oral sex on the victim the day before the murder, although Reyos
gave an incredible account that the victim had "forced" him to do it.
Nonetheless, it was undisputed that early on the day of the murder, Reyos went
to the victim's house seeking a ride.
The jury also had before it confessions made by Reyos. The letter discounts
these based on testimony from a psychologist concluding they were false
confessions. However, cross-examination at trial established that this opinion
rested heavily on Reyos's honesty during psychiatric examinations.
the psychologist relied exclusively on psychological profiles and never compared Reyos's confessions with the physical crime scene evidence. A comparison
suggests the confessions were truthful. Reyos first called a 911 operator about
the killing and said "[y]ou are talking to the killer."
When police came to
his hotel room to question him about the call, Reyos said he killed the victim
"[w]ith a razor, but I mostly beat him." The medical testimony established
that the victim was beaten to death and had one "linear laceration" that could
have been a razor cut. The defense offered no testimony to explain Reyos's
knowledge of the manner of death. Reyos later testified at trial that "I don't
recall anything after" the police opened the door to talk to him about the 911
call. Reyos was also able to describe features of the hotel where the victim
was murdered despite claiming to have never been there.
The police confirmed
that Reyos bought a case of Coors beer, and some Coors beer cans were found in
the hotel room where the murder was committed.
At the police station, Reyos reiterated in a "brashful manner"
killed the victim and wanted to know why it was taking so long for the police to
record his statement. A public defender arrived and argued with Reyos,
unsuccessfully telling him to "shut up," "don't say anything," and "be
quiet." Ultimately, Reyos gave a recorded statement, first confessing to the
murder and then repudiating the confession. Although I have been unable to
locate a transcript of the confession, the Texas Court of Appeals later rejected Reyos's claims that the confession was inconsistent in relation to the other
evidence in the case.
The most compelling fact supporting Reyos's guilt is that all of the alleged
exculpatory evidence-including the alleged alibi-was capably presented to the
jury. No good rationale is offered as to why the presumptively conscientious
jurors found Reyos guilty beyond a reasonable doubt when he was innocent. The
jury's verdict was upheld in a unanimous opinion from the Texas Court of
Appeals, which noted that the "alibi was certainly not established as a matter
of law." Cadra's letter was also rejected. After receiving the letter, the
Texas Board of Pardons and Parole voted sixteen to zero against a pardon.
same information was pressed in a habeas petition, which the trial court in
Odessa rejected on grounds that it offered no new evidence to warrant revisiting
8. Linda Stangel
Linda Stangel was convicted of killing her boyfriend, David Wahl, by
recklessly pushing him to his death from a cliff. On November 12, 1995, Wahl
disappeared while on a trip with Stangel to the Oregon coast. Several weeks
later a body washed up in Washington, which was ultimately identified as Wahl's.
The injuries to the body suggested that his death was caused by a sudden impact,
such as falling from an extreme height. Stangel initially told the police that
she and Wahl got into a fight. Wahl left to go on a walk by himself around noon
at the oceanside Ecola State Park and never came back. She fell asleep in the
van for four to five hours. When she awoke, Wahl still had not returned, so she
drove the two hours home. Stangel never stopped on the way to seek help in
finding Wahl. Finally, at 7:30 p.m., nearly eight hours after Stangel last saw
Wahl, she called the police.
Stangel moved to Minnesota after Wahl's death but returned to Oregon in July
for Wahl's memorial service. Police officers Travis Hampton and Alan Corson
asked if Stangel would accompany them in an effort to run through the last day
Wahl was seen. Stangel wondered why police had not done this sooner and
indicated that it was appropriate under the circumstances.
The two officers
and Stangel retraced the route down the coast, eventually arriving at Ecola
At the park, Leo and Ofshe claim the two officers "obliged [Stangel] to walk
up the narrow, steadily rising bluff trail" where she "broke down in apparent
fear of the cliff edge as they climbed the trail" and confessed to accidentally
shoving Wahl off the cliff. The trial judge found a different version of the
facts to be credible after hearing testimony directly from officers Hampton and
Corson, defendant Stangel, and Richard Ofshe. While sitting in the parking lot
with the officers Stangel repeatedly looked over her shoulder toward the cliff.
Hampton asked if something happened to Wahl up there, but Stangel did not reply.
Hampton asked if there was something she had not told them, but Stangel again
did not reply. Hampton asked if she wanted to go up, and Stangel said yes. They
proceeded up the cliffside trail, arriving at a viewpoint. Stangel sat down and
said she was afraid of heights. Hampton asked if she wanted to go back, but
Stangel said no and led the officers further up the trail.
When their way was obstructed by a log, Stangel asked Hampton "out of the
blue" if hypnosis could help her remember what happened. Hampton asked her to
simply explain what happened. Stangel said, "What if I could tell you what
happened but not where it happened?" She explained that Wahl came at her,
that she was scared, and demonstrated a straight arm push. Hampton told her that
she was not guilty of murder if it was truly an accident. He asked Stangel to
elaborate, and she laughed and said she made the whole thing up. She was silent,
momentarily, and then told Hampton that she was afraid to talk because she would
be blamed. Stangel told Hampton that she wanted to continue up the trail.
After a short hike, they arrived at a viewpoint without a railing next to a
300 foot drop to the beach below. Stangel told the detectives that this was the
place where Wahl fell off the cliff. Stangel and the two officers spent the next
fifteen minutes at the viewpoint. Stangel described how Wahl went over the cliff
and demonstrated the event by moving the officers into Wahl's position. Stangel
told the officers that she and Wahl had been talking about their relationship.
She wanted to end it, but Wahl wanted to continue it. While they were talking,
Wahl gave her a slight push to scare her, and it frightened her, even though she
was not in fear of going over the edge. She then withdrew herself, yelled "fu*ker,"
and pushed him over the edge.
In the police car back at the parking lot, the officers took a recorded
statement from Stangel. On the day Wahl died, Stangel told him she "was going
back to Minnesota" without him. Wahl went to the beach for fifteen minutes, then
returned and asked Stangel to go with him up the trail. They walked slowly
discussing their relationship, reaching the edge of the "very steep" cliff.
We were talking about our relationship again. Then I'm like just forget about
it. And I proceeded to go near the edge of the cliff. And Dave came up behind me
. . . And, while we were standing there, he faked pushed me. And I'm afraid of
heights, so my natural reaction was to just push him back. I just said, "hey
f*r" and pushed him, accidentally.
Wahl was "inches," or "maybe a foot," from the cliff at the time. Wahl "made
this loud, annoying scream" as he fell to his death. Stangel made no attempt to
get medical attention for Wahl and was sure he was dead. Stangel then went back
to her car for a "couple of hours" and drove home without calling for help. She
told everyone, including the police, that Wahl just walked off because "I didn't
want to be accused and there were lots of fingers pointing at me right away."
At 9:00 p.m. the same day, when Stangel was safely back in her hotel room-and
presumably no longer needing to "escape the immediate stress of the narrow and
terrifying heights" that Leo and Ofshe claim induced the first confession
waived her Miranda rights and gave another parallel statement. Stangel
recounted the same facts leading up to the fatal push and then explained, "He
had one hand on my back, one hand like on my stomach. I mean I'm out there in
space and he pretends to push and I freaked. So I pushed him back. . . It was
like a get the hell away from me kind of push."
At a suppression hearing, Stangel claimed the confessions were
"made up to make these officers happy." Ofshe testified for the defense as well, relying
in significant measure on information from Stangel* to conclude that her fear of
heights and the officer's statement that an accident was not a murder led to a
false confession.3 At the conclusion of the hearing, the court advised the
parties how it would rule: "I will accept Detective Hampton and Detective
Corson's version of events and find them to be believable and more believable
than the defendant." Similarly, the court concluded, "I do not accept Dr.
[sic] Ofshe's opinions regarding the coercion or the coercive nature of the
interrogation. I simply didn't believe him, and I do believe that Ms. Stangel
gave her statements freely and voluntarily, and that the detectives did not
coerce her into giving the statement."
At trial, the jury heard from the two officers and from Stangel and Ofshe.
During trial, Linda Stangel was caught telling several lies.
After hearing all
the evidence, the jury did not credit Stangel's and Ofshe's testimony and
returned a guilty verdict. The jury's verdict poses a serious methodological
issue for Leo and Ofshe. They promise to include in their collection only cases
in which the "overwhelming majority" of neutral observers would find the
confession to be false. Yet in this case, all twelve jurors unanimously found to
the contrary-beyond a reasonable doubt-after hearing directly from Ofshe and
after reviewing all of the available evidence. Leo and Ofshe do not suggest that
any direct evidence was withheld from the jury, noting only that the indirect
evidence that Stangel "passed" a polygraph test was excluded from the trial.
Leo and Ofshe appear to be unaware that Oregon law makes polygraph results
absolutely inadmissible, and their treatment of Stangel's allegedly
exculpatory polygraph test seems inconsistent with their refusal to credit
inculpatory tests in other cases. In any event, the exculpatory polygraph test
was an equivocal result from a defective machine - one of its four channels was
broken produced in the defendant's hometown where her mother worked with the
police department. All neutral observers in the judicial system in the Stangel
case-the judge and the twelve jurors-found the confession was not coerced, and
Leo and Ofshe offer no good reason for relitigating and discounting the
9. Martin Tankleff
Martin Tankleff, a seventeen year old with an IQ of 124,
was convicted of
murdering the parents who adopted him, Arlene and Seymour Tankleff. Citing only
Tankleffs petition for habeas corpus, Leo and Ofshe claim "[n]o evidence linked
Tankleff to the crime." Two weeks before the murders, however, Martin Tankleff said that if he could "have a hit" on both of his wealthy parents, he
could drive any car he wanted. A few days before the murders Tankleff had an
ugly, public argument with his father. On the morning of the murders, police
responded to a 911 call and found Tankleff alone at home "soiled with
blood," his mother dead and his father grievously injured.
noted that Tankleff's various stories were internally conflicting and
inconsistent with the physical evidence at the crime scene.
to accompany police to the station house. There, an enterprising detective
arranged for a fictitious phone call to come in reporting that Tankleff's father
miraculously had regained consciousness and identified Tankleff as the attacker.
Tankleff offered various explanations for this, and then quickly
shifted to saying "it was like another Marty Tankleff that killed them."
After police administered Miranda warnings, Tankleff voluntarily made
what a reviewing court described as "a full confession."
Tankleff said that his
parents were fighting and accordingly turned to him for attention, with the
result that they were "smothering" him. As a result of this and other
resentments, he decided to kill them. He went to his parent's bedroom, hitting
his mother four or five times with a barbell. Because she was fighting him off,
he then went to the kitchen and got a knife and cut her throat and stabbed her.
Then he went to his father's den, "just knocked him silly" with the barbell, and
slashed his father's throat. He then showered and washed off the barbell and
knife. As Tankleff continued to explain the details and the detectives prepared
to reduce the confession to writing and videotape, an attorney called the
station house asking that questioning of Tankleff cease, a request the police
honored. Tankleff's confession came about ten minutes after the fictitious
phone call and a little more than two hours after questioning started.
that day, a detective overheard Tankleff acknowledge to his sister that he
committed the crime.
Leo and Ofshe refuse to credit Tankleff's confession to killing his parents
with a knife and a barbell, which was recovered from his room, even though the
confession narrative was quite consistent with medical testimony about the
nature of the injuries. Leo and Ofshe argue the confession was inconsistent
with a negative test of the knife and barbell for blood traces, hair and
fibers, but these facts tracked Tankleff's confession that he had "washed off
the barbell and the knife" in the shower. Other testimony established that
both items were moved within hours of the murders. Leo and Ofshe further
state definitively that the injuries to the father "were caused by a hammer."
The treating physician, however, testified that the injuries "had been caused by
a hammer or an object similar to a hammer" and the possibility of a hammer
was not "to the exclusion of any other similar type weapon."
In any event
medical testimony established that the mother's injuries were "consistent with
having been caused by" the barbell taken from Tankleff's room,
and that the
father's injuries were caused by a "blunt instrument," with any further
specification impossible due to the emergency surgical procedures performed.*l
Leo and Ofshe claim that the time of death of the mother was much earlier than
indicated in Tankleff's confession -
not recognizing that the mother's time of
death could not be established with any precision by the medical examiner, but
was generally within the time frame indicated by Tankleff.
The jury also had
the benefit of testimony from a defense expert that Tankleff was "brainwashed,"but rejected this view and returned guilty verdicts.
III. LESSONS FROM THE CASES
The nine cases just discussed demonstrate that in a substantial portion of
Leo and Ofshe's collection, the allegedly "innocent" person was in all
likelihood properly found guilty at trial or by plea-particularly in cases where
the most that Leo and Ofshe are willing to venture is the view that the person
was "highly probably" or "probably" innocent, rather than "proven" innocent. The
guilt of these nine defendants, for whom original court records were available,
suggests that other defendants in the Leo-Ofshe collection may be guilty as
To all this, some may reply that I have missed the forest for the trees,
that the point is not exactly how many miscarriages from false confessions
occur, but rather that they occur at all. But setting the record straight in
these cases is important in its own right, in order to avoid cruelly
traumatizing the victims' families and unfairly maligning the professionalism
of police, prosecutors, judges, and defense attorneys. More important, at least
three broader lessons can be learned from these mischaracterized cases of
innocence, as I explain in this Part. First, relying on news media accounts of
trials to determine "innocence" is dangerous, because of the media's
considerable bias towards discovering "news" by finding that the system
malfunctioned. Second, removing the spurious cases from the Leo-Ofshe collection
and examining the residual "undisputed" wrongful convictions reveals that the
false confession problem is not pervasive, but rather is concentrated among a
narrow population-those with serious mental problems. Finally, the cases
demonstrate that even those who are guilty of crimes will frequently give a
confession that is inconsistent with the known facts of the case. This presents
a serious problem for Leo and Ofshe's proposal to suppress confessions whose
post-admission narrative fails to closely track the facts of the case.
A. Problems in Determining "Innocence"
The first issue worth examining is how Leo and Ofshe could have wandered so
far astray on some of these cases of alleged "innocence." The question becomes
even more puzzling when we realize that Leo and Ofshe, to avoid precisely the
type of reevaluation undertaken here, promised to limit their collection of
cases to those lacking any "credible evidence" corroborating the defendant's
guilt. Yet in all of the nine cases just examined, such evidence plainly
While it is possible that Leo and Ofshe have simply played fast and loose
with the facts, the distortion in these cases is perhaps more simply
attributable to the kinds of secondary sources Leo and Ofshe relied upon. While
Leo and Ofshe describe their research as relying "where possible" on "primary"
sources such as "trial records,"3 the great bulk of it actually rests on
second-hand accounts. Some of these secondary sources were draped in red warning
flags that should have been heeded, such as a recounting of a trial from the
defendant's father, a book published by "the friends of" a defendant to raise
funds for his defense, and a habeas petition designed to win a defendant's
release from prison.m Many other sources were second-hand newspaper accounts
available in computerized databases. No doubt relying on such readily-available
information saves considerable time. Having spent innumerable hours collecting
original court records on just nine cases, I can attest to the practical
advantages of computerized research. But with the advantage of speed comes the
danger of error, a danger that becomes unacceptable in light of news media
While courts and juries legally must be impartial, journalists are not so
restricted and have an understandable interest in slanting evidence to suggest
wrongful conviction. This is a particularly serious problem in "investigative"
reporting because "many journalists deem investigative pieces successful only if
they uncover malfeasance, [creating] an incentive to interpret ambiguous facts
in the worst possible light." However well intentioned a reporter may be, the
fact remains that it is only "news" if an innocent person is convicted. One
reporter explained the ease of writing compelling yet biased stories this way:
"If you've got a crying mom, you've got a story. If you've got a crying dad, my
God, you've got two stories! If you don't get the other side of the story,
you've got to be swayed." Even entirely impartial media sources can also be
influenced by the agendas of others. This may account for the particularly
egregious misrepresentations found in secondhand descriptions of death penalty
cases. Family members or supporters of a prisoner may also believe, for
understandable reasons, that an innocent person has been wrongly convicted and
set out to use the media to influence the case through accounts of the
"evidence" that, predictably, put the best possible light on things. The normal
checks and balances found in other areas of journalism may operate less
effectively here. Prosecutors, and indirectly police agencies, operate under
rules of legal ethics that severely restrict the information that can be
provided about a case outside the courtroom. On the other side, the enforcement
of similar rules against defense attorneys is problematic and, in any event,
supporters of the defendant outside the legal profession are free to give their
views. To be sure, crime victims can, and in some cases do, respond. But in
other cases they may not. Victims often have no stomach for public battles over
the crime, believing that the issues will be resolved in the courtroom. One
reporter described the resulting asymmetries in sexual abuse cases as follows:
Those accused of sexual abuse have an overwhelming interest in discrediting
the child and family members accusing them . . . They resort to war by public
diplomacy. The other side-therapists, family, friends-cannot answer back in
kind. For all those concerned about the victim. . . maintaining privacy is
crucial. . . No one who cares about the human costs of crime to the victim will
lightly compound it. As a result, the message carried to the media is often
heavily biased in favor of the perpetrator.
It should be noted that a disproportionate number of Leo and
innocents were men who committed crimes against women or children. Some have
argued that the media is structurally biased against accepting claims from or
supportive of such victims. All this suggests that relying on second-hand media
accounts is not a reliable means of determining the accuracy of convictions, as
the media will inevitably manufacture more "innocents" than really exist. At the
very least, primary sources such as trial transcripts should be carefully
consulted before crediting a news story about a "wrongful" conviction.
B. Overgeneralizing the Problem of False Confessions
While second-hand media reports inflate the number of reported cases of
wrongful conviction from false confession, an important additional question is
whether such reports are skewed in any systematic way. After all, the news media
might give us a general sense of what is happening, even if it exaggerates the
extent to which it is happening. But there is good reason to believe the media
not only creates miscarriages but also creates a particular kind. For all the
reasons just given, the media's greatest interest is in depicting wrongful
convictions in a dramatic it-could-happen-to-you fashion. In an effort to appeal
to its audience, the media is more inclined to find "average" persons who have
been wrongly convicted possibly obscuring the fact that more unique populations
are especially at risk.
The hypothesis that the Leo-Ofshe collection is skewed could
be tested if we could compare it to a more reliably identified collection of
wrongful convictions. Professor Sam Gross' research on eyewitness
misidentification provides such a means. He restricted his research to cases of
"undisputed" misidentifications-those in which there was a clear determination
of innocence, preferably from the prosecuting authority that originally charged
the defendant. There is undoubtedly considerable wisdom in this conservative
approach, as even Richard Ofshe has acknowledged. The problems with the
subjective determination of "innocence" in the Leo-Ofshe collection, like
similar problems elsewhere, suggests that reliance on second-hand sources
combined with understandable enthusiasm for the enterprise of discovering
miscarriages may produce more such cases than really exist. Although using
undisputed cases suffers from the limitation of requiring the willingness of
officials to admit error, police and prosecutors would seem to have ethical
obligations to reverse genuine cases of wrongful conviction and, in a number of
cases, have in fact done so. In any event, the problem of official reluctance to
admit error likely affects only the number of wrongful convictions, not their
Only a relative handful of Leo and Ofshe's cases would satisfy the criterion
of undisputed wrongful conviction. It appears that in none of the cases of
"probable" or "highly probable" innocence has there been an official
acknowledgment of error. Even among the fifteen "proven" cases of wrongful
conviction from false confession, many are disputed. Prosecutors believed Lavale
Burt was guilty of murder. The district attorney who prosecuted Steven Linscott
specifically declined to declare him innocent. In the case of George Parker, the
prosecution apparently continued to press for his conviction, only to be blocked
by an appellate court.* State police continued to believe Peter Reilly committed
the crime after an appellate court overturned the conviction.
The guilt of
James Reyos has been discussed previously. Prosecutors continue to believe
that Earl Washington was guilty of rape and murder. Indeed, in commuting
Washington's death sentence as one of his last acts in office, Governor Douglas
Wilder said that he was not fully convinced that Washington was innocent and
that Washington "had knowledge of evidence relating to the crime which it can be
argued only the perpetrator would have known." Governor Wilder also noted, in
remarks that could apply to the death penalty cases discussed here, that the
capital punishment opponents pressuring him to grant a full pardon did "not
enjoy a grasp of the specific facts of the case."
As a result, assuming the recitations in secondary sources have accurately
recounted the facts in the remaining cases, nine of Leo and Ofshe's twenty-nine
wrongful conviction cases (approximately one-third) are undisputed: Bradley
Cox, Ralph Jacobs, William Kelley,
Laverne Pavlinac, John Purvis,
Melvin Reynolds, Christopher Smith,
David Vasquez, and Johnny Lee
Wilson. When these nine defendants are examined, a striking common feature
emerges-eight of the nine, all but Bradley Cox, are mentally
retarded or have
other serious mental problems. This means that, after extensive research, Leo
and Ofshe have uncovered only one undisputed case in the last quarter century in
which a mentally normal person was wrongfully convicted from a false confession,
and that case appears to offer few generalizable lessons about police
interrogation. More important, the high concentration of the mentally infirm
among the undisputed cases suggests that, for the most part, false confessions
are caused not by police questioning techniques in general but rather by the
application of those techniques to certain narrow, mentally limited
Although more research is clearly needed on this question, there is nothing
new in recognizing that those with mental limitations are at special risk of
false confessions. As long ago as 1963, the President's Panel on Mental
Retardation concluded that "[s]ome of the retarded are characterized by a desire
to please authority: if a confession will please, it may be gladly given."
Other commentators have expressed similar concerns.
Consistent with these cautions, American courts "have long recognized
that confessions by mentally retarded persons are somewhat suspect."
Leo and Ofshe could perform a valuable service if they analyzed interrogation
tactics that posed particular risks to this population. But identifying false
confessions solely among this constricted population is not the limited project
Leo and Ofshe have in mind. Instead, they wish to proceed more broadly and, for
example, heap scorn on Fred Inbau and the other authors of the most widely used
police interrogation manual. Leo and Ofshe claim these authorities "persist in
the self-serving and misguided belief that contemporary psychological methods
are not apt to cause an innocent suspect to confess-a fiction that is flatly
contradicted by all of the scientific research on interrogation and
confession." I have suggested that, to the contrary, Leo and Ofshe are guilty
of rhetorical overstatement in claiming that common police questioning
techniques are "apt" to cause false confessions.
But even setting that aside,
Leo and Ofshe fail to acknowledge that the manual expressly recognizes the
special problems that arise in questioning those with mental problems, warning
that "an innocent person with a psychological affliction may seem to be
guilty." This admonition is followed with a cautionary example in which a
innocent suspect with an "unstable personality" aroused suspicions during
interrogation. Moreover, in an article directed to law enforcement authorities,
Fred Inbau has specifically written that "special protection must be afforded
[to persons of below-average intelligence] . . . to minimize the risk of
obtaining untruthful admissions due to their vulnerability to suggestive
questioning." Questioning should proceed, Inbau instructed, "with all
reasonable precautions to guard against untrustworthy admissions, bearing in
mind the suspect's particular vulnerability to suggestiveness with respect to
possible explanatory conduct." Thus, far from deserving condemnation, Inbau
should be commended for alerting law enforcement communities to a particularly
perilous area for false confessions. If criticism is to be directed anywhere, it
might be towards Leo and Ofshe for suggesting more generally that all police
interrogation should be regarded with suspicion. This overbroad indictment will
inevitably, and unfortunately, distract at least some attention away from where
it apparently should be focused-the mentally retarded.
Precisely what safeguards are needed to protect the mentally retarded is
difficult to say. American courts already specially scrutinize confessions from
the retarded under the voluntariness test. The miscarriages collected by Leo
and Ofshe establish that this scrutiny is imperfect, although they do not
establish the extent of the problem. Because of such examples, some have
proposed restrictions on police questioning of the mentally retarded. Judicially
enforceable rules for police questioning would, however, raise considerable
practical difficulties. As a result, police training may be the best
preventative medicine and could, perhaps, even be done with materials from
Inbau. Oversight of police questioning of the retarded may be best handled
through continued judicial scrutiny of the voluntariness of confessions and
expert testimony to juries on the peculiar susceptibilities of the retarded to
this problem.At the same time, caution is needed in applying these rules.
Those with mental illness are particularly likely to fall victim to crime and
thus may be especially severely harmed by restrictions on police investigation.
Also, in other areas of the law, doctrines benefiting the mentally retarded have
led to biased mental testing to prove that defendants suffered from this
And, finally, the retarded are not immune from criminal temptations.
Nonetheless, a focus on the possibility of false confessions given by those with
mental limitations appears to offer a chance of a targeted-and
successful-response to the existing false confession problem.
The examination of undisputed cases also reveals one disturbing point about
Leo and Ofshe's analysis that, unfortunately, must be made: their accuracy in
identifying cases of false confessions is distressingly low. In total, Leo and
Ofshe analyzed twenty-nine cases of wrongful convictions from false confessions.
Of these twenty-nine, the nine undisputed cases did not require any special
identification because all parties conceded the convictions should be
overturned. Removing these nine uncontested cases leaves twenty in which the
truth of the confession was disputed. The analysis presented here demonstrates
than in nine of those twenty cases-Fairchild, Giarratano, Ingram, Lapointe,
Misskelley, Page, Reyos, Stangel, and Tankleff-Leo and Ofshe have incorrectly
concluded that the defendants were probably innocent. Even giving Leo and
Ofshe the generous benefit of the doubt that they were entirely right on the
remaining eleven cases, their success rate in identifying false confessions in
the disputed cases can be no better than eleven of twenty (fifty-five percent),
barely better than one would expect from flipping a coin to decide a
This low batting average raises serious questions about the admissibility of
expert testimony resting on Leo and Ofshe's research about false confessions.
The admissibility of expert testimony on false confessions is quite
controversial-some courts allow it while others exclude it.Although this
is not the place for an extended discussion of these competing approaches,
the clear trend in the cases is that, at the very least, courts should preclude
any testimony on the truth or falsity of a particular confession. Moving
beyond that, expert testimony might in theory be justified on interrogation
conditions that might produce false confessions. On this point, however, a
practical difficulty arises. Before allowing such testimony, courts must find
that it pertains to "scientific knowledge." In making this determination,
courts can consider the acceptance of particular conclusions within a relevant
scientific community. It is not at all clear that acceptance of conclusions
about false confessions yet exists given the preliminary nature of false
confession research. Professor Welsh White has recently noted that the empirical
data on false confessions could be described as "tentative and fragmentary."
Professor Saul Kassin, himself a leading researcher on the subject of false
confessions, has gone further and concluded that "the topic of confession
evidence has largely been overlooked by the scientific community. As a result of
this neglect, the current empirical foundation may be too meager to . . .
qualify as a subject of 'scientific knowledge' according to" the rules governing
Testimony resting on Leo and Ofshe's research, at least concerning how
"false" confessions are produced, does not appear to satisfy the requirements to
be admissible expert testimony. Before accepting expert testimony, courts should
"consider the known or potential rate of error" from a particular technique.
Leo and Ofshe's technique results in an error rate -at least forty-five
percent-that is unacceptably high. Moreover, the rules of evidence generally
permit expert opinion based on "facts or data" that are "of a type reasonably
relied upon by experts in the particular field." Experts in the field of
miscarriages would certainly look to primary court records first, as even Leo
and Ofshe seem to concede. Yet in practice their analysis quite frequently
departs from the preferred approach. Their analysis only rarely cites-much less
discusses-primary court records, even where judicial opinions are readily
available in published reporters. Of course, judicial records are not the only
sources that should be consulted; the point is that they certainly ought to be
among the main sources consulted. Because of the high error rate and failure to
follow accepted research techniques, courts should not allow expert testimony
resting on Leo and Ofshe's analysis of any of the particular cases discussed
here. Courts certainly need more reliable research on this important subject,
and I add my voice to those who are encouraging further investigation of the
false confession problem.
C. Problems With Post-Admission Narrative Analysis.
Rather than focusing on particular subpopulations at special risk for false
confessions, Leo and Ofshe propose more sweeping changes to confessions law.
Among other things, Leo and Ofshe suggest that courts should "carefully
scrutinize" a confessor's "post-admission narrative" against the known facts of
the case. In their view, "[t]he fit between the specifics of a confession and
the crime facts determines whether the 'I did it' admission should be judged as
reliable or unreliable evidence." They further argue that, if the discrepancies
are substantial enough, courts should conclude that the confession is unreliable
and suppress it.
As a general proposition, there is nothing wrong with examining confessions
to see whether they track the crime facts and reveal details about the crime
that only the perpetrator would know. No doubt juries routinely make such
evaluations in assessing confession evidence. Leo and Ofshe propose, however, to
go further and require courts to make a specific determination about "fit," with
that determination governing the admissibility of defendants' statements. Such a
proposal goes well beyond traditional judicial scrutiny, which focuses on the
"voluntariness" of the confession, and would in effect substitute judges for
the jury as the trier of these important, and often outcome-dispositive, facts.
Because this far-reaching change would govern the admissibility of all
confessions, not just those from the vulnerable population of the mentally
retarded, its desirability rests on proof that it would especially suppress
false confessions but not true ones. There are substantial practical reasons
for doubting that the proposal would be so discriminating.
To begin with, many guilty suspects do not give a "confession" to the crime,
but rather make only an incriminating statement. By definition, such a statement
will fail to fit the facts of the crime, even if it accurately suggests guilt.
Consider, for example, a suspect's claim that he was with the victim on the day
of the murder, but left shortly before she was killed. Such a statement may be
quite important to a successful prosecution of the suspect, but the
prosecution's entire theory will be that the suspect did not leave before the
murder and that this part of the narrative does not fully track the facts of the
crime. This scenario unfolds very frequently. Bret Hayman and I found in Salt
Lake City that, among suspects who gave incriminating statements, thirty-six
percent provided something less than a confession. An even larger percentage
comes from Leo's empirical study in northern California, which found that, among
suspects giving incriminating statements, sixty-three percent gave something
less than a "full" confession. Both these studies suggest that vast numbers
of suspects' incriminating narratives will be at odds with the facts of the case
simply because suspects do not confess to the crime in its entirety.
Presumably Leo and Ofshe, if required to elaborate on this point, would
respond that mere incriminating statements are not subject to their proposal;
instead, only "confessions" of the form "I did it" would be subject to the new
rules. In another article, they refer to Black's Law Dictionary definitions
of "confession" and "admission." The dictionary defines a "confession" as a
statement in which a suspect "acknowledges himself to be guilty of the offense
charged, and discloses the circumstances of the act or the share and
participation which he had in it." An "admission" is defined as "[t]he avowal
of a fact or of circumstances from which guilt may be inferred, but only tending
to prove the offense charged, and not amounting to a confession of guilt."
If Leo and Ofshe's proposal is triggered by a "confession" but not by an
"admission," then judges will have to reliably distinguish between the two.
Scant precedent suggests they could do so. For example, the Supreme Court held
in Miranda that, for self-incrimination purposes, "[n]o distinction can be drawn
between statements which are direct confessions and statements which amount to
'admissions' of part or all of an offense." Perhaps part of the reason the
Court avoided this quagmire is that no distinction can effectively be made.
Consider, for example, the common scenario of a suspect refusing to confess to
the crime in all its horror. Leo and Ofshe recognize this possibility,
providing the illustration of a guilty suspect who confesses that he kidnapped
and killed a child, but is unwilling to confess to also raping her. They
would apparently allow the jury to hear this statement in the suspect's trial
for murder, kidnap, and rape, but do not explain why. They have two possible
grounds for admitting this statement that it is only an "admission" and therefore
not subject to their rules, or that it is a "confession" subject to their rules,
but sufficiently close to the facts to be admitted. On either theory, numerous
problems will develop.
On the first theory-that the statement, with its relatively minor deviation
from the truth, is treated not as a "confession" but only as an "admission"
- then virtually all statements from suspects will fall outside the scope of the
new rules. No doubt virtually all confessions contain at least some minor
deviation from the truth which, it could be argued, transform them from
confessions into admissions.
On the second theory-that the statement, while deviating slightly from the
truth, is a "confession" but nonetheless admissible because it sufficiently
tracks the crime -courts will be forced to decide difficult questions of when
confessions hew closely enough to the facts. The hypotheticals are endless and
perplexing. Suppose the suspect admits kidnapping, but not murder or rape? Or
admits consensual sex in violation of a statutory rape statute, but not forcible
rape or kidnapping or murder? Or admits taking the child for a ride, but not
with the intent to obtain ransom or commit a felony-typically elements of
kidnapping? Or admits stalking the child, but not giving the child a ride?
All of these involve a confession to some element of the charged or an uncharged
crime, but it is not clear which of these statements qualify as "confessions"
subject to the Leo and Ofshe proposal. If any of these statements are defined as
"confessions," they will be at odds with important parts of the crime and,
therefore, apparently suppressible under the Leo and Ofshe proposal that judges
should scrutinize the "fit" of the confession.
The problems only mount when we realize that the guilty suspect, even if
"confessing" to committing all of the charged crimes, such as murder, kidnap,
and rape, might nonetheless provide a post-admission narrative that deviates
from the crime's facts. This is a widely recognized problem. As one
knowledgeable observer recognized, "even 'true' confessions are often riddled
with half-truths because suspects want to paint the most favorable picture
possible." The popular Inbau manual reports that many offenders "will admit
guilt to a very serious offense, while at the same time refusing to do so
regarding a less related one that was part of the same series of events."
example, a suspect might confess to a murder but deny stealing a crucifix from
the victim. Even looking only at the nine cases carefully reviewed here reveals
a plethora of reasons for deviations, or apparent deviations, between the facts
of the crime and the perpetrator's otherwise truthful confession, including the
- a desire to cover for family members or friends
- an attempt to minimize the seriousness of an offense
- a drug-induced memory problem or confabulation,
- an intention to throw the police investigation "off track"
- a desire to give the impression of having "blacked out" around the time of
- an insufficiently precise description of the location of incriminating
evidence to permit its recovery;
- an inability to complete questioning because of legal restrictions on police
- a manipulative suspect
Leo and Ofshe have not yet described how courts would evaluate such
legitimate reasons for deviations between confessions and the facts of the
crime. Nor have they offered any specific explanation of how tightly the facts
of a confession must fit the facts of the crime. In an earlier brief exchange
with them, I pressed this point, explaining that evaluating their proposal was
difficult because they had not spelled out its operation. They replied that
the confession "must fit the facts of the crime to a reasonable degree,"
did not provide illustrations or other elaboration of this "reasonable degree"
Their collection of cases provides an opportunity to assess the degree of fit
in the context of real cases. This assessment demonstrates that Leo and Ofshe
would have courts keep from juries many truthful confessions. They contend that
in all nine of the cases I have closely examined here, the confession was not
simply inaccurate, but so inaccurate that courts should have excluded it. This
means that in all of these cases-and many others like them-quite probably guilty
suspects would have succeeded in suppressing reliable and highly incriminating
statements, with the consequence that most of them would have escaped any
punishment for their crimes.
The Barry Fairchild case illustrates this point. Leo and Ofshe suggest that
Fairchild's confession was so riddled with "glaring errors of facts" that the
trial court should have suppressed it. The glaring errors of fact, however,
were apparently understandable to the jury, and for good reason. For instance,
Fairchild confessed to committing the crime with his accomplice Harold Green,
who had an airtight alibi for the murder. This "glaring error" is readily
understandable when we realize that Fairchild's actual accomplice was quite
possibly his brother. While making much of this supposed "error," Leo and Ofshe simultaneously give short thrift to confirmed parts of the confession. For
instance, Fairchild confessed to taking a unique watch from the victim during
the murder, a watch that police retrieved, with Fairchild's help, from
Fairchild's sister. This corroborated part of the confession and proved, a
federal district court concluded, Fairchild's involvement "far beyond any
reasonable doubt. This fact is discounted by Leo and Ofshe, however, because
Fairchild had some facially implausible explanation about buying the watch from
an unidentified person at an unidentified place. If Fairchild is a fair
portrait of how tightly a confession must fit the facts to satisfy the
"reasonable degree" test, then defense attorneys will have a field day
suppressing vast numbers of truthful confessions.
While post-admission narrative scrutiny would suppress many true confessions,
false confessions might actually survive it. Consider, for example, police bent
on coercing a suspect into signing a "confession" to a crime he did not commit.
Presumably police will design such a confession to track the crime scene quite
closely, and likely even include details about the crime not available to the
public. The post-admission narrative of such confessions will fit the crime to
more than a "reasonable degree" and will be unaffected by the new rule. Apart
from the rare case of police dishonesty, even truly false confessions can track
the crime scene. An innocent suspect may simply describe something that bears a
striking resemblance to a fact of the crime. More often, police may reveal the
manner in which the crime was committed during questioning, only to have the
false confessor report back the same details later. Leo and
that "contamination" can occur during questioning, a possibility attested to in
cases in their catalogue. They provide, however, no explanation as to how
courts should deride between the competing possibilities of an innocent
defendant regurgitating information fed to him by the police and of a guilty
defendant reporting his involvement in the crime. This "regurgitation" problem
suggests rather strongly that the efficacy of the Leo-Ofshe proposal to
scrutinize post-admission narratives is inevitably coupled with their additional
proposal to videotape interrogations. Without such recording, it will be
impossible to determine whether an alleged consistency of the confession is due
to what a suspect learned from the police or knew from committing the crime. But
even with a recording scheme in place, in close cases the courts still will have
to make difficult determinations. Compounding the difficulties, such
regurgitation simply will not take place among innocent suspects. Presumably a
fair number of guilty suspects will give statements that conform to what they
think the police know, as revealed during questioning. As the Inbau manual
reports, "[a guilty person is always interested in hearing the whole story or
in finding out exactly what may be known about him so that an assessment may be
made of the situation." No doubt a number of guilty suspects provide statements
that fit what the police have, and no more.
To gain some idea of the overall efficacy of the Leo-Ofshe proposal, we need
to estimate the relative number of true and false confessions that would be
excluded under it. Because the proposal's operational details have yet to be
spelled out, making authoritative assessments is difficult. But the issues
raised here clearly demonstrate considerable room for concern that many guilty
suspects would go free because courts would not allow juries to hear
incriminating statements from guilty suspects.
We need not engage in such an untested approach to presenting wrongful
convictions if other mechanisms reliably can separate the guilty from the
innocent. Such separation is traditionally the task of juries. Thus, an
inseparable part of the case for the Leo and Ofshe proposal is the claim that
juries often fail to sort true confessions from false ones.
At the outset, this claim seems counterintuitive. Not only should we be ready
to indulge a modest presumption that the foundation of our criminal justice
system works, but also that the kinds of issues swirling around false
confessions seem readily susceptible to jury evaluation. Did the suspect confess
to details only the real perpetrator would know? Did the cops "feed" the
information to the suspect? Is there some innocent explanation for the
incriminating statement from the suspect? These are not subjects generally
beyond the ken of the average jury and indeed, as Leo and Ofshe recognize, there
are many cases in which jurors have acquitted possible false confessors.
Moreover, even were these subjects beyond juror comprehension,
as courts have
recently begun to allow expert testimony on such subjects. We can, of course,
assist juries to accurately make such determinations. Replacing Miranda with a
system of videotaping confessions is an example of such an improvement. Giving
juries all of the evidence surrounding the taking of statements would
undoubtedly improve jury findings.
Leo and Ofshe, however, distrust juries for two reasons. First, they allude
to mock juror research, which they suggest calls into question the abilities of
juries to identify false confessions. The two cited studies have rather
limited relevance to the issues discussed here, as they involved mock juror
assessments of confessions given only after threats or promises. In both,
although jurors tended to reject confessions extracted by threats, they
credited those obtained through suggestions of leniency.
Even assuming that
individual mock jurors arrive at their decisions with the same care as real
world deliberating juries, the application of this research to the false
confession issue is problematic. Confessions induced through leniency can
obviously be truthful confessions. The studies do not prove that jurors fail to
separate the truthful confessions from the false ones because that was not the
hypothesis tested. Indeed, the findings can be read to suggest that the mock
jurors were accurately assessing the facts. For example, in one study, the
jurors rendered guilty verdicts at a rate of nineteen percent in a case without
a confession, twenty-five percent when the facts were varied to include a
confession obtained by a threat, thirty-eight percent when a confession was
obtained by a promise, and fifty-six percent when a confession was obtained
without threat or promise.4s This is precisely the ranking one would hope to
find if jurors were focusing on the factual guilt or innocence of a suspect: the
fewest guilty verdicts when no confession exists, followed by slightly more
guilty verdicts when a confession was obtained by threat, more still when a
confession was obtained by a promise, and the most when a confession was
obtained without threats or promises. Indeed, it is interesting that the authors
of these studies read their research as suggesting, in part, that "people do
clearly recognize the risk of false confessions."
More on point to the issue of juror abilities in this area would be assessing
the accuracy of actual jury verdicts. Leo and Ofshe attempt such analysis,
culling from their case collection the figure that seventy-three percent of the
false confessors who proceeded to trial were convicted. Of course, that
figure is too high given that a number of their "innocent" suspects were quite
probably guilty. But even setting that point aside, the significance of this
percentage is rather limited when we realize, as Leo and Ofshe note, that their
cases "do not constitute a statistically adequate sample of false confession
cases."Instead, it disproportionately reflects, among other things, cases
that are famous or that involved consultation by Leo or Ofshe.
convictions are more likely to gain notoriety than acquittals, and thus "famous"
cases will include a disproportionate number of convictions. Similarly, Leo and Ofshe are presumably asked to consult most often in cases where the defense is
seriously concerned about a wrongful conviction from a false confession. As a
result of these two biasing features, the actual percentage of false confessors
convicted by juries would be far less in a randomly drawn sample.
We must await
future research on an unbiased sample before reaching firm conclusions about
jury capabilities, which should be compared not against a hypothetical, perfect
world but real-world, and hence imperfect, alternatives such as enhanced
All this suggests that the case against jury evaluation of alleged false
confessions has yet to be convincingly made much less the case that adding
post-narrative admission scrutiny would improve the reliability of the system.
Until these points are proven, there is little reason to abandon our trust in
juries and defer to judges to make difficult assessments about the accuracy of
confessions. Black letter law recognizes "the province [and] capacity of juries
to assess the truthfulness of confessions." More generally, we rely on juries
everyday to make difficult assessments about all sorts of complicated issues in
criminal trials, including the ultimate guilt or innocence of criminal
defendants. It is no news that juries occasionally make mistakes in some of
these determinations, including even convicting an innocent person in isolated
cases. But though juries are imperfect, they are deeply rooted in our
constitutional structure, which incorporates the principle that "the Trial of
all Crimes . . . shall be by Jury." In fact, our system probably relies on
juries precisely because of the longstanding belief that they can do a good job
of determining the truth. In view of these facts, it seems hard to argue with
the conclusion that we should permit "a jury rather than a judge to assess the
evidentiary value of an appropriately obtained confession."
Without a clear
case that the alternatives are better, the jury system should govern trials
revolving around claims of false confessions no less than those revolving around
other vital issues.
The issue of false confessions deserves careful review. More generally,
separating the guilty from the innocent is a critically important business, and
the criminal justice institutions involved in this enterprise warrant great
scrutiny. But research on such subjects must grapple with the foundational
question of how to determine whether a defendant is truly "innocent." A
fair-minded approach cannot credulously accept claims of miscarriages offered
from whatever source, but instead must employ a more objective means of
double-checking the criminal justice system.
A detailed examination of the alleged miscarriages from false confessions
assembled by Leo and Ofshe reveals that a significant fraction of the "innocent"
were, in fact, guilty criminals. The miscategorization of these cases stemmed
primarily from reliance on inaccurate second-hand media reports, suggesting the
great value of relying on primary sources for miscarriage research. The
miscategorization also tended to obscure the nature of the false confession
problem. Distilling down the cases to those where wrongful convictions clearly
occurred, the false confession problem is apparently not a pervasive one, but
rather one concentrated among the mentally retarded. Efforts to improve the
quality of police questioning and judicial review of confessions should focus
there, rather than on encouraging a more sweeping, and less likely to be
adopted, substitution of judges for juries as the arbiters of the accuracy of
1. Richard A. Leo & Richard J. Ofshe, The Consequences of False
Confessions: Deprivations of Liberty and Miscarriages of Justice in the Age of
Psychological Interrogation, 88 J. CRIM. L. & CRoGY 429 (1998). Leo and
Ofshe's claims about false confessions were recently featured in page-one
articles in prominent newspapers. See Jan Hoffman, Police Refine Methods So
Potent, Even the Innocent Have Confessed, N.Y. TIMES, Mar. 30,1998, at Al;
Thomas H. Maugh II, Glendale Case Raises Issue of Reliability of Confessions;
Experts Say Some Arise from Unstable Minds of Coercion, L.A. TIMES, Apr. 2 1998,
at Al. 2 See Leo & Ofshe, Consequences of False Confessions, supra note 1,
at 478 tbl. BZ 3. Id. at 493. 4 Id. at 495-%. 5. See Paul G. Cassell, Protecting
the Innocent from False Confessions and Lost
7. See rd. at 530-3Z
8. See id at 53SSZ 9. Richard A. Leo &
Richard J. Ofshe, Using the Innocent to Scapegoat Miranda: Another Repy to Paul
Casseg, 88 J. CRIM L & 0ocY 557 (1998). 10. Id. at 560. 11. Id. at 561.
See, e.g., Maugh, supra note 1, at Al (quoting Richard Leo in writing that false
confessions "happen all the time"); Dateline (NBC television broadcast Dec.
23,1997) (when asked how often innocent people are put behind bars because of
false confessions, Richard Ofshe answers "We know it happens all the time");
Richard Jerome, Suspect Confessions, N.Y. TIMES MAG., Aug. 13,1995, 6, at 28
(quoting Richard Ofshe) ("If it happens just one-half of 1 percent of the time
it still means that hundreds, or perhaps thousands, of people each year are
being unjustly imprisoned."). 13. Professor Welsh White's recently published
essay appears to suffer from a
similar problem It argues that it is
"impossible to estimate" the "number of false confessions." Welsh S. White, What
Is An Involuntary Confession Now?, 50 RUTGERS L. REV. 2001, 2039 (1998). At the
same time, however, it contends that "standard interrogation methods precipitate
a significant number of false confessions." Id. at 2042 (emphasis added). The
article also suggests that confessions derived from interrogation methods with a
"tangible likelihood" of producing a false statement should be inadmissible. Id.
at 2039. It is hard to see how this "likelihood" determination can be made
without further quantitative evidence about the numbers of false confessions.
14. Leo & Ofshe, supra note 9, at 562. 15. Id. at 566 (internal quotation
16. Gisli H. Gudjonsson & Hannes Petursson, Custodial Interrogation:
Why Do Suspects Confess and How Does It Relate to Their Crime, Attitude and
Personality?, 12 PERSON. INDIVID. DIFF. 295, 298 (1991); Gisli H. Gudjonsson
& Jon F. Sigurdsson, How Frequently Do False Confessions Occur?: An
Empirical Study Among Prison Inmates, 1 PSYCHOL. CRIME & L. 21, 25 (1994);
Jon F. Sigurdsson & Gisli H. Gudjonsson, The Psychological Characteristics
of "False Confessor": A Study Among Icelandic Prison Inmates and Juvenile
Offenders, 20 PERSoN. INDIVID. DIFF. 321,324 (1996). 17. Leo and Ofshe argue
that low Icelandic figures for false confessions would not translate to America
because confessions there must be repeated in front of a judge. See Leo &
Ofshe, supra note 9, at 562 n.22. However, this point is misplaced because the
Icelandic studies asked whether prisoners claimed "to have made a false
confession during a police interview." See, e.g., Gudjonsson & Sigurdsson,
supra note 16, at 23 (emphasis added). The studies did not ask whether the false
confession was repeated later in court. Leo and Ofshe also argue that in
contrast to American police, Icelandic police are not legally permitted to
employ deception during interrogations. See Leo & Ofshe, supra note 9, at
562 n.22. This point leaves .open the question of whether the Icelandic legal
norm has been translated into a standard police practice. Moreover, even without
such a norm in the United States, the scant available data suggest that most
police interrogations here do not appear to involve deceptive tactics. See
Richard A. Leo, Inside the Interrogation Room, 86 J. CRIM. L. & CRIMINOLOGY
266, 278 (1996) (finding thirty percent of interrogations involved "confront[ing
a] suspect with false evidence of guilt"). Finally, the extent to which this one
difference is material is unclear,
as Leo and
Ofshe have seemingly concluded
that the false confessions here do not stem from any single police tactic See
Richard J. Ofshe & Richard A. Leo, The Decision to Confess Falsely: Rational
Choice and Irrational Action, 74 DENV. U. L. REV. 979,1115 (1997) (stating that
because false confessions come from the "improper use of interrogation as a
whole, no single procedure can be proscribed and thereby adequately protect the
innocent"). Rather than rejecting the Icelandic studies out of hand, the better
approach is to use them cautiously to illuminate questions about false
confessions, particularly in view of the dearth of available American data. 18.
See Cassell, supra note 5, at 509 (discussing Paul G. Cassell & Bret Hayman,
Police Interrogation in the 1990s: An Empirical Study of the Effects of Miranda,
43 UCLA L. REV. 839 (1996)). 19. See id. at 508-09 (discussing Leo, supra note
17). See also White, supra note 13, at 2040 n.231. 20. See CasselL supra note 5,
at 50910 (collecting studies from New Haven, Denver, Washington, and Pittsburgh,
none of which mention a false confession). 21. See id. at 513.
C. Ronald Huff et aL, Guilty Until Proven Innocent: Wrongful Conviction and
Public Policy, 32 CRIME & DELINQ. 518, 523 (1986). 23. Leo & Ofshe,
supra note 9, at 570. 24. See Jerome H. Skolnick & Richard A. Leo, The
Ethics of Deceptive Interrogation, CRIM. JusT. ETHICs, Winter/Spring 1992, at 10
(citing Huff et al., supra note 22). 25. To disparage my calculations, Leo and
Ofshe quote a sentence from a letter from Professor Albert Alschuler to me that
discussed a preliminary draft of the article. See
& Ofshe, supra note 9, at 571 (citing letter from Albert Alschuler to Paul
Cassell (Aug. 29,1997)). This seems odd to me, since the purpose of circulating
drafts for comments is to obtain frank suggestions for revisions, not provide
ammunition for critics. In any event, the quoted comments in that letter led
directly to substantial revisions in my final published article and accordingly
have no relevance to what appeared in print Professor Alschuler has authorized
me to report that he agrees that the point on which he was commenting was
corrected in the final article. 26. See Cassell, supra note 5, at 520-21. 27.
See id at 538-5Z
28. See Leo & Ofshe, supra note 9, at
571 ("According to Cassell, there are two scenarios that describe how Miranda
harms the innocent."). 29. Id. at 573.
30. Paul G. Cassell, Miranda's Social Costs:
An Empirical Reassessment, 90 Nw. U. L. REV. 387, 486-98 (1996) [hereinafter
Cassell, Miranda's Social Costs]; Paul G. Cassell, All Benefits, No Costs: The
Grand Illusion of Miranda's Defenders, 90 Nw. U.L. REV. 1084 (1996); Paul G.
Cassell, Miranda's "Negligible" Effect on Law Enforcement: Some Skeptical
Observations, 20 HARV. J.L. & PuB. PoL'Y 327 (1997); Paul G. Cassell, The
Costs of the Miranda Mandate: A Lesson in the Dangers of Inflexible,
"Prophylactic" Supreme Court Inventions, 28 ARIZ. ST. LJ. 299 (1996). See also
Raymond Atkins & Paul H. Rubin, The Impact of Changing Criminal Procedure on
Crime Rates (Oct. 23,1998) (unpublished manuscript on file with author) (finding
Miranda increased crime rates by eleven percent).
Paul G. Cassell & Richard Fowles, Handcuff ng the Cops?: A Thirty Year
Perspective on Miranda's Harmful Effects on Law Enforcement, 50 STAN L. REV.
1055 (1998) [hereinafter Cassell & Fowles, Handcuffing the Cops?]. For
discussion of this article, compare John J. Donohue III, Did Miranda Diminish
Police Effectiveness?, 50 STAN. L. REV. 1147 (1998) with Paul G. Cassell &
Richard Fowles, Falling Clearance Rates After
Miranda: Coincidence or Consequence, 50 STAN. L. REv. 1181 (1998)
[hereinafter Cassell & Fowles, Falling Clearance Rates After Miranda].
Without responding in any way to the specific empirical analysis contained in
these lengthy articles, Leo and Ofshe attempt the ad hominem dismissal that
they are simply a "rhetorical weapon" in my "highly charged anti-Miranda
crusade." Leo & Ofshe, supra note 9, at 575. The ideological nature of my
empirical enterprise will come as something of a surprise to at least one of my
co-authors-Professor Richard Fowles, who teaches in the Economics Department at
the University of Utah and describes himself a "neo-Marxist." 32 Richard A. Leo,
The Impact of Miranda Revisited, 861. CRIM. L. & CROLoGY 621, 677-78 (1996).
See Cassell dz Fowles, Handcu"fng the Cops?, supra note 31, at 1064, 1089-90;
Donohue, supra note 31, at 1156; Cassell & Fowles, Falling Clearance Rates
After Miranda, supra note 31, at 118& 34. Samuel R Gross, Loss of Innocence:
Eyewitness Identification and Proof of Guilt, 16 J. LEGAL STUD. 395, 431 (1987)
[hereinafter Gross, Eyewitness Identification]. 35. See id.
See id 37. Ayre Rattner, Convicting the Innocent When Justice Goes Wrong 45-49
& tbl. 8 (1983) (PhD. dissertation, Ohio State University) (on file with
Univ. Microfilms Int'l). 38. Leo& Ofshe, supra note 9, at 573.
EDWARD CONNORS ET AL., CONVICTED BY JURIES, EXONERATED BY SCIENCE: CASE STUDIES
IN THE USE OF DNA EVIDENCE TO ESTABLISH INNOCENCE AFTER TRIAL (1996). 40. See id
at 3 (reporting that the criteria for inclusion in the study included
"subsequent exoneration. . . resulting from post-trial exculpatory DNA tests").
41. See Cassell, supra note 5, at 553-56. See also Leo & Ofshe, supra note
1, at 494 (recommending that all interrogations be videotaped in order to
provide an exact record to assist the judge or jury in determining whether a
confession is voluntary and reliable).
42 See Cassell, supra note 5, at 53940
(collecting references). 43. Leo & Ofshe, supra note 9, at 576. 4 See,
e.g., William J. Stuntz, The Uneasy Relationship Between Criminal Procedure and
Criminal Justice, 107 YALE LJ. 1, 47 (1997) (stating that "it is possible that
Miranda makes it both harder to get confessions from the guilty and easier to
get them from the innocent"); Daniel Givelber, Meaningless Acquittals,
Meaningful Convictions: Do We
Reliably Acquit the Innocent?, 49 RUTGERS L.
REv. 1317, 1379 (1997) (conduding that Miranda is of greatest immediate benefit
to the guilty and that it thus "renders it harder for the truly innocent to have
their voices heard and acknowledged"); JoSEPH D. GRANO, CONFESSIONS, TRuTH AND
THE LAW 215 (1993) (asserting that instead of assisting courts in identifying
situations where reliability might be of special concer=, "Miranda has induced
judges at all levels to split hairs over the meaning of black-letter rubrics");
Louis Michael Seidman, Brown and Miranda, 80 CAL. L. REv. 673, 744-45 (1992)
(stating that in many cases Miranda has "served to insulate the resulting
confessions from claims that they were coerced or involuntary"). Cf Henry J.
Friendly, The Fifth Amendment Tomorrow: The Case for Constitutional Change, 37
U. CIN. L. REV. 671, 680-81 (privilege against self-incrimination deprives "[a]
man in suspicious circumstances but not in fact guilty . . . of official
interrogation of another whom he knows to be the true culprit ...."). 45.
Richard A. Leo, Miranda and the Problem of False Confessions, in THE MIRANDA
DEBATE: LAW, JUSTICE AND POLICE`rc 271, 276 (1998).
Other commentators have also relied on Leo and Ofshe's cases as support for
changes in rules governing police interrogation. See, e.g., White, supra note
13, at 204244.
47. Hugo Adam Bedau & Michael L.
Radelet, Miscarriage of Justice in Potentially Capital Cases, 40 STAN. L. REV.
21, 45 (1987). See also EDWIN M. BORCHARD, CONvICTING THE INNOCENT: SIXTY-FIVE
ACTUAL ERRORS OF CRIMINAL JUSTICE vi (1932); Gross, Eyewitness Identification,
supra note 34, at 396; Samuel R Gross, The Risks of Death: Why Erroneous
Convictions are Common in Capital Cases, 44 BUFF. L. REV. 469, 475 (1996)
[hereinafter Gross, Capital Cases]; Michael L Radelet et al., Prisoners Released
from Death Rows Since 1970 Because of Doubts About Their Guilt, 13 T.M. COOLEY L
REV. 907 910 (1996). Cf Givelber, supra note 44, at 1327 (noting narrowness of
focusing on factually innocent).
48. One public policy reform for reducing
pre-trial trauma to the innocent is improved speedy trial measures, a reform I
have suggested elsewhere for other reasons. See Paul G. Cassell, Barbarians at
the Gates? A Reply to Critics of the Victims' Rights Amendment, 1999 UTAH L.
REv. (forthcoming) (advocating victms' right to a speedy trial); Paul G.
Cassell, Balancing the Scales of Justice: The Case for and Effects of Utah's
Victim's Rights Amendment, 1994 UTAH L. REv. 1373,1402-07 (same). 49. See, e.g.,
BORCHARD, supra note 47; Gross, Eyewitness Identification, supra note 34. 50.
See Leo & Ofshe, supra note 1, at 495 (recommending enhanced judicial
scrutiny of confessions); Richard J. Ofshe & Richard A. Leo, The Social
Psychology of Police Interrogation: The Theory and Classification of True and
False Confessions, 16 STUD. IN L., PoL & Soc'Y 189, 213-15 (1997) (same).
Richard J. Ofshe, Inadvertent Hypnosis During Interrogation, 40 INT'L J.
CLINICAL & EXPERIMENTAL HYPNOsIs 125,151 (1992). 52 See infra notes 350-51
and accompanying text (discussing this approach). 53. Leo & Ofshe, supra
note 1, at 432 r.9 (citing Bedau & Radelet, supra note 1, at 432 TL9 (citing
Bedau & Radelet supra note 47). 54 See Stephen J. Markman & Paul G.
Cassel, Protecting the Innocent: A Response to the Bedau-Radelet Study, 41 STAN.
L. REV. 121, 128-33 (1988) (discussing James Adams case).
See id. at 135 & n.72 (discussing books cited to prove the innocence of
Everett Appelgate that in fact believed him guilty). 56. See id at 139 nL90
(discussing novel on Joe Hill in which protagonist is actually a guilty
murderer). 57. See generally id. at 12640. But see Hugo Adam Bedau & Michael
L. Radelet, The Myth of Infallibility: A Reply to MarEnan and Cassell, 41 STAN.
L. REV. 161 (1988) (responding generally but not defending their analysis of any
particular case). 58. Bedau and Radelet have attempted to deflect criticism of
their earlier "subjective" determination of innocence with a new criterion they
(misleadingly) call the
"Markman-Cassell" criterion: whether a jury
has acquitted a defendant or an appellate court has vacated a conviction Radelet
et aL, supra note 47, at 914. Under this bizarre standard, one can talk freely
about such "innocent" defendants as OJ. Simpson, Dan White (murderer of San
Francisco supervisor Harvey Milk), Lock Nelson (murderer
Yankel Rosenbaum), and Stacey Koon and Laurence Powell (members of the Los
Angeles Police Department who beat Rodney King and were acquitted by one jury).
See generally GEORGE P. FLETCHER WITH JUSTICE FOR SOME: VICTIMS' RIGHTS IN
CRIMINAL TRIALs (1995) (discussing the miscarriages of justice from these
acquittals) Cf. Louis B. Schwartz, "Innocence""-A Dialogue with Professor
Sundby, 41 HASTINGS L.J. 153, 154 (1989) (stating that "[d]efendants are
acquitted for many reasons, the least likely being innocence"). Statistics cited
by Professor Givelber may suffer from a similar flaw. See Givelber, supra note
44, at 133638 (relying on raw data about number of acquittals to apparently
reach conclusions about number of innocents convicted). 59. Leo & Ofshe,
supra note 1, at 436. 60. For discussion of how these nine cases were
identified, see infra note 392. 61. Leo & Ofshe, supra note 1, at 436. 62
Id at 467.
63. See Fairchild v. Lckhart 675 F. Supp. 469,488 (E.D. Ark 1987). 64.
See id at 489. 65. See id
66. See id at 488-89. Cf. California v.
Hodari D., 499 U.S. 621, 623 n.9 (1991) (noting "proverbial common sense" that
flight suggests guilt and ating Proverbs 28:1, "The wicked flee when no man
pursueth"). 67. Fairchild, 675 F. Supp. at 474. 68. Leo & Ofshe, supra note
1, at 467 (citing Execution of Retarded Man is Fought, N.Y. TIMES, Aug. 31,1995,
at B12). 69. John Brummett, The Fairchild Issues Won't Die, Arkansas
Democrat-Gazette, Aug. 29,1995, at 7B. Accord 1 ALMANAc OF THE FEDERAL
JUDICIARY, at 8th Cir. p. 9 (1997-2) (noting lawyers gave Eisele's legal skills
"very high-narks" and quoting one lawyer as
">le was voted one of the best district judges in the United States"). 70.
Fairchild v. Lpckhart, 744 F. Supp. 1429,1435 (E.D. Ark. 1989). 71. Fairchild,
675 F. Supp. at 491. The fact that the allegedly "coerced" confession was
videotaped casts doubt on the coercion claim Police bent on coercing a false
confession would have found it far simpler to extract a written false confession
than a videotaped one. See Fairchild, 744 F. Supp. at 1499. 72 744 F. Supp. at
1437 (emphasis added). A court-appointed psychiatric expert later looked at the
tape and likewise concluded Fairchild appeared to be "spontaneous, relaxed." It
at 1483. 73. Fairchild v. Norris, 869 F. Supp. 672, 681 (E.D. Ark. 1993). 74 Id
75. Leo &
Ofshe, supra note 1, at 467 n316. 76. See Fairchild v.
Norris, 21 F.3d 799, 803 rfl (8th Cir. 1994). Green was out of the state at the
time of the crimes. See id. 77. See supra notes 64 and 65 and accompanying text
78. Leo & Of ihe, supra note 1, at 467 n317. 79. Fairchild, 675 F. Supp. at
474. 80. Id. See also Fairchild, 744 F. Supp. at 1500-01,1505. 81. Fairchdd, 744
F. Supp. at 150Z 82 Id. at 1501. See also id at 15015 (reviewing evidence
connected with the watch). 83. Leo and Ofshe, supra note 1, at 467 n.316.
Faircid, 744 F. Supp. at 1503. 85. See id at 1504. 86. Id at 1505. 87. Id. 88.
See Leo & Ofshe, supra note 1, at 467 n.314 (citing forensic evaluation by
Professor Ruth Luckasson and Dennis W. Keyes conduding Fairchild had an IQ in
89. Fairchild, 744 F. Supp. at 146 90. Id. at 1467. 91. Id at 1496. 92
See Fairchild v. Lockhart 979 F.2d 636 (8th Cir. 1992). 93. See Fairchild v.
Norris, 876 S.W.2d 588 (Ark.1994). 94. 20/20, Confession at Gunpoint? (ABC
television broadcast, Mar. 29,1991).
95. The district court had previously found
Fairchild willing to lie under oath, and indeed recited lengthy transcript
passages that showed Fairchild had lied about the same issues he discussed with
20/20. See Fairchild, 744 F. Supp. at 1489. This finding did not appear in the
20120 program 96. See Fairchild, 979 F.2d at 638. Unfortunately, I have been
unable to locate a copy of these findings, as they now appear to be missing from
the district court Quotations in this paragraph are from the court of appeals'
description of the district court's findings.
The program also seems to focus on whether the confession was coerced, not
whether it was accurate-at one point suggesting that it was brutality against
Fairchild that "cracked the Marjorie Mason case." 20/20, supra note 94.
107. Telephone Interview with Rick Whitt,
Norfolk polio, one of the original investigators on the case (Oct 6, 1997)
[hereinafter Whitt Interview]. 108. Giarratano, 266 S.E2d at 97. The details of
this confession are recounted at id at 96-97. 109. See id at 97. 110. See id at
111. When police arrived at the scene, access to the girl's bedroom "was
barred by the presence * . . of two vicious dogs, one being a German Shepherd."
Id Giarratano, however, was well known to the dogs, as he had lived in the
apartment for several weeks. See Whitt Interview, supra note 107. 112.
Giarratano also said that he threw the knife "out in the yard." Giarratano, 266
S.E.2d at 97. In more recent accounts, Giarratano has told his supporters that
he confessed to throwing the knife out in the "backyard." See John Harris, A
Widely Watched Date With Death; virginia Inmate's Plea for Clemency Draws
National Attention, WASH. PosT, Feb. 17,1991, at Al, cited in Leo & Ofshe,
supra note 1, at 490 n.507. He then claims that the police failure to discover
the knife proves his confessions were false. However, Giarratano's statement
about the knife did not occur until February 7, two days after police had
discovered the bodies. See Giarratano, 266 S.E.2d at 95-97. Thus, the search for
evidence that immediately followed the discovery of the bodies was not
with the intent of discovering a knife "out in the yard" but was, instead,
"routine neighborhood canvas." Whitt Interview, supra note 107. In any event the
failure to find a knife in an unspecified public area (with a large amount of
foot traffic) is unremarkable and, it bears emphasizing, Giarratano's confession
that he took the knife out of the apartment is entirely consistent with the fact
that the knife was not found in the apartment
Giarratano, 266 SE.2d at 97. 114. Id. at 98. 115. Id.
Psychiatric Evaluation of Dr. C Robert Showalter, Clinical Director, Forensic
Psychiatry Clinic, University of Virginia Hospital at 8 (Aug. 2,1979)
[hereinafter Dr. Showalter Evaluation] (on file with author). 117. See$ 118. Id.
119. Giarratano, 266 S.E.2d at 102 See also Dr. Showalter Evaluation, supra note
116, at 9-13. 120. See Giarratano, 266 S.E2d at 101; Dr. Showalter Evaluation,
supra note 116, at 13
(noting "chronic and acute" impairment of
Giarratano's "capacity to control his behavior" which is reflected in his
history of "assaultive behavior"). 121. Leo & Ofshe, supra note 1, at 489
(citing Pamela Overstreet, Rally Scheduled on Behalf of Condemned Killer, U.P.I.
Regional News (Feb. 7,1991)). 122. Giarratano, 266 S.E.2d at 99. See also
Certificate of Analysis of June E. Browne to Norfolk Police Dept at 2 (Mar. 16,
1979). While an additional seven pubic hairs were not consistent with
Giarratano's sample, these hairs were recovered in areas that suggested that
they might have come from the victim. See Certificate of Analysis, supra, at 2.
No pubic hair samples from the victim were submitted for testing. Id 123. See
Leo & Ofshe, supra note 1, at 489 n.503 (citing June Arney, Joseph M.
Giarratano; Bloody Boot Prints Led Him To Doubt His Own Confession,
VIRGINIAN-PILOT & THE LEDGER STAR, June 26, 1994, at A15 (quoting
extensively from interview with Giarratano and his defense lawyers)). 124 See
Giarratano, 266 S.E2d at 98-99. Giarratano lived at the apartment until his
precipitous flight to Florida after the murders, so it is unclear what relevance
the fingerprints have in any event. 125. See id at 99. Leo and Ofshe further
claim that bloody shoeprints did not match Giarratano's boots. See Leo &
Ofshe, supra note 1, at 489. But the prosecution never claimed that they did.
The shoeprints were found in a pool of blood on the stairway landing, where the
stabbing occurred. See Whitt Interview, supra note 107. Presumably the pool of
blood spread out after Giarratano committed the murder, so the failure to find
his shoeprints would not be surprising. Later a number of people stepped in the
pool of blood, including the discoverer of the body, the emergency paramedics
who responded, and various other persons responding to the double homicide. Id
126. See Leo & Ofshe, supra note 1, at 489. 127. Letter from Pat W.
Wojtkiewicz to Marle Deans, Mar. 19, 1989 (on file with
author). 128. Report of Jeffrey T. Barth, Director, Neuropsychology
Assessment Laboratory, on Joseph Giarratano, at 2, 3 (Dec. 1, 1986) (on file
with author). 129. See Showalter Report, supra note 116, at 5.
Giarratano himself wrote a law review article on the risk of executing the
innocent Joseph M. Giarratano, "To the Best of Our Knowledge, We have Never Been
Wrong:" Fallibility vs. Finality in Capital Punishment, 100 YALE L.J. 1005
(1991). Omitted from the article (among other subjects) was any discussion of
the adverse effect that spurious claims of innocence from prisoners like
Giarratano have on those legitimately seeking to have their convictions
overturned. 131. See State v. Ingram, No. 13613-9-II, slip op. at 1 (Wash. Ct.
App. Jan. 22,1992). 132 See id at 2.
133. Id at 3. 134, See id 135. See id
See id at 34 See also Report of Proceedings at 617, Washington v. Ingram, No.
88-1-752-1 ghurston Cty. Sup. Ct 1990) [hereinafter Ingram Proceedings Tr.].
137. Washington Clemency and Pardons Board, Tr. of Hearing on Paul Ingram (June
7, 1996) at 16 (statement of Gary Tabor quoting report from Ofshe). Accord
Ingram Proceedings Tr., supra note 136, at 912 (quoting report from Ofshe that
he had "no opinion if the daughters were raped here"); id. at 574 (testimony
from Ofshe to this effect).
138. Ingram, No. 13613-9-II, slip op. at 34
139, Id. at 4 140. Ingram Proceedings Tr., supra note 136, at 901. 141. Leo dz
Ofshe, supra note 1, at 38.
142. Ingram Proceedings Tr., supra note 136,
at 904. 143. It at 906. 144. Ingram, No. 13613-9-II, slip op. at 8 (apparently
quoting trial judge). 145. Id
146. Order Granting Summary Judgment at 5,
Ingram v. Riveland, No. C935399(WD) FDB (W.D. Wash. May 5,1994). 147. Ingram
Proceedings Tr., supra note 136, at 908. Ofshe's expert opinion in a similar
case was also found to be unpersuasive. See Lynne Henderson, Suppressing Memory,
22 LAw & Soc. INQ. 695, 727 (1997) (describing case of Lynn Crook). 148.
Ingram Proceedings Tr., supra note 136, at 912. 149. Id. at 910-11. See also
DANIEL BRowN ET AL., MEMORY, TRAUMA TREATMENT, AND THE LAW 607 (1998)
(describing another repressed memory case in which Ofshe's expert testimony was
rejected on this ground). 150. See Ingram Proceedings Tr., supra note 136, at
151. Id at 911-12
Ofshe's experiment was to tell Ingram that one of the
"facts" of the case was that Ingram had made his son and daughter have sex
together while Ingram looked on. See Ofshe, supra note 51, at 147. Ofshe
conducted the experiment the first time he met Ingram when he "didn't know much
about the case." Ingram Proceedings Tr., supra note 136, at 577. Both the
daughters, however, had in fact alleged sexual abuse by their brothers and there
were additional allegations that Ingram had allowed other people to have sex
with his children in his presence. Id. at 579-80, 644. See also infra note 166
(noting recent disclosure by brother of sexual abuse by Ingram). Experts on the
sexual abuse of children have also criticized Ofshe's experiment, concluding
that the event Ofshe fed to Ingram "was never documented to be an unlikely
occurrence." Karen A. Olio & William F. Cornell, Making Meaning Not
Monsters: Reflections on the Delayed Memory Controversy, 3 J. CHILD SEXUAL ABUSE
77, 87 (1994) (hereinafter Olio & Cornell Making Meaning Not Monsters). See
also Henderson, supra note 147, at 729 (raising the question of the ethics of
such an experiment and concluding "Ofshe ought not to have used the very subject
under investigation-that is, sexual abuse of Ingram's children"); Karen A. Olio
& William F. Cornell, The Ingram Case: Pseudomemory or Pseudoscience?,
VIOLENCE UPDATE, June 1994, at 3 [hereinafter Olio & Cornell, The Ingram
Case] (raising questions about the experiment). 152. Ingram Proceedings Tr.,
supra note 136, at 912. Several leading experts on memory have also concluded
that Ofshe made the "logical error" of simply assuming that whatever followed
from the hypnosis "must be false." BRowN ET AL., supra note 149, at 411. In
general, Ofshe has been charged with trafficking "in a bizarre misreading of
critical concepts." Joan C. Golston, A False Memory Syndrome Conference:
Activist Accused and Their Professional Allies Talk About Science, Law and
Family Reconciliation, 5 TREATING ABUsE TODAY 24, 26 (jan.1995). 153. Ingram
Proceedings Tr., supra note 136, at 912-13. According to an account of the
conversation, Ofshe strongly suggested to Ingram that the confession might be
fantasies in the following terms: Ofshe: So what you are talking about, what is
in those books may very well be nothing more than the same kinds of fantasies
that I think are going on in this case.
Ingram: But how do you prove that they are
fantasies? Ofshe: Nobody can prove that they are not State v. Quattrocchi, No.
P92-3759, at 947 (Providence Sup. Ct Apr. 1,1998) (prosecutor quoting transcript
during cross-examination of Richard Ofshe).
Ingram Proceedings Tr., supra note 136, at 917. 155. Id. at 917-18. 156. Id at
902 157. Id at 902. 158. Id at 906. See generally Ofshe, supra note 51
(providing other examples). 159. Ingram Proceedings Tr., supra note 136, at 906.
160. See id
161. Id. at 907. The judge's finding that Ingram "did it" demonstrates
that the plea was upheld not on the narrow procedural grounds that he had failed
to establish a basis for withdrawal, but rather because it was true. Indeed, the
trial judge was required to consider the supporting evidence for the plea under
Washington law, which allows withdrawal of pleas on grounds of "manifest
injustice." State v. Taylor, 521 P.2d 699, 700-01 (Wash. 1974). Insufficient
evidence to support a plea constitutes manifest injustice. See, e.g., State v.
Zumwalt, 901 P.2d 319, 322-24 (Wash. Ct App. 1995) (reversing trial judge and
allowing withdrawal of plea because of insufficient factual basis); State v.
D.T.M., 896 P.2d 108,110-11 (Wash. Ct. App. 1995) (same). 162. See State v.
Ingram, No. 13613-9-II (Wash. Ct. App. Jan. 22,1992). 163. See Ingram v.
Riveland, No. C93-599WD (W.D. Wash. May 5, 1994). 164. See Ingram v. Riveland,
No. 94-35627, slip op. at 2 (9th Cir. June 26, 1995) (concluding "[m]ost of the
evidence strongly supports the finding that Ingram was not coerced" into
Ofshe, supra note 51, at 151. Even if
Ofshe's article developed the argument for Ingram's innocence, the article
itself has encountered a fair amount of criticism from experts on child sexual
assault that, in my view, more than a few neutral observers would find
persuasive. See, e.g., BROWN ET AL., supra note 149, at 396 (calling the article
a "questionable source"); Olio & Cornell, Making Meaning Not Monsters, supra
note 151, at 87 (concluding Ofshe's "[c]laims that Ingram's confessions were
based on pseudomemories seem[l doubtful"); Robert M. Reece, Making Meaning-A
Pediatrician's View, 3 J. CHILD SEXUAL ABUSE 119 (1994) (defending Olio and
Cornell after attack by Ofshe); Karen A. Olio, Truth in Memory: Comments on
Elizabeth Loftus's Reality of Repressed Memory', AM. PSYcHOLOGIST, May 1994, at
442 (concluding Ofshe's experiment was flawed); Karen A. Olio & William F.
Cornell, The Facade of Scientific Documentation: A Case Study of Richard Ofshe's
Analysis of the Paul Ingram Case (unpublished manuscript, on file with the
Harvard Journal of Law & Public Policy) (concluding that Ofshe's paper
"lack[s] empirical data and [contains] serious methodological flaws"); Olio
& Cornell, The Ingram Case, supra note 151, at 5 (concluding "Ofshe's
findings in the Ingram case are, at best, speculative"). Cf. Verbatim Report of
Proceedings at 18, 27, Crook v. Murphy, No. 91-2-0011-2-5 (Super. Ct. Benton
County, Washington, Mar. 4, 1994) (trial court finds in an incest case that
Ofshe "resolved at the outset to find a macabre scheme of memories progressing
toward satanic cult ritual and then creates" such a scheme and that Ofshe's
credibility was "limited by his stridency"). Leo and Ofshe's other source about
the case is the book LAWRENCE WRIGHT, REMEMBERING SATAN (1994) (based on two New
Yorker articles). It is not at all clear why
Wright's book, written to provide a lively account of the events, should
be preferred over impartial judicial findings. For example, a professor at the
Harvard Medical School recounted that when Wright contacted her, his "mind was
made up"; she ended the conversation wondering "whether quaint ethical
principles like accuracy and impartiality had become obsolete." Judith Herman,
Presuming to Know the Truth, 48 NIEMAN REPORTS 43, 44 (1994). See also infra
note 167 (noting Wright's efforts to obtain clemency for Ingram). Also, to make
its storyline more believable, the book inexplicably omits any discussion of the
trial court findings concerning the incredibility of Ingram See WRIGHT, supra
note 165, at 187-88 (noting that Ingram filed a motion to withdraw plea, but not
discussing hearings and ultimate rejection of that motion). 166. Washington
Board of Clemency and Pardons, Tr. of Hearing on Paul Ingram June 7, 1996) at
18-19 (testimony from Chad Ingram concerning physical and sexual abuse over an
extended period of time by his father). Ofshe instantly reached the diagnosis
(without ever talking to Chad Ingram) that the charges were attributable not to
abuse but to a feeling "there must be some reason why my life is a disaster." Cf
AMERICAN PSYCHIATRIC ASSOCIATION, THE PRINCIPLES OF MEDICAL ETHICS: WITH
ANNOTATIONS ESPECIALLY APPLICABLE TO PSYCHIATRY 9 (1998 ed.) ("on
occasion psychiatrists are asked for an opinion about an individual who is in
the light of public attention .... It is unethical for a psychiatrist to offer a
professional opinion unless he/she has conducted an examination and has been
granted proper authorization for such a statement").
See Rachael Zimmerman, Son of Deputy Says He Was Sexually Abused: Dramatic
Report in Testimony to Clemency Board, SEATTLE POST-INTELLIGENCER, June 8, 19%,
at B1 (noting testimony from Richard Ofshe and Lawrence Wright, who "cast off
the typical role of journalist-as-objective-observer to testify"). 168. See
Washington Board of Clemency and Pardons, Minutes, Dec 13,1996 (threeto-one vote
to deny clemency). 169. The Lapointe case is not only discussed by Leo and
Ofshe, but also forms the basis for the introduction to Welsh S. White, False
Confessions and the Constitution: Safeguards Against Untrustworthy Confessions,
32 HARV. C.R.-C.L. L. REV. 105, 105-06 (1997). White, however, concedes that
"experts disagree" about whether the Lapointe case was a miscarriage of justice.
Id at 131. 170. See Leo & Ofshe, supra note 1, at 459 n.227 (citing DONALD
S. CONNERY, CONvICTNG THE INNOCENT: THE STRUGGLE OF A MURDER, A FALSE
CONFESSION, AND THE STRUGGLE TO FREE A "WRONG MAN" ix-xii (19%)). The better
part of the tract is a transcript of a day-long public forum designed to "learn
how we can help Richard better." CONNERY, supra note 170, at 60. It forum
featured Professor Ofshe as one of the speakers. Id. at 95-108.
Leo & Ofshe, supra note 1, at 459. 172. State v. Lapointe, 678 A.2d 942,
94546 (Conn. 1996). As Mike Wallace reported in a Sixty Minutes story about the
case, Lapointe had Type A blood, which "narrowed it down to 30 percent of the
nation's population." Mike Wallace reported, but did not discuss, Lapointe's
secretor status or lack of sperm. Sixty Minutes: Did He Do It?, (CBS television
broadcast June 30,1996). Instead, the story deceptively said that police had
unsuccessfully "tried to narrow it further." Id. At trial, Lapointe apparently
offered an elaborate theory about how the fire might have "cooked" the semen,
removing all traces of sperm The jury, of course, was not required to accept all
the factual premises of this theory.
173. See id at 945 174. See id at 945. 175.
Id. at 946. 176. Id. 177. See id 178. Id
179. See id at 948, 955. In another instance
of trying to cover up for her husband, Lapointe's wife falsely told police early
in the investigation, in the presence of Lapointe, that his blood was Type Q.
See id. at 946. 180. Id. at 955.
181. Id. at 949. 182 See id at 949. 183. See
id at 949-50. 184. See id at 952 n,23, 944. 185. See id. at 952 n.23, 945.
See State's Exhibit 18, Autopsy Report of Dr. Arkady Katsnelson at 5,
Connecticut v. Lapointe, No. CR89-107933 (Sup. Ct. Hartford 1992) (on file with
187. See Lapointe, 678 A.2d at 951. 188. See id at 952n.23, 944. 189. Leo
& Ofshe, supra note 1, at 461. 190. Connecticut v. Lapointe, No.
CR89-107933 (Sup. Ct. Hartford May 7,1992), trial
at 69,118 [hereinafter Lapointe Trial Tr.]. 191. See State's Exhibit 18, Autopsy
Report of Dr. Arkady Katsnelson, Connecticut v. Lapointe, No. CR89-107933 (Sup.
Ct. Hartford 1992). 192. See Lapointe Trial Tr., supra note 190, at 54-120. 193.
Early in the investigation, one of the detectives who questioned Lapointe
thought that a foreign object might have been involved, based on his reading of
the autopsy report See Lapointe Trial Tr., supra note 190, at 1312-13 (testimony
of Detective Lombardo). However, contrary to Leo and Ofshe's suggestion that
Lapointe was simply confessing to the police theory of the crime, the detective
recorded Lapointe's confession to penile rape. 194. Leo & Ofshe, supra note
1, at 460. 195. See Lapointe, 678 A.2d at 944. 1%. See id at 945 n9. 197.
Statement of Richard Lapointe, July 4,1989, at 2 (on file with author).
Leo and Ofshe note that a Sixty Minutes story about the case four years after
the verdict relied on two witnesses who said they saw a man not matching
Lapointe's description running from the apartment building where the crime was
committed. Sixty Minutes said the "police discounted these eyewitnesses," but
does not explain why. The description of the running man matched that of a man
who was involved in a hit-andrun accident at the same time. The police
investigated the possibility that he was involved in the murder but were able
dear him through blood typing. Telephone Interview with Detective Paul Lombardo,
Manchester Police Dept (Oct 22,1997). In any event, a "running" man was not at
all unusual at this location, where pedestrians had to move quickly to cross
heavy traffic. See id 199. See Steve Jensen, Detectives in Lapointe Murder Case
Speak Out; Police Say Court Ruling Vindicates Them, HARTFORD COURANT, July 21,
1996, at Cl (victim's daughter reports that because of all the "falsehoods about
'poor Richard' we haven't been able to relax for one minute").
Leo & Ofshe, supra note 1, at 461. 201. For a description of the
confessions, see Misskelley v. State, 915 S.W.2d 702 (Ark. 1996). The actual
confession transcripts are contained in 3 Abstract and Brief for Appellant
Jessie Lloyd Misskelley, Jr., at 479-513, Misskelley v. State, No. CR 9400848
(Ark. 1995) (voL 3 at 479-513) [hereinafter Misskelley Trial Abstract]. 202 See
Echols v. State, 936 S.W.2d 509 (Ark.1996). 203. See Bruton v. United States,
391 US. 123, 126 (1968) (holding codefendant confession inadmissible against
other defendants on hearsay grounds). 204. See Misskelley, 915 S.W.2d at 709;
Echols, 936 S.W.2d at 518; Misskelley Trial Abstract, supra note 201, at 290.
205. See Echols, 936 S.W.2d at 518, 519-20. In at least one of the admissions,
Baldwin said that Misskelley had "messed everything up." Echols v. State, No.
CR-94-009 (Ark. 1995) (voL 1 at 380).
206. See Echols, 936 S.W.2d at 521. Ofshe
has elsewhere apparently suggested that Damien Echols, too, was wrongfully
convicted. See Richard Ofshe, "I'm Guilty if You Say So, " in CONNERY, supra
note 170, at 95, 101 (noting that police in the case "fastened on a young man
who, unfortunately, called himself Damien" (emphasis added)). 207. See
Misskelley, 915 S.W.2d at 708. Some of the discrepancies appear to have been
deliberate ploys by Misskelley to make parts of his confession seem less
believable. See infra note 224 and accompanying text 208. See Miskelley, 915
S.W.2d at 708. 209. See Misskelley Trial Abstract supra note 201, at 485-86
(confession transcript). See also Misskelley, 915 S.W.2d at 708. 210. See
Misskelley Trial Abstract, supra note 201, at 211-12; Misskelley, 915 S.W.2d at
708. Misskelley failed a polygraph test before confessing. Misskelley Trial
Abstract supra note 201, at 220-23.
211. Leo & Ofshe, supra note 1, at 462.
See also CONNERY, supra note 170, at 102 (quoting Ofshe arguing "there's no way
[Misskelley] could have committed this crime because he was thirty-five miles
away . . . at an amateur wrestling arena"). 212. GUY REEL ET AL., THE BLOOD OF
INNOCENTS: THE TRUE STORY OF MULTIPLE MURDER IN WEST MEMPHIS, ARKANSAS 91
(1995). 213. See Misskelley Trial Abstract supra note 201, at 340-41, 34243.
REEL ET AL., supra note 212, at 293. One of Leo and Ofshe's supporting articles
for the alibi defense bears the revealing title "Friends Challenged on
Misskelley Alibi." Leo & Ofshe, supra note 1, at 462 n.252 (citing Glen
Chase, Friends Challenged on Misskelley Alibi, ARKANSAS DEMocRAT-GAZETTE, Feb.
1,1994, at lA). This article notes that prosecutors spent the day "picking
apart" the alibi testimony. 215. A copy of Ofshe's testimony is available on the
Free the West Memphis Three website (visited Jan. 13, 1999)
<http://www.wm3.org/html/confession analysis.html> [hereinafter Ofshe's
Misskelley Testimony], apparently organized by death-penalty opponents trying to
block Echols' death sentence. For an interesting competing website with evidence
and analysis supporting Misskelley's guilt, see the Midsouth Justice Page
(visited Mar. 6, 1999) <http://www.
angelfire.com/ar/necromancer/index.html>. 216. Reporters summarized parts of
Misskelley's second confession as follows: When they saw the three boys come
into the woods, they hid. Echols grabbed
Michael Moore and, when Christopher and
Steven came to his rescue 'hitting Damien, trying to help their friend,'
Misskelley and Baldwin joined the fray. The cops reported that they asked
Misskelley how the boys were kept under controL 'They were like puppies,' he
told them. 'When you whoop a puppy and tell it to stay, it will.' In his flat
drawl, Misskelley then described the removal of Chris Byers' sexual organs.
'Blood went everywhere,' he said. REEL ET AL., supra note 212, at 305-06. I rely
on a secondary source for the description of this confession because the police
reports describing it are apparently unavailable. 217. See Statement of Jessie
Misskelley, Jr. at 1-5 (Feb. 17,1994)(transcript on file with author).
See id. at 7, 9. This timing fits the crime. See Leo and Ofshe, supra note 1,
at 461 (noting that the boys disappeared some time after 5:30 p.mr and arguing
that Misskelley's initial confession was at odds with this fact). 219. See
Statement of Jessie Misskelley, Jr., supra note 217, at 12.
See id at 12-13. 221. See id at 13-14. 222 Id at 20. 223. See id at 24.
Id. at 23. Leo and Ofshe rely heavily on the discrepancy between Misskelley's
statement about rope and the shoelaces found at the crime scene to conclude
Misskelley is innocent. See Leo and Ofshe, supra note 1, at 461-62 225. See
Statement of Jessie Misskelley, Jr., supra note 217, at 8, 26-27. 226. See REEL
ET AL., supra note 212, at 315-16 (recounting statement by prosecutor Brent
230. See id at 901. 231. Leo and
claim that Page's later confession was disproven by the failure of the search
dogs to pick up a trail of blood near the area during the search the day after
the murder. See Leo & Ofshe, supra note 1, at 456. In fact, however, while
one dog did not alert to the area, another dog did begin digging wildly at the
ground at the site where Lee's body was ultimately discovered. The handler,
however, misread the signal. See Page, 2 Cal.Rptr.2d at 901 & n.3. 232.
Page, 2 Cal.Rptr.2d at 904. In another article, Leo and Ofshe report incorrectly
that Page was ' falsely told that he failed the polygraph." Richard J.
& Richard A. Leo, The Decision to Confess Falsely: Rational Choice and
Irrational Action, 74 DENV. U. L. REv. 979,1041 (1997) (emphasis added). 233.
Page, 2 Cal.Rptr.2d at 904. 234. See id at 905.
Id. at 905-06. 236. See at 9tS06. 237. See id
See Leo & Ofshe, supra note 1, at 455-457 (citing Jack Page, A Question of
Justice: A Father's Plea for Bradley Page, EAST BAY EXPRESS, Oct 12, 1990, at 1;
ANTHONY PRATKANSIS & ELLIOT ARONSON, THE AGE OF PROPAGANDA: THE EVERYDAY USE
AND ABUSE OF PERSUASION (1991); MELANIE THERNSTROM, THE DEAD GIRL (1990)). 239.
Leo & Ofshe, supra note 1, at 455. 240. Page confessed that he found Lee on
the "east side of the Skyline [drive]." People v. Page, No. 81366, trial tr. at
78% (Alameda Cty. Superior Ct. Apr. 8,1988) (closing argument playing tape of
confession) hereinafter Page Trial Tr.]. In a later attempt to recant his
confession, Page claimed to have simply "assumed" she was on the east side of
the road. See Page, 2 Cal.Rptr.2d at 906. 241. Leo and Ofshe claim that Page's
confession "did not fit the known crime facts" because "[i]t was not until days
after the interrogation that the coroner determined that Lee had three large
breaks at the base of the skull." Leo & Ofshe, supra note 1, at 455. In
fact, police knew that the back of Lee's skull had been injured immediately when
she was uncovered. What they did not know at that time-and thus did not know
when they questioned Page-was that her nose bone and right eye socket had been
The pathologist only later discovered these injuries. See Page Trial Tr.,
supra note 240, at 7480; Telephone Interview with Alameda County Asst D.A. Ken
Burr (Nov. 7,1997). He determined that they could have been caused by someone
administering a backhand blow to the nose. See Page, 2 Cal.Rptr.2d at 903. 242
Page, Cal.Rptr.2d at 915. Page confessed he had buried Lee's body. See Page
Trial tr., supra note 240, at 7907. Later, Page argued that he simply "surmised
that since the dogs did not find [Lee], she must have been buried." Page, 2
Cal.Rptr.2d. at 906. Leo and Ofshe also claim that "the blanket" found in Page's
car did not link up with the confession to having sex on it It would be
astonishing to find evidence of the murder in Page's car five weeks later; he
had plenty of time to dispose of it. The woman who was with Page on the day of
the murder testified that a blanket was in Page's car the day of the murder, a
blanket that could not be found five weeks later when the police searched the
car. See Page Trial Tr., supra note 240, at 7801. 243. Page, 2 Cal.Rptr.2d at
915. 244. See Leo & Ofshe, supra note 1, at 456.
The program's producers declined an offer to read the trial transcript before
airing the program Telephone Interview with Alameda County Asst D.A. Ken Burr
(October 3,1997) [hereinafter Burr Interview]. 246. Leo & Ofshe, supra note
1, at 457. 247. See Burr Interview, supra note 245. Ihde's other two killings
could not have been Lee, because they involved a woman in Washington State (Ihde
was in prison for this murder when he bragged about the two other killings) and
a woman in the San Francisco area (a DNA match with semen found in the victim
led to his successful capital prosecution for this crime). See id 248. Among
other differences, Ihde's victims were found naked from the waist down. See Burr
Interview, supra note 245. Lee was found with her pants in place. See id Page
confessed to pulling them up after having sex with her body. See id. 249. Leo
& Ofshe, supra note 1, at 457.
250. Page, 2 Cal.Rptr.2d at 907. See also
Berkeley Police Department Press, Nov. 9, 1984 (information wanted poster with
sketch of "van man") (in possession of author); Page Trial Tr., supra note 240,
at 7425 (noting weight placed at 270 in an initial call). 251. While driving
onto a freeway onramp, the witness saw a woman being pulled into a van The
witness's identification of the woman as Lee was made under very suggestive
circumstances and included a description of the woman's clothing that was
inconsistent with the clothing worn by Lee at the time of the murder. The area
where the woman was pulled was a steep slope, where a person might need help to
get back up. See Page Trial Tr., supra note 240, at 7423-26. 252. Burr
Interview, supra note 245. 253. See id 254. See Leo & Ofshe, supra note 1,
255. Letter from Dennis Cadra to Gov. Ann Richards (Dec. 31, 1991)
[hereinafter Cadra Letter]. The letter was the gist of two articles to the same
effect, which in turn form the basis for Leo and Ofshe's description of the
case. See Ginny Carroll, True Confessions-Or False?, NEWSWEEK, Sept 13,1993, at
41; Howard Swindle, Shadows of a Doubt, DALLAS MORNING NEWS, July 4,1993, at Al.
256. Cadra Letter, supra note 255, at 2 (emphasis in original).
Id. at 6 (second emphasis added). 258. The transcript is no longer available at
the Odessa courthouse or district attorney office. I am greatly indebted to
Howard Swindle of the Dallas Morning News, who kindly agreed to provide me with
his copy of the transcript 259. Cadra Letter, supra note 255, at 5. 260. Trial
Transcript at 102-04, 109, State v. Reyos, No. A-14,583 (June 8, 1983)
hereinafter Reyos Trial Tr.]. 261. Id at 110 (emphasis added). 262. The letter
attempts to exclude the 22nd because the evidence established "Mr. Reyos [was]
already drunk and at a garage until after 6:00 on that date and was later
arrested and spent the night of the 22nd in the Roswell jail." Cadra Letter,
255, at 6. However, that would leave ample time for Reyos to meet Myers
after leaving the garage around 6:00 p.rn., hang out and drink with him for an
hour, and then later be arrested. Also, while the defense called numerous
witnesses to bolster other parts of Reyos' story, it apparently never (so far as
appears in the trial transcript) called a witness to establish either the fact
of the arrest that night or its time; instead it relied solely on Reyos' own
testimony. See Reyos Trial Tr. June 8), supra note 260, at 116. 263. See Reyos
Trial Tr. (une 9), supra note 260, at 39-40, 44. On a different occasion, Reyos
also told the police he had an alibi in Albuquerque. See id. at 20. 264. See
Reyos Trial Tr. (June 8), supra note 260, at 21-28. Gonzalez also testified that
Reyos was wearing green that day. See id. at 25. Reyos was wearing a green army
jacket when arrested. See id. June 7) at 73. 265. If anything, the cross
examination bolstered the testimony. While the defense attorney suggested the
witness "didn't think much about [seeing Reyos]," Gonzales answered: "No, I told
my husband about it I told him right away ...." Id. aune 8) at 3Z She also
reported the matter to police several days later when the victim's death was
discovered. See id. She was "absolutely certain" about the day. Id. at 36-37.
266. See Reyos Trial Tr. Oune 8) at 87-88, id. gune 8) at 87-88, id. June 8) at
23-25. Cadra's letter conceded that Reyos lied under oath on this point See
Cadra Letter, supra note 255, at 3. 267. See Reyos Trial Tr. June 8) at 25-26.
268. See Cadra Letter, supra note 255, at3.
281. Reyos, OS-82-0026-CR, slip op. at 6. 282 See Swindle, supra note
255, at 1A. The board includes a large number of members so that it has a broad
representation of diverse viewpoints, not simply those inclined to credit
government accounts. See Telephone Interview with Dudley Sharp, Justice for All
(Nov. 7,1997). 283. See Order Denying Writ of Habeas Corpus, State v. Reyos, No.
A-14,58A Jan. 27,1995) (denying petition because "[t]here are no controverted,
previously unresolved facts material to the legality of [Reyos's] confinement").
284. See Closing Argument, State v. Stangel, No. CC 9-1278 (Clatsop County Cir.
Ct. 1996) (CourtTV videotape) [hereinafter Closing Argument Tape] (prosecutor
285. See Order Denying Motion to Suppress at
2, State v. Stangel, No. 9-1278 (Clatsop Cty. Cir. Ct. 1996) [hereinafter
Findings of Fact]. Otherwise unattributed material in this description is taken
from the court's findings of facts.
286. See Closing Argument Tape, supra note
284 (prosecutor summarizing evidence). 287. See State v. Stangel, No. CC 96-1278
(Clatsop County Cir. Ct. 1996), Suppression Hearing transcript at 23-24
[hereinafter Stangel Tr.]; Findings of Fact, supra note 285, at 2.
Leo & Of ihe, supra note 1, at 471. 289. See Findings of Fact, supra note
285, at 34. Where specifically noted, some additional material from the
testimony of the officers has been added concerning the content of Stangel's
statements, material that is presumably not included in the findings of fact
because it was not critical to the suppression issue before the court Cf infra
note 303 and accompanying text (noting court found officers to be credible).
290. See Findings of Fact, supra note 285, at 3. 291. Stangel Tr, supra note
287, at 41.
292 Id. 293. See id at 41-42. 294 See id at 43415.
All the material in this paragraph is taken from the first recorded confession
of Stangel, which was introduced as an exhibit at the suppression hearing and
trial in State v. Stangel, No. CC 96-1278 (Clatsop County Cir. Ct. 19%). I am
indebted to Richard Ofshe for supplying me with copies of Stangel's confessions
and other related materials.
296. Id. 297. Leo de Ofshe, supra note 1, at
471 (emphasis added). 298. The following facts are taken from the transcript of
Stangel's second recorded confesSion, State v. Stangel, No. CC 96-1278 (Clatsop
County Cir. Ct 1996). 299. Id. at 10-11. 300. Stangel Tr., supra note 287, at
301. See State v. Stangel, No. CC 961278, Ofshe Transcript at 83, 129-30
(Clatsop County Cir. Ct. 1996) (hereinafter cited as Stangel Ofshe Tr.). This
is important because if Stangel was not truthful, then Ofshe's conclusion could
be affected 302 See Stangel Ofshe Tr., supra note 301, at 252, 257. 303. Id. at
304. Id. at 368. 305. Stangel claimed to have written a note for Wahl on
a Christmas ornament while waiting in the van for him to return, but Wahl's
mother saw the ornament the next day without any inscription See Closing
Argument Tape, supra note 284. Stangel also claimed to have a disabling fear of
heights, but was confronted at trial with a picture showing her and Wahl
enjoying a roller coaster ride. Id. Cf Stangel Tr., supra note 287, at 255
(concession by Ofshe that a picture showing Stangel "screaming in delight" on a
roller coaster would be inconsistent with her professed extreme fear of
heights). 306. See Leo dc Ofshe, supra note 1, at 472 n.359 (noting exclusion of
Stangel's polygraph test and wondering why the police officers were not required
to take a polygraph).
307. See State v. Brown, 687 P.2d 751 (Or.
1984) (holding polygraph evidence is not admissible in civil or criminal
trials). Cf, United States v. Scheffer, 118 S.Ct. 1261 (1998) (upholding
military rule of evidence barring polygraph evidence). 308. See supra note 210
and accompanying text (Misskelley); supra note 232 and accompanying text (Page).
309. See Telephone Interviews with Josh Marquis, Clatsop County District
Attorney (Sept. 29 dc Nov. 6, 1997) (noting that the results were "equivocal,"
one of the four channels of the machine was broken, and Stangel's mother had a
professional relationship with the police agency).
See Respondents Mem of Law at 55, Tankleff v. Senkowski 96 CV 0507 (E.D.N.Y.
1997) [hereinafter Respondent's Mere. of Law] (citing trial tr. at 4246). 311.
Leo and Ofshe, supra note 1, at 458 (citing second-hand recounting of Petn. of
Martin Tankleff for Writ of Habeas Corpus, Tankleff v. Senkowski, 96 CV 0507
312. Respondent's Mere of Law, supra note
310, at 47 (citing trial tr. at 141, 168-69, 172-73, 202). See also id. at 47
(noting defendant's post-murder statement that once he inherited parent's money
he would take friends out in a limousine) (citing trial tr. at 171-72,194-95).
See id at 59 (citing trial tr. at 4641-44, 46); id at 48 (noting argument a few
days before the murder) (citing trial tr. at 595-96, 613-15). 314. Tankleg; 96
CV 0507 (E.D.N.Y. 1997), slip op. at 4. 315. The father died about a month
later, never having regained consciousness. 316. See Respondent's Mem. of Law,
supra note 310, at 19, 24 (citing trial tr. at 344043, 3445-48, 344648, 4936-37;
appx. at 1123-24,1206-07,1404-05,1409,1416-17, 564-68, 1281-82). 317. See People
v. Tankleff, 606 N.Y.S.2d 707, 709 (N.Y. App. Div. 1993), affd, 646 N.E.2d 805
318. 606 N.Y.S.2d at 709. 319. Id. Accord, Sande"8; 96 CV 0507 (ED.N.Y.
1997), slip op. at 6 (finding Tankleff "made a full confession"). 320. See
Respondents Mem. of Law, supra note 310, at 35-38 (citing trial tr. at 289298).
See Tanklef; 606 N.YS.2d at 709. Accord Tanklef, % CV 0507 (E.D.N.Y. 1997), slip
op. at 6. Cf Leo & Ofshe, supra note 1, at 458 (suggesting the confession
was obtained "[a]fter five and one-half hours of accusatory interrogation"). The
appellate court on review also found that the reliability of the confession
"was, if anything, enhanced" by the fictitious phone call ploy. Tankle, 606
N.Y.S.2d at 710. See also Tankleg 96 CV 0507 (E.D.N.Y. 1997), slip op. at 10
(finding "no credible evidence of physical or psychological coercion");
Tanl<leff v. Senkowsi, 135 F.3d 235, 245 (2nd Cir. 1998) (rejecting habeas
claim that confession was coerced): 322. See Respondent's Mem of Law at 60,
supra note 310 (citing trial tr. at 4694-95). 323. The autopsy revealed that the
mother's head had blunt force injuries inflicted before her throat was cut and
she was stabbed (including "defensive wounds"). See People v. Tanldeff, No.
1290-88 (Suffolk Cty. Ct 1990), trial tr. at 3942-46, 3965, 4004-5. The father
suffered from incised wounds, a depressed skull fracture, and incised neck
wounds. See id. at 39934000. See also supra note 319-20 and accompanying text
(describing the confession).
324. See Leo & Of ihe, supra note 1, at
458. 325. Respondents Mem of Law, supra note 310, at 37 (citing trial tr. at
2892-98). 326. See id at 49 (citing trial tr. at 733-78) (knife moved); id. at
58 (citing trial tr. at 4394-96) (barbell moved). 327. Leo dc Ofshe, supra note
1, at 458. 328. People v. Tankleff, No. 1290-88 (Suffolk Cty. Ct. 1990), trial
tr. at 4347. 329. Id. at 4359. 330. Id. at 3975. 331. Id at 3998-40001. 332 See
Leo & Ofshe, supra note 1, at 458.
333. See People v. Tankleff, No. 1290-88
(Suffolk Cty. Ct. 1990), trial tr. at 39556 (noting inability to narrow time of
death any further than between 3:00 a.nm and approximately 6:00 arn.mL). 334.
Respondent's Mem of Law, supra note 310, at 57 (noting testimony of psychiatrist
Herbert Spiegel) (citing trial tr. 4305-07).
For example, in one other case-Juan Rivera-the evidence strongly suggests guilt.
I am, however, deferring final judgment until a full transcript from the recent
retrial becomes available. Rivera confessed to the brutal rape and murder of
eleven-year-old babysitter Holly Staker. He was convicted in 1993. In 1996, the
Illinois Court of Appeal ordered a retrial, while emphasizing "the evidence at
trial was sufficient for the jury to conclude that defendant was guilty beyond a
reasonable doubt" State v. Rivera, No. 2-94-0075, slip op. at 34 (Ill. Ct App.
1996) (unpublished opinion). On retrial, the jury again convicted Rivera, and in
December 1998 he was sentenced to life in prison. See Phuong Le, BabySitter's
Killer Given Life Term: Rivera's Retrial Ends with Same Sentence As Original
Trial in 93, CHI. TRB., Dec. 11,1998, at 8.
Although I have not obtained court records from the second trial, the
evidence from the first gave ample reason for accepting Rivera's confession. Leo
and Ofshe claim the confession was coerced, but the trial judge found that "the
whole background of Mr. Rivera indicates a compliance with wanting to speak with
the police, being cooperative and ultimately giving incriminating statements."
Brief of Plaintiff-Appellee at 45, Rivera (No. 2-94-0075) (quoting Supp. Rec. I,
117). Rivera's confession came only after Rivera gave several conflicting
accounts of his whereabouts on the night of the murder. Rivera eventually broke
down and admitted he had been in the apartment with Holly. He then claimed that
they had consensual sex followed by a rebuff from him She attacked him with a
knife, and he stabbed her in the ensuing struggle. Leo and Ofshe indicate that
"prior to signing two police-written confessions, Rivera began to hyperventilate
and bang his head against the cell wall so violently that he was medicated." Leo
& Ofshe, supra note 1, at 490 n.515. But it was after Rivera's first oral
confession that he was found hyperventilating and "tapping" his head against the
cell wall. Rivera, No. 294-0075, slip op. at 5. Also, even though a nurse
received authorization to medicate Rivera, the drugs were never administered
because she found him stable and not in danger of hurting himself. See id. The
trial court judge specifically found that this tapping "was not the result of
any overbearing psychological coercion by the police, but it seems rather on the
basis of the testimony by his own realization that his statements to the police
were now putting himself into the very situation where he did not want to be."
Brief of Plaintiff-Appellee at 49, Rivera (No. 2-94-0075) (quoting R. 820).
Rivera's last confession, given the next morning, was "largely consistent with
the known facts of the case." Rivera, No. 2-94-0075, slip op. at 5. Rivera
confessed that when Holly taunted him for difficulty in having an erection, he
got a knife from the kitchen and stabbed her. See State v. Rivera, trial tr. at
1564-69. Rivera also physically demonstrated various aspects of the commission
of the offense. See id at 1483-92 The police also learned new information about
the crime. For example, Rivera told police that after the murder, he took a mop
that was outside the house and used it to knock in the bottom panel of the rear
door of the apartment in order to make it look like a home invasion; he then
wiped the mop clean of fingerprints with a rag and left the rag there. See id.
at 1484-86. There is nothing in the records I have seen indicating that police
were aware of the rag. It was only after Rivera's confession that police
reexamined a videotape of the crime scene, noticing a rag precisely where Rivera
had confessed to leaving it. See Telephone Interview with Mike Mermel, Lake
County State Attorney's Office (Feb. 23,1999). The evidence presented at the
second trial was even stronger than that offered at the first. For example, the
little girl Holly Staker was baby sitting, who was eight at the
of the retrial, identified Rivera as the murderer. See id. In addition, some
ambiguous DNA evidence that Rivera had capitalized on at the first trial had,
because of improvements in DNA testing by the time of the second trial, become
irrelevant to his defense. See id. Finally, it is important to emphasize that
the second trial, like the first, included defense testimony from a clinical
psychologist that Rivera's confession was coerced. The jury, however, disagreed,
again raising doubts about Leo and Ofshe's claim that the "overwhelming
majority" of neutral observers would, after hearing all the evidence, agree with
their views. Leo and Ofshe cite not court records but Chicago Tribune articles
about the first trial. Shortly before trial the Tribune "scooped" other local
papers with an "exclusive" interview with Rivera about his innocence. See Andrew
Martin, Staker Suspect: I Never Touched That Girl, CHI. TRIB., April 9, 1993, at
1. Coverage favorable to the defense followed, which Leo and Ofshe use. For
example, Leo and Ofshe note that Rivera was wearing an electronic leg monitor
showing he was home the night of the crime. See Leo & Ofshe, supra note 1,
at 491 (citing Andrew Martin & Robert Enstad, Rivera Confession Coerced,
Defense Says, CHI. TRIB., Feb. 18, 1993, at 8). But ample trial testimony proved
the system's unreliability. See Rivera, No. 2-94-0075, slip op. at 8. Two days
after the murder the probation officer assigned to Rivera testified that his
ankle bracelet was too loose, and a neighbor who saw Rivera testified that the
bracelet was loose enough to be circumvented. See Brief of Defendant-Appellant
at 18, Rivera (No. 2-94-0075) (citing R. 6185). In any event, Rivera's
pre-confession versions of events was that he was at a party (or "hanging
around" outside the house where the party was, depending on which version one
chooses), not at his home where the monitor showed him being. After the murder,
the county scrapped the monitoring system. See Andrew Buchanan, Return to
Suspect Monitors Proposed; Waukegan Murder Ended System in '92, CHI. TRIB.,
September 21,1997, at 1. 336. See Richard A. Leo & Richard J. Ofshe,
Missing the Forest for the Trees: A Response to Paul Cassell's "Balanced
Approach" to the False Confession Problem, 74 DENV. U. L. REV. 1135 (1997). 337.
See supra note 199 and accompanying text (noting trauma to victim's family from
claims of defendants innocence).
338. Leo &
Ofshe, supra note 1, at 436.
339. Cf Henderson, supra note 147, at 724 (reviewing book by Ofshe and
concluding he "plays loose with the facts in many instances"). 340. Leo &
Ofshe, supra note 1, at 435 r.15. 341. See supra note 238 and accompanying text
(noting reliance on account of trial from Page's father). 342 See supra note 170
and accompanying text (noting reliance on "Friends of Richard Lapointe"). 343.
See supra note 311 and accompanying text (noting reliance on TanklefPs habeas
344. Paul Glastris, Are Press Standards Slipping?, U.Se NEWS & WORLD
REP., July 13, 1998, at 22.
345. Judith Herman, Presuming to Know the
Truth, 48 NiEMAN REPORTS, Spr. 1994, at 43, 4445 (quoting reporter Stephen
Fried). 346. See supra notes 62-102 and accompanying text (Fairchild); supra
notes 10330 and accompanying text (Giarratano); supra notes 169-99 and
accompanying text (Lapointe); supra notes 200-26 and accompanying text
(Misskelley). 347. See MODEL CODE OF PROFESSIONAL RESPONsIBILITY DR 7-107
348. Herman, supra note 345, at 43 (quoting columnist Randolph Ryan).
349. See id See also Barbara Santee, More on "Making Monsters, " SOCIETY, Nov.
1993, at 4. See generally LEE MADIGAN & NANCY C GAMBLE, THE SECOND RAPE:
SOCIEM'S CONTINUED BETRAYAL OF THE VIC (1989).
See Gross, Eyewitness Identification, supra note 34, at 412 351. See Ofshe's
Misskelly Testimony, supra note 215 ("[A] lot of studies are done on what are
called disputed confessions as opposed to undisputed confessions, and the
undisputed confessions are more important because it is known whether or not the
confession was true of false."). 352 See supra notes 54-58 and accompanying text
(discussing problems with BedauRadelet research).
See Linnet Myers, A Conviction Unravels in Tot Killings, CHI. TRIB., Dec. 11,
1986, at 1 (reporting "prosecutors are still convinced that they had the right
man"). The secondary sources available on this case also make clear, at the
least, that Leo and Ofshe have miscategorized Burt as a "proven" innocent man.
Prosecutors had persuaded a judge that Burt had fired the fatal shot in an
effort to terrorize a witness in an upcoming trial. See Philip Wattley, Man Held
in Murder of Boy, 2, CHI. TRIB., Sept. 21, 1985, at 7. In reopening the case and
entering a judgment of acquittal, the judge relied on ballistics tests
indicating that a newly found gun "could have been" the murder
weapon. Rosalind Rossi, Convicted Man Free on New Facts in Boy's Death,
CHI. SUNTIMEs, Dec. 11, 1986, at 7 (emphasis added). Cf MIcHAEL RADELET ET AL.,
IN SPITE OF INNOCENCE: ERRONEOUS CONVICTIONS IN CAPITAL CASES 292 (1992)
(Claiming that ballistics tests "showed" that the gun was used in the killing).
This created the possibility that the mother of the victim, rather than Burt,
was the killer (although it also created the possibility that Burt had arranged
to have the gun hidden where it was found). The judge concluded that the gun
"created enough doubt to acquit Burt." Id. Less than two years later, Burt was
arrested for dealing drugs and sentenced to sixteen years in prison. See Gary
Marx, Industrious Prisoners Make Money Doing Time, CHI. TRIB., Aug. 7,1994, at 1
(quoting Burt as admitting he had been "selling drugs to feed my family").
See Andrew Fegelman, 12-Year Nightmare Ends for Murder Defendant, CHI. TRIB.,
July 16,1992, at 1. 355. See Bedau & Radelet supra note 47, at 150-51. 356.
See CoNNERY, supra note 170, at 91-92. 357. See supra notes 254-83 and
accompanying text 358. See Peter Baker, Death-Row Inmate Gets Clemency, WASH.
POST, Jan. 15,1994, at Al.
359. Id Washington is also serving a 30-year
sentence for burglary and ic:ious wounding in another case. See id. 360. Id.
See HUFF ET AL., CONVICTED BUT INNOCENT: WRONGFUL CONVICTION AND PUBLIC POLICY
127 (1996) (writing that Cox's confession was "conceded by all parties to be
362 See William J. Booher, Wrongly Imprisoned Man Will Get $605,000,
INDIANAPOLIS STAR, Mar. 21,1995, at Cl (reporting payment of damages to Jacobs
for civil rights violations in circumstances suggesting innocence). 363. See
Pete Shellem, Jailed Man Set Free After False Confession; Proof of Innocence
Approved at Hearing, HARRISBURG PATRIOT & EVENING NEWS, Jan. 9,1993, at Al
(noting prosecutors supported release). 364. See Barry Siegel, A Question of
Guilt, L.A. TIMES MAG., Sept. 1, 1996, at 15 (reporting prosecutors sought
release of Pavlinac). 365. See Kevin Davis & Ardy Friedberg, Wrongly
Convicted Man Enjoys Freedom From Hell,' FORT LAUDERDALE SUN-SENTINEL, Jan
16,1993, at lB. 366. See RADELET ET AL., supra note 353, at 14-15 (writing
prosecutors believed Reynolds innocent). 367. See Booher, supra note 362, at Cl.
See CONNORS ET AL., supra note 39, at 73-74 (reporting prosecutor seeks pardon).
369. See Sharon Cohen, "Ringmasters" Unlock Truth, Free Man Who Confessed to
Murder, L.A. TIMEs, Mar. 31,1996, at Al (noting pardon from governor). But cf
id. (reporting prosecutor believes Wilson guilty). 370. I use the phrase
"mentally retarded" reluctantly, but find that it tracks other writings in the
371. Jacobs and Smith are both "mildly" mentally retarded. See Booher,
supra note 362, at Cl. Kelly had an IQ of 69 and a history of mental illness.
See Shellem, supra note 363, at Al. Purvis was a "diagnosed schizophrenic."
Davis & Friedberg, supra note 365, at lB. Reynolds had an IQ of 75 and a
history of mild mental retardation. See RADELET ET AL., supra note 47, at 13.
Vasquez was "borderline retarded." CONNERS ET AL., supra note 39, at 73. Wilson
was retarded. See Cohen, supra note 369, at Al. While not apparently mentally
handicapped, Pavlinac was described as a "confused" and "depressed" person.
Siegel, supra note 364, at 15. 372. While I have been unable to locate court
records on the Cox case, a second-hand account suggests that Cox decided to
falsely confess for his own reasons and that the confession should therefore be
characterized as a "suspect-induced" false confession rather than a
"police-induced" false confession See Cassell, supra note 5, at 51S20
(distinguishing between these terms). Cox had skipped bond in North Carolina
and, when arrested in Ohio, was apparently facing a bounty hunter. Cox's wish to
avoid retuming to North Carolina (because he thought the bounty hunter might
shoot him) apparently had a major role in leading to his decision to confess to
a robbery/rape in Ohio. See HUFF ET AL., supra note 361, at 131-33 (reporting
that Cox thought "[a] robbery charge, with all the friendly help that he would
get from [the police], did not sound too bad; the alternative was virtual
kidnapping by a bounty hunter"). In addition, it is also likely that the trial
court should have suppressed Cox's confession as "involuntary," because it seems
to have been induced by specific promises from the police that rape charges
would not be filed if he confessed to a rape/robbery. See id. at 132. Cf WAYNE
LAFAVE & JEROLD H. ISRAEL, CRIMINAL PROCEDURE 6.2(c) (2d ed. 1992 &
Supp. 1997) (concluding that "courts have often held that a confession is
involuntary if made in response to a promise the result will be . . . the
dropping of some charges, or a certain reduction in the punishment defendant may
receive"). 373. This conclusion assumes that the mentally retarded persons are
not more likely to appear in a collection of undisputed wrongful convictions
than other persons would be. This assumption seems reasonable, given that the
mentally retarded may have more difficulty in orchestrating an investigation
into their wrongful convictions than persons of more intelligence would have.
Indeed, it may well be it is because the mentally retarded have such
difficulties in organizing their defense at trial that they are so heavily
represented among the wrongfully convicted. 374. PRESIDENT'S PANEL ON MENTAL
RETARDATION, REPORT OF THE TASK FORCE ON LAw 33 (1963). 375. See, e.g., Steven
Wisotsky, Miscarriages of Justice: Their Causes and Cures, 9 ST. THOMAS L. REv.
547, 554-55 (1997); White, supra note 169, at 142; White, supra note 13, at
2044i6. 376. James W. Ellis & Ruth A. Luckasson, Mentally Retarded Criminal
Defendants, 53 GEO. WASH. L. REv. 414, 445 (1985). 377. FRED E. INBAU ET AL.,
CRIMINAL INTERROGATION AND CONFESSIONS (3rd ed. 1986).
Ofshe dc Leo, supra note 232, at 983. 379. See generally Cassell, supra note 5,
at 507-24 (collecting empirical evidence on low frequency of false confessions).
380. INBAU Er AL, supra note 377, at 57. 381. Id. at 58.
Fred Inbau, Miranda's Immunization of Low Intelligence Offenders, 24 PROSECUTOR:
J. NAT'L DIST. ATT'YS Ass'N, Spr. 1991, at 10. Inbau also suggested that
juveniles might be at special risk of false confession. See id. There is no way
to test this assertion in the Leo-Ofshe collection, which apparently consists of
exclusively adult cases. There are, however, some suggestions that juveniles are
not uniquely at risk of police-induced false confessions. See Sigurdsson &
Gudjonsson, supra note 16, at 322 (finding no false confessors among sample of
108 Icelandic juveniles); Graeme Richardson, A Study of Interrogative
Suggestibility in an Adolescent Forensic Population 87 (1991) (unpublished M.Sc.
Thesis, Univ. of Newcastle Upon Tyne) (finding 14 "false confessors" among
sample of 60 British juveniles, all of whom confessed voluntarily to perform the
"service" of covering for an older friend who might be subject to more severe
legal penalties). 383. Inbau, supra note 382, at 10.
See Ellis & Luckasson, supra note 376, at 4452. 385. See, e.g., White, supra
note 169, at 142. The British have imposed special rules on questioning of the
persons who appear to be "mentally ill or mentally handicapped or mentally
incapable of understanding the significance of questions put to him" Code of
Practice for the Detention, Treatment and Questioning of Persons by Police
Officers, paras. 1.4. These rules require police to notify an "appropriate
adult" when questioning such a person. Id. paras. 3.9 to 3.11. The appropriate
adult then is present during questioning to "advise the person being interviewed
and to observe whether or not the interview is being conducted properly and
fairly." Id. para. 11.16. It would be interested to see whether such an approach
could be transferred to the United States. Curiously enough, the biggest
obstacle might be Miranda doctrine, since the "appropriate adult" would arguably
be an attorney. Of course, once present an attorney would probably prevent
questioning of any sort-no matter how proper and fair. 386. See Cassell, supra
note 5, at 534-38. 387. See Commonwealth v. Daniels, 321 N.E.2d 822, 828 (Ma
1975) (suggesting expert testimony on mental retardation might be required at
confession suppression hearings).
388. See E. Paul Holmes et al, Learning
Street Smarts for an Urban Setting, 20 PSYCHIATRIC REHABILITATION JOURNAL 64
(1997). 389. See supra notes 89-90 and accompanying text (discussing
psychiatrist who lost "her scientific objectivity and skepticism" to render an
opinion that a defendant sentenced to death was mentally retarded and therefore
ineligible for the death penalty).
390. See, e.g., supra notes 200-26 and
accompanying text (noting involvement of Misskelley, who had low IQ, in crime).
The available research, however, suggests that overall very low IQ's are
disproportionately underrepresented in the criminal population. See JAMES Q.
WILSON & RICHARD J. HERRNSTEIN, CRIME AND HUMAN NATURE 154 (1985).
For discussion of a more general response to the problem of wrongful convictions
from false confessions, see Cassell, supra note 5, at 538-56. 392. This may be
the appropriate point to explain briefly how I came to examine nine particular
cases in detail When preparing a response to the Leo and Ofshe's article, I had
initially intended to use a single case to illustrate problems associated with
their subjective determination of innocence. Since it could be argued that such
an approach seized on isolated cases, I decided to expand my inquiry. To that
end, I began collecting information on as many of the 29 cases of wrongful
conviction in the Leo and Ofshe collection as possible, searching for primary
court records or other information that would allow me to make an informed
determination about the accuracy of the juries' verdicts. This turned out to be
an extraordinary difficult and time consuming task-much more difficult, I should
add, than the Leo and Ofshe approach of collating a few readily accessible
newspaper articles about these cases. In most of the cases, I had to personally
telephone individual prosecutors to obtain court records. In one case, original
court records were no longer available from the court or prosecutor, but I found
them by tracking down a newspaper reporter who had saved the old records. See
supra note 258 (Reyos). As the months wore on, it became increasingly clear that
obtaining primary records on all of the 29 cases in question would require what
seemed to be an inordinate expenditure of time. For example, some of the cases
involved allegations of wrongful conviction that were sourced in such a way as
to make identification of primary sources difficult. In one case (Warney), the
no-doubt busy prosecutor simply declined my generous invitation to have him copy
the trial transcript and send it to me, and in another case (Washington)
with law enforcement sources indicated that
access to primary records would be difficult Four more cases were from 1980 or
earlier (Carmen, Knapp, Parker, Reilly), and the prospects of finding original
records nearly twenty years later seemed slim Accordingly, I stopped further
investigation after concluding that at least 9 of the 29 cases were
misclassified by Leo and Ofshe and that a further 9 appeared to be undisputed
wrongful convictions. At that point having analyzed almost two-thirds of the Leo
and Ofshe collection (the 9 misclassified cases and the 9 undisputed cases), I
thought the analysis was sufficiently comprehensive to reach some conclusions.
It should be recalled that the Leo and Ofshe collection is itself in no way a
"random" sample of cases, as Leo and Ofshe admit. See Leo & Ofshe, supra
note 1, at 436. 393. See. e.g., United States v. Hall, 93 F3d 1337 (7th Cir.
1996) (overturning decision to exclude Ofshe testimony about false
confessions), on remand, 974 F. Supp. 1198 (C.D. Ill.1997), a,ftd, - F.3d 1999
WL 16777 (7th Cir. 1999); United States v. Raposo, 1998 WL 879723, at *5
(S.D.N.Y. 1998) (admitting testimony about how persons with certain
psychological profiles are more susceptible to making false confessions); State
v. Buechler, 572 N.W.2d 65, 73 (Neb. 1998) (reversing exclusion of expert
testimony on effects of drug withdrawal and mental disorders on suggestibility);
State v. Miller, 1997 WL 328740, at *6-8 (Wash. Ct. App. 1997) (reversing denial
of funds to indigent defendant to obtain expert testimony by Ofshe as to why
someone would give a false confession). See also United States v. Shay, 57 F.3d
126, 129, 133-34 (lst Cir. 1995) (finding district court erred in excluding
expert testimony by a psychiatrist on "pseudologia fantastica" (also known as
Munchhausen's Disease), a mental condition involving an extreme form of
pathological lying); People v. Gilt;mr", 670 N.E.2d 606, 619 (IlL 19%)
(affirming trial court decision to allow expert testimony on the defendant's
mental state but not on the circumstances surrounding the voluntariness of his
confession); State v. Baldwin, 482 S.E2d 1, 5 (N.C. Ct. App. 1997) (noting it
was improper to exclude expert testimony about psychological factors on grounds
that it was prohibited character evidence, but not otherwise ruling on
admissibility of testimony), rev. granted, 485 S.E.2d 299 (N.C 1997), rev.
dismissed, 492 S.E.2d 354 (N.C. 1997); State v. Wells,1994 WL 497745, at *1
(Ohio App.1994) (noting trial court decision to allow testimony about
defendant's mental traits in connection with confession); Lenormand v. State,
1998 WL 852849 (Tex. Ct App. 1998) (noting trial court decision to allow expert
testimony on psychological profile rendering defendant suggestible). 394. See,
e.g., United States v. Griffin, 1997 WL 517002, at *3-4 (A.F. Ct. Crim App.
1997) (affirming exclusion of expert testimony about coerced false confessions),
rev. granted, 49 M.J. 150 (Ct. App. Armed Forces 1998); United States v.
Koslowsky, 1995 WL 580889, at *3 (A.F. Ct. Crim. App. 1995) (affirming exclusion
of expert testimony on false confessions); Beltran v. State, 700 So.2d 132,
133-34 (Fla. Dist. Ct App. 1997) (affirming exclusion of expert testimony on
false confessions and questioning whether expert assessment of confession
involuntariness is ever admissible); Bullard v. State, 650 So.2d 631, 632 (Fla.
Dist. Ct App. 1995) (affirming exclusion of expert testimony on coercive effect
of alleged threats during questioning); State v. MacDonald, 718 A.2d 195, 197-98
(Me. 1998) (finding unreliable testimony about children of alcoholics suffering
from a syndrome that might cause them to falsely confess); Bixler v. State, 582
252, 254-55 (Minn. 1998) (affirming exclusion of expert testimony on personal
characteristics that might render an individual susceptible to pleasing
authority figures); People v. Green, 1998 WL 894854, at *2 (N.Y. App. Div. 1998)
(affirming exclusion of expert testimony concerning defendant's interrogative
suggestibility that made him susceptible to providing a false confession);
People v. Lea, 534 N.Y.S.2d 588, 590 (N.Y. App. Div. 1988) (affirmning exclusion
of expert testimony that defendant's personality rendered him deferential to the
wishes of others and rendered confession involuntary); Kolb v. State, 930 P.2d
1238,1241-42 (Wyo. 1996) (affirming exclusion of testimony on "False Confession
Syndrome" on grounds or unreliability). See also State v. Monroe, 711 A.2d 878,
889 (N.H. 1998) (upholding trial court's decision to deny funds for an expert
witness in the area of false confessions). 395. Many of the cases admitting
expert testimony appear to involve suspects with peculiar mental disabilities.
This fits more comfortably with traditional uses of expert testimony on
psychiatric subjects than generalized evidence about false confessions, and is
also consistent with the findings in this article that the false confession
problem is concentrated among persons with mental problems. See supra notes
370-76 and accompanying text.
396. In addition to the cases cited in note
394, excluding expert testimony, see, for example, Hall, 974 F.Supp. at 1205;
Wells, 1994 WL 497745, at *2; Lenormand, 1998 WL 852849. See also Miller 1997 WL
328740, at *7 (noting testimony limited to general discussion of false
confession); Ofshe's Misskelley Testimony, supra note 215 (Ofshe concedes "I
don't know that I've ever said that something was a false confession. I know
I've testified as to whether something was coerced or not."). 397. Daubert v.
Merrell Dow Pharmaceuticals, 509 U.S. 579, 590 (1993). 398. See id at 594. 399.
White, supra note 13, at 2043 (internal quotation omitted).
Saul M. Kassin, The Psychology of Confession Evidence, AM. PsYCHoLoGisT, Mar.
1997, at 221, 231. 401. Daubert, 509 U.S. at 594. 402 See, e.g., FED. R. Et*ID.
703, cited in Daubert, 509 U.S. at 595. 403. See Leo dc Ofshe, supra note 1, at
435 n.15 (representing that "where possible" their research relied on "primary"
sources such as court records). 404. Ofshe's theories about coercive persuasion
have also been rejected in other contexts. See United States v. Fishman, 743 F.
Supp. 713, 719 (N.D. CaL 1990) (stating that Ofshe's "theories regarding the
coercive persuasion practiced by religious cults are not sufficiently
established to be admitted in evidence in federal courts of law"). 405. See,
e.g., Kassin supra note 400, at 231 ("further research [on false confession] is
406. Leo &
Ofshe, supra note 1, at 495.
407. Id at 438. See also Ofshe & Leo, supra note 232, at 1119 (arguing that
"the reliability of a confession statement can usually be objectively determined
by evaluating the fit between a post-admission narrative and the crime facts").
408. See Leo & Ofshe, supra note 1, at 4% (urging courts to "insist on a
minimal indicia of reliability before admitting confession statements into
evidence"). See also Ofshe & Leo, supra note 232, at 1118-19; Leo &
Ofshe, supra note 336, at 1142 409. See GRANO, supra note 44, at 59-118
(describing voluntariness doctrine and collecting references). 410. See CasselL
supra note 5, at 540-2
411. Professor Welsh White reached a similar
conclusion to mine in an article published just as my piece was nearing
publication. See White, supra note 13, at 2028 ("the safeguards proposed by
Ofshe and Leo do not provide a clear, administratively feasible means of
evaluating the trustworthiness of specific confessions.").
See Cassell & Hayman, supra note 18, at 869 tbl. 4. 413. See Leo, supra note
17, at 280 tbl. 7 (data derived by dividing "full confession" category by all
three incriminating statement categories). The utility of this data in Leo's
informative study is somewhat impaired by the broad definitions of the various
incriminating statement categories. See Cassell & Hayman, supra note 18, at
92930. 414. See Leo & Ofshe, supra note 1, at 495 (suggesting this answer).
If so, a minor nomenclature point: it would be better to describe their proposal
as assessing the postconfession narrative of a suspect, not the post-admission
narrative. 415. BLACK's LAw DicTIONARY 2% (6th ed. 1990) (quoted in Ofshe &
Leo, supra note 232, at 991 n. 42). 416. Id at 48 (quoted in Ofshe & Leo,
supra note 232, at 991 n 42).
417. Miranda v. Arizona, 384 U.S. 436, 476
(1966). 418. See Leo & Ofshe, supra note 1, at 440,
See MODEL PENAL CODE 21. 420. George C. Thomas Ill, Selling Half-Truths, LEGAL
TZES, Aug.12,1996, at 20. 421. INBAU ET AL., supra note 377, at 90-91. 42 See id
423. See supra notes 76-78 and accompanying text (Fairchild). In my previous
article, I suggested that such "voluntary" false confessions will constitute a
"significant proportion" of all false confessions, particularly because
"common sense suggests that suspects will more often 'confess' for
understandable reasons (such as protecting a loved one) than because police have
somehow convinced them that they actually committed a crime." Cassell, supra
note 5, at 519. Leo and Ofshe disagree, arguing that my suggestion is "dearly
contradicted by the empirical research literature on the social psychology of
false confessions." Leo & Ofshe, supra note 1, at 561 n.22 (citing their own
article) Yet their view seems at odds with the statement they offered just one
year earlier that "[little is known about the frequency or risks of a
miscarriage of justice attributable to voluntary unreliable confessions." Ofshe
& Leo, supra note 50, at 210. Moreover, Leo and Ofshe's article sheds
little light on the relative frequency of voluntary false confessions because it
focuses on "police-induced false confessions." Leo & Ofshe, supra note 1,
at 433. It does not focus on
i.e., "voluntary"-confessions. For instance,
they chose not to include even a single example of such a confession in their
collection of cases. The decision to exclude such confessions is perhaps
understandable, given their interest in focusing on policeinduced false
confessions. But this hardly constitutes a "clear contradiction" that such
confessions are a sizeable proportion of the universe of false confessions.
Finally, while citing their own articles, Leo and Ofshe do not dispute any of
the other empirical research that finds "voluntary" false confessions to
constitute a significant proportion of the false confession problem See. e.g.,
Gudjonsson & Sigurdsson, supra note 16, at 23 (forty-eight percent of false
confessions in Iceland stemmed from the desire to "protect a significant
other"); Richardson, supra note 382, at 87 (fourteen British juveniles reported
making a false confession, all to protect a friend). 424. See supra notes 104-13
and accompanying text (Giarratano); supra notes 288-99 (Stangel). See also
Ingram Proceedings Tr., supra note 136, at 584 (testimony from Ofshe agreeing
that it is common for guilty persons to minimize their involvement); Leo &
Ofshe, supra note 1, at 440 (providing illustration of true confession from
child murderer unwilling to admit also to raping the child). 425. See supra note
115 and accompanying text (Giarratano). 426. See supra note 224 and accompanying
text (Misskelley). 427. See supra note 182 and accompanying text (Lapointe);
supra notes 233-36 and accompanying text (Page).
See supra note 112 and accompanying text (Giarratano). 429. See supra note 320
and accompanying text (Tanrdeff). 430. See supra notes 154-55 and accompanying
text (Ingram). 431. See Paul G. Cassell Balanced Approaches to the False
Confession Problem: A Brief Comment on Ofshe, Leo, and Alschuler, 74 DENV. U.
L. REv. 1123,1127 (1997). 432. Leo & Ofshe, supra note 336, at 1142.
Leo & Ofshe, supra note 1, at 495 (concluding that "[i]n each of the
recorded false confessions studied here, the account the suspect offered. . .
was significantly at odds with the crime facts").
Leo & Ofshe, supra note 1, at 467 n316. 435. See supra note 408 and
accompanying text 436. See supra notes 64-65, 77 and accompanying text 437.
Fairchild v. art, 744 F. Supp. 1429,1505 (ED. Ark 1989). 438. See supra notes
83-7 and accompanying text
439. See White, supra note 13, at 2028
(stating that if rigorously enforced, the LeoOfshe proposal "would be unfair to
law enforcement because, in some cases, an otherwise trustworthy confession
would be excluded simply because the suspect. . . refused to provide a
sufficiently detailed explanation of the crime"). A related problem is that Leo
and Ofshe have not explained what parts of the crime can be scrutinized for
inconsistencies. For example, Jessie Misskelley confessed to running down a
little boy and handing him back to his captors (Damien Echols and Jason
Baldwin), who later killed the boy. See supra notes 201, 220 and accompanying
text Although nothing in the physical evidence contradicted Misskelley's
confession to corralling the little boy, Leo and Ofshe nonetheless argue that
Misskelley's description of the later murder by Echols and Baldwin was
inaccurate. See Leo & Ofshe, supra note 1, at 461-62. But since
Misskelley's criminal conduct was running the boy down, not actually killing
him, there is no inconsistency between his confession and the "crime" facts of
the charged crime. 440. See Roger Parloff, 1993: False Confessions, AM. LAW.,
Dec 1994, at 33 (giving illustration of false confessor providing description of
jewelry taken from the victim that closely resembled missing jewelry). 441. See
id. (providing illustrations of this phenomenon). 442 See Leo & Ofshe,
supra note 1, at 438 n.24. 443. See, e.g., Booher, supra note 362, at C1
(reporting that, in a case involving the "undisputed" wrongful conviction of
Ralph Jacobs, detective testified that false confessors "knew intimate details
of the crime only a few detectives and the perpetrators of the crime would
know"). 444. See White, supra note 13, at 2025 (stating that Leo and Ofshe "are
not clear as to
how strong a showing the government must
make" that "the suspect was not likely to have learned of the independent
evidence from some other source or to have recounted it as a result of a
fortuitous guess"). 445. INBAU ET AL., supra rote 377, at 147. 446. One
promising direction for future research would be to examine how closely the
post-admission narrative tracked the crime facts in cases of "undisputed" false
confessions. Unfortunately, detailed information about interrogations in the
"undisputed" cases of wrongful conviction examined here are not readily
available, as most of the cases are simply described in brief newspaper
447. See Leo &
Ofshe, supra note 1, at 476-77 (collecting
illustrations). 448. The effect of interrogation on mentally retarded suspects
may be an example. 449. See United States v. Hall, 93 F.3d 1337,1341-44 (7th
Cir. 1996) (reversing district court's exclusion of expert testimony by
Professor Ofshe on the susceptibility of the defendant to false confessions)
(convicted obtained on retrial). 450. See generally Cassell, supra note 5, at
552-56; Cassell, Miranda's Social Costs, supra note 30, at 486-98; Cassell &
Fowles, Handcuffing the Cops?, supra note 31, at 1130. 451. See Leo & Ofshe,
supra note 1, at 491 (citing Saul M. Kassin & Lawrence S. Wrightsman,
Coerced Confessions, Judicial Instructions, and Mock Juror Verdicts, 11 J.
APPLIED SOC. PSYCHOL. 489 (1981) [hereinafter Kassin & Wrightsman, Coerced
Confessions]; Saul M. Kassin & Lawrence S. Wrightsman, Prior Confessions and
Mock Juror Verdicts, 10 J. APPLIED SOC. PSYCHOL. 133 (1980) [hereinafter Kassin
& Wrightsman, Prior Confessions]. 452 See Kassin & Wrightsman, Prior
Confessions, supra note 451, at 143-44; Kassin & Wrightsman, Coerced
Confessions, supra note 451, at 497. 453. The studies are possibly flawed
because they involved mock juror assessment of a "coerced" confession produced
by a suggestion of leniency that was not clearly so coercive as to render the
resulting confession involuntary. In the studies, the imaginary
suspect was told that, if he confessed "he would be treated well during
his detention and that the judge would surely be a lot easier on him-maybe even
a suspended sentence." Kassin & Wrightsman, Prior Confessions, supra note
451, at 138. Some courts might view this single suggestion of better treatment
as insufficient to produce an involuntary confession. See LAFAVE & ISRAEL,
supra note 372, at 297 (reporting that "It]he cases go both ways on the question
of what the result should be when a confession has been obtained in response to
a police assertion that cooperation would facilitate prompt release on bail or
would mean that the defendant would fare better in subsequent proceedings").
But cf Kassin & Wrightsman, Prior Confessions, supra note 451, at 145
(cautioning that "the external validity of these experiments is limited by the
fact that we assessed the judgments of individual, nondeliberating subjects");
Kassin & Wrightsman, Coerced Confessions, supra note 451, at 504 (noting
same concern); Free v. Peters, 12 F.3d 700, 705-06 (7th Cir. 1994) (en banc)
(rejecting mock jury research because there is little reason to think it can
"offer insight into the ability of a real jury, which has spent days or weeks
becoming familiar with the case and has had the benefit of oral presentations by
witnesses, lawyers, and the judge, and which renders a verdict after
discussion"). 455. Kassin & Wrightsman, Prior Confessions, supra note 451,
at 139. See also Kassin & Wrightsman, Coerced Confessions, supra note 451,
at 495. 456. Saul M. Kassin & Lawrence S. Wrightsman, Confession Evidence,
in THE PSYCHOLOGY OF EVIDENCE AND TRIAL PROCEDURE 67, 88 (Saul M. Kassin &
Lawrence S. Wrightsman eds. 1985).
457. See Leo & Of ihe, supra note 1, at
483 tbl.B3. 458. Id at 436. 459. See id at 435-36. 460. The risk, such as it is,
is also probably declining because of improvements in
scientific technology, expanded recording of interrogations, and improved
capability of defense attorneys to explain false confessions. See Cassell, supra
note 5, at 525-26. 461. Lego v. Twomy, 404 U.S. 477, 485 (1972). See also
Colorado v. Connelly, 479 U.S. 157, 164 (1986) (conduding reliability
determinations for confessions not set by the Constitution).
See Gacy v. Wellborn, 994 F.2d 305, 313 (7th Cir. 1993) ("Juries act in ways no
reasonable person would act .... Yet for all of this, courts do not discard the
premises of the jury system, postulates embedded in the Constitution and thus,
within our legal system, unassailable."). 463. US. CONST. Art. III, 2, cl. 3.
See also US. CoNST. amend VI. 464. See generally AKHIL REED AMAR, THE CONSmUIION
AND CRIMINAL PROCEDURE: FIRsT PRINCIPLES 116-24 (1997) (developing this point).
465. Albert W. Alschuler, Constraint and Confession, 74 DENV. U. L. REV. 957,
PAUL G. CASSELL*
* Professor of Law,
University of Utah College of Law (cassellpElaw.utats.edu). Special thanks to
James Agar, Al Alschuler, Patricia Cassell, Gisli Gudjonsson, Lynne Henderson,
Richard Leo, Richard Ofshe, Lee Teitelbaum, Welsh White, and the participants in
the Virginia Constitutional Law Workshop for assistance in preparing this
article. Jonathan Owens, Michael Schwalb, and Pam Vickrey provided valuable
research help. I appreciate those who took time to help me locate hard-to-find
original trial court records or understand the cases, including Ken Burr, John
Cliff, Jr., Rosita Creamer, Darrell Dugan, Chuck Griffith, Phil Harju, Steven
Hovani, Damisa Johnson, Josh Marquis, Mike Mermel, Karen Olio, Jeff Pavletic,
David Raupp, Howard Swindle, Elena Tompkins, and Rick Whitt. The conclusions I
drew about the cases are my own. This article was supported by the University of
Utah College of Law Research Fund and the University of Utah Research Committee.
OCR errors may appear, causing
errors in some text.
times since 5/29/99