January 08, 2012
12-year-old's homicide confession is case for debate on recorded interrogations
By: Beth Warren
A 12-year-old reclusive bookworm with a speech impediment proved no match for a team of seasoned police investigators who pressured him to confess to strangling his younger sister. Did police pry the truth from a cunning killer, or bully a boy into giving a false confession while the real killer got away with murder?
A growing number of states are requiring police to record the entire interrogation in homicide cases to help prevent such uncertainty. In Tennessee, it has become a polarizing issue as lawmakers continue to debate a similar mandate here.
Thomas Cogdell, 12, savored one of his last days of summer by staying up all night playing video games, munching on M&Ms and reading a spooky children's book.
When his mother woke him up at about 11 a.m., they made a discovery that would change their lives forever. His 11-year-old sister, Kaylee, was dead.
The chatty girl who called her brother "Bubba" and still played with dolls was sprawled on her bed. Her head was covered with two Walmart bags, and she had been tied up with the family dog's leash and a cloth measuring tape.
The night before, she had been center stage in a church play, and Thomas had snapped photos of his sister's moment in the spotlight. A college-level reader, Thomas would recite Judy Blume preteen novels to Kaylee, a special-education student who struggled to get through a book.
Now, Thomas spotted her face, which had turned blue, and let out a scream.
He ran to get his mother's phone so she could call 911. When she grew too hysterical, Thomas grabbed the phone.
He gave the dispatcher directions to the family's modest home in the small town of Camden, Ark., about 100 miles south of Little Rock. Thomas was standing on the porch watching for police and an ambulance crew when they rushed in.
Hours after finding his sister dead, he confessed to killing her. Immediately afterward, he told his mother he had concocted a story to appease police, but not to worry because DNA would prove the real killer's identity.
In a recent interview in Camden, Thomas, now 18, named who he blames for his sister's death and described why he gave what he insists was a false confession.
"I was terrified," he said. "They wouldn't believe me and they said they would give me the death penalty."
At 12, Thomas never could have faced a death sentence, but he didn't know that. Nor did he know that police are allowed to lie to get a confession.
During his hours at the police station, it was the boy versus a local Camden police supervisor, a detective, a state police investigator and a deputy prosecuting attorney.
Investigators initially recorded their interrogation, when Thomas denied harming his sister 36 times.
When Thomas asked for something to eat, the recording stopped and remained off for 31/2 hours.
When it was turned back on, Thomas gave a stoic and detailed confession.
Many people are skeptical that an innocent person would confess to a violent crime, says Memphis attorney William Massey.
"They always ask: 'Why would someone say they did something so horrible if they didn't?' "
He said it's hard to comprehend how much pressure a team of trained interrogators can apply during hourslong interviews in a small room.
Massey's first capital case in 1991 involved a false confession. Over hours of questioning, his client took the blame for murdering an elderly man, he said.
At trial, Massey told jurors his client just repeated what police wanted him to say. The lawyer pointed out the "cop talk" his client used in his confession, which included common police lingo such as "he exited the vehicle." The defendant was acquitted in less than an hour.
Of 80 convicted murderers who have been exonerated nationally, about 54 percent had confessed to killings they didn't commit, according to the nonprofit Innocence Project.
In November, five men who had been in prison for 20 years for raping and killing a 14-year-old girl in a Chicago suburb were cleared by a judge. DNA linked the crime to a 53-year-old convicted rapist. Three of the five, teens at the time, gave false confessions.
Lawyer Laura Nirider, with the Center on Wrongful Convictions of Youth in Chicago, helped free them.
"The DNA excluded these kids before trial, but the state proceeded anyway," she said.
"When forensic evidence contradicts the confession, it's the science that goes out the window and is ignored rather than the confession."
In the infamous case of the Central Park jogger, who was raped and nearly beaten to death in 1989, four out of five teen suspects gave graphic confessions even though none of their DNA matched hairs and semen found on the victim. All five where convicted and served years in a New York prison before Matias Reyes, a convicted murderer and rapist, confessed in 2002 -- and his DNA was a match.
"For a lot of people, that's the point where false confessions went from being a concept to a reality, not just for lawyers but for average readers," says Memphis defense attorney Gray Bartlett.
Bartlett said police are often trained in the type of military tactics used in questioning suspected terrorists.
"It's so contrary to common sense," he said of false confessions. "But what happens in these interrogation rooms is that they break down people's will."
Bartlett represented a Tipton County man who falsely confessed to child rape. The interrogation room was wired for audio and video recording, but police opted not to use it.
Bartlett's client testified that police detained him for two days and promised: "Look, just go ahead and admit it. We'll take this and talk to the judge, who has already agreed to one year probation."
In reality, the man could have faced 25 years in prison. The jury, however, acquitted him in less than an hour.
In a 1998 San Diego case, a 14-year-old boy broke down in sobs after hours of police questioning and confessed to stabbing his 12-year-old sister. The boy also implicated his two friends and gave vivid details of the attack.
One of his friends also confessed, but on the eve of their murder trial, DNA tests detected the girl's blood on the clothes of another suspect, a 28-year-old schizophrenic drifter seen wandering in the neighborhood the night of the murder. Prosecutors now believe the man broke into the victim's home while her family slept.
Nirider, the lawyer with the Center on Wrongful Convictions, compared the case to Thomas' case. She said both boys -- in shock that their sisters had been murdered -- suffered emotional breakdowns when pressured over hours by a team of police.
Nirider also believes investigators broke down Jessie Misskelley Jr., a teen when he confessed and implicated two others in the infamous 1993 murders of three 8-year-old West Memphis boys.
When the West Memphis Three were freed in August, Nirider was in the courtroom. Prosecutors cited a lack of DNA evidence, but required the three to enter guilty pleas before they could be released.
Nirider also was part of a team that lobbied for Thomas' release in 2010.
"I have no doubt this was a false confession," she said. "Anyone who sits down and watches that video can see."
Steve Drizin, another lawyer with the Center on Wrongful Conviction of Youth, blogged: "The interrogation is one of the most riveting examples of psychological torture I have ever seen."
Thomas says when the recording stopped, the interrogation intensified.
Eighteen states now require police to record interrogations, at least in homicide cases. North Carolina is the only Southern state with the requirement, but Arkansas' high court and Tennessee lawmakers debated the issue in 2011.
Tennessee Rep. Vance Dennis, R-Savannah, and Sen. Mike Faulk, R-Church Hill, sponsored a bill during the last legislative session to mandate the recording of all interrogations in their entirety.
The measure failed even though the sponsors made compromises -- exempting smaller police departments without the necessary equipment and allowing departments to opt for audio only.
"It's easy to do," Dennis said. "We should be doing it.
"The risk of wrongfully incarcerating someone for years and years and the risk of someone committing a heinous crime getting off ... justify recording every interrogation."
Rep. Eddie Bass, D-Prospect, disagrees. The retired sheriff led the charge in April that defeated the bill in a judiciary subcommittee.
"You can have an individual there and you're doing things like you should and you've got him singing like a bird," Bass said. "And he asks: 'Hey, am I being taped?' Well, if you answer 'yes,' to some of 'em, it's over. And maybe this is a child rapist."
Former Metro Nashville police chief Emmett Turner and Tommy Haun, a lobbyist for the Tennessee Sheriff's Association, argued that law enforcement can best decide when to record.
Dennis said he will continue to rally support for the measure: "I'm not giving up on it."
The International Association of Chiefs of Police, based in Virginia, has adopted a model policy for handling major crimes which states: "Interrogations and confessions shall be recorded in their entirety starting with the interrogator's entrance into the interview room and concluding upon departure of the interrogator and suspect.
"Such electronic recordings can help protect both the suspect(s) and interviewing officers against potential assertions of police coercion or related interrogation misconduct, and may increase the likelihood of successful prosecution."
The National District Attorneys Association agrees. Executive director Scott Burns said prosecutors used to oppose it.
"Now a lot of defense attorneys and defendants are opposing it," said Burns, a veteran Utah prosecutor. "It's more compelling, powerful evidence," he said.
Federal law enforcement officials have debated the issue for several years.
Former Chicago U.S. attorney Thomas Sullivan said the FBI's policy of using a handwritten account to record what is said in interrogations is akin to arguing: "My horse and buggy are just fine."
Sullivan, considered a national expert on the topic, has testified before Tennessee lawmakers. He says recorded interrogations often aid prosecutors by quashing doubts about police tactics.
Former Phoenix U.S. attorney Paul Charlton was so passionate about recording, he tried to require it of FBI agents in his area -- a move that he says ultimately got him fired. He said many FBI agents, especially younger ones, favored recording but their older supervisors didn't.
Charlton said prosecutors are often hamstrung without this evidence: "When those recordings are interrupted, people start to ask a lot of questions," he said.
In Thomas' case, his attorney, Dorcy Corbin, said problems with the investigation began before the interrogation.
When police and paramedics rushed to Kaylee's home on Aug. 7, 2006, the girl's mother begged to go to her and try to wake her up.
Neighbors could hear Jones' guttural sobs houses away.
Thomas showed no reaction.
Corbin believes officers made a snap judgment -- the mother was anguished. Thomas wasn't.
Thomas now says he was in shock, struggling to comprehend both that his sister was dead and that someone murdered her.
At police headquarters, investigators repeatedly told the boy: "You or your mother did it," the video shows.
Investigators said they ruled out the possibility of an intruder because they saw no signs of a break in.
Police told Thomas they understood Kaylee's death was likely an accident, the recording shows.
Thomas said when the recorder was off, he was told he could go home if he affirmed investigators' theory of the crime and he'd go to jail if he didn't.
It never occurred to him that he could stop answering questions or demand a lawyer.
An Arkansas Supreme Court justice called Thomas' interrogation, the part that was recorded, "intense."
The interrogators declined to discuss the case or respond to Thomas' allegations. In court, all denied making threats or promises. They insisted they chatted about unrelated things, such as video games, during the three-hour gap.
Without a recording, there is no proof either way.
"They have the power," Thomas said. "If it's not recorded they can do what they want and not answer for it."
In at least 36 recorded denials, sometimes Thomas was firm, other times pleading in a high-pitched voice.
"I wouldn't kill my sister. ... I didn't do it, OK?," Thomas told police. "I didn't. I didn't kill my sister. Is there any way I can prove that to you?"
He offered to swear on a Bible or take a polygraph test. Finally, he broke into sobs.
One of the detectives asked: "What are you crying for?"
Thomas responded: "Because you are accusing me of something I didn't do -- of killing my sister."
The investigator retorted: "I said: 'You or your mother did it.' "
When police walked out of the interrogation room, Thomas let out shrill sobs and muttered, often incoherently, to himself: "Why? ... I didn't do it, but they won't believe me." In between sobs, he said: "Help. I'm scared."
Investigators returned and continued pressuring the boy until he asked for food. When the recorder was turned back on 31/2 hours later, Thomas confessed.
He said he snapped because his sister was bossy and he put the bags over her head to teach her a lesson, not to kill her.
Thomas says police told him they found a fingerprint on the plastic bags. The boy reasoned that he could confess to get them to leave him alone and the fingerprint would later clear him. In reality, a readable print couldn't be lifted from the plastic.
After the confession, Thomas asked to speak with his mother alone. Police secretly kept recording. Thomas hugged Jones and could be heard whispering: "I didn't do it," according to the videotape. "It's OK, Mom," the boy said. "They won't find my fingerprints."
Thomas then told her it was time for them to leave. He had no idea that his confession meant he couldn't.
DNA from the crime scene, from the cloth measuring tape used to bind Kaylee's ankles, belonged to an unknown male. No physical evidence matched Thomas.
Still, Thomas was convicted of second-degree murder by a lone Ouachita County judge in March 2008.
"I was labeled this emotionally unstable, extremely angry young man who killed his sister without remorse," Thomas said.
His attorney argued before the Arkansas Supreme Court that the videos proved: "Police interviewed Jones, but interrogated Thomas."
Thomas' mother told investigators in her videotaped statement she was on Social Security disability due to mental illness, including bipolar disorder and that she didn't always take her medicine.
Jones told investigators she spanked Kaylee the night the girl was murdered. She said she normally just gave her one swat, but this time gave three.
But police comforted her and zoned in on Thomas, focusing on his dislike of church, curiosity about death and the afterlife and his squabbles with his sister.
Jones, who told police she gave up her first child for adoption and briefly placed Thomas and Kaylee in state custody, said she didn't believe her son killed Kaylee. But she claimed he had an anger problem and once tried to set her bed afire.
Several of Thomas' teachers testified to the contrary. One said Thomas, big for his age, was calm even when another student publicly ridiculed him for mispronouncing words; Thomas patiently explained that he had a speech impediment.
Thomas' paternal grandfather, Stephen Harris, with whom he lives, said Thomas' mother should have been considered a suspect and, therefore, not given the authority to allow police to interrogate the boy alone.
The high court tossed out Thomas' confession in 2010 on technical grounds -- because the boy told police he didn't understand what it meant to waive his rights to remain silent and have an attorney with him.
Thomas was freed after serving two years in lockup. But he wasn't cleared.
Veteran Arkansas prosecutor H.G. Foster said he can't discuss the case because it involved a juvenile. He did say: "I can tell you I have dismissed charges on a number of occasions when I found out there was some question about the evidence.
"I have never once gone to trial where in my heart I had any question about the guilt of the defendant."
Camden Police Chief William O'Keefe referred questions to prosecuting attorney Robin Carroll. Carroll released a statement saying, in part: "No evidence or court holding has been forthcoming to cause my office to doubt anything done in the case, or its basis."
Thomas and his mother both believe officials got it wrong. But they disagree on who killed Kaylee.
Thomas and his paternal grandparents are convinced Melody Jones is to blame.
Thomas said after Kaylee's church play, she stayed inside the church with friends instead of following her mother's instructions to return to the family's car. Thomas said when she finally returned, his mother slapped her in the mouth.
Hours later, Kaylee was dead.
"I was upset, yes," Jones said during a recent interview. "I did threaten to smack her in the booty. ... But I did not pop her in the mouth."
"I did not do anything to my daughter," Jones said. "I love her, I miss her."
Jones, who has moved out of Camden, said she never suspected Thomas. "I still don't. I really wanted him to be totally cleared."
She describes the investigators' attitude as: "Slam, bam. We got him. We're done."
Jones said she believes a stranger is to blame. "There was unknown male DNA at my house," she said. "Did you ever hear about that person? Nothing."
Thomas, whose legal troubles dashed his hopes of joining the military like his father, is struggling to find a job.
This fall, Corbin tried to convince the trial judge to declare Thomas innocent. The judge declined. Thomas said he wasn't surprised.
"I lost my faith in the justice system," he said. "I don't believe in any of it anymore."