False Confessions Study: Illinois Cases, Center on Wrongful Convictions

The Role of False Confessions in Illinois Wrongful Conviction Cases

Center on Wrongful Convictions Special Report

Lavalle Burt, Steven Linscott, Juan Rivera and Gary Gauger

Lavelle Burt, Steven Linscott, Juan Rivera and Gary Gauger

Posted March 15, 2012

Until recent years, false confessions, false forensic evidence, and, more generally, wrongful convictions were widely assumed by the legal profession and general public alike to be only regrettable anomalies in an otherwise well-functioning criminal justice system.

Most Americans - including jurors and judges - find it almost incomprehensible that someone would confess to a crime he or she did not commit, absent, of course, torture or serious mental derangement. In recent years, however, we have seen that confessions and other highly inculpatory evidence sometimes are not what they seem.

Since 1986, 104 wrongful convictions have been documented in Illinois. Fifty-five of the convictions, or 52.9%, rested in whole or part on false confessions. Thirty-eight of the cases involved the defendant's own confession and the remaining 17 stemmed principally from co-defendants' false confessions. Of the 55 cases, all but two involved additional obvious problems - including dubious forensic evidence, police failure to pursue viable alternative suspects, incorrect or perjured eyewitness identifications, prosecutorial misconduct, and ineffective assistance of defense counsel.

This report analyzes known Illinois wrongful convictions, but does not purport to reflect the full extent of the problem - for two reasons. First, the actual extent is unknown. The systemic problems that contribute to convictions of the innocent become visible only when innocence has been established; whatever problems there may have been in other cases cannot be analyzed for the simple reason that the cases themselves are not known. Second, every problem that may have contributed to a wrongful conviction also is unknown. For instance, when a witness commits perjury he or she might do so because of police or prosecutorial misconduct. While the perjury may be plain precisely why it occurred may not be.

It also should be noted that we make no claim of infallibility in the assessment of actual innocence, or in identifying the factors that led to the convictions analyzed in this report. Such assessments must be, to some extent, subjective. What we have tried to do is provide an accurate, intellectually honest description of each case - and we invite anyone aware of errors or additional facts that might put a case in a different light to call such information to our attention.

Findings

Of the 104 defendants whose wrongful convictions in Illinois murder cases have been documented since 1986:

Of the 55 wrongfully convicted defendants who confessed or were convicted based at least in part on a codefendant's confession:

In addition to the false confession cases in which wrongful convictions occurred, we have identified 14 Illinois cases in which false confessions did not lead to convictions.

Whither false confessions?

It is easy to appreciate why someone who is beaten, suffocated, or shocked with electric current would confess to a crime he or she did not commit. Of the 38 Illinois defendants whose false confessions led to their convictions, however, only seven claimed to have been tortured by police. Although some of the others allege that they were physically abused, they do not attribute their confessions to physical duress. An example is Lavelle Burt, who attributes his false confession to fright — not the physical abuse that allegedly endured.

Perhaps it also is understandable that the young and mentally fragile are especially vulnerable to police interrogation techniques, as vividly illustrated by the Ryan Harris case. Two Chicago boys, ages 7 and 8, confessed to the Harris murder — a crime in fact committed by a serial sex killer. Of the 38 Illinois defendants whose false confessions led to their convictions, however, 25 were adults.

False confessions in the adult cases stemmed largely from widespread use of psychological interrogation techniques that are taught in police academies and have given rise to an industry of consultants. The pioneer and leader in the field is John E. Reid & Associates of Chicago. Interrogation, obviously, is a guilt-presumptive process. Problems arise when interrogators rush to judgment that a suspect is guilty — often relying only on hunches. Once presumed guilty, a suspect typically is taken into a specially designed room — small, cramped, with barren walls, no telephones, or clocks, and no furniture except chairs.

The interrogation, as taught by Reid, begins with a period of rapport-building. The tone is friendly. The interrogators tell the suspect they only need to hear what, if anything, he or she knows about the crime — a ploy that discourages the invocation of Miranda rights. As the interrogation proceeds, the suspect is abruptly accused of committing the crime, and told— often falsely— that the evidence of his or her guilt is overwhelming. Interrogators are trained to cut off denials — a tactic that destroys the suspect’s confidence that all he or she needs to do is tell the truth.

With a suspect on the brink of hopelessness, the interrogators turn to tactics designed to persuade him or her that it is in his or her interest to confess. Inducements range from appeals to conscience or religious beliefs — “God will forgive you” — to assertions that the criminal justice system treats remorseful defendants more leniently than those who persist in denials. Alternative scenarios of how the crime occurred are suggested — while it might have been premeditated and cold-blooded, it also might have been an accident, self-defense, or a situation that simply got out of hand.

If a suspect claims to have no memory of the crime, the interrogators suggest that it is not uncommon for persons who commit crimes that are totally out of character to erase them from memory and experience a kind of self-protective amnesia. But the interrogator is insistent on one point — the suspect definitely committed the crime.

The ploys build upon one another as the interrogation continues. With each passing hour, the suspect’s ability to withstand the pressure withers. Sleep deprivation and hunger exacerbate the sense of hopelessness. Finally, the suspect’s resistance collapses and he offers some vague “okay-I-did-it” type of statement. The admission does not end the interrogation, however, because, to win a conviction, the confession must have at least a modicum of specificity — facts that an innocent person would have no way of knowing. But, as several of the Illinois cases show, interrogators often reveal such details — inadvertently or deliberately. The Juan Rivera case is a prime example.

Adult cases not involving torture can be divided into six categories:

1. Brainwashing cases — in which interrogators deceitfully persuad suspects that they simply had to have committed the crimes in question because there is overwhelming evidence of guilt. The technique, as exemplified by the Gary Gauger case, involves lying about the evidence and offering possible explanations of why they cannot remember committing them— self-protective amnesia.

2. Desperation cases — cases in which exhausted suspects, such as Kevin Fox, confess for no reason other than to bring their grueling interrogations to an end. Suspects in such situations often mistakenly assume that, because they are innocent, they will be able to straighten out the facts after getting some rest.

3. Inquisition cases — in which interrogators lead suspects — Lavelle Burt, for example —to believe that confessing is the only way they possibly can avoid draconian consequences.

4. Inferential cases — in which the authorities misconstrue suspects’ innocent statements as admissions to the crimes. In these cases, the statements are real — only the inferences drawn from them are false. The Steven Linscott case is a prime example.

5. Fabrication cases — in which the authorities, try as they might, cannot get confessions — as in the Madison Hobley case — and thus resorted to inventing them.

6. Opportunism cases — in which suspects or prospective informants, in a naive belief that they can dupe the authorities out of a reward or favor, falsely claim to have information about crimes with which they wound up being convicted. The Rolando Cruz case is a prime example.

What can be done to prevent false confessions?

In 2003, the Illinois General Assembly took a significant step toward reducing false confessions — requiring police to electronically record all custodial interrogations in homicide cases. The Illinois law is the only one in the nation that, with rare exceptions, makes confessions in homicide cases inadmissible in court unless the interrogation was recorded.

Electronic recording creates reliable, objective records of what actually occurs during interrogations. It documents whether threats or promises were made, whether Miranda rights were read and knowingly waived, and whether confessions actually include accurate facts of the crimes in question or simply echo information provided by interrogators. It deters blatant coercion of the sort to which Paula Gray was subjected by Cook County Sheriff’s Police. And it prevents fabrication of confessions, as occurred in the Rolando Cruz case.

Had the Illinois electronic recording law been in effect in 1986, none of the false confessions to which this report refers would have been admissible in court.

Electronic recording, however, is no panacea. While it will document whether corroborative details originated in the mind of the suspect or were suggested during interrogation, it will not prevent innocent suspects from succumbing to the powerful psychological techniques in which the police have been thoroughly schooled.

Drawing lines between acceptable and unacceptable police conduct is difficult, but among reforms that would have prevented most of the documented Illinois false confessions are these:

1. Limiting the duration of interrogations. A national study by Steven A. Drizin of the Center on Wrongful Convictions and Richard A. Leo of the University of California-Irvine (“The Problem of False Confessions in the Post-DNA World,” North Carolina Law Review, March 2004) found that 84% of false confessions occurred after interrogations of six hours or longer and that the average duration was more than 16 hours. Drizin and Leo recommend that interrogations in excess of 12 hours should be categorically inadmissible in court and those of more than six hours should be admissible only if the prosecution can establish beyond a reasonable doubt that they were voluntary.

2. Polygraphs and voice-stress analysis should be banned. There is in fact no reliable lie-detection technology, but innocent suspects often believe — and are led to believe — that the machines are reliable. Many suspects, thus, are eager to be tested, anticipating that the test will prove they are telling the truth. Then, they are devastated when told — often falsely — that they failed. Confessions then follow. The best remedy would be for the courts to suppress any statement made by suspects after they have been told that polygraphs or voice-stress analyzers indicated that they were lying.

3. Lying by interrogators, which occurs in virtually all false confession cases, should be strictly limited. Lying is presently permitted under 1969 Supreme Court decision known as Frazier v. Cupp. The interests of justice would be better served by the suppression of all confessions by juveniles, the mentally retarded, and the mentally ill to whom interrogators have lied. Likewise, confessions by normally functioning adults should be suppressed if they were told lies involving family members. Kevin Fox, for instance, was told that his wife no longer believed him and his family stopped loving him.

4. Implicit promises of leniency should be prohibited. Rarely do interrogators make explicit promises of leniency — for example, that if the suspect confesses, he will not be charged. If proven, such promises would result, under current law, in suppression of any ensuing confessions. Police, however, are taught a process known as pragmatic implication. The idea is to suggest alternative scenarios for crimes — one that it was cold, calculating, and premeditated, the other that it was impulsive, that the result was unintended, or that it was self-defense. The implication is clear — accepting the latter scenario will mitigate, or perhaps eliminate, punishment. To a suspect, even if innocent, it may seem reasonable to cut his losses and confess once he is convinced that continued denials would be futile. Implicit promises should be banned because their effect is the same as explicit ones.

5. Hypothesizing blackout scenarios, as was done in the Gary Gauger case, should be prohibited. When an innocent suspect like Gauger is led to believe there is rock-solid evidence that he committed a crime he cannot remember, the only remaining question is why he cannot reconcile the evidence with his memory. At this point, the interrogator offers an explanation — perhaps he committed the crime in a blackout or amnesiac trance. Then the suspect is asked to imagine how he might have committed it, and he compliantly begins to speculate. What he says, naturally, is likely to include information consistent with whatever facts of the crime he learned during his preceding interrogation. Those facts then are misconstrued as knowledge to which only someone involved in the crime would be privy. Because there no doubt are instances when guilty suspects feign memory loss, it would not be reasonable to prohibit police from ever advancing hypothetical amnesiac scenarios. However, any statement that follows should be suppressed unless the prosecution can show by clear and convincing evidence that the statement includes a substantial amount of accurate information that was neither imparted during interrogation nor was in the public domain at the time.

6. Judges should hold pretrial reliability hearings before confessions are admitted into evidence. Under current law, the only prerequisite is that confessions be voluntary. Reliability simply is not an issue. This should change. Reliability hearings already are common regarding other kinds of evidence — eyewitness identifications, informant testimony, novel forensic evidence, and hearsay. There is no logical reason that confessions should be an exception. There already is a general consensus on what makes an inculpatory statement reliable — substantial corroboration, which is amenable to objective examination before trial. It certainly seems that the question of reliability of a confession is more likely to be accurately resolved by a judge in pretrial proceedings than by a jury in the emotion-charged atmosphere of trial.

Center on Wrongful Convictions

FALSE CONFESSIONS STUDY: ILLINOIS CASES

The Role of False Confessions in Illinois Wrongful Conviction Cases