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August 25, 2010

Does police misconduct justify (only) a sentence reduction by precluding the death penalty?

The question in the title of this post is prompted by this interesting story about a state trial judge's ruling in a double-murder trial in North Carolina.  The story is headlined "No death penalty in slayings of 2 Charlotte officers, judge rules," and here are the details:

A Mecklenburg County judge ruled Tuesday that Demeatrius Montgomery should not face the death penalty because a detective's misconduct has tainted the trial in the killings of two Charlotte police officers.

But Superior Court Judge Forrest Bridges allowed the trial to continue, rejecting a request by Montgomery's attorneys to dismiss the murder charges entirely. Bridges called the case a "moving target." He said former police Detective Arvin Fant's admission that he threw away and plagiarized notes has "placed a cloud of suspicion over these proceedings."

But in his ruling, Bridges said: "We like to think that our cases are handled in a way that we can eventually arrive at the truth and that justice can be obtained."

Montgomery is charged in the 2007 killings of Charlotte-Mecklenburg Police officers Jeff Shelton and Sean Clark.... Montgomery's attorneys say Fant's missing notes may include an interview with a jail inmate who had come forward to report that another man confessed to shooting the officers. But prosecutors said the inmate's statement was contradicted by facts of the case.

Prosecutors wouldn't say Tuesday whether they'll appeal Bridges' decision. But the ruling was a blow for the prosecution, the police department and families of the victims.

Assistant District Attorney Marsha Goodenow implored the judge not to punish the victims and their families for the actions of one investigator, which she argues have not corrupted the case. "Jeff Shelton and Sean Clark did nothing wrong...," Goodenow said. "Their families are in this courtroom; they did nothing wrong. The state did nothing wrong."...

Bridges' ruling sends a strong message to local law enforcement that it will face penalties for mishandling evidence, says Charlotte lawyer Jim Cooney, a death penalty expert who is not involved in the case. "The judge has a great amount of power to decide the right remedy. It can range from not letting a witness testify to throwing out the case," Cooney said Tuesday.

UPDATE:  Thanks to Bruce Cunningham, I saw this follow-up story, which includes this noteworthy update:

Earlier Wednesday, prosecutors said they would not appeal Bridge's decision to ban the death penalty in Montgomery's trial. Prosecutors said the appeal would take at least 18 months and it was likely that the judge's decision would be upheld.

August 25, 2010 at 09:28 AM | Permalink


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"Bridges' ruling sends a strong message to local law enforcement that it will face penalties for mishandling evidence, says Charlotte lawyer Jim Cooney, a death penalty expert who is not involved in the case. 'The judge has a great amount of power to decide the right remedy. It can range from not letting a witness testify to throwing out the case,' Cooney said Tuesday."

Actually the judge's remedy is idiotic. It exacts no toll on the offending officer, and confers a windfall benefit on the defendant. The punishment a criminal should receive depends on HIS behavior, not anyone else's behavior. If in the next case the police act in a way that is especially exemplary, should the defendant get a HIGHER sentence? Of course not. As I say, to make the criminal's sentence depend on actions other than his is idiotic. The Left will applaud this, of course, but only because it produces leniency, not because it makes sense.

What would make sense is to fire the officer who committed the misconduct. A policeman who tries to cover up his misdeeds cannot be trusted to wield sovereign authority. But it has zilch to do with the defendant's culpability.

Posted by: Bill Otis | Aug 25, 2010 9:49:53 AM

I think the judge's decision in this case is due in part to the fact that NC is in the midst of a crisis of confidence about the integrity and professionalism of the criminal justice system. An independent audit of the lab of the State Bureau of Investigation, conducted by two reputable former FBI agents, has made national news recently with its report that in 230 cases, lab analysts withheld potentially beneficial information from the defendant.

In this case, the evidence was that the police officer threw away potentially helpful notes and information. Therefore, the judge did a courageous, and I think proper, thing of telling the state that as a sanction for that conduct, the state has forfeited its ability to seek the most severe punishment of death. The state can prosecute the def for murder, resulting in life without parole, but it can't seek death.

Unlike the European inquisitorial approach, we in the United States have decided that the best way to ascertain the truth in a case is through the adversarial system. While the adversary system has it strengths, it also results in a system where one side wins and the other side loses. Recent developments in discovery and notions of due process require disclosure to the defense of evidence beneficial to the defense. Brady v Maryland, although being on the books for a long time, is just now beginning to get traction.

In some ways, it goes against human nature to require people to divulge information that may help their "side" lose and the other side "win." It therefore, presents the temptation for officers and analysts to withhold information, seeing that somehow differently than affirmatively presenting false information. I believe there can be falsehood by omission just as much as falsehood by assertion.

At any rate, the judge took a step well within his power to send a message that the sanction for a lack of fair play is to deprive the state of their ultimate prize. The fact that Doug posted this on the blog reveals that part of the judge's goal of deterrence may have been realized.


PS. In NC, the criminal justice system is in a turmoil unlike anything I have seen in the last 37 years of trying cases. It will be fascinating to see what is done to restore confidence in the court system. I think the only solution is to remove the SBI lab from under the auspicies of the Attorney General because the current situation presents an unavoidable appearance of a conflict of interest.

Posted by: bruce cunningham | Aug 25, 2010 9:49:57 AM

"The punishment a criminal should receive depends on HIS behavior, not anyone else's behavior."

On the surface and in general a perfectly logical statement. But then again maybe if you consider the government's position that there is no freestanding constitutional "right not to be framed." in the recent Pottawattamie County v. McGhee case the statement maybe not so logical. In addition, because this case was settled out of court, there is still the presumption that prosecutors are immune from censure for making it up as they go.

While there may be nothing in the constitution that guarantees that a person can't be framed,doesn't a defendant have some sort of right to expect fair treatment and full truthful disclosure? If anything goes to get a conviction, and there is ample evidence of that mindset on the part of many federal prosecutors, then the punishment of a defendant is certainly impacted by the action of others. Perhaps that was on the mind of the judge in this case.

Posted by: Just Asking | Aug 25, 2010 10:34:53 AM

Bill Otis,

I would prefer that the case be thrown out on such a showing. If the state (and its agents) can not be trusted I cannot see allowing them to place a man's liberty in jeopardy. Your argument that this is the action of one man is bull and you ought to know that. In other contexts you would argue that this guy's actions (not these particular acts, but other acts taken as an officer) would be entitled to immunity for being a state actor. Either he has no protection when he crosses the line or his actions are those of the state and the state must be held to account for his misdeeds.

Posted by: Soronel Haetir | Aug 25, 2010 10:36:39 AM

Just Asking --

If the judge found that the state's action irretrievably polluted the jury's opportunity to decide if the defendant ACTUALLY DID IT, then I would agree that the case would have to be thrown out in its entirety. The judge's eliminating the state's opportunity to convict at all would, under those circumstances, be a perfectly sensible remedy. But if a jury still has enough untainted evidence so that it could legally find the defendant did it, there's not a grain of sense of depriving it of its opportunity under state law to impose the DP.

The state's misconduct might well have impaired the factual integrity of the TRIAL; that would be one thing. But it did nothing to impair the appropriateness or legality of the DP as the defendant's PUNISHMENT.

Soronel --

See above.

"Either he has no protection when he crosses the line or his actions are those of the state and the state must be held to account for his misdeeds."

The question is not whether the state must be held accountable for its misdeeds -- of course it should -- but what the correct accountabilty is. Barring the trial altogether might be, if, for example, the officer's misconduct gives rise to a serious question about whether there remains sufficently reliable evidence for a jury to convict. But if there is such sufficient evidence, barring the DP makes no sense. There is just no logical connection between investigate misbehavior and punishment if and after a proper guilty verdict is returned.

This debate is eerily similar to one the Fourth Circuit resolved in the government's favor in the notorious case of Zacarias Moussaoui, who was convicted in my old district, EDVA. For the government's refusal to comply with discovery orders, the district court imposed a sanction of, inter alia, dismissing the death notice. Although leaving other sanctions in place, the Fourth Circut reversed that one, and Moussaoui did face the death penalty (although the jury did not impose it).

Posted by: Bill Otis | Aug 25, 2010 11:35:29 AM

Bill Otis,

I believe that the state needs to be punished for being willing to hire such people to begin with. Perhaps if there were evidence that such acts were bad for ones career I might be inclined to agree with you. However everything I've seen would tend to point the other way.

Perhaps Bruce is right that it is simply a failing of adversarial criminal justice.systems are without fault

Given that as a general matter firings don't actually appear to be on the table over such misconduct what realizable remedy do you propose?

Posted by: Soronel Haetir | Aug 25, 2010 12:15:09 PM

Soronel --

Two things: First, a fine to be imposed on the officer. I don't know the amount; it would have to be big enough to get his attention and act as an effective deterrent. A stipulation would be that it could not be reimbursed by the employer. Second, a fine on the employer (the state).

This remedy would rationalize the punishment. It would hurt the entities actually responsible (the officer and his employer) while not hurting those bearing no realistic responsibility (the public). It would also have the advantage of maintaining the sensible -- indeed I would say indisputable -- idea that the puishment of X should hinge on the behavior of X, not on the unrelated (for punishment purposes) behavior of Y.

Posted by: Bill Otis | Aug 25, 2010 12:38:06 PM

I could go for that, though again I don't see that being realizable. Unfortunately the courts will, for the foreseeable future, be the only body independent enough to exact any form of non-political accountability. And I don't see courts willing to enter the territory you propose.

I certainly don't see a legislature willing to enact such a system, especially over the vocal opposition of police and prosecutors (whom I also believe such a system should apply to were it enacted), even though it might well satisfy the concerns behind Miranda and Brady in a way that does not prevent evidence being used.

Posted by: Soronel Haetir | Aug 25, 2010 12:51:04 PM

Bill, there must be more to this story than we know right now. The state announced today they are not appealing the decision. Apparently a criminal investigation of the officer is being sought. The state even went so far as saying they thought they would lose if the order was appealed.

I wonder what the full story is?


Posted by: bruce cunningham | Aug 25, 2010 1:22:37 PM

bruce --

You and me both.

Posted by: Bill Otis | Aug 25, 2010 2:25:50 PM

Bill Otis,

I would also add that we have to decide what to do with the case in front of us right now, not just what we would like to do in the future. I don't think what you propose would survive if entered as a court order by the judge overseeing the trial (perhaps as a contempt finding? I don't think the basis would matter a great deal).

As for not punishing the public for the failings of government officials, it is the public that ultimately holds authority over the legislature and police departments that are very often unwilling or unable to pursue action when such misconduct come to light. If it takes "punishing the public" to get them to make their servant pay attention so be it.

I believe out of control government is far more dangerous than one executed murderer more or less.

Posted by: Soronel Haetir | Aug 25, 2010 3:36:45 PM

Soronel --

"As for not punishing the public for the failings of government officials, it is the public that ultimately holds authority over the legislature and police departments that are very often unwilling or unable to pursue action when such misconduct come to light. If it takes "punishing the public" to get them to make their servant pay attention so be it."

I respectfully disagree. Your argument proves too much -- way too much. It's a question of (1) a logical link between the official's offense and the remedy imposed for it, and (2) the proportionality of the remedy.

The present case flunks both tests. As I noted before -- and you have not disputed -- there is no logical link at all between the official's misconduct and the defendant's culpability (and therefore punishment). But even if there were, eliminating the DP goes too far. A lesser remedy, such as the ones I named, or barring introduction of evidence related to the taint, is more nearly in line with the official's misconduct (so far as we know about it).

If a government official failed to provide required discovery in the McVeigh case, or failed to provide it on the date due, would you say that McVeigh should be relieved of liability to the DP? Maybe, but I doubt it. The gravity of his crime simply demanded capital punishment, as 80% of the country, including a majority of those usually opposed to the DP on principle, agreed. Taking it off the table would properly have been regarded as a gross miscarriage of justice.

The relationship between the misconduct of the particular officer and the public that, in a very broad sense, is his employer, is way too attenuated to make the public pay the price. In order to be even effective, much less proportionate and just, the remedy should be narrowly tailored and specific to the person who caused the problem. The remedy in this instance was neither.

If the law should demand accountability from government officers (as it should), it should do so in a way that is not an out-of-left-field windfall to killers.

Posted by: Bill Otis | Aug 25, 2010 5:33:15 PM

Bill Otis,

Now we are simply into value judgments. You and I weigh the value of clean governance differently.

I see the blameworthiness of hiding evidence to convict the guilty as being greater than that of the murderer to begin with. The officer who taints any case has tainted everything he ever worked on. I don't see tossing out cases, even where other evidence is strong, as being too great a response in that such an extreme sanction is needed to keep all of the small and routine cases clean. I see it as being a necessary component in ensuring that police departments and the individual officers are unwilling to tolerate misconduct in their ranks.

Posted by: Soronel Haetir | Aug 25, 2010 6:26:44 PM

I have always been puzzled and frustrated by the exclusionary rule. It would be better to sue the officers in torts for their deviations from professional standard of due care.

As to precluding the death penalty, there is not a single phenomenon on earth that does not justify preclusion to the abolitionist, defendant caught a a virus, is having a bad day, a good day; it is Thursday, it is not Thursday.

Posted by: Supremacy Claus | Aug 25, 2010 8:50:47 PM

Judge Bridges is not an abolitionist, but something persuaded him that the state forfeited the opportunity to seek death.

Supremacy Claus, you do not understand the origin of Miranda. It was confessions being beaten out of defendants in the deep South. Since I am a hardcore supporter of Holmesian legal realism, I agree with the opening paragraph of The Common Law that the life of the law is not logic, but experience, addressing the "felt necessities of the time." Now that interviews of defendants are videotaped, as a personal matter, I do not mind some loosening of the Miranda requirements.


Posted by: bruce cunningham | Aug 25, 2010 9:04:11 PM

I agree with Bill Otis that it is hard to see, from the information given, how the government's actions made the defendant ineligible for the Death Penalty. I could understand if the government tainted the whole trial, but if it is still possible to find the him guilty, then the defendant should face the full range of permissible sentences.

Posted by: Marc Shepherd | Aug 25, 2010 9:59:28 PM

SC --

For once, I entirely understand your comment, and entirely agree with it.

bruce --

Miranda has outlived its usefulness. It is to the law what bell bottom jeans are to fashion. As I put in my May 10 entry on Crime and Consequences, "... recent events have brought into focus what we should have known before: Miranda is a period piece. It was in step with the liberal excesses of the 1960's, but has become an anachronism, and a dangerous one at that. Over the past 44 years, its benefits in curbing the sometimes abusive police behavior of its time have dimmed, while its costs, in inviting dangerous suspects to stonewall, have increased. Nowhere is this more obvious than in our current conundrums about when or whether terror suspects like the Times Square bomber should be given the famous warnings or, if not, how long the warnings should be delayed."

DOJ is currently turning itself into a pretzel on what to do about Miranda warnings and terrorist captives. It made this bed for itself in its foolhardy brief in the Dickerson case. I hope they have a good ole time lying in it.

Marc Shepherd --

It is indeed hard to see any logical nexus between the misbehavior and the remedy imposed.

Soronel --

Clean governance at that steep a price is too masochistic for me.

Posted by: Bill Otis | Aug 25, 2010 11:05:07 PM

Evidently Mr. Bill think a defendant who files a habeas corpus a day late should not be denied review but instead should be put at the bottom of the pile or something.

Just kidding. If this defendant did not learn of the evidence tampering, which is what it amounts to, until after conviction, and then filed his habeas corpus a day too late, Mr. Bill would no doubt say, "Tough luck. He should have obeyed the rules. Petition dismissed."

Posted by: George | Aug 25, 2010 11:13:18 PM

Beating a confession out of a defendant is police unprofessional conduct. And because it is an intentional tort, it should be subjected to exemplary damages. I bet, one tort verdict against the police, and there is no more beaten confessions anywhere in the nation. The exclusionary rule punishes the people and the victims, not the police that did the beating. So beaten confession continue uninfluenced by the court.

The exclusionary rule has the appearance of virtue, but is a sham. The hierarchy wants nothing to defund its agent, the police.

Why is a beaten confession unprofessional? It inaccurate, unreliable, and just a waste of time and muscle. Even excessive persuasiveness and salesmanship invalidates a confession. Of the 20% of people on death row who were exonerated, a quarter had confessed to the murder.

Posted by: Supremacy Claus | Aug 25, 2010 11:51:29 PM

"The officer who taints any case has tainted everything he ever worked on."

Bingo, Soronel.

No citizen should have to depend on a court's ability to sort through police lies in search of enough remaining credible evidence to secure a conviction.

I was about to ask Bill to help me understand why the detective's actions weren't criminal in nature when Bruce noted an investigation might be in the works. Which is good.

BTW: Years ago I had a lengthy discussion about Miranda warnings with a respected, successful homicide investigator I knew quite well (my father). He told me he never had a problem with Miranda because his focus was on building solid cases, not tricking or coercing suspects to confess. Dad spent his last few years on the force as head of internal affairs, and he was as rigorous in the pursuit of rogue, "badge-heavy" cops as he ever was of murder suspects.

For me, Miranda is important mostly for the symbolic statement it makes to citizens accused of crimes: We intend to treat you fairly and respect your rights...which also suggests they don't intend to beat you with a phone book or rubber hose.

Posted by: John K | Aug 26, 2010 11:58:10 AM

John: I would be interested in learning the rate of false confessions that a thoroughly professional interrogator can count on. If your father is still alive, ask what his rates of false positives was, with all his due care. If the rate was higher than 20% (certainty required by "beyond a reasonable doubt" burden of proof), then even confessions must be excluded if not supported by objective physical evidence.

Posted by: Supremacy Claus | Aug 26, 2010 6:10:27 PM

John K --

"I was about to ask Bill to help me understand why the detective's actions weren't criminal in nature when Bruce noted an investigation might be in the works. Which is good."

I hope the matter is brought before a grand jury, and I don't want to hear from the cop that he was "under stress" or had brain lesions or a tough childhood or that America is a racist swamp or anything else from the inventory at the Excuse Factory.

Citizens must abide by the law. If they want to change it, fine; that's why we have a democracy. But until they secure change, the social contract demands obedience rather than do-your-own-thing. Cops are no exception; indeed, the only relevant exception pertinent to them is that they should be even more vigilant to be law abiding.

P.S. Like your father, most of the police had no operational problem with Miranda. Indeed, Miranda-type warnings were alread SOP in most parts of the country when it was decided in 1966, and would stay in place if it were overruled now.

The problem with Miranda is not so much that it's an anachronism, although it is. The problem is that it was incorrectly decided to begin with. The Fifth Amendment bars COMPELLED statements, not UNWARNED statements. There are times that the two will be co-extensive, but times where they won't be. The Framers knew all about the subject. If they had intended to bar unwarned statements, that's what they would have said. It's all well explained in Scalia's acid and unanswerable dissent in Dickerson.

Posted by: Bill Otis | Aug 26, 2010 6:11:43 PM

i have th agree these govt officals basicaly lied and hid evidence thus corruptiing EVERYTHING involved in this case. Case is GONE!

sorry a lier is a lier a thief is a thief..if they are doing this during THIS TRIAL what else are they pulling EVERYWHERE ELSE! That should be the $1,000,000,000,000,000 question!

Like others have said. It's bad enough when a normal citizen lies or cheats. but when someone sworn to uphold the law and the constution do it...it's even more CRIMINAL.

as for miranda what's so sad about it is simple! THE FACT IT NEEDED TO BE DECIDED IN THE FIRST PLACE! the people who wrote the documents that our govt is founded on had 1,000 years of history showing just how easy it was to beat the hell out of someone till they confessed to ANYTHING EVEN when by doing so they GUARANTEED a DEATH SENTENCE. Which was also the reason you are protected from testifying against yourself and torture was illegal and criminal in this country against ANYONE even up to the 2nd world war. It's only after that when the nuts and crooks took over the govt that suddenly it's OK to torture someone again in this country.

Posted by: rodsmith | Aug 26, 2010 11:26:02 PM

Of cousrse why do we even exect anything better from our police or our govt when court after court all the way up to the U.S. Supreme Court has ruled again and again that it's perfectly legal for our govt and law enforcment to do the following


and so on with no punishment.

Posted by: rodsmith | Aug 26, 2010 11:28:06 PM

Bill would argue, the government is granted privileges on our behalf. For example, the maintenance of nuclear weapons, not permitted the ordinary citizen. He argues, if you do not like cases built on government bad faith, pass a law to override the Supreme Court decisions allowing police dishonesty. I hope I understood him correctly, when I raised the same point.

Posted by: Supremacy Claus | Aug 27, 2010 12:44:25 AM

SC and rodsmith --

The Supreme Court has said more than once: "[a]s with any remedial device, the application of the [exclusionary] rule has been restricted to those areas where its remedial objectives are thought most efficaciously served." United States v. Calandra, 414 U. S. at 348; see Stone v. Powell, 428 U. S. at 486-487; United States v. Janis, 428 U. S. 433, 428 U. S. 447 (1976).

The case here offers an even more attenuated application of the exclusionary rule than the Supreme Court has already rejected, because what the trial court excluded here was a lawful punishment -- which had absolutely no relationship with the officer's misconduct -- rather than tainted evidence, which DID have that relationship.

The instinct to "get back at the government for misbehavior" has to have some definition and some limits. If not, why shouldn't the trial court here order the release of the last ten people the government convicted? Or the last thousand? That would show 'em, right??!!

What it would actually show is that the trial judge was nuts. It's hardly breaking new ground to say that the remedy -- here or elsewhere -- should bear a relationship to the nature of the infraction, and should not gratuitously infringe on the public interest in meting out deserved punishment.

It is true, as SC points out, that the sovereign is given prerogatives withheld from private persons (e.g., imprisoning people for years). But that, while true, is off the specific point here. The government has not been given the right to tamper with evidence. When it does, through one of its agents, there has to be a remedy. The only question here is what the remedy should be. Creating an irrational sentencing windfall for a killer takes it both in the wrong direction and too far, just as releasing the last 1000 convicts would.

Posted by: Bill Otis | Aug 27, 2010 1:50:04 AM


"It is true, as SC points out, that the sovereign is given prerogatives withheld from private persons "

WHAT SOVERIGN? last time i looked we don't have some idiot who thinks they are either descented or appointed by GOD! what we have are EMPLOYEES! sorry NO employe of mine will EVER HAVE MORE POWER THAN I DO!


the last idiiot who tried to claim to be our soverigh got ran off a pier in boston harbor in the 1700's!

plus you come right back to that big problem IF IT'S A CRIME! IT'S A CRIME i don't care WHO'S DOING IT!

there is a bid difference in telling someone your a drug dealer to try and buy THEIR drugs! and hiding LEGAL INFORMATION! or FAKING UP WITNESSES OR TESTIMONY!

sorry at that point your not only a CRIMINAL but a BIGGER one than a normal citizen BECASUE of the OATH you took!

as for what the S.C has said! SO WHAT! it said for over a 100 YEARS SLAVERY was legal! anyone wanna take bets of what would happen to them if they tried to announce the same thing now!

WRONG is JUST WRONG! i dont' care who does it!

who knows maybe just MAYBE if the the govt would stop being BETTER CROOKS then the crooks maybe in cases like this where they have actual TRUTHFUL information no matter how they got it we'd not have a problem allowing it's admittance since what it all boils down to in a court procedding is we are "supposed to be getting the truth" about what happened! but that will never happen as long as the average american thinks our govt is full of bigger crooks than the ones being prosecuted!

Posted by: rodsmith | Aug 27, 2010 3:35:53 AM

Rod: Not only is government deception allowed, it is rewarded a with a conviction and promotion. My point was to justify symmetry or even consider it a duty to lie to the FBI, a bunch of incompetents going after doctors for coding wrong and Martha Stewart for a $100 beef, while allowing Al Qaeda to have its way with the nation. The lawyer leadership of this PC, anti-America, pro-Muslim, biased, enforcement agency must be removed. When one of them tried to do her job protecting the nation from terrorists, she was crushed. The 9/11 Commission totally covered up the role of the terrorist enabling lawyer profession in 9/11. There should be zero tolerance for terrorism collaboration.

Posted by: Supremacy Claus | Aug 27, 2010 8:46:29 AM

Thanks for asking, SC, but regrettably I can't check with my father about false confessions. He died in 2002.

Though I did follow his career fairly closely and only recall one instance when "a couple of nut jobs" phoned in to claim credit after a highly publicized killing.

From what I've seen, most other false confessions appear to be a consequence of giving the authorities the power and resources to turn hunches (good ones and bad) into reality.

And for that purpose, no more effective post-Inquisition tool has existed than the sentencing guidelines -- which empower prosecutors to ratchet up the stakes until confessing becomes the only rational choice...regardless of guilt or innocence.

Posted by: John K | Aug 27, 2010 11:58:36 AM

False confessions are intolerable, and cast doubt on the entire criminal law subject. The Supremacy confessed falsely in a traffic related plea bargain. What a rapid fire, money making operation was that traffic court, with ever increasing pressures and intimidation of anyone seeking to slow it down with any trial or fair hearing. What went on there? Not one aspect or method was ever covered in Evidence or Criminal Procedure.

Posted by: Supremacy Claus | Aug 27, 2010 2:57:00 PM

I was an AUSA for 18 years and I saw plenty of false confessions, but not in the sense being bandied about here. What was false about them was that the defendant minimized his involement, or omitted it entirely when he thought he could get away with it. Not one time did a defendant admit to doing something he didn't do.

It's possible, I suppose, that a person might knock on the police station door to tell the cops, falsely, that he just offed the competing drug dealer. But with exceeding rare exceptions, there is no such thing as the false inculpatory confession.

Posted by: Bill Otis | Aug 27, 2010 3:26:39 PM

Haha. Then it must be so. I guess the fifty-something persons who falsely confessed to the Austin yogurt shop murders must have really been the ones who done it.

Posted by: Mark # 1 | Aug 27, 2010 9:04:03 PM

Bill: About 25% of the death row inmates who were exonerated with new DNA testing had confessed to the murder. I experienced the same pressure.

Posted by: Supremacy Claus | Aug 27, 2010 9:31:13 PM

SC, good luck persuading a current or former prosecutor that every thing they ever did wasn't golden.

Posted by: John K | Aug 27, 2010 10:47:09 PM

If any of you worked for nearly two decades at the center of the system, as I did, you would be in a postion to know that the "false confession" business is an urban myth. I would be happy to state under oath my prior post on this subject, word for word.

Sure, you can find some outlier case where it happened, then beat the drum for it to make it seem like the norm. You can also find the well known village nutcase who confesses to every new murder, not to mention the JFK assassination. But you cannot truthfully weave these exceptions into the commonplace reality you seek to portray.

Fine. I will repeat: The false confessions that actually get made are false because they UNDERSTATE or simply hide significant parts of the defendant's actual behavior. Everyone who -- unlike you -- does criminal litigation knows this. Indeed, the only people defendants lie to more often than to the authorities are their own lawyers.

SC: I think I should expect more of you than to prevaricate in order to deal with a traffic ticket, if that's what you actually did. If you were innocent, why didn't you contest it? If you didn't want to spend the time going to traffic court, plead not guilty, don't show up, get the fine and pay it. You'd wind up paying it anyway, so what's the sense in falsely inculpating yourself?

I've been caught speeding a few times and have been ticketed. I never lied about it and just paid the fine. It's just not that hard to deal honestly with the world. And even if it is hard, do it anyway.

John K: I don't recall saying that "everything I did was golden." Where was that?

I am, however, proud to have had the honor of representing the United States in court. That's one reason I am perfectly content to use my real name here, and to welcome scrutiny of the cases in which I participated. I am unimpressed by critics, like Marky, who merely spit from behind the curtain of anonymity -- spit at those who feel no need for the curtain.

Posted by: Bill Otis | Aug 27, 2010 11:28:46 PM

Well sure Marky, for every sensational and awesomely publicized crime like the Austin yogurt shop murders, there are a whole bunch -- the ususal bunch -- of headcases, drunks and vagrants who walk into the police station and "confess." Often they confess to killing William McKinley too, plus the Tate-LaBiance murders. For a crime as sensational as the one in the yogurt shop, I'm surprised it was as few as 50 of these sorts of "confessions."

For the Murrah Building massacre, it could have been 500. Maybe more. I have no idea.

Of course what you intend to imply is pure fiction. With false "confessions" of the sensational case variety, the cops don't send the guy over to the DA's office for prosecution. What actually happens is that they give Charlie the confessor a doughnut and a vending machine sandwich, talk to him to see if he's entirely lost contact with his social worker, then tell him a cheerful "so long" until next week's confession.

I'm sorry, I thought you were being serious. My mistake.

Posted by: Bill Otis | Aug 28, 2010 8:36:03 AM

What you seem to be overlooking, Bill, is the prevalence now of literally thousands of vague, sweeping, grab-bag laws, any number of which can be applied to almost any social or economic conduct.

Then there's the erosion of criminal intent as a controlling factor in determining if crimes have occurred…as opposed to mere torts or regulatory infractions (not so long ago there were bright-line distinctions between these categories).

Consider, too, prosecutors' deep pockets full of draconian guidelines sentences that -- wielded with imagination and determination -- are capable of making even innocent and wrongly accused citizens somewhat eager to sign plea agreements.

After all, next to the routine and entirely plausible AUSA threat of 30-plus years in prison, a felony rap and six months or a year in minimum security can look like the only sane move. All the more so if you lack a quarter of a million dollars to pay for an attorney capable of convincing 12 mouth-breathing jurors that sainted federal agents and prosecutors might even consider railroading innocent citizens into prison.

The point is that some defendants who had no idea they'd done anything illegal (including some who'd even been advised by attorneys in their purportedly criminal dealings) somewhat routinely end up signing plea agreements that, in essence, declare to the court and the world they knowingly broke the law.

Generally it's people in these circumstances I have in mind when I talk about false confessions...and innocence...and wrongful accusations.

This isn't to suggest prosecutors who do these things are willfully evil. Though the only alternative explanation that comes to mind is embodied in the notion: When you're a hammer, everything looks like a nail.

Posted by: John K | Aug 28, 2010 3:01:34 PM

Bill: Your comment deeply appreciated by many others than me.

They crushed me. They threw me around like an Orca flipping a seal in the air for play. How would you handle it better?

The charge was Careless Driving. It is vague. Its vagueness was endorsed by the state Supreme Court to cover the innumerable ways to drive carelessly. Due to its subjectivity, the mental state of the state trooper is material.

Here we go. All those with pleas sign in at 9 AM. Those disputing the ticket get seen at 1 PM. This order of appearance was set by the Supreme Court, the judge says, do not blame me. So automatically, I lose a day of pay, 4 numbers in my daily pay. The trooper is not here at 1 PM. I demand dismissal because the prosecution has no witness. No. There will be a continuance. The judge would treat me the same if I had trouble lining up witnesses. OK. Next, I demand total discovery on the trooper because his personality is material. There is no objective measurement of speed, alcohol level, damages. They say, OK, you can have the video of the stop, which begins after the end of the careless driving. I can have the notes on the ticket written at the time of the stop. I say, no. I want the medical records, the driving record and the ticket record of the trooper. No. I demand dismissal of the charges based on my right to a speedy trial in the state constitution. No. The Supreme Court of this state has defined a speedy criminal trial as taking place 6 months after the stop or arrest.

They give me a second day to return. I change my schedule. They change the day to a week earlier at the last minute. No. I cannot speak to the judge. And if I do not show up, a warrant for my arrest will be issued. They learned their customer service in Russia.

OK. Day 2. (Without the discovery I demanded.) At 9 AM, it begins. No matter the charge, almost everyone is pleading to Unsafe Driving, $400 with no points. There is a plea every two minutes. They make $12,000 that morning. Everyone says, "Yes, Your Honor, I was driving unsafely on that date. Thank you, Your Honor." The no points deal prevents insurance increases far greater than the ticket, driving school, loss of license. I understand why the lawyers that solicited my business were as silent as potted plants. They would get you the offer made to everyone, but for $500.

So, I go in to the prosecutor's office after being on a long line. Everywhere I go, people ask if I am lawyer, to my shock and frustration. No exception here. They want to take me ahead of the long line of losers waiting to plea. No, not a lawyer, but an owner of the law and I pay your salary. Get back in line. The prosecutor has no idea about my case. I say, give me the discovery I demanded in my month old letter or I will change your personal future. He says, you just threatened me. In 15 seconds, I am surrounded by four thugs with hands on weapon. I say, I will report you to the Disciplinary Counsel for your refusal to obey 3.8 (d). They say, sit down, be quiet. I sit down, be quiet. This threatened prosecutor is 20 years younger, a foot taller, and appears to lift weights. One of the thugs chimes in, you know that law is very subjective and depends on the mood of the officer. He offers me Unsafe Driving, and $400. I do not appreciate his misleading me. The Unsafe Driving will result in 2 points in my home state, and he failed to tell me that. He says, what do you want? I say, the only charge without points in my state is driving 4 mph over the limit. "Did you drive 4 mph over the limit?" "No." Then he cannot offer that plea, due to ethics. He wants me to sit on the bench outside the office, think about what I really did, and to return if I remember something. He sent me to the Thinking Chair.

I am saying, eff these pirates, I am going down in flames and taking them with me. Meanwhile, another defendant's officer does not show up. He asks for a dismissal but gets another continuance. He argues about many points of undue burden, in lay terms. The judge stands up, and yells, at the top of his voice. "Not another word, silence. Don't open your mouth." Out of nowhere this defendant is surrounded by four thugs. He pauses a minute, and says, I want to plead. He comes back, Unsafe Driving, $400. The judge is completely changed. He wishes this guy well with his pregnant wife. He appreciates his patience with the process. He wishes him success in his future efforts. Customer service from Nordstrom.

Then, it dawns on me. How many continuances will I be generating. An evidentiary hearing on discovery, an interlocutory appeal, a return to the court, and the officer does not show up twice or thrice. I am now into wage losses with 5 numbers. I suddenly remember, I did speed 4 mph. It is $200 and no points. "Yes, Your Honor, I sped 4 mph. Thank you, Your Honor."

The court is a money making machine. Any slowing is corrected with progressively intimidating and threatening pressure. It is 3 PM and no hearing has taken place for anyone disputing a ticket. In the AM, they made $12,000. In the slow PM, they still made $2000 from the people disputing their tickets.


On the video was a basic math error by the trooper. I followed his car that had no "Police" label on the back, too closely, because he was going 5 mph below the speed limit in the left lane, and failed to move right to let me pass (both required by the traffic law of that state). He said, that at 60 mph, I should have stayed 6 car lengths behind. That distance is needed if I want to bring a car to a total halt in the left lane of a busy highway. That stunt would be amazingly stupid and dangerous. To slow a car from 65 mph to the slower 60 mph of the police car, requires 45 feet. Meanwhile, he has traveled 40 feet. So, if I am only 10 feet behind, that would be enough to safely slow the car.

Posted by: Supremacy Claus | Aug 28, 2010 4:12:05 PM

SC --

"The prosecutor has no idea about my case. I say, give me the discovery [about the cop's driving and medical records] I demanded in my month old letter or I will change your personal future."

You said that to the ADA about a traffic ticket???


From what you say, the thing to do was to tell the court, when your case was called the second time, "Your Honor, this is the second time the officer has failed to appear and this is costing me big money to be off from work. So I would ask for a dismissal at this point. If you are unwilling to grant a dismissal, I waive my right to confront the officer and ask only to present my side of the story, which of course I am happy to do under oath."

Asking people to be reasonable doesn't ALWAYS work, but you'd be surprised how often it does.

Your account of the actual episode on the road may or may not amount to "careless driving." Assuming that it was not actually careless, you had an alternative to a "false confession." You could have pleaded no contest, which admits nothing.

Still, it sounds to me that you got treated poorly and got jacked around. It also sounds to me, with all respect, that you were looking for a fight.

True story: I once spent four and a-half hours in Alexandria city court to fight a parking meter violation that was going to cost me $15. I had put in two quarters in the meter, which should have bought me an hour, but when I came out of the store 25 minutes later, the meter was red and I had a ticket.

Almost anyone would have just uttered a few juicy words and then would go ahead and pay the ticket. But I was young and stubborn, and not guilty.

When I went to court (at 8 a.m.), the total jerk of a city prosecutor intentionally delayed calling my case until the very last one, which was at half past noon. Literally everyone else had left the courtroom. I told the judge exactly what had happened -- yes, the meter was red, but it had to have been malfunctioning, because I put in my two quarters. The judge muttered something about how he couldn't understand why someone would take up his time with such trivialities (which was actually a legitimate though unwelcome question) but dismissed the case anyway. When I left court, I came this close to telling the city prosecutor what I thought of him, but I held my tongue.

Of course both our stories are off point, because "false confession" in the sense that matters means, not pleading guilty in a traffic case, but giving the cops a detailed statement of how you raped and killed the 12 year-old -- when you actually had nothing to do with it.

To repeat: With the exception of wild anomalies, that sort of thing is mythical. Defendants tell plenty of lies, but that is not among them.

Posted by: Bill Otis | Aug 28, 2010 4:57:43 PM

The other defendant was not threatening in the least, just plaintive. He got surrounded by four goons.

I was frustrated, I admit it, and allowed myself to show it. I was mistakenly asserting rights enumerated in writing in the Rules of Conduct and of Criminal Procedure. Nor was I being abusive or fishing, seeking to embarass the officer. The law is so subjective that his character was absolutely material. The police is the agent of the prosecutor, and I was told, the question would be resolved after a extensive hearing. I was never going to get any more. He said, he would appeal a judge's order to produce what I was requesting. I guess he wanted to set an example for future wiseasses. We did not even know the officer's name. It was illegible. They refused to tell me the name from the badge number. The prosecutor refused to give me his own name, its being irrelevant information. They had the scorched earth policy, not me. I was going to be there on a regular basis for the next year, if I pursued it. I was the only one that day to pay $200 for speeding instead of $400 for Unsafe Driving. They do not care as long as the case is cleared, and some payment is made.

Why is there all out resistance to discovery? The court is a money making operation. Keep the stream going, you get good manners, sympathy, thank yous, good luck, and friendliness. You slow the flow of money, and progressively intimidating measures get applied, such as "You threatened me." I was stupid to not pay the $100 original ticket. However, I got more legal education than possible in any law course. I consider the $1000's I lost to be a well spent tuition. You made the same mistake that I made. You thought a place calling itself a court was the place of justice, where the truth would prevail by the adversarial system.

I note your Virginia court used the same method of making people disputing the charge wait all day. An alternative would be to give people appointments, or to allow them to come after lunch. I had to sign in by 9 AM or a warrant would be issued for my arrest, even the second time, when we knew my case would come in the afternoon. This is intentional to cause lost wages for working people. This method, which seems to be universal, is a Fifth Amendment taking from an entire class of working people. If I did not set my own schedule, I could have lost my job not just a day's pay. The Anti-Injunction Act limits Section 1983 claims against local or state supreme courts. But their scheduling trick is just unfair. One reminds that the defendant is presumed innocent so far.


I cannot think of any more serious matter in the criminal law than the death penalty. Yet false confessions are far more common than previously known.

I understand the bias of this source, but you have to address the next to last paragraph, here.


Had you been asked to say anything by four goons with hand on weapon, hard to say no at the time. If you cannot properly rebut this paragraph on false confessions, it calls into question just about all criminal evidence. It is a serious problem.

You know me as an extreme advocate of the death penalty, as the youngest age possible, for as many repeat offenders as the public can stomach. So, this problem is not excuse for abolition by me. I am saying, it is a huge problem under a procedural due process right. The lawyer has to do something about it. It is equivalent to a Never Event in medicine. An example of a never event is to amputate the healthy leg and leave the gangrenous one on. It is in that category of professional error.

Posted by: Supremacy Claus | Aug 28, 2010 7:00:33 PM

John K --

"What you seem to be overlooking, Bill, is the prevalence now of literally thousands of vague, sweeping, grab-bag laws, any number of which can be applied to almost any social or economic conduct."

No they can't, which is why the massively huge majority of the population has no felony record.

Not that it makes any difference to this thread, which started off being about the murder of two police officers. That is not exactly a technical offense, is it?

"Consider, too, prosecutors' deep pockets full of draconian guidelines sentences that -- wielded with imagination and determination -- are capable of making even innocent and wrongly accused citizens somewhat eager to sign plea agreements."

The real reason people are eager to sign plea agreements is that they're guilty, the state can prove they're guilty, they know the state can prove it, and they know they're better off not having it all laid out before the judge at a trial.

Haven't we already been through this? And didn't you concede that that is, in fact, the reason people plead guilty?

"The point is that some defendants who had no idea they'd done anything illegal (including some who'd even been advised by attorneys in their purportedly criminal dealings) somewhat routinely end up signing plea agreements that, in essence, declare to the court and the world they knowingly broke the law."

1. In 18 years, not one time did I see a defendant "routinely" sign a plea agreement.

2. If you have to think to inveigle a hired-gun, obsequious lawyer tell you that whatever slick stunt you're planning is just this side of the law, you already know enough not to do it.

Example: When a colleague in the USAO came to me to ask whether he had to turn over to the defense Item X, as potentially exculpatory evidence, my stock answer -- without ever looking at Item X -- was: "If you know enough to come in to ask the question, you already know what the answer is."

Be honest and forthcoming, forget the greed and don't walk close to the line. That is a really good prescription for staying out of trouble.

"This isn't to suggest prosecutors who do these things are willfully evil. Though the only alternative explanation that comes to mind is embodied in the notion: When you're a hammer, everything looks like a nail."

And when you're caught with your hand in the cookie jar, everything starts to look like an excuse.

P.S. You never did answer my question about where I had said that everything I did as a prosecutor was "golden." Could you supply that quotation?

Posted by: Bill Otis | Aug 28, 2010 7:04:25 PM

hey bill just wondered if this guy would be one of your fine and upstanding hommies! the lieing awhole!


Posted on Saturday, August 28, 2010 Kansas court rules evidence falsified in sex predator case

WICHITA — A Kansas appeals court has ordered a new trial for a convicted sexual predator, saying a prosecutor falsified evidence in a court proceeding.

"We can fathom no greater prejudice... than the use of nonexistent evidence by the State in the case against the respondent," noted the Kansas Court of Appeals in an opinion issued Friday.

"Simply put, attorneys are not allowed to make up evidence and use it to advance their cause."

The state's attorney in the case was Marc Bennett, a deputy district attorney in Sedgwick County who supervises the prosecution of child sex crimes.

The case involved Robert C. Ontiberos, who was convicted of attempted rape in 1983 and aggravated sexual battery in 2001.

When Ontiberos was about to be paroled, prosecutors sought to confine him to a state mental hospital under the Kansas Sexually Violent Predator Act. Sex offenders who suffer a mental abnormality or personality disorder that makes them likely to commit additional sex crimes can be held indefinitely for treatment under the 1994 law.

Ontiberos claimed that he did not receive a fair trial when a jury decided in 2008 to confine him to the Kansas Sexual Predator Treatment Program.

The appeals court ruled in his favor and ordered a new trial Friday.

While cross-examining Ontiberos during the trial, Bennett, serving as a special assistant attorney general, "improperly used statements that had not been admitted into evidence," the appeals court ruled.

Also, while cross-examining a clinical psychologist who had evaluated Ontiberos, Bennett asked the doctor "about a 2003 prison incident where Ontiberos fashioned a knife out of a pen and duct tape," the ruling says.

Ontiberos never received a disciplinary report involving a weapon, the court said. And Bennett admitted to the court that "he was unable to locate any reference" to the report that alleged Ontiberos used a knife in a fight.

Said the appeals court: "The State's use of a nonexistent Department of Corrections disciplinary finding, ostensibly painting Ontiberos as being violent because it involved a homemade prison shank, cannot be condoned in any fashion."

Sedgwick County District Attorney Nola Foulston said Bennett's reference to the weapon in court "was a misstatement, if anything" and should not mar his reputation or the case in general.

"I do not want it said that Marc Bennett somehow willfully, intentionally fabricated evidence, because that's not the case here at all," Foulston said.

"Marc is an extremely professional lawyer, and he's an extremely ethical lawyer. While reviewing thousands of pages in hundreds of documents, he may have mistakenly confused what was in the record.

"If that's the case, obviously that was wrong, it shouldn't have happened, and the court's point is well taken.... But Marc told the court about the mistake. He fell on his sword, so to speak, and I don't believe it's a malicious thing because there's not a malicious bone in Marc Bennett's body."

Foulston noted that several factors weighed into the appeals court's decision Friday, including "the passivity of defense counsel and his apparent lack of preparation," the ruling said.

Foulston said she plans to further review the case and the documents in question. The Kansas Attorney General's Office will decide whether to appeal the court's ruling.

Posted by: rodsmith | Aug 29, 2010 12:38:17 AM

rodsmith --

Thanks for making my point, which is that the remedy for misconduct should have a logical relationship to the misconduct. That happened in the case you note: The defendant's behavior in prison was not what the prosecutor said. Thus the jury was misled about the defendant's possible future dangerousness, which was the issue on the table. Because the resolution of that issue had been infected with the prosecutor's deceit, it will have to be done over. Fair enough.

In the case that started this thread, the police misconduct could have affected trial issues, but had absolutely nothing to do with punishment issues. For unknown reasons, the court's remedy grabbed those issues too (pre-emptively taking the DP off the table). It was irrational and out of left field.

Thank you for putting up an example of a sensible remedy to contrast with the nonsensical one in the police murder case.

Posted by: Bill Otis | Aug 29, 2010 8:59:42 AM

lol. i agree but the problem comes when there is NO PUNISHMENT for the so-called goof of the govt agent. i'm not talking about the punishment in this case or the higher court ordering a new trial for the individual the govt agent faked the testimoy about. BUT THE agent himself. Legally he lied under oath the charge should be perjury! let him like anyone he goes after PROVE he's not a criminal. sorry when they happen over and over and over and over it goes from a "goof" to a "CRIME"

But have never heard me said the jury shouldn't know the TRUTH as long as it's obtained legally. We all need to be on the same page. that's why we have laws. When one side doesnt' play by the rules then we have CRIMINALS...no mattter WHAT SIDE they apparently seem to be on.

Posted by: rodsmith | Aug 29, 2010 2:11:20 PM

Bill O. regularly asserts that, because most criminal defendants are actually guilty, most confessions are true, etc., we need not worry about the tiny fraction of cases that break the mold. Unfortunately, with millions of cases tried, even a tiny fraction adds up to hundreds or thousands of errors.

If these errors were unavoidable, that would be one thing. But often they could be avoided by simple, low-cost reforms (videotaping of all suspect interviews; mandatory open-file discovery; lineup procedures conducted by LE staff who do not know the identity of the suspect; crime labs taken out of administrative oversight of prosecution offices and subjected to blind, random testing for accuracy). The good jurisdictions have already implemented many or all of these reforms. But that is not where most of the unreliable results are coming from. The bad jurisdictions fight tooth and nail to preserve the old ways. Apologists like Bill aid and abet them. Me? I have trouble ignoring as "wild anamolies" things like the dozens of cases where people confessed to murder and were later exonerated by DNA. Maybe it is true that most people subjected to unreliable and coercive interrogation methods are guilty (of something) anyway, but that does not make those methods reliable, constitutional, or a good idea. We know what is lost by persisting in the use of unreliable and discredited methods of investigation -- lives and resources. What is gained again?

Posted by: NC Atty | Aug 29, 2010 5:39:10 PM

Isn't the basis for the judge's ruling (ruling out DP but allowing prosecution to continue) obvious? The Supreme Court has filled volumes of its reporters with cases about the "heightened reliability" and special protections necessary in cases where the death penalty is imposed. Some may find this Eighth Amendment jurisprudence incoherent, but it is the law of the land. The officer's actions deprived the jury of some possibly important evidence. Apparently the judge thought this reduced the reliability of any ultimate conclusions drawn by that jury to a degree sufficient to preclude achievement of the "heightened reliability" necessary for a death sentence but not the "ordinary" reliability necessary for a murder conviction and LWOP sentence.

This ruling is open to attack as baby-splitting, too harsh (depriving the state of a deserved DP), or too lenient (treating conviction of murder and LWOP as consequences minimal enough to be premised on sort-of-reliable evidence), but I am surprised it took dozens of comments for someone to point out that there is a sound doctrinal underpinning for the general idea of distinguishing between the level of reliability necessary for a conviction and for imposition of the DP.

Posted by: Anon | Aug 29, 2010 6:48:07 PM

I have suggested torts as a remedy. The false confession to a death penalty crime should be called a Never Event. It should subject the police, and the prosecutor to personal liabilities and exemplary damages. The police is the agent of the prosecutor, and all their carelessness should be covered by respondit superior. If they want to preserve their personal assets, they should buy professional liability insurance. The judge should be subject to automatic triple damages in such cases. He is committing an intentional tort in the form of a wrongful, if state sponsored homicide. We could argue if malfeasance is found, such as a cover up, whether this Never Event should be criminalized.

If a surgeon removes my healthy leg, and leaves my gangrenous one on, I don't really want any money. I want to personally chop off one of his legs with a rusty saw. See how he likes it.

Posted by: Supremacy Claus | Aug 29, 2010 8:09:00 PM

NC Atty --

"The bad jurisdictions fight tooth and nail to preserve the old ways. Apologists like Bill aid and abet them."

1. "Apologist" is just another word, albeit a slightly nastier one, for "advocate." Yes, I am an advocate. So are you. Something wrong with that?

2. I worked for the feds. If you consider the feds a "bad" jurisdiction, fine. Most people consider them considerably ahead of most states. In either event, take it up with Eric Holder, not me. I do not and would not work for this Justice Department.

3. You apparently missed where I have supported taping police interrogations, even as you say I oppose them. Probably better to check your facts first. I will confess, though, that I support taping principally to put the lie to the routine, phony defense claim of coercion.

4. You apparently also missed where I have supported open file discovery. I do that principally because, unlike so many in the defense bar, I consider litagaiton a search for the truth rather than a game to be won by slick moves. Secondarily, I support it because I grew weary of defense bellowing about how the poor client is innocent. Once they saw the file, the bellowing came to a quick end.

5. For ten years, maybe more, you people loudly, indignantly and bitterly accused "apologists" like me of the barbarism of supporting the execution of an innocent man, Roger Keith Coleman. It was a pack of lies. Now you are equally loud, indignant, and bitter -- and equally certain -- of what normal observers correctly consider the preposterous notion that people confess to murders they didn't commit.

Just how many times have you had a client like that?

I was a prosecutor for 18 years in a large jurisdiction. I can tell you from experience, not from some biased, grievance-mongering website, that people do not confess to crimes they don't commit. The truth is that it's rare enough for them to confess the crimes they DO commit, as you couldn't possibly help knowing.

6. You give away the game by your undifferentiated angst about "unreliable and coercive" investigative methods as if that's the universe (despite your earlier correct concession otherwise).

It's not that we need not worry about the "the tiny fraction of cases that break the mold" of honest and accuate investigation. It's that we need not, and should not, become obsessed with them. But that obsession is rampant on this site. It's unfortunate that you so resent a commenter who raises a voice to balance things out (very slightly) and who is willing to speak for the other side.

Posted by: Bill Otis | Aug 29, 2010 8:20:15 PM

shame on you bill! i almost fell out of my chair on reading this one!

" principally to put the lie to the routine, phony defense claim of coercion."

Considering the 1,000's and 1,0000's and 1,0000's of video's arround the country showing police beatting the shit out of people on the side of the roads and the rash of new laws trying to prohibited them being filmed in the act at the SAME TIIME the police seem to thing anything done that isn't hidden behind a fence or a wall is public domain for them to use. Do you honestly think they aren't beatting the shit out of people once they get them alone in the back room of the police station. really come on now! i know your better than that!

the 100's of overturned verdicts with confessions after new procedures with DNA should tell you that your full of it if that is in fact what you think!

Posted by: rodsmith | Aug 30, 2010 12:13:35 AM

personally i think each and every one of these suggestions should be manditory at the local lvl and up right to the federal. Good idieal NY atty

"If these errors were unavoidable, that would be one thing. But often they could be avoided by simple, low-cost reforms (videotaping of all suspect interviews; mandatory open-file discovery; lineup procedures conducted by LE staff who do not know the identity of the suspect; crime labs taken out of administrative oversight of prosecution offices and subjected to blind, random testing for accuracy). The good jurisdictions have already implemented many or all of these reforms."

Anyone who objects needs to be removed from office for the crime of being an obstructanist old fogey too dense to enbrace new ideals that have been proven to reduce both false confessions and false claimes of abuse. Hard for either side to pull something if every sec of interaction with any one picked up by the police has been recorded on a onetiime use unit that allows on changes.

Posted by: rodsmith | Aug 30, 2010 12:17:20 AM

In the majority of false confessions, there is no beating, no intimidation, just quiet selling and prompting by the police.

The solution is a Rule of Evidence disallowing all eyewitness testimony, unless verified by physical evidence.

Posted by: Supremacy Claus | Aug 30, 2010 6:06:38 AM

SC --

Rapists smart enough to use a condom would just love a rule barring the testimony of the woman (or child) they raped. Just love it.

The justice of preventing the victim from pointing the finger at her tormentor is, of course, a different matter.

Posted by: Bill Otis | Aug 30, 2010 9:22:30 AM

bill there is a major diff between a women or child assaulted who gets on the stand and points out their attacker and a couple of cops who after god knows how many hours ALONE with the suspect getting on the stand and annoucing to the world "HE TOLD ME HE DID IT!" talk about the ultimate he said - she said! but they have that public fear of authority going for them! Sorry no EVIDENCE i.e none alterable VIDEO no testimony!

we have way way way too many proven cases of cops who wouldn't know the truth if it BITE THEM to let them on the stand abasent PHYSICAL evidence of what they say.

Maybe if they get off their tails and CLEAN UP THEIR HOUSE that could change.

Just like that statment the DA's love to use with ex cons on the stand!

"you've lied before! Why should the jury believe you now?"

Posted by: rodsmith | Aug 30, 2010 2:20:38 PM

Eyewitness identification of rapists is notoriously unreliable, especially across races. I am not advocating for defense tactics, but for accuracy tactics.

Posted by: Supremacy Claus | Aug 30, 2010 3:53:44 PM

SC --

Respectfully, the way to deal with the unreliability of eyewitness testimony is to adduce evidence explaining that to the jury. It would be wrong to bar the eyewitness/victim from testifying absent physical evidence, which is what I understood you to be suggesting.

Posted by: Bill Otis | Aug 30, 2010 4:51:47 PM

I hate Yale, as traitors to our country.

However, here is a brief Yale review of the eyewitness testimony problem. You have to tell us your personal tolerability for the false conviction when based on eyewitness testimony. I think 1 in a 1000 is OK. 1 in 100 is OK. 1 in 10 starts to get disturbing. 1 in 4 is intolerable for long prison sentences.


Posted by: Supremacy Claus | Aug 30, 2010 10:02:43 PM

SC --

I wouldn't believe a Yale study any more than I would believe one put out by the NACDL (to the extent they're different).

It would be vastly unjust to bar a rape victim from identifying her attacker. There is no precedent for it and the public wouldn't stand for it. Any problems with the reliability of the identification testimony can be explored both in cross examination and by calling "experts" (maybe some of these Yale characters).

This website is getting to be full of claims that the prisons are crammed with innocent people. Some innocent people get convicted, that's true (and would be under any realistically possible alternative system). Many more guilty ones get off. But I know up close and personal whether innocent people get sent off with any frequency, and they do not.

P.S. I have nothing against Yale, my wife's alma mater. But New Haven needs some sprucing up.

Posted by: Bill Otis | Aug 30, 2010 11:58:08 PM

Fair enough.

123D requires the smallest margin of error possible because it goes fast. It does have a built in safety of repetitiveness. So the odds of being falsely identified twice are infinitesimally small unless one is a bad guy in some way. From my personal experience, the pled crime may be unrelated to the actual one, anyway. And each side is looking out for its own interest. That should keep most people from ending up in jail for nothing.

Nevertheless, you should do your own research about false memory implantation, the rapid deterioration of memory, and the faulty function of prosopagnosia.

I once received a brochure for an ALI-ABA course. One of the sessions was on implanting false memories in the jurors (?!), so help me.

Posted by: Supremacy Claus | Aug 31, 2010 12:44:19 AM

She killed her husband — or did she? (LA Times)

Police got a confession from Kristi Lyn Bateson nine years after her husband was found shot to death while she was shopping. Tests showing her emotional vulnerability helped overturn the verdict. [Lunbery v. Hornbeak, Ninth Circuit, May 25, 2010, pdf.]

Posted by: George | Aug 31, 2010 4:50:49 PM

Geoge --

Thanks for making my point. I read the article you linked. Here's what it discloses: The defendant was a mentally sound adult interviewed at her own home, with family present, for two hours, after the police had told her that she could move around if she wished or just tell them to go away. They did not, so far as the story discloses, describe to her any details of the killing; at the very most, they "supplied" a motive, namely by asking her in a leading way if her deceased husband had been "controlling."

It's true that you can get some ideologically driven, shill psychiatrist from Berkeley to say that a confession thus produced comes about only because of "police domination." For those of us in the real world, the idea that an adult would FALSELY tell the police that she murdered her husband in the circumstances the article describes is preposterous. Indeed, the police questioning was so NON-coercive that I'm amazed they got a TRUE confession.

Posted by: Bill Otis | Sep 2, 2010 4:21:41 PM

what did happen at last...

Posted by: police misconduct | Apr 25, 2011 4:00:54 AM

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