NORTH CAROLINA LAW REVIEW Volume 82 | Number 3 Article 3 3-1-2004 Te Problem of False Confessions in the Post-DNA World Steven A. Drizin Richard A. Leo Follow this and additional works at: htp://scholarship.law.unc.edu/nclr Part of the Law Commons Recommended Citation Steven A. Drizin & Richard A. Leo,Te Problem of False Confessions in the Post-DNA World, 82 N.C. L. Rev. 891 (2004). Available at: htp://scholarship.law.unc.edu/nclr/vol82/iss3/3 Tis Article is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina Law Review by an authorized administrator of Carolina Law Scholarship Repository. For more information, please contact THE PROBLEM OF FALSE CONFESSIONS IN THE POST-DNA WORLD* STEVEN A. DRIZIN'" & RICHARD A. LEo"" In recent years, numerous individuals who confessed to and were convicted of serious felony crimes have been released from prison-some after many years of incarceration-andd eclared factually innocent, often as a result of DNA tests that were not possible at the time of arrest,p rosecution, and conviction. DNA testing has also exonerated numerous individuals who confessed to serious crimes before their cases went to trial. Numerous others have been releasedf rom prison and declaredf actually innocent in cases that did not involve DNA tests, but instead may have occurred because authorities discovered that the crime never occurred or that it was physically impossible for the (wrongly) convicted defendant to have committed the crime, or because the true perpetrator of the crime was identified, apprehended, and convicted. In this Article, we analyze 125 recent cases of proven interrogation-induced false confessions (i.e., cases in which indisputably innocent individuals confessed to crimes they did not commit) and how these cases were treated by officials in the criminalj ustice system. This Article has three goals. First, we provide and analyze basic demographic, legal, and case-specific descriptive data from these 125 cases. This is significant because this is the largest cohort of interrogation-inducedf alse confession cases ever identified and studied in the research literature. *The authors' names are listed in alphabetical order. Professors Drizin and Leo would like to thank the many law students for their invaluable research assistance in this project, including Beth Colgan, Kate Shank, Masato Ishibashi, Colleen Ryan, Jason Christopher, Alice Decker, Megan Chmura, and Eric Jehl. A special thanks is due to Kylie Pak for her assistance in both researching and cite checking the Article. We would also like to thank Welsh White for helpful comments on an earlier draft. **Clinical Professor of Law, Northwestern University School of Law. B.A., 1983, Haverford College; J.D., 1986, Northwestern University School of Law. ***Associate Professor of Criminology, Law and Society, and Associate Professor of Psychology and Social Behavior, University of California, Irvine. B.A., 1985, University of California, Berkeley; M.A., 1989, University of Chicago; J.D., 1994, University of California, Berkeley; Ph.D., 1994, University of California, Berkeley. NORTH CAROLINA LAW REVIEW [Vol. 82 Second, we analyze the role that (false) confession evidence played in these cases and how the defendants in these cases were treated by the criminalj ustice system. In particular,t his Article focuses on how criminal justice officials and triers-of-fact respond to confession evidence, whether it biases their evaluations and overwhelms other evidence (particularlye vidence of innocence), and how likely false confessions are to lead to the wrongful arrest, prosecution, conviction, and incarceration of the innocent. Analysis of the aforementioned questions leads to the conclusion that the problem of interrogation-inducedf alse confession in the American criminal justice system is far more significant than previously supposed. Furthermore, the problem of interrogation- induced false confessions has profound implications for the study of miscarriages of justice as well as the proper administration of justice. Third, and finally, this Article suggests that several promising policy reforms, particularly mandatory electronic recording of police interrogations, will minimize the number of false confessions and thereby inject a much needed dose of justice into the American criminalj ustice system. INTRO D U CTION ....................................................................................... 894 I. THE ROLE OF FALSE CONFESSION IN THE STUDY OF W RONGFUL CONVICTION ........................................................... 901 1I. THE SOCIAL PSYCHOLOGY OF POLICE INTERROGATION AND FALSE CONFESSION ............................................................ 907 III. METHODOLOGY AND SOURCES OF DATA ............................... 924 IV. FALSE CONFESSIONS AND CASE OUTCOMES: Q UANTITATIVE TRENDS ............................................................. 932 I . .. . . . .. . . .. . . . .. . . . .. A. The False Confession Cases .......................... 932 1. BLACK'S LAW DICTIONARY defines a "confession" as "a statement admitting or acknowledging all facts necessary for conviction of a crime." A "confession" is distinguished from an "admission" which is "an acknowledgment of a fact or facts tending to prove guilt which falls short of an acknowledgment of all essential elements of the crime." In the eyes of police and prosecutors, however, a confession has a much broader meaning, encompassing any statements which tend to incriminate a suspect or a defendant in a crime. BLACK'S LAW DICTIONARY 269 (5th ed. 1979). For example, statements placing a defendant at a crime scene are often treated as "confessions," as are "hypothetical statements" in which a suspect is asked by an interrogator to describe how a crime might have been committed. Also considered confessions are "dream statements" in which a defendant is asked to recount a dream he has had about a crime. There are several cases in our database in which defendants fell short of giving police a full confession. We have included these cases, at the risk of offending suspects or defendants who insist that they never confessed, because the consequences of these inculpatory 2004] FALSE CONFESSIONS IN THE POST-DNA WORLD 893 B. D em ographic D ata. ............................................................... 944 C. Case Characteristics.. ............................................................ 946 D. Case O utcom es ...................................................................... 949 E. Sources of Exoneration. ........................................................ 955 F. Risk of Miscarriageo f Justice .............................................. 959 IV. FALSE CONFESSIONS AND CASE OUTCOMES: QUALITATIVE TRENDS ............................................................... 963 A. Vulnerable Populations: Children ...................................... 963 1. R yan H arris ...................................................................... 964 B. Vulnerable Populations: Juveniles. ..................................... 968 1. A llen Jacob Chesnet ....................................................... 969 C. Vulnerable Populations: Mentally Retarded. ..................... 970 1. M ichael G ayles ................................................................ 971 D. Vulnerable Populations: Mentally Ill ................................. 973 1. C olleen B lue .................................................................... 974 E. Multiplying Effect of False Confessions. ............................. 974 1. Multiple False Confessions to the Same Crime ........... 974 a. Frank Kuecken and Jonathan Kaled ...................... 977 2. Multiple Innocent Defendants Arrested, Charged, and Convicted Based on Co-Defendant's False C onfession ........................................................................ 981 a. Calvin Ollins, Larry Ollins, Marcellus Bradford, and Omar Saunders ................................................... 981 3. Multiple False Confessions from Same Defendants to Multiple Crimes: The So-called Serial Killer C ases ................................................................................. 985 a. Innocents Who Falsely Confess to Crimes Committed by Serial Killers ..................................... 986 i. Jerry Frank Townsend, Frank Lee Smith, and Eddie Lee Mosley ...................................... 986 b. Closing Open Cases by Falsely Attributing Unsolved Murders to Guilty Defendants ............... 992 i. Hubert Geralds, Derrick Flewellen, and Andre Crawford ................................................ 992 F. Prosecutingt he False Confessor .......................................... 993 1. D avid Saraceno ............................................................... 994 2. Teresa Sornberger ........................................................... 994 C O N CLU SIO N ........................................................................................... 995 statements are the same as if the suspect confessed. Police officers relied on these statements as the basis for an arrest, prosecutors relied on them to charge the defendants, and judges and juries often relied on them to convict defendants. NORTH CAROLINA LAW REVIEW [Vol. 82 INTRODUCTION In April 1989, a young woman was attacked while jogging in New York City's Central Park. The jogger entered the park near 84th Street shortly after 9:00 p.m., traveled north along the East Drive, and then turned onto the 102nd Street Crossdrive heading west. At 2 approximately 9:15 p.m., she was knocked down and dragged into a ravine where she was raped and sodomized. She was beaten so severely, particularly in the area of her left eye, that she lost nearly eighty percent of her blood.' On the same evening, a large group of teenage boys, with estimates ranging as high as forty to fifty boys, entered Central Park near East 110th Street in Harlem and began walking south along the park's East Drive. The boys subsequently encountered Antonio Diaz, who was eating dinner and drinking beer in the park that night. Some of the boys proceeded to beat up Diaz and dragged him into a 4 nearby thicket of bushes. This group of boys then continued heading 5 south on East Drive, harassing several cyclists along the way. Sometime thereafter, a police car passed the group, causing them to break up temporarily before regrouping near some ball fields in the park's North Meadow. According to Jermain Robinson, who was one of the boys in the group that night, the group then left the ball fields, went south toward 97th Street, squirmed through a hole in the fence, and hid in some bushes in close proximity to the northern edge of the reservoir. While concealing themselves in the bushes, the boys waited 6 for joggers to pass. Sometime before 9:30 p.m., five of the boys tried to assault David Lewis as he jogged near the reservoir. As Lewis sped past the boys' hiding place, one of the boys struck him on the elbow with a blunt 2. TIMOTHY SULLIVAN, UNEQUAL VERDICTS 243 (1992). Based on the jogger's own estimates of the time she entered the park and how fast she was running, on cross- examination, she estimated she would have arrived at the spot where she was attacked at around 9:15 p.m. Id. at 42. 3. Id. at 50. 4. Id. at 23. 5. Id. at 23, 114-17. 6. Id. at 73. Jermain Robinson's testimony is crucial to understanding why the confessions of the five who confessed are false. Robinson, in exchange for a plea deal allowing him to admit to a single count of robbery, agreed to cooperate with the prosecutors. He became their tour guide of the mayhem which took place in the park on the night of the attack on the jogger, walking with them along the path that the boys took through the park and describing in detail the assaults even though he had everything to gain from implicating the others in the rape, Robinson consistently denied knowing anything about a rape. The route he claimed the boys had taken took the boys south through the park towards the reservoir, not north towards the secluded area where the jogger was raped. Id. 2004] FALSE CONFESSIONS IN THE POST-DNA WORLD 895 object. A second jogger, David Good, claimed that he was chased by a group of ten African-American youths who threw stones at him as he ran past them. Robert Garner, a third jogger, was chased and caught by fifteen to twenty youths on the reservoir's northern edge. As they assaulted Garner, the mob made demands for his money. When Garner said that he had none, they released him. Finally, a fourth jogger, John Loughlin, a six-foot-four-inch ex-Marine, seeing that Garner was in trouble, approached the group. Loughlin was unable to render assistance, however, due to a blow to the head with a blunt object, later thought to be a solid metal pipe, which left him 7 temporarily unconscious. Two plain-clothes officers, Eric Reynolds and Robert Powers, responding to complaints about the mayhem, spotted fifteen to twenty boys on Central Park West near 100th Street at around 10:15 p.m.' As their squad car approached the group, all but two of the boys scattered. Steven Lopez, age fifteen, and Raymond Santana, age fourteen, remained at the scene and answered Officer Reynolds's 9 questions, insisting that they were not part of the larger group. Reynolds and a third officer, Ivelisse Flores, ran after the boys who had fled, eventually catching Kevin Richards and Clarence Thomas, 1 both of whom were fourteen years old at the time." When Richardson and Thomas both identified Lopez and Santana as being part of their group, all four boys were arrested." A fifth boy, Lamont 12 McCall, age thirteen, was also among the first arrestees. Shortly before 1:00 a.m., two men, Benicio Moore and Carlos Colon discovered the body of the female jogger. The men were walking home when, after hearing moaning sounds in the darkness, 3 they went to investigate the source of the noise. Prior to this discovery, the police officers had been focusing only on the Diaz assault, the attempted assaults on the cyclists, and the attacks on the joggers. Because the jogger's body was discovered near the location where Diaz and the cyclists had been accosted, however, the police suspected that the boys involved in those crimes were also responsible 7. Id. at 119-24. 8. Id. at 321; see also HARLAN LEVY, AND THE BLOOD CRIED OUT: A PROSECUTOR'S SPELLBINDING ACCOUNT OF THE POWER OF DNA 67-68 (1999) (examining the history of DNA evidence in the courtroom). 9. Id. at 84. 10. Id. at 85. 11. Id. 12. Id. at 118. 13. Id. at 127. NORTH CAROLINA LAW REVIEW [Vol. 82 4 for raping and beating the female jogger. Throughout the night and the next day, Manhattan North Homicide detectives interrogated the boys already in custody and apprehended others who had been named as accomplices. Antron McRay, age fifteen, was taken into custody at 11:00 a.m., and Yusef Salaam, age fifteen, and Kharey Wise, age sixteen, were both brought in at 10:00 p.m. on the next 5 day." Two hours before the arrest of Salaam and Wise, prosecutors Elizabeth Lederer and Linda Fairstein arrived at the station to assist the detectives in the interrogations. Lederer and Fairstein worked in the Sex Crimes Unit of the District Attorney's Office, and their involvement at this early stage of the investigation indicated that the D.A.'s office also believed the boys to be responsible for the sexual assault. Their arrival also coincided with the next phase of the investigation: videotaping the boys' confessions to the rape of the Central Park Jogger.6 Ultimately, prosecutors were able to obtain five confessions to the rape of the Central Park Jogger; four of these confessions were captured on videotape and the fifth was an alleged "oral confession." A sixth defendant, Steve Lopez, who had been identified as a ringleader by all of the other boys, refused to admit to any participation in the rape. Although the confessions were videotaped 7 and most of the boys confessed in the presence of their parents, the earlier interrogation sessions had not been taped. Precisely what happened during the hours of police interrogations was a matter of great dispute both in pre-trial motions and at trial. The boys and their parents claimed that the interrogations were highly coercive, alleging that officers slapped the 14. LEVY, supra note 8, at 71. 15. Id. at 321. 16. Manhattan's District Attorney, Robert M. Morgenthau, was a pioneer in the use of videotaping to memorialize confessions. After NYPD detectives had secured confessions from suspects, Mr. Morgenthau's District Attorneys would attempt to get the suspects to repeat their confessions on videotape. In a Wall Street Journal article written at the time of the Central Park Jogger case, Mr. Morgenthau called videotaping the "most significant advance in law enforcement in 20 years." L. Gordon Crovitz, Rule of Jogger Case Shows Confession Is Good for More Than the Soul, WALL ST. J., Aug. 22, 1990, at A9. 17. Because Kharey Wise was sixteen at the time of this arrest, he was considered an adult under New York law and authorities did not have to attempt to locate his parents before interrogating him. The fact that parents were present for these confessions and not only allowed police to question their children but also encouraged their children to cooperate, is compelling proof that parents often fail to protect their children's rights during the interrogation process, a fact which has been observed in psychological studies. See Thomas Grisso & Melissa Ring, Parents' Attitudes Toward Juveniles' Rights in Interrogation,6 CRIM. JUST. & BEHAV. 211, 221 (1979). 2004] FALSE CONFESSIONS IN THE POST-DNA WORLD 897 18 boys,' yelled and cursed at them, and called them liars. Several boys claimed that they were told that they were being questioned as mere "witnesses" and that they would be released from custody if they only 9 confessed. The police officers denied that they used coercive tactics, although one detective did admit that he lied to Yusef Salaam when he told Salaam that his fingerprints would be found on the victim's z jogging shorts." After hearing both accounts of what transpired during hearings for the defendants' pre-trial motions to suppress their confessions, Judge Thomas Galligan found that the police detectives were more credible than the defense witnesses and ruled that the 2 defendants' statements were admissible in their trials. ' Five of the Central Park defendants took their cases to trial. The first trial's defendants were Raymond Santana, Yusef Salaam, and Antron McCray; the second involved Kharey Wise and Kevin Richardson. All five defendants were convicted of participating in the rape of the jogger and the assaults on several of the cyclists and the other joggers. Jurors found Kharey Wise, who gave two conflicting taped confessions, not guilty of the rape but guilty of a 2 2 lesser charge of sex abuse for "playing with the jogger's legs. Only Kevin Richardson, who had hair consistent with the jogger's on his clothing and who was named as one of the boys who beat the jogger 23 with a rock, was found guilty of attempted murder. All the boys who went to trial were sentenced to between five and fifteen years in 24 prison. Steve Lopez was never brought to trial on the rape but pled guilty to one of the assaults near the reservoir. 18. Kharey Wise, for example, claimed that he was slapped by a detective in the head four times, causing a temporary hearing problem, and also testified that detectives promised him he could go home if he confessed. SULLIVAN, supra note 2, at 80, 280-81. 19. At the trial of their son Antron, both Bobby and Linda McCray testified that detectives yelled at their son, called him a liar, and told him he would be treated as a witness if he admitted his participation in the rape. Id. at 182-87. Kevin Richardson's mother, Grace Cuffee, testified that she heard police curse at her son and accuse him of raping the jogger. Id. at 268. 20. Id. at 24. Detective Thomas McKenna later wrote about this ruse in a book about his life as a homicide detective in Manhattan. See THOMAS MCKENNA, MANHATTAN NORTH HOMICIDE 11 (1991). 21. MCKENNA, supra note 20, at 92-93. 22. SULLIVAN, supra note 2, at 301. 23. Id. at 290, 302. 24. Id. at 319-20. 25. Id. at 306-12. Five other defendants were charged in connection with the events of April 19th: Jermain Robinson, age fifteen, Michael Briscoe, age seventeen, Antonio Montalvo, age eighteen, Orlando Escobar, age sixteen, and Clarence Thomas, age fourteen. Briscoe pled guilty to assaulting jogger David Lewis, Robinson pled guilty to participating in the beating and robbery of John Loughlin, and Montalvo pled guilty to the robbery of Antonio Diaz. All charges against Clarence Thomas were dismissed. Id. at NORTH CAROLINA LAW REVIEW [Vol. 82 In January 2002, a convict named Matias Reyes contacted authorities and informed them that he, acting alone, had raped the Central Park Jogger. Reyes was one of New York City's most notorious serial rapists. Between June 1989 and his apprehension in August of that year, Reyes terrorized the Upper East Side, raping four women, one of whom, a pregnant woman, he killed after raping 26 her in front of her children. More significantly, when Reyes's DNA was compared to that recovered from the Central Park Jogger crime scene, there was a match: semen stains on the jogger's sock were proven to have come from Reyes. This newly discovered evidence prompted the Manhattan District Attorney's Office to launch a reinvestigation of the case. In the Fall of 2002, attorneys retained by three of the boys learned that DNA testing tended to exonerate their clients of the rape 27 and filed a motion to vacate the convictions. Meanwhile, Reyes gave a nationally televised interview in which he provided a detailed description of the assault and rape of the jogger, going so far as to 28 draw a map of the area in which the attack took place. Reyes also claimed in the interview that he did not know any of the boys who 29 were convicted of the rape. After an exhaustive eleven-month investigation, the Manhattan District Attorney's Office was unable to 30 establish any link between Reyes and any of the five defendants. Additional new evidence emerged, much of which tended to undermine the validity of the boys' convictions. At both trials, the 320; see Affirmation of Nancy E. Ryan, Assistant District Attorney, County of New York, in Response to Motion to Vacate Conviction, T1 13-18 (No. 4762/89) [hereinafter Manhattan DA's Report]. 26. LEVY, supra note 8, at 1-16. Levy, a former Assistant District Attorney for the Manhattan District Attorney's Office, describes Reyes's arrest, interrogation, and conviction in these assaults in the first chapter of his book about the power of DNA evidence. Ironically, in a later chapter, Levy devotes a full chapter to the Central Park Jogger trial, describing how he and Elizabeth Lederer dealt with the bad news when DNA test results of semen taken from a vaginal swab and from the jogger's socks did not match any of the teenage boys. Id. at 59-85. 27. Alice McQuillan, Jogger Case Confession, N.Y. DAILY NEWS, Sept. 4, 2002, at 5, available at 2002 WL 2482732. 28. Reyes's interview aired on September 26, 2002 on ABC's evening news magazine show "Primetime Live." Primetime Live (ABC television broadcast, Sept. 26, 2002) (on file with the North Carolina Law Review). 29. Id. 30. Testimony of James M. Kindler, Chief District Attorney, New York County District Attorney's Office, before The Council of the City of New York, Committee on Public Safety, Jan. 30, 2003, at 3 ("[I]nvestigators have been unable to find any evidence that, as of 1989, Reyes knew or associated with the defendants or any of the individuals known to have been in the park with them on April 19, 1989.") (on file with the North Carolina Law Review). 2004] FALSE CONFESSIONS IN THE POST-DNA WORLD 899 prosecutors had stated that "hair consistent with the jogger's" was 3 found on Kevin Richardson's clothing. Mitochondrial DNA testing-a technique not scientifically possible at the time of the trials-later demonstrated that the hairs were probably not the 3 2 jogger's. Similarly, hair and blood recovered from a rock found near the crime scene which prosecutors suggested was the murder weapon was found not to have been the jogger's.33 In light of this exculpatory evidence, the District Attorney's Office ultimately decided to join the motion to vacate the boys' 34 convictions. The District Attorney's fifty-eight page memorandum in support of the defense motion outlines why prosecutors chose to believe Reyes's confession that he acted alone and why they gave it 35 greater weight than the boys' videotaped confessions. On December 19, 2002, Judge Charles Tejada of the New York Supreme Court (a trial court) granted the motion and vacated all of the 36 convictions of the original Central Park Jogger defendants. District Attorney Robert M. Morgenthau, and attorneys in his office, deserve credit for reinvestigating the jogger case when compelling evidence of the boys' innocence first came to light. Rather than re-investigate such claims, police and prosecutors often vigorously defend the conviction, using the fact that a jury or judge must have found the confessions to be reliable in order to convict as 37 justification for refusing to reopen the case. Indeed, District Attorney Morgenthau's decision to support the defense motion to vacate the convictions was sharply criticized by former prosecutors from his office, police officers involved in the original investigation, 38 and others connected to the case. In fact, the New York City Police 31. Manhattan DA's Report, supra note 25, 1 74-76. 32. Id. 33. Id. 91 76-78. 34. Karen Freifeld, Convictions Tossed, Judge Clears Verdicts of Central Park Five, NEWSDAY, Dec. 20,2002, at A03. 35. Id. 36. Id. 37. See Steve Mills and Maurice Possley, Officials Often Insist Ex-inmates Are Guilty, CHI. TRIB., Oct. 27, 2003, at Al; Maurice Possley and Steve Mills, Crimes Go Unsolved As DNA Tool Ignored: Genetic Profiles in Rapes, Slayings Not Sent to FBI, CHI. TRIB., Oct. 26, 2003, at Al. 38. See, e.g., Karen Freifeld, Cops' Jogger Scenario / Report: 5 Cleared in Case Probably Joined in Attack, NEWSDAY, Jan. 28, 2003, at A7 (noting criticism from the police department), available at 2003 WL 3286581; Leonard Levitt, Kelly: DA Hindered Cops' Investigation, NEWSDAY, Dec. 20, 2002, at A4 (describing criticism from the police department), available at 2002 WL 103519503; Alice McQuillan, NYPD Jogger Theory Ripped: Top Morgy Prosecutor: Evidence Backs Lone Attacker, N.Y. DAILY NEWS, Jan. 31, 2003, at 8 (noting criticism from other prosecutors), available at 2003 WL 4063820;