Wrongful Convictions

Wrongful Convictions

There are a magnitude of reasons that a person who is truly innocent can still be either convicted at trial or, in some cases, persuaded by their attorney to plead guilty in exchange for a lighter sentence. It seems like every week we hear more and more about people that have spent years behind bars only to FINALLY be proven innocent due to one reason or another. Some of the most common reasons are:

1. False Confession

Many people ask the question “Why would anyone confess to something that they didn’t do?”. It happens more often that you would think and has been found to be the most prevalent causation of wrongful convictions. Police Detectives are highly trained in techniques that are designed with one purpose in mind and that is to get a confession from their suspect. One of the most common and widely used is the “Reid Technique” which has been taught to hundreds of thousands of interrogators, not just in the United States, but around the world. It is a step-by-step process that is psychologically based and has three phases. Part of this technique includes the following 9 steps:

1) Direct confrontation. Advise the suspect that the evidence has led the police to the individual as a suspect. Offer the person an early opportunity to explain why the offense took place.
2) Try to shift the blame away from the suspect to some other person or set of circumstances that prompted the suspect to commit the crime. That is, develop themes containing reasons that will psychologically justify or excuse the crime. Themes may be developed or changed to find one to which the accused is most responsive.
3) Try to minimize the frequency of suspect denials.
4) At this point, the accused will often give a reason why he or she did not or could not commit the crime. Try to use this to move towards the acknowledgement of what they did.
5) Reinforce sincerity to ensure that the suspect is receptive
6) The suspect will become quieter and listen. Move the theme discussion towards offering alternatives. If the suspect cries at this point, infer guilt.
7) Pose the “alternative question”, giving two choices for what happened; one more socially acceptable than the other. The suspect is expected to choose the easier option but whichever alternative the suspect chooses, guilt is admitted. As stated above, there is always a third option which is to maintain that they did not commit the crime.
8) Lead the suspect to repeat the admission of guilt in front of witnesses and develop corroborating information to establish the validity of the confession.
9) Document the suspect’s admission or confession and have him or her prepare a recorded statement (audio, video or written).

There are certain factors which, if present, can lead to false confessions. For example, those with lower IQ scores or a history of mental illness, being a juvenile, or having been exposed to excessively lengthy interrogations. Often, the suspect is made to believe that they did in fact commit the crime. This happens often in the case of individuals who have blacked out from the use of drugs or alcohol. It certainly does not help when the police, who are allowed to lie to suspects, tell them that they have all kinds of incriminating evidence against the person such as capturing them on video or an eyewitness, which in fact, they do not have. Studies have shown that once the person is told lies of this nature, false confessions can, and do, increase.Having a trained Defense Investigator to be able to recognize possible signs of a false confession is crucial. And upon witnessing these signs, experts need to be consulted to work with the defense attorney in order to ascertain the next steps to follow in the legal process.


2. Prosecutorial Misconduct

In jurisprudence, prosecutorial misconduct is “an illegal act or failing to act, on the part of a prosecutor, especially an attempt to sway the jury to wrongly convict a defendant or to impose a harsher than appropriate punishment.” What does that really mean? Well, it basically means that the prosecutor breaks the law or certain ethical codes that attorneys are bound by. This could be the failure to turn over evidence that is favorable to the defendant or putting a witness on the stand to testify when the prosecutor knows that the testimony will be untruthful. There are other types of misconduct but these are two of the more common.I have discovered through my investigations instances of prosecutorial misconduct and, working with the defense attorney, brought them to the attention of the court which resulted in actions favorable to the client.

3. Junk Science

Hair fibers, DNA, Fingerprints, Ballistics All of these are examples of forensic scientific evidence that can be used in proving a case against a defendant. But this type of “scientific” evidence is considered the second most common reason for wrongful convictions. Too often, the methods used have not been validated to the point of accuracy.
Take for example the case of Ray Krone who I had the pleasure to meet shortly after his release from prison. Mr. Krone was wrongfully convicted in Phoenix, AZ in 1992 based on “junk science” when an “expert” for the state testified that Mr. Krone’s teeth matched the bite mark on the breast of a murder victim. Mr. Krone was sent to death row for this murder in which he did not commit and he was later exonerated by the Innocence Project in 2002. Or, the testimony from the expert who is hired by the prosecutor gives false or misleading testimony. Other times, the “expert” witness may have made a mistake in their analysis of the forensic evidence.And since the person providing the information is an “expert” in their field of study, the jury will often believe that person. It is important in these cases that their attorney, privately retained or appointed, to be able to seek the guidance of their own experts who can often counter the state’s expert witnesses.

4. Eye witness Identification

I recall years ago when someone would be arrested and charged for something, some would be in disbelief. Until they were told that there was an “eyewitness” that saw them do it. Then, it was easier to change one’s mind and conceive the fact that it was true. Those days, are long gone. Today, eyewitness testimony is considered to be the worst form of evidence and has sent many a innocent defendants to prison. Thankfully, we now understand the human brain is not like a tape recorder committing the events, and those that created them, to memory. Instead, we can have our memories contaminated by certain events or actions during and after a crime.
For example, there is what is called “weapons focus” whereby a person having been robbed at gunpoint is asked to describe the assailant. Often, they will be able to give a quasi-description of the person who committed the crime but give an even better description of the firearm that was being used. This is because when you are having a gun pointed at you, we naturally are more interested in the direction the gun is being pointed than if the person is wearing khaki pants or blue jeans. This is called selective attention the capacity for or process of reacting to certain stimuli selectively when several occur simultaneously.
Many times, police will show a victim what is commonly referred to as a “six pack” which is a photo array of 6 individuals that are supposed to be similar in appearance and that fit the description given by the victim of the assailant. Whether it be consciously or unconsciously, police will sometimes make gestures that are received as clues to the one making the identification directing them to one particular individual in the photo array. There have also been cases where possibly the victim described the assailant as having facial hair and only one of those in the photo array has a beard and the other five are clean shaven.
And it is also well documented that when one member of a particular race is tasked with identifying a suspect of another race, there is often a misidentification. There is nothing nefarious about it. In fact, humans are fallible and tend to be able to identify members of their own race more accurately than they are members of a different race.

5. Police Misconduct

It has often been said, “The ends justify the means”. Meaning, it does not matter how police “get their guy” as long as they get them. Now, we are not saying that all police subscribe to this way of thinking. It is to say that there are times when police officers and detectives step over the ethical and legal line in order to get a conviction.
Take example one case that I had. I knew that there were phone records that were obtained by the detective on a murder case that I was preparing for trial on a few years ago. We asked the prosecutor for them and we were told that the phone company failed to send them and that they (the D.A’s office) did not have them. After asking again via a motion for specific discovery, again, the D.A told the court that they can not give us what they do not have. We then asked for, and were granted, a court order for the phone company to turn the records over to us and they did. Along with the fax confirmation sheet where they had sent the records to the Detective two years earlier. These records exonerated our client from the murder.
Most officers are there to, like their motto says, serve and protect. And most do so with honor and integrity. But, there are times that an officer sees that by turning over certain evidence would jeopardize their case and they simply can not let that occur. They then are faced with committing unscrupulous acts which causes a innocent person to go to prison. Or even worse, the execution chamber.

It takes a trained investigator who knows how police conduct their investigations and to be able to find the evidence that can assist the defense attorney in protecting the rights of the accused.