CrimProf Blog

CrimProf Richard Leo Comes Out With New Book

CrimProf Richard Leo (University of San Francisco Law School), with co-author Tom Wells, has just published THE WRONG GUYS: MURDER, FALSE CONFESSIONS, AND THE NORFOLK FOUR (The New Press).
On July 8, 1997, nineteen-year-old sailor Billy Bosko returned from a naval cruise to his home in Norfolk, Virginia, to find his wife on the floor of their bedroom in a pool of blood. Michelle, eighteen, had been raped and stabbed to death the night before. In this gripping tale of justice gone awry, four innocent men
separately confess, under intense police pressure, to a heinous crime that none of them actually committed. As this enthralling story unfolds, the real perpetrator is matched to DNA evidence and convicted, yet three of the men known as the Norfolk Four remain in prison today. The controversy over this case continues to simmer, with the victim's family still convinced of the men's guilt even as growing media attention has exposed the questionable treatment they received at the hands of police officers, prosecutors, and even their own defense attorneys. Barry Scheck has described THE WRONGF GUYS as “a harrowing tale of how four innocent men were wrongly convicted by a deepley flawed legal system that failed to find the truth or dispense justice at virtually every turn.” The Washington Post and the New York Times have both recently written op-eds calling for the Governor of Virgnia to pardon the Norfolk Four.

Leo is also the author of the recently published (2008) POLICE INTERROGATION AND AMERICAN JUSTICE (Harvard University Press), which CrimProf Yale Kamisar (University of Michigan and University of San Diego) has called “the best book on police interrogation I have ever read.”

Nassau to videotape interrogations in major crimes

Nassau police are about to start videotaping all interrogations in homicide and serious robbery cases, a move that both law enforcement officials and defense lawyers say will make prosecutions more fair.

Police and prosecutors said the videotapes will be useful tools at trial, and that they will also help protect police against false allegations that they denied defendants their rights. Defense lawyers also applauded the move, saying that it will protect their clients from coerced confessions and police abuse.

"We don't want to tell jurors what happened," said District Attorney Kathleen Rice at a news conference Friday. "Ideally, we want to show them."

In Suffolk County, police and prosecutors have similar plans, officials there said. Suffolk Police Commissioner Richard Dormer said in a statement that he hopes to have some video cameras up and running "within three months."

Until now, police in both counties haven't videotaped interviews with suspects. In some cases, prosecutors have videotaped interviews with defendants after police have already questioned and arrested them.

Nassau Police Commissioner Lawrence Mulvey said from now on, police will tape interrogations in all serious robbery cases and homicides, because these are the cases where interrogations typically take place in police headquarters in Mineola.

"We have nothing to hide here," Mulvey said.

Mulvey said if videotaping robberies and homicides is successful, he will consider expanding the policy to include other crimes.

Eric Ferrero, a spokesman for the Innocence Project, which assists prisoners who have been wrongly convicted, said Nassau will be one of 17 jurisdictions in New York to routinely videotape interrogations. [Mark Godsey]

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New details emerge about murder scene, fake confessions

Juror and courtroom spectators learned shocking details about the scene of the Truett Street murder and false leads that led police on a wild goose chase.

By Danny Gallagher, McKinney Courier-Gazette

Jurors in the Raul Cortez trial learned the gruesome details of the crime scene he and Eddie Ray Williams allegedly left behind, and the long trail of false leads left by other suspects that threw McKinney police off course for more than four years.

Collin County prosecutors opened their case in the punishment phase of Raul Cortez's trial by laying it out in chronological order, starting with the day of the murder. Rosa Barbosa, 40, had worked her shift at the Cliff's Check Cashing store on W. University Avenue on March 12, 2004 and made plans with fellow employee and friend Nilvia Jasso to take a walk in Towne Lake Park. Jasso closed the store later that evening and went by her home to pick her up, but no one came to the door. She later tried calling her home, but no one answered.

Later that weekend, Jasso learned that Barbosa had been killed, along with her nephew Mark, 18-year-old Austin York and 17-year-old Matthew Self.

Laurie Wilson, Austin's mother, testified that her son went to his best friend Leonard Barbosa's house to play video games and hang out until his 11:30 p.m. curfew.

Keith Self, Matthew Self's father, said Matthew took his father's pickup truck to meet with Leonard and Austin. He also had an 11:30 p.m. curfew that both parents said they always honored.

Wilson said her son never called that night and were woken up by the sound of the doorbell around 4 a.m. Four sobbing teenagers told them they heard Austin had been shot and killed.

Self said his wife, Nancy Self, was also concerned that her son had not called or returned, so Mr. Self went looking for his pickup truck in the Barbosa's neighborhood in McKinney. Police officers arrived at the Self's home later and told them their son had been flown to Baylor Medical Center of Dallas. Mr. Self said the family later make the difficult decision to take Matthew off of life support.

Police officers first responded to the alarm call at the Cliff's Check Cashing business on W. University Avenue, then the 911 call from Robert Barbosa, Rosa's nephew, who discovered the bodies in Rosa's Truett Street home. Robert said he could hear Matthew gasping and wheezing for air.

Collin County Medical Examiner Dr. William Rohr said Rosa had a plastic zip tie tightened around her neck and strips of red duct tape over her mouth and wrapped around the top of her head over her eyes. Mark had two gun shots wounds to the head and Austin had three to the head. Dallas County Medical Examiner Dr. Lynn Salzberger said Matthew had a single gunshot wound to thr head. [Mark Godsey]

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Final arguments for release of 911 call set for Monday

A Madison police detective testified Friday that release of the Brittany Zimmermann 911 call would jeopardize the search for her killer, though a public safety expert countered that release of such information typically helps solve homicides.

Madison detective John Summers said the recordings are evidence in the Zimmermann homicide case. Therefore there is "no question" they should not be released, Summers said.

Public disclosure could lead people to come forward and give false confessions using details they learn in the media, Summers said.

Such false confessions are "not unusual" and already have occurred during the investigation of the Zimmermann case.

Summers also suggested the killer might use the audio recording as a "trophy" and he reiterated concerns expressed by the Zimmermann family about how release of the recording could be traumatic to all victims of tragedy.

He said media coverage has led to "horrible publicity" that "has not been beneficial to this case." He also said release of the audio might discourage people from calling 911.

Attorneys representing the media organizations suing the county hired William Gaut, a Florida-based consultant with 24 years experience as a Birmingham, Ala., police officer who had investigated over 1,000 homicides, though none since 1995.

Gaut testified that contrary to popular belief, law enforcement experts have found sharing more information with the public can help find a killer, particularly in cases that haven't been solved within a few days.

"Any particular piece of evidence that comes out in the course of an investigation will never jeopardize a case," Gaut said. "The more information you give to the public … the higher the rate of success." [Mark Godsey]

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Interrogation Upheld in Country Where Right to Counsel Unavailable

The U.S. Court of Appeals for the Second Circuit Nov. 24 upheld the admission of statements elicited overseas by U.S. agents from suspects in the custody of a country that does not provide a right to counsel during interrogations. “[I]nsofar as Miranda might apply to interrogations conducted overseas, that decision is satisfied when a U.S. agent informs a foreign detainee of his rights under the U.S. Constitution when questioned overseas,” the court said (In re Terrorist Bombings of U.S. Embassies (Fifth Amendment Challenges), 2d Cir., No. 01-1535-cr(L), 11/24/08).

No Right to Appointed Counsel.

The defendants in this case were convicted of participating in al Qaeda's bombings of U.S. embassies in East Africa. The proof at trial included evidence of statements they made while in the custody of Kenyan officials during interrogations by agents of the U.S. Joint Terrorism Task Force.

The agents had concluded that appointed counsel was not available to indigent suspects in Kenya, so the agents gave the defendants versions of the Miranda warnings that advised them that they would have a right to counsel during any questioning in the United States. They also presented the defendants with the Advice of Rights form often used by U.S. officials conducting interrogations overseas. With respect to the presence and appointment of counsel, the AOR form states:

In the United States, you would have the right to talk to a lawyer to get advice before we ask you any questions and you could have a lawyer with you during questioning. In the United States, if you could not afford a lawyer, one would be appointed for you, if you wish, before any questioning.

Because we are not in the United States, we cannot ensure that you will have a lawyer appointed for you before any questioning.

If you decide to speak with us now, without a lawyer present, you will still have the right to stop answering questions at any time.

A federal district court later ruled that the rights advisories initially given to the defendants were misleading in that they may have given the impression that the right to counsel attached only in the United States and that the defendants did not have the right to consult with counsel they retained privately. Accordingly, the court suppressed statements elicited from the defendants up until they were later given rights advisories that cleared up any possible misunderstanding regarding their attachment of the right to counsel. The defendants, however, appealed the district court's decision to allow the admission of later statements elicited from them in Kenya.

AOR Was Good Enough.

In an opinion by Judge José A. Cabranes, the Second Circuit observed that the citizenship status of suspects and the location of interrogations are not relevant to the applicability of Fifth Amendment protections because that provision regulates the admissibility in U.S. courts, not the way interrogations are to be conducted. “Accordingly, we hold that foreign nationals interrogated overseas but tried in the civilian courts of the United States are protected by the Fifth Amendment's self-incrimination clause,” the court said.

Read full article here. [Brooks Holland]

Spare the innocent

Another innocent man has been freed. When will state legislators respond to what can only be called a crisis of wrongful conviction in New York? Perhaps in January, when Democrats take over the State Senate.

Albany has been woefully uninterested in this subject. New York has the nation’s third-highest number of people exonerated, but it has done little to keep the law from devouring more innocent suspects. The main obstacle has been the State Senate, where Republicans have shown virtually no interest in reforming the system.

It’s not as though this is a minor issue. Twenty-four New Yorkers have been exonerated through DNA testing, according to The Innocence Project, and 13 of thoses cases involved witness misidentification. That’s how Steven Barnes wound up in prison almost 20 years ago, convicted of a murder he did not commit.

Now 42, Barnes was convicted in 1989 of murdering acquaintance Kimberly Simon in Oneida County. The conviction was based largely on circumstantial evidence; witnesses testified they might have seen him with Simon or near the crime scene, according to the Utica Observer-Dispatch.

DNA testing, then in its infancy, was of no use. Further tests in the mid-1990s also were inconclusive, because of the continuing limits of the science.

But techniques have dramatically improved since then, and a new round of tests led to Barnes’ release from prison on Tuesday, two decades after he was wrongfully convicted.

It is not specifically the fault of state legislators that, at least 24 times in recent years, state criminal courts have convicted innocent people, including Anthony Capozzi and Lynn DeJac, both of Buffalo. But it is emphatically their fault that the state’s criminal justice system continues to operate in largely the same way as when it produced these wrongful convictions. [Mark Godsey]

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Feds punch hole in 'perjury trap,' statute of limitations excuses

That was the $7 million answer that a special prosecutor delivered two years ago in the case of former Chicago Police Cmdr. Jon Burge, accused with his men of torturing false confessions from as many as 148 defendants, most of them minorities, in the 1980s.

Attorneys for those who said they were tortured had argued that, even if the statute of limitations had expired for the torture, Burge and other officers and prosecutors who took part or cooperated in any such coerced confessions could be charged with lying under oath in civil suits.

Not practical, special prosecutors Ed Egan and Robert Boyle concluded after spending four years on a probe that ultimately cost $7 million. Burge and the others could get any perjury or conspiracy charges dismissed on a "perjury trap" defense, Egan and Boyle said.

On Tuesday, U.S. Attorney Patrick Fitzgerald made clear he disagrees.

"I don't know that the law has ever recognized a 'perjury trap,' " Chicago's top federal prosecutor said. "If it ever was recognized, this ain't one of them. People in this courthouse have received substantial sentences for perjury if convicted."

Experts say that, given that city of Chicago officials concluded Burge tortured people when they fired him, it should be easy enough to prove he perjured himself when he denied torture in written answers in a civil suit, especially if fellow officers come forward to testify. [Mark Godsey]

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Ethics Of Criminal Investigations

Talk of the Nation, August 14, 2008 · The recent anthrax investigation has brought to light the aggressive tactics of the FBI. It brought on questions about how far investigations should go and whether hardball tactics should remain legal.

Guest:

Clint Van Zandt, former FBI agent and behavioral scientist for the FBI Academy. Van Zandt also wrote Facing Down Evil: Life on the Edge as an FBI Hostage Negotiator.

Lee Lofland, author of Police Procedure and Investigation, A Guide For Writers [Mark Godsey]

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Changes Encouraged to Prevent False Confessions

There have been at least 56 wrongful convictions in New York State including those of Martin H. Tankleff and Jeffrey Mark Deskovic. Of those, at least 23 since 1991 have been based on DNA evidence — seven in the last eight years alone.

On Wednesday, the New York State Senate Democratic Task Force on Criminal Justice Reform held a forum

“I was one of the lucky ones,” said Mr. Tankleff, who testified at the forum before rushing off to his college class. “I was a white guy who lived in a nice area with a great family.”

Before his conviction for killing his parents was overturned in December 2007, he had written some 50,000 letters pleading his case in the 17 years he was in prison. “Over my time in prison I met many men who did not have the desire or drive that I did,” he said.

Among the proposals discussed at the forum, which was held at the Malcolm X and Dr. Betty Shabazz Memorial and Educational Center in Washington Heights, were:

• Establish a commission to make recommendations for reforms, as other states have already done. The New York State Bar Association’s Task Force on Wrongful Convictions, for example, has looked at patterns in wrongful convictions. Among its findings: the average length of time before the conviction was overturned in the 56 cases was 11.2 years.

• Preserve DNA evidence since the evidence is often lost, destroyed or impossible to locate. The Innocence Project, which works to exonerate the wrongfully convicted, said that a sample of closed cases from across the nation showed that one-third of them were closed because evidence could not be located for testing. The figure was even higher in New York, 50 percent.

• Require written policies for administering eyewitness identification. Misidentification by witnesses contributed to 13 of the 23 New York DNA exoneration cases, according to the Innocence Project.
  

• Reform the public defense system so that public defenders have the resources to uncover and challenge law enforcement’s methods in gathering evidence.

• Require electronic recording of interrogations. False confessions or admissions were involved in 10 of the 23 wrongful conviction cases, according to the Innocence Project.

As an example of how the police can coax false confessions, the commission made available a videotape of Frank Esposito, who as a 17-year-old was arrested and charged with arson in a fire at Bergen Beach Stables, which killed 21 horses in 2000.

He was later acquitted in a jury trial when the defense showed cellphone records that indicated he was nowhere near the stable at the time of the fire. [Mark Godsey]

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Man's Confession Is Impossible

An inmate who confessed a 14-year-old Knoxville slaying was in a mental health facility at the time of the killing, according to records unearthed by a defense attorney.Ronald E. Greene faces a second-degree murder charge for a 1994 slaying committed while Greene was in the Middle Tennessee Mental Health Institute undergoing a court-ordered evaluation, records obtained by defense attorney Steve Sams show.

Sams is asking Knox County Criminal Court Judge Kenneth Irvine Jr. to dismiss the murder charge, filed by Knoxville Police Department Sgt. Tim Snoderly in 2007 after Greene claimed he killed Richard Allen Sweat 13 years earlier.

"It matched up perfectly," Snoderly told the News Sentinel earlier this year in an unrelated interview. "(Greene) even told us about the kind of graffiti on the wall and what he killed him with."

Records filed in court by Sams make it a virtual impossibility for Greene to have been the killer, however.

Sweat, a homeless man, was released from the Knox County Jail on a public intoxication charge on Feb. 15, 1994. He was found beaten to death under a viaduct on Woodland Avenue in Northwest Knoxville on Feb. 24, 1994.

A discharge report from the state Department of Mental Health shows that Greene was transferred from the Knox County Jail to the mental health facility in Middle Tennessee on Feb. 8, 1994. He was discharged March 3, 1994.

"I realize a motion to dismiss is an unusual move at this juncture, but given the obvious strength of the alibi Mr. Greene has, I found it important to get this information in front of the court as quickly as possible," Sams said. "I am very grateful we have had to use state resources to prove to (prosecutors) what they probably already knew." [Mark Godsey]

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