CNN.com - How to stop false confessions
such as in the Central Park
jogger case - Dec. 17, 2002

The following is an article taken from CNN.com in regards to the "Central Park jogger case", authored by Prof. Elaine Cassel. As in Debra's case the dirty and ruthless tactics of officials by coercing or inventing 'confessions' are addressed. The author also deals with the question how to avoid such false confessions, and by adding our comments you will additionally see what went wrong for Debra Milke. In case you still think 'this can't be true' you will see: indeed, it happened. And it still happens, just like in The Debra Milke Case.

By Elaine Cassel
FindLaw Columnist
Special to CNN.com

On December 5 of this year, the Manhattan district attorney's office made a rare move : It asked a judge to dismiss all charges against five men it had earlier prosecuted.

As teenagers, the men had been convicted and incarcerated for raping a jogger in Central Park in 1989, and they had since served years of jail time for the crimes. Now, however, the actual perpetrator, an older man named Matias Reyes, has been linked to the victim with DNA evidence -- after confessing to the rape and assault earlier this year.

Comment : As we know DNA evidence can't be an issue in Debra's case at all, because the young woman had never been at the murder-scene. Yet, as in the 'Central Park jogger case' the prosecution knew of mitigating evidence [such as the interview of ROBERT JOHNSON] which disclosed that the incrimination made by ROGER SCOTT wasn't true. However, in order to accomplish three death sentences county prosecutor NOEL LEVY dropped hints and indications that anything but his own scenario was the true one.

What went wrong, and why ? Why were the boys convicted in the first place ? There is plenty of blame to go around. But their false confessions played a large role, and the circumstances of how those confessions came about are worth a long, close look.

Comment : And in Debra Milke's case her purported confession as fabricated by DET. SALDATE was actually the only piece of evidence, other than a long string of unspeakable character assassinating testimonies.

The jogger case and its miscarriage of justice

In April 1989, in New York City, violent crime rates -- murders, rapes and robberies -- were out of control, and people were afraid to walk city streets. The Central Park jogger case set a record (and served as a symbol) for brutality : It was a violent rape in which the victim was also badly beaten, leading to a lengthy hospitalization.

Five teenagers, ranging in age from 14 to 16 years, who had been implicated in a separate series of muggings, were questioned about the rape. The boys were African-American; the victim was white. Some say that things began to go wrong right there, that the race factor trumped a search for the truth. The idea of a roving gang of black boys brutally beating and raping a white woman fit the schema of the public's fear of African-Americans and of teenage gangs.

All of the boys made statements to the police, though not one of them admitted to actually having intercourse with the victim. The search for the perpetrator stopped.

Meanwhile, the real perpetrator, Reyes -- who had committed a rape a few days before the jogger's, and would go on to rape and kill -- remained out there. Even at the time, it was clear that his modus operandi matched the assault and rape of the jogger, but prosecutors did not follow leads relating to Reyes.

Comment : ... which certainly sounds very familiar in light of Debra's destiny. Instead of giving three witnesses some credit who had testified that not three shots, but five to seven shots had been fired on that fateful Saturday, December 2nd, 1989 the prosecutor made fun out of witnesses JEAN PUGH and CAROL GRIFFIN and claimed they were only after 'five minutes of fame' and being in the newspapers. As our research and the reconstructed timeline have shown MRS. PUGH and her neighbor were obviously right with their observations. But the prosecution recklessly and knowingly led the jury into believing a different story which eventually landed Debra on death row.

Why, when no physical evidence linked the five boys to the crime and their confessions were implausible and mutually contradictory, were the boys convicted ?

In part, because a defendant's confession is considered by judges and juries to be compelling and unequivocal evidence. Indeed, the power of a confession is so strong, according to McCormick's treatise on evidence, as to make other aspects of the trial superfluous. As demonstrated in this case, a confession can even override strong physical evidence to the contrary.

Comment : ... which is why the biggest crime committed to Debra Milke was to allow DET. SALDATE'S unbelievable and troubling police report into evidence despite Debra's repeated and adamant denial of such a confession. And as we have shown, this report is also conflicting with witness testimonies and details which have not been addressed at trial.

Moreover, at the same time that confessions are viewed as virtually incontrovertible, police are allowed to use a number of wrongful tactics to get them. These tactics greatly increase the possibility of false confessions, and go a long way towards explaining why they occur.

Some current, psychologically coercive interrogation tactics should not be permitted

The Supreme Court limits the admissibility of confessions that are coerced or given without the requisite Miranda warnings. But what counts as coercion ?

Torture and beatings are obviously coercive, and were ruled to be so as early as 1936 in Brown v. Mississippi. Fortunately, they are largely a thing of the past. (However, in the past couple of years there has been a resurgence of reported violence perpetrated during interrogations in New York City, Los Angeles and Prince Georges' County, Maryland).

In contrast, psychological coercion, under current rules, does not automatically count as coercion; rather, psychological tactics must be proven to be coercive under a "totality of circumstances" test, as the Supreme Court held in Haynes v. Washington.

As a result, officers are indoctrinated into the psychological methods of interrogation designed to get a suspect to confess. Manuals tell investigators, for instance, to use the physical environment to law enforcement advantage, by creating small, starkly furnished and brightly lit interrogation rooms; they instruct in how to get in a defendant's face and invade his personal space. Officers learn how to conduct long interviews that may span three or four days, with little respect for a suspect's need for sleep, food or bathroom breaks.

The purpose of all these tactics, of course, to break down recalcitrant suspects. The problem is that they tend to break down vulnerable and innocent people as well as -- or perhaps even better than -- the hardened and guilty recidivist.

Deceptive tactics, in particular, often induce false confessions

Deceptive tactics are also encouraged. Investigators are taught to minimize the likely results of suspects' confessions, and to suggest to suspects that they will get a better "deal" if they talk than if they remain silent. They pretend to identify with the suspects and to offer "rationalizations" for suspects' alleged crimes, suggesting the crimes were not so bad, and thus confessing them wouldn't be so bad, either.

Interrogators are allowed to tell suspects that if they take a polygraph and "pass," they will be released -- which is not always the case. Then, once the polygraph has been taken, investigators may lie about its results if they think that would be helpful -- telling a defendant falsely that he failed.

Comment : And on this note we'd like to remind the reader that Debra Milke also underwent a polygraph test which she passed, conducted by Dr. Fritz, but that this test was declared inconclusive because of the environment where it was taken [in the county jail].

Consider, for instance, the case of an Egyptian man who was wrongfully charged with lying to the FBI in post-September 11 investigations. He falsely confessed because he was told he had "failed" a polygraph, and that if he did not confess, the government would make life for his family in Egypt "hell". His conviction has been overturned, but not until he served 31 days in solitary confinement. (More on that case)

Similarly, interrogators are encouraged to falsely tell suspects they believe them to be guilty, and that another suspect or physical evidence has implicated them. That was what happened in the Central Park jogger case: The boys were told that hairs linked them to the victim's body, which turned out not to be true.

Comment : Debra Milke served thirteen years of unjust solitary confinement.

These lies can be very harmful, since the suspect can, through repetition, be induced by the investigator to believe them. Studies show that some people who falsely confess do so because they internalize the repeated suggestions and scenarios of questioners. Nevertheless, offering scenarios for the suspect to buy into, is still a common tactic of investigators.

Indeed, a popular text of investigative techniques explains how to offer alternative explanations for how and why a crime occurred, and encourage the subject to pick "a," "b," or "c." Once the subject makes his choice, the questioner is told to help the subject "fill in the blanks," often falsely.

A case in point is the infamous false confession of Paul Ingram, a highly suggestible person who confessed to totally incredible allegations of ritualistic sexual abuse against his daughters (subsequently proved to be totally false). Ingram is still serving out a 25-year sentence, because he confessed.

Accusation after accusation was thrown at Ingram, with the encouragement to "think about it," even "pray over it," and refresh his memory. He did even more, "confessing" to bizarre, baseless details.

Amazingly, as long as deceptive tactics such as these are not deemed by a court to be coercive under the totality of the circumstances, the confessions they induce remain admissible. This is true even though statistics show that false confessions are second only to false eyewitness identification in being responsible for wrongful convictions.

Other factors were at work in the Central Park jogger case interrogations

Manhattan District Attorney Robert Morgenthau's report supporting reversal of the convictions reveals other troubling aspect of the five suspects' confessions -- besides investigator's lies that physical evidence linked the boys to the victim's body.

First, none of the boys admitted actually raping (that is, penetrating) the victim. Second, their tales of time and location of the rape were inconsistent not only with each other, but with statements of reliable witnesses.

Comment : Just like ROGER SCOTT'S statements were also self-contradictory and hardly believable. Yet, as we have seen, that didn't hinder prosecutor NOEL LEVY to seek indictments of all three individuals by leading SALDATE through a Grand Jury Hearing full of invented details and repeatedly reminding the cop of an obviously pre-arranged story to tell.

Third, the suspects' conflicting and confusing statements, taken together, made no sense. It seemed, the report notes, as if the boys were talking about different crimes. It also seemed that each expected that talking would enhance his chances of becoming a witness against others, not a defendant in his own case.

Thus, each of the suspects' statements minimized their own involvement, while placing more blame on one or more of their buddies. Together, however, the statements (though contradictory) were taken by prosecutors, at the time, to amount to a sort of group confession. They were seen that way even though some of the boys refused to admit any guilt on their own part. (Ironically, they served longer sentences as a result of insisting on their innocence).

Comment : This is similar to ROGER SCOTT'S hope to cover his own butt by claiming he was 'only' the driver.

Playing suspects off against one another, like the other psychologically coercive tactics noted above, is entirely legal, even though it also predictably leads to false confessions. Research shows that some people will say whatever a questioner wants to hear, in order to improve their status at the expense of their partner in crime.

Investigators take advantage of this psychological fact (known as "The Prisoner's Dilemma"); they split up and during breaks, caucus with each other and return to their suspects armed with information gained from the other. And they may begin plea-bargaining early -- suggesting suspects should confess to one crime in exchange for not having to face more serious charges.

Meanwhile, the fact that teens -- some of them young teens -- were involved heightened the coercive environment of the interrogation. The younger boys may not fully have understood the Miranda warnings. Behavioral science research has shown that teenagers (and many adults) generally don't; they may not understand what is meant by "waiver," and despite the warnings' language, most persist in thinking they will get to go home if they simply cooperate with the authorities.

Comment : In Debra Milke's case she 'waived' her rights when she was brutally informed about the death of her 4-year-old son CHRISTOPHER. As we have seen with SALDATE'S report of his interview of SANDRA PICKINPAUGH the detective had developed a subtle technique in taking true statements, twisting them and putting them into his own, self-serving order.

In addition, teenagers -- especially antisocial kids such as these -- are also egocentric and like to put themselves into the stories they tell. At times, they lie; often, they exaggerate. A boy who ran away from the scene, for instance, might not admit it since his flight would not seem macho or manly.

Comment : Similar to SANDRA PICKINPAUGH'S statements to DET. SALDATE : she would often emphasize in her interview and later at trial how much she cared for her nephew CHRISTOPHER, while his natural mother was 'out, partying.' Debra, who was popular and always hard-working at her jobs was always a subject for her younger sister's envy and jealousness.

In the Central Park jogger case, one of the teens also seemed to display borderline mental retardation and perhaps a psychotic mental disorder. In some of his statements, he referred to flying around the park in a blue bus. People with mental retardation are much more likely to tell any questioner what he or she wants to hear, and people who are delusional are too far out of touch with reality, of course, to make reliable statements.

Despite all these problems, the prosecutors -- eager for a conviction -- still went forward.

How to stop it from happening again

How can we stop other cases like this from occurring ? A number of simple measures could prevent many false confessions such as these.

Comment : And in Debra Milke's case DET. SALDATE had secured to be alone with Debra, having sent her accompanying acquaintance JANET FROEBE out of the room.

First, children, teenagers, and people with mental deficiencies should not be questioned outside the presence of a competent guardian or legal representative. In this case, none of the boys' parents were present when their children made the most damaging statements against their interests.

Second, all interrogations ought to be videotaped. In this case, the taping did not begin until after the boys had been questioned for hours. As a result, the film shows only the statements, not the psychological and environmental pressures that preceded them. Jurors could certainly get a false impression of the "confessions," viewing them outside the context of law enforcement tactics.

Third, all statements offered as confessions should not be admissible unless they are corroborated by credible and, when possible, physical evidence. Fortunately, most states do have laws that require corroboration of admissions. Unfortunately, the qualitative standard for how good the corroboration must be is quite low. Circumstantial evidence may suffice. Worse, even the statement of an accomplice, as in the Central Park jogger case, is deemed to be enough -- despite the accomplice's obvious incentive to escape responsibility by placing the lion's share of blame on someone else.

Fourth, there should be strict, carefully-enforced time limits on interrogations. Questioning that goes beyond three or four hours begins to be coercive; questioners intensify their techniques, and subjects become fatigued, confused, even disoriented. In the jogger case, the interrogations -- which ranged from fourteen to thirty hours -- clearly crossed the line from questioning into coercion.

Fifth, contrary to current Supreme Court standards, law enforcement lies to suspects should be forbidden. As noted above, the "confessions" such lies prompt are often highly unreliable.

Sixth, and finally, prosecutors should be held to their duty to do justice. Because they are immune from suit, they are unaccountable -- except to voters -- for negligence and fraud. Requiring them to vouch for the evidence produced by their investigators and law enforcement, might make them think twice about putting on any evidence and hoping it sticks.

Defense attorneys can lose their licenses for putting on false and misleading evidence, even though their duty is to defend zealously. Prosecutors, on the other hand, often do so with impunity, even though their duty is to serve justice, not to convict. That needs to stop. Prosecutors should be held as closely accountable for what they do as are defense attorneys.

The cost of false confessions

Some observers have expressed little sympathy for the falsely convicted boys, who seem to have been muggers, even if they were not rapists. But of course, a mugging is a world away from a rape, for which they were incarcerated. And more fundamentally, the Constitution guarantees that the punishment fit the crime -- not some other, worse crime one did not commit.

In any case, one need not have an excess of sympathy for the boys in order to condemn the injustice done here. One need only have sympathy for the next woman whom the real perpetrator, Reyes, went on to rape and murder, and for the jogger-victim, who did not get justice for 13 years.

They deserved much better. So did the boys, and so do we all.

Elaine Cassel, a FindLaw columnist, practices in Virginia and the District of Columbia. She also teaches law and psychology and is the author of "Criminal Behavior." She is chairwoman of the Behavioral Sciences Committee of the ABA Science and Technology Law Section and a member of the ABA's Criminal Justice and Litigation Sections.