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Wednesday, July 19, 2006

False Confession May Lead to New Trial for Cook County Woman

This article ran in the Chicago Tribune on Wenesday, July 19, 2006.

Mom seeks new trial in murder of her son

Lawyers say that boy killed self in accident, confession was false

By Maurice Possley
Tribune staff reporter

Published July 19, 2006

Lawyers for a woman convicted of strangling her 4-year-old son are seeking a new trial, contending the jury did not hear crucial evidence showing the boy's death was an accident.

The motion was filed on behalf of Nicole Harris, who confessed on videotape to the murder of her son, Jaquari Dancy, in May 2005 and was convicted by a jury last fall.

At the trial, Cook County prosecutors contended that Harris strangled the boy with a strip of elastic from a fitted bed sheet because he would not stop crying.Harris told the jury that the confession--virtually the only evidence against her--was false and coerced, coming 28 hours after detectives began interrogating her.

The motion is scheduled to be argued at a hearing Wednesday before Cook County Circuit Judge Lon Shultz, who presided over the trial.Harris' lawyers, Steve Drizin, legal director at the Center on Wrongful Convictions at Northwestern University School of Law, and Robert Stauffer, from the law firm of Jenner & Block, contend in the motion that Shultz wrongly barred the testimony of the only eyewitness to the boy's death, Jaquari's 5-year-old brother, Diante.

Shultz ruled Diante was not competent to testify after the boy testified that Santa Claus, Spiderman and the tooth fairy were "real."

Harris' lawyers say the boy's testimony is crucial because he said he saw Jaquari wrap the elastic strap around his neck while pretending he was Spiderman and accidentally strangle himself.

The lawyers argue that Shultz misinterpreted the law when he said the defense was required to show that the boy was competent to testify. The burden, by statute, is on the party objecting to the testimony--in this case, the prosecution, according to the motion.

Further, the motion contends that Harris' lawyers, Kenneth Wright and Lynn Hollis, provided a substandard defense that failed to obtain a psychological evaluation of Harris, chose not to bring in expert witnesses to testify about false confessions or the frequency of accidental strangulation among young children, or to seek an independent evaluation of Diante's competence as a witness.

Prosecutors oppose the motion, contending that even if Shultz had properly applied the law, his ruling that barred the boy from testifying would be the same.

Further, they argue that decisions by Harris' lawyers were matters of trial strategy and not bad lawyering.

Wright and Hollis declined to comment.The motion outlines evidence gathered by Drizin and Stauffer that they contend points to Harris' innocence.

Robert Galatzer-Levy, a psychiatrist who teaches at the University of Chicago, interviewed Diante and found him to be a competent witness, capable of distinguishing between truth and lies. Galatzer-Levy noted in an affidavit filed with the motion that "the language that [Diante] uses is not always the same as the language an adult would use."

"However, he clearly articulated what he observed, including that `Jaquari killed his own self,' that Jaquari wrapped a sheet around his neck ... that Diante's mother and father were not in the room when this occurred," Galatzer-Levy stated.

Almost immediately after police began questioning Harris, Diante was taken to the Chicago Children's Advocacy Center, where he was interviewed. Notes of the interview kept by a police detective show that Diante answered questions that would have qualified him as a competent witness.

Harris' lawyers did not call the woman who conducted the interview.

The prosecutors say that Galatzer-Levy's assessment of Diante's competence is irrelevant because the boy is now a year older.

Harris' lawyers also attached to the motion an affidavit from Bruce Frumkin, a clinical psychologist in Florida who conducted several tests and determined Harris to be "an unassertive and accommodating individual who easily gives in to misleading information, is prone to shifting to different responses when pressured, and, as a result she is at a high risk for giving a false confession."

Though Harris' confession was videotaped, the interrogation was not recorded. Two months after her confession, a law went into effect requiring police to videotape all interrogations in murder cases in an attempt to cut down on abuses during interrogation and eliminate false confessions.

The motion also states that if granted a new trial, the lawyers would call an expert to testify about the frequency of accidental strangulation of children, as well as an expert who has studied and documented scores of false confessions and has testified on nearly 250 occasions about the subject.

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