innocence blog

A Web log for the Innocence Institute of Point Park University

Friday, June 23, 2006

CA Hearing Supports Recording of Interrogations

This article ran in the LA Times on Friday, June 22, 2006.

Panel Urges Videotaping of Suspects' Confessions

By Henry Weinstein, Times Staff Writer

June 22, 2006

A blue-ribbon commission that is examining California's criminal justice system was urged Wednesday to recommend that police videotape all interrogations of crime suspects in custody.

Among those who spoke at the three-hour hearing in support of the recommendation were two men who spent years in prison for crimes they did not commit, as well as a former federal prosecutor and an American Civil Liberties Union representative.

No one spoke against the idea, but two law enforcement officials told the California Commission on the Fair Administration of Justice that recording interrogations could be impossible in some circumstances, such as when someone was caught in a remote area.

The commission, whose chairman is former California Atty. Gen. John Van de Kamp, is considering a proposal that police agencies in California videotape custodial interrogations, or when video is impractical, audiotape them. He said he expected the commission to make final recommendations in about a month.

The Legislature also is considering a bill introduced by state Sen. Elaine Alquist (D-Santa Clara) that would require electronic recording of all custodial interrogations relating to violent crimes.

The bill calls for video recording of questioning related to homicides. The bill passed the Senate but remains in an Assembly committee because of concerns about its implementation cost.

In addition, the commission is considering proposals to change California law mandating that juries be given cautionary instructions about accepting the validity of confessions that have not been electronically recorded.

Christopher Ochoa and Harold Hall explained why.

Ochoa, who spent 12 years in prison for a murder he did not commit in Texas, and Hall, who spent 19 years in prison for a double murder he did not commit in Los Angeles, told the commission that they had been browbeaten into confessing. They said that if authorities had been required to videotape the confessions, enabling a defense attorney or a judge to see the tape later, the chances of abusive conduct by police investigators would have been reduced.

University of San Francisco law professor Richard A. Leo, a coauthor of two studies on false confessions, said that in the last 40 years, at least 200 false confession cases have been documented, and that "this is almost certainly the tip of a much larger iceberg."

"Interrogation-induced false confession is a leading cause of wrongful conviction in America," Leo told the hearing, held at Loyola Law School in Los Angeles. In addition, Leo said, studies "tell us — quite counter-intuitively — that false confessions appear to occur primarily in the more serious cases, especially homicide and other high-profile felony cases."

More than 80% of the 125 false confessions documented in a study Leo co-wrote in 2004 occurred in homicide cases. And in cases documented by the Innocence Project at the Benjamin N. Cardozo School of Law in New York, false confessions led to more than two-thirds of the convictions overturned by DNA testing.

Leo said the primary reason innocent people falsely confess is "because of the use of psychologically coercive interrogation techniques and how they interact with a suspect's personality. Usually it is a combination of the two, though the primary cause is the interrogation methods that elicited the false confession.

"False confessions have particularly devastating consequences because "confessions are the most incriminating and persuasive evidence of guilt that the state can bring against a defendant." Research shows that "confessions exert a strong biasing effect on the perceptions and decision-making of criminal justice officials and lay jurors alike because most people assume that a confession — especially a detailed confession — is, by its very nature, true," Leo said.

Leo said studies also indicated that false confessions frequently came during particularly long interrogations when the suspect's resistance had been broken. Hall said he was questioned by four detectives in a small room for more than 17 hours before falsely confessing.

"My only goal was to survive and get out of that room. The only way was to tell them what they wanted to hear," said Hall, who works at the Los Angeles County Bar Assn. and has a federal civil rights suit pending against the Los Angeles Police Department.

Thomas P. Sullivan, a former U.S. attorney in Chicago who is a strong advocate of recording custodial interrogations, said that he had interviewed police officials across the country who had adopted the practice and that they had uniformly found it to be beneficial. Among other things, Sullivan, now in private practice in Chicago, said police have told him that recording interrogations can help them withstand false allegations of misconduct.

And the recordings can be used to improve police interrogation techniques, he said.

Eric Green, an ACLU attorney, said the commission's recommendations did not go far enough. Officers "should be trained that the purpose of an interrogation is to advance the investigation of the facts, not to secure a confessional statement from the suspect regardless of the truth."

Sgt. Frank Bell, of the homicide division of the San Bernardino County Sheriff's Department, said that in some instances it would be very difficult, perhaps impossible, to videotape a suspect. He emphasized that San Bernardino is the largest county in square miles in the continental United States and that some areas are remote.

Sandra Lefler, the LAPD's legislative liaison, said after the hearing that the department has no written policy on recording custodial interrogations. She said it is "recommended, but not required."

Thursday, June 22, 2006

Judge Rejects "Orwelian" Arousal Test for Sex Offender

This article ran in the LA Times on Thursday, June 22, 2006.

U.S. Appeals Court Rejects Arousal Test for Sex Offender

By Tanya Caldwell, Times Staff WriterJune 21, 2006

A periodic test that measures a man's response to erotic images is "Orwellian" because it examines his mind, not just his body, and should not be used because it deprives him of more freedom than necessary, a federal appeals court ruled Tuesday.

In order to be released from prison, U.S. District Judge Dean Pregerson had ruled in 2001, Matthew Weber would have to subject himself to tests in which a pressure-sensitive electronic device is placed around the penis and the response to stimulating images is monitored, said his lawyer, Jonathan Libby.

Weber was charged with possessing child pornography on his computer, pleaded guilty and was sentenced to 27 months in prison and three years of supervised release. But he objected to the penile plethysmograph test, which has been used as part of sex offender treatment programs.

The U.S. 9th Circuit Court of Appeals agreed with him, saying the test would deprive Weber of his liberty more than "was reasonably necessary."In a unanimous decision, a three-judge panel vacated Pregerson's judgment Tuesday and sent Weber's case back to District Court.

The test was developed by Czech psychiatrist Kurt Freund to study sexual deviance, but it was eventually used by the Czechoslovakian government to find and "cure" homosexuals, the appellate court opinion said, citing David M. Friedman's 2001 book, "A Mind of Its Own: A Cultural History of the Penis."

Weber, who was charged and convicted after a repair shop found child porn on his computer, argued that the test should be reserved for people who had molested children or tried to do so. The government countered that actual assault isn't a requirement for the test.

Libby said the test is typically tied in with treatment programs for sex offenders when they are sentenced. And every time they are, Libby and the other lawyers on his team object.Proponents of the test have argued that its helps in sex-offender treatment programs, which could also include lie-detector testing and psychiatric medication.

Thom Mrozek, a spokesman for the U.S. attorney's office in Los Angeles, said the ruling "will have no effect on our aggressive enforcement program."But critics, including the American Psychiatric Assn., have called the test unreliable, according to the appellate court's opinion.

Libby said Tuesday's ruling doesn't outlaw the test, but he added that 9th Circuit Judge John Noonan's written concurrence in the ruling suggested that could happen eventually.Noonan called the test Orwellian because it would not only measure Weber's genitalia but also probe his "innermost thoughts as well."

"A prisoner should not be compelled to stimulate himself sexually in order for the government to get a sense of his current proclivities," Noonan wrote in his concurrence with Judge Marsha Berzon's opinion. "There is a line at which the government must stop. Penile plethysmography testing crosses it."

Wednesday, June 21, 2006

Texas Exoneree Tells His Story

This story ran in the LA Times on Wednesday, June 21st, 2006.

Freed Man Gives Lesson on False Confessions

An ex-inmate tells a California panel how Texas police coerced him into admitting to murder.

By Henry Weinstein, Times Staff Writer
June 21, 2006

Seventeen years ago, Christopher Ochoa told a Texas jury exactly how he and a friend repeatedly raped 20-year-old Nancy DePriest and then shot her dead at the Pizza Hut where she worked.

The details were so gruesome that DePriest's mother, Jeanette Popp, fled the courtroom and threw up in a bathroom. Ochoa and his co-defendant, Richard Danziger, who steadfastly maintained his innocence, both received life sentences.

But Ochoa's story was a lie — a total lie. He had been threatened with the death penalty by a police detective if he did not admit that he and Danziger murdered DePriest; he also had to testify against Danziger. The two young men worked at a different pizza place and came under suspicion after they toasted DePriest's memory with beers at the scene of the murder.

But the fact that Ochoa confessed falsely did not come to light until 2000, four years after the real killer, already serving three life terms for other crimes, told police in Austin, Texas, that he was responsible for the young woman's death.

The account by Achim Joseph Marino, by then a born-again Christian, had for several years been given short shrift. Eventually, with the help of pro bono attorneys, DNA tests were performed and the two men were exonerated.

Today, Ochoa, 39, and Popp, 56, are testifying in Los Angeles at a hearing of the state's Commission on the Fair Administration of Justice about the ramifications of their experience for California. In particular, they want to express their strong feelings about a subject that many people find difficult to grasp: that innocent people sometimes really do confess to crimes they did not commit.

Ochoa and Popp said they would urge the commission to recommend legislation requiring that police be required to videotape every moment of their contact with a suspect to avoid false confessions.

False confessions "do happen, a lot more often than people think," Ochoa said.

Added Popp: "I have heard lots of people say I would never do that — never confess to something I didn't do. How do you know what you would do if you were in that interrogation room with the man I call 'El Diablo'? " referring to the lead police investigator."

Cases like this reveal in very dramatic terms that this does happen — not just with people who are mentally ill or of limited intelligence or otherwise vulnerable, such as children," said Keith A. Findley, a University of Wisconsin law professor and co-director of the school's Innocence Project. He played an instrumental role in securing freedom for Ochoa and Danziger.

"It happens with mentally healthy, intelligent people like Chris Ochoa," who last month graduated from the law school where Findley teaches, the professor said.

Indeed, of the 180 inmates in the United States exonerated by DNA testing in the last two decades, 44 had falsely confessed, said New York attorney Barry Scheck, a co-founder of the Innocence Project at New York's Benjamin N. Cardozo School of Law who also played a key role in the case.

On Oct. 24, 1988, DePriest, the mother of a 15-month-old girl, was found lying nude at a Pizza Hut in north Austin. Her hands were bound behind her. She had been raped and shot in the head.

The true story of her murder started to emerge just three weeks before the 2000 presidential election, a time when the Texas criminal justice system was under media scrutiny because more than 150 people had been executed during the administration of then-Gov. George W. Bush.

A spokesman for Bush acknowledged at the time that Bush had received a confession letter from Marino in February 1998, but said he did not turn it over to law enforcement authorities because Marino said he also was sending it to the Travis County district attorney's office.

Marino's four-page letter, also sent to the Austin police and a local newspaper, said he had "robbed, raped and shot" DePriest at the Pizza Hut in October 1988.

Eventually, Travis County Dist. Atty. Ronnie Earle re-opened the case. The DNA tests cleared Ochoa and Danziger, who were released from prison in 2001 after serving 12 years. Both men filed federal civil rights lawsuits alleging that Austin police officials failed to properly train or monitor three homicide investigators and that the officers threatened violence, fabricated Ochoa's confession and destroyed and hid exculpatory evidence.

Two years after the two men's release, the Austin City Council decided to settle with both of them. Ochoa, 22 at the time of his arrest, got $5.3 million. Danziger, who was 19 when he was arrested, got more — $9 million from the city and $1 million from the county — in part because he sustained permanent brain damage from a prison beating.

Popp actively supported the men's release. When she heard on television that the two might have been wrongly convicted, she said, "my knees began to shake. My first reaction was anger — why were they trying to get these boys off; the evidence I heard in the courtroom was extremely strong."

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Monday, June 19, 2006

Unreported Rape Still a Problem, Despite Decreasing Numbers

This article ran in the Washington Post Monday, June 19, 2006.

Statistics Show Drop In U.S. Rape Cases
Many Say Crime Is Still Often Unreported
By David A. Fahrenthold
Washington Post Staff Writer
Monday, June 19, 2006; Page A01

The number of rapes per capita in the United States has plunged by more than 85 percent since the 1970s, and reported rape fell last year even while other violent offenses increased, according to federal crime data.

This seemingly stunning reduction in sexual violence has been so consistent over the past two decades that some experts say they have started to believe it is accurate, even if they cannot fully explain why it is occurring.

In 1979, according to a Justice Department estimate based on a wide-ranging public survey, there were 2.8 rapes for every 1,000 people. In 2004, the same survey found that the rate had decreased to 0.4 per thousand.

Many criminologists and victims' advocates say that these numbers could be a statistical mirage, because rape is still underreported and poorly understood. But others say they have been convinced that there is real improvement and that a devastating crime has been receding from American life.

"Overall, there has clearly been a decline over the last 10 to 20 years," said Kim Gandy, president of the National Organization for Women. "It's very liberating for women, in terms of now being able to be more free and more safe."

By all accounts, rape is still one of the most underreported crimes. Several decades after the establishment of rape crisis hotlines, greater sensitivity toward rape victims by police and prosecutors, adoption of policies by news organizations to not identify victims and limitations on how much a victim's sexual history can be placed in evidence during trial, the Justice Department estimates that 61 percent of rapes and sexual assaults are still not reported. But that is down from 69 percent in 1996, and experts say the trend remains downward.

Not everyone is convinced that things are getting that much better. Many who work with rape victims say they do not believe there has been a widespread decline in the number of attacks. Instead -- despite the years of attempted outreach to rape victims -- they say the crime may be as hidden now as ever.

"If there's been a change, it's been a very small change," said Dean Kilpatrick, director of the National Crime Victims Research and Treatment Center in Charleston, S.C. He said that recent high-profile rape cases such as those involving Duke University lacrosse players and basketball star Kobe Bryant may have persuaded rape victims to stay silent because of public scrutiny of the accusers' private lives and sexual history.

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