False Confessions Make It Harder to Establish Innocence for Alleged Juvenile Offenders

Krisberg_Barry (1)The national media has widely reported the story of Brendan Dassey, whose murder and sexual assault convictions were reversed by a federal court in Milwaukee on Aug. 12; he had served nearly nine years in prison. He was ordered released unless prosecutors wanted to file a new charge.

Dassey, who was 16 at the time of his arrest, was a central figure in a very popular Netflix documentary — “Making a Murderer.” The court found that the youth was mentally unfit and was coerced into confessing his involvement in the crime by false promises by investigators. The court held that his confession was involuntary under the Fifth and Fourteenth amendments. His lawyer had not challenged the propriety of the confession.

This was not an isolated incident. Davontae Sanford, a developmentally challenged 14-year-old, was also released after more than nine years in a Michigan prison for allegedly murdering four people in a drug house. His confession to police was made after two days of intense questioning without the presence of his guardians or an attorney. A professional hit man subsequently admitted to the murders. It appeared that Sanford’s interrogators ignored or did not reveal gross inconsistencies in the original confession.

Most Innocence Projects have focused on exonerations of adult defendants. There have been hundreds of these cases over the past decade. Many of these cases involved utilizing forensic evidence, especially DNA. Most of the exonerations are also due to inadequate legal representation, false eyewitness identifications or coerced confessions.

There are several Innocence Projects that look for cases in which the defendant was under age 18 at the time of the arrest. It is estimated that 38% of juveniles are falsely convicted due to false confessions, compared to 11% of adults convicted due to false confessions. Some research suggests that minors are more likely to tell interrogators what they want to hear or to brag about their gang exploits. The other concern is that youth are not equipped to adequately participate in their own defense and may be victims of inadequate counsel. There is some very limited research suggesting that eyewitness identifications may be harder with younger people.

These innocence cases often involve plea bargains or jury trials that occur in criminal courts, but they are the tip of the iceberg of excessive punishment for juveniles. Different from the issue of actual innocence are situations in which minors are prosecuted as adults either via statutory mandates, direct filing by prosecutors or transfer hearings in juvenile courts.

There are many youth advocates pursuing the issue of handling youth as if they were adults, such as student clinics at the University of Southern California and Loyola Marymount Law School. These advocates are relying on recent Supreme Court decisions in Miller v. Alabama as well as some state laws that provide for sufficient due process for minors who receive life with possibility of parole or very long sentences known as "virtual life." The Supreme Court very recently extended the scope of the Miller decision in Montgomery v. Alabama to all prisoners serving these harsh sentences who were arrested before age 18. Typically, remedies in Miller or Montgomery appeals seek petitions for resentencing or for reconsideration of parole decisions.

There are many organizations that are trying to reduce the number of youngsters who are tried in criminal as opposed to juvenile courts by challenging state laws and prosecutor discretion in this area. It is often alleged that minors do not receive adequate representation in the early stages of the judicial process that might limit these transfers. For example, juveniles may unknowingly waive their Miranda rights or be pressured by their guardians to tell the law enforcement people "the truth."

There have been many cases in which minors tell court social workers or probation staff about prior involvement with drugs or gangs that can trigger sentencing enhancements that lead to transfers to adult court and/or long mandatory sentences. Given the vulnerability of youngsters and their limited ability to actively participate in their defense, treating teens as if they were just small adults is very bad public policy. The underlying philosophy of juvenile court, with its focus on treatment and education, is far more humane than the punitive criminal sentencing system.

A very different approach to reducing the mistreatment of young people by prosecutors and the court system is that taken by the National Juvenile Defender Center, the Juvenile Law Center in Philadelphia and the Youth Law Center in San Francisco. These groups focus on establishing standards for the representation of juveniles in criminal or juvenile courts. The emphasis is on the fair application of federal and state constitutional protections covering search and seizure, the Miranda decision and the right to counsel, which is very uneven and underfunded in many juvenile courts. There also are a set of groups such as disability rights advocates and public counsel that look at the particular developmental and mental health challenges faced by young people and push for increased legal attention to mental competency issues for minors.

Even before formal legal proceedings there are difficult issues involving the preadjudication detention of juveniles, both in adult jails and in specialized youth centers. Since young people do not uniformly have a right to bail, the detention decision is critical for them.

Many youngsters are held for substantial amounts of time "for their own protection" or for very minor violations of the rules of their probation. Most of these young people will be ultimately released with charges dropped or a nonsecure residential placement. There was a tragic case in New York City in which adolescents were held on Rikers Island for years without any charges being filed.

The Annie E. Casey Foundation has been the leader in reducing inappropriate and excessive detention of young people. The reforms here usually involve increasing the legal representation of youth at the detention hearing and the routine consideration of nonincarceration alternatives. The conditions of juvenile detention are often very harsh, educational and social services are often nonexistent, and solitary confinement practices are common.

Concerns of fair consideration of juvenile innocence and due process occur in a variety of nonjudicial and administrative forums that may involve very significant adverse consequences for youth, such as school-based discipline and expulsions. Even some very well-intended nonjudicial programs such as diversion programs, peer juries or restorative justice programs have ill-defined protections for youth rights and parental interests.

These cases also bring in the concerns of child welfare or protection agencies that might result in removal of the child from the home to shelters or foster care placements. Another important issue involves the use of powerful psychotropic drugs in the foster care system and the protection of youth who may not want or need these medications. While some locales have sought to better regulate these potential abuses, much more needs to be done.

Other crucial areas for needed reforms involve the rules governing the sealing or expunging of juvenile records and the mélange of state laws on the confidentiality of juvenile court hearings. Large issues involve whether juvenile adjudications can count as prior offenses in the criminal courts, especially under Three Strikes laws, or the use of juvenile adjudications to bar employment, college admissions or access to college loans. Still another important topic is the handling of minors who are undocumented immigrants in deportation proceedings and policies of mandatory detention holds for these youth if they are arrested.

While there has been impressive progress made in the reduction of youth incarceration and more attention given to alternatives to confinement, these positive changes could be reversed if fears about juvenile crime are fueled by ambitious politicians and the media. The legal protections for youth have made some fitful steps forward, but the actualization of youth rights requires adequate access to high-quality legal assistance.

It is time for juvenile justice advocates and enlightened professionals to protect the basic legal rights of minors in a variety of settings. These problems are especially pronounced for young people of color and the poor. Issues of basic fairness and ingrained prejudice must be eliminated wherever they appear.

Barry Krisberg is a Visiting Fellow at the Institute for the Study of Societal Issues at the University of California, Berkeley.

A Modern Understanding of a Long Ago Confession and a Boy’s Execution

Alcolu, S.C., where 70 years ago 14-year-old George Stinney Jr. was executed for the alleged murder of two white girls. Today, some are pushing for the re-opening of the case to exonerate Stinney.
Alcolu, S.C., where 70 years ago 14-year-old George Stinney Jr. was executed for the alleged murder of two white girls. Today, some are pushing for the re-opening of the case to exonerate Stinney.

This story was also published by the Center for Public Integrity

ALCOLU, S.C. -- A few miles off I-95, past acres of brown-and-white fields where blackbirds circle overhead, this small town in the heart of Deep South cotton country isn't known for much. It has a post office and a few churches, some abandoned houses and some nicer ones, ramshackle trailers and cotton fields. After church on a recent Sunday there, George Frierson was scuffing a shiny black dress shoe across some gravel at a railroad crossing. Back when he was a kid the rail line split this tiny, rural town along racial lines. But for blacks like him growing up in Alcolu, the train tracks signified something even more sinister than segregation.

“Where they actually found the girls' bodies, they say it was just along the tracks,” he said.

[module align="left" width="half" type="aside"]

George Frierson, a local historian and community activist in Alcolu, S.C., stands near the site where the bodies of two white girls were found in 1944. Frierson began to examine the case of George Stinney Jr., who was executed at age 14 for the murders, a few years ago. What he found pushed him into activism for the exoneration of Stinney. (Credit: Sean Rayford)

Frierson is a local historian and community activist who works at the nearby Oak Grove Missionary Baptist Church and serves on the county school board. The general area he was marking with his shoe was the scene of a double murder in 1944. Two young white girls out picking flowers had their skulls bashed in and were found in a nearby water-filled ditch. Police said their killer used a railroad spike, and for the culprit they fingered a 14-year-old black boy named George Stinney Jr., whom a witness said had been seen talking to the girls earlier that day. The sheriff's deputies who snatched Stinney up said he confessed to the crime when they took him in for questioning. The boy's parents, who lived in a company house, were run out of town the day he was arrested and didn't see their son until his trial. An all-white jury sentenced the teenager to death after 10 minutes of deliberation. The trial lasted two and a half hours in the Clarendon County courthouse where a local tax commissioner preparing for a State House run in an election year was appointed to represent him. No witnesses spoke in his defense. That summer, fewer than 90 days after the girls were killed, the State of South Carolina shocked George Stinney Jr. to death in an electric chair that could barely fit his small frame. He was the youngest person executed in 20th century America.

These days, not everyone who lives in the area has heard the story of George Stinney Jr. About four years ago, a white local attorney named Steve McKenzie read a newspaper account about the execution.

“I practiced law in Clarendon County for 20 years and did not even realize this case even existed,” he says. “This is a well-known case in the black community, but in the white community I'd never even heard of it. I grew up in this area … and was just, as a lawyer, was just appalled at the lack of process that was given to George Stinney.”

In October 2013, McKenzie asked the county solicitor ― the state's equivalent of a district attorney ― to give Stinney a new trial 70 years after the boy's death. A county judge could grant or dismiss the motion, but it's likely to wind up a merely symbolic move.

“It's not the strongest case in the world,” McKenzie admits.

The Palmetto State has strict rules about introducing new evidence after a trial, and obviously the death sentence has already been carried out. In 2009, Aime L. Stinney told The Sumter Item, a local newspaper, that she and her brother did interact with the girls the day they disappeared, according to reporter Robert Baker. But the new legal motion comes with sworn statements from Aime and her other brother Charles that say they were with Stinney the entire day of the murders and it would have been impossible for him to have done it.

"George's conviction and execution was something my family believed could happen to any of us in the family,” Charles Stinney wrote in his statement. “Therefore, we made a decision for the safety of the family to leave it be.”

No written record of a confession has even been produced, according to McKenzie and others who have researched the case, and nearly all the transcripts, files and records related to the prosecution have vanished except for some handwritten notes.

Part of the new petition to re-open the case also hinges on that alleged confession between a black teenager, alone in a room with multiple white sheriff's deputies in the Deep South, pre-Miranda rights era of 1944.

“The only thing that we are aware of is an oral confession,” McKenzie says. “To me, any time you put a 14-year-old in that situation and you put it in that era, then the chances of this confession either being coerced or the person being manipulated by the people who were actually doing the interrogation would be very, very high. … You're talking about white men in the Jim Crow South with a 14-year-old boy. It wasn't even close to being an even playing field.”

Modern science

Alcolu, S.C., where two white girls were found dead in 1944 and 14-year-old George Stinney Jr. was executed for the murders.
Alcolu, S.C., where two white girls were found dead in 1944 and 14-year-old George Stinney Jr. was executed for the murders.

Obviously no can say for sure what happened in the room where the deputies questioned George Stinney Jr. 70 years ago. The officers are dead, and Stinney is dead. But one thing can be said about the circumstances in which the teenager's alleged confession was used in the swift trial that led to his execution.

In 1944, there was no body of scientific evidence, research or psychology to suggest that people would ever confess to a crime they didn't commit. Now, there's plenty.

“Our courts are only just now catching on to the fact that there's a science to interrogation that unfortunately can lead to false confessions,” says Joe McCulloch, a lawyer in South Carolina's capital city of Columbia who directs the state chapter of the anti-death penalty Innocence Project.

It wasn't until around the late 1980s when American courts began using expert witnesses to testify about false confessions at trials, says Saul Kassin, a psychology professor at the John Jay College of Criminal Justice in New York City who is regarded as one of the nation's leading experts on the topic. Around that same time, England was seeing a rash of false confession cases and completely revamped the way its law enforcement officers handle interrogations because of it, he says. That country moved to a less confrontational style of police interrogations, and by 1985 made sure all interrogations were recorded. By the next decade, here in the United States, two professors at the Benjamin N. Cardozo School of Law at Yeshiva University formed the Innocence Project to help exonerate prisoners who could be proven innocent through DNA testing.

According to Kassin, among those early prisoners exonerated by DNA evidence, 25 percent of the cases involved false confessions.

“Nobody ― nobody ― imagined that the rate of false confessions in those cases would be so high,” he says.

These days, no murder trial in the United States could ever take just two and a half hours, as Stinney's trial did in 1944. And when it comes to the confession part of it, modern defense attorneys have a bench of experts at their disposal, some of whom have devoted their life's work researching it. One of those is Kassin. In 1985, he wrote a landmark article that laid out three categories of false confessions and why someone would ever admit to a crime they didn't commit. One category is a voluntary confession, typically given by someone looking for attention. Another is an internalized confession, when interrogation tactics lead someone to believe they might have actually committed an act they haven't.

The third is called a coerced compliant false confession.

“These are cases where innocent people who know they're innocent are in a situation of interrogation that is so stressful, they've been there so long and they're sleep deprived and they're so tired and they are being yelled at and being called a liar and there may have been threats or promises that have been made or implied, and basically, in a nutshell, the situation has become so bad … that they use confession as the only way to get out,” he says.

Oftentimes, Kassin says, a part of it is something known as myopic decision making: when someone is under duress, he or she will do what's expedient to get out of a bad situation with little or no regard for future consequences.

The cannon of false confessions analysis these days isn't relegated to ivory towers of academia, criminal justice research papers or the dense pages of footnoted law journals. In recent years it's penetrated pop culture. The image of a 14-year-old black teenager facing two small town white cops who think he might have killed a pair of young white girls could easily be imagined in the script of a modern-day TV crime drama. This April, PBS aired a Ken Burns documentary called “Central Park Five,” which tells a notorious story from the perspective of five black and latino teenagers who were convicted of raping a white female jogger and beating her close to death in the New York City park in 1989. They'd pleaded not guilty, and said police had manipulated confessions out of them, four of which were videotaped. They were told if they confessed they'd be able to go home. In 2002, all five of them were let out of prison when DNA evidence proved a serial rapist, who later also confessed to that particular crime, had been the real confessor responsible for the attack.

Meanwhile, the 2012 documentary “West of Memphis” traces the story of three young Arkansas men who were convicted of killing three 8-year-old boys who were found naked and hogtied in a ditch. One of them, Jessie Misskelley Jr., implicated the others in the crime after a long police interrogation, which became the basis for the arrests. DNA evidence later exonerated them.

Why did Misskelley confess? He was “borderline mentally retarded, with an IQ of 72, yet police persisted with his lengthy interrogation,” wrote Brandon L. Garrett, a professor at the University of Virginia School of Law, in a post on the Harvard Press Blog. “The few recorded pieces of the interrogations showed police using leading questions to try to tell him what had happened, something that interrogators are trained not to do because it contaminates a confession. We do not know what threats or other techniques were used to secure that confession.”

In 2005, after studying cases and talking to people who had falsely confessed to crimes they didn't commit, Kassin says he discovered something he calls the phenomenology of innocence.

“Innocent people trust that their innocence will ultimately work them out,” he says, adding that someone who knows they've done nothing wrong can sometimes believe that once the interrogation is over, the crime is fully examined and investigated, the police will see the evidence clearly points in another direction, and everything will be OK once they get a lawyer."

That, and myopic decision making, is much worse with young people than adults, Kassin says. They'll ask if they can call their mom and are told they can when the interrogation is over. Getting out becomes the urgent problem they need to solve and so they say whatever it might take to get them out of the situation.

It certainly isn't beyond the realm of possibilities that Stinney was up against the same or similar circumstances and psychology in 1944.

“Research couldn't be clearer: kids are much more shortsighted in their decision making than they are focused on longterm consequences,” Kassin says. “A 14-year-old fits perfectly into that model.”

Alcolu, S.C., where 70 years ago 14-year-old George Stinney Jr. was executed for the alleged murder of two white girls. Today, some are pushing for the re-opening of the case to exonerate Stinney.
Alcolu, S.C.

A better way forward

George Frierson, a local historian and community activist in Alcolu, S.C. A few years ago, Frierson began to examine the case of George Stinney Jr., who was executed in 1944 at age 14 for the murder of two white girls. What he found pushed him into activism for the exoneration of Stinney.
George Frierson, a local historian and community activist in Alcolu, S.C. A few years ago, Frierson began to examine the case of George Stinney Jr., who was executed in 1944 at age 14 for the murder of two white girls. What he found pushed him into activism for the exoneration of Stinney.

Just as no one can know how Stinney's alleged 1944 confession to the sheriff's deputies came about ― or if it even did ― the same could be said for what the jurors in the case were thinking when they reached their verdict, sentencing a black teenager to death for the killing of two white girls in a segregated Deep South town that wanted revenge.

Steve McKenzie, the lead lawyer working to have the Stinney case re-heard, in order to right what he sees as a moral wrong, had a rather shocking confession himself when asked about that specific aspect of the trial.

“If I would have been sitting on that jury I probably would have convicted him too,” he told me. “I'll tell you why: It's simply because the white community was expecting justice and they had what they thought was a confession. So why doubt what the police officers were saying? You had two sheriff's deputies that said he confessed. For the white community, as far as they were concerned it was done, the girls were dead and let's execute the murderer and move on. And that's what they did.”

A Jim Crow era fraught with racial tension, however, can't take all the blame. The jury that heard the case of the West Memphis Three made their verdict in the 1990s, and the Central Park Five case took place in New York City.

In 2009, the American Psychology-Law Society published a white paper on false confessions authored by six researchers who studied the issue. In it they documented research that's shown how over the years judicial concern about an over-reliance on confessions by jurors has given rise to “a series of rules designed to curb possible abuses in the interrogation room, exclude unreliable confessions from trial, and prevent wrongful convictions.”

The paper concluded with the strong recommendation that electronic recording of interrogations be mandatory in the United States. Currently, the FBI doesn't have to tape confessions. At the state level, 17 states require it. At the local level, Kassin says hundreds of jurisdictions are doing it voluntarily.

In South Carolina, police can use oral confessions in court just as they did in 1944, says McCulloch of the state Innocence Project.

“As an old prosecutor, there is nothing more effective in a courtroom than a confession,” he says. “The problem with a confession if it's not recorded is that it's always subject to inaccuracy on the part of the police officer, which could be unintentional or a misinterpretation. But certainly it is subject to the accused at trial denying they ever confessed.”

McCulloch plans to help get a bill introduced in the state legislature in January that would mandate all interrogations and confessions be recorded. He adds that the purpose isn't just to give juries the best possible evidence of a confession, but also to prevent the kinds of law enforcement techniques that result in false confessions.

“If you've got the whole thing on video and the cops are feeding that information that only the murderer would know, that's what leads to the credibility of a false confession [and] the techniques of hot boxing a subject, especially if they're young,” he says.

Beyond a more uniform practice of videotaping confessions, there's another reform that renewed attention to the Stinney case might be able to spotlight.

According to Dan Macallair, who directs the San Francisco-based Center on Juvenile and Criminal Justice, one important lesson that could be drawn from modern reflection on that 1944 prosecution is the need to smooth out regional disparities that still exist in the juvenile justice system nationwide.

“People tend to think of the juvenile justice system in the United States as a monolith, and that's just not the case,” he says. “There are huge regional disparities in this country that we haven't addressed.”

Another is on the laws in those states as it pertains to minors. What happened to George Stinney Jr., he says, shows how “quick and easy it is to descend into barbarity” if laws are in place to allow it. Stinney's execution at his young age, he notes, was an official sanction through statute.

“As a result it became perfectly OK for prosecutors to pursue this penalty on a 14-year-old,” he says, “on a child whose feet wouldn't touch the ground when they put him in the chair.”

'As long as this is out there'

George Frierson, a local historian and community activist, at Oak Grove Missionary Baptist Church in Alcolu, S.C. Frierson began to examine the case of George Stinney Jr. a few years ago. What he found pushed him into activism for the exoneration of Stinney.
George Frierson, a local historian and community activist, at Oak Grove Missionary Baptist Church in Alcolu, S.C. Frierson began to examine the case of George Stinney Jr. a few years ago. What he found pushed him into activism for the exoneration of Stinney.

Around noon on Dec. 1, George Frierson, 56, had just finished counting the money collected in the small one-story Oak Grove Missionary Baptist Church in Alcolu after a service. The church is just a few miles from where a local lumber baron shut down his mill for the day and assembled a search party of workers in 1944 that found the bodies of Betty June Binnicker, age 11, and Mary Emma Thames, who was 8, when they failed to come home.

“I was born in Alcolu, and all young black males knew about this story from our youth,” Frierson said outside the church as he looked out over a cotton field across the highway. “I wasn't born at the time of this incident, I'm not that old. But I'm considered a historian, so I started out on this juncture to see the facts of this case, not as an advocacy or activism point of view. And then it evolved into the activism. When I started out I just wanted to be sure that the facts that I heard all my life are correct.”

It turned out that facts were funny things. People believed the ones they wanted to believe.

“I won't say that the white community doesn't know, but they won't admit to what they do know,” he says about those in the town who do talk about the case.

Frierson carries around a book of old newspaper clippings and correspondence he's been given over the years by people interested in or close to the Stinney story. For the past several years he's been trying to have Stinney exonerated. In recent weeks, as news of the motion to have the case re-tried has spread, more information has come Frierson's way. He says someone in a nearby town who recognized his face on TV recently found him and gave him a copy of the autopsy reports of the two girls. Someone else sent him a letter allegedly from the governor at the time that uses harsh and graphic language in support of Stinney's execution. A man now living in Arkansas, who was a teenager at the time of the murders and says he was the member of a search party who first found the bodies, has reached out. (McKenzie says he has an affidavit from him on file, but hasn't yet filed it with the court.)

George Frierson, a local historian and community activist in Alcolu, S.C. A few years ago, Frierson began to examine the case of George Stinney Jr., who was executed in 1944 at age 14 for the murder of two white girls. What he found pushed him into activism for the exoneration of Stinney. Frierson holds a letter allegedly from the governor from 1944 that uses harsh and graphic language in support of Stinney's execution.
George Frierson, a local historian and community activist in Alcolu, S.C. A few years ago, Frierson began to examine the case of George Stinney Jr., who was executed in 1944 at age 14 for the murder of two white girls. What he found pushed him into activism for the exoneration of Stinney. Frierson holds a letter allegedly from the governor from 1944 that uses harsh and graphic language in support of Stinney's execution.

Recently, Frierson has been in talks with the state parole board, he says, and they've been working on language for a pardon, though he turned down a first draft of one. In the legal and religious sense, he says, a pardon is to be forgiven for something that you've done.

He doesn't think Stinney killed anybody. At around 95 pounds, there was just no way the skinny 14-year-old could have beaten those girls to death, he believes, and then hauled them several hundred feet from the murder site and dumped them in a ditch.

“There has never been any statements about any blood attributed to Mr. Stinney in this case,” Frierson says. “It never, ever was alleged that there was any bloody clothes, blood on him or whatever.”

But Frierson is also keeping his own secrets about the case.

“There are some things that are not reported anywhere that I know to be facts that I am not at liberty to speak of, like who the real perpetrator was,” he said at one point. “I was told who it was, and I never call his name. But everybody in the community knows who it allegedly was.” He says the Stinney family heard a deathbed confession from this unnamed man who Frierson would only describe as someone who drove a truck. As for why he won't say his name, he says the man was never arrested, tried or convicted.

“I think they call that defamation of character or slander,” he said.

Back at the railroad crossing near where the girls were killed, Frierson gestured to the scrub brush and empty fields on either side of the road. Where rows of houses and a big lumber mill used to stand is now scraggly trees and vines. Some litter blew down the road. Lately, the Stinney case has brought international attention to the small town as news of the legal motion and the details of the gripping case have made a splash in the big newspapers and cable broadcasts. A movie about it is in the works.

“I'm speaking from a biblical point of view,” Frierson said. “When God pulls his hand away from something, or puts his hand and his judgment on something, it can never prosper. There are people who have taken that view: that Alcolu can never prosper as long as this is out there. This used to be a thriving area here. See what it is now.”


Corey Hutchins is a reporter for the City Paper in Charleston, S.C., and a correspondent for Columbia Journalism Review's United States Project. His work has appeared in Slate, The Nation, and The Center for Public Integrity, among others.

Sean Rayford is a 2001 graduate of the University of South Carolina and has been a photojournalist in Columbia, S.C. for over 15 years.

This story was also published by the Center for Public Integrity.

False Confessions: NYC Still Struggles in Aftermath of Central Park Five

A screenshot from the confession tape of Raymond Santana of the Central Park Five.
A screenshot from the confession tape of Raymond Santana of the Central Park Five.

[This story is part of a series focusing on false confessions and filming interrogations. Read other stories in the series here.]

NEW YORK--A 14-year-old Raymond Santana sat slumped in a chair, his arms crossed.

Santana sat across the table from then Assistant District Attorney Elizabeth Lederer and the police detective who had interviewed the Harlem teenager twice in the last 27 hours. Another officer handled a video camera.

The officer switched the camera on. The time stamp read 2:30 a.m. on April 21, 1989. It was the first time a camera would be used to record any of Santana’s interviews with police, and Lederer read Santana his rights, making sure that the detectives had done the same earlier in the night.

"Yes," Santana kept mumbling in response, his voice barely audible over a growing din at the Central Park precinct station.

"Now that I've advised you of your rights," Lederer began to ask, "are you willing to tell me the truth about what happened on the night of April 19, 1989?"

new york logo 01Santana didn’t know it at the time, but the 30 minutes that would follow the detective’s question would seal Santana’s future and ensure his conviction in a case that featured little other evidence against him or the four other Harlem boys charged along with him.

• • •

In the United States, false confessions play a role in about one in four wrongful convictions overturned by DNA evidence. The confessions often come forth following hours of interrogation, resulting in a statement of guilt put on paper in front of the investigating detectives or, as in Santana's case, on videotape. Although technically a person cannot be convicted on a confession alone, it often plays a crucial role in a trial.

"Confession evidence is heavily relied upon by juries because it’s counterintuitive that one would confess to something that they didn't do," said Stephen Saloom, policy director at the Innocence Project, the New York-based nonprofit legal clinic that has tracked more than 310 DNA exonerations nationwide.

For Saloom and other reform advocates, a written or videotaped confession only tells part of the story. Capturing an interrogation from beginning to end, on the other hand, creates an undeniable record that ensures the veracity of confessions. That, Saloom said, benefits both the defendant and the prosecution.

Seventeen states – along with the District of Columbia – have already adopted some degree of videotaping requirement. Last September, the commissioner of the world's largest police force announced that it would adopt the practice.

Although New York City prosecutors have selectively taped interrogations for decades, the New York Police Department was supposed to be on track to conduct them on a regular basis in every one of its 76 precincts.

In October, The New York Times reported that only two precincts are videotaping interrogations of felony assaults and sexual assaults, the same two precincts that were part of the NYPD’s pilot program announced in 2010.

Despite its growing popularity, opponents still argue the policy will deter police officers from doing their jobs. But what goes into that job and the means used to get a confession can be just as controversial as the policy itself.

[module align="right" width="half" type="pull-quote"]"It gives the prosecutor a greater sense of security because it shows more accurately than the words the defendant's state of mind."[/module]New York City is no stranger to the practice of videotaping suspects. In fact, the Bronx District Attorney's office is the first documented office to videotape confessions on a regular basis. In 1983, The New York Times wrote about how, under Mario Merola's leadership, the Bronx DA's recording policy led the way for neighboring DA's to do the same.

"It gives the prosecutor a greater sense of security because it shows more accurately than the words the defendant's state of mind," former Manhattan District Attorney Robert Morgenthau told The Times.

Six years later, it was Morgenthau's office that led the investigation into 1989's Central Park jogger case.

• • •

NYPD first picked up Santana at 11 p.m. Complaints were coming into police that as many as 30 black and Latino boys were roaming through Central Park, harassing and assaulting bystanders.

Santana was soon joined by Antron McCray, 15; Kevin Richardson, 14; Yusef Salaam, 15; and Korey Wise, 16, at the police precinct on Central Park West and West 86th Street. They didn’t all know each other when they were arrested, but all five were already in custody when police made a gruesome discovery in the park.

Officers found a female jogger on a path alongside a small river in the park's North Woods around 2 a.m. Near death, she was bleeding and unconscious from a brutal assault and rape. Police spent the next crucial hours connecting the dots between the boys and the jogger.

Headlines across the country didn't wait until the jury's verdict to find the Santana and the four other boys guilty. In this case, the offense was clear and the case was closed: four of the five confessed. The four youngest spent at least five years in juvenile correctional facilities.

Wise, the oldest at 16 years of age, served nearly 12 years in prison as an adult. While there, Wise had a run in with Matías Reyes. Reyes, who was serving time for the 1989 rape and murder of a pregnant woman, was also linked to least seven other rapes in Manhattan’s Upper East Side.

Reyes apologized to Wise about an earlier fight. They talked for a while. After they spoke, Reyes turned to a correctional employee and said that someone was serving time for a crime that he committed.

Word of Reyes' admission eventually made its way back down to Manhattan, which in 2002 prompted the district attorney’s office to compare Reyes's DNA with samples collected from the Central Park crime scene, samples that never matched any of the boys. The test showed that the DNA was a match for Reyes.

The "new evidence, had it been available to the juries, would have resulted in verdicts more favorable to the defendants, not only on the charges arising from the attack on the female jogger but on the other charges as well,” Morgenthau wrote in a statement that prompted officials in late 2002 to overturn the convictions.

New city leaders had to deal with the aftermath of the exoneration. Less than a year into his first term as mayor, Michael Bloomberg released a statement on the heels of the court's decision.

"I know District Attorney Morgenthau has sought to see justice served, and I have asked Police Commissioner [Ray] Kelly to look at the District Attorney's findings to determine if any changes in police procedures are merited," Bloomberg wrote in January 2003.

• • •

The Central Park Five at the Dempsey in Nov. 2012. Central Park Five civil case lawyer on the microphone. Seated left to right: Members of the Central Park Five - Yusef Salaam, Korey Wise, Kevin Richardson, and Raymond Santana.
The Central Park Five at the Dempsey in Nov. 2012. Central Park Five civil case lawyer on the microphone. Seated left to right: Members of the Central Park Five - Yusef Salaam, Korey Wise, Kevin Richardson, and Raymond Santana.license:

Kelly took no visible steps immediately after Bloomberg released his statement in 2003. In fact, it wasn't until early 2010 — seven years after the Central Park Five’s convictions were overturned — that the NYPD said it would even explore how it might change how officers conduct interrogations.

It took another year for NYPD to actually launch two pilot programs to videotape interrogations, one in the Bronx's 48th Precinct and another in Brooklyn's 67th Precinct. At that point, the cameras were only used for felony assault cases.

In August 2012, The Wall Street Journal followed up on the pilot program and found that progress was slow. Paul Browne, then the police department's deputy commissioner and spokesman, told The Journal that NYPD would expand the pilot program to five precincts from the original two. That suddenly changed the following month.

Five weeks after Browne spoke to The Journal, Kelly began an hour-long speech to the Carnegie Council for Ethics in International Affairs by announcing that all precincts would adopt the videotaping of interrogations. The policy would also expand beyond just felony assaults, which Kelly said totaled around 300 interviews at the time, to include murders and sex crimes.

"We want to continue to stay ahead of the curve with the help of our recording initiative," Kelly told the audience. He was not specific about a timeline for implementation, nor has the NYPD ever made that information public.

During an unrelated press conference, Bloomberg speculated that significant progress could be made before his third and final term ends in late 2013. That gave NYPD one year to secure a $3 million grant from the New York City Police Foundation to purchase the necessary equipment to update antiquated interrogation rooms and re-train police officers.

Almost 23 years after Raymond Santana and the other boys were taken to the Central Park precinct for questioning, Commissioner Kelly and Mayor Bloomberg stood in front of the building’s glass doors on a sunny but cold late-March morning.

"Crime in Central Park is down by 80 percent compared to 20 years ago," Kelly said during the event. "This facility underscores just how seriously the City of New York and its police department take our mission of keeping this park safe."

[module align="right" width="half" type="pull-quote"]A spokesman for the Police Department told The New York Times in October that the NYPD was rolling out the program as fast as it could but that only 28 of the city’s 76 precincts are even outfitted for videotaping interrogations.[/module]Asked during a brief press conference after the ribbon cutting, Kelly said that NYPD would begin to roll out the recording program in Queens "probably" by the first week of April 2014. The other boroughs would soon follow, he added, as they continue to collect funds from the Police Foundation.

"We are assembling money, you might say," he said. "We're committed to going forward."

Seven months later — and with less than eight weeks left in Bloomberg’s administration —  NYPD is still only conducting interviews in the same two precincts it launched its pilot program in. A spokesman for the Police Department told The New York Times in October that the NYPD was rolling out the program as fast as it could but that only 28 of the city’s 76 precincts are even outfitted for videotaping interrogations.

• • •

By the time police first questioned him, the 14-year-old Santana hadn't slept for about a day. He was told repeatedly that he could go home as soon as they sorted out his story, and that any charges stemming from the night were likely to go to family court.

Santana said that the detective didn't start taking notes until the interview turned to the rape. The other boy, he was told, said he was the rapist. That's when his and the others’ stories began to change.

"They knew we were going to confess,” Santana said. “It was just a matter of time."

Santana was tired and began to give details of the assault in hopes of getting out of the precinct. Some of it conflicted with information given by the other boys — what the woman was wearing, who actually raped her and how she was beaten. Arroyo and Hartigan had heard enough, but Santana remembers that the night was far from over.

Although there is no singular or universal method of interrogations, there are certain tactics that detectives have come to regularly rely on, said Saul Kassin, a psychology professor at John Jay College of Criminal Justice.

Kassin describes how police typically start the interrogation process with an interview, not unlike what the detectives did with Santana. After asking a few questions, detectives can let a person go if there’s no suspicion of guilt. Or they can turn the sit down into an interrogation.

Over the years, the many interrogation techniques have been codified by John E. Reid & Associates, a private company that still trains clients from both the private and public sectors. The goal is to turn questioners into the equivalent of human lie detectors who can read behavioral tics to determine guilt.

It begins with the isolation of the suspect. Kassin explained that a Reid-trained officer will typically go through nine steps, offering the suspect both positive and negative incentives. The goal of the interrogation, according to Reid & Associates, is to increase the suspect's anxiety associated with denial and decrease the anxiety associated with confessing.

"Basically make it easier psychologically to confess than to deny involvement," he said. "And you do that with the carrot and the stick — both the maximizing techniques that scare the suspects into submission and minimizing techniques that seem to offer a palatable way out."

In “Police Interrogations and False Confessions,” a policy book published by the American Psychological Association in 2010, law professors Richard Leo and Steven Drizin referred to studies by Kassin that revealed the Reid techniques ineffectiveness.

“The method of behavior analysis taught by Reid & Associates has been found empirically to actually lower judgment accuracy,” Leo and Drizin wrote, alluding to how the method may actually be counterproductive to interrogations.

The Supreme Court has also defended deception and misdirection in interrogations. In 1969, under Chief Justice Earl Warren, the Court unanimously decided in Frazier v. Cupp that police deception during an interrogation is not necessarily misconduct.

The Frazier standard allowed detectives to tell each boy in the Central Park jogger case alternate theories as to who did what to the victim. It's what allowed police to tell one of the boys that investigators found his fingerprints on the victim's clothing, a deception that prompted him to confess.

"By definition, interrogation is a guilt-presumptive process," Kassin added. "The judgment they make at that interview stage is pivotal because if they determine that the suspect is truthful and innocent they send them home. If they determine he's lying, they move him to interrogation."

The court-protected ability to deceive, and variations on the Reid technique are tools of the trade for police. Retired NYPD homicide detective Jay Salpeter said he used them all the time when he worked for the 90th Precinct in Williamsburg, Brooklyn.

[module align="right" width="half" type="pull-quote"]It was seeing false confessions during his time as a private investigator that cemented the need for videotaping interrogations.[/module]Salpeter served on the force for almost 20 years before he retired and found work as a private investigator. He's built a reputation in the post-conviction reform community over the last few years, having worked on multiple high-profile exoneration cases.

Despite a nice and pleasant demeanor off the job, Salpeter said that he never had any reservations about flipping a switch as soon as an interview turns into an interrogation.

"If I want you to confess, you will not walk out of that room until you confess," he said. "Even if I'm not sure you did it, I'll wait out."

But it was seeing false confessions during his time as a private investigator that cemented the need for videotaping interrogations.

"One of the most dramatic things you can see in your life is a confession, especially when it's false," Salpeter said. "I don't see what anyone should be afraid of," Salpeter said. "As long as you're doing the job right, what are you afraid of?"

Not everyone in the police community agrees. As a retired Bronx detective and current president of the Detective’s Endowment Association, he rejected the inference that a false confession is a coerced confession. Michael Palladino, who worked out of the Bronx's 52nd Precinct detective squad for 11 years, is a longtime, vocal opponent of videotaping interrogations.

“It’s in the heart and minds of every New York City detective to solve the case and arrest the right person,” Palladino said. “No detective wants to incarcerate someone who did not commit the crime that they're investigating.”

He called the NYPD policy expensive, unwarranted and a result of political pressure from advocacy groups such as the Innocence Project and the New York Civil Liberties Union—groups that point out that the recordings also protect officers from unfounded claims of unethical behavior.

Regardless, after 34 years in NYPD, Palladino said he’s doesn’t think juries should see what goes on in an interrogation room. Although police know what they can and can’t do in the course of an interrogation, Palladino said that juries don’t always understand that officers can lawfully deceive suspects in the course of an investigation.

"It will find its way to the sympathetic nerves of some jurors," he said.

Commissioner Kelly seems to disagree. While addressing the International Association of Chiefs of Police in late 2012, he told the audience that none of the 300 cases subject to the pilot program had resulted in a trial by jury.

One defendant, he said, unsuccessfully claimed that he was intimidated during his interrogation before the court threw the complaint out.

• • •

In the three years since the NYPD announced its pilot program, the department is still lagging in meeting its goal of citywide recording of interrogations. And with weeks left in the Bloomberg administration, speculation abounds regarding Kelly’s next move after the last 12 years at NYPD’s helm. It’s unclear how the city will proceed, especially in light of the recent election of Bill de Blasio as the city’s next mayor.

Raymond Santana and the other men of the Central Park Five continue to make news; the five remain mired in a $250 million federal lawsuit against the city to definitively prove their innocence. Just prosecuting the case has already cost the city $6 million.

As chair of the New York City Council’s Committee on Public Safety, City Councilman Peter Vallone Jr., of Astoria, Queens, keeps in constant communication with agencies, including the NYPD.

Vallone also served as an assistant district attorney in Manhattan for six years, working under Morgenthau at the same time that fellow ADAs Lederer and Linda Fairstein prosecuted the Central Park jogger case in court. He never worked on the Central Park jogger case, but maintains that the boys were guilty.

"They were not false confessions," Vallone said. "They're punks and thugs who served the time they deserve."

But despite ongoing pressure from advocates and local leaders, the Bloomberg administration has refused to settle on the grounds that the city did not prosecute the case maliciously.

Santana, who struggled to find work after his release, and who was jailed for selling drugs, says he is encouraged by news of NYPD’s steps towards increased transparency. After all, Santana said, juries have a right to see what happened before the prosecution shows the jury a well-rehearsed confession.

The last 23 years might have been different, he said, had the 12 men and women who convicted him been able to see how his confession came about.

Had they seen how long he and the other boys were held, or how police deceived them to obtain their confessions, or how many times their stories changed before the prosecutor brought in the video camera, Santana believes they might not have lost those years from their lives for a crime they didn’t commit.

“I think everybody should see that process,” he said.