For 50 Years, You’ve Had “The Right to Remain Silent”

With my colleague Sam Gross, director of the National Registry of Exonerations, I recently published a piece on the 50th anniversary of the Miranda warnings and why so many suspects confess to crimes they haven’t committed, at The Marshall Project.

Here’s an excerpt:

“You have the right to remain silent.”

If you’ve ever watched any of the tens of thousands of hours of television devoted to crime dramas, you know the first warning given to suspects who are arrested and questioned. And the second: “Anything you say can and will be used against you.” The Miranda warnings—named for Miranda v. Arizona, the 1966 Supreme Court decision that required them—celebrate their 50th anniversary on June 13. In that period, they have become so ubiquitous that it’s easy to forget their origin and purpose.

Miranda was the culmination of 30 years of Supreme Court cases that were designed to protect criminal suspects from abuse in police interrogations. The earliest of these decisions prohibited violence and torture. The first concern was to prevent confessions that are “unreliable”—that is, false.

In 1966, false confessions seemed like a rare problem. Fifty years later, we have seen hundreds of exonerations of innocent defendants who confessed to terrible crimes after they received Miranda warnings.

It’s a good time to take stock.

Do innocent people really confess without torture?Why would an innocent person ever confess to a murder or some other terrible violent crime?

Torture would explain it. That was the issue in Brown v. Mississippi in 1936, the first case in which the Supreme Court excluded a confession from a state court prosecution. Three suspects had been tortured for days. Asked how severely one defendant was whipped, the deputy in charge testified: “Not too much for a Negro; not as much as I would have done if it were left to me.”

Between 1936 and 1966 the use of torture to extract confessions declined greatly, a major accomplishment by American courts and criminal justice reformers. When Miranda was written, a shift was underway to more “modern” methods of interrogation: isolation, deception, manipulation and exhaustion rather than beating. Without torture or threats of death or violence, it seems implausible that an innocent suspect would confess to a serious crime. That is precisely why confessions are such powerful evidence of guilt. But we know it happens, time and again.

The National Registry of Exonerations has collected data on 1,810 exonerations in the United States since 1989 (as of June 7, 2016). They include 227 cases of innocent men and women who confessed, 13 percent of the total, all after receiving Miranda warnings (at least according to the police). Nearly three quarters of those false confessions were homicide cases.

But these exonerations deeply understate the extent of the problem.

Read the article in its entirety HERE.

From The Washington Post and the Marshall Project: Fresh doubts over a Texas Execution

Johnny Webb last month in Corsicana, Tex. Webb says he was coaxed into testifying that Cameron Todd Willingham confessed to killing his three daughters in 1991 by arson. (Michel du Cille/The Washington Post)

From The Washington Post, August 3, 2014

Written by Maurice Possley, The Marshall Project

CORSICANA, Tex. — For more than 20 years, the prosecutor who convicted Cameron Todd Willingham of murdering his three young daughters has insisted that the authorities made no deals to secure the testimony of the jailhouse informer who told jurors that Willingham confessed the crime to him.

Since Willingham was executed in 2004, officials have continued to defend the account of the informer, Johnny E. Webb, even as a series of scientific experts have discredited the forensic evidence that Willingham might have deliberately set the house fire in which his toddlers were killed.

But now new evidence has revived questions about Willingham’s guilt: In taped interviews, Webb, who has previously both recanted and affirmed his testimony, gives his first detailed account of how he lied on the witness stand in return for efforts by the former prosecutor, John H. Jackson, to reduce Webb’s prison sentence for robbery and to arrange thousands of dollars in support from a wealthy Corsicana rancher. Newly uncovered letters and court files show that Jackson worked diligently to intercede for Webb after his testimony and to coordinate with the rancher, Charles S. Pearce Jr., to keep the mercurial informer in line.

“Mr. Pierce and I visit on a regular basis concerning your problems,” Jackson wrote to Webb in August 2000, eight years after the trial, when his former witness was threatening to recant. (Jackson misspelled the rancher’s last name.) “We worked for a long time on a number of different levels, including the Governor’s Office, to get you released early in the robbery case. . . . Please understand that I am not indifferent or insensitive to your difficulties.”

Along with Webb’s account, the letters and documents expose a determined, years-long effort by the prosecutor to alter Webb’s conviction, speed his parole, get him clemency and move him from a tough state prison back to his hometown jail. Had such favorable treatment been revealed prior to his execution, Willingham might have had grounds to seek a new trial.

CONTINUE READING at WashingtonPost.com HERE

READ “The Prosecutor and the Snitch” at The Marshall Project HERE.

From THE ATLANTIC: How Two Newspaper Reporters Helped Free an Innocent Man

Daniel Taylor didn’t commit murder — and the author, a Pulitzer Prize–winning journalist, proved it in The Chicago Tribune. But it took the justice system more than a decade to catch up.

By Maurice Possley

THE ATLANTIC MAGAZINE
Aug. 29, 2013

During nearly 25 years as a reporter at the Chicago Tribune, I received hundreds of requests for help from convicted defendants. None was more compelling than the hand-printed letter from Daniel Taylor, a 25-year-old inmate at Stateville Penitentiary in Joliet, Illinois. In neat block letters, Daniel explained that he was serving a life sentence without parole for a double murder in Chicago in 1992. Even though Daniel had given a court-reported confession, he said he was innocent and he had police records that proved it.

The letter was addressed to Steve Mills, my reporting partner on numerous stories about wrongful conviction. When Steve brought it to my desk, I was as intrigued—and skeptical—as he was. Why had this man confessed? How had he been convicted? Was he delusional about what the police records really showed?

But Daniel’s timing was fortuitous. It was the summer of 2001, and Steve and I, along with fellow reporter Ken Armstrong, were deep into an investigation of false and coerced confessions in the city of Chicago. Perhaps, we thought, Daniel’s case would provide a window into a world we suspected—and later proved—existed: a world where defendants were said to have confessed to crimes they did not commit.

And so, in December 2001, the Tribune published our five-part series, “Cops and Confessions,” Daniel’s case was the subject of an entire installment. We had uncovered strong evidence of Daniel’s innocence—evidence that he was actually in jail at the time of the crime and that his confession was false.

I had never been so confident of a convicted defendant’s innocence. And I never imagined nearly 12 years would pass before Cook County prosecutors would admit the truth and dismiss his conviction. But it finally happened. On June 28, 2013, Daniel, who was arrested at age 17, was released at age 38, having spent more than 20 years behind bars.

***

CLICK HERE TO CONTINUE READING

 

 

California Voters Get a New Reason to Abolish the Death Penalty

MoPo’s latest, published this week in the New Republic.

With 726 inmates sentenced to die, California has the largest death row in America. The state has executed just thirteen death row inmates since capital punishment was reinstated in 1977, and none since 2006. The path from conviction to lethal injection for those who were executed has taken as long as twenty-five years.

In May, the National Registry released a report describing the first 873 exonerations it identified – including seventy-nine state exonerations and one federal exoneration in California. The Report emphasized that the 873 were only a beginning—that the true number of exonerations still is unknown because there is no formal system for recording such cases as they occur.

Since then, the number of exonerations on the National Registry has grown to 996 and will soon top 1,000, according to Samuel Gross, Law Professor at the University of Michigan and editor of the Registry.

CLICK HERE TO READ THE ARTICLE IN ITS ENTIRETY.

The National Registry of Exonerations Is Up

A few of the 891 exonerees included in the new Registry.

After several years of painstaking work, the National Registry of Exonerations is a reality.

A joint project of the University of Michigan Law School and Northwestern University Law School’s Center on Wrongful Convictions, the Registry is the largest collection of exonerations in the United States with nearly 900 individual cases since 1989, the year of the first DNA exoneration in America.

The Registry issued a report analyzing these cases as well as the exonerations of more than 1,100 defendants following convictions stemming from 13 separate police corruption scandals (such as the drug task force scandal in Tulia, Texas, and the Rampart scandal in Los Angeles).

The Registry is the brainchild of Michigan Law professor Samuel Gross and Rob Warden, executive director of the Center on Wrongful Convictions.

In December 2011, I began to work on the Registry, researching and writing cases.

The total number of defendants exonerated during the 23-year period totals roughly 2,000 — an average of about one a week.

The cases in the Registry offer important insights into the false conviction phenomenon — insights that hopefully will foster criminal justice reforms designed to improve the accuracy and fairness of the criminal justice system.

To contact the Registry, click HERE.

And here’s some what USA Today has to say about the Registry Sunday evening (even if they jumped the embargo a little):

Perjury, faulty eyewitness identification and prosecutorial misconduct are the leading reasons for wrongful convictions, according to the first national registry of exonerations compiled by university researchers.

The database, assembled in a collaboration by the University of Michigan and Northwestern University, has identified 873 faulty convictions in the past 23 years that have been recognized by prosecutors, judges or governors.

The registry’s founders say the numbers, which do not include many cases in which innocent suspects plead guilty to avoid the risk of more serious punishments or cases that have been dismissed because of legal error without new evidence of innocence, represent only a fraction of the problem in the nation’s criminal justice system.

“What this shows is that the criminal justice system makes mistakes, and they are more common than people think,” said University of Michigan law professor Samuel Gross, the registry’s editor. “It is not the rule, but we won’t learn to get better unless we pay attention to these cases.”

Despite the data, the registry concluded that the “overwhelming majority of convicted defendants are guilty.”

“Most never dispute their guilt and few ever present substantial post-conviction evidence of innocence,” the registry found. “When that does happen, however, it should be taken seriously. …We cannot prevent all false convictions, but we must not compound these tragedies by stubbornness or arrogance or, worst of all, indifference.”

Read USAToday’s complete coverage HERE.

‘Yes, America, We Have Executed an Innocent Man’

Andrew Cohen, legal analyst for CBS Radio News and 60 Minutes and contributing editor at The Atlantic, writes a compelling article dissecting the book-length investigation of the arrest, conviction and execution of Carlos DeLuna for a murder in 1983.

Titled “Yes, American, We Have Executed an Innocent Man,” Cohen notes that Steve Mills and I conducted our own investigation of the DeLuna case and wrote a three-part series published in 2006.

Supreme Court Associate Justice Antonin Scalia (Photo credit: Wikipedia)

In particular, Cohen delivers a scathing criticism of Supreme Court Justice Antonin Scalia, who ridiculed the proposition that an innocent defendant had been executed in America in an opinion on June 26, 2006, saying in part:

“If such an event had occurred in recent years, we would not have to hunt for it; the innocent’s name would be shouted from the rooftops by the abolition lobby.”

The following day, the final installment of our series on the wrongful conviction of DeLuna was published in the Chicago Tribune.

Read Cohen’s Atlantic piece in its entirety HERE.
In 2005, James Liebman, a professor at Columbia Law School in New York, approached me and fellow Chicago Tribune reporter Steve Mills and asked if we would be interested in investigating a possible wrongful execution in Texas – -the case of Carlos DeLuna. Several months earlier, Steve and I had investigated and written an article that exposed how Cameron Todd Willingham had been executed in Texas for an arson fire that killed his three children.

Our investigation provided compelling evidence that the fire was not an arson and that Willingham was innocent. Liebman explained that his students and a private investigator had done preliminary work on the DeLuna case and had turned up some evidence that DeLuna was innocent. Liebman offered to turn over the results of their work and the documents they had collected. There were no strings.

Liebman put it simply: Take the case wherever you feel it needs to go. Pull no punches. Give it your best shot.

The result was a three part series, published in 2006, which not only provided strong evidence that DeLuna was innocent, but also identified the true killer.

Six years later, Liebman and company have published Los Tocayos Carlos —  a book-length account of the DeLuna case, published in the Columbia Human Rights Review — complete with a robust, dynamic website crammed with video interviews, photographs, transcripts, and exhibits documenting the wrongful execution.

Read the Columbia account in its entirety HERE.

Honda Wins Reversal of Small-Claims Loss Over Hybrid Mileage

From Bloomberg/BusinessWeek, May 09, 2012
By Edvard Pettersson and Maurice Possley

The Honda Civic Hybrid

Honda Motor Co. (7267) won the reversal of a $9,867 small-claims-court loss to a Californian who dropped out of a class-action lawsuit and pursued her own claim that the company overstated the fuel mileage of its Civic Hybrid.

California state Judge Dudley W. Gray II in Torrance, in Los Angeles County, said in a ruling today that Tokyo-based Honda’s fuel-economy ratings were in compliance with U.S. Environmental Protection Agency requirements and that the ratings are for comparison among vehicles without taking into account factors that can affect mileage at a given moment.

“Defendant’s use of advertising slogans such as ‘sipping fuel,’ ‘amazingly little fuel’ and ‘saves plenty of money on fuel’ — the court rules that these are non-actionable sales puffery,” the judge said. “They are not specific promises of anything.”

Continue reading HERE

Victims of the Prosecution

The following piece ran today on Salon.com (and earlier this week on The Crime Report)

By Maurice Possley/The Crime Report

A coalition of innocence projects, legal experts and wrongly convicted defendants announced on Thursday that a study of prosecutorial misconduct in Arizona from 2004 through 2008 found that prosecutors committed error in 20 cases.

The coalition — which includes the Innocence Project of New York, along with Veritas Initiative, a policy and research arm of the Northern California Innocence Project, as well as Innocence Project New Orleans and Voices of Innocence — convened in Arizona on Thursday night in the latest stop in a national tour aimed at exposing prosecutorial misconduct and initiating reform.

In 15 of the cases, the finding of error was deemed “harmless” and the convictions were upheld. In five of the cases, the errors were ruled to be “harmful” and the convictions were reversed.

During that same time period, three prosecutors were publicly disciplined by the State Bar of Arizona, but none of the prosecutors in the 20 cases found by Veritas were subject to any discipline.

One of those three prosecutors  disciplined was Kenneth Peasley — once considered the most feared prosecutor in Pima County, Ariz., where he won  conviction after conviction, some of which sent defendants to death row.

Peasley was disbarred in 2004 for knowingly allowing a detective to testify falsely in two capital murder trials — improper behavior that led to the release of a man from death row.

Eight years later, Peasley’s legacy as an unethical prosecutor continues to grow, even though he died in 2011.

Continue reading on Salon.com HERE

The Latest News and Views from MoPo

SOJOURNERS/GOD’S POLITICS BLOG, Oct. 9, 2011

Deadlines and the Death Penalty: The Case of Corey R. Maples

by Maurice Possley 10-09-2011 10:13 am

The ink was barely dry on the death certificate for Troy Davis, executed by the state of Georgia on Sept. 21, when the U.S. Supreme Court heard arguments in an Alabama death penalty case that, if not for its serious nature, feels like a trip through Alice’s looking glass.

The question before the court is this: Should the state of Alabama execute a man who lost an opportunity to file an appeal in his case because a deadline was missed — because of a foul up in a law firm’s mail room?

At issue is the case of Corey R. Maples, convicted of murdering two men in 1995 and sentenced to death, even though his trial lawyers have since conceded they were “stumbling around in the dark.” Unlike the Davis case, where substantial doubt about his guilt had been raised before he was executed, there doesn’t appear to be much question that Mr. Maples committed a double murder. The issue is whether he received ineffective assistance of counsel in the penalty phase of the case and whether, had he had competent counsel, he would have been sentenced to a prison term instead of death.

On appeal, Mr. Maples was represented by the New York law firm of Sullivan & Cromwell. Alabama is the only state that does not provide lawyers on appeal in death cases. Two associates in the firm handled Mr. Maples’ post-conviction appeal and when it was denied, a copy of the ruling was sent to the New York office of the law firm. By then, both associates had left the firm, so the mail room stamped the denial of the appeal “return to sender” and “left firm.”

The local Alabama lawyer who was on the case only, he has said, so that the New York lawyers could be permitted to practice in Alabana, received a copy, but did nothing because he assumed that Sullivan & Cromwell was on top of the situtation.

Wrong.

By the time someone figured out what happened, the deadline to appeal the denial of his post-conviction appeal had passed. So far, the state of Alabama has successfully argued that despite the mail room debacle, Maples should have been aware — through his local counsel — that the clock was ticking and that he just blew it.

Continue reading Maury’s post HERE.

WGN-RADIO in Chicago, “The Milt Rosenberg Show,” Oct. 5, 2011

Listen to Maury’s recent appearance with Milt to discuss Hitler in the Crosshairs HERE.

SAN JOSE MERCURY NEWS, Oct. 5, 2011

Maurice Possley and Kathleen ‘Cookie’ Ridolfi: Attorneys and judges need to report misconduct cases to the California Bar Association

Two decades ago, in response to a highly critical series of media reports that revealed how the State Bar of California had virtually abdicated its role in the investigation and discipline of attorneys, the Legislature passed two laws requiring courts and lawyers to report misconduct to the Bar.

The laws added to the California Business and Professions Code require courts to report misconduct by attorneys and require attorneys to self-report misconduct findings to the Bar. But research shows these mandates are largely ignored by the courts and attorneys and are unenforced by the Bar, even though lack of compliance is in itself grounds for discipline.

With that in mind, the Bar should take a serious look at two decisions last week, one by a state Appellate Court involving a prosecution in Santa Clara County and the other by a Superior Court judge in Los Angeles County.

Continue reading the OpEd HERE.