The Death Penalty and false confessions

by: Daniel De Groot

Sun Dec 26, 2010 at 19:30

Forgive my late comment on it, but in early November, PBS' Frontline did a fantastic program titled The Confessions.  If you haven't heard about the case (I hadn't), I'd really recommend watching or listening to the program, but to boil it down as short as possible, a woman named Michelle Moore-Bosko was raped and murdered in her Virginia apartment in 1997, and through a series of bad police and prosecutorial decisions, seven US sailors were wrongly dragged into it, and four were ultimately convicted on rape or murder charges and imprisoned by Virginia.  They were eventually freed on a partial clemency by Governor Tim Kaine in 2009, having spent most of 12 years in prison.

All this happened despite the eventual (but still timely enough) confession of acting alone by a known sexually violent man who had no association with the accused sailors, and had the only DNA from the crime scene.  The first sailor was implicated just by the random suspicious comment of someone in Michelle's building (where he also lived) during initial police canvassing and after he was induced to (falsely) confess by sheer psychological wear-down, one by one additional sailors were pulled in as each would be brought in, grilled for extended times by one detective with a long record of extracting confessions, and when their DNA did not actually match the crime scene, they were coerced to name additional people involved and re-state their confessions to match a growing list of suspects, which ultimately reached 8.  The case took numerous absurd twists and turns and really the program does an excellent job showing how the State's case against the seven (three never convicted) strained credulity by the end, despite the confessions.

PBS covers many aspects of this preposterous travesty of justice, because it is obvious that many flaws in the criminal justice system aligned to create such a massive error.  There is no monocausal explanation, a bad cop, bad prosecutors, bad supervisors, bad Judges and sloppy defence lawyers all played significant parts in the result, but if I had to name the factor which, if absent, would have prevented the outcome while still leading to the eventual conviction of the actual murderer, it is the Death Penalty.

Daniel De Groot :: The Death Penalty and false confessions
Here's a snipped from the transcript where the actual murderer, Omar Ballard, had confessed:

DEREK TICE: I was on cloud nine because now they've got a DNA match, and he's saying he did it alone. Hey, when somebody's DNA matches, it proves they were there. He's saying he did it alone. I go to trial, I'm going home.

ERIC WILSON: I thought it would be any day now they would let me go and that I would be able to go home. But my lawyer- my lawyer was ever the realist and he said, "Don't expect it. That's not how the system works. You're going to go to trial."

NARRATOR: But by now, the prosecution had a new theory, involving eight people- the four original sailors, the three who had been released and Omar Ballard, who the prosecution believed was part of what was now a gang rape, in spite of his claim that he'd acted alone.

ALLAN ZALESKI, Derek Tice's Attorney: I remember Mr. Ballard arriving on the scene, and it was- it was a surprising event. And the funny thing was that he said that he acted alone. And of course, the detectives were trying to get him to bring in the other seven, and he said, "No, I did it myself."

RICHARD LEO, University of San Francisco: If they were rational, objective, fair-minded police and prosecutors, they would have let everybody else go. But they couldn't admit what was so obvious, they made a mistake, a big mistake. Four people had been interrogated coercively, confessed to a crime they didn't commit, and instead of acknowledging that mistake and these individuals' innocence, they tried to make- they tried to link Omar Ballard to these individuals. They tried to make it a group crime.

It really does read like the gambler who has lost his shirt and now will proceed to lose his pants and shoes in trying to "win back" what he lost.  

What's clear through the transcript is the pervasive role of the death penalty in creating this travesty, first, the abuse of the threat of death by police interrogators in order to win confessions, in this section a veteran NYPD detective talks from personal experience at how easy it is to induce a false confession:

JAY SALPETER, Former NYPD Detective: At the end of the day, confessions can go for over 24 hours. You will have sleep deprivation. Your- your subject will be hungry, but probably doesn't even want to eat, you know? So you are taking him into another situation. So many people say, "Well, how could you confess to a crime that you never did?" Well, I'll tell you something. Put them in a room with me. I could do it.

You know how I'm going to be asking you? Are you deaf? You're not deaf, right?

JAY SALPETER: Well talk louder. I'm asking you a question. Are you deaf?

JAY SALPETER: OK. Now you want to go to jail? You want to get the death penalty, or you want me to help you out?

JAY SALPETER: So? Then tell me what the hell happened there, and I'll help you out. But don't look at me like that. We're sitting here 10 [expletive deleted] hours. How much longer are we going to do this?

JAY SALPETER: You don't know? Well, it's up to you. Don't tell me you don't know. You failed the polygraph, so you're not going to tell me you didn't do it. We're going to go here all night. You're not leaving this room.

NARRATOR: Danial Williams confessed after 11 hours of interrogation.

I know there is some academic literature and awareness on the subject of false confessions by suspects, but it really shouldn't surprise anyone that a person trapped alone in a room for 10+ hours surrounded by hostile and persistent authority figures with significant power over them could wear someone into saying they committed a crime they didn't.  It's really not that different from the kind of thing cults do to their victims.  People in general just aren't that resistant to coersion by recognized authorities and adding in the pervasive fear of the death penalty along with other deceptions used by law enforcement only adds to the sense of "they believe I did it anyway, and will seek the death penalty if I don't cooperate."  It's really tantamount to torture, as the death penalty is being quite literally used as a death threat (and a very credible one, particularly in Virginia which is near the top in terms of actual executions carried out).  Add in hunger, tiredness and isolation and I suspect a much higher percentage of people than one might guess would confess to some horrific crime given enough hours of such abuse.

Rather than an uninvolved Detective giving us the hypothetical, here's some of the actual victims retelling it:

NARRATOR: He would become the most important witness in the case. Six months after the murder, naval security turned Joe over to the Norfolk police. Detective Glenn Ford was waiting for him.

JOE DICK, Jr.: They started asking me where I was when this happened, and I told them that I was on the ship. Ford's saying I'm lying. He's starting to get ticked off. He's raising his voice. He keeps coming back with, "We know you were there. We can prove you were there. You can get the death penalty." I kept denying it. We went and did a polygraph. He comes back with the results and he says I'm still lying, that I failed the polygraph.

DEREK TICE: At least every, I'd say, 30 seconds Ford was saying, "You keep saying you weren't there, you keep lying to us, you're going to die. You're going to get the needle. How does it feel to die?" And after the nine hours, my thinking was my only options are tell him a lie, tell him what he wants to hear and live, or keep telling the truth and die.

Having threatened the victims with death to induce confessions, now here's the death penalty's role in causing them to name and agree to testify against yet more innocent sailors:

MIKE FASANARO, Joe Dick's Attorney: I certainly thought he was guilty. The client told me he was guilty. He had confessed to the police and then he told me he was involved.

JOE DICK, Jr.: It's like he gave up from the first day and didn't even try to give me an adequate defense.

MIKE FASANARO: Joe was facing the death penalty. The commonwealth approached me and asked me whether or not he might be interested in testifying on behalf of the commonwealth. In return, they would take the death penalty off the case, off the table. I approached Mr. Dick about it. I approached his parents about it. Based upon the evidence, based upon the personality of the client that I had, I considered that if we went to trial, the death penalty was a legitimate possibility.

The death penalty just clouds the minds of the defendants and defence attorneys in a way that life sentences cannot.  This lawyer essentially did not even consider any other option, given the existence of a confession, the only hope he could see for his client was to ward off the death penalty via a plea agreement and testimony against the other people he had been induced to name.

One of the other defence attorneys:

DANNY SHIPLEY, Danial Williams's Attorney: No one in Virginia believes that you confess to a murder you didn't commit. No one believes it. And that's true of judges, true of lawyers. No one believes it. And they'll tell you again and again, "I don't believe someone confesses to a murder they didn't commit." And that's what I'm looking at.

And to be quite frank with you, when you approach a case, how are we going to handle this case? Are we going to try to make a deal, or are we going to go to court and try the case?" Death changes everything. Death- all your decisions that you make are guided by the fact that if you make the wrong decision, you make the wrong call, your client's dead.

In fact, one of the four, Derek Tice, did in fact ask for a lawyer prior to his confession and the request was ignored by police who continued the investigation.  The program doesn't cover it, but the decision of his lawyer not to challenge on Miranda grounds was possibly due to the lawyer's fear that if that challenge failed, any plea agreement taking death off the table would be revoked.  

I've written in past about the death penalty, and will continue to do so at least occasionally because it is clearly a grave injustice that serves absolutely no socially useful ends and has lamentably fallen off the liberal agenda these days.  But it's still a travesty, one that is regularly ruining lives even of people not actually sentenced to death.  It's all downside but this is not among the more obvious downsides of the death penalty and there is no obvious answer to avoiding this kind of thing short of ending the Death Penalty itself.  Police are going to sometimes focus on the wrong person and be absolutely convinced they are guilty, and whether they explicitly threaten the suspect with the death penalty or not, it will still be there, hanging in the air.  Prosecutors will similarly use it as a cudgel, and accused fearing for their lives will be willing to do or say anything to avoid it.  

Clearly there are wrongful arrests, trials and convictions in places without the death penalty but as Frontline ably demonstrates, the mere existence of the death penalty exacerbates many other existing flaws in the judicial system.  It's much harder to systemically correct some of the other flaws exposed in this case, particularly the human psychology of investment in wrong ideas, but given that the death penalty has no actual upside worth mentioning, I'd say it is an obvious win for the practice of equitable and accurate justice to end it.

Closing thought:

Prof. PETER BROOKS, Author, Troubling Confessions: If you go back in history to the Inquisition for instance, which had very elaborate protocols of torture- when you can torture- if someone made a confession under torture, he'd have to repeat it without torture 24 hours later. On the other hand, if he recanted it, then you'd torture him again. But one of the stages in applying torture was known as "showing the instruments." And lots of the victims confessed just at seeing the instruments that would be used on them. I think I would have. And I think in the case of the Norfolk Four, the way the detective used the death penalty was very much like showing the instruments.

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The coerced confession is a fundamental tool of the "justice" system (4.00 / 2)
Noone should be surprised that the police refused to accept that the actual killer did it alone. Once they had obtained the confessions they could not back out of using them as that would imply that they considered it a possibility that an innocent person could be induced to confess and they could not afford to risk that belief spreading to the general population from which juries are chosen.  The false confession only works because the vast majority don't believe in false confessions.  

Well, but... the US' criminal justice system is about the assertion of (0.00 / 0)
power rather than what could properly be called justice. And the ubiquity of the death penalty is exhibit A to that end; at its absolute best, it's based on the absurdly irrational idea that the assertion of violence promotes peace. What it does do, if you look at the data, is work effectively to help  maintain social hierarchies. As such, I'm not as convinced as you that this would bother the general population as much as you seem to think. To my mind, the criminal justice system is a feature, not a bug, of the American way of life.

[ Parent ]
General population (4.00 / 1)
Anyone who has watched Law & Order since the death penalty came back to New York has seen that every possible death penalty case on the show involved the attempt by the district attorney to use of the death penalty to coerce a plea bargain and avoid a trial.  Every one.

This particular practice is clearly a part of main stream thought.  In many cases on that and similar shows, innocent people take plea bargains.  The exception, of course, is that the very rich and some corporates have enough money to bully their way past the system that bullies everyone else.

[ Parent ]
The Death Penalty is an Issue Here But Not The Central One (0.00 / 0)
In a much more common scenario you have a guy who was involved a bar fight. The DA will charge this as a felony, and accept misdeamenor battery as a plea bargain. The guy doesn't have a chance to try to prove that he wasn't even involved because a felony conviction would ruin him.

interesting point (4.00 / 1)
But here we are talking about rape and murder so there was no need for the state to trump up the charges.

Also, in the bar fight scenario, the accused might accept the plea as you say, but at least he is less likely to confess out of terror before even talking to a lawyer (Doubtful a senior detective experienced at coercing confessions would spend 12-24 hours working a bar fight suspect to confess either).  I don't deny the State has other avenues to create unjust outcomes, only that the Death penalty played a special role in this case that likely was key, and without it, the seven sailors would never have gotten beyond some initial questioning.  

[ Parent ]
Thank you Daniel. (4.00 / 1)
A moving important and well written/co;;ected article that explains why our arrogance and unchecked drive for revenge drives the unrepairable errors of state action. The death penalty assumes that our anger has a just outcome, an outcome that cannot be taken back, is ethical. When we know, when we have been shown over and over again that we are more than fallible, that we let our anger and emotion trump sensible action. we fail. And fail the innocent.

There is no greater crime for a society than punishing the innocent, there is no crime more incapable of redemption then discovering we have killed in the name of our anger and vengeance, than state murder.

All that is on top of the crime of terror that this law allows in coercive questioning.

Thank you again.


The government has a defect: it's potentially democratic. Corporations have no defect: they're pure tyrannies. -Chomsky

I do not trust the police. (0.00 / 0)
I recommend that INNOCENT people always demand their rights on any interview with the police.  "I am exercising my right to remain silent."  

If the police take you into custody say, "I have nothing to say.  If I am not under arrest I am leaving now.  If I am under arrest I demand my attorney and that this interview end now.  If you continue this interview after I have made this statement I will ask my attorney to bring charges against you for violating my rights."

We need to educate populations at risk of police mistreatment about what to say if the police interview or arrest them.

I hate to say it, but I'm less concerned about the guilty getting away than I am at the ongoing abuses of our police state.

Also, if you get a public defender who doesn't advocate for you, then file a complaint with the public defender's office and demand they provide a good attorney.

Why isn't anyone working to educate those at risk populations.

Educate, Agitate, Organize, Mobilize, Act!


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