LawCulture

False Confessions & the DA

Boulder County Colorado district attorney Mary T. Lacey yesterday asked that the arrest warrant against John M. Karr in the Jon Benet Ramsey case be dismissed. “No evidence has developed, other than his own repeated admissions, to place Mr. Carr at the scene of the crime,” Lacey stated. “Mr. Karr was not the source of the DNA found on the underwear of JonBenet Ramsey.”

What may be most remarkable about this latest twist in the long-festering case is the district attorney’s forthrightness and honesty in dismissing Karr’s multiple confessions to the crime. Too often, confession is considered the “queen of proofs,” evidence that closes the case. It’s impossible to estimate how many of those convicted and incarcerated on the basis of confession alone may be innocent—but surely some are, such as the Washington pig farmer Paul Ingram accused by his daughters of the most bizarre crimes—none of which was ever supported by a shred of material evidence—whose case was detailed in Lawrence Wright’s Remembering Satan. Psychologist Richard Ofshe, who has done much probative work on false confessions, quickly established that one could inculcate nearly any false memory one chose in this particularly suggestible suspect. And there are many others who bizarrely convince themselves that they were implicated in crimes they had nothing to do with.

It’s enough to give credence to Sigmund Freud’s apparently bizarre note on criminology called “Criminals From a Sense of Guilt,” where he argues that the reason people commit crimes is that they feel guilty, and want to ensure that they will be punished. This effectively turns the whole criminal justice system on its head.

The Boulder district attorney has taken much flak in this case, but I'd point out that she had the good sense to understand that confessions need some kind of confirmation (in German procedure, a court is not supposed to accept a suspect’s confession unless corroborated by other evidence). Alas, that’s not the standard operating procedure in the U.S.. In most instances, once the police interrogators have got a confession, the suspect is doomed. Not only does this lead to false convictions, it lets the truly guilty escape. Getting confessions comes to appear the easy way to do police work, and that can lead to less than probative results. Confessions should be used to open cases, not to close them.

Peter Brooks

Hamdan, Schamdan

In response to a letter from Senator Schumer seeking the Administration's view of the NSA domestic surveillance program in light of the Court's decision in Hamdan, the Deparment of Justice has submitted this letter, in which it contends:

-- That the AUMF overrides FISA (even though, per Hamdan, it does not override the UCMJ);

-- That, in any event, Congress has no Article I power to enact FISA, at least with respect to the President's wartime surveillance practices (even though Congress did have the power to prescribe limits on military commissions);

and,

-- That even if Congress did have an Article I power to enact FISA, the President's Article II power as Commander-in-Chief and as the "Executive" entitles him to disregard FISA in wartime (a position DOJ contends is still valid because Hamdan does not even require the Administration to comply with the UCMJ if it conflicts with his Commander-in-Chief powers or his constitutional duty to protect the nation). 

There has been a lot of talk about Hamdan being the modern-day Youngstown.  Youngstown, however,  had the advantage of a President with a modicum of modesty.

Hamdan and the War Crimes Act

I posted on this issue at the new Georgetown Law Faculty Blog, which is here.

War & Law

Following up on my last post about Bush Admin blurring of the lines between violence and law-- consider the various official responses to the three suicides of Guantanamo inmates. Camp Commander Admiral Harry B. Harris Jr. insisted that the suicides were "not an act of desperation, but an act of asymmetrical warfare waged against us." Then the NYT reports that Gen. Bantz J. Craddock, commander of the United States Southern Command, thinks the suicides "may have been timed to affect the Supreme Court decision on the Hamdan case. 'This may be an attempt to influence the judicial proceedings in that perspective.'"

So, I think I get it. The Guantanamo inmates didn't kill themselves because being detained indefinitely -- maybe forever-- made their lives seem not worth living; they killed themselves in order to strike out at the United States. More specifically, they killed themselves so that they could strike the US from within by making the Supreme Court feel sorry for them, which could in turn influence the Court in the Hamdan case. So a defeat for the Administration in Hamdan would actually be a cleverly planned victory for the terrorists.

I think this actually makes sense to someone.

Bring in the Troops

Thinking more about South Dakota, the Dare Doctrine, and the discussion that ensued on this blog, I wonder what people think of the following scenario.  Missouri law is overturned by the Supreme Court in Roper v. Simmons (03-633, decided March 1, 2005) (holding in 5-4 decision that the execution of juveniles violates the 8th Amendment). Missouri nevertheless continues to execute juveniles.  Can the federal government send in troops to enforce Roper?  Would the analysis be different if Justice Stevens announced his retirement tomorrow? If the justice President Bush nominates is likely to vote with the dissenters in Roper? (Hat tip to my friend Jeff Pokorak for continuing to debate the Dare Doctrine with me.)

The Dare Doctrine

With Justices Alito and Roberts now comfortably on the Supreme Court, state legislatures are getting busy. South Dakota has just passed a law making it a crime to perform any abortion, except to save the life of the pregnant woman. The law has no rape or incest exception and no exception for the health the mother.  This bill is uncontroversially unconstitutional. The aspiration of the South Dakota legislators must be that when they swore to uphold the Constitution of the United States (as well as the South Dakota constitution) they were not committing perjury not because the Supreme Court got it wrong 33 years ago when it decided Roe v. Wade, and wrong each time since 1973 when it has reaffirmed a woman’s right to terminate a pregnancy when the pregnancy threatens to harm her body (most recently, three months ago, in November, in Ayotte v. Planned Parenthood of Northern New England, authored by Justice O’Connor). 

I wonder if the South Dakota legislation isn’t also unconstitutional because it calls the Supreme Court into a game of chicken.  “We know you, Supreme Court of the United States, have explicitly held otherwise, but we are right and you are wrong.  We dare you to make us take it back.” (This might be a new constitutional doctrine, birthed here, “the dare doctrine of unconstitutionality.”)  But really, isn’t there a constitutional problem when state legislatures openly defy the Supreme Court of the United States in an effort to egg on its newest members to reverse entrenched precedent? Hasn’t the Supreme Court said as much, and recently, when it chided the New Hampshire legislature for passing a clearly overbroad law (one, interestingly enough, that did not provide for a health exception in the case of a minor seeking an abortion), because New Hampshire was hoping (expecting?) that the Supreme Court would whittle it down to a constitutional size for them?  See Ayotte v. Planned Parenthood of Northern New England (“we are wary of legislatures who would rely on our intervention because it would certainly be dangerous to let legislatures set a net large enough to cast all possible offenders and leave it to the courts to step inside”).

You might say this is what the laboratories of the states are for – to encourage and push change on a national level.  But this is not a case of creative litigation, challenging the doctrine around its edges, or making room in the legal landscape for new and improved technology that changes how we live as a society.  Here, the states are openly defying clearly established constitutional law, depriving its citizens (citizens of both the state and the federation) of constitutionally protected rights. If a state can violate the supreme law of our land with impunity – daring the Court that defines that law to a challenge much like when a child tests her parents by asking “did you mean it when you said 'no'” – what is next? What prevents a state from ever passing a law contrary to clearly established Supreme Court precedent because it hopes (expects) that the Court will someday soon change its mind?

The Truth of Self-Representation

The thread on a related post is getting too interesting not to make it a main post and invite some new comments.  The issue is the truth of confessions -- especially those that have been filmed by interrogators (either as required by law or in an effort to be prudent).  How do we judge the truth of these filmed confessions? Is self-representation inherently problematic, as one commenter (visitor Corey Rayburn to this blog) suggested?  Does the  performative impulse in people inevitably emerge when placed in front of a camera to "tell their story"?  If so, how does this performance alter how we assess the voluntary, truthfulness or accuracy of the statement?  (None of these questions address the many other issues involved in judging the filmed confession, such as how the film frame affects the interpretation of the coercive atmosphere in the interrogation room.)

I am in the process of trying to collect films of confessions for a longer project.  As part of that project, I just  watched the film "Confession of Bernard Goetz," a fascinating documentary with footage of Goetz's confession, the juror's reactions and commentary from lawyers of the men Goetz shot. What struck me was how performed was Goetz's recounting of the shooting to the NH US Attorneys. He was so obviously and self-consciously telling a story about himself that he wanted to be the truth about him and the state of New York City life. (Does this self-consciousness counsel against the "truth" of the matter or in favor?) And an interesting outcome (although painful to this viewer) was that the jury both believed him -- he was reasonably frightened such that shooting the four men was self-defense -- and didn't believe him -- they disregarded as embellishment or delusion that he returned to shoot for a second time one of the men saying "You look alright. Here's another." Had the jury believed this last statement, his self-defense claim would have been significantly weakened. But by allowing that the confession was both "honest" and "deluded," they could acquit him.

What does this say about the "truth" of self-representation on film, one of those places in law (confession evidence) where film is considered paramount and indisputable form of evidence?  And do we consider the jury's assessment in this case particularly sophisticated in that they recognized that self-representation can be both true and not true, but this "mixed genre" did not taint their  judgment?  Would this be because trials and testimony are always performances, forms of "fiction" -- compiled and put together narratives for the jury to judge?  Or, is the jury's consideration of the "mixed genre" (a "autobiofilm based on a true story"?) problematic because the result in this case -- the acquittal of Bernard Goetz on all murder-related charges -- smacks of injustice and racism? 

(For a wonderfully insightful and impressively interdisciplinary book on the nature of confessions, although not specifically about the subgenre of filmed confessions, see Troubling Confessions: Speaking Guilt in Law and Literature, by co-blogger Peter Brooks.)