Tuesday, January 19, 2016

Confessions Part 2 As We Leave Anchorage

I posted some thoughts on confessions just before boarding a plane to Seattle.  But I had more thoughts as we took off and before we got into the clouds.

Cook Inlet Ice as we take off

Making a Murderer is a disturbing yet compelling Netflix documentary series.  I gave some details of the confession - what it sounded like in the news and how it was actually obtained - in the previous post.

Here are some more thoughts the show raised for me.

Some specific issues for me:

The Certainty of the prosecutors and the defense attorneys.  The prosecutor and the investigators - even the initial court appointed defense attorney - were all certain that Steve Avery (Brendan's uncle) was guilty and that Brendan was an accomplice.  They didn't even consider other leads.  This certainty seemed to justify the way they got the confession.  They knew for sure that Brendan was guilty and they just needed to get him to admit it.  The defense attorneys were also certain.  The first court appointed attorney was sure of his guilt.  Later, the better attorneys who took over were sure of Steven Avery's and Brendan's innocence.  It's the job of the defense attorney to defend the accused.  But it's the job of the prosecutor to uphold justice.  His job in court is to present the evidence against the accused, but when information comes out that raises doubts, he should just relentlessly go after a conviction.  If the wrong person is convicted, it means the actual murderer is still loose and liable to find new victims.

Getting a Confession - How far to push?  If someone is guilty, it's better for the prosecution to get a confession.  It makes it easier to convict and you can get evidence on other culprits.  Prosecutors even make deals with suspects - 'We'll offer you less time in prison if you confess and cooperate with us on others involved in the crime."  It can also save the time and expense of a long trial if the suspect confesses and pleads guilty.  And if there is still an imminent danger - an unknown partner in crime still on the loose and dangerous - there is the added urgency of protecting people from harm right now.

Foraker and Denali Get Some Morning Sun

But what if the suspect is not guilty?  How far should the interrogator push?  This was a big issue with Guantanamo prisoners and waterboarding and other torture.  If the suspect is not guilty, one is inflicting unnecessary pain and/or anguish to an innocent victim or one gets a false confession when the suspect says whatever the interrogator wants him to say.

Findlaw tells us this was the reason for the protections against self incrimination in the US Constitution:
"The right against self-incrimination is rooted in the Puritans’ refusal to cooperate with interrogators in 17th century England. They often were coerced or tortured into confessing their religious affiliation and were considered guilty if they remained silent. English law granted its citizens the right against self-incrimination in the mid-1600s, when a revolution established greater parliamentary power.
Puritans who fled religious persecution brought this idea with them to America, where it would eventually become codified in the Bill of Rights. Today, courts have found the right against self-incrimination to include testimonial or communicative evidence at police interrogations and legal proceedings."
Getting a Confession - Use of Guile:  

Another issue is the use of lies to get a confession.  Interrogators led Brendan to believe that by telling the truth he would make his troubles go away.  He told them he needed to get back to school so he could turn in a paper and they implied that he needed to answer the questions first.  They asked if he wanted to go to prison for the rest of his life and when he said no, they said, then write down what you did.  They told him, "We know what you did, we just want you to say it."  Well, they didn't know.

About to fly up Eagle River valley 
Frontline tells a similar story about a girl name Troung:
"The detective also tells her that, if she confesses, they’ll “walk right out here, to special
crimes juvenile” to “talk to a social worker.” If not, he’ll consult with the medical examiner and start working on a murder case against her. . .
Finally Truong confesses, after being reassured by the detective that “maybe something good will come out of all this,” and that the courts will decide on what “treatment” she should get in the juvenile system. . ."
When you are dealing with a guilty suspect, you may have to use tricks to break them down and confess.  There are lots of strategies that we see in cop movies all the time, like Good Cop/Bad Cop.  But how does that work with the not guilty suspect?

The Frontline show goes on to say false confessions aren't as rare as people think.
"But are false confessions actually that rare? Brandon L. Garrett, a University of Virginia School of Law professor who recently wrote a book called Convicting the Innocent, says his research “suggests that innocents actually confess to a lot.” Forty of the first 250 people exonerated based on DNA evidence, or 16 percent, falsely confessed."
And why do people confess falsely?  They quote Troung about why she confessed, which sounds similar to Brendan's story:
So why did Truong confess to something she says she didn’t do? Why would anyone? “It was a pretty long two hours,” she told Boeri, “and all I could hear throughout those two hours was that they were going to give me help if I confessed.”
They falsely told her and Brendan that all they had to do was confess and they could go home.  In Brendan's case, that's all he wanted - to go home.  But they lied to him and chained him up and imprisoned him.  Is that kind of lying acceptable?

I think that different techniques are acceptable in different circumstances.  I'm not sure where the lines should be drawn, but introverted kids, like Brendan, with a low IQ and an inability to understand what is happening, are clearly on the no guile side of the line.  More important than locating that line, may be to insure that the person has an attorney present, though in Brendan's case, his attorney was part of the problem - enough so to be kicked off the case by the judge.

And over the Chugach 
Innocent or Guilty Presumption And The Need For Closure

We have trials to determine guilt or innocence.  The defendant is presumed innocent until proven guilty.  Yet in the Avery case and in Brendan's case, it's clear that even Brendan's attorney considered him guilty.  (see the previous post on this.)
The Sheriff - It's critical police keep open some doubt about the suspect's guilt, simply so they don't stop looking for other suspects.  In Steven Avery's case, the sheriff's office ignored a tip from the local police that there was another suspect they'd been surveilling, except for the time of the crime.  That other suspect eventually - after Avery served 18 years in prison - was proven to be the culprit.  And he committed more crimes in the meantime.  And Avery, through DNA tests was proven not to be.
The Victim's Family - They want to believe the person who did that to their family member has been caught and punished.  In the Avery/Dacey cases, the victim's brother was certain from Day 1 that Avery and Dacey (Kevin) were guilty.  They ignored the inconsistencies.  But the family really does have an interest in the real perpetrator being caught and punished.  In Avery's original conviction (when he was proven innocent later) the victim positively identified him.  But later on, when the DNA proved he hadn't done it, she apologized.
The Media - They want to sell advertising.  They have a strong incentive to report the most titillating stories they can.  The reports of Brendan's confession dripped with blood and sex and murder.  The reports made it sound like Brendan, after stewing on this for months, came in and spilled his guts.  There's no hint the police picked him up at school and painstakingly fed him the story they believed and manipulated him until he eventually wrote what they wanted him to write.  The media didn't ncecssarily presume guilt as much as presume that sensationalism gets ratings.  But in going for gore, they planted the the presumption of guilt in the minds of their viewers and probably in their own minds.

Need For Closure
I suspect that the quick presumption of guilt in this case reflected a very human need for closure.
The Sheriff - When a brutal crime is committed in a small town, law enforcement has to feel some responsibility for not having prevented it.  Thus the sooner they catch the culprit, the closer they are to redeeming themselves.  And there has to be at least subconscious antagonism toward the suspect for making them look bad.
The Victim's Family - They too want to put this to rest as quickly as possible.  Knowing the person who hurt or killed your family member has been caught and is being punished, for many, is a big part of the grievance process.  Retribution seems to be part of human society.  So much so that punishing the wrong person is not a worry for most victims' relatives.  I'm not saying they knowingly will accept any culprit to punish, guilty or not, but rather their need for retribution helps them see guilt, even in the innocent.
The Media - They probably have the least need for closure, as the 2014 Republican presidential race demonstrates.  As long as an issue gets viewers and sells advertisements, they'll feed it to us.
The Public - They share the police and victim's family needs.  They want to know the perpetrator is off the streets and they are safe so they can go on leading their lives normally.  They want to believe that justice will prevail.  They've watched enough police and lawyer television shows that they believe that in the end, the smart defense attorney will pull her client out of the fire.  Until they experience their own injustice at the hands of the police or the courts, they just want the culprit caught and punished and they don't probe too deeply into the matter.

One Other Issue - Media Manipulation Of Trials

My sense is that the filmmakers seriously made this film because they thought an injustice was done.  At least that's how it came across to me.  But how do any of us know whether they fairly represented all sides of this case?  Because they were taking the side of the economically and educationally poor, outsiders of this community against the establishment - particularly the sheriff department and the court system - that their motives are relatively clean.  But then, how poor are the Avery's?  They've got 40 acres of land, they've got a great vegetable garden.  Is there a bigger story that the filmmakers missed that someone is trying to get their land?  Probably not.  It's upstate Wisconsin and there is probably plenty of land available.  You see how many threads one could unravel and follow here?

The film makers here did a great job of mixing entertainment and documentary.  A documentary should be accurate and explain complicated relationships AND be interesting to the viewer so they watch the whole thing.  That happened here.  I know my wife and I were totally pulled into the story and we were rooting for the good guys and angry at the bad guys.  The filmmakers succeeded in their mission.

 But will others see this model and do similar types of films, but with a sponsored message?  Will corporations use this style to push their agendas?  Will criminal organizations make similar films to make their own members look innocent?  This documentary wasn't available when El Chapo met with Sean Penn, but maybe he was thinking along the same lines.

OK, there are all kinds of directions this can go.  Lots of issues.  But enough now.

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