Unfair (6 page)

The interrogation of Juan Rivera fits the pattern perfectly.
At the time of his arrest for Holly Staker's rape and murder, Juan was nineteen years old, had an IQ of 79 (well below the average of 100), and read at a third-grade level.
Among other mental illnesses, he suffered from major depressive disorder and had made several suicide attempts.
Despite these warning signs—disclosed to the police early in the process—officials proceeded to engage in a long, high-pressure interrogation.

It took four days of questioning and polygraph tests, but eventually Juan began to backtrack on his initial account of the night of Holly's death, in which he said he'd been at a party near the scene of the crime and seen someone there acting suspiciously. There are many reasons that a suspect like Juan might not be truthful when first questioned by detectives: among other things, he might fear that the truth does not sound believable, or he might suppose that a little lie will allow him to avoid more intensive and unpleasant treatment.
But the police, as they often do, took
the inconsistencies in Juan's story as a clear sign of guilt and decided to switch to aggressively seeking a confession.
Although the polygraphs administered at Reid & Associates, the company that developed the Reid technique, had been inconclusive, the detectives had the polygrapher lie, directly accusing Rivera of raping and murdering Holly.

Rivera immediately became upset and denied involvement in the crime, but the detectives took him back to the Lake County Jail and continued to push for a confession.
At around midnight, more than twelve hours after the day's questioning had begun, Rivera broke down sobbing—crying so hard that he completely soaked his clothes.
He wasn't able to get the words out, but when the sergeant laid into him once again—“Juan, you were in that apartment with Holly Staker, weren't you?”—Juan nodded.

Over the next few hours Juan would provide the police with a full confession.
By 3 a.m., the officers had what they needed and went to type it up.
Rivera, left on his own, began to slam his head against the wall.
Moved to a padded cell, he fell into an acute psychotic state.
The nurse on duty described him as incoherent (in her words, he “sounded like the people who talk in tongues” and was “not in touch with the reality of what was going on around him”).
When she checked back a couple of hours later, he had pulled out pieces of his hair and scalp and was curled in a fetal position.

Returning in the early morning, the detectives crouched down on the floor where Juan was lying (still handcuffed and shackled), read him their summary account of his confession, and had him sign at the bottom.

The document, though, was so inconsistent and riddled with factual errors (for example, Juan described Holly as wearing a nightgown) that the State's Attorney's Office told the detectives it was unacceptable. The interrogation had to continue.
The two detectives, however, were too exhausted to go on, so two new detectives stepped in.

These interrogators focused on “clarifying” the problematic and inconsistent parts of Juan's first confession.
After a few more hours, they got the improved version they wanted, but, unsurprisingly, a number of their inquiries had been highly suggestive.
Questions like “She had a multi-colored shirt on, right, Juan?” provide insight into how so many false confessions come to contain specific details about the victim and crime scene.
Information that only the real perpetrator could know is often inadvertently (and sometimes deliberately) revealed to a suspect over the course of an investigation.
Juan Rivera discussed the crime with no fewer than ten law enforcement personnel over the four days he was interrogated, and on the second day the detectives took him on a “ride along” to the crime scene.
Moreover, at least fifteen of the fifty-four purportedly “unique” facts in Juan's confession had appeared in local newspapers.
Lamentably, these are just the types of details that end up being highlighted as strong proof that a confession is genuine.

While a more rigorous interrogation protocol might have made a difference for Juan, he would still have had to contend with investigators' assumption of guilt. As we've seen, once people form an initial impression of someone, they find it hard to change course.
This can be problematic when it comes to police questioning, given that the whole reason a suspect is brought in for an interview is that the investigators have a hunch that he was involved in the crime.

Beginning the process with a theory of guilt leaves investigators predisposed to view the suspect's ambiguous behavior as demonstrating deceit and to be overconfident in that assessment.
This, in turn, can lead them to switch to the hard-nosed interrogation phase prematurely and to chart a more aggressive course once there.
One study found that mock interrogators could be encouraged to ask more biased questions, take a more unyielding stance, and lie to a suspect about nonexistent evidence against him, simply by being led to believe at the outset that the suspect
was responsible for the crime.
The results were stark: participants who started off with a guilt mindset were more than 20 percent more likely to confirm guilt than those who started off with an innocence mindset.

We can see these psychological forces at work in Juan's case.
As is common in false confessions, Juan provided many facts to the police that contradicted what was known about the crime (he described changing the diaper of a baby in the room, although the baby was not in diapers) or what was plausible (he described eleven-year-old Holly as coming at him with a knife in a rage after he refused to continue having sex with her). Yet these clear discrepancies did not prompt police or prosecutors to doubt his guilt; they simply meant that the detectives had to go back and clean things up in a later round of questioning.

And once a confession is extracted, everyone—investigators, lawyers, jurors, and judges—starts to view the whole case through the lens of guilt, so other evidence can become more compelling than it actually is. This is confirmation bias on a grand scale. A hazy eyewitness identification suddenly appears reliable. A jailhouse informant angling for a deal suddenly seems credible.
In turn, your defense attorney may not work as hard to fight for your innocence, the trial judge may be tougher on you, and the prosecution may stake out a stronger position with respect to a plea bargain.
Perhaps most important, a confession can cause detectives to stop investigating.
In one particularly egregious case, a lab technician discovered that the suspect's blood type did not appear to match the crime-scene evidence and requested that the samples be sent to the FBI for DNA testing.
He was turned down, however, on the grounds that the police already had a confession.

Even when a DNA sample tested before trial excludes the suspect, he may still be unable to break free from the shackles of his confession.
In eight of the first 250 DNA exoneration cases, a suspect confessed to a crime that pretrial lab results showed he did not commit, and in all eight of these cases, police, prosecutors,
judges, and jurors ignored what the DNA said.
The only reason these men were eventually freed was that the biological evidence from the crime scene was finally matched to someone else.
As remarkable as it is,
Juan Rivera's case is not unique.

And Juan is not the only person who could have been steered into falsely confessing to Holly Staker's rape and murder.
Hard-nosed interrogations are particularly common when there is an absence of other clear evidence and immense pressure to solve a serious crime.
Failing to gain a confession may result in an investigator not closing a major case, disappointing the family of the victim and the broader community, and damaging his own reputation as well as that of the police department.
By the time Juan was brought in for questioning, the case was growing cold, and one can't help but think of all the other potential suspects—mentioned in initial police reports—who might have stepped into Juan's shoes: The high school student with a picture of Holly hidden in his wallet? The guy who decided to brag to his friends about how many times he had stabbed her? The man around the corner who had a conviction for sexually assaulting his eleven-year-old stepdaughter? One of the other sex offenders, drifters, or addicts living within blocks of Holly's house? They were all treading water at the outer edges of the whirlpool. Juan was simply caught in the vortex first.

Juan's story has a happy ending.
In December 2011, the Illinois Court of Appeals overturned his conviction. But it would be foolish to see the case as a triumph of our judicial system. It is, instead, a story of terrible failure. When Juan Rivera was freed in January 2012, he had spent half his life in prison for a crime he did not commit—nineteen lost years in the Stateville Correctional Center that he will never get back. He finally made it out, but it took the tireless efforts of lawyers with the Center on Wrongful Convictions at Northwestern University, a Stanford law professor, and a team of bright, dedicated students all working without pay.
It took Juan keeping faith that the truth would emerge and maintaining
his innocence even as he was repeatedly asked to plead guilty in exchange for a reduced sentence. It took newspaper articles, radio interviews, and television coverage. It took three full trials, three dozen jurors, and three appeals. It took nineteen years. And all that time the real killer was roaming free—and roams free to this day.
In a deeply troubling twist, in June 2014 this mystery man's DNA profile was matched to a murder committed nearly a decade after Holly was attacked.

Juan felt the sting of injustice every morning he awoke in his cell, but the unfairness of his case burned beyond the walls of Stateville Correctional Center. It deprived the Stakers of the closure they sought. It scarred the Riveras and the town of Waukegan.

And it stands as a warning to all of us. We have been lulled into thinking that discarding the rack and the back-room brute was enough. But all we have done is change the form of our coercion. The wounds and scars are now hidden, which leaves us in a far more precarious position. How do we spot a coerced confession when there are no bruises or welts? How do we know to sound the alarm bell when no one wears the torturer's cowl or beats out a confession, innocence be damned?

During the closing argument of Juan's third trial, the prosecutor Mike Mermel asked jurors, “Is there anything in the makeup of any of [the police officers involved in the case] that would lead you to believe that they were the kind of people who had dedicated their lives to this profession, yet just decided to just frame this poor innocent Juan Rivera because they were tired of investigating and wanted to go home?” If the answer was no, it followed, Juan must be guilty.

But the science tells us that this is dead wrong. A person can end up admitting to a crime he did not commit when everyone is trying desperately to do their best, when justice is sought, when no detective rolls up his sleeves and puts a fist into the suspect's gut. It wasn't that the thirty-six jurors were stupid or apathetic. It wasn't that Judge Starck or the prosecutors were corrupt. It wasn't
that Juan had incompetent lawyers.
Members of the media and others have advanced all of those explanations, but they miss the real reason why Juan was sentenced to life in prison.

Juan lost his third case because professionals and concerned citizens striving to do the right thing could not see the coercive forces behind his confession. We cannot afford such blindness. As I will show in the final chapter, empirically tested questioning techniques that avoid the pitfalls of the Reid approach are already being used in other countries and could be used here. But we must also ask ourselves the broader question of whether seeking an admission of guilt is a proper approach for a just legal system.

In the United States today, the vast majority of people charged with a crime are presented with a choice: say you did it and receive leniency, or maintain your innocence and suffer the consequences if a jury doesn't agree.
Ninety to ninety-five percent admit guilt, which means no one ever has to come forward with any proof that the defendant is actually responsible, no jurors ever consider the evidence, and the trial process is completely short-circuited.

Let that sink in: nine out of ten prisoners are being punished based solely on their own admission of guilt.

We've put away the breaking wheel, yes, but how far have we really come?

Suppose you were told that the victims of a carjacking had identified you as their assailant and that you had two choices: (1) plead guilty to the charge and spend two years in prison or (2) try your luck at trial, with a potential sentence of twenty-five years to life. If you knew you were innocent, would you take the risk?
Twenty-year-old James Ochoa faced this very choice and decided that he couldn't bear the chance that an Orange County jury would believe the victims' mistaken identification.
He took the plea and spent sixteen months in prison, during which time he was stabbed by another inmate, before the police caught the actual perpetrator on an unrelated carjacking and got a DNA match.

The Supreme Court believes that such cases are rare, but the
experimental evidence suggests otherwise.
In one recent study extending over several months, college students were given a choice: admit that you knowingly cheated on a logic test, avoid a trial before the Academic Review Board, and give up the participant payment you were supposed to receive; or proceed to the trial, risking loss of the payment, assignment to a mandatory ethics course, and discipline from your faculty advisor.
Over half of innocent participants falsely admitted to cheating.

If we really believe in transparency, freedom from coercion, and justice grounded in proof, we cannot continue to operate a system based on plea bargaining.
Despite the bluster of the prosecutors in Ochoa's case, they were holding a weak hand: Ochoa had a strong alibi, eyewitness identifications were inconsistent, and the bloodhound that purportedly led the police to Ochoa's front door had been improperly handled.
Most critically, the sheriff's crime lab had eliminated Ochoa as a source of the DNA and fingerprints left in the car and on the gun.
But the real cards were never revealed, and no one ever evaluated the actual facts.