In a small windowless jail cell, a defense attorney leans over and talks quietly to his sobbing client.
Dirty icy air is blasted from musty old vents jutting from a mildewed ceiling.
The smell of new floor wax and disinfectant mix with the smell of sweat and fear. The client wipes away his tears and grabs his attorneys hands and burys his face in them.
"Bless me....for I have confessed. "
“Tell me, my client.”
“Two nights ago, at 2:00 am three detectives came to my apartment and held a gun to me and my wife. Then they asked me to come to the police station with them.”
“They asked you?”
“Well, they said if I didn’t go voluntarily, they would arrest my wife as well and take our daughter to CFS. “
“So you went with them?””Of course I did.”
“Tell me more, my client.”
“Well, then they took me to this small room and one cop punched me in my stomach and told me to sit down. Then another cop came in and saw me on the floor and asked what happened. I told him that his partner hit me and he apologized and went to get me a soda.”
“What happened next?”
“The cop who hit me came in and kicked the leg out from my chair and I fell on the floor. Then he got down on the floor and whispered in my ear that if I didn’t say exactly what he wanted, he was going to put me in jail and then go back to my apartment to give the same treatment to my wife. Then the other cop came in with the soda and put me back in the chair.”
“And then what happened?”
“They told me about a shooting, and said I had been identified as the shooter. The bad cop kept telling me what the guy who had been shot looked like, and where the shooting occurred. The good cop kept asking me to repeat it and he was taking notes. Then after an hour the good cop asked me to repeat the whole story while he turned on the tape recorder. “
“Did you confess to the crime, my client?”
"Well before I said anything I asked them what would happen to me. The good cop said that since I didn’t have any priors it shouldn’t be too bad. The bad cop told me to just say what happened or I was going to jail. So I confessed to shooting some guy I don’t even know.”
“Did anyone tell you anything about something called 10-20-life.?”
“No, is that important?”
__________________
This past week, while we were otherwise occupied the blog took off on one of its own tangents as attorneys debated the merits of taped confessions.
The Innocence Project (go here: http://www.innocenceproject.org/causes/falseconfessions.php
has this to say about false confessions:
Even absent those factors, adults also give false confessions due to a variety of factors like the length of interrogation, exhaustion, or a belief that they can be released after confessing and prove their innocence afterward. Though law enforcement must at times employ tactics to extract the truth from uncooperative suspects, police officers, convinced of a suspect's guilt, may occasionally use interrogation tactics so persuasive that an innocent person feels compelled to confess to a crime. In convincing the suspect that the evidence against him is overwhelming, law enforcement may push an innocent suspect to the point where he believes that his fate is sealed with or without a confession. The suspect realizes the injustice inherent in the situation but decides to cooperate, resigned to the notion that a confession will be more beneficial than continuing to claim innocence. The perceived benefits of a false confession may include protection of family members, a more lenient sentence or avoidance of capital punishment, promised deferential treatment by the police or prosecutors, or, in extreme circumstances, avoidance or cessation of physical harm or discomfort. Another inducement to confess may be permission to leave the interrogation room itself, as it is often implied that a suspect is not actually allowed to leave the room until a confession is produced.
There is one way to begin to deal with the problems of false confessions.
If Prosecutors and Judges received training about this problem, including true case histories of innocent defendants convicted with false confessions, then the next time a defense attorney raised the issue, he or she might not be met with the smirks and glares by Judges and Prosecutors who want to clear their case loads.
The fact remains that innocent people confess.
The Innocence Project web site listed above has 20 case histories listed of innocent defendants who confessed to crimes they did not commit.
If innocent people are convicted because of the careless indifference of Judges and Prosecutors, then it will be on their conscience if they take part in sending an innocent person to prison.
Of course, to make this all work, the prosecutor and the Judge need a conscience to begin with.
We cannot end this post without mentioning one of our re-occurring themes that haunts us.
If hundreds of innocent people have been sent to death row, what about the tens of thousands of people serving lengthy sentences who don’t have anyone looking at their cases? Or is it OK to wrongly convict someone of a crime, as long as you don’t kill them?
If Florida keeps limiting payment to $3,500.00 to conflict attorneys to represent someone charged with a life felony, then this problem is going to explode out of control.
If Judges and prosecutors spent one minute a week closing their eyes and imagining being wrongly convicted and sentenced to even 10 years in prison, maybe we could start working towards a solution.
We predict that with all the minimum mandatory sentencing schemes in place, that history will call this period the Dark Ages of criminal justice. Our children or our children's children will wonder what we were thinking about. Just like we can't imagine walking into a restaurant segregated by color, they will wonder how we could do this to innocent people.
See You In Court.
52 comments:
Rumpole - this is a great post, unfortunately, prosecutors and former prosecutors will now write in that no one is innocent. This argument about fairness is a waste of time to them
yeah - here, all the robots out there cut, copy and paste this to begin all your anti-defense attorney comments:
Typical defense attorney
video taping confessions would hurt our chances to walk the guilty. let it go.
h to the isso e to the issa.
I wonder whether former prosecutors-turned-judges ever wonder whether they too have prosecuted an innocent person with forced confessions or they were immune from this possibility. If they "know" they never did, this is a scarry thing, and if they "know" they did then this too is a scarry thing.
Looks like Bobby Reiff and Mills Francis got spanked on Higgins.
The Eleventh Circuit flat out slammed them and pointed to the "inexplicable" fact the written order seemed to reflect little of the actual hearings themselves ("Hi Bobby, motion granted, got an pre-drafted order for me to sign? It will look great in the Florida Law Weekly.").
There's no right to refuse roadsides and Fourth Amendment coercion arguments are nonsense.
Suffice to say, a ridiculous issue has been put to rest.
'Bout time.
Re the comment that prosecutors think everyone is guilty:
Not true. When I was a prosecutor, I constantly lived with the fear that I'd convict an innocent person (and all of my friends lived the same way). I dropped several cases because I wasn't sure of the defendant's guilt. Most of those cases were with the few defense attorneys I trusted. Attorneys who didn't proclaim their clients' innocence on each and every case. Attorneys like Tannenbaum, Grey, Fingerhut, Reyes (Joe), Diaz (Reemberto), and Fleisher.
Perhaps the prosecutors you're dealing with don't listen to you because you're one of the many who always claim your client is innocent. Or always have a lengthy list of mitigating circumstances. Or always file two inches of specious form motions.
It all comes down to credibility. Perhaps if you weren't so dogmatic, you'd get further.
Anyone who thinks Grey is a suck up hasn't had a case against him. He's a great guy, but a major pain in the ass. He's an excellent lawyer.
Thanks Jason, you have a great opionion of yourself.
Listen, I have to assume my clients are innocent to combat the State's assumpion that the Police is telling the truth. If the state assumes what's within the four corners of the A-form is true, and are incapable of seeing the Bullshit the police do on a daily basis, I must assume my clients are innocent to counteract the SAO similar assumption. If the State could be more honest in its work, and when corrcupt cops are shown to be manipulating the system, then many lawyers would feel more comfortable speaking the truth and helping cases along. Tannenbaum, Grey et al in being more frank with the state are immediately tipping their hands and hopping the state at the behest of the police does not slam their client like a fly. Frankly, for now, this is a bet I am unwilling to make.
To keep society going with peace and confidence, then an artifice -- a Leviathan -- must be worked into the social contract. This Leviathan is the State -- whether in the form of an absolute monarch or a democratic parliament, it does not matter. The important point is that the State will be given a monopoly on violence and absolute authority. In return, the State promises to exercise its absolute power to maintain a state of peace (by punishing deviants, etc.) Realizing that its power depends wholly on the willingness of the citizenry to surrender theirs, the State itself will have an incentive not to abuse it. Of course, there is no guarantee that it won't. But when it does, it must brace itself for the consequences.
I have never had an innocent client. I don't see convictring the innocent as the problem-although it is a tragedy if an when it occurs. But the constant and daily problem are the draconian sentences.
I wonder, how many of your clients are serving lengthy sentences because you didn't want to "tip your hand" and deal with the prosecutors more honestly.....
prosecutors aren't stupid. It's not about "guilt" or "innocence" it's about proof. only Matlock has clients who are all innocent. The rest of us deal with what can be proven and likelyhood.If you claim all of your clients are innocent no one will listen when you have one that really is.
this blog sucks!
DEFENSE ATTORNEYS WHO HATE PROSECUTORS BECAUSE THEY ARE "PROSECUTORS," ARE WORSE THAN PROSECUTORS WHO HATE DEFENSE ATTORNEYS BECAUSE THEY ARE "DEFENSE ATTORNEYS."
IT'S A SYSTEM, WORK WITHIN IT.
PROSECUTORS WHO HATE ALL DEFENSE ATTORNEYS SHOULD RESIGN, TODAY, AND DEFENSE ATTORNEYS WHO HATE ALL PROSECUTORS SHOULD GO JOIN THE PEACE CORPS.
Prosuctors are great. I am one of them. I know.
you are a proscutors? what a surprise
There are some great prosecutors out there; prosecutors who dismiss BS cases and who make fair and reasonable plea offers to clients. Then again, there are some real jerks out there who are more interested in convictions than in doing justice.
As a defense attorney, disliking prosecutors "just because" doesn't work for me. All I ask is for prosecutors to know the law, make a decent plea offer, and behave professionally in court. (And to not pull stupid BS like listing 10 new witnesses a week before trial and then arguing when the defense asks for a state-charged continuance b/c the late listing doesn't allow time for depos).
whats the problem with prosecutors listing 10 new witnesses a week before trial - they are not new witnesses, it is just that this is the first time the prosecutor has looked at the file.
why do prosecutors have such small penises? is it BECAUSE they prosecute? or is it WHY the prosecute?
I am a defense attorney with a large penis. But I used to be a prosecutor. What makes this of your argument. I know I have a large penis, I used to compare it to other prosecutors. That is why I left the office.
sincerely,
large and private
Dear Large and Private:
I agree (sadly) with your assessment of the assortments of small penises at the SAO. (with the exception of Abe L. Have you seen the size of his hands???)
But I have come to understand that not all men have penises the size of Warren Schwartz's. (another reason why he leads the poll for Public Defender) This is a sad but anatomically and scientifically true fact. Perhaps Rumpole should devise some sort of poll on this issue.
Meanwhile, Large and Private, I would love to know who you are. Perhaps you can wear a penis pin or something to court so I can identify you.
it's amazing that everyone is not guilty to a private defense attorney and the cops all lie,, is that before or after the total fee is paid in cash?
after
My name is L and P
They actually say that Kathy has a very large poenis (and that misspelling was done intentionally. I just like it, like foetus, or George Duboeff).
George Duboeff is up this year?
blog, blog, blog
where is zzzzzzzzzzzzzzzzzzzzzz when you need her?
Perhaps we should settle the good prosecutor/bad prosecutor debate once and for all. Just for fun, let's compile nominations for worst and best ASA's we've worked with and see who gets the most nods...
What say you all?
best? - there is no list, only one - charlie johnson.
Worst? - it's crowded down there.
Charlie Johnson, who is this? What type of cases does he handle? I thought charlie johnson was the catcher for the Hurricanes.
WHat about Sarmiento, I thought he was a good prosecutor also?
Prostethic penises, penis pumpers and administering bee stingers to your penis doesn't count, you have to be naturally large.
Since when did this blog, lower itself to discussions about male anatomy? (or lack thereof)
I'm sure that Dean Stuffyshirt and Professor Ballbuster would be so happy to see how far their prized pupils have come in life.
Best Charlie Johnson, hands down. There are some other good ones as well.
There are so many awful ones, but I think that at the moment, that award goes to the A in King Leban...Tammy Koss.
Why is Charlie Johnson so good? Elaborate please.
no josh, we don't need to elaborate
Obviously this is a gov't run blog. Where do I seek procedural due process?
i love cash paying clients. tax free. usually a fee for a fairly quick plea is an ASA's monthly salary. who said crime doesnt pay! dont you love the irony?
Here is why Charlie is so great. he is a wonderful guy who views Defendant's as human beings and is out for justice instead of convictions. At the same time, he is a talented trial lawyer who will fight tooth and nail. If Charlie believes that the proper thing to do is prosecute someone, he will do it to the full extent. Charlie really understands humanity and the lives of our clients. he will view each case individually and proceed on each one as he believes is appropriate. He is neither a pushover or a monster. We love Charlie!
the reason people are not posting the worst ASA is because the term "worst" is not defined.
So i'll define it.
It is not the worst trial lawyer. As we know, a good or bad lawyer is not completely defined by trial skills, it is the whole package. Is Charlie Johnson the best trial lawyer in the office? Doesn't matter - he is the best all around ASA.
Because the job of the ASA is to seek justice (I know, I laugh too), I think the definition of the worst ASA is someone who is heartless, angry, vindictive, mean, and has no life outside the office.
The question is, are any of these men (I think just one)?
my vote for best public defender goes to david weed. this guy has life figured out. he has never worked a day in his life. yet
he retired recently after "the drop", took a 30 day vacation, and came back to work at the pdo making a buck 40 a year. he is my idol.
Thanks Charlie,
The Kommissar of Konty Kort gets my vote for bad ASA because she's very robotic and truy kommissar-like.
Charlie is what an ASA should be.
The ASAs I dislike are those that are good at trial and unreasonable. You know the kind, offering 90 days on one count 2d misdos. Seriously, I set that shit for trial simply so that the prosecutor could embarass themselves when the judge inquired about the plea.
I don't mind unreasonable or lazy prosecutors who can't do a trial because you embarass them and then they get better for you. But the worst prosecutors are those who are not only unreasonable, but are great trial lawyers. Luckily, most ASAs get reasonable while they get better at trials.
i like bitchy gay male prosecutors with nipple studs.
i like dirty female precutors who like to do x at club space and then enjoy lap dances across the street at gold rush.
Charlie is a guy and not a girl, so try another explanation why you like him...
What's the deal with Judge Reyes' JA?
Have you ever tried to set a motion with her. She is rude, doesn't return telephone calls and asks so many questions about the merits of the motion that it makes you feel like invoking the 5th or at least asking for a Miranda warning. For fun, try setting a motion to compel discovery with her. Its more painful then walking on hot coals.
Also for grins, try gaining access to Reyes' chambers. The iron maiden known as his JA has set up so many obstacles that it would be easier gaining access to an Iranian nuclear facility than Reyes' office.
JUDGE REYES...you are a nice guy, but explain to your JA that lawyers are not the enemy or medicate her.
DARRIN MCGILLIS, Appellant(s)/Petitioner(s), vs. DANIEL NESS, ET AL., Appellee(s)/Respondent(s).
CASE NO.: 3D05-2339
COURT OF APPEAL OF FLORIDA, THIRD DISTRICT
923 So. 2d 1178; 2006 Fla. App. LEXIS 5161
January 24, 2006, Decided
NOTICE: [*1] DECISION WITHOUT PUBLISHED OPINION
PRIOR HISTORY: LOWER TRIBUNAL NO. 05-6983, 05-7087, 05-296 AP.
JUDGES: FLETCHER, SHEPHERD and ROTHENBERG, JJ., concur.
OPINION: Following review of the petition for writ of certiorari and the response and reply thereto, it is ordered that said petition is hereby denied.
Upon consideration of the motion for sanctions filed by respondent Benjamin Ness, it is ordered that said motion is granted and remanded to the trial court to fix amount.
Upon consideration, petitioner's request for sanctions against counsel is hereby denied.
FLETCHER, SHEPHERD and ROTHENBERG, JJ., concur.
And
DARRIN MCGILLIS, Appellant(s)/Petitioner(s), vs. BENJAMIN NESS, Appellee(s)/Respondent(s).
CASE NO.: 3D05-1230
COURT OF APPEAL OF FLORIDA, THIRD DISTRICT
910 So. 2d 274; 2005 Fla. App. LEXIS 15963
August 30, 2005, Decided
NOTICE: [*1] DECISION WITHOUT PUBLISHED OPINION
PRIOR HISTORY: LOWER TRIBUNAL NO. 05-14334. McGillis v. Ness, 903 So. 2d 198, 2005 Fla. App. LEXIS 10168 (Fla. Dist. Ct. App. 3d Dist., 2005)
JUDGES: LEVY, C.J., and FLETCHER and CORTINAS, JJ., concur.
OPINION: Upon consideration of the emergency petition for writ of mandamus, it is ordered that said petition is hereby dismissed as moot. LEVY, C.J., and FLETCHER and CORTINAS, JJ., concur.
and
DARRIN MCGILLIS, Appellant(s)/Petitioner(s), vs. BENJAMIN NESS, Appellee(s)/Respondent(s).
CASE NO.: 3D05-1230
COURT OF APPEAL OF FLORIDA, THIRD DISTRICT
903 So. 2d 198; 2005 Fla. App. LEXIS 10168
June 15, 2005, Decided
NOTICE: [*1] DECISION WITHOUT PUBLISHED OPINION
SUBSEQUENT HISTORY: Writ dismissed by McGillis v. Ness, 2005 Fla. App. LEXIS 15963 (Fla. Dist. Ct. App. 3d Dist., Aug. 30, 2005)
PRIOR HISTORY: LOWER TRIBUNAL NO. 05-14334.
OPINION: This Court's order dated June 14, 2005 is hereby vacated.
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