WELCOME TO THE OFFICIAL RICHARD E GERSTEIN JUSTICE BUILDING BLOG. THIS BLOG IS DEDICATED TO JUSTICE BUILDING RUMOR, HUMOR, AND A DISCUSSION ABOUT AND BETWEEN THE JUDGES, LAWYERS AND THE DEDICATED SUPPORT STAFF, CLERKS, COURT REPORTERS, AND CORRECTIONAL OFFICERS WHO LABOR IN THE WORLD OF MIAMI'S CRIMINAL JUSTICE. THIS BLOG HAS BEEN CALLED "THE DEFINITIVE BLOG ON MIAMI CRIMINAL LAW" BY THE NY TIMES, THE WASHINGTON POST, THE POPE, AND DONALD TRUMP WHO ALSO ONCE SAID IT WAS "REALLY GREAT". POST YOUR COMMENTS, OR SEND RUMPOLE A PRIVATE EMAIL AT HOWARDROARK21@GMAIL.COM

Tuesday, September 14, 2010

FALSE CONFESSIONS AND WHAT NOT TO SAY AT SENTENCING

To our dear state court robed readers, please, in all seriousness, if you read anything this week, read this NY Times articles on False Confessions, here. It's too important a subject for a judge to not educate himself or herself on. The chances are that a case of this nature will cross a judge's docket and the chances are very high that if even half the judges of the REGJB read this article, they already have a case in front of them in which the confession is suspect at best.

This is not some defense attorney clap trap. False confessions are all too real. In a perfect world the State Attorney will have read this article and distributed it to her staff ....but that's in a perfect world. (And if our judicial readers need a laugh, scroll down to the federal sentencing bit.)


Check out Richard Hersch and Ben Kuehne on the Broward JAA Blog.

Loud mouth JETS and their blow-hard coach. We told you they would lose. Can't even win the home opener on MNF in their new stadium. Guess there's no "O" in Rex.

HOW NOT TO CONDUCT A FEDERAL SENTENCING:

You walk into Federal Court all set to conduct a sentencing hearing. Being well read on the law, you're prepared to argue to the Judge that the guidelines are merely advisory, and the mitigating factors under 18 USC 3553(a) are applicable to your client and support a downward variance or whatever it is that they call a departure over there these days.

And then you run into Judge Rudolph Runda (E.D WACKOVILLE) and your best laid plans go flying out the window as the Judge refers to your client's Mexican heritage, the immigration status of your client AND his wife AND (for some unknown reason) his sisters, the status of the law and the conditions of jails in several countries including Turkey, Malaysia and Thailand, AND repeated references to Hugo Chavez, Iranian Terrorists (we swear we are not making this up) AND Adolph Hitler's dog!!!

Reversed and remanded for a new sentence before a new judge who resides on earth.

Rumpole practice tip for new judges: Avoid at all costs references to "You People" and "Those People" when sentencing an illegal immigrant to prison. You should also probably leave out any comparisons to Hitler and Hugo Chavez that might cross your mind while pronouncing sentence. Just a thought.


18 comments:

Scott Saul said...

It is hard to imagine how an innocent person could confess to committing a wrongful act.

But then again, it is impossible to place myself into the position of a vulnerable, unsophisticated, and frightened suspect being endlessly interrogated and possibly threatened.

When I first started doing defense work, I would get annoyed when a client would explain that they confessed simply because, upon the admission, the police would consequently release him. I thought that explanation would be ridiculous.

However, over the years, I have had many of those same explanations. I know this "say your guilty and you get to go home" syndrome is hardly limited to just my experiences.

I am glad the psychological angle of why a [possibly innocent] person would confess is being intellectually analyzed.

Anonymous said...

"...lay the wood to Figueroa.." ???

It appears we've come a long way from Madison.

Phil R said...

I agree with part of what you said Scott, except I have found it very easy to imagine why a person would falsely confess.

First- as we all know- homicide detectives consider a confession a badge of honor. A scalp to hang on their wall. In my view, many of them view the confession with more satisfaction than the arrest.

Second- most homicide cops, and a surprising number of prosecutors and judges are ignorant about mental illness. Many cops share the unsophisticated view of the public that it's a sham and a way out. I personally have been present (in a federal case no less) with a client with a 25 year history of schizophrenia who the feds wanted to debrief. While I was confident of the case not being filed because of my client's mental status, I thought the best way was to let the AUSA and agents speak with my client. And to my shock, despite my client rambling on about being appointed a community sheriff by Obama, they contemplated using him as a witness! Confronted with my client's fantasies, they said "oh come on, you don't believe him do you?"

Third- especially in South Florida, many clients were raised in countries where the police were nothing more than organized thugs. Being handcuffed in a small room, knowing their wife and child are unprotected at a small apartment, I have seen clients say almost anything if they were promised that their family wouldn't be harassed.

But so long as confessions are considered the gold standard of evidence, these problems will continue.

Ask any officer or prosecutor you see today if they think false confessions are a serious problem. My guess is somewhere between 8 of 10 to 9 of 10 will laugh at you and dismiss it as a non-issue.

And Rumpole is right- it is sad that the likelihood of our State Attorney having her prosecutors read the NY Times article is between slim and none.

Anonymous said...

How about giving credit to your source, Rumpole? Both the false confession story and the Hitler's dog story were on Professor Doug Berman's blog, www.sentencing.typepad.com.
You got the info there, right? For anyone who doesn't know about it, Berman's blog is a great news resource for federal criminal cases, especially sentencing, and it often delves into other areas as well.

Anonymous said...

Phil R forgot to drink his prune juice this morning.

Anonymous said...

Saw Lurvey outside courthouse saving a pigeon. What's with this guy?

Anonymous said...

Hey Phil:

She may read the article; What else does she have to do all day?

Anonymous said...

False confession experts are not allowable as a matter of right in a defense in the State of Florida. Now a lying detective has a right to testify as to what he remembers but a false confessions expert can be excluded. This needs to change. The jury system is too fragile to allow a jury to hear an a priori credible detective talk about a confession without hearing about what false confessions are all about.

Rumpole said...

11:05 am- I have never ever been on that site. Ever.

I do not steal. That is perhaps the worst accusation you can make against a writer. My ideas are my own. True I look through various sources for topics- ie., the NY Times and the article on false confessions. But I ALWAYS give credit to any source I use.

So, where's your proof, if you want to make a charge, lets see the evidence.

old guy said...

I am pretty sure that ASA's are still permitted to read the NY Times - even without Rundle's permission.

She does not read much that does not involve getting elected.

Anonymous said...

I agree that false confessions are a significant concern, but...

Today's false confession "experts" are a joke. I can't believe the nonsense I've seen some of them testify to.

One witness cannot and should not comment on the credibility of another. How would you feel if a psychologist came in and testified that a particular witness told the truth?

The bottom line is that it's incumbent on prosecutors and judges to do the right thing and throw out confessions that they have significant concerns about. Those that don't have the chutzpah to do that need to find another line of work.

BTDT

Anonymous said...

4:43, you are right, judges incapable of rejecting unreliable confessions in an effort to avoid being reversed is the real danger in the system. This is why the governor's election is so important. Appointed judges control the evidence admitted into a trial. Cowardly judge damage the system much more weaker than a para-science expert could ever do.

Anonymous said...

Who the fuck is "BTDT" and how can s/he be stupid enough to equate one witness saying another isn't credible with a witness explaining the psychology of the effstrained trained interrogater extracting a statement from a vulnerable detainee??

Anonymous said...

Hey 9:20, have you ever read any of Ofshe's work? Or his transcripts? Perhaps you should. The false confession "experts" are going way beyond talking about the offenders' vulnerability. They're trying to offer opinions that particular defendants were lying. For a good example of the kind of nonsense they're presenting (and a criticism of a Ofshe's commentary in a partiuclar case) see http://www.sciencedirect.com/science?_ob=ArticleURL&_udi=B6WYN-46YC3TH-G&_user=10&_coverDate=12%2F31%2F1998&_rdoc=1&_fmt=high&_orig=search&_origin=search&_sort=d&_docanchor=&view=c&_searchStrId=1462769209&_rerunOrigin=google&_acct=C000050221&_version=1&_urlVersion=0&_userid=10&md5=3e043356a7cda56c6de4adffb77ba1a1&searchtype=a.

BTDT

Son of Janet Reno said...

Sometimes Saul is a total barbarian and sometimes he can be pretty poignant.

Anonymous said...

Most people believe that BTDT is Judge Ellen Sue Venzer

Anonymous said...

HAHA. Funny that anybody cares enough about who I am to talk about my identity. The thought that anybody would care never even occured to me.

Funnier still that anyone thinks I'm Venzer (now don't go reading into that.......I've always liked Venzer). As I've said before, I'm former prosecutor (Miami SAO). Venzer did civil law prior to taking the bench.

BTDT

Brian McGuinness said...

I'm a criminal defense investigator and former Miami Public Defender investigator. I was on Francie Koehler’s Voice of America internet radio show "PIsDeClassified" recently along with my twin brother Patrick McGuinness, a criminal lawyer in Jacksonville, FL and San Francisco based false confessions expert and author of Police Interrogation and American Justice, Dr. Richard Leo. Dr. Leo’s research is fascinating.If you Google his name, you will find a December 2007 article that appeared in The Champion entitled The Problem of False Confessions in America. This article will give you a summary of some of the research in this field which will open your eyes to the problem of police induced confessions.

The radio program (July Episodes)can be found at this link:

http://www.voiceamerica.com/voiceamerica/vshow.aspx?sid=1748