I was sitting in a smoke-filled car outside of a grocery store, listening to one of the various talk radio programs that my father always seemed to have droning on in the background, when I detected the first signal of one of those gradual shifts of consciousness that occasionally imposes iself upon life’s complacency. It was April of 1992 and everyone was abuzz about the execution of Robert Alton Harris who had the macabre distinction of being the first person put to death in the state of California since 1967. 

Harris’s case had always been surrounded by sensationalism. After murdering two teenagers that he and his brother had kidnapped from the parking lot of a fast food restaurant, Harris reportedly lingered and ate their hamburgers before using their car in a bank robbery. Though this particular detail had little to do with the actual crime itself, the prosecution felt it represented a particularly outrageous display of callousness by Harris. 

But the drama did not end at trial. Harris had entered the gas chamber several times, once having actually been strapped into the chair, only to be granted a last-minute stay. None of these four stays spared him for more than a matter of hours, however, as the Supreme Court, in its decision to vacate the fourth stay, ruled that no more judicial reprieves could be granted to Harris unless it came from their bench.    

In a case where the perpetrator had confessed to his guilt in court, had a prior history of violence, and showed virtually no remorse, there was little inclination by the highest court to intervene further.

Despite a history of profound and ongoing childhood abuse, Harris the adult elicited no sympathy. In fact, numerous individuals were calling in to comment on Harris’ death with what could only be described as fist-pumping celebration -- as though their favorite football team had scored a winning touchdown when Harris gasped his last breath. I couldn’t help but think of those old stories where mobs would gather round to enthusiastically gawk at public hangings, the reality entertainment of yesteryear.    

The fact that a sequence of events involving the murder of two people had concluded -- at least as far as the criminal justice system was concerned --seemed a moment requiring solemn reflection on an all-around human tragedy even if one did believe, as I still reluctantly did at the time, that execution was a just policy under the circumstances. I could not imagine the rage and grief I would feel if I had a loved one ripped from my life by the cruel and premeditated malice of another -- and I pray that I never find out. But I also couldn’t help wondering: if people were responding with such utter glee and bloodlust then were they really above the darkness that lurked in the heart of the man they were condemning?

I expressed my uneasiness about what I was hearing to my father who is and always has been a dispassionate supporter of the death penalty. He sat in pensive silence for a few moments and then nodded his head and conceded, “Yeah, I hear what you’re saying. It does seem a little disconcerting.”

For several years afterward, I went about my business not thinking too much about capital punishment until I became involved in the human rights movement where I learned much more than many Americans would care to acknowledge about the flaws in our legal system. False confessions, false eyewitness identification and pressure on all parties in the criminal justice process to find, arrest, convict and render harsh sentences in connection with particular types of crimes all ironically contribute to a higher likelihood of unjust outcomes. 

In-depth reports within the past year by both Amnesty International (1) and California Lawyer Magazine detailed the phenomena of false confessions for crimes as serious as murder. Though counterintuitive at first glance, there are a number of elements embedded within common police interrogation techniques, especially in the 40 years since the Miranda ruling was handed down by the Supreme Court, which can create an environment that is exceedingly coercive. 

One technique often used by various police departments is the Reid Technique which is contingent upon the creation of a “make-believe world of ever-increasing disorientation and discomfort from which the suspect’s only hope of escape is to admit guilt.” (2) In order to start this ritual, law enforcement officers must give the impression to the suspect that they are not engaged in an adversarial situation with authority figures but instead are talking to buddies who are looking out for their interests. Miranda rights are often camouflaged within small talk and friendly conversation. Suspects are then led to believe that, in waiving their right to silence, they will have an opportunity to “tell their own side of the story.”    

After a waiver is obtained from the suspect, a three-phase process typically begins. The first step involves characterizing the procedure as a problem-solving exercise to benefit the suspect, an extension of the “we’re your buddies” act. Interrogators may show sympathy and usually make promises -- indirect promises intended to increase a suspect’s expectations or create fear are routinely upheld by courts. 

In the second phase, interrogators will fabricate evidence to undermine a suspect’s confidence. The fabricated evidence may include lies about statements from witnesses or the presence of physical evidence tying the suspect to the crime. Convincing suspects that various types of inadmissible evidence are actually valid is another common fabrication. Since courts have been slow to set boundaries on such practices, many police interrogators seem to have no compunctions about utilizing them. 

Moving into the final phase, suspects are often at a point, after hours of intense questioning using the aforementioned psychological tactics, where they are no longer fully convinced of their own innocence and are willing to construct a story that minimizes the crime itself or their role in it.  Interrogators employing this three-phase technique are more than willing to lead the suspect to this alternative narrative, as it is the key to ultimately obtaining the much-desired confession. People with intellectual or psychological impediments such as low IQ, mental illness or substance abuse issues are more vulnerable to this process.

Though legal experts say there are clues when a confession is coerced, such as qualifying words (e.g., “I guess I did this....” or, “I must have done that...”), juries will, more often than not, still view a confession as solid evidence of guilt with little consideration of how it was elicited or whether it was retracted.  Moreover, if a suspect has admitted to a crime, every subsequent step in the legal system increases the likelihood of conviction and a harsher sentence. For example, more serious charges are likely to be brought, bail will be more difficult to make, and many defense attorneys -- themselves often ignorant of the workings of the phenomena of false confessions -- may advise their clients to admit guilt in an attempt to plea bargain. False confessions have so far contributed to 20% of convictions that were later reversed by DNA testing. It is estimated that false confessions are responsible for 8-14% of wrongful convictions.

Another form of evidence that has proven far less reliable than many would think is eyewitness testimony, which studies show to be wrong about 50% of the time. (3) According to a New York Times Magazine article from January of 2003, false eyewitness testimony is the leading cause of wrongful convictions nationwide. Most of the time, eyewitness testimony is not intentionally false but has to do with the psychological dynamics of bearing witness to a crime and the workings of memory, including “post-event contamination.”

Post-event contamination occurs when inaccurate information about an event after the fact becomes integrated into a witness’s memory. Examples of this include leading questions, conversations with other witnesses, and media accounts of the event. Techniques used by police and prosecutors in an attempt to obtain information about a crime -- in the case of a witness, memory retrieval -- can influence whether this contamination occurs and to what extent. How questions are asked, the manner in which photographs of potential suspects are displayed and how line-ups are conducted can create subtle expectations for choosing a suspect, even when authorities are not intentionally trying to lead the witness. For instance, not telling the witness before viewing a photo display or a line-up that the suspect may not be included, may reinforce an assumption on the witness’s part that the suspect is indeed there and he needs to figure out which one it is. Any words or acts on the part of the authorities reinforcing the choices made by a witness will bolster the witness’s confidence regardless of whether the choice is itself accurate. Juries then perceive this witness confidence as a measure of the witness’ reliability. 

Another disturbing aspect of false eyewitness testimony is the reliance on jailhouse snitches who are provided incentives by the authorities to lie. The Center on Wrongful Convictions, a project of the Northeastern University School of Law, published a report in 2004 (4) that estimated up to 45% of wrongful convictions in capital cases were due to false testimony by those already incarcerated. 

This is not to say that all or even most people on death row are innocent.  But those who have examined the system know that it is rife with such paradoxes. Scott Turow, a lawyer and author who served on former Illinois governor George Ryan’s Commission on Capital Punishment, has noted that there are a confluence of factors within the system that tend to facilitate the conviction of innocent people in capital cases. The fact that the Supreme Court has mandated that the death penalty must be reserved for the worst of the worst, capital crimes usually involve acts that particularly motivate police, prosecutors, and juries to capture, convict and mete out the ultimate punishment in an attempt to restore security and moral order to a community: 

These are the crimes that create the greatest anxiety and passion in the community. It’s because of those anxieties that law enforcement wants to settle them. Still, it’s very easy for police and prosecutors to try to force their evidence to fit the wrong foot. It’s also very easy for juries confronted with a monstrous crime to essentially take the approach: “I’m not letting this guy go unless somebody proves to me he didn’t do it.” Even though that is exactly contradictory to what we’re supposed to do in our system. (5)

This leads me back to the moral questions underlying support for the death penalty and what vaguely began to trouble me 13 years ago. Many supporters of capital punishment insist that taking the life of the killer is the only way to compensate for the victims. In reality, this does not explain the use of the death penalty because, as Turow points out, in the vast majority of first-degree murder cases in America, the death penalty is not imposed due to the Supreme Court standard of rarity: 

So 49 times out of 50 there are a different combination of social interests that lead us to say to the victim’s families: “Look, we’re not going to do that here”; 49 times out of 50 we aren’t saying that the victims deserve it. More often than not, victims are used as a sort of fig leaf for our retributive impulses. When prosecutors want to justify their decision to seek the death penalty, then they truck out the victims, and point the cameras at them. (6)

The desire to reinforce the sanctity of life by punishing one who has violated that sanctity with such a severe penalty is understandable to some degree.  However, this rationale contains a built-in flaw. Anyone who is willing to look honestly at the facts of the criminal justice system outlined above must accept the inevitability of the state killing innocent people if they wish to hold on to this position. If they do, they are then forced into the irony of undermining their whole moral argument for supporting the death penalty in the first place: protecting and honoring innocent lives.  

Some may assert that the system can be reformed to decrease the chances of an innocent person being executed. Undoubtedly there are some reforms that may improve the system. But no matter how the high court has tried to tinker with the machinery of death over the years, refining it to make it rarer and procedural practices more exacting, a new set of problems has always cropped up that keeps that promised standard of restorative justice ever more elusive.

Since the state of Illinois’ Commission on Capital Punishment publicized the results of its findings in 2002, other states have declared moratoriums and impaneled investigative commissions on the issue. A study by the Santa Clara Law Review found that the system in California has many of the same problems as those outlined in Illinois. Last year, the California State Senate created a bipartisan body, the California Commission on the Fair Administration of Justice, to study the problem of wrongful conviction. The commission is expected to provide the results of its study and recommendations to the state legislature by the end of 2007.   

In the meantime, Assembly Bill 1121 would suspend executions until the commission reports its findings. AB 1121 will be heard in January of 2006 before the Public Safety Committee. (7)

Natylie Baldwin is a writer and activist living in the SF Bay Area. She is also a former editor and contributor to Newtopia Magazine. She can be reached at baldwinsznn@aol.com.

Related Articles

* Blood Feast: The Celebration of Ritual Murder in America by Mike Whitney
* Life on Death Row by Walter A. Davis

REFERENCES

1) “False Confessions: Scaring Suspects to Death” by Edwin Dobb. Amnesty Magazine.  

2) Ibid. 

3) “Criminal Law: Could This Happen to Your Spouse or Child” by Jeralyn E. Merritt, Esq. Truth in Justice. 

4) “The Snitch System: How Snitch Testimony Sent Randy Steidl and Other Innocent Americans to Death Row.”  A report from the Center on Wrongful Convictions. Winter 2004/2005.   

5) “Crime and the Ultimate Punishment” an interview of Scott Turow by Terrence McNally.  Alternet. November 18, 2003.  

6) Ibid. 

7) “Friends Committee on Legislation of California.” FCL Action Alerts, August 19, 2005.