PASSAGE OF THE DAY: A March 30, 2021, report by the National Registry of Exonerations found that, in 2020, 13 people were exonerated of alleged crimes committed because of false confessions. They had been serving sentences ranging from six months to life without possibility of parole, and one person was sentenced to death. As the report explained, “the pressures officers place on suspects to [confess] weigh[s] disproportionately on the vulnerable, including individuals with intellectual disabilities. These individuals are disadvantaged at every step of the custodial interrogation, and they face heightened risks of falsely confessing” by Voluntary, Compliant or Internalized False Confessions. To guard against false confessions, Missouri enacted a law in 2017 requiring custodial interrogations to be video / audio recorded. However, there are two loopholes in this law:
- the requirement to record the interrogation only applies to specified crimes, and
- no requirement exists to record the interrogation if the person voluntarily agrees to be questioned by law enforcement.
Both loopholes are detrimental to the ward when a law enforcement official is not trained in guardianship laws.
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COMMENTARY: : False confessions: Protecting the vulnerable," by Christopher Cross, published by The Crime Report on April 27, 2022. (Christopher Cross is the President & CEO of the Missouri Guardianship Association. He has been a legal guardian for thirteen years. He is published in Prison Legal News, the Kansas City Star, and has written and published various academic reports involving guardianships.)
GIST: "Why do people confess to crimes they didn’t commit? .
As a leading trainer of interrogation strategies wrote in The Crime Report last year, “[W]ith very few exceptions, false confessions are caused by the investigator engaging in coercive or inappropriate behavior.”
“Coercive or inappropriate behavior” can take many forms, but often those most vulnerable to coerced confessions are minors or persons incapacitated because of mental disabilities or other health issues.
Our justice system is supposed to protect such people by assigning them a “legal guardian” —a surrogate decision-maker who acts under the authority of the probate court or of state laws governing guardianships.
But ensuring that guardians adequately fulfill those responsibilities during a police interrogation is a challenge that’s often honored more in the breach than the observance.
I speak from personal experience.
I was assigned guardianship over an adult who has been judged totally incapacitated and legally disabled, and therefore incapable of receiving and evaluating the information he needs to give legal consent, represent his own interests, and protect his own health, safety, welfare and life.
The person appointed a guardian is called a “ward.” During a custodial interrogation of my adult ward, the investigator identified me on tape as the legal guardian. But he then ordered me to remain silent throughout the interrogation, to prevent me invoking my ward’s Miranda rights.
I didn’t pay attention to what I considered an illegal request. But when I invoked Miranda rights to protect my ward from self-incrimination, the investigator had me physically removed from the building, and continued the interrogation while my ward was in a state of emotional trauma.
In every respect, this violated the basic tenets of our justice system. Forensic guardianships, which entail wards who are at substantial risk of being questioned by law enforcement officials, are assiduously protected by the law; and they have been further reinforced by Supreme Court decisions.
In 1991, in County of Riverside v McLaughlin, the Court ruled that law enforcement officials cannot unduly delay an arraignment in order to give the investigator time to justify an arrest.
When law enforcement officials do not abide by guardianship laws, the ward is vulnerable to undue delays in his or her being arraigned.
These protections were further strengthened in 2000 when, in Preston v State, the Court affirmed that legal guardians have both “the duty and responsibility to make any and all decisions” involving important aspects of the ward’s life. When the ward is an adult, authorities are required to notify the guardian that an interrogation is about to take place.
Only the legal guardian, for example, has the right to waive a ward’s Miranda rights
So why is it than in so many jurisdictions, these basic protections are overlooked?
Abuse of Power
Many of the most egregious abuses of power occur because of a lack of information about guardianships among court and law enforcement officials.
And that’s aggravated by several major factors:
- The tendency and desire of law enforcement officials to control all variables in all situations leads them to interpret or misjudge an incapacitated or disabled suspect as being hostile, uncooperative—and probably guilty.
- The federal government’s Crisis Intervention Team (CIT) program fails to require law enforcement officials to abide by guardianship laws; and
- Few police academies provide educational training on legal guardianships.
Without awareness on the part of police of the duties of the guardian in custodial interrogations, the potential for abuses of power to occur and for constitutional rights to be violated is substantially increased.
In Missouri, where I serve as a guardian, the number of adults requiring a forensic guardianship has grown significantly over the past several years, according to a 2020 report by the Missouri Association of Public Administrators.
The lack of training is particularly telling in Missouri.
The Missouri Department of Public Safety actually prevents the Missouri Guardianship Association from applying to provide its Law Enforcement Systems Training (L.E.S.T.) in continuing education courses.
The potential for abuse is not limited to Missouri, of course.
A March 30, 2021, report by the National Registry of Exonerations found that, in 2020, 13 people were exonerated of alleged crimes committed because of false confessions. They had been serving sentences ranging from six months to life without possibility of parole, and one person was sentenced to death.
As the report explained, “the pressures officers place on suspects to [confess] weigh[s] disproportionately on the vulnerable, including individuals with intellectual disabilities. These individuals are disadvantaged at every step of the custodial interrogation, and they face heightened risks of falsely confessing[]” by Voluntary, Compliant or Internalized False Confessions.
To guard against false confessions, Missouri enacted a law in 2017 requiring custodial interrogations to be video / audio recorded.
However, there are two loopholes in this law:
- the requirement to record the interrogation only applies to specified crimes, and
- no requirement exists to record the interrogation if the person voluntarily agrees to be questioned by law enforcement.
Both loopholes are detrimental to the ward when a law enforcement official is not trained in guardianship laws.
The Need for Law Enforcement Training
Likewise, while Missouri recently enacted a law that permits a prosecuting or circuit attorney to file a motion with the trial court to exonerate the person, the Fifth Circuit Court of Appeals pointed out, for example, that the evidence must show that a confession of guilt was involuntary because of an underlying and compelling cause that is substantiated by qualifying expert testimony.
This too is problematic.
Missouri’s state law presupposes that law enforcement officials can violate laws governing guardianships and law enforcement conduct, on the premise that there is a post-conviction trial court mechanism to exonerate the ward.
But if the conviction is the result of a false confession in an interrogation that was not recorded, and a guardian was not present, it boils down to the word of the incapacitated ward versus the word of the law enforcement official.
It’s not hard to see how a wrongful conviction would be the most likely outcome.
The entire story can be read at:
PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy: Publisher: The Charles Smith Blog;
