It’s only been a few weeks since the Appellate Division, 2d Department, reversed the conviction of Marty Tankleff. The centerpiece of the Tankleff conviction was his confession. The reversal, predicated upon subsequently discovered evidence that the murders of Marty’s parents was convicted by others, served to confirm one clear point: His confession was false. Yes he admitted the murders. No, the confession was not inviolate.
Yet, as reported in the New York Law Journal, Judge C. Randall Hinrichs, sitting in the same Suffolk County where Judge Braslow, the Tankleff judge, sits, has learned nothing.
Judge C. Randall Hinrichs of Suffolk County determined in People v. Crews, 2353A-06, that the testimony of Solomon Fulero, an Ohio psychologist, would not be helpful to the jury in the upcoming murder trial of Tracy Crews. Mr. Fulero is also a lawyer and community college professor who frequently testifies as an expert witness for the defense.
“[T]he Court is of the opinion that the evaluation of the truthfulness of a statement is a subject for which jurors may easily draw on their day-to-day experience, their common observation and their everyday knowledge,” Judge Hinrichs concluded.
There are few things that lawyers enjoy better than facile, superficially egalitarian pronouncements by a court that insidiously undermine a defense. Judge Hinrichs conclusion offers a certain appeal to those who suffer from the Dunning-Kruger Effect, having a simple answer to all question based upon their absolute certainty that whatever snaps in their mind from moment to moment reflects the totality of all human knowledge and experience. Others may not be as taken with the decision.
The prevalence of false confessions is a controversial issue in criminal justice circles. The Innocence Project at Benjamin N. Cardozo School of Law has reported that in 25 percent of DNA exoneration cases, the defendant “made incriminating statements or pleaded guilty, delivered outright confessions or pled guilty.”
If jurors were so darn good at this, or if jury’s worked nearly as well as their supporters contend, there would be no need for the Innocence Project. Unfortunately, there is a need for the Innocence Project, and a need to put an expert on the witness stand to explain how and why false confessions happen.
In the past, I’ve discussed the significance of the prosecution’s appeal to “common sense.” Does common sense tell you that a person does not confess to a murder that he didn’t commit? Of course it does. I would never do that. You would never do that. Who would do such a thing?
The problem is that we have never been subjected to the coercion and manipulation at the hands of well-trained police whose sole purpose is to obtain a confession. So this falls far outside of our life experience, and we cannot imagine how it could happen. No matter how good our faith in contemplating the arguments of the defense, our lack of bias is no match for placing ourselves into the shoes of the defendant. We plug the argument into the entirety of our life experience to see whether we can find a match. No match? Then we reject the argument.
I thought that the Court of Appeals decision in People v. LeGrand put this issue to rest. The Court held that it would be error to refuse to permit the defense to call an expert to explain to a jury how a false confession can happen. After so many years, and so many false confessions, the wall appeared to come down so that the defense could finally present the jury with an understanding other than its own.
Not in Suffolk County, however.
Judge Hinrichs referred to the recent decision of People v. LeGrand, 8 NY3d 449 (2007), in which the Court of Appeals found that judges may admit expert testimony about the reliability of eyewitness identification and that, in some cases, it would be an abuse of discretion to exclude that testimony.
But he noted the LeGrand Court held that the existence of sufficient corroborating evidence could lead to the disallowance of expert testimony. The judge said the guilty pleas of Mr. Crews’ two co-defendants and their agreement to testify against him provided “ample” corroboration to warrant excluding Mr. Fulero’s testimony. Moreover, the judge said he had been influenced by the fact that Mr. Crews was 34 years old at the time of his confession.
And we all know that if someone pleads guilty, it would never happen as a “plea of convenience” to avoid the potential of spending the rest of your life in prison for a crime you didn’t commit, or an allocution implicating a co-defendant at the insistence of the prosecution or you don’t get the deal. It’s unclear to me what Crews’ age has to do with anything. Are 34 year old’s immune from coercion?
The courts are edging closer and closer to recognizing that it’s a bad thing to convict innocent people, and that confessions by their nature are some of the most problematic evidence around. But this case reminds us that we still have a way to go before the epiphany at the Court of Appeals in LeGrand or at the Second Department in Tankleff filters its way down to the ground level in Suffolk County. The fight isn’t over yet.
Update: Upon the excellent recommendation of Kathleen, a little bit of detail about Judge Hinrichs. He was a Suffolk County ADA from 1982 until 2001, when he assumed the bench. And that sums up the grand total of Judge Hinrichs’ professional experience. If anyone has info on reversal rates (noting that he would be in the Second Department), please let me know.