Scholar, Judge, Expert for Sale

The prosecution’s expert witness at the Frye hearing conclusively opined that

according to FBI figures, there are 900,000 arrests per year which, over a 23-year period add up to 20 million. [the expert witness] divided this figure by 60, which was the number of confessions that Dr. Ofshe had identified as false in a 1996 article. From this, [the expert witness] concluded that the frequency of false confessions is one hundredth of one percent.
In other words, it’s a legal urban myth, such a far-fetched outlier, such a red-herring, such a stretch that no reasonable judge would ever let a reasonable jury consider such an outlandish idea.  Of course, the math makes no sense, since confessions aren’t involved in all 20 million arrests, and of those where they are involved, aren’t always contested. 

What sort of expert on false confessions would make such an absurd claim?

Paul Cassell

Former Scalia law clerk, prosecutor and later federal judge turned Utah law professor.  The  patron saint of victim’s rights and Volokh Conspirator.  That Paul Cassell.

This comes from a two-part post at  Appellate Squawk, usually biting and witty in its rending of the robes.  The posts are biting as always, but not quite as witty. In fact, they’re very serious.  The case was Adrian Thomas in Troy, New York, where a 25 year old was manipulated into confessing to the murder of his 4-month-old son. That there was no murder was of little concern.
There’s one little problem:  there was no head trauma.  No fractures, no abrasions, no nothing. Two leading medical specialists testified at trial that the baby died of natural causes. The medical records, beginning with the mother’s pregnancy complications and the baby’s premature birth, showed that he died of a systemic and chronic infection.

This didn’t stop the trial of Adrian Thomas from proceeding, with its videotaped confession.  The defense sought to introduce expert testimony of how the police interrogation methods induced the defendant to say whatever was necessary at the moment.  The court refused to allow the defense to call its witness, saying the jury could see the videotape and reach its own conclusion.  After all, scholar, judge, expert witness Paul Cassell said there was really no such thing as a false confession.

Cassell’s contribution to the truth-seeking process is his notion that nothing can be known about false confessions or their causes until we know how many there are. Just like nothing can be known about the flu until we know how many people have it. In the meantime, he wants to have videotaped confessions instead of Miranda warnings.  Needless to say,  there should be no expert testimony on the non-existent phenomenon of false confessions.

The trial judge swallowed this whole.

The basis upon which Paul Cassell was allowed to opine as an expert in false confessions seem simultaneously empty and full. How much more can one ask of an expert than to be endorsed as a scholar and former federal judge?  If he says he’s an expert, he must be, despite having absolutely no qualifications whatsoever to support his claim.

There is an occasional debate among law professors about selling one’s scholarly credentials, whether to the highest bidder or to further a personal agenda.  That Cassell has been a slavish ideologue in the fight for victims to be recognized before the crime is too well-known for dispute, but that it extends as far as flagrantly inserting himself in the war against the innocent is a new thing.

Will other scholars have anything to say about this?  Will the professoriate condemn their brother Cassell’s proffer of expertise as “no-such-thing-as-a-false-confession” expert?  We’ll see.

In the first part of the story, Appellate Squawk makes a point that I’ve argued for a long time, that the videotaping of confessions is not necessarily the panacea that so many on the criminal defense side believe it to be.  As this case shows, videotaping of only part of the interaction between cops and defendant provides the opportunity to conceal manipulative and coercive conduct, leaving the portion taped and presented to the jury making the police appear kindly and supportive.  It can be the coup de grace of false confession, conclusively proving the confession while conveniently concealing the coercion that led up to it.

Of course, had the defense expert, social psychologist and actual friggin expert on police interrogation techniques, Dr. Richard Ofshe, been allowed to testify, perhaps all of this would have been understood by the jury and the kindly confession videotape rejected for the sham it was. 

But scholar, judge and expert for sale, Paul Cassell, made sure that wouldn’t happen. And some say lawprofs have no impact on the lives of real people.

22 thoughts on “Scholar, Judge, Expert for Sale

  1. Tom Felding

    I beleive in this case, it is not a question of partial taping – the entire interrogation was videotaped. Nonetheless, the brief moment of the dramatic demo by the defendent outweighed the several hours of grinding and lying which preceded it. The appeals court saw the entire thing as well and said it is all well and good. Cassell might be an ass but we should probably blame the Warren court. They correctly recognized the problem but Miranda has turned out to be a poor remedy. May be there should be a mandatory chat with a lawyer before any confession.

  2. SHG

    There were many aspects of this case that went wrong, and reflect failings throughout the law and the system.  Fight the urge to over-simplify by pointing at “the real problem.” They’re all real problems. 

    While I’ve chosen to highlight certain aspects here (because it’s my blawg and I get to make the choice of what I write about), I hope that I’ve done so without suggesting that the other failings of the case are inconsequential.  They are not, and Appellate Squawk’s posts do an thorough and excellent job of covering them all.

  3. Don Thompson

    Video taping confessions is worse than worthless, it’s affirmatively misleading. At Tom notes, it’s only the videotaping of interrogations – the entire interrogation – that provides protection. The other contributor to this result is the judicial bias against defense expert testimony.

  4. SHG

    I intentionally avoid calling it “the interrogation” for the purpose of making it as clear as possible that every bit of the interaction between defendant and police, from the initial contact to the moment of the “confession” is part of the manipulation and coercion. It starts long before they stick the defendant in the windowless room with the video camera and kick the Reid Technique into high gear.

  5. Tom Felding

    Sure there are many components and steps. But that doesn’t mean we should talk about “real problem” associated with a specific component, does it?. If you are saying don’t drag it off topic from the focus of your post – your point is well taken.

  6. SHG

    My post is an adjunct to what Appellate Squawk already wrote, which is more comprehensive.  Since it’s not a matter of alerting others to all that went horribly wrong in the Adrian Thomas case, it allows me to focus in on a particular aspect of the case, which is my concern here.

    At the same time, if we’re going to take it up a step to the case as a whole, it seems to me that the case provides a laundry list of horribles, each of which is both a contributing factor in itself, but an individual evil that is worthy of condemnation.  Aside from the fact, as you’ve astutely noted, that my post has a limited focus, I am always reluctant to trivialize any serious problem by comparing it to “the real problem,” and suggest that a fix to one would allow us to ignore the rest.

  7. Alex Bunin

    As someone who has walked through a “special housing unit” at a prison with a bunch of judges, only to hear them opine, “Oh, this isn’t so bad,” I am sure even the most complete video will not assure that the audience will appreciate the coercive atmosphere.

  8. SHG

    Did you happen to notice that they never touch anything as they walk through, so they don’t get their hands dirty? And still they disinfect on the way out, just to be sure.

  9. JMS

    What I like about this is that Cassell has kind of set himself up as a meta-expert. “According to these numbers I doodled on the back of a matchbook, the area of this so-called expert’s expertise plain doesn’t exist!”

    It’s a neat trick! I haven’t been at this game long enough to know if there are Experts on Expertise, but if so, I plan to call Jon Hodgman next time the other side calls an expert I don’t like. He would at least wake up the jury.

  10. Chuck Weisselberg

    Paul Cassell has researched and written about Miranda, false confessions and interrogation issues for many years. It was his focus before he went on the bench and before he worked on victims’ issues. For a long time, Cassell was Miranda’s most prominent opponent in academia, arguing (among other things) that Miranda was not a constitutional decision. His amicus work with the Washington Law Foundation led to the 4th Circuit’s decision in Dickerson. When Clinton’s DOJ wouldn’t defend the statute in Dickerson, Cassell was asked to argue in support of the statute in the Supreme Court.

    More to the point of this post, Cassell has debated Richard Leo and Richard Ofshe about the incidence of false confessions and the significance of false confession exonerations. Leo and Ofshe argue that the incidence is unknown and unknowable, but the existence of a large number of proven false confessions should lead to caution and to reforms. Cassell has taken the position that there are few false confessions and he has tried to counter Leo and Ofshe’s examination of individual cases with false confessions. Cassell also co-authored a study of interrogations and confessions in Utah.

    I’m not defending Cassell’s conclusions, which a number of academics have attacked (including Stephen Schulhofer, Richard Leo, Richard Ofshe and even me). My point is just that Cassell isn’t new to this issue, and from your characterization of his testimony, it seems similar to what he has written about in the past.

  11. SHG

    This was a Frye hearing, not a jurisprudential symposium.  Cassell is a lawprof, not a sociologist, psychologist or any other -gist. He argues rhetoric, not for or against the substantive psychological (or any other scientific) basis for the factual occurrence of false confessions. His appearance in this case had nothing to do with advancing the scientific basis or lack thereof for existence or cause of false confessions, but to promote his juris-philosophical agenda, contrary to any scientific purpose. It’s like putting a preacher on the stand as an “expert” on the genetic development of Galapagos turtles.

    How dare he allow himself to appear as an expert at a Frye hearing. How dare the court accept him as such.

    I’m interested in many issues. I’ve written about many issues. I am by no stretch of the imagination qualified to testify as an expert as to most of them, and certainly not at a Frye hearing. Nor is Cassell.

  12. LTMC

    Cassell’s shockingly ignorant treatment of race and criminal justice, vis-a-vis his fawning over Heather MacDonald in 2008, ought to be enough to disqualify him from testifying as an expert on anything except his own incredibility. Equating conviction rates with propensity to commit crime is bush league: it has been debunked by so many legal scholars that its borderline intellectual malpractice for him to present MacDonald’s work seriously.

    Cassell’s comments on false confessions are equally spurious: saying we can’t know anything about false confession rates is reminiscent of Courtroom Creationists who, when presented with literally hundreds of peer-reviewed studies demonstrating the existence and validity of evolution, remained defiant and claimed the evidence “inconclusive.”

    I do not recall where I first encountered this phrase, but it seems relevant in Cassell’s case: “There are few things more insufferable than a well-spoken idiot.”

  13. Chuck Weisselberg

    I was responding to this part of your post: “That Cassell has been a slavish ideologue in the fight for victims to be recognized before the crime is too well-known for dispute, but that it extends as far as flagrantly inserting himself in the war against the innocent is a new thing.” My point was that it was not a new thing. With respect to police interrogation, Cassell has been an advocate in court as well as an academic for many years, though I had not heard of him participating in a Frye hearing.

  14. SHG

    I apologize for misunderstanding your reference. I was aware of his Miranda and victims rights positions, but not his past false confessions agenda.  Sorry, and thanks.

  15. Robert Hewes

    I was trained as an interrogator in the Army back in the early 90’s, and I find this story really troubling. In the Army, “interrogation” meant to get all of the actionable, usable information as possible from a PW. In law enforcement it seems to be quite the opposite — it’s mentally coercing a predetermined result from someone. Though the communication methods are similar, the end result is horrifyingly different.

  16. REvers

    I’ve always thought that all of the 200+ people who confessed to the Lindbergh baby kidnapping were guilty. Many thanks to Professor Cassell for proving they were.

  17. SHG

    And no innocent person was ever convicted either (till that damn DNA stuff came along and screwed everything up).

  18. Appellate Squawk

    Scott is welcome to all that intelligent, insightful commentary, but anything this funny should go on Appellate Squawk.

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