July 23, 2014

How to Coerce a Confession (Amateur Edition)

Many times before I've written about false confessions and how police obtain them.  They're professionals, after all, and have at their disposal a frightening array of psychological and legal tricks that make such things possible.  But it's easier than that to force someone into making an untrue statement, as a recent case from Texas (highlighted by Radley Balko) shows.

Alfred Brown was a suspect in the murder of a Houston police officer.  The grand jury investigating the case brought before it Ericka Dockery, who had been Brown's girlfriend for about six months.  She told the grand jury that Brown was asleep on her couch when investigators thought he was meeting with other suspects.  But the grand jury didn't believe her and, by the time trial came around, Dockery was the state's star witness.

What happened - which we know only thanks to the fortuitous release of a usually secret grand jury transcript - is that Dockery was beaten down emotionally to the point where she did what most people who give false confessions do: she told her inquisitors what they wanted to hear.

Naturally, they suggested she was lying, asking the prosecutor about the penalty for perjury, before going on:
'I'm just trying to answer all your questions to the best of my ability,' Dockery says.
A bit later, a female juror asks pointedly: 'What are you protecting him from?'
'I'm not protecting him from anything. No ma'am. I wouldn't dare do that,' Dockery eventually responds. As [prosecutor] Rizzo and the grand jurors parse Dockery's every word and challenge each statement, she complains they're confusing her.
'No, we're not confusing you,' a grand juror says. 'We just want to find out the truth.'
But things get really nasty when the grand jurors raise the spectre of Dockery's children being taken away if she doesn't tell the "truth" they seek:
When the grand jury returns, the foreman says the members are not convinced by Dockery's story and 'wanted to express our concern' for her children if she doesn't come clean.
'That's why we're really pulling this testimony,' the foreman tells her.
The foreman adds that if the evidence shows she's perjuring herself 'then you know the kids are going to be taken by Child Protective Services, and you're going to the penitentiary and you won't see your kids for a long time.'
That was the crack in the wall, which the grand jurors then exploited with the flair of a seasoned attorney locked in cross examination of a hostile witness, with admonishments to "[t]hink about your kids, darling," and that "what we're concerned about here, is your kids."  Eventually, not only did Dockery recant Brown's alibi, she admitted making a call to another one of the suspects.  One grand juror even said she thought Dockery was in on the murder itself.

As a reward for her truthiness, Dockery was charged with perjury, anyway.  She was kept in jail for 120 days, released only when she agreed to give more evidence against Brown (she even had to check in with a detective every week).  Once she testified and Brown was convicted and sent to death row, Dockery's perjury charge evaporated and she went on with her life.

What makes this situation particularly repugnant, is, as Balko explains, grand juries aren't supposed to work this way:
Grand juries are supposed to protect us from false allegations, but the old saying that prosecutors could get a grand jury to 'indict a ham sandwich' reflects the reality that most fail on that front. Instead, as this study from the Cato Institute explains, they’re often used to harass and intimidate.
Keep in mind that the traditional rules of evidence don't apply in grand juries and witnesses don't have a right to have counsel with them while testifying.  In addition, it's an entirely one-sided affair, as there is no opposing counsel to try and keep things in line.  There's not even a judge - the prosecutor runs the show.

By the way, remember that phone call that Dockery said Brown made from her house originally?  Balko again (with my emphasis):
seven years later, a phone record showed up proving that Brown had called Dockery from her apartment on the morning of the murders, supporting his story — and hers, before she was pressured to change it. That important bit of exculpatory evidence was found in the garage of a Houston homicide detective. Brown is still waiting to learn if he’ll get a new trial.
It's perhaps not surprising that grand jurors, regular citizens who get pulled into doing this kind of duty, start acting like cops or prosecutors in pursuit of convictions over all else.  After all, if the cops don't have play by the rules, why should they?

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