You Have the Right to Remain Innocent

by James Duane

  31Bond, 134 S. Ct. 2077, 2091.

  32Bond, 134 S. Ct. 2077 at 2101 (Scalia, J., concurring).

  33Yates v. United States, 135 S. Ct. 1074 (2015). When Yates’s vessel was boarded by a state conservation officer, federal regulations required fishermen to immediately release red grouper less than 20 inches long. The agent testified that he found six dozen fish on board barely below that length, although not one was shorter than 18.75 inches. Yates was indicted and tried in federal court for disposing of the fish before he got to dock, despite the fact that the minimum length for Gulf red grouper had been lowered to 18 inches by the time he was charged!

  34Id. at 1101 (Kagan, J., dissenting).

  35Id. at 1100–1101 (Kagan, J., dissenting).

  36Moran v. Burbine, 475 U.S. 412 (1986).

  37For numerous examples of such police deception, see Miriam Gohara, “A Lie for a Lie: False Confessions and the Case for Reconsidering the Legality of Deceptive Interrogation Techniques,” Fordham Urban Law Journal 33 (2006): 791, 801–3.

  38Fox v. Hayes, 600 F.3d 819, 828 (7th Cir. 2010).

  39David Boeri, “How a Teen’s Coerced Confession Set Her Free,”All Things Considered, NPR, December 30, 2011, http://www.npr.org/2012/01/02/144489360/how-a-teens-coerced-confession-set-her-free.

  40Commonwealth v. Tremblay, 460 Mass. 199 (2011).

  41Harris v. State, 2008 WL 2736891 (Texas Ct. App. July 2008).

  42United States v. Flemmi, 225 F.3d 78, 91 (1st Cir. 2000).

  43People v. Alexander, 51 A.D.3d 1380, 857 N.Y.S.2d 418 (N.Y. App. Div. 2008).

  44United States v. Turner, 674 F.3d 420 (5th Cir. 2012).

  45People v. Siordia, 2009 WL 851057 (Cal. App. 2009).

  46Weaver v. State, 2008 WL 2548807 (Tex. App. 2008).

  47United States v. Montgomery, 555 F.3d 623 (7th Cir. 2009).

  48Bolder v. Armontrout, 921 F.2d 1359 (8th Cir. 1990).

  49All of the following facts are taken from the opinion in People v. Rubio, 911 N.E.2d 1216 (Ill. App. 2009). That opinion was reversed by the Illinois Supreme Court, which directed the lower appellate court to consider the case one more time. But after doing so, the court reached the same conclusion and once again affirmed Rubio’s conviction and sentence in an unpublished opinion.

  50United States v. Ford, 761 F.3d 641, 651–52 (6th Cir. 2014).

  51For examples of other very recent cases where the courts did the same thing—allowing the prosecutor and his witnesses to tell the jury only about the parts of the defendant’s statement that might help result in a conviction, while not allowing the defense lawyers to ask about the other parts of the statement in which the suspect tried to deny his guilt or explain his defense—see United States v. Liera-Morales, 759 F.3d 1105 (9th Cir. 2014), and United States v. Dotson, 715 F.3d 576 (6th Cir. 2013).

  52Saul M. Kassin, “On the Psychology of Confessions: Does Innocence Put Innocents at Risk?” American Psychologist 60, no. 3 (2005): 215–28.

  53Id. at 224.

  54Sessoms v. Grounds, 776 F.3d 615, 631 (9th Cir. 2015) (dissenting opinion). See Saul M. Kassin et al., “Police-Induced Confessions: Risk Factors and Recommendations,” Law and Human Behavior 34, no. 3 (2009): 3–5; Brandon L. Garrett, “Judging Innocence,” Columbia Law Review 108, no. 55 (2008): 88–89.

  55Garrett, “Contaminated Confessions,” Convicting the Innocent, 38.

  56David K. Shipler, “Why Do Innocent People Confess?” Sunday Review, New York Times, February 23, 2012.

  57“Alleged Australian Murder Victim Found Alive,” Guardian, April 11, 2003.

  58John Schwartz, “Confessing to Crime, but Innocent,” New York Times, September 13, 2010.

  59Danielle E. Chojnacki, Michael D. Cicchini, and Lawrence T. White, “An Empirical Basis for the Admission of Expert Testimony on False Confessions,” Arizona State Law Journal 40 (Spring 2008): 1, 17–18.

  60Samuel R. Gross, Kristen Jacoby, Daniel J. Matheson, Nicholas Montgomery, and Sujata Patil, “Exonerations in the United States 1989 through 2003,” Journal of Criminal Law and Criminology 95, no. 2 (2005): 523.

  61The entire world got an unusually dramatic illustration of this phenomenon in April 2015 when the city of Baltimore, Maryland, erupted in riotous violence after a young man named Freddie Gray was killed while in police custody. Amid otherwise peaceful protests, a few angry people caused massive property damage. The next day, Baltimore Mayor Stephanie Rawlings-Blake spoke at a press conference in a carefully measured tone of voice, choosing her words carefully as she proceeded to say the exact opposite of what she meant: “While we tried to make sure that they were protected from the cars and the other, you know, things that were going on, we also gave those who wished to destroy space to do that as well.” (See https://www.youtube.com/watch?v=9_5KQC7k8Lc.) Yes, the elected Mayor of a great American city mistakenly asserted that her office had intentionally provided space for people to “destroy” private property. The following day she corrected herself: she had meant to say that the city had set aside a safe place for people who wanted to protest in peace, and the rioters had taken advantage of that civic right. But that is not what she said.

  62Jennifer Thompson-Cannino and Ronald Cotton, Picking Cotton: Our Memoir of Injustice and Redemption, with Erin Torneo (New York: St. Martin’s Press, 2009).

  63Psychological studies have confirmed that even a mistaken witness who is presented with evidence that seemingly confirms his or her identification of a suspect will, for that reason, naturally become much more confident in that identification and therefore a more convincing witness at trial. John Gibeaut, “Confidence Boost: Study Shows Police Can Convince Eyewitnesses That They Identified the Right Suspect,” ABA Journal 83 (May 1997): 26.

  64Under the federal statute 18 U.S.C. sec. 1001, it is a felony to make a false statement concerning “any matter within the jurisdiction of any department or agency of the United States,” but the law is not limited to statements made to federal agents. It also applies to allegedly false statements made to state and local government agents, as long as they worked for a state agency which was involved in the implementation of a federal regulation or received federal funding—which these days includes just about every state agency—even if you did not know about their connection to the federal government. United States v. Wright, 988 F.2d 1036 (10th Cir. 1993); United States v. Herring, 916 F.2d 1543 (11th Cir. 1990).

  65Ferguson v. Commonwealth, 52 Va. App. 324, 663 S.E.2d 505 (Va. App. 2008).

  66Cavazos v. Smith, 132 S. Ct. 2 (2011).

  67Tim McGlone, “Earl Ruffin, the Wrong Man,” Virginian-Pilot, Feb. 8, 2004.

  68All of these details about Ruffin’s trial are taken from the official transcript of his trial, a copy of which is in my possession.

  69Garrett, “Contaminated Confessions,” Convicting the Innocent, 32.

  70Garrett, “Eyewitness Misidentifications,” Convicting the Innocent, 48.

  71“The Causes of Wrongful Conviction,” Innocence Project, accessed May 13, 2016, http://www.innocenceproject.org/causes-wrongful-conviction.

  72Mark Hansen, “Crimes in the Lab,” ABA Journal 99, no. 9 (September 2013): 46.

  73Id. at 46.

  74“Evidence of Injustice,” 60 Minutes, last modified September 12, 2008, http://www.cbsnews.com/news/evidence-of-injustice/.

  75Spencer S. Hsu, “FBI Admits Flaws in Hair Analysis Over Decades,” Washington Post, April 18, 2015.

  76Hansen, “Crimes in the Lab,” 47.

  77Garrett, “Flawed Forensics,” Convicting the Innocent, 89.

  78Garrett, “Flawed Forensics,” Convicting the Innocent, 9.

  79A criminal conviction may be based, in part, on police testimony that the defendant seemed unusually nervous, Morton v. State, 283 P.3d 249 (Kan. App. 2012), or unusually calm; Avent v. Commonwealth, 279 Va. 175, 688 S.E.2d 244 (2010).

  80Ohio v. Reiner, 532 U.S. 17, 20 (2001) (emphasis added; citations and internal punctuation omitted).<
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  81Garrett, Convicting the Innocent, 72–74.

  82This is a fair paraphrase of the central thrust of the cross-examination. I have a copy of the trial transcript in my possession.

  83Josh Levs, “Innocent Man: How Inmate Michael Morton Lost 25 Years of His Life,” CNN News, last modified December 4, 2013, http://www.cnn.com/2013/12/04/justice/exonerated-prisoner-update-michael-morton/.

  84These details about the evidence the police learned from Morton are all taken from the opinion of the Texas Court of Appeals back in 1988, explaining why it was satisfied that he had a fair trial and was fairly convicted based on the evidence against him. Morton v. State of Texas, 761 S.W.2d 876 (Tex. App. 1988).

  85Martha Neil, “Death-Row Inmate Released After 30 Years; Evidence Shows He Was Elsewhere at Time of Murder,” ABA Journal, March 11, 2014.

  86These details about the evidence the police learned from Ford, and from the leads he gave them, are all taken from the opinion of the Supreme Court of Louisiana back in 1986, explaining why it was satisfied that he had a fair trial and was fairly convicted based on the evidence against him. State of Louisiana v. Ford, 489 S.2d 1250 (La. 1986).

  87Stewart Maclean, “Engaged Couple Discover They Are Brother and Sister When Their Parents Meet Just before Wedding,” Daily Mail, November 3, 2011, http://www.dailymail.co.uk/news/article-2057081/Engaged-couple-discover-brother-sister-parents-meet-days-wedding.html.

  88“Parted-At-Birth Twins ‘Married,’” BBC News, last modified January 11, 2008, http://news.bbc.co.uk/2/hi/7182817.stm.

  89Eliott C. McLaughlin, “Sudden Sisters: Tulane Pals Learn They Share Sperm-Donor Dad,” CNN, last modified January 24, 2014, http://www.cnn.com/2014/01/24/living/tulane-sperm-donor-sisters/.

  90People of the State of New York v. Calabria, 3 N.Y.3d 80, 83 (2004).

  91Garrett, “Contaminated Confessions,” Convicting the Innocent, 18–19.

  PART II

  1United States v. Hale, 422 U.S. 171, 177, 180 (1975) (internal punctuation omitted).

  2Carter v. Kentucky, 450 U.S. 288, 299–300 (1981) (emphasis added).

  3Miranda v. Arizona, 384 U.S. 436, 468 n.37 (1966).

  4More than any current or recent justice on the Supreme Court of the United States, Justice Antonin Scalia was an uncommonly passionate and uncompromising defender of the most basic individual liberties that are explicitly enumerated in the Bill of Rights, including in cases in which those rights are asserted by the most unpopular and politically powerless members of society. This has been true in contexts as diverse as the First Amendment right to free expression of unpopular views, Hill v. Colorado, 530 U.S. 703, 741 (2000) (Scalia, J., dissenting); Texas v. Johnson, 491 U.S. 397 (1989), the Second Amendment right to bear arms, District of Columbia v. Heller, 554 U.S. 570 (2008), the Fourth Amendment right to be free of unreasonable warrantless searches, United States v. Jones, 132 S. Ct. 945 (2012); Kyllo v. United States, 533 U.S. 27 (2001); Arizona v. Hicks, 480 U.S. 321 (1987), the Sixth Amendment right of the accused to a trial by jury in a criminal case, Blakely v. Washington, 542 U.S. 296 (2004), the Sixth Amendment right of the accused to demand that the witnesses against him be brought to the courthouse, Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009); Giles v. California, 554 U.S. 353 (2008); Crawford v. Washington, 541 U.S. 36 (2004), the Sixth Amendment right to demand face-to-face confrontation with those witnesses who are brought to court, Coy v. Iowa, 487 U.S. 1012 (1988), and the Sixth Amendment right of a criminal defendant to counsel of his own choice, United States v. Gonzalez-Lopez, 548 U.S. 140 (2006). Justice Scalia once stated that, even though he was “a law and order conservative” in his personal views, he should be “a pinup for the criminal defense bar!” David Lat, “Justice Scalia Goes to Wesleyan,” Above the Law, March 9, 2012, http://abovethelaw.com/2012/03/justice-scalia-goes-to-wesleyan/2/. That was entirely correct, with the single sorry exception of his views concerning the Fifth Amendment privilege against self-incrimination.

  5Brogan v. United States, 522 U.S. 398, 404 (1998).

  6Maryland v. Shatzer, 559 U.S. 98, 108 (2010); Montejo v. Louisiana, 556 U.S. 778, 796 (2009); McNeil v. Wisconsin, 501 U.S. 171, 181 (1991).

  7Mitchell v. United States, 526 U.S. 314, 332 (1999) (dissenting opinion).

  8John H. Blume, “The Dilemma of the Criminal Defendant with a Prior Record—Lessons from the Wrongfully Convicted,” Journal of Empirical Legal Studies 5, no. 3 (2008): 477, 489–90.

  9Salinas v. Texas, 133 S. Ct. 2174 (2013).

  10“Statement by the President and Attorney General Eric Holder,” Whitehouse.gov, September 25, 2014, https://www.whitehouse.gov/the-press-office/2014/09/25/statement-president-and-attorney-general-eric-holder.

  11Glossip v. Gross, 135 S. Ct. 2726, 2749 (2015) (concurring opinion).

  12Jacob Gershman, “Sotomayor Regales Law School Students in Brooklyn,” Wall Street Journal (April 8, 2016).

  13At the Aspen Ideas Festival in 2013, three years after taking her seat on the Supreme Court, former Solicitor General Kagan confessed that “the great perk of the job is that I haven’t been through [airport] security in three years. I once had to do it in the last three years, you know, I was on personal travel and I didn’t inform the Marshals. I couldn’t remember how, really. It’s like, were you supposed to take off your shoes?” “Justice Elena Kagan at the Aspen Ideas Festival,” YouTube video, 31:43, from a talk at the Aspen Ideas Festival on June 29, 2013, posted by “The Aspen Institute,” June 29, 2013, https://www.youtube.com/watch?v=DC_PVDsYK9g.

  14Miranda, 384 U.S. 436, 468 n.37.

  15Berghuis v. Thompkins, 560 U.S. 370 (2010).

  16United States v. Brandt, 546 F.3d 912 (7th Cir. 2008).

  17Debra Cassens Weiss, “Federal Employee Is Indicted for Alleged Lies About Confederate Flag Picture in Workplace Incident,” ABA Journal, October 21, 2015.

  18Afraid to take that chance, she more recently pled guilty to one of the charges, thus reducing her possible prison sentence to five years. Debra Cassens Weiss, “Ex-Federal Worker Faces Possible 5-Year Sentence for Lies about Workplace Confederate Flag Incident,” ABA Journal, December 28, 2015.

  19Brogan v. United States, 522 U.S. 398, 408 (1998) (concurring opinion).

  20Quin Hillyer, “Ninja Bureaucrats on the Loose: Unfair Laws Are Being Enforced at Gunpoint,” Washington Times, June 7, 2010; see also George F. Will, “George Will: Blowing the Whistle on Leviathan,” Washington Post, July 27, 2012; “Armed EPA Raid in Alaska Sheds Light on 70 Fed Agencies with Armed Divisions,” FOX News, September 14, 2013, http://www.foxnews.com/politics/2013/09/14/armed-epa-agents-in-alaska-shed-light-on-70-fed-agencies-with-armed-divisions.html.

  21John Roberts, “Gibson Guitar Case Drags On with No Sign of Criminal Charges,” FOX News, April 12, 2012, http://www.foxnews.com/us/2012/04/12/gibson-guitar-case-drags-on-with-no-sign-criminal-charges.html; Bill Frezza, “Lumber Union Protectionists Incited SWAT Raid on My Factory, Says Gibson Guitar CEO,” Forbes, May 26, 2014; James R. Hagerty and Kris Maher, “Gibson Guitar Wails on Federal Raid Over Wood,” Wall Street Journal, September 1, 2011.

  22John R. Emshwiller and Gary Fields, “For Feds, ‘Lying’ Is a Handy Charge,” Wall Street Journal, April 9, 2012; see also George F. Will, “George Will: Blowing the Whistle on Leviathan,” Washington Post, July 27, 2012.

  23United States v. Long, 721 F.3d 920 (8th Cir. 2013).

  PART III

  1Maura Dolan, “Boy’s Murder Conviction Sharpens Debate on Whether Juveniles Are Fit to Waive Rights,” Los Angeles Times, November 29, 2015.

  2United States v. Okatan, 728 F.3d 111 (2d Cir. 2013). See also State of Maine v. Lovejoy, 89 A.3d 1066 (2014).

  3Davis v. United States, 512 U.S. 452, 455 (1994) (“Maybe I should talk to a lawyer”); United States v. Younger, 398 F.3d 1179, 1187 (9th Cir. 2005) (“[B]ut, excuse me, if I am right, I can have a lawyer present through all this, right?”); Clark v. Murphy, 331 F.3d 1062, 1065 (9th Cir. 2003) (“I think I
would like to talk to a lawyer”); Dormire v. Wilkinson, 249 F.3d 801, 803 (8th Cir. 2001) (“Could I call my lawyer?”); Burket v. Angelone, 208 F.3d 172, 195 (4th Cir. 2000) (“I think I need a lawyer.”); United States v. Doe, 170 F.3d 1162, 1166 (9th Cir. 1999) (“What time will I see a lawyer?”); Diaz v. Senkowski, 76 F.3d 61, 63–65 (2d Cir. 1996) (“I think I want a lawyer”); Lord v. Duckworth, 29 F.3d 1216, 1218–21 (7th Cir. 1994) (“I can’t afford a lawyer but is there anyway [sic] I can get one?”); United States v. Ogbuehi, 18 F.3d 807, 813–14 (9th Cir. 1994) (“Do you think I need a lawyer?”).

  4Sessoms v. Grounds, 776 F.3d 615 (9th Cir. 2015).

  ABOUT THE AUTHOR

  James J. Duane is a professor at Regent Law School in Virginia Beach, Virginia, where he has received the Faculty Excellence Award three times. Duane has been interviewed about legal matters on television and radio, including National Public Radio’s All Things Considered, and has testified before the Advisory Committee of the United States Judicial Conference on the Federal Rules of Evidence. He is the coauthor of Federal Rules of Evidence: Rules, Legislative History, Commentary and Authority and is a member of the panel of academic contributors to Black’s Law Dictionary. He is a graduate of Harvard College and the Harvard Law School.