What’s Wrong With “Making A Murderer”?

Making A Murderer is generating huge buzz on social media; dual petitions calling for Steven Avery’s exoneration have garnered more than 600,000 signatures to date. But after slogging through the 10-hour Netflix “documentary,” I was left feeling disturbed by the drama’s narrative and premises. Here's why:

1. The narrative is grossly misleading.

The hook to this story is protagonist Steven Avery’s prior exoneration: He served 18 years in prison for a rape of which he was ultimately exonerated by DNA evidence; just three years after his release, he was arrested for the unrelated murder and mutilation of another young woman in rural Manitowoc County, Wisconsin.

It’s an intriguing hook. But others – including the superb podcasters at Radiolab in 2013 – had already mined it. So filmmakers Moira Demos and Laura Ricciardi went for a different twist: Avery was innocent, framed by corrupt police whose reputations were tarnished by the wrongful conviction scandal.

Viewers are treated to interminable audio clips of the convicted killer proclaiming his innocence and whining about the injustice of it all. With its sympathetic focus on Avery and his socially marginal family, the documentary excludes much of the hard evidence pointing to Avery.

Perhaps the most blatant example of misinformation is the portrayal of Avery and his victim as strangers. In fact, the evidence presented at trial suggested that Avery not only knew Teresa Halbach, a photographer for Auto Trader magazine, but was targeting her. After a photo assignment at his family's auto salvage yard in which he greeted her wearing only a towel, she complained to her bosses that she was “creeped out” by him. Yet he continued to call and ask for her to be sent back out. Phone records revealed that on the day of her murder, he repeatedly called her cell phone, using *67 to block his ID. Not only was her cremated body found in his burn pit just a few steps from his trailer, but two separate witnesses testified they had seen Avery putting items into a barrel of his from which police later recovered her incinerated cell phone and camera. Avery's nephew also told police he had helped Avery hide the victim's vehicle in the salvage yard, and DNA evidence of Avery's sweat under the hood corroborated his account.

This brief list is not exhaustive; there's lots more inculpatory evidence that the series omits or glosses over.

2. It lionizes a sexual predator.

There are plenty of sympathetic characters in prison. A great many of them are unquestionably guilty. Steven Avery – innocent or guilty – is not one of them. He comes across as shallow, callous and self-absorbed, fitting the part of a cold and calculating predator.

Prisoners who served time with him during his first bid confirmed that he was not a nice guy. They told investigators that he showed them diagrams of a torture chamber he planned to build when he was released, so that he could "torture and rape and murder young women.”

There is further evidence of tremendous rage toward women. While in prison, he threatened to mutilate and kill his former wife. And despite his exoneration in the original rape for which he was convicted, prosecutors presented evidence in a pretrial affidavit of two other rapes of girls and women for which he was never prosecuted. There are also allegations that he sexually molested child relatives, including his codefendant and nephew, Brendan Dassey.

Perhaps most ominously, just three weeks before Halbach’s murder, he bought a set of leg irons and handcuffs, suggesting that the crime was premeditated and elaborately planned.

It is only if we know this background information -- excluded from the Netflix series -- that we can make proper sense of the trial judge’s admonition to Avery at his sentencing hearing:

“You are probably the most dangerous individual ever to set foot in this courtroom.”

3. Journalistic bias of this magnitude is unethical.

Filmmakers Laura Ricciardi and Moira Demos

In several drawn-out scenes, the filmmakers depict the TV news crews covering the trial as bottom-feeding hyenas, lacking any compassion or mercy as they circle and nip at the heels of the beleaguered Avery clan.

This is a clever cinematic device. It imparts the illusion that the documentarians are above the fray, more neutral and trustworthy than the media rabble. 

In reality, they are no less superficial. We get no greater clarity, and certainly no deeper analysis. The difference is merely one of perspective. Lengthy scenes in the Avery kitchen, watching Steven's mother Dolores prepare and eat her lunch, emphasize the one-sidedness of the series: Demos and Ricciardi are essentially mouthpieces for Steven Avery.

It’s not that police do not lie, or plant evidence. They do it all the time. So it's certainly possible that police planted the victim's car key in Avery’s bedroom, as the Averys claim. But framing Avery would have required much more. Police would have had to know the location of Halbach's body in order to move it to Avery's burn pit. They would have had to plant Avery's sweat under the hood of Halbach's car, where his nephew's account predicted it would be. All told, this convoluted conspiracy theory stretches credulity.

Ironically, while the filmmakers castigate police for going after Avery’s nephew (instead, they cast unsupported aspersions on the victim's male friends and relatives), Avery and his defense team had no such compunctions. Their alternate suspect list included the boy, along with other male members of the Avery clan.

Some observers, such as journalist and private investigator Ann Brocklehurst, imply that business interests may have contributed to this over-solicitude toward the Averys:

“Ma and Pa Avery are portrayed lovingly as salt-of-the-earth types. They’re never asked how they managed to raise three sons with such a long and documented history of violence.... [I]f the filmmakers had decided one of the brothers, nephews or brother-in-law likely did it, Ma and Pa might have pulled right out of the multi-year film project and left the directors empty-handed. A Shakespearian or Faulkneresque tale of a dysfunctional and dangerous family is of no use to anyone if you don’t have the legal rights to tell it.”

Journalists’ code of ethics warns reporters not to distort either facts or context, and to take special care to avoid misrepresentation or oversimplification. Intentionally or not, Demos and Ricciardi clearly violated this standard.

4. “Innocence porn” exceptionalizes criminal justice problems.

The trope of the wrongfully convicted is a time-honored sub-genre of true crime. New Yorker writer Kathryn Shultz traces it back to the late 1880s, with a popular magazine column called “The Court of Last Resort” by criminal defense lawyer turned author Erle Stanley Gardner, better known for his Perry Mason detective series. As Shultz notes, recent films and TV series in this genre have been quite successful in getting criminal cases reopened and convictions overturned: 

“Although it subsequently faded from memory, 'The Court of Last Resort' stands as the progenitor of one of today’s most popular true-crime subgenres, in which reporters, dissatisfied with the outcome of a criminal case, conduct their own extrajudicial investigations. Until recently, the standout representatives of this form were 'The Thin Blue Line,' a 1988 Errol Morris documentary about Randall Dale Adams, who was sentenced to death for the 1976 murder of a police officer; 'Paradise Lost,' a series of documentaries by Joe Berlinger and Bruce Sinofsky about three teen-agers found guilty of murdering three second-grade boys in West Memphis in 1993; and 'The Staircase,' a television miniseries by Jean-Xavier de Lestrade about the novelist Michael Peterson, found guilty of murdering his wife in 2001. Peterson has been granted a new trial. Randall Dale Adams was exonerated a year after 'The Thin Blue Line' was released. Shortly before the final 'Paradise Lost' documentary was completed, in 2011, all three of its subjects were freed from prison on the basis of DNA evidence.”

Last year’s NPR  podcast series, Serial, probing the case of a young man named Adnan Syed who had been convicted of killing his former high school girlfriend, became an overnight sensation. (And, guess what: A judge has just granted a motion for a new post-conviction review of the evidence in that case.) What with the popular success of Making A Murderer, more such cultural events can be anticipated.

But while documentaries like Serial or Making A Murderer may seem progressive in shining a spotlight on the legal system and exposing flaws therein, they may actually further a narrative of exceptionalism. In other words, miscarriages of justice are rare events caused not by systemic problems, but by ___ (fill in the blank: corrupt police, shyster attorneys, bungled evidence handling or analysis, etc.).

And only the innocents -- the exceptions to the rule -- are worthy of attention. 

5. The nephew got second billing.

Instead of hanging their tale on the threadbare hook of Avery’s prior exoneration, the filmmakers could have delved more deeply into the routine misfiring of the legal system by centralizing Avery’s nephew and codefendant, 16-year-old Brendan Dassey.

Brendan Dassey, the 16-year-old nephew

Like his uncle, Dassey may very well be guilty. But in his case, neither innocence nor deliberate corruption is essential to the narrative. Guilty or innocent, framed or not, the manner of his prosecution was rotten to the core, illustrating more common and systemic flaws in the criminal justice system.

“Innocent people don’t confess,” prosecutor Ken Kratz told the jury.

That false gospel went unchallenged because – for reasons never explained in the series – the juvenile’s defense team chose not to call a confession expert, who could have dissected Massey’s statements and explained to the jury how the detectives’ skillful manipulations produced a potentially unreliable confession.

This was a boy with a low IQ and limited education, who was interviewed by detectives on multiple occasions, for hours and hours on end, without either his mother or his attorney present. He was easily confused and misled into believing that if he confessed, all would be forgiven and he would go home. His statements were contaminated when police fed him facts, which he then regurgitated. 

Private investigator Michael O'Kelly

Dassey also had the misfortune to be initially represented by an unethical attorney who decided early on that Dassey was guilty, ignoring the boy’s protestations to the contrary. The attorney, Len Kachinsky, in turn hired a private investigator with highly confused loyalties. Indeed, the PI wrote a eugenics-laced email to the defense attorney revealing his unabashed antipathy toward his client's family:

“This [family] is truly where the devil resides in comfort. I can find no good in any member. These people are pure evil.... We need to end the gene pool here.”

Together, the loyalty-challenged attorney and investigator brow-beat a detailed confession from their client, which they promptly turned over to police. Although both the attorney and his investigator were removed from the case before trial, neither suffered any official sanction for their betrayal of their duties, or the damage caused to Dassey's case.

6. The entertainment spectacle has produced a destructive backlash.

In perhaps the most poignant moment in the series, defense attorney Dean Strang -- the show’s moral compass -- critiques the “unwarranted certitude” rampant within the criminal justice system, with everyone from police and prosecutors to defense lawyers, judges and jurors far too convinced that they are privy to The Truth.

Across the board, he mourned, the system suffers from “a tragic lack of humility.”

Steven Avery with rape victim Penny Beerntsen

Unfortunately, the filmmakers fell into that very same trap. It was apparent to many that they had naively embarked on their 10-year project wearing blinders. Penny Beerntsen, the original rape victim (whose misidentification sent Avery to prison), was one such observer. A remarkable woman who is active in the innocence movement, Beerntsen told the New Yorker that the filmmakers’ certitude troubled her:

“It was very clear from the outset that they believed Steve was innocent,” she told me. “I didn’t feel they were journalists seeking the truth. I felt like they had a foregone conclusion and were looking for a forum in which to express it.”

It is no surprise that Avery and his family have staunchly denied his guilt: He was framed once, so why not twice? After all, they point out, the $36 million judgment he was seeking for his false imprisonment could have bankrupted Manitowoc County. But for the filmmakers to fall so under the Averys’ spell that they would radically distort the facts is disconcerting. Their bias was transparent, and the excluded evidence easily available. It seems arrogant to regard the public as too gullible to do any basic fact-checking.

Predictably, a furious backlash has ensued, with social media pundits and entertainment outlets competing to debunk the series. Rather than systemic flaws in the system, the discourse has devolved into a pointless, dichotomous debate over guilt or innocence.

Worst of all from the interests of the innocence movement, some are asking the question: If Steven Avery had never been exonerated, would Teresa Halbach be alive today?

The innocence movement can counter with the fact that Avery is an extreme outlier: Of all the many hundreds of people who have been exonerated and freed from prison, only a tiny handful have reoffended with a serious offense.

But Avery is an outlier for another reason as well: He may not have raped Penny Beerntsen, but he was far from innocent even back then. Police in his rural community already had him on their radar screen, as a dangerous young man, someone who thought nothing of assaulting a female relative with a gun or dousing a cat with oil and throwing it on a bonfire to watch it burn.

The filmmakers insist that it was never their intent to manipulate their audience, nor to propel such a mass rush to judgment – in either direction. In hindsight, however, perhaps the grisly murder of Teresa Halbach was not the best choice for a documentary about innocence?

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 POSTSCRIPTS

On Aug. 12, 2016, U.S. District Court Judge William Duffin granted Brendan Dassey's petition for a writ of habeas corpus, based on the false promises that were made to him (in conjunction with other relevant factors, including his age, intellectual deficits, and the absence of a supportive adult), and ordered that he either be released or granted a new trial. The 91-page ruling is HERE. 

On June 22 2017, a three-judge panel of the 7th Circuit Court of Appeals upheld the District Court's decision. Its 128-page ruling is HERE. As of that date, Dassey remained in custody while prosecutors decided whether to appeal to the Supreme Court. New York Times reporting on that appellate ruling is HERE.

On Dec. 8, 2017, by a narrow vote of 4-3, the full 7th Circuit Court of Appeals reversed the decision of its three-judge panel. Citing the need for appellate courts to be deferential of trial courts, it held that the original trial court decision upholding Dassey's conviction was not patently erroneous or unreasonable. In a strongly worded dissent, Justice Ilana Rovner called the decision "a profound miscarriage of justice" that condoned the use of psychologically coercive techniques and condemned "an impaired teenager" to spend his life in prison. The majority decision and two dissenting opinions are HERE. They are highly recommended reading as they illuminate the current state of tension surrounding psychologically coerced confessions and especially the controversial Reid interrogation method.  

In June of 2018, the U.S. Supreme Court declined to hear Dassey's appeal, meaning Dassey will continue to serve his life sentence.

And in July of 2018, Dassey's ethically challenged attorney Len Kachinsky, who later became a judge, was charged with stalking his former court clerk. He has been suspended from practice, and faces up to five years in prison if convicted. The allegations against him are creepy enough that they might make for a good true-crime show in their own right.

New analyses undermine perception of DNA infallibility

Rags-against-riches case highlights technology's pitfalls

If you trust in the technology of DNA matching, it was an impeccable case:

Lukis Anderson's DNA matched that found on the fingernails of a San Francisco Bay Area millionaire killed in a home-invasion robbery. Based on the match to Anderson’s sample in the DNA database, the homeless man was arrested on a potential capital murder charge and spent five months in jail.

Fortunately for him, Anderson had an airtight alibi: He was lying in a hospital bed miles away, drunk to the point of unconsciousness. He also had no known connection to Raveesh "Ravi" Kumra, a cell phone entrepreneur and former winery owner who was killed during a home-invasion robbery near San Jose, California.

Although Anderson's attorneys initially thought there might have been a mix-up at the crime lab – the most common cause of erroneous DNA matches – an investigation ruled out improprieties. This despite the fact that, in an ironic twist, the technician who handled the DNA evidence in the case was previously implicated in a crime lab scandal in nearby San Francisco.

Prosecutors think they have solved the mystery: The paramedics who responded to Kumra’s home were the same two who had brought Anderson to the hospital via ambulance about two hours before the home-invasion attack on Kumra began. They likely inadvertently transferred Anderson’s DNA to Kumra via their equipment or clothing.

The local prosecutor called the case unique. But this is far from the first time that cross-contamination has led to a wrongful DNA match.

One of the strangest, most infamous and most embarrassing cases was the "Phantom of Heilbronn." A mystery woman was linked to six murders and dozens of other crimes across Germany and Austria through DNA found on everything from a heroin syringe to a cookie to a stolen car. Desperate police turned to profilers, a monetary reward and even fortune-tellers and psychics to no avail. Finally, after 15 years, the case was cracked: Evidence collection kits had accidentally been contaminated by a worker at a cotton swab factory. Forensic swabs are sterilized, but sterilization does not kill DNA.

In Australia, meanwhile, a 20-year-old man named Farah Jama was convicted and spent time in prison for a rape that likely never even took place. The same forensic officer had collected his DNA in an unrelated matter a day before collecting DNA from a woman who was found unconscious at a Melbourne nightclub. The woman had no recall of events and never claimed she was assaulted; nonetheless, Jama -- who didn’t know the woman and denied ever setting foot inside the nightclub -- spent 15 months in prison before his conviction was overturned.

Potential contamination of DNA evidence also factored into the reversal of Amanda Knox’s conviction in the odd Italian case that received international scrutiny. (Stay tuned on that convoluted case, by the way; the acquittal has now been overturned and a retrial in abstentia is scheduled to begin next month.)

The fact that an airtight alibi did not prevent Alexander from languishing in jail for five months, with a potential death sentence hanging over his head, highlights the problem of blind faith in the reliability of DNA evidence. As Osagie K. Obasogie, a law professor at Hastings School of Law in San Francisco and a senior fellow at the Center for Genetics and Society, argues in a compelling New York Times op-ed:

[T]he certainty with which prosecutors charged Mr. Anderson with murder highlights the very real injustices that can occur when we place too much faith in DNA forensic technologies. In the end, Mr. Anderson was lucky. His alibi was rock solid; prosecutors were forced to concede that there must have been some other explanation. It’s hard to believe that, out of the growing number of convictions based largely or exclusively on DNA evidence, there haven’t been any similar mistakes.

Chance matches more common than thought

But there may be bigger and more ominous problem than the rare transfer errors. The claim that random DNA matches are just about impossible, promoted by crime shows like CSI and powerfully influential in court, turns out to be flat-out wrong. As DNA databases become more and more massive, so too do the odds of chance hits.

An audit of Arizona’s 65,000-profile DNA database turned up almost 150 matching pairs, collected from different people. The California case of John Puckett is frequently cited as an example of misleading over-claiming about the reliability of DNA matches. Puckett is serving life due to a cold hit in a 1972 killing. Jurors heard testimony that there was only a one-in-a-million chance of a coincidental match. But, as Obasogie points out, that figure is misleading, according to an analysis by the National Research Council:

It reflects the chance of a coincidental match in relation to the size of the general population (assuming that the suspect is the only one examined and is not related to the real culprit). Instead of the general population, we should be looking at only the number of profiles in the DNA database. Taking the size of the database into account in Mr. Puckett’s case (and, again, assuming the real culprit’s profile is not in the database) would have led to a dramatic change in the estimate, to one in three.

This overdue recognition of the fallibility of DNA technology is causing some to call for greater oversight and to rethink the idea of allowing convictions based solely upon cold hits from DNA evidence.

Obasogie's final warning is profound:

For far too long, we have allowed the myth of DNA infallibility to chip away at our skepticism of government’s prosecutorial power, undoubtedly leading to untold injustices. In the Anderson case, thankfully, prosecutors acknowledged the obvious: their suspect could not have been in two places at once. But he was dangerously close to being on his way to death row because of that speck of DNA. That one piece of evidence -- obtained from a technology with known limitations, and susceptible to human error and prosecutorial misuse -- might mistakenly lead to execution at the hands of the state should send chills down every one of our spines. The next Lukis Anderson could be you. Better hope your alibi is as well documented as his.

Related blog post: DNA science on trial (April 17, 2009)

Blogger note: As always, it was great meeting blog subscribers during my seminar and training tour at Bond University in Queensland and the American Psychological Association convention in Honolulu. Thanks to all of you who attended and participated. The trainings were great fun; now it's back to the old grindstone as I head home and get back to work.

The taint of a false confession

Ripple effects bias parties, contaminate "independent" evidence 

Michael Crowe, age 14, falsely confessing to murdering his sister

With the recent tidal wave of scholarly research into false confessions, informed forensic psychologists are by now tuned in to the phenomenon. We know, for example, that they played a role in one out of four DNA exoneration cases. We are aware of their compelling nature, and can cite examples such as the Central Park Jogger case in which they produced profound miscarriages of justice.

But let's take it one step further. What if, once police elicit a false confession from a suspect, it contaminates everything and everyone in touches -- from the prosecutor, the judge, and even the suspect's own attorney all the way to the fingerprint identification and even, perhaps, the DNA match?

That is the troubling thesis raised by Saul Kassin, a pioneer in the psychological study of false confessions, in an article in the current issue of the American Psychologist.

  

"Corroboration inflation"

Research shows us that such a contaminating effect is plausible. For example:

• Fingerprint experts who were told the suspect had confessed were more likely to change their opinion and make an incorrect match, as compared with experts who were told the suspect was already in custody at the time of the crime. (1)

• Polygraph examiners were significantly more likely to opine that an inconclusive chart showed deception when they were told the suspect had confessed. (2)

Bizarre case of multiple false confessions and prosecutions

Such findings may extend to other forensic science that requires subjective judgments, Kassin argues, including comparative analyses of ballistics, hair and fiber, shoeprints, tire tracks, handwriting and even DNA. Although CSI-style TV shows portray such evidence as infallible, a 2009 study by the National Academy of Sciences found widespread errors and bias in the collection and analysis of evidence.

That's not to mention egregious cases of intentional fraud in forensic laboratories that pop up with alarming regularity, such as a case in Boston, Massachusetts currently garnering headlines. There, a lab worker with allegedly bogus credentials as a chemist intentionally fabricated positive drug test results. Over a 9-year period, Annie Dookhan tested an estimated 60,000 drug samples confiscated from about 34,000 criminal defendants. Dookhan reportedly admitted writing reports listing samples as positive for illicit drugs even though she had never tested them; sometimes, "if a sample tested negative, she would take known cocaine from another sample and add it to the negative sample to make it test positive for cocaine," according to the Huffington Post's account. Dookhan has been arrested and the lab is temporarily shuttered.

Kassin points to an archival study conducted by he and two colleagues which found that, in DNA exoneration cases, false confessions were often accompanied by other errors, including improper forensic science, mistaken eyewitness identifications and/or the testimony of dishonest informants. Importantly, the confession preceded the other case errors in two-thirds of cases, suggesting it may have had a corrupting influence.

Such findings suggest that the legal system's longstanding assumption that independent sources of evidence provide confirmation of a suspect’s guilt may be wrong. Rather, Kassin writes, "confessions can spawn other incriminating evidence, creating an illusion of corroboration":

Amanda Knox, wrongly convicted in Italy

"Supported by 100-plus years of basic psychology and the research reviewed herein, confession-induced corroboration inflation challenges a core premise in law. Both pretrial corroboration requirements and a harmless error analysis on appeal rest on the assumption that the corroborating evidence on record is nonredundant and independent of the confession. It now appears that this assumption is often incorrect, that the other evidence may be tainted by confession, and that the appearances of corroboration at pretrial and the sufficiency of evidence on appeal may be more illusory than real."

"Hollywood productions"

Especially pernicious is the frequent situation in which police -- either intentionally or inadvertently -- feed an innocent suspect information that only a guilty party should know. Taking on the aura of a carefully scripted movie production with the confession as the central plot device, the confession is carefully drawn out of the suspect over hours and even days until in its final version it includes vivid details and plausible motivations.

Such an account proves virtually impossible for a judge or a jury to discount. The scripted confession thus becomes the be-all, end-all of the case, contaminating the minds of all who are exposed to it:

• POLICE close the investigation, deem the case solved, and overlook exculpatory information, even when (as Richard Leo and his colleagues have shown) the confession is internally inconsistent or contradicted by independent evidence.

• PROSECUTORS stubbornly cling to false confession cases, refusing to admit the possibility of their falsity even when DNA testing unequivocally excludes the confessor. (The New York Times Magazine has more on this phenomenon, describing -- in an article titled "The prosecution's case against DNA" -- the improbable arguments manufactured by prosecutors to explain away negative DNA findings.)

• Perhaps most dangerously, even DEFENSE ATTORNEYS succumb to the allure. Individuals who falsely confess are much more likely to be pressured into accepting a guilty plea, which bars future appeals. In an archival study conducted by Kassin and a colleague of 273 DNA exoneration cases, those based on false confessions were three times as likely to involve bad lawyering.

Matias Reyes, the actual rapist
in the Central Park Five jogger
wrongful conviction case

"Taken together," Kassin concludes, "research suggests that judges, juries, and others are doomed to believe the false confessions of innocent people not only because the phenomenon strongly violates common sense but because of corroboration inflation -- a tendency for confessions to produce an illusion of support from other evidence."

All of this suggests that it is essential for courts to allow the testimony of forensic experts who can explain the mechanisms of false confessions, including both what types of police practices are more likely to generate them, and what types of individual vulnerabilities make a person especially prone to cave in under such pressure.

More broadly, this line of analysis suggests the need for changes in police practices, for example an end to the routine practice of lying to suspects about incriminating evidence, and greater government oversight and regulation of police interrogations. Moreover, safeguards on the analysis of supposedly independent evidence, such as evidence technicians being blind to a suspect's confession status, must be implemented in order to ensure that corroborating evidence truly is independent.

The article is: "Why confessions trump innocence." Members of the American Psychological Association may download it for free as part of their member benefits; others may request a copy from the author (HERE).

Related blog posts:

• Police interrogations: AP-LS issues landmark white paper (March 14, 2010)

• Clueless'science' (guest essay by Jennifer L. Mnookin, Feb. 19, 2009)

• Historical review of false confessions (Nov. 8, 2010)

• Damning reconstruction of notorious false confession case of Central Park Five (March 29, 2012)

• Canada: How false confessions occur (Nov. 27, 2007)

• New study on background factors in false confessions (Aug. 25, 2007)

• Guest report: Interrogations and Confessions Conference, El Paso, Texas (Oct. 4, 2007)

For a complete list of my many other posts on the topic of confessions and interrogations, click HERE.

References:

(1)   Dror, I. E., and Charlton, D. (2006). Why experts make errors. Journal of Forensic Identification, 56, 600–616.

(2)   Elaad, E., Ginton, A., and Ben-Shakhar, G. (1994). The effects of prior expectations and outcome knowledge on polygraph examiners' decisions. Journal of Behavioral Decision Making, 7, 279–292.

Hat tip: Tim Derning

Groundbreaking research: One out of every 10 rape convictions wrong?

As a young man, Michael Jones pleaded guilty to back-to-back attempted molestations of two girl strangers. However, he adamantly maintained his innocence while in prison and on parole. He said his lawyer had coerced him into pleading guilty by threatening him with life in prison if he went to trial. Michael was one of a handful of Black people in a rural white community; both of the little girls were white. He was identified when police brought him to the station and showed him to the girls. There was no lineup procedure with foils; he was the only choice the girls were given. On the basis of his two convictions, government evaluators diagnosed Michael with pedophilia and recommended civil commitment.

As a teenager, Paul Smith tried to molest a younger boy. He was arrested at the scene and confessed. He disputed only one point in the victim’s statement: that he had threatened the younger boy with a gun. Police searched his home and found no gun. Pre-conviction polygraph testing indicated he was being truthful when he denied having a gun. Over the ensuing years, however, clinicians in sex offender treatment programs hammered at him to admit that he had used a gun. Government evaluators said Paul’s “denial” and “minimization” of his gun use influenced their recommendation for civil commitment.

In cases such as these, I am consistently struck by the naïveté of clinicians and forensic evaluators alike, who accept police reports and especially victim accounts as the gospel truth. From my former career as a criminal investigator, I can attest to the fact that even impartial observers with no conscious motivation to distort are never 100 percent accurate in describing events they have witnessed. As Daniel Schachter so clearly articulates in Seven Sins of Memory, distortion is the nature of the human animal. It is even more likely to occur in situations involving high levels of stress, fear and emotionality.

So I was happy to see that the issue of false convictions for sex offenses is getting some much-needed and long-overdue attention. Or, let me qualify that: Happy about the empirical research, but less than thrilled with a theoretical article on the psychological dynamics underlying false accusations. Let me take those up one at a time.

Dredging old cases for DNA matches

The most methodologically rigorous study to date, released in June, suggests that somewhere between 8 and 18 percent of men convicted of sexual assault may be innocent. The federally funded research project randomly sampled convictions in Virginia between 1973 and 1987, before DNA testing was widely available, and compared preserved physical evidence with the DNA profiles of convicted men.

After poring through more than half a million cases, researchers found 422 sexual assault cases in which DNA evidence was preserved. In 8 percent (33) of those cases, the DNA evidence was exculpatory and supported exoneration. Because many of the DNA comparisons were inconclusive, this amounted to 18 percent of the cases in which it was possible to make a definitive determination one way or the other based on DNA analysis. (The data and the analyses are complex and not without flaws, so I recommend reading the study itself before relying on these numbers.) Noted the researchers:

"Even our most conservative estimate suggests that 8 percent (or more) of sexual assault convictions in a 15-year period may have been wrongful. That means hundreds, if not more than a thousand, convicted offenders may have been wrongfully convicted. That also means hundreds (if not more) victims have not received the just result, as previously believed. Therefore, whether the true rate of potential wrongful conviction is 8 percent or 15 percent in sexual assaults in Virginia between 1973 and 1987 is not as important as the finding that these results require a strong and coordinated policy response."

Bennett Barbour. Photo credit: 

Joe Mahoney, Times-Dispatch

Unfortunately, the researchers ran out of money before they could do more exhaustive analyses of the cases in which innocence was suggested. In the project’s wake, the government is battling with false confession activists who want access to the data, reports the Richmond (Virginia) Times-Dispatch. Police and prosecutors want to restrict access; exoneration activists argue that people have a right to know when their DNA does not match that collected in the crime for which they were convicted.

The project has led to the exoneration of at least four men. Putting a face to them is Bennett S. Barbour, who served a prison sentence for a 1978 rape. He had moved and did not receive the 2010 letter notifying him that the DNA specimen cleared him and matched a convicted rapist instead. A volunteer lawyer finally tracked him down and broke the good news by phone 18 months later.

Research into wrongful convictions has pinpointed several leading causes. These include:

Top sources of wrongful convictions. The Innocence Project

• False witness testimony (including mistaken identification and lying codefendants) 
• Faulty forensic evidence (especially comparisons of hair and bite marks) 
• False confessions 
• Police being influenced by prior knowledge of a suspect 
• Brief jury deliberations 

These problems are compounded by racial bias both in the criminal justice system and in society more broadly. African American men make up far more than their share of those who were convicted and later exonerated based on DNA evidence.

False accusations: A role for psychology?

Flat-out false accusations of rape -- like that depicted in To Kill A Mockingbird -- are rarely the cause of exonerations. But they do occur. Now, a prominent forensic psychology professor and his student propose 11 pathways to false allegations, and suggest that psychology could play a role in helping to sort reliable from unreliable reports. Write Jessica Engle and William O'Donohue in the Journal of Forensic Psychology Practice:

"[W]e suggest that some psychological disorders may increase the likelihood of believing a sexual assault occurred when it did not. Additionally, some psychological disorders may be related to an increase in motivation to fabricate an allegation of sexual assault in an effort to achieve what may be believed are the positive consequences of a false report…. [P]sychological evaluations may inform forensic evaluators of psychological processes by which a person may either intentionally or unintentionally file a false allegation of sexual assault."

The motivational and information processing pathways they propose lean heavily on psychiatric disorders -- including antisocial personality disorder, borderline personality disorder, histrionic personality disorder, psychotic disorders and intellectual disability -- as causes of false allegations. For example, here’s how they suggest that a histrionic personality style could lead to a false allegation:

"[A] person who is histrionic may, after a co-worker complements her clothing and accidentally bumps into her during the day, construe these actions as intentional communications of sexual interest. This misperception can lead her to feel that if the individual had touched her chest while bumping into her, it was an intentional action of unwanted assault. Thus, a pathway to false allegations of sexual assault may be through individuals with a diagnosis of histrionic personality disorder who for reasons of attention and misinterpretation may knowingly or unknowingly make a false allegation of sexual assault."

Okay, I’m not saying that people don’t lie, or make mistakes. Other research suggests that anywhere from 2 to 10 percent of all sexual assault reports may be false. But some of the examples provided in this article stretch credulity, and reek of sexism. I don’t know too many women, histrionic or not, who don't know the difference between an innocent compliment and a sexual assault.

A classification system based largely on pathologizing women runs the risk of reifying the mythology of so-called “rape myths,” in which only “good,” virtuous women can be raped. It seems especially problematic to disbelieve women with psychiatric problems when -- as the authors acknowledge -- they are the ones most likely to be sexually victimized.

More broadly, it is improper for clinicians to wade into the waters of truth-telling or lie detection. We weren’t there, and we don’t know what happened. It's problematic enough when we use character traits to predict the future. Stating that people (read: women) with this or that disorder are more likely to be lying or distorting reality opens the door for yet more improper use of psychiatric diagnosis in court.

Rather, as suggested by the Virginia data, we need to be skeptical at all times, and to keep our minds open to competing hypotheses based not on psychiatric stereotyping, but on the individual case facts. Maybe an assault happened, maybe it didn’t. Maybe the witnesses have their facts straight, maybe they don’t. Maybe the person who was convicted is the real culprit, and maybe he isn’t.

It’s clear that false convictions and false allegations are two separate beasts. And if that’s not complicated enough, there are true cases that are falsely recanted! For example, in a recent Welsh case, “Sarah” was repeatedly raped and forced into prostitution by her husband. When she recanted her report, she was convicted for perverting justice.

So, did Michael Jones (top of post) try to molest the two little girls? Maybe. Maybe not. The point is that we will never know for sure, and we should embrace -- rather than avoid -- that uncertainty. Present the competing scenarios, and analyze the case both ways, so that the trier of fact has all of the information.

The complexities in understanding sexual assault patterns are mind-boggling, and can make your head spin. False convictions, false accusations, false retractions. And then there's the other end of the spectrum: A vast proportion of sexual assaults – probably somewhere between 85 and 95 percent – are still going unreported altogether. And when victims do come forward, prosecution is rare, and convictions even rarer.

It's one gigantic mess, all around.

The U.S. Department of justice Study is: Post-Conviction DNA Testing and Wrongful Conviction by John Roman, Kelly Walsh, Pamela Lachman and Jennifer Yahner.

Damning reconstruction of notorious false confession case

Here's one from the annals of outrageous true crime cases:

On April 17, 1989, a woman was practicing tai chi in New York's Central Park, when a man sexually assaulted her. The rape was interrupted by a passerby who heard her yelling, but not before the woman was severely beaten to the point of requiring hospitalization. The woman gave police a detailed description of her attacker, including the fact that he had fresh stitches on his chin. Checking local hospitals, a detective found a match to an 18-year-old Puerto Rican man who worked nearby.

Mysteriously, the man was never questioned. The victim left town, the detective was transferred out of the sex crimes unit, and the case was closed as unsolved.

But as it turned out, this wasn't just one more rape in the Big Apple.

The East Side Slasher

The man escalated his attacks, terrorizing women in New York City. Dubbed the "East Side Slasher," he raped at least five other women and murdered one. His pattern was to beat or stab the women around the eyes, so they would not be able to identify him.

He was finally caught, when a woman broke free from him and alerted her doorman and a neighbor, who subdued him. Within hours, he had confessed on videotape to four rapes and the murder. With eyewitness identification and DNA evidence conclusively tying him to the crimes, he took a deal of 33 years to life.

Have you recognized this case yet?

While police knew that Matias Reyes was slashing and raping women around Manhattan's East Side during 1988 and 1989, there was one case they didn't think to link him to. That was the assault on Trisha Meili on April 19, 1989, as she was jogging in Central Park -- an assault that would quickly rivet the world.

Trisha Meili

In hindsight, it seems incomprehensible that Reyes was not a suspect. The crime fit his modus operandi, in that Meili was beaten most heavily around her eyes. The assault occurred just two days after the one on the tai chi practitioner, also in Central Park. And, most amazingly, a police officer who knew Reyes chatted with him as he strolled out of the park just minutes after Meili was raped and left for dead.

On his head, Reyes was wearing the victim’s distinctive headphones.

Reyes left his DNA behind. But police never thought to compare it to him. Not until more than a decade later, after he voluntarily confessed.

As we now know, police failed to consider Reyes as a possible suspect in the infamous Central Park Jogger case because they already had their suspects: A group of African American and Latino boys who were causing trouble in the park that night.

Sarah Burns

Through legal documents and myriad interviews (including with Matias Reyes), author Sarah Burns reconstructs this landmark miscarriage of justice, focusing on the role of racism in generating a collective hysteria that overwhelmed all reason: "Race not only inspired the extreme reactions to the crime; it also made it easier for so many to believe that these five teenaged boys had committed the crime in the first place, and no one was suggesting that they might, in fact, be innocent."

(Actually, a couple of intrepid columnists from New York Newsday, Jim Dwyer and Carol Agus, were expressing public doubts during the trial about the strength of the evidence connecting the youths to the crime, but their voices were not enough to turn the tide of public opinion. "We are waiting to see if there is any believable evidence that will connect these kids to the crime. So far, we haven't heard any," wrote Agus. And when referring to one of the youths' statement to police, both columnists placed quotation marks around the word confession, expressing skpeticism that it was authentic, Burns notes. Wrote columnist Dwyer, "nothing close to the words in this statement ... ever sat on the lips of a 14 and a half year old.")

Burns provides fascinating insights into the investigatory myopia that is so often present in false confession cases. Based on her access to the entire trial transcripts, she also critiques the weak defenses the boys received, which made their convictions all the more guaranteed. And she corrects much of the misleading mythology built up around the case. For instance, these boys were not the serious delinquents that the media portrayed them as, nor did most of them come from broken homes.

The first trial

Perhaps most amazing about this case is the vitriolic manner in which certain media outlets and high-profile people continue to insist that the boys are guilty, despite all evidence to the contrary. I hope this excellent historical reconstruction may help to set the record straight. I'm also looking forward to the documentary, which Burns is now working on with her father, filmmaker Ken Burns.

My Amazon review of The Central Park Five: A Chronicle of a City Wilding, is HERE. (If you like it, please click "yes," this review was helpful.) 

POSTSCRIPT:  You've read (or at least read about) the book; now see the movie. The Central Park Five just premiered at a special screening in Cannes. National broadcast on PBS is planned for 2013 or 2014. Meanwhile, the filmmakers -- who include book author Sarah Burns, her father Ken Burns and David McMahon -- are angling for a theatrical release. The Hollywood Reporter has the Cannes review (HERE).