Questions Crime Reporters Sometimes Forget to Ask

Actual Innocence
Five Days to Execution, and Other Dispatches From the Wrongly Convicted
Barry Scheck, Peter Neufeld, Jim Dwyer
Doubleday. 298 Pages. $24.95.It is the nightmare of nightmares. Cold, deadly, lethal.

Busted, tried, convicted and condemned to death.

But you are truly, really, totally innocent.

That’s what “Actual Innocence” is all about. It is a compelling account of the wrongfully accused, wrongfully convicted, wrongfully imprisoned and—whew!—finally vindicated.

The authors are Barry Scheck and Peter Neufeld, of the Benjamin Cardozo School of Law at New York’s Yeshiva University and co-founders of the now-nationally renowned Innocence Project, joined by two-time Pulitzer Prize-winning New York Daily News columnist Jim Dwyer. Their work should give all journalists—particularly those covering courts and cops—the willies.

Subtitled “Five Days to Execution, and Other Dispatches from the Wrongfully Accused,” the book is a chronicle of injustices that involve lying cops, corrupt prosecutors, false or coerced confessions, rigged lab tests, incompetent defense lawyers, perjury by jailhouse snitches, mistaken eyewitnesses, and hair evidence that proves exactly nothing. The individual stories in the book are compelling by themselves. They detail in some cases how the new science of DNA testing has freed convicted rapists and death row inmates by proving them factually innocent.

Critics of “Actual Innocence” scoff that it is overblown; that the authors are unrequited bleeding hearts. More than a few prosecutors who vocally support the death penalty dismiss those cases in which innocent defendants end up in prison or on death row by observing that you can’t make an omelet without breaking a few eggs.

The book quotes Kevin Doyle, the capital defender for the state of New York, who observed, “Some people think that an error rate of one percent is acceptable for the death penalty.” But, he continued, if you asked the FAA to approve an airplane that would kill or injure passengers every 100th time it landed, “people would say you are nuts.”

Moreover, the book’s case studies show that prosecutors strain mightily to break the eggs needed for the omelet. Indeed, among the charts at the end of the book one is about misbehavior by prosecutors. Among the misconduct: suppression of exculpatory evidence, knowing use of false testimony, improper closing arguments, false statement to juries, evidence fabrication, and use of coerced witnesses.

One case the book describes is that of Tim Durham, who on May 30, 1991 Their work should give all journalists—particularly those covering courts and cops—the willies.had driven five hours from Tulsa, Oklahoma with his dad to a skeet shooting match at the Dallas Gun Club. As nearly a dozen shooters enjoyed their day, 11-year-old “Molly M,” who was home alone in Tulsa, was assaulted and raped by a red-haired stranger with a pockmarked face.

The assault got big play in the Tulsa media. In time, police focused on 29-year-old Tim Durham, who matched the pedophile’s physical description. Despite Durham’s solid alibi, he was charged and tried. Not only did Molly M convincingly identify him as her assailant, but also the prosecution further bolstered its case by using “junk science” hair evidence—and, the clincher, DNA evidence.

Durham was convicted and sentenced to 3,220 years in prison, which an appellate court later cut to 3,120 years. But after the Innocence Project got involved it proved that the DNA tests by a Texas laboratory called GeneScreen “were riddled with quality control problems” so severe they turned “solid science into junk.” Retesting by Dr. Edward Blake at the Forensic Science Associates laboratory unequivocally excluded Durham as the source of the sperm left at the crime scene.

Durham was freed after spending five years in prison where he was beaten by inmates who believed him to be a child molester.

The book castigates appellate court findings of “harmless error,” which upholds convictions even when misconduct by police or prosecutors are exposed. “Lies,” Harvard law professor Alan Dershowitz calls them, “Testalie”—those times when police provide untruthful testimony under oath to assist a case. Also, cheating in lower courts is excused by higher ones, the authors say.

Commonly nothing ever happens to the police or prosecution liars after they have been exposed. Cops and snitches who get caught lying under oath almost never receive any sanction, formal or informal. Only rarely is a faulty search warrant suppressed in pretrial motions. Prosecutors also usually escape the consequences of their misdeeds. But the ordinary citizen gets slammed for identical behavior, as do defendants. The cops, prosecutors and incompetent defense lawyers usually walk away with their feathers intact.

The book indicates that reporters covering cops and courts need to be wary of confessions. Few reporters know that many police receive formal interrogation training. They are often taught with a widely used police textbook, “Criminal Interrogation and Confessions,” by Fred E. Inbau, John E. Reid, and Joseph P. Buckley. In its introduction, the authors assert, “We are opposed to the use of any interrogation tactic or technique that is apt to make an innocent person confess.” But, they continue, “We do approve, however, of such psychological tactics and techniques as trickery and deceit that are not only helpful but frequently indispensable in order to secure incriminating information from the guilty, or to obtain investigative leads from otherwise uncooperative witnesses or informants.”

One of the most bizarre cases of false confessions occurred in Portland, Oregon. In January 1990, the body of Taunja Bennett, 23, of Portland, was discovered on a bluff in the picturesque Columbia River Gorge just east of the city. She had been strangled, and the rope was still around her neck. Soon, the lead investigator in the case, Detective Alan Corson of the Oregon State Police, had a suspect. His name was John A. Sosnovski, an alcoholic who has been in trouble with the law. He was fingered by his off-again, on-again girlfriend, Laverne Pavlinac.

At first, Pavlinac’s accusations that Sosnovski was involved in Bennett’s murder didn’t hold water. But the more she was questioned, the more she learned about the case from detectives. So her confessions became more and more convincing. The last straw came when Pavlinac, then 62, said that she held a rope around the victim’s neck as Sosnovski raped her.

At one point, Pavlinac, wearing a police wire, tried to persuade Sosnovski to confess by telling him he killed the victim during an alcoholic blackout. Though he eventually pleaded guilty to murder to escape the death penalty, he maintained that he could not remember the killing. Pavlinac went to trial, but dramatically changed her story. She testified that she made up the confession; that she was just trying to get Sosnovski, who was abusive, out of her life. Nonetheless, she, too, was convicted of murder. Both defendants received life sentences.

Then, in 1994, long after Pavlinac and Sosnovski had been forgotten, The Oregonian received an anonymous letter. The writer claimed responsibility for The book indicates that reporters covering cops and courts need to be wary of confessions.five murders, including Bennett’s. The letter contained drawings of smiley faces. In a series of articles, the unknown murderer was dubbed “The Happy Face Killer.”

In March 1995, Keith Jesperson, 40, of Selah, Washington, was arrested for the murder of Julie Ann Cunningham, whose strangled body was found dumped alongside the Columbia River. Jesperson eventually confessed to Rick Buckner, a Clark County [Washington] sheriff’s detective. As Jesperson was being questioned, detectives obtained a letter he recently had written to his brother. In it, Jesperson confessed to eight murders. I was covering the case at the time and got a copy of the letter. The unique handwriting matched exactly the distinctive lettering in “The Happy Face Killer’s” confession sent to The Oregonian.

Jesperson eventually admitted killings in Oregon, California, Wyoming and Florida, including Bennett’s. However, the prosecutors who convicted Pavlinac and Sosnovski didn’t believe he had killed Bennett until Jesperson led them to the blackberry thicket where he said he threw her purse. An excavation of the area turned up Bennett’s picture identification.

Two factually innocent people were in prison. Getting them out was an arduous process, but eventually the pair was freed. And even though the prosecution conceded the innocence of Pavlinac and Sosnovski, Corson would not. The day before Jesperson was transferred to Wyoming to plead guilty to murder there, Corson visited Jesperson in the Oregon State Penitentiary, where he was serving several long terms for Oregon killings.

Corson tried to get Jesperson to sign a statement that he had falsely confessed to Bennett’s slaying and that Pavlinac and Sosnovski were the real killers. Jesperson viewed Corson with disdain and said as much in letters to news reporters. In a December 9, 1997 letter, Jesperson wrote of Corson, “I just gave him enough line to hang himself. [He] claimed Mike Schrunk [the district attorney whose office convicted Pavlinac and Sosnovski] will drop the 30-year [murder] sentence…and even drop the 37 1/2 year one [a different slaying], too. He is a total pain in the ass.”

Professors Elizabeth Loftus and Richard Ofshe are outspoken critics of contemporary police procedures involving both eyewitness identification and confessions. They urge that all lineups, picture throw-downs and questionings by police be videotaped. Typically, police only tape-record the final, solid version of a confession and almost never make any recording—visual or audio—of eyewitness identifications.

Loftus is a professor of psychology and an adjunct professor of law at the University of Washington, who is one of the world’s experts on eyewitness identification. Ofshe is a professor of sociology at the University of California at Berkeley, an acknowledged expert on police-induced false confessions. Loftus has done basic research into eyewitness testimony. When she began her inquiry into memory, the universal belief was that eyewitness testimony was as reliable as a videotape or a home movie. Loftus found the opposite.

When interviewers asked questions, Loftus discovered, the queries themselves had influence, and even the specific words in the questions significantly affected the answer. For example, the question, “How fast were the two cars going when they hit each other?” will induce witnesses to give slower speed estimates than “…when they smashed each other?” By carefully phrased questioning, Loftus found her subjects were helped to remember stop signs as yield signs. Indeed, in a Loftus video of a car crash that I watched, almost all of the viewers, myself included, misreported what they actually saw. In her research, Loftus has discovered—again in contrast to common beliefs—that violent events decrease the accuracy of memory. She found that memory is weakest at both low and high levels of stimulation, as in sleepiness or shock, and concluded it is brittle, suggestible and can fade as time passes.

Translated into real-life crime situations, the premises are clear. People who witness violent crimes, when questioned by police and detectives—who themselves have a theory of “their” case—may not end up reporting the truth. When reporters quiz police about confessions, Loftus says, “one thing you want to ask about for sure is the non-identifications. Were there other witnesses who made no identification, or even better, said, ‘It’s not him.’?”

Reporters also should ask police “details about their procedures,” Loftus says. “You’re looking to see if they gave the witness an admonition before the identification, such as, ‘The guy may or may not be in there,’ or, ‘It’s just as important to exonerate the innocent as it is to get the guilty party.’ They should be doing that, but they don’t always.”

Scheck, Neufeld and Dwyer use charts to show instances of race and misidentification. The biggest mistakes were in the identification of African-Americans by whites, in which 35 percent were wrong. But the second largest mistake category—28 percent—was whites misidentifying whites and the third largest category—24 percent—was African-Americans wrongly identifying African-Americans.

In a study of DNA exonerations, the Innocence Project found that 84 percent of the wrongful convictions rested, at least in part, on mistaken identification by a victim or eyewitness, the authors write. In analyzing the role of police misconduct in wrongful convictions, the authors show that nine percent involve coerced confessions; 33 percent involve allegations of undue suggestion in pretrial identification procedures; nine percent are evidence fabrication; 36 percent, the suppression of exculpatory evidence, and nine percent involved the alleged coercion of witnesses.

The book illuminates the necessity for even the most beleaguered court reporter to look twice at the official presentation that is provided the media in serious criminal cases. Except in the most sensational or curious cases, police investigations are conducted without any media scrutiny. Arrests for major crimes are reported unhesitatingly. The charging documents—indictments or informations [charging documents requiring that probable cause must be established to bring the case to trial]—are generally received without question. Loftus observes that “the state is the official version” of crimes.” And, she points out, “the easiest person to convict is someone who has done something else.”

For most reporters, access to the inside of the case really doesn’t occur until the defense begins receiving the evidence against the defendant. After the initial flurry of arrest and charging, prosecutors typically dummy up, justifying their silence by citing bar-press guidelines or the desire to avoid prejudicial pretrial publicity. The silence is particularly deafening in the two areas about which reporters need to be especially skeptical—confessions and eyewitness identification.

How reporters can obtain critical information about those pivotal areas in high-profile prosecutions is a constant challenge. Even reporters with “solid gold” police/prosecution sources cannot reasonably expect them to serve up a corner-cutting colleague. Cultivating communication with the defense is a critical, if complex, necessity, but can illuminate flaws in the “official” scenario of the alleged crime.

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- Ken ArmstrongIronically and unfortunately, probing media inquiries into actual innocence almost never begin until after a conviction. And, contemporaneously, the investigation generally occurs through a group other than the news media—the Chicago Tribune, of course, is a conspicuous exception. Folks like the Innocence Project or the Northwestern University School of Law class has secured the release of wrongfully condemned inmates in Illinois.

Hard-news reporters covering too many crimes with too little time need to take this book to heart. The “official version” may be the easy story, but it also may be the profoundly wrong one. Reporters need to do all they can to make sure the facts they print are indeed the right ones.

John Painter, Jr., a 1977 Nieman Fellow, is a court and public safety reporter for The Oregonian.