In November, 2007, Don
Murray tried a larceny case involving accusations of the theft of
about $60,000 worth of lottery tickets from a store in New York
State. The police
had obtained a written, signed confession from his client. Mr.
Murray's client consistently maintained that he had signed the
confession only because he believed certain promises that had been
made to him after an 11 hour ordeal of accusations and questioning.
Mr. Murray's defense of this case included arguing that his client's
signed, written confession was involuntary and not to be trusted (a
false confession).
Mr. Murray's client was found not guilty. What follows
is a detailed discussion of the development of this delicate, daring
defense.
(For purposes
of client confidentiality, all identifying information,
including names, and locations more specific than New York State
are
changed. Also, please be reminded that the result in this
case does not necessarily predict any particular result for any
other case.)
Initial Contact
When John Smith
first contacted me about his case, I must confess that I was
extremely skeptical about our chances of success. During
our initial conversations, we reviewed the current progress of
his case. Mr. Smith was being charged with felony larceny
of nearly $60,000 worth of lottery tickets from the grocery
store where he was a manager over a number of months in 2003 and 2004. There
appeared to be claims by the Government that they had a
substantial amount of documentary evidence supporting their
accusations against Mr. Smith, as well as claims of video tape,
and claims of surveillance photographs.
In addition, of
course, there was the written statement signed by Mr. Smith,
confessing to taking lottery tickets.
Mr. Smith stridently
claimed to be innocent, the Government claims of evidence and
the statement notwithstanding.
Nevertheless, taking
the Government claims about the level of documentation at face
value (something I would later come to know was unwarranted),
and considering a signed, written confession, this did not seem
like a particularly promising case for success at the trial.
And I told Mr. Smith
exactly what I thought. I did not paint a rosy picture for
Mr. Smith. Despite my bluntness, much to my surprise, Mr.
Smith contacted me with the decision that he in fact wanted me
to take on his case.
Initial
Considerations for False Confession Defense
In the world of
criminal defense, the signed confession probably ranks up there
as perhaps the ultimate bogeyman, the "monster under the bed"
for criminal defense lawyers. The prospect of taking on
the "confession bogeyman" involves the same sort of resolve that
a child would need to get down on the floor in the middle of the
night in the dark and actually check to see whether the rustling
noise under the bed was some hideous monster or really just the
cat after all.
This fear of the
confession comes not because we believe in the truth of all
confessions. Far from it. As criminal defense
lawyers, we routinely run across confessions that we suspect are
false. We are quite familiar with the stunning success of
interrogation tactics of the police. We fear the
confession bogeyman because we fear that jurors just plain won't
believe a defense involving the idea that an innocent person
would ever confess falsely.
But as I would come
to learn in this case, jurors whose intelligences are not
insulted are perhaps more open-minded about this topic than
defense lawyers give them
credit for.
False Confession
Experts
One of the first
things I considered to assist me in defeating the confession
bogeyman was the possibility of obtaining expert help. As
a general rule, I believe that it is good, when possible and
relevant, to obtain the help of experts to help the jury
understand a defense. In this case, an expert might help
us to convince a jury that there really is such a thing as false
confessions and that it isn't some sort of lawyer trick.
It so happens that
there are two prominent experts on the phenomenon of false
confessions who can be engaged to assist in false confession
defenses. One of these people, Saul Kassin, by coincidence
is a professor at my undergraduate college (Williams College).
I remember some of my friends participating as subjects in his
psychology experiments.
Engaging an expert
of such reputation, however, can be expensive, and there is no
guarantee that a judge will ultimately permit such an expert to
testify at all. Conferences with Mr. Smith, however, soon
revealed that there simply wasn't going to be money in the
budget to cover the cost of such an expert.
We were going to
have to face the confession bogeyman alone.
Initial Analysis
of the so called "Confession"
It would make little
sense to attempt a false confession defense unless there were
facts to support the notion that the confession were in fact
false. In this case, Mr. Smith told a compelling story to
me and the sorts of things he claimed were told to him by the
police rang true and consistent with the sorts of claims that I
had heard before, but that Mr. Smith could not have heard
before. His compelling story combined with my own
assessment of his background and inexperience led me to believe
that his claim of false confession was worth pursuing. Further it seemed downright convincing to me.
Take a look at the
supposed confession by clicking on the link at the end of this
paragraph. Please be aware, however, that for purposes of
client confidentiality, I have blacked out certain identifying
information, including the client's real name, address, and even
the precise location of the court and the Detective's name.
The document is in PDF format and readable using the free Adobe
Acrobat reader.
Here is the false confession.
Nothing in the
statement itself necessarily jumps out as very different from
any other statement generated by police interrogation.
Later on, the Detective and the loss prevention supervisor would
make certain unusual claims about how the statement was prepared
that would require a careful second look at this statement.
But for the time being, the statement itself did not seem to
provide much in the way of help for us.
Mr. Smith told me
that he sincerely regretted signing the statement, but that he
only did so because the Detective had told him that if he agreed
to sign the statement and pay money back that he would be
allowed to go free and that he might be allowed to keep his job.
Mr. Smith made sure that I understood that he was accused of
these thefts starting at about 6:30 AM and that he maintained
his innocence all day long. In the face of accusations, in
the face of supposed documentary evidence, and even in the face
of actually being arrested for the first time in his life, Mr.
Smith maintained his innocence. He was tired, he was
hungry, he was scared, and he desperately wanted to believe that
there was some way for him to "make it stop".
I made sure that Mr.
Smith understood what he was saying. He was saying that he
actually believed that by confessing a crime to a police officer
whose job it is to arrest people for committing crimes, that he
would then be rewarded with release from custody. When I
put it like that Mr. Smith would simply repeat that it sounds
crazy when I put it like that, but when you are sitting there
handcuffed in the police station it doesn't sound so crazy.
And then there is
the REST of the case...
Of course all this
talk about the statement may tend to suggest that the rest of
the case was a piece of cake. Far from it. According
to the prosecutors on the case, there was considerable
documentary evidence to support the theory that Mr. Smith was
the person responsible for the thefts. This was a mantra
that the Government would repeat to me frequently over the
course of the case. Ultimately, however, the proof that
the Government actually brought to the table when we finally
tried the case, was far less than what we were always led to
believe was going to be there.
But I could not have
known that in the beginning. In the beginning, I expected
that as the case progressed and we approached trial, that I
would eventually come into possession of some documents or
pictures or video or something that would at least help me
understand WHY they believed my client was responsible.
Therefore my initial
impression of the case was that the Government was holding some
sort of devastating evidence that would appear to link my client
directly to the thefts of the lottery tickets AND that I had to
contend with the criminal defense lawyer's ultimate bogeyman -
the signed "confession".
Now as a criminal
defense lawyer, I am used to starting off in a difficult place.
As I often tell my clients, they don't call it "criminal
offense". But despite my open-mindedness to the false
confession issue, having to deal with the Government's claims of
overwhelming evidence AND a false confession had me more than a
little worried. As I told the jury during jury selection,
I had a lot less gray hair at the beginning of this case.
Pretrial Hearings
The fact that the
case made it to the pretrial hearings phase was something that
perplexed and frustrated the Government prosecutors. As the case continued
through the process, and as Mr. Smith refused plea bargain
offers from the Government that a guilty person would have
danced for joy to have received, it became apparent that the
case was not going to go away.
We were actually
going to have to conduct pretrial hearings.
In some of the
smaller local courts in New York State, having to conduct pretrial hearings is
something of a big deal. A court reporter must be ordered
to take down the transcript. It is a big production.
So it was in this small local court.
In our case, we were
entitled to a version of a pretrial hearing called a "Huntley"
hearing. Essentially, a "Huntley" hearing is an
opportunity for the Government to justify to a judge the
manner in which a statement was obtained. At this hearing,
the judge makes a determination of whether the principles of the
famous United States Supreme Court case Miranda v. Arizona
were adhered to, and whether the statement is legally
voluntary. Importantly, under New York State law, even if
a judge decides against a defendant at a Huntley hearing, the
defense is STILL allowed to make the same arguments to a jury.
In most cases, and
this was no exception, the defense does not expect to win
pretrial hearings. Winning pretrial hearings, especially
Huntley hearings, is an extraordinarily rare event. The
reason for this is really a combination of things and beyond the
scope of this article, but suffice it to say that we weren't
expecting to win the hearing.
The primary benefit
of pretrial hearings in New York State is that it is at pretrial
hearings where you begin to get a glimpse of the Government's
case against your client. It is at pretrial hearings where
the Government in New York is first required to provide the
defense with access to most of the critical police reports and
other documents in the case.
With respect to the
critical police reports, the locality of this case engages in the
practice of "almost" providing the defense lawyer access.
All the relevant reports are handed to the defense counsel at
the beginning of the hearing, the defense lawyer is allowed to
read them, the defense lawyer is allowed to take notes on them,
and the defense lawyer is allowed to use them at the hearing.
But...the defense lawyer must hand them back to the prosecutor
at the conclusion of the hearing. Discovery in criminal
cases in New York state is particularly backward.
And while there
certainly were quite a few reports, and while they were
certainly full of references to all sorts of supposedly damaging
evidence against Mr. Smith, I still had yet to see anything
concrete that really and truly tied Mr. Smith to whatever losses
the store had endured.
At this point not
knowing precisely what the witnesses were going to say, I had a
few basic goals in mind for the conduct of the hearing.
First, I wanted to
be able to establish and emphasize the length of time that it
took before Mr. Smith signed the confession. I knew what
time the confession was signed and knew what time it was that
the loss prevention people first arrived at the store that day.
I had about 11 hours to work with there, and hoped to break the
day down into as many discrete bits as possible, at the
conclusion of which I could ask something like, "...and he
didn't confess to you then, did he?"
Second, I wanted to
be able to establish that they did not find any stolen lottery
tickets in his possession when they surprised him at the store.
There was some indication in the police reports that they
believed that $189 worth of lottery tickets had been run the
very morning they surprised Mr. Smith and that he was one of
only 3 people in the store at the time. But it did not
appear that they had recovered these tickets, which would seem
peculiar if he ran them that morning and wasn't expecting to be
accused of anything.
Third, I wanted to
challenge the police officer to explain what it was that he did
or said that convinced Mr. Smith to make the statement.
This is a tricky thing in the mind of the police officer on the
stand. He thinks he has to be very careful here, when in
fact the law actually probably permits him to do and say a heck
of a lot more than he wants to admit.
The interrogator
will often seek to portray the giving of a statement as
something initiated completely and utterly by the accused.
He will seek to limit his role in order to portray the defendant
as someone so convinced of his own guilt that he essentially
couldn't wait to confess. Therefore, the confession came
about not as a result of the interrogator employing the tactics
learned over a 20 year career, but simply as a result of the
guilty conscience of the suspect.
At the hearing, I
wanted to find out whether the Detective would be so entrenched
in this sort of idea that he would try to apply it to this case.
If so, the 11 hours of denials by Mr. Smith would be
inconsistent with the Detective doing nothing in particular in
order to generate a confession.
One of the
interesting things about pretrial hearings is that you never
quite know where they are going to take your case. Cases
that you think are great going in can turn out to be dead bang
losers at the end. Likewise cases that you think are dead
bang losers can turn out to be possible winners after the
hearing. At the conclusion of the pretrial hearings in
this case, a combination of the evidence and the arrogance of
the witnesses led me to believe that there might yet be some
small measure of hope for Mr. Smith.
The first person who
testified at the hearing was the loss prevention supervisor who
had personally handled the investigation against Mr. Smith.
This witness seemed pleasant enough and professional at first,
and came to the court with an impressive background in loss
prevention. She came across as extremely thorough and
businesslike.
But she had an edge.
Through the
professionalism and through the smile she clearly had some sort
of ax to grind. She believed herself to be an extremely
clever witness. On cross-examination, she loved to answer
questions in long run on responses designed to hurt me and my
client. I think she must have learned this technique at
some sort of class. I can almost hear the instruction,
"Don't let the attorney control the questioning. Keep
talking until you make whatever point you feel like or until the
judge stops you." At a pretrial hearing, I love it when
witnesses do this for two reasons. First, the more they
talk, the more I find out without real penalty. There is
no jury to hear all her irrelevant nonsense. Second, it
lets me know that the witness is likely to attempt this at trial
as well and if handled properly it will only hurt her
credibility.
One of the most
intriguing things we learned from her testimony was that they
were going to claim that the statement was created in some sort
of strange "question and answer" format. She testified
that she was present at the statement because Mr. Smith had
requested her presence there (something that is patently
absurd).
From the beginning
this boggled my mind. Having previously read the
statement, it never crossed my mind that the statement was
anything more than a summary by the police officer of what he
wanted Mr. Smith to admit to. This would have been
completely ordinary.
Instead the loss
prevention manager testified that the statement was created in
the following manner. First the Detective asked a
question. Next, Mr. Smith answered the question.
Finally, the Detective wrote down Mr. Smith's answer and ONLY
Mr. Smith's answer. The result, according to this witness
was the written statement. And the witness insisted
that the words written in the statement were exactly what Mr.
Smith said.
Take a moment to
have another look at
the statement. Does that read to you like the answers
that someone might make to a series of questions? It
didn't seem like that to me. Just look at how the
statement begins: "I (John Smith) admit..." Who
answers questions like that?
When pressed at the
hearing, the loss prevention manager only begrudgingly conceded
that Mr. Smith did NOT in fact speak the words, "I John Smith
admit..."
Mr. Smith of course
insisted that the statement was simply prepared by the Detective
without any input from him whatsoever. In fact, Mr. Smith
indicated that the Detective actually asked the loss prevention
manager questions as to details of the losses in order to write
them into the statement. This process makes far more
sense, and frankly, as long as the suspect truly is confessing
there is nothing wrong with it. It occurred to me that
they are insisting on this because, in the same way that they
want to act like they had no input in the decision to make a
confession, they want to act like what he signed were all his
exact words.
Upon more careful
review of the
statement, there are other locations where the "question and
answer" format is called into question. For example, later
in the statement, Mr. Smith supposedly answers a question by
beginning, "Today, May 18, 2004 at about 6:15 am...". Who
talks like that? And what question in normal conversation
would call for such an answer?
Whenever I discussed
this issue, either with the judge or in argument to the jury,
the prosecutor response would be to argue that the statement was
simply a "sum and substance" statement. This would have
been all well and good, except it doesn't answer the question of
why they insisted that it was some sort of a transcript in the
first place. Now that their first position has been shown
to be false, they just wanted to move on to the next argument
without even apologizing for taking the first position.
But the real jewel
in the hearing testimony of the loss prevention manager came in
something that came out in some of her long winded "clever"
answers. And it involved the way she was going to explain
why she never found those $189 worth of lottery tickets.
At the start of the hearing, I thought I had it pretty solid
that I was going to be able to get a concession that my client
did not have those tickets on him when he was first confronted
in the store. But the loss prevention manager had her own
way around this dilemma. She testified that 1) she never
searched Mr. Smith and that 2) she permitted Mr. Smith to leave
her sight and continue to manage the store while she and her
assistant fluttered around the store continuing to look for
evidence against Mr. Smith.
At the hearing, I
left this testimony utterly alone and passed no comment on it.
But at trial it was going to be the centerpiece of cross
examination of this witness.
The next, and final
witness for the prosecutor at the the hearing was the Detective.
The Detective
offered some additional jewels for use at trial. One
particularly interesting tidbit came out when I asked the
Detective whether or not he recorded his interrogation of Mr.
Smith. Rather than simply saying, "No" the Detective added that
the police department for which he worked (in a wealthy area in New York State) did not OWN a tape recording
device. I found this particularly astonishing, since a
tape recorder seems like the sort of thing that an agency
charged with the task of investigating things could probably
find good use for on a regular basis. Furthermore, tape
recorders are cheap, reliable, and readily available.
When I questioned
the Detective at trial in front of the jury about the fact that
at the time in 2004, the police department did not own a tape
recorder, he aggressively added, "...and we STILL don't" to his
answer. He just didn't get it. Seven years into the
21st Century, this wealthy, well funded police department
doesn't own a $20 tape recorder. The Detective just never
seemed to get how preposterous this is. I can only assume
that his aggressive pride in not using simple, reliable
investigatory tools made him seem foolish to the jury.
Although the
Detective did not admit that he told Mr. Smith that he could go
free if he agreed to pay money "back" and signed the statement
or that he might have his job back if he signed the statement,
he did concede a couple of things that in my mind challenged his
credibility as a witness altogether.
For example, as I
suspected, the Detective clung to the usual way interrogations
are portrayed and tried to eliminate himself from really having
anything to do with the process. To believe the Detective,
he was simply little more than a bureaucrat filling out forms
and it was Mr. Smith who came forward to say that he wanted to
make a statement.
And if Mr. Smith had
signed the statement half an hour after he was first challenged,
the Detective's story might have sounded true. But it was
11 hours from the time Mr. Smith was first confronted until the
time he signed the statement. So the obvious question is,
"What changed?, What was different after 11 hours that didn't
happen before?"
The Detective at the
hearing was unprepared to deal with this questioning and so fell
back on the old theory that he wasn't really part of the
process. So his exact answer to the question of "what
changed" was "Nothing." He denied saying or doing anything
different in order to convince Mr. Smith to change the course he
had been following for 11 hours. This was preposterous.
The same arguments made by the Detective to convince Mr. Smith
to confess that Mr. Smith found unconvincing he suddenly found
convincing?
Furthermore, in a
run-on response to the prosecutor's direct examination, the
Detective testified that he did tell Mr. Smith that it was in
his "best interests" to cooperate.
On cross-examination
the Detective confirmed that by "cooperate" he meant confess to
a crime. The Detective therefore was now committed to
having advised Mr. Smith that it was in his best interests to
confess to committing a crime.
This presented a
rare and wonderful opportunity for cross examination -- the
moment when you can ask a question that appears open ended but
really and truly has no good answer.
"How was it in Mr.
Smith's best interests to confess to committing a crime to you?"
And there was no
answer. A bunch of nonsense came out of the Detective's
mouth, but there was no answer. There isn't an answer
because of course it is exactly the opposite of his best
interests to confess to committing a crime to a police officer.
The Detective was
stuck because in order to answer that question, he would have to
admit that he was offering something to Mr. Smith in exchange.
In other words, "It is in your best interests to confess because
if you do ......" The Detective did not want to admit that
there was an "if you do" section of his conversation. He
just wanted to be able to say that he told him it was in his
best interests to cooperate because that sounds like something
that a Detective should say.
In his haste to
respond to this, the Detective made quick reference to the
possibility that the store that Mr. Smith worked for "might look
at things differently" if he confessed. Although the
Detective refused to admit that he actually gave voice to this
belief to Mr. Smith, the fact that he said it at all suggested
that he might well have said it after all.
And so we had the
kernels for a couple of what I imagined to be productive lines
of questioning for the Detective at trial.
TRIAL
Jury Selection -
The Key to Success in this Case
I sincerely believe
that the key to be able to be successful in this case was in
jury selection. Taking a case to trial in which your
client has signed a fairly detailed written confession seemed to
me to be an extremely dire do or die situation. It was my
belief that the jurors in this affluent community would come to
court extremely skeptical of claims of a "false confession".
Therefore, my approach to jury selection in this case was going
to be to confront the false confession head on as bluntly as
possible almost to the exclusion of all other issues. My
thinking was that if I didn't have a group of jurors who were
prepared to believe at least in the possibility that an innocent
person would sign a confession, that I couldn't win anyway.
I was determined to
be as honest and up front with the jurors about this as
possible, and to avoid the sort of juror-cross-examination that
most lawyers do during jury selection. I needed to know
what these jurors were going to think about false confessions.
And so the first
thing I said to the first juror was that I was really worried
about something in this case, and I even joked about how I had a
lot more and a lot less gray hair when the case began. And
then I told them straight out that Mr. Smith signed a written
confession. And I asked the first juror how that made him
feel about the case.
Not being used to
actually being asked an open ended question, he was a bit
stunned at first, so I helped him out a little. I
essentially challenged him to give me one good reason why an
innocent person might sign a written confession.
And then it
happened. His answer, which I will never forget, set the
tone for one of the most incredible jury selections I ever
experienced as a trial lawyer.
He said, "I can
think of lots." And so began a conversation with the
jurors in which they all became engaged in a conversation about
various reasons an innocent person might sign a confession.
It was beautiful. It was wonderful. And it was all
the jurors' thoughts. Not mine. I wasn't lecturing
them.
Toward the end I
asked them each to rate their feelings about a statement I had
prepared from 0 to 7 with 7 meaning "I strongly agree" and 0
meaning "absolute disagreement". The statement I read was
essentially my break point issue in the case.
It was, "I think an
innocent person can be convinced to confess to a crime by an
experienced interrogator." Before jury selection, I was
expecting to be hit with a number of 0's and maybe the highest
of 3.
After our "rap
session" however, I got one 2 and all the rest 4 or above,
including one 7. It was glorious. My approach was to
be as frank and up front about the problems with my case as I
could be, and I believe the jurors appreciated this.
In the end, the
juror who initially told me that he could imagine lots of
reasons an innocent person might sign a written confession wound
up as the foreperson of the jury. I loved my jury.
These were not people who were committed to anything in
particular, but I felt like I at least had a chance to be
successful.
Opening Statement
I used the opening
to essentially flesh out the break point issue I used in jury
selection. I provided the background story about the
innocent person (my client), and the 11 hour struggle between
him and experienced interrogators that led him to sign a written
statement confessing to a crime he did not commit.
The Loss
Prevention Witness
As I anticipated
from her style as a witness at the pretrial hearing, the loss
prevention witness did everything in her power to use her place
as a witness to try to say whatever she wanted. In my view
this ended up hurting her. My approach to her was not to
engage her in any sort of bickering. I would let her
respond to a simple question by going on and on and on.
She seemed to be implementing some sort of training in this sort
of run on response, but my approach was simply to let her go.
As she rambled I
would wander around the courtroom, look up at the ceiling, and
toward the end, I would simply sit down and review my notes
while she continued droning on. Typically I would then be
in a position to stand up and say something to the effect of,
"And so your answer to my question is, "No." to which she would
respond, "Yes."
As far as the meat
of her testimony, this was the witness who would have been in a
position to provide all of the supposedly devastating
documentary evidence against my client, and yet it never came.
Despite all of the claims over the life of the case, it just
never came.
In the end, she was
only able to establish that the store suffered shortages in the
lottery proceeds on numerous days and that on the handful of
days worth of evidence (out of about a year's worth of supposed
losses), it was shown that my client was on duty. She also
introduced surveillance pictures, that showed my client standing
next to the lottery machine, during business hours, on a few
days in question in which there were shortages.
In fact, the
evidence as to the losses and the supposed connection between
the losses and my client was so thin that I chose not to cross
examine her about any of it.
Instead my focus
continued to be on attacking the statement and on calling into
question her claim that she did not search Mr. Smith and that
she permitted him to leave her sight even though she believed he
had run some lottery tickets just before she confronted him.
Her part in the
statement was supposedly that Mr. Smith requested her presence
before he would make the statement. This was patently
absurd, unless it were also true that the Detective was trying
to convince Mr. Smith that confession might lead to his job
back. The story was easy to say -- "Mr. Smith requested
her presence." Fortunately for Mr. Smith, however, this
story just doesn't stand up to close scrutiny. It just
makes no sense for Mr. Smith to request the presence of the loss
prevention manager. This was someone he had no
relationship with except that the first time he met her she
accused him of stealing more than $50,000 and then called the
police and had him arrested and fired. Not exactly the
basis for a loving relationship. Not exactly the first
person you would expect Mr. Smith to call for -- unless he was
told that she might give him his job back.
On cross
examination, the loss prevention manager could offer no
explanation for the reason for her presence there.
The loss prevention
manager looked the most foolish, however, when it came to
answering questions about her supposed failure to search Mr.
Smith when she and her companion first confronted him after they
supposedly saw him run lottery tickets without paying for them.
On cross
examination, she conceded that of course she suspected that he
had just run the tickets. She also conceded that the most
obvious place for him to have had them would have been in his
pocket or wallet since her appearance there and confrontation
was a surprise.
This boxed her into
the position of having to concede that she affirmatively chose
not to look in the most obvious place in the world for what
would have amounted to the smoking gun. Not only did she
have to concede this, but in her hearing testimony she had
rambled on about how extensively they had searched the store for
the lottery tickets without success, even mentioning that she
had her companion searching garbage cans. Therefore, I was
able to ask her about how she had her companion looking through
garbage cans for two hours but never bothered even to ask for
permission to look in the most obvious place in the world.
She had no choice but to concede this, and in my mind anyway,
looked pretty silly.
To top this off, in
order to explain why Mr. Smith didn't have the tickets in his
possession when he was arrested, she testified that she
permitted Mr. Smith to continue to manage the store while she
continued her investigation. Once again, if you don't
think very carefully about this, it sounds like it almost makes
sense.
But if you think
about it, she is permitting a person she believed to be a thief
and liar continue to run the store for two hours. If you
think someone has cheated your store out of $50,000 and lied to
you about it you wouldn't let that person so much as mop the
floor, let alone continue to manage the store. I concluded
this section of my cross examination with a question something
to the effect of, "It was your business philosophy that a
manager who is a thief and a liar is better than no manager at
all" -- to which she responded, "Yes."
The Detective
The Detective was
never going to admit that he promised Mr. Smith that he would
let him go if he would simply sign the confession and agree to
pay money for the tickets.
But the Detective
did admit to saying some things that didn't make a lot of sense.
Prime among those
was his advice to Mr. Smith that it was in his best interest to
confess. This was something that was objectively untrue.
Therefore, my very first question to the Detective was whether
or not he ever lied to Mr. Smith, even once about anything at
all, during all the time he spent with him that day.
The Detective
predictably said, "No" but took a nice long time considering his
answer. But this led to the topic of telling Mr. Smith
that it was in his best interest to confess.
And when we got to
that topic, we explored it more deeply than at the pretrial
hearing, because here it mattered.
One of the things we
did was to examine Mr. Smith's other choices besides confessing
to the Detective who was investigating his case. This was
great fun because it was an opportunity to take the good old
Miranda warnings that he bragged about reading to Mr. Smith
(they even put his Miranda card into evidence) and feed them to
him one by one.
Mr. Smith's choices
were right there in the Miranda warnings and the Detective and I
reviewed each one and he was forced to agree that the essence of
his advice to Mr. Smith was that confessing a crime to a
Detective was a better idea.
The questioning went
something like this, "You told Mr. Smith that he had the right
to remain silent." "Yes" "That was one of his choices." "Yes."
"But you told him that the best thing he could do, his BEST
move, was to give up that right and confess a crime to you."
"Yes."
And so on.
I was also able to
confront the Detective with his reference to the possibility
that the store might "look at it differently" if he confessed.
Mr. Smith's
Testimony
An important part of
this case, I think was Mr. Smith himself. I think it was
going to be next to impossible to be successful in a false
confession case unless the defendant himself took the stand to
explain it. Mr. Smith, luckily, was able to explain
himself in a simple, straightforward, believable way. He
was certainly not a polished witness, and I intentionally made
sure not to over prepare him. I wanted the jury to
experience him as he may have appeared when he was being
interrogated.
The Verdict
The jury acquitted
Mr. Smith in a little under an hour.
