As I write this, the post-arrest recorded interview of Senator Larry Craig has hit the press, circulated around the blogosphere, and produced heated discussion among the public.  The recording includes a confession to a crime that Senator Craig now says he did not commit.  No doubt that tape will prove central to the consideration of Senator Craig’s claim, since it will provide incontrovertible evidence of what both he and law enforcement said.

Coincidentally, just last week the California legislature passed a bill, SB 511, which would mandate the recording of custodial interrogations to prevent wrongful convictions based upon false confessions.  The bill has now been sent to Governor Schwarzenegger. 

To most, falsely confessing to a crime seems counterintuitive.  It is hard to understand — barring outright torture – why a sane and intelligent person would admit to a crime that he did not commit, especially if the confession could yield a lifetime prison term or even a death sentence. 

As a law enforcement officer with 24 years of experience with the Metropolitan Police Department of Washington, D.C. (13 of those as a homicide detective), the phenomenon always eluded me too.  Until someone provided a false confession to me. 

It was a homicide case.  I used nothing but standard, approved interrogation techniques and did not act maliciously.  There was no yelling, no physical abuse and no cursing.  We went into the interrogation room with the belief that we had evidence linking the suspect to the crime and we came out many hours later with a confession.  Thankfully, we started the video early on and chose to keep it on for the duration of the interrogation. 

On the basis of the confession, the case progressed. Even the defendant’s defense attorney believed that she was guilty because of her confession.  We hit a wall when, during our follow-up work, we discovered her alibi.  It was ironclad.  Even though the case was dismissed, we all still believed that she was guilty.  Why else would she confess?  How did she know the details that she did?

Years later, during a review of the videotapes, we discovered our mistake.  We had fallen into a classic trap.  We believed so much in our suspect’s guilt that we ignored all evidence to the contrary.  To demonstrate the strength of our case, we showed the suspect our evidence, and unintentionally fed her details that she was able to parrot back to us at a later time.  Contrary to our operating procedures at the time, my colleagues and I chose to videotape the interrogation.  This is what saved me from making a horrible mistake in the long run.  It was a classic false confession case and without the video we would never have known.

Now I teach a class on interrogations and false confessions.  In my ongoing discussions with law enforcement nationally, I find that investigators fall into one of two camps – those who do not record and oppose it; and those who do record and endorse the practice.

Those investigators whose departments do not record interrogations say that mandating the practice will be the end of the world.  We have found in D.C., though, that many of these issues were overcome by working with lawmakers.  California SB 511, for instance, mandates recording only in police facilities for specific – and not all – crimes, just like we have in D.C. 

And unlike our D.C. law, the California bill is friendlier to law enforcement, making allowances for situations where videotaping is impractical.  In D.C., if a detective fails to record for whatever reason, the prosecutor must overcome the presumption that the confession was coerced.  The California bill, on the other hand, still allows the confession to be used. The California bill also allows audio recording, while in D.C., videotaping is mandatory.

Law enforcement officers that record interrogations love it. They have found that they still get confessions, but that those confessions are much easier to defend in court.  They also mention unexpected benefits: detectives are made better interviewers; suppression hearings are almost eliminated; large civil settlement payouts to the wrongly convicted are avoided; and public confidence in law enforcement increases. 

Recording of interrogations from start to finish as directed by California’s SB 511 is the right thing to do.  Failure to use cheap and available technology to build strong cases against the guilty and to protect the innocent is wrong.  Recording interrogations needs to be mandatory, with rules and sanctions.  If sanctions are not in place then public confidence is undermined by the few unscrupulous among us.  When videotaping was first forced upon us by the D.C. City Council, we fought it tooth and nail.  Now, in the words of a top commander, we would not do it any other way.

Regardless of whether the public is considering a Senator’s political future or a judge or jury is debating the guilt or innocence of a person facing serious charges, opinions should be shaped by the best available evidence.  Recorded interrogations are simply a critical source of truth. 

Governor Schwarzenegger, please sign SB 511.

Please visit the ACLU of Northern California’s action alert and help end wrongful convictions.  Also, please visit http://www.facesofwr…

Jim Trainum is a detective with the Metropolitan Police Department in the District of Columbia and currently runs a cold case homicide review project.  He also lectures on Interrogation and False Confessions as well as Avoiding Investigative Pitfalls. 

By Harold Hall

Last month, I celebrated an untraditional anniversary.  August 17, 2007 marked my third year of freedom from wrongful imprisonment.  I spent nearly twenty years in prison for a crime I did not commit.

I think people want the assurance that something like this couldn’t happen to them.  I wouldn’t wish the unique nightmare of wrongful conviction on my worst enemy, but I cannot provide this guarantee to anyone.  That is because many of the methods and procedures that were used to secure my conviction are still allowable under California law.

In 1985, I was convicted of a double homicide.  There wasn’t a smidgeon of forensic or biological evidence that could connect me to the two slayings.  Still, police zeroed in on me.  They brought me to an interrogation room, where I was handcuffed to a chair, denied food, water, and the use of a restroom.  They told me they had evidence of my guilt, including fingerprints, blood and semen.  The more I denied my involvement in these murders, the harder they pushed.  Seventeen long hours later, I was mentally drained and told them the story they clearly wanted to hear.

By the end of this ordeal, I had technically “confessed” to the crime.  It didn’t matter that the “confession” I provided contained many inaccuracies.  It didn’t matter that the information that I provided to the police — thinking at the time that it would end the traumatic interrogation process – didn’t line up with many of the details of the crime.  They had their man, although I hardly felt like one.  I was only eighteen years old!

I was carted off to jail.  I was scared for my life.  Every day was a living hell.  I was told when to use the phone, when to shower, when to recreate.  I was under constant watch.  Often I was pulled from my freezing cold cell in handcuffs, wearing only boxer shorts so that they could conduct cell searches.  I was forced to watch, defenseless, as Corrections Officers went through my belongings, pouring out the contents of bottles, ripping up family photos, destroying objects that sustained me during those endless years.  During lockdowns, which could last months, we were forced to take “bird baths” in the cell sink because we were not allowed out of our cells.

But I knew I was innocent and that I would be vindicated at trial.  I knew that my lawyer would be able to explain why I provided a false confession.

Then I learned that the prosecution was planning to use the testimony of Cornelius Lee, a jailhouse informant, at trial.  Lee and I had passed two handwritten notes while in jail. Lee took those notes, erased the questions and re-wrote them so that I appeared to incriminate myself.  Once I learned the prosecution planned to use the testimony of a liar, a man who was hoping to get better treatment at my expense, I was crushed and demoralized. 

Despite all of this, I never gave up hope, even when I was convicted and they sought the death penalty.  At the penalty phase, I told the jury I was innocent; they sentenced me to life without parole.

I am free today, but prime years of my life were stolen from me.

There are two bills on Governor Schwarzenegger’s desk right now.  Senate Bill 511 would require the electronic recording of police interrogation in cases involving homicides and other violent felonies.  Senate Bill 609 would require that testimony given by jailhouse informants be corroborated.  If these laws were in place when I was facing those horrific charges, I would have been spared nearly two decades of suffering.  And without these laws, this could happen to other innocent people.

California is primed to do the right thing.  It can ensure that juries are exposed to the most reliable and accurate evidence available.  That is why I urge the Governor to sign these bills.  That way when people ask, how could this happen? I can reassure my fellow innocent Californians that we are doing everything we can to make sure it doesn’t happen again.

Please visit the ACLU of Northern California’s action alert and help end wrongful convictions.  Also, please visit http://www.facesofwrongfulconviction.org/.

–Harold Hall lives in Los Angeles and works for the Los Angeles County Bar Association.