Shutterstock photo illustration
Monday, July 31, 2017 | 2 a.m.
NEW YORK — In a black T-shirt, hair cropped short, with a wedding ring visible on his finger, Ted Bradford hunched over a microphone in a legislative hearing room in Carson City.
In a public video of the meeting, Bradford can be seen speaking to the assembled senators representing the nearly 2.9 million Nevada residents. “I lived through the nightmare of wrongful conviction,” he says. “It was a horrible crime, a crime of rape and burglary.”
On the day of the meeting in June 2017, Bradford had come to Carson City to support a law that would require police agencies in the state to electronically record interrogations of suspects taken into custody. The proposed legislation would have mandated that police interrogations be recorded in their entirety, from the reading of Miranda rights to the end of the interview, depending on the severity of the crime.
“Here I was in this small room with two detectives being accused of this, and I knew I was innocent,” Bradford recounted for the assembled audience. “And I tried telling them, you’ve got the wrong guy.”
Bradford believes the fact that his interrogation was not fully recorded may have cost him 14 years of his life — 10 years in prison and four more awaiting a retrial, which finally cleared his name. Only the last half-hour of Bradford’s interrogation was recorded and shown in court.
Bradford was convicted, and then acquitted, of breaking into a woman’s house and raping her in Yakima, Washington, in 1995.
Both opponents and supporters of this type of legislation say they want to protect victims. For opponents of recordings, those are the victims of heinous crimes who deserve justice. Legislating this policy, they fear, could leave police hamstrung and allow a guilty attacker to walk free.
For supporters, those victims are the individuals found guilty of crimes they did not commit, and the future victims of the real perpetrators who are allowed to remain free while an innocent person sits in jail.
“They kept telling me ‘we know you’re a liar, you’ve got to tell us the truth’ ... This went on for over nine hours that I was there,” Bradford said. “Nothing to eat or drink, exhausted, they kept telling me over and over — you’re not getting out of this room until you tell us what happened ... So in my mind, I thought, the only way I’m getting out of here is if I make up this story, and tell them that I did it.”
The phenomenon of false confessions
Evidence of false confessions in the U.S. has been around since the Salem witch trials, says Richard Leo, a professor of law and social psychology at the University of San Francisco.
In an interview, Leo explains that the phenomenon has only been really accepted in both law enforcement and the public eye in the last 30 years, around the time when the technology of DNA testing became good enough to allow groups like the Innocence Project to prove wrongful convictions.
Since 1989, 350 wrongfully convicted people have been exonerated through DNA evidence. The Innocence Project says false confessions played a role in around a third of those cases. When including people who were cleared through other means, the National Registry of Exonerations has tracked 2,066 people who had been exonerated of convictions since 1989.
“There are hundreds of false of confessions out there from DNA exonerations, and they have to be the tip of the iceberg, because it’s almost impossible to prove confessions false,” said Leo.
Leo explains that to understand false confessions in the U.S., one must understand the basis of interrogation training that has pervaded law enforcement for the last 70 years.
A confrontational style of interrogating, known originally as the Reid technique, is generally considered by experts in cases of coerced confessions to be responsible for “some, if not most, if not all” false confessions, Leo said.
While the method may go by different names with slight variances, the underlying style, what Leo calls a “guilt-presumptive accusatory method,” has remained prominent in modern American law enforcement.
“(In this technique) you determine someone is guilty of the crime and the goal is not to get the truth, it’s to get them to confess to what you, the officer, believe is the truth, your theory of the truth. So you pressure, persuade, and sometimes psychologically coerce them,” Leo said.
For their part, John E. Reid and Associates, the company that developed the method, has rebutted Leo and other academic’s characterisation of their technique on their website.
Joseph Buckley, the president of the company, says their training specifically advises against coercive methods and is designed to get the truth from subjects, not just to get a confession.
“When you look at our core principles ... it talks about not making promises of leniency, not threatening any physical harm or inevitable consequences,” Buckley tells Al Jazeera. “When you engage in those behaviours ... those are the elements that contribute to false confessions.”
Victims of wrongful conviction
Jeffrey Deskovic believes there were three victims in his wrongful conviction in New York: 15-year-old Angela Correa, who was raped and murdered in 1989, Deskovic himself, who spent 16 years in prison after falsely confessing to the crimes, and Patricia Morrison, who was killed by Steven Cunningham in 1993, four years after Correa died.
Cunningham confessed in 2006 to killing Correa after DNA evidence linked him to the attack.
“I remember at the end I just collapsed on the floor in the fetal position and I was crying uncontrollably,” Deskovic, now 43, recalls the moments inside the interrogation room after he falsely confessed.
Deskovic, who was 16 years old at the time, told Al Jazeera he was threatened by investigators, fed non-public details of the crime, and finally promised he could go home if he just said what the detectives wanted to hear. That promise pushed Deskovic over the edge after the six-hour interrogation, which was unrecorded.
He believes that had the jury seen the full interrogation, they would have come to a different conclusion.
“I feel like in the grand scheme of things, this should all be viewed as a public safety issue,” said Deskovic, who now works as an advocate for the wrongfully convicted. “Every time the wrong person is sent away, the actual criminal remains free. Nobody wins when the wrong person is arrested and convicted. Well, there’s one winner, that’s the actual criminal, he or she won.”
A policy with teeth
The practice of recording interrogations, when done correctly, creates an objective record of the exchange that protects both defendants and law enforcement from false claims, Leo said.
Because of this, law enforcement has mostly embraced the measure, especially as technology has advanced.
The Major Cities Chiefs Association, the International Association of Chiefs of Police, and the National Association of District Attorney’s have all published guidelines, referring to it as “best practice”.
“Major Cities Chiefs Association recommends all law enforcement agencies implement mandatory recording of custodial interrogations to increase the quality and accuracy of interrogation evidence,” Patricia Williams, of the Major Cities Chiefs Association mentioned in a statement to Al Jazeera. According to Williams, the organisation left it up to law enforcement in each state to decide if the policy should be legislated.
The crux of current debate is whether the practice should be mandated by law or left as a recommended policy for individual departments to adopt.
Advocates of laws on recorded interrogations argue that policies that are not codified in law have no teeth.
In an interview with Al Jazeera, Michelle Feldman, a legislative strategist for the Innocence Project who advocated for the bill in Nevada explains that the right to a recorded interrogation is not protected by the Constitution, so states without unified laws are still vulnerable to misconduct.
“If you have a policy, most officers are going to follow it. But wrongful convictions happen in the margins. You just have somebody who decides not to record, that could result in a wrongful conviction. You need a uniform practice and you need a consequence for failure not to record to motivate them to do it.”
Currently, 24 states have court statutes or laws requiring recording for some, if not all, major crimes. It is at the states’ discretion to agree on what types of crimes will warrant the recording of the interrogation. That number has increased dramatically from just two states requiring the measure 15 years ago.
‘To the letter’
Back in the Nevada hearing room, members of law enforcement took turns sitting where the exonerated Bradford had sat moments earlier.
To opponents of the legislation, the stakes are high. Codifying police policy into law, they argued, could jeopardize legitimate cases against rapists and killers, the types of cases for which the Nevada bill specifically required interrogations to be recorded. Minor mistakes could be construed as misconduct, they argued.
The legislation did not make evidence from unrecorded interrogations inadmissible, but stated that a judge had to give a jury “a cautionary instruction” if such evidence was presented in court. Law enforcement representatives worry that could turn a case.
“That was a concern,” said Robert Roshak, who testified on behalf of the Nevada Sheriff’s and Chief’s Association. “If, in fact, everything wasn’t followed to the letter, you could lose (a case) on a technicality.”
“Nobody was arguing that it’s not the best practice to (record interrogations), especially in those kinds of crimes,” he says, “but (the legislation) left out any kind of officer discretion.”
Chuck Callaway, who spoke on behalf of Metro Police, told the legislators that exceptions written into the law — for example, regarding equipment malfunction — did not go far enough.
“(The) issue is law enforcement is not black and white, and there’s times when gray areas occur,” testified Calloway. “Having strict statutory guidelines that say you will do this even if there are some exceptions in this bill — exceptions can’t possibly cover every scenario that’s out there.”
The Nevada bill was overwhelmingly voted down in the state’s Senate two days later.
‘Something we can point to’
Floyd Bledsoe painted pictures of wildlife in a Kansas prison for 15 years. He hadn’t been in nature since his arrest and the art reminded him of being free. It also helped keep his mind off of missing his sons’ youth.
Bledsoe’s 14-year-old sister-in-law, Camille Arfmann, was raped and murdered in 2000. Both he and his brother, Tom, were taken into custody. Tom reportedly admitted to the crime more than once, but later changed his story to implicate Bledsoe. Tom was released. Bledsoe believes his brother’s admissions may have turned the jury, but those words were not recorded.
“I was married, I had two kids, I was trying to build a life for myself. I had 40 acres. While I might not have been rich, I was happy,” Bledsoe tells Al Jazeera. “Those people who chose not to record took that from me, they stole that.”
Bledsoe’s brother admitted to the killing again in 2015 in a suicide note and reportedly gave details of the murder that investigators said only the perpetrator could know, leading to Bledsoe’s exoneration.
The recent passage of laws in New York and Texas give supporters hope that it is just a matter of time before similar laws are passed in every state. In 2016, California also passed a law. These states are three of the four most populated in the U.S.
“It’s really something we can point to — these big states were able to do it, they have all kinds of jurisdictions — rural, urban — so there’s no reason why your state can’t do this too,” says the Innocence Project’s Feldman.
Bledsoe stood in front of the Kansas legislators three times in order to support a recording bill. Last year, the legislation failed following opposition from law enforcement who cited budget concerns. In May, a tweaked bill, which only required the audio recording of the entire interrogation, was signed into law.
“I want to stop those detectives who choose not to push that button,” says Bledsoe, who is expecting his first child since he was released. “They should not have that power. I understand mistakes happen, equipment fails, but don’t make that choice. That’s why I fought for this. That’s why I want people to understand this.”