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ISBA panel says a confession is not always true

October 5, 2016

The conviction of Brendan Dassey, the Wisconsin teenager whose admission of guilt and subsequent trial for murder were part of the docuseries “Making a Murderer,” has brought fresh attention to the fact that innocent people do confess to crimes they did not commit.

Police interrogation techniques and their consequences were examined at a special continuing legal education seminar Sept. 29 during the Indiana State Bar Association’s annual meeting in Indianapolis.

drizin-steven-mug.jpg Drizin

The two-hour event, “Brendan Dassey (of Making a Murderer): A True Story of a False Confession,” started with a presentation by one of Dassey’s attorneys, Steven Drizin, clinical professor of law at Northwestern University Pritzker School of Law. Then a panel that included Frances Lee Watson, who developed the Wrongful Conviction Clinic at Indiana University Robert H. McKinney School of Law, and criminal defense attorney Bradley Banks of Banks & Brower offered further insights.

Benjamin Fryman, chair of the ISBA Young Lawyers Section and an attorney at Schwerd Fryman Torrenga LLP, served as the moderator.

Watson told the near-capacity crowd they could help in the battle against coerced confessions.

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“The more you get the word out about the facts of false confessions and wrongful convictions, the more we’ll move toward preventing the next one,” Watson said. “So go home and talk about what you heard today, share it with lawyers and non-lawyers alike.”

To underscore that false confessions are not outliers, Watson recounted the conviction of Cleveland Bynum, which she described as a “true-blue Indiana version of ‘Making a Murderer.’”

Bynum was found guilty in 2001 of murdering five people in Gary. The primary piece of evidence against him was his confession, but he had actually confessed twice and twisted the details of the killings between the two statements.

However, he later claimed he was coerced into admitting to the crimes. He said the police had threatened him with violence when he asked for an attorney and had deprived him of food and water for nine hours. His attorney filed a motion to toss the confession but during the suppression hearing, he did not put Bynum on the stand to refute the police testimony.

Eventually the 7th Circuit Court of Appeals reviewed the conviction, Bynum v. Lemmon, 07-2634. In a 2009 ruling, the panel agreed Bynum’s counsel was ineffective but held the attorney’s mistakes did not prejudice the defendant.

The case was stalled until, in a made-for-Netflix twist, Watson received an envelope in the mail that contained a video recording of another man confessing to the murders and providing specifics of the crime. The Indiana Court of Appeals granted permission Aug. 12 to Watson and her team to file a successive petition for post-conviction relief in Cleveland Bynum v. State of Indiana, 45A03-1607-SP-1614.

Watson credited the success of Bynum’s appeal partly to Drizin and his research. He has dived deep into the data and identified factors that can led to a false confession, which can greatly help a defense attorney counter the admission in the courtroom.

Drizin has focused much of his academic research on false confessions. As part of a paper published in 2009 in the Law and Human Behavior journal, Drizin and other researchers analyzed 125 cases of proven false confessions in the U.S. between 1971 and 2002. They found 81 percent of all false confessions occurred in murder cases. Also, 93 percent of those confessing were men and 63 percent of the total people confessing were under the age of 25.

Drizin has also examined how interrogation techniques can break a suspect. The August court order from the U.S. District Court for the Eastern District of Wisconsin overturning Dassey’s conviction details how law enforcement got the young man to confess. They repeatedly told him they already knew what happened, they indicated he would be able to go home after he confessed and through the four interviews, they fed him facts of the murder which he then regurgitated in his statements.

A key method to preventing false confession is to tape the police interrogations, which then creates a record showing how the admission was obtained. The Indiana Supreme Court implemented a recording requirement when it adopted Rule 617 of the Rules of Evidence, which made statements from a suspect inadmissible unless they were electronically recorded.

Watson said the recordings give a fuller picture of what happened in the interrogation room between the police and the suspect. “You can’t get the nuance if they don’t record it,” she said. “(The police) just come out and write a report that says here’s what the kid said but they don’t include the questions (they asked).”•

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