Sunday, September 7, 2014

Survey: Virginia Law Enforcement Agencies Lack Written Interrogation Policies By Frank Green

Survey: Virginia law enforcement agencies lack written interrogation policies September 7, 2014
Study author urges overhaul to help prevent wrongful convictions
By Frank Green

Nearly one-third of more than 180 recently surveyed law enforcement agencies in Virginia lack written interrogation policies, and only a handful require that questioning be recorded. 

The survey, the first of its kind in the country, was released today, less than a week after the DNA exonerations of two mentally disabled North Carolina men who “confessed” to the 1983 rape and murder of a girl during faulty police interrogations. 

In Virginia, two mentally disabled men, Earl Washington Jr. of Culpeper and Curtis Jasper Moore of Emporia, were wrongly convicted of rapes and murders as a result of false confessions. Washington came within nine days of execution.

Properly conducted and recorded police interrogations can go a long way toward preventing false confessions, said Brandon L. Garrett, the author of the study, “Interrogation Policies,” and a professor at the University of Virginia School of Law. 

Garrett noted that most of the interrogation policies obtained from 116 police and sheriff’s departments allow the recording of interrogations. 

But, he added, “very few agencies actually require doing so as a matter of policy, and few provide guidance on how to record, much less on the proper conduct of interrogations.” 

J.E. “Chip” Harding, who is now the Albemarle County sheriff but spent most of his 30-year career with the Charlottesville Police Department as an investigator, said confessions are powerful evidence and without them there would be far fewer convictions. 

“I was not a strong supporter 15 years ago of our department starting the practice of videotaping all of our interrogations and primary interviews,” he said. 

But he says he now sees that recording strengthens cases, eliminates most pretrial motions, and creates a record that can be reviewed to make sure the interrogator did a proper job. 

“In many cases of false confession, the investigator thought he was playing by the rules but was unaware he was giving the suspect details of the crime that were used hours later in the confession,” Harding said. 

Tim Longo, the Charlottesville chief of police, cited his department’s written policy: “to video-record all statements taken from persons from whom custodial and noncustodial interviews are conducted when circumstances permit for such recording.” 

*** Virginia has no model interrogation policy beyond staying within constitutional grounds. There is a model for policy for handling juvenile interrogations that includes videotaping. 

Garrett, an expert on wrongful convictions, urges an overhaul of interrogation policy and practice to safeguard evidence in the most serious cases, “and in far more mundane cases, such as those involving vulnerable juveniles.” 

By policy, law or court order, 19 states; Washington, D.C.; and federal investigators now require the recording of at least some interrogations. 

Garrett said that without an electronic recording of an entire interrogation, it can be difficult to know whether a suspect really knew details about the crime or if that information somehow was relayed to the suspect by police. 

Freedom of Information Act requests by students in the University of Virginia Innocence Project Student Group in 2013 netted the 116 policies. They had contacted more than 180 law enforcement agencies across Virginia. 

The group agreed to keep agency names anonymous when requesting the policies. 

Fifty-eight agencies did not have written policies and 11 declined to provide them, Garrett said. Of those without policies, 15 were sheriff’s offices that did not have law enforcement responsibilities. 

More than half of the 116 policies made recording an option but did not encourage it or provide guidance on how to record. Only nine required electronic recording of some form. The remainder asked that it be performed when feasible.

A handful of policies provided guidance on conducting juvenile interrogations, and none gave guidance on the interrogation of intellectually disabled individuals. Garrett said only a handful said anything about how to properly conduct an interview, or cautioned against feeding facts through leading questions. 

About one-third of the policies, 41 of 116, were very brief, primarily noting that suspects must be read their Miranda rights. 

Harding said there are too many agencies in Virginia that do not record interrogations. He said recording equipment has become much better and less expensive in the past few years. 

“DNA is only available in a small percentage of cases, so you know there are many more people sitting in jail based on false confessions or from accepting plea deals to avoid harsher punishment than we are aware,” Harding said. 

*** Dana Schrad, executive director of the Virginia Association of Chiefs of Police, and Longo, the group’s president, have seen Garrett’s report and are interested in developing training curriculum for officers. 

“However, we also have to acknowledge that there are agencies (that) haven’t had the funds to invest in recording equipment,” Schrad said. She added that there are at least 52 law enforcement agencies in the state with fewer than five sworn officers and at least 13 that are one-person departments. 

Nevertheless, Schrad said, “Garrett’s report raises some important points about interrogation policies and procedures. His research gives Virginia police chiefs and the VACP the opportunity to review what is in place in Virginia law enforcement agencies.” 

The goal, she said, is to make sure that interrogation procedures protect the rights of the accused while professionally seeking the truth in a criminal investigation. 

“This is of particular concern when it comes to the interrogation of intellectually challenged individuals and juveniles,” Schrad said. 

On Tuesday, a North Carolina judge dismissed charges against Henry Lee McCollum and Leon Brown, two mentally disabled half-brothers who were teenagers when they were arrested and questioned in 1983 for the rape and murder of an 11-year-old girl. 

DNA testing of crime scene evidence did not find the DNA of either man but did find the DNA of a convicted murderer and rapist who lived nearby and committed a similar rape and murder not long after the one that sent McCollum and Brown to prison. 

Vernetta Alston, one of McCollum’s lawyers, said Friday, “Coerced confessions are responsible for many wrongful convictions, including the wrongful convictions of Henry and Leon.” 

She said McCollum — who was under a death sentence for murder — was interrogated for five hours before signing a confession at 2 a.m. He later asked, “Can I go home now?” 

Brown, sentenced to life for rape, confessed later that morning, after he was told McCollum confessed and was threatened with the death penalty. 

North Carolina now requires interrogations in homicide investigations to be recorded.

“The hope is that recorded interviews reduce the ability of law enforcement officials to coerce and threaten people into confessing to crimes that they did not commit,” Alston said. 

Richard Dieter, executive director of the Death Penalty Information Center, said the recent North Carolina exonerations would probably have been unnecessary “if the true nature of the duress surrounding their confessions had been made known to the jury.” 

“At a minimum, mandatory regulations should be put in place for capital cases, where so much is at stake,” Dieter said.

*** In Virginia, Earl Washington Jr. was wrongfully convicted and sent to death row for a 1982 rape and murder in Culpeper, largely on the basis of a typed confession he signed in which he said he left his shirt in a dresser drawer at the murder scene. 

DNA testing in 1993 strongly suggested he was innocent, and his death sentence was commuted to life.

Further DNA testing not only excluded Washington but also implicated the real killer, who has since been convicted. Washington was pardoned and later released from prison. 

Peter Neufeld, a founder of the Innocence Project and one of Washington’s lawyers, said it is far less likely Washington would have been convicted had a recording been made of his interrogation. 

Curtis Moore had been released from a mental hospital in Washington just weeks before he was charged with the Jan. 8, 1975, rape and murder of an 88-year-old Emporia resident, Eva King Jones. 

His interrogation was recorded — but not the part where police said he was read his rights. During the questioning, Moore sang the theme song from a television Western, leading his interrogator to accuse him of trying to act “nuts.” Moore then implicated himself in a crime he had nothing to do with.

An expert who reviewed a transcript of Moore’s interrogation said it appeared police “broke every rule in the book” and the main problem was that they were interrogating a mentally ill suspect. 

Moore was found guilty in 1978, but his convictions were thrown out five years later, after federal courts ruled his rights had been violated. 

DNA testing in 2008 — two years after Moore died — cleared him of the crime and implicated the real killer, who has since been convicted of the rape and murder.