Interview Richard Leo

Richard Leo

Co-author of The Wrong Guys, a book on the Norfolk Four, Leo is an associate professor of law at the University of San Francisco and an expert on the subject of false confessions. This is the edited transcript of an interview conducted on April 21, 2010.

How did you get interested in this case?

I had heard about this case many years ago, and I'd heard that there were four false confessions, potentially, in this case. For many years I'd been researching false confessions that are made in response to police interrogation, so I'm naturally very interested in this phenomenon, which is highly counterintuitive.

“It's almost impossible to reverse the damage a confession does, even if given by an innocent person … It's like a train going downhill.”

Most people are skeptical that even one person would falsely confess, and here we had four people, so I wanted to know more about this case, and as I started to study this case, I became fascinated with it. This is an amazing case -- perhaps the most egregious case of wrongful conviction, in my opinion, in the two decades since I've been studying this phenomenon, so I ultimately ended up co-writing a book on this.

Were they false confessions? ...

No question that these are false confessions.

Why would people confess falsely?

There are several reasons, but you have to understand how police interrogation works. Most people don't know this, but police are trained to interrogate suspects using psychological methods, methods that rely on pressure and persuasion. But prior to an interrogation, police have made up their mind that the person is guilty. You don't interrogate somebody unless you first believe they're guilty. The goal of an interrogation is to get the person you believe to be guilty, to get a confession. That's the single, overriding goal. It's not to separate innocent from guilty, because that decision has already been made up in the mind of the interrogator.

So the techniques of interrogation which rely on pressure and persuasion, sometimes coercion, steadily break down a suspect and change their perceptions of their situation such that they come to see the act of confessing as being in their self-interest or the only way to get out of a situation.

Most [people] would tell you they would never confess to a crime they didn't commit. Is it true?

Most people have no experience with interrogation, and most people say, "You couldn't make me confess no matter what you did psychologically," especially to a serious crime, a rape, a murder. But most people don't know what it's like to be interrogated. Everyone has a breaking point.

Most people don't know what it's like to be in a situation where police are accusing you, telling you you're lying, yelling at you; moving in, invading your space; lying to you about evidence; telling you they have your fingerprints, or they have your DNA, or they have you on video, or they have witnesses. Most people don't know that police can pretend to have evidence they don't have. But all of that is part of many interrogations in that it will sometimes lead to true confessions.

In the false confessions, what you see that sets them apart usually is they go on for a long period of time. They're high pressure oftentimes, and they involve threats, not only lies about evidence, but threats and promises -- sometimes threats about getting the death penalty, or threats about going to prison for life, or threats to one's family, or threats about what's going to happen if you don't cooperate with the interrogators, and implied or explicit promises or suggestions of leniency. ...

How much of what the police do is legal?

Most of what police do in interrogations that lead to false confessions is legal: the accusations, yelling; moving in closer, invading one's space; lying about evidence, making it up, pretending to have evidence; telling somebody they failed a polygraph, for example.

It's just the threats and the promises that are not legal. But threats and promises can be implicit or explicit, and if they're implicit, maybe they would be considered legal by a judge deciding whether to admit or not admit a confession. And of course police often deny that they used any threats or promises, and if there's no record of the interrogation, no recording, then it's just one person's word against the other.

Why are police allowed to do that?

Police are allowed to use a range of interrogation techniques that pressure and persuade a suspect, or are intended to, because it's believed that confession evidence is very valuable, and it's believed that most interrogation techniques are not coercive; they won't lead to an involuntary confession. That's the legal standard in the United States. Will the interrogation techniques overbear somebody's will and lead to possibly an involuntary or a false confession?

Most of the techniques are believed not to do that. Threats and promises, those are unlawful because they can be coercive and elicit involuntary or unreliable confessions.

Do we know what kind of techniques were used in the Norfolk case?

We don't have a recording in the Norfolk case, but we have four individuals who can, I believe, prove their innocence. The evidence overwhelmingly indicates that they're innocent. So if you look at their accounts and you ask, "Why would somebody confess falsely given the evidence?," their accounts are very consistent with one another. And their accounts match what we know about why innocent people falsely confess when interrogated coercively.

What happened in their interrogations? What do they report? They report very accusatory interrogation. They were yelled at. The interrogators were in their face, calling them liars. The interrogators told them they had the evidence that they could use to prove their guilt. They were run through polygraph examinations, so-called lie detectors, and told that they failed, and their space was invaded physically. Some of them were poked on the chest. They were interrogated in small, confined spaces over this long period of time.

But in my opinion, most importantly, they were all threatened with the death penalty. They were told they would receive the death penalty if they didn't confess, and the only way to avoid the death penalty was if they stopped denying and started admitting to what the interrogators believed they had done.

Do you think everybody would have confessed under these circumstances?

No. In fact, in this case, three other individuals didn't confess, although they report they came close. So no, not everybody would confess. But four out of seven people who are interrogated and believed to be guilty and against whom these techniques were used did confess. That's a high percentage. Everyone has a breaking point. Some people can even withstand great coercive pressure and interrogation questioning and not confess. But I believe many people would have confessed falsely under these coercive interrogation pressures.

Police want details in a confession, more than just "I did it." ...

That's right. The goal of interrogation is to get a confession -- but a confession is not just "I did it." A confession -- that's the first step. We call that an admission. The confession is the admission plus the narrative, the narrative that contained the details of how and why somebody committed the crime. Those details are going to help get the person convicted. ... The interrogation is not just about getting the "I did it," but it's about getting the details.

In this case, the interrogators fed the suspect details. They showed crime scene photos, which is a horrible practice, a horrible practice if you're interested in the truth. And they educated the four men who confessed falsely about those details so that they ultimately gave not just an admission but a confession, an admission plus a narrative that seemed very persuasive to people ... hearing about the interrogations and confessions.

Do the police know what they're doing when they do these things that lead to false confessions?

... It depends on which police. Usually police detectives interrogate -- not the street patrol officers, but the detectives -- and they usually receive some training in interrogation. They go to schools, or the schools come to them. So they're trained in a method, and the longer they've been doing this, the more experience they have.

Do they know what they're doing? Yes, they know what they're doing. Some detectives interrogate very well and stay within the law and are very effective at getting confessions. Other detectives use improper or coercive techniques and go beyond the lines.

Do they realize they are apt to get false confessions?

The feeding of details, I believe that most interrogators don't fully appreciate what they're doing. They are trained not to feed details, but they don't realize the way in which they're feeding details for several reasons.

Interrogation is what we call guilt-presumptive. In other words, they're trained to only interrogate when they believe the person whom they're interrogating, that person's guilt is certain. So when they are interrogating, and say they accuse the person, and the person says, "I didn't do this," sometimes they tell the person, "Yes, you did," and they confront them with either real or alleged evidence, and they inadvertently feed the details: "We have evidence you did this. We have evidence you did that."

If the person they are interrogating is innocent, the person is learning from them details of the crime, so later on if that person confesses, especially if it's been a long interrogation, then inadvertently they may have learned through the interrogation confrontation about details of the crime. The police may not know that they have fed the details of the crime.

Now, that's one way in which this happens. But when police show pictures of the crime scene to a suspect trying to get the suspect to confess to the correct details, then they have to know what they're doing. There's no excuse for that. This is absolutely poor police practice. And the reason it's poor police practice is because when you get a confession, the only way you can know if the confession is true or reliable is if the person volunteers details that were not public or lead police to new or missing evidence, tell police about things the police didn't themselves know, or if the physical evidence corroborates the confession.

If the police feed the details either inadvertently through the accusation and confrontation with alleged evidence, or if the police show the crime scene photos and then the suspect gives details, we don't know if those details were independently provided by a guilty suspect or merely repeated by an innocent one. There's no justification for this practice. ...

What does it take to break somebody?

To break somebody it depends on the person's personality. Some people have very strong personalities, and they will never break, and other people have very weak personalities. Most of us are somewhere in between. But what people who have never been interrogated have to understand is that interrogation can be very intense -- a lot of psychological pressure, sometimes in a small space for a long period of time. People break sometimes in response to that pressure. They just want to get out of the room. They can't take it anymore. They feel threatened, trapped. Sometimes they think the only way to get out is to tell the interrogator what they want to hear, or they think the only way to save themselves from some bad punishment that's been threatened or to get some leniency that's been suggested is to put an end to that interrogation. ...

If someone gives a false confession, what can they do? Can they take it back?

It's almost impossible to reverse the damage that a confession does, even if given by an innocent person, after the confession has been made. It's like a train going downhill. Once somebody confesses, an almost irreversible process begins in the criminal justice system. ...

At that point, there's no more investigation?

They're usually not interested in investigating the case further except to add more evidence, if it exists, to the confession, to the person who confessed. They don't pursue other leads. Sometimes they don't go back and interview family members of the confessor. In their mind, they've got the guilty person. They're not in investigative mode. They're in prosecutorial mode. They're building a case, and they want to build the strongest case they can against the individual who, coming into the interrogation room, they believed was guilty.

So the confession then goes to the prosecutor, and in our society, prosecutors, police, everybody believes that confessions are one of the most powerful evidence, indicators, of guilt. People don't question confessions. When they hear confession, they assume somebody is guilty.

Explain the role of the police.

In the American criminal justice system, police are supposed to be investigators and investigate the crime, and the next function occurs when the prosecution gets the evidence and they decide whether to charge and prosecute if they believe the evidence exists for that, and then the judge determines the rules or the law that applies, and the jury, if a case goes to trial, determines whether somebody is innocent or guilty.

But the way it really works with the police is that they're not neutral investigators. They develop a case, but once they decide to interrogate, they've already made up their mind that somebody is guilty. And their goal is to get the confession, because it's one of the strongest pieces of evidence you can have [to] build a case against the person so that the prosecution will charge and convict, and that's exactly what you saw here in the Norfolk Four case. ... They were in what I call prosecutorial or quasi-prosecutorial mode. How do we get the evidence, get the confessions and build a case to get these guys convicted? They abdicated their investigative role once they had made up their minds that these individuals were guilty. ...

What kind of weight does DNA evidence carry?

Usually DNA does trump everything, and for a rational police and rational prosecutors, DNA would be the gold standard. If there's DNA evidence and it shows that the person you think did the crime didn't do it, then you would dismiss the charges. But in the Norfolk Four case, the police and the prosecutors were not rational. Everything that happened in this case was upside down. This case is an Alice in Wonderland case in the criminal justice system. Nothing makes sense.

So they get the confession from Danial Williams. Six months later the DNA shows that Williams didn't do the crime. Now, if they had objectively looked at this case, they would have understood his confession was bogus even before the DNA. But the DNA showed he couldn't have done the things that he ultimately confessed to. Instead of objectively looking at the case and his involvement and figuring out what does the DNA tell us, they assumed he still had to have been involved but there had to have been somebody else.

And so they go to Joe Dick, who is Williams' roommate, and they assume Dick must be guilty and interrogate him and get another confession from Dick. But Williams' confession had never mentioned Dick. Now Dick's confession mentions Dick and Williams, exactly the police theory of the crime. But the DNA for Dick doesn't match. So police are on a hunt for the person whose DNA will match.

But they don't take a step back and say, "Maybe Williams and maybe Dick are innocent." They assume they must be guilty, and they go for the next person, who turns out to be Eric Wilson. They interrogate Eric Wilson again, coercively, again with no recording, and ultimately get a confession. Eric Wilson's confession mentions Dick and Williams, exactly the police theory of the crime. But Williams' confession, which hadn't mentioned Dick, never mentioned Wilson, and Dick's confession, which mentioned Williams, never mentioned Wilson. But now Wilson's confession matches the two others.

Wilson's DNA test shows that Wilson, like Dick, like Williams, didn't commit the crime. Again [there is] the hunt for the DNA that will match to the person who committed the crime, or the persons. But unlike rational, objective, thoughtful police, the police here ignore all the evidence of innocence, the lack of DNA matching Williams, Dick and Wilson, and continue to go on a fishing expedition, coercing yet more suspects and names from the people who have already confessed falsely, Williams, Dick and Wilson, and that leads them to Derek Tice, the fourth person.

And still there was no DNA match?

The same result. Derek Tice confesses. He describes a very coercive, lengthy interrogation. The DNA still doesn't match Tice, whose confession includes Wilson, Dick and Williams, even though their confessions had not included him.

Ultimately, [it's] Omar Ballard who is the true perpetrator in this crime, who committed this crime by himself; the evidence overwhelmingly indicates this.

He said he did it by himself?

He says so. Omar Ballard writes a letter to a woman in prison and confesses to committing the crime. The woman brings the letter to the police department. ... The police are handed the true perpetrator on a silver platter.

Omar Ballard -- the police should have known he was a suspect in this case. He lived nearby. He had committed other crimes like this. When they do the DNA test, it's Omar Ballard's DNA. When they interrogate Omar Ballard, unlike their interrogations of Williams, Dick, Wilson and Tice, he confesses after 20 minutes. It's not a five-hour interrogation; it's not a 10-hour interrogation. [In] twenty minutes, he confesses.

Unlike Williams, Dick, Wilson and Tice, he knows the details of the crime because he committed the crime. So he gives police details they didn't know. He gives them details they did know. He describes the crime scene, exactly how it was committed. They finally got the person whose DNA matches the crime.

So at that point they can let everybody go.

If they were rational, objective, fair-minded police and prosecutors, they would have let everybody else go, but they couldn't admit what was so obvious: They made a mistake, a big mistake. Four people had been interrogated coercively, confessed to a crime they didn't commit, and instead of acknowledging that mistake and these individuals' innocence, they tried to link Omar Ballard to these individuals. They tried to make it a group crime, so they pressured Ballard to include in his confession, and subsequently after that in their conversations with him, the others as being involved in the crime. ...

Why did all this happen?

I believe this happened because police and prosecutors were overzealous. In the case of the police, they used coercive and improper techniques, and in the case of both the police and the prosecutors, they had tunnel vision. They became committed to a prosecution and evidence gathering against individuals they believe were guilty, and at every stage when multiple forms of evidence indicated the innocence of these individuals, the police and prosecutors never took a step back and did what any rational, objective or saw what any rational, objective people would have seen: that the evidence of innocence is obvious.

They would have had to have admitted to numerous investigative and prosecutorial mistakes, errors. They would have had to have had the humility and the honesty to stand up and say what is obvious: "We investigated; we coerced; we got confessions from four innocent men; we prosecuted them for capital murder. Two of them pled guilty to avoid the death penalty. We, the police and the prosecutors, screwed up big time, and we apologize for this, and we're going to learn from our mistakes."

They didn't have the courage or the intelligence to honestly admit this. But to ask the question why did this happen, what makes this case so interesting is it's not just one false confession, and it's not just one detective who is a rogue detective or out of control. It's not a bad apple. This case is much more than just that. This case is a window onto why innocent people get convicted in the criminal justice system.

This case is a microcosm of almost everything that goes wrong when innocent people in the system get wrongfully convicted. So to understand why this case caused the damage to the four innocent individuals who were wrongfully prosecuted and convicted, why this case happened, is really an indictment of the police, the prosecutors, [and] to some extent, in addition to the police and prosecutors, the lawyers, the defense lawyers, and to some extent the judge and the jury.

It really, this case really raises deep questions about the system, not just one actor or two actors in the system.

And Joe Dick actually began to believe he had done the crime?

Joe Dick is one of the most interesting people involved and I think key to understanding this case. Joe Dick was the second person interrogated after Danial Williams had confessed and the DNA had shown Williams didn't do this. Joe Dick is gullible, highly suggestible, very weak-willed; slow-thinking, timid throughout his life.

He was the kind of person who was bullied on the playground when he was growing up. He's a natural follower. He's very malleable. When he was interrogated, it took less pressure to break him and get him to confess than it did the others. And his confession stands out in this case, because he came to believe that he must have been involved in this crime, and this belief lasted for several years.

So they convinced Joe Dick that he committed this crime despite any memory of committing this crime, and he retained that belief over a long course of time. We call this either an internalized or a persuaded false confession. It's the rarest type, where somebody comes to believe they committed a crime despite any memory of committing a crime.

Usually the person realizes they didn't commit the crime shortly after the interrogation. It's extraordinary in this case, because Dick continued to believe for many months afterward that he committed this crime. And because of that belief, and also of course because he was afraid of the death penalty -- he took a plea bargain to avoid the death penalty -- he testifies against the others.

He even believes that he did this, and he writes a letter of apology to the family at [one] point, apologizing for what he must have done. ...

It was only many years later, after he was in prison and he was evaluating the DNA evidence, that he realized he couldn't have done this; he had to have been innocent.

Why did the police believe Joe?

Why the police and prosecutors believed Joe Dick is incomprehensible to me. ...

Joe Dick, his account changes after every telling of the story. He gives one version in the interrogation. Then he gives another version when the DNA comes back on Wilson. He gives another version when the DNA comes back on Tice. Joe Dick is continually changing his version, continually adding facts. He's changing his account to fit what the police and the prosecutors are pressuring him to come up with. ...

If they investigated the crime, would they have found Omar Ballard?

The lawyers were primarily interested in cutting deals with the prosecution to save their clients' life from the death penalty, get a life sentence in exchange for a confession and naming of the others.

Now, the lawyers for Wilson, I think, aggressively fought this and may not have presumed his guilt from the start. ... Had they [the other lawyers] investigated this case, one would think that they would have stumbled upon Ballard. But eventually the police stumbled upon Ballard.

And the fact that Ballard confessed in a letter, that his DNA matched, that he repeated the confession to the police, that he said he did it alone, that he knew details of the crime the police didn't know -- it's remarkable that this didn't become the centerpiece of the defense lawyers' attack in this case.

Was the death penalty a factor?

The death penalty hangs over this case. To understand why the four individuals confessed, you have to understand the politics and reality of the death penalty in Virginia.

Virginia has executed more people in the history of the United States than any other state and is currently second to Texas [in executions carried out since 1976, the year the United States reinstated the death penalty]. People in Virginia get executed in a relatively short period of time compared to other states. Many of the lawyers in the Norfolk Four case had seen a client being executed. That has to be a horrible experience to know that somebody you defended was executed: You couldn't save their lives.

So some of the lawyers in this case were oriented toward saving the lives of their clients above anything else, above proving their innocence. And in fact, the defendants who confessed, they confessed to save their lives in large part because they were threatened by the death penalty and believed that they would get the death penalty if they didn't confess.

How did the police first begin in this case --why Danial Williams?

It's very important when understanding these false confession cases that lead to wrongful conviction to ask the question, what led the police in the first place to think that somebody committed a crime? In many of these cases, it's just a gut hunch. It's not a solid investigation. And that's exactly what happened here.

The police were interviewing a neighbor of the victim, and she said, "I think he did it," meaning Danial Williams. And the original detectives thought he must be the one. They had no evidence suggesting that he actually did it. It was the hunch of somebody in the building who said he acted funny or he looked funny, and so they bring in Dan Williams, subject him to a lengthy, overnight interrogation.

Now, this is significant, because at this point they don't have the autopsy, and they wouldn't get the DNA for six months later, so the police don't know all the facts of the crime. They coerce him into admitting that he committed the crime, but he gets the facts wrong. He says he hit [her] on the head with a shoe; she wasn't hit on the head. Nobody hit her on the head. She was strangled, and she was stabbed; she was raped. But he gets the facts wrong because he didn't know the facts.

They then go back to the autopsy and see that he got the facts wrong, come back and angrily interrogate him again and feed him the facts so, in effect correcting his confession with apparently no knowledge of how horrible this police practice is and how they are creating a false confession. He confessed falsely at first--

With the shoe.

With the shoe, and getting other details of the crime wrong. ... A very important point to understand here is the first confession in this case seemed to have locked the investigators and prosecutors into a path they could never veer from as if the train had left the station, and now the police couldn't let go of the fact that Williams must be guilty because he confessed. ...

So they, instead of thinking 'Is Williams innocent?' -- there must have been somebody else involved is their assumption. Then they go to the next person and the next person. ...

Isn't the Miranda waiver supposed to help people like Danial Williams?

Some people think that the Miranda rights are this great protection in the criminal justice system. But the Miranda rights really don't protect innocent people, because when innocent people are interrogated, their instinct is to cooperate with the police. 'I didn't do the crime; I have nothing to hide; why would I ask for an attorney or not cooperate with the police?' And so what we see is almost everybody waives their Miranda rights, agrees to participate in the interrogation, especially innocent people. All the innocent people who have been exonerated by DNA who confessed falsely, they all waived their Miranda rights.

An innocent person walking into an interrogation room, unless they are a lawyer or they know something about law, they're not going to invoke their Miranda rights, and once the suspect waives their Miranda rights, it becomes irrelevant in the interrogation. It goes in one ear; it goes out the other ear. People don't realize they can stop an interrogation by saying, "I want a lawyer."

Or "I want to get out of this room"?

Or "I want to get out of here." ... It's the rare person who realizes that at some point during the interrogation they can stop it because of the Miranda warnings they were read many hours earlier in a brief moment of time that passed just like this.

We've done studies of what happens after somebody confesses falsely in their case in the criminal justice system. We've looked at several hundred cases of these people who falsely confess and how their cases progressed in the system. And if their case goes to trial, 75 to 85 percent of the time they get convicted. Three out of four or four out of five people who falsely confess ultimately get convicted before their confession is proven innocent. And presumably many people never get the chance to ... prove their confession false.

And to demonstrate the power of confession evidence, when these innocent individuals who falsely confessed took their case to trial and got convicted and then subsequently proved their confession false or found the true perpetrator and had their convictions reversed, these were cases where there was no evidence in the case, other than the false confession.

These are cases where they disputed the confession, where they challenged the confession and, and there was no other evidence, and yet the jury convicted. ... When confessions are introduced at a trial, what happens is the presumption of innocence goes out the window.

... It's important to understand not just why innocent people falsely confess, but also why false confessions are such potent evidence and so often lead to wrongful convictions. And that's one of the reasons why video recording and better police training and corroboration requirements for confessions before they get entered into evidence is so important, because once a confession -- even if it's false -- gets entered into evidence and the case goes to trial, an innocent person will almost always get convicted.

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posted november 9, 2010

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