The New York Times Magazine today has an article that discusses the case of Juan Rivera, an Illinois man convicted of a 1992 rape and murder of 11-year-old Holly Staker. It was a vicious crime, and Rivera was picked up and questioned.
A 19-year-old with a ninth-grade education and a history of psychological problems, Rivera was interviewed by the police a few weeks earlier and told them that he was at a party near the crime scene and that he noticed another partygoer there acting strange. This time around, he repeated the same story for two days before finally admitting it was a lie. Still, he denied murdering the girl.
What followed was 24 hours of near constant interrogation, and around 11:30 on the morning of Oct. 30, after banging his head on a cell wall, pulling out a clump of his hair and being handcuffed behind his back and placed in leg shackles, Rivera finally provided investigators with a detailed confession.
There were two problems with the confession. He was apparently in the middle of having a breakdown:
Shortly after detectives left the room at 3 a.m., Rivera began banging his head against the wall. One jail official later testified that he was unresponsive and stared straight ahead afterward. He was moved to a padded cell, and a nurse who went to check on Rivera later said he was pacing back and forth, speaking incoherently. The nurse testified that he was in a psychotic state and was “not in touch with the reality of what was going on around him.”
Second, many of the details in his confession didn’t match the crime scene, and his explanation of the circumstances — that he killed 11-year-old Holly after she attacked him with a knife because he refused to have sex with her — seemed improbable.
So the police officers did what they are trained to do to nail down a confession, and to insulate it from allegations that it was coerced. They let him sleep for a few hours, and then returned with a written confession, which Rivera signed. But as they met with the prosecutor and realized that they had problems with the details, they decided to go back again. This time they got more details — including some that they claimed only the killer would have known — had the confession typed, gave it to him, had him correct some typos so he couldn’t later claim that he had not read it (part of the training that they receive), and had him sign the corrected confession. His confession still claimed that Holly had attacked him and got a written confession, which he signed. There was no physical evidence that tied Rivera to the scene of the crime. Although there was biological evidence available, no DNA test was done.
At his first trial in 1993, Rivera was convicted. He won a new trial on appeal, and that new trial also resulted in a conviction. Yet another appeal led to yet another trial in 2005. But this time, a DNA test had been done on semen found in Holly’s vagina, and that semen was definitively NOT the DNA of Juan Rivera. Should be a slam dunk for the defense, right? A coerced confession, negative DNA, no physical evidence, not even any witnesses linking Rivera to the crime.
The prosecution argued — improbably — that the presence of the other DNA shows that 11-year-old Holly was sexually active with someone else (no evidence of that), so this doesn’t mean that Rivera is not guilty. This is what is sometimes called the “unindicted co-ejaculator” explanation. However possible it might be with an adult woman who is sexually active, it seems to be even more improbable than Rivera’s confession, which claimed that Holly attacked him for not being able or willing to have sex with her. (This is not just an Illinois stupidity; Virginia’s Earl Washington came within 9 days of being executed for a rape and murder he did not commit. When DNA evidence showed that he was not the contributor of the sperm, the Culpeper Commonwealth Attorney argued that there must have been someone with Earl when he raped and killed the victim. Earl’s confession claimed that he had committed the crime alone, and the victim’s dying statement to the police was that she was attacked by “one black man.” When a more detailed DNA test was run on the evidence, and it was clear that there was NOT a mixture of sperm, Earl Washington was given a full pardon on the murder and rape charges. The Culpeper Commonwealth Attorney apparently still does not agree. See this article and this from the Innocence Project.)
Alas, the jury looked only at the confession, and again found Rivera guilty. The case is again on appeal, as Rivera’s lawyers are arguing that his confession was coerced, and that there is no evidence to connect him to the crime. According to the New York Times Magazine, a decision is expected soon.
This case confronts very directly a question that gives appellate judges heartburn — when does an appeals court say, “We don’t care what the jury said — this man is innocent”? Appellate courts are supposed to give all of the benefit of the doubt to the jury verdict returned at trial. They are not supposed to substitute their judgment of the facts for the judgment of the facts made by the jury. They are supposed to look only for legal errors, and to affirm a conviction if there is even a little evidence to support it. Some states have expressed the standard as a “scintilla” test — that the conviction is to be affirmed if there is even a scintilla of evidence to support it. The United States Supreme Court has held that it does not violate the Eighth Amendment to execute someone who is actually innocent of the crime for which he was sentenced to death. Herrera v. Collins, 506 U.S. 390 (1993). The Virginia Supreme Court has said that the question for them is whether any rational factfinder could have found the evidence sufficient. Williams v. Commonwealth, 278 Va. 190, 193, 677 S.E.2d 280, 282 (2009) (quoting Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)).
So what is an appellate court to do when faced with a conviction based on squirrelly, but technically sufficient evidence? I recently asked this of two members of the Virginia Supreme Court whom I met in a social context; they did not answer the question (it might have been inappropriate for me to ask, but it’s an important question). One of the Justices fell back on the old notion that the Court is to defer to the jury verdict; that if a conviction was invalid for some legal reason — not a factual reason like innocence — then they can reverse. But there has to be a legal ruling that was wrong, and they won’t re-weigh the evidence.
The traditional reason given for deference to the jury’s verdict is that the jurors are in a better position to weight the evidence, because they have heard the witnesses first hand. They have had a chance to observe the demeanor of the witnesses on the witness stand, to get a sense of who is telling the truth and who is lying. But research shows that under some circumstances, appellate courts may be better at factfinding than are juries, such as in making detailed comparisons between conflicting witnesses. See Oldfather, “Appellate Courts, Historical Facts, and the Civil-Criminal Distinction,” 57 Vand.L.Rev. 435, 491–92 (2004).
There are also some types of witnesses — jailhouse snitches are an example — where research shows that juries do NOT understand or appreciate the dangers associated with such evidence. Judges, as a rule, recognize the difficulties with such witnesses. Chief Justice Earl Warren, for example, wrote that the incentives facing jailhouse informants create “a serious potential for undermining the integrity of the truth-finding process in the federal courts.” Hoffa v. United States, 385 U.S. 293, 320 (1966) (Warren, C.J., dissenting). See also United States v. Cervantes-Pacheco, 826 F.2d 310, 315 (5th Cir. 1987) (“It is difficult to imagine a greater motivation to lie than the inducement of a reduced sentence.”); Trott, “Words of Warning for Prosecutors Using Criminals as Witnesses,” 47 Hastings L.J. 1381, 1383 (1996). Lay jurors don’t seem to see the same problem. An article in the peer-reviewed Journal of Law and Human Behavior describing two experiments that explored this problem concluded:
The results of both experiments revealed that information about the cooperating witness’ incentive (e.g., leniency or reward) did not affect participants’ verdict decisions.
Neuschatz, et al., “The Effects of Accomplice Witnesses and Jailhouse Informants on Jury Decision Making,” 32 J.Law Hum. Behav. 137, 142 (2008).
Other research dealing specifically with false confessions has documented the fact that lay jurors do not adequately appreciate the risk that they are basing their decision on a confession. The Association for Psychological Science has an article on line that discusses some of that research:
In a 1997 study, [psychologist Saul] Kassin and colleague Katherine Neumann gave subjects case files with weak circumstantial evidence plus either a confession, an eyewitness account, a character witness, or no other evidence. Across the board, prospective jurors were more likely to vote guilty if a confession was included in the trial, even when they were told that the defendant was incoherent at the time of the confession and immediately recanted what he said.
Kassin and Neumann also did two simultaneous studies to further explore the power of confessions. In one, they had people watch a trial and turn a dial to rate the extent to which evidence convinced them the defendant was guilty or innocent. The other asked potential jurors after the trial which evidence was most powerful. In both the mid-trial and post-trial ratings, jurors saw the confession as the most incriminating. Other studies have shown that conviction rates rise even when jurors see confessions as coerced and even when they say that the confession played no role in their judgment. “I don’t honestly think juries stand a chance in cases involving confessions,” Kassin says. “They’re bound to convict.”
Most judges would not honor such a confession.
So what is an appellate court to do? In my experience, judges and justices say, “It’s not up to me to make the rules — just to enforce them.” The problem with this is with how judges define the “rule” that they are enforcing. Is the rule that they are enforcing “Everything comes in unless I can find a rule to keep it out”? Or is the rule that they are enforcing “Only reliable evidence comes in”? Is the rule that they are enforcing “We give deference to the findings of fact by juries”? Or is the rule that they are enforcing “If the only evidence of guilt is unreliable, we should find the evidence insufficient”? If the jury gets it wrong, will the Illinois Appellate Court have the guts or the common sense to say so?
