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Monday, 19 November 2012 10:21

Wrongfully Convicted: The Problem of False Confessions

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BILL BERKOWITZ FOR BUZZFLASH AT TRUTHOUT

After spending thirty years in prison for a crime he did not commit, a Missouri Circuit Judge has overturned the murder conviction of George Allen Jr. The state's Attorney General is appealing the decision.

On Wednesday, November 14, George Allen, Jr., 56, after having served 30 years in prison for a crime he did not commit, walked out of a Jefferson City, Missouri courtroom a free man - at least temporarily. The now gray-haired Allen, dressed in a blue-plaid shirt and black slacks, hugged his mother, Lonzetta Taylor, and sister, Elfrieda Allen, for the first time in a very long time.

"I hadn't touched him in years," his mother said. "We've always spoken behind a glass. There are no words that could describe how that felt."

Twelve days earlier, a 75-page ruling issued by Cole County Circuit Judge Daniel Green overturned the conviction of Allen for murder, rape, sodomy and first-degree burglary in the February 4, 1982, killing of Mary Bell in her apartment in the LaSalle Park neighborhood of St. Louis. Allen, a diagnosed schizophrenic, had been sentenced to 95 years in prison.

Allen was released on his own recognizance, but he has not yet been fully exonerated.

According to KSDK.com, "The judge explained to Allen that he will not be the final judge to look at the case. Missouri Attorney General Chris Koster appealed the court's ruling overturning the conviction. The judge said the appeals court in Kansas City and possibly the Missouri Supreme Court may review the case." The Missouri Court of Appeals Western District and possibly the Missouri Supreme Court, may be the final arbiters as to whether he remains free.

The Long Road to Freedom

Molawyersmedia.com pointed out that "During the penalty phase of the trial, one of the jurors had to be excused due to a family emergency, which forced the state to waive the death penalty, according to information provided by the Innocence Project, which fought for Allen's freedom."

"It's sobering to think what might have happened if Mr. Allen had received a death sentence," Olga Akselrod, staff attorney with the Innocence Project, said in a statement. "It took years and multiple rounds of DNA testing to finally get to the bottom of this case. That's time Mr. Allen wouldn't have had if he had received a death sentence."

After the St. Louis Circuit Attorney, Jennifer Joyce, announced her decision not to retry Allen, Missouri Attorney General Chris Koster said he would appeal the judge's decision. "We believe the facts and circumstances of the case and the trial court's findings should be examined by the appellate court as part of the normal safeguarding process," the attorney general's office said in a prepared statement.

In his original ruling, Judge Green wrote: "The undisclosed evidence, considered together, points unavoidably to the conclusion that the police - and Detective [Herb] Riley in particular - ignored and hid evidence pointing to someone else as the perpetrator in their zealous pursuit of Allen's conviction."

Allen was arrested six weeks after Mary Bell's murder because he resembled a suspect in the case, and didn't have a photo ID proving he was not that man. At the station, police determined he was not who they were looking for, but decided to interrogate him about the Bell murder anyway. Mentally ill and under the influence of alcohol, Allen agreed with Detective Riley that he must be Bell's killer. He could provide no information not previously known to police, and the transcript of the interview shows him to be ignorant of the crime. He agreed with Riley's suggestions and changed his answers to suit them.

That statement to police became the chief evidence against him. His family swore that he was 10 miles away at home when the murder took place, during a snowstorm that had shut down bus service across the city. At his first trial, a hung jury voted 10-2 for acquittal. At a second trial, the state offered alibis for other suspects, and he was convicted. He narrowly escaped a death sentence.

In 1996, volunteer prison minister Tom Block wrote to the Innocence Project on Allen's behalf. DNA testing done in 2003 showed that semen from swabs came from Bell's boyfriend, not - as the state had argued at trial - from Allen. But that was not enough to free him.

According to the St. Louis Post-Dispatch, "the judge relied upon several factors" in granting the writ for Allen's release:

  • "Test results showed that semen found on Bell's robe could not have belonged to Allen, nor her live-in boyfriend, nor her estranged husband."
  • "Internal police memos indicated that detectives knew of those results, used them to exclude other suspects, but persisted in pursuit of Allen and got him to confess."
  • "A police fingerprint technician erroneously testified that seven key fingerprints 'were of no value.'"
  • "A drawing of the crime scene Allen made for police did not accurately depict the layout of Bell's apartment."
  • "A key witness, whose testimony helped corroborate Allen's confession, had been hypnotized prior to making her statements."

The judge's ruling found "NO evidence of prosecutorial misconduct whatsoever." But he wrote: "The undisclosed evidence would have provided the defense affirmative proof - foreign semen and fingerprints that could not have come from Allen — that someone else raped and killed Ms. Bell."

Uncovering Exculpatory Evidence

Rosa Greenbaum, a Florida-based criminal defense investigator who specializes in capital post-conviction and actual innocence cases, played a significant investigative role in Allen's case. She responded to questions about the case through a series of emails.

Bill Berkowitz: Explain the role you played in George Allen's case?

Rosa Greenbaum: In August of 2009, some twenty-seven years into the case, I was hired by the Innocence Project, and the law firm of Bryan Cave in St. Louis to assist in the investigation of George Allen's innocence claims.

In late 2010, I interviewed a state witness and learned that she had been hypnotized in order to produce her 1983 testimony, in which she provided a detail that appeared to independently corroborate George's confession. Hypnotically induced testimony is suspect and was ruled inadmissible in Missouri courts in 1985.

In early 2011, I discovered a memo and serologist Joseph Crow's handwritten lab worksheet with the cross-outs, which showed that semen at the crime scene was inconsistent with Allen or the victim's boyfriend.

This past spring, I was able to decipher the examiner's notations on envelopes containing the crime scene prints and in his worksheets which had just been provided by police. The notes revealed seven fingerprints that had not been identified prior to the trial. On the stand, the examiner denied that any such prints existed; his testimony was false.

Additional exculpatory evidence came to light through depositions and the Attorney General's own investigation. George's brilliant legal team deployed all of it with great skill in crafting the arguments for relief that ultimately prevailed.

BB: How do you approach these cases?

RG: The most important thing when doing this work is, first, read
everything. Then, read everything again. Repeat until it makes some sense. When dealing with witnesses, listen more than you speak. Act like an anthropologist: be interested in people and the stories they tell -- including those that exist in prisons and police reports.

BB: More and more of the wrongfully convicted have been exonerated over the past several years. How does the Allen case fit that paradigm?

RG: At an oral argument last May before Judge Green, Barry Scheck [co-founder and director of the New York City-based Innocence Project] demonstrated, point by point, how every detail in George's "confession" was either erroneous or came from Detective [Herb] Riley's prompting.

George's case highlights the need for substantive changes, including requiring video recordings of all such interviews in their entirety. Such a record can preempt concerns about the process through which an incriminating statement may have been obtained.

People are beginning to better understand the problem of false confessions. Of the 300 DNA exonerations documented by the Innocence Project since 1989, a false confession played a role more than a quarter of the time.

One of the Lucky Ones

The case of George Allen, Jr., did not draw the same media/celebrity attention some other false confession cases. Damien Echols, James Baldwin, and Jessie Misskelley Jr. -- also known as The West Memphis Three -- were convicted of the 1993 murder of three 8-year-old boys. Their case was the subject of several documentary films and after the case garnered international attention, they were freed from prison (Echols from death row) in 2011.

Nor is there likely to be a Ken Burns-directed film about Allen's case. Burns' new film, The Central Park Five is about the five black and Latino teenagers who were wrongly convicted and imprisoned in the 1989 rape of a white woman in Central Park; a serial rapist confessed to the crime.

On November 14. Allen celebrated his release from prison, and he issued a statement:

"For 30 years I had dreamed about the day that I would walk out of prison a free man.  I have spent 30 years in prison as an innocent man, and those have been difficult years for me and my family, but I never gave up hope. I knew that someday the truth would come out, and now that day is here. I look forward to living with my family again and getting on with my life. I thank my mother and family for standing by me all these years, and I thank my attorneys at the Innocence Project and Bryan Cave for helping me.  Thank God this nightmare is finally ending."

As Rosa Greenbaum pointed out, "This is a great day for George and his family. But justice delayed -- 30 years delayed! -- is justice denied. Sadder still, many more wrongfully convicted people will never enjoy such a day -- there are simply not enough free lawyers and investigators to go around. As counterintuitive as this might sound, George is one of the lucky ones."

After thirty years behind bars, George Allen, Jr. is now free. Whether he remains free will be up to a court in Kansas City.