Cultivated Compendium

The Crime Report, a news service about criminal justice published by the Center on Media, Crime and Justice at the John Jay College of Criminal Justice in New York, ran my piece about the case of a false confession in a double murder in West Philadelphia:

When Nafis Pinkey was taken into a Philadelphia Police Department homicide interrogation room in the 24 hours after his childhood friend was murdered, he had no idea that he would become a murder suspect.

In August 2009, the bodies of Jonathan Pitts, Pinkey’s friend since the days they went to the same daycare, and Pitts’ girlfriend, Nakeisha Finks, were found with their wrists and feet bound and their eyes and mouths covered with duct tape, in their West Philadelphia house.

They had both been shot in the back of their heads.

Pinkey joined the crowd of other concerned friends and relatives, who had gone to the house when Finks did not show up for a client’s hairdresser appointment. He had been in the house the night before.

He went voluntarily to the homicide unit after uniformed officers asked him if he would go. They assumed that he was one of the last people to see the couple alive.

But during the estimated 24 hours he spent in a locked interrogation room, under periodic questioning, things got “worse,” Pinkey recalled.

“What I mean by worse: it got more physical, more confrontational.”

Pinkey confessed to involvement with the crime. According to his statement to the police, which was later presented in court, he had arranged for Pitts’ home to be burglarized by suggesting a compatriot climb through a window with an air conditioner loosely set into its frame.

Then two burglars (Pinkey was not one of them) allegedly killed the couple.

Four Years in Detention

Held without bail because he originally was charged with capital murder, Pinkey spent the next four years in detention in the Philadelphia Prison System awaiting trial.

The case took so long, in part, because Pinkey changed defense lawyers midway. His defense counsel also asked for a delay in starting the trial to wait for a ruling from Pennsylvania Supreme Court on the admissibility of expert testimony about why false confessions happen.

In early October, Pinkey was acquitted.

The two men Pinkey fingered as the murderers were never charged. No one else besides Pinkey has ever been charged with the murders.

One factor in his acquittal was Pinkey’s testimony that his original confession had been coerced—and was false. One of the detectives who interrogated Pinkey testified during the trial. That left the jury with two stories to compare on who was more credible.

“I was very emotional. I was confused. I was just saying anything that would get me out of the door,” he told The Crime Report.

The jury took Pinkey’s claim into account, along with inconsistencies in the prosecution’s case, when it freed him. But according to his lawyer, Gregory Pagano, his long pre-trial imprisonment might have been avoided if Pinkey’s “confession” had been videotaped—providing authorities with an impartial means of weighing the evidence against him.

600 PDs Videotape

While videotaped interrogations are common in law enforcement—at least 600 U.S. law enforcement agencies now conduct them—Pagano told The Crime Report he couldn’t remember a single case in the Philadelphia Police Department where an interrogation was videotaped.

This was confirmed by others familiar with the Philadelphia system.

Paul G. Conway, chief of the Defender Association of Philadelphia’s homicide unit, said that his office has never defended a homicide case in which the interrogations were taped.

There have been videotapes of defendants reading their confessions or answering questions on whether their confessions were voluntarily, Conway said. But not in all cases, he said.

Both Conway and Pagano cited several other homicide cases that have involved coerced confessions.

The Philadelphia police’s practice of not videotaping interrogations may soon change.

The Philadelphia Police Department plans to ask for funding to buy the required equipment, with a goal of making such equipment available in all four interview rooms in the homicide unit at some point in the future.

Philadelphia Police Commissioner Charles Ramsey testified in a budget hearing in April that the department was behind other jurisdictions in videotaping interrogations.

“I think that we have to do all we can to make sure that the right people are arrested and charged with crimes and that everything is above-board, and I think that the videotaping of interrogations certainly does that,” the commissioner testified.

During the hearing, Ramsey said the office still needed to put together an estimate on how much it would cost to install video-recording equipment.

The plan was to make a request for a capital expenditure, Ramsey said. He added he favored recording in all violent felony cases.

A spokeswoman for the police department declined to provide an estimate of the cost or a time frame for when recording would start.

“The standard operating procedures are in the process of being completed,” Police Officer Jillian Russell said in an email.

Advocates Hopeful

Yet advocates for recording interrogations are hopeful.

“They are moving very quickly,” reports Marissa Boyers Bluestine, legal director of the Pennsylvania Innocence Project. “They’ve gotten all the directives in place.”

But the municipal budget is strained, Bluestine added.

“Part of the problem in Philadelphia is frankly a resource one,” she said, noting that Philadelphia’s homicide unit is located in an old building that is badly in need of retrofitting.

Ramsey testified that there were expenses associated with wiring and rehabilitating outmoded facilities to handle video recording.

According to Bluestine, the best practices to prevent false confessions include: taping entire interrogations from the moment a suspect sits down, stopping interrogations from extending beyond three hours and continuing investigations even after confessions have been signed.

The International Association of Chiefs of Police has made wrongful convictions a priority. A recent article from Police Chief Magazine reported that the best practices to avoid false confession include recording the entirety of interrogations, and keeping secret some crime details to ensure innocent suspects do not just parrot back inside information gleaned from their interrogators.

Richard Leo, an academic who has been doing empirical research on police interrogation practices for 20 years and is a frequent expert witness in cases involving false confessions, said he is seeing a growing movement nationally to record confessions.

Leo said the movement has developed because of greater understanding of what causes false confessions.

He listed, for example: 

* lying to suspects about the evidence against them;
* the length of interrogations;
* the propensity of people to comply with authority;
* mental illness or low intelligence;
* and implications from police interrogators that if a suspect makes an admission, he is “not admitting to a crime or admitting to something that has very serious consequences.”

Philadelphia’s suburban neighbor, Montgomery County, is one jurisdiction that has joined the movement to record confessions.

Montgomery County District Attorney Risa Vetri Ferman, the top prosecutor in the third largest county in Pennsylvania, said her office started a pilot program of recording homicide interrogations about 18 months ago.

The office has since expanded the pilot to include videotaping confessions in cases of violent felonies at one county police department.

Nine suspects agreed to speak to county detectives, but only three also agreed to be taped, Ferman said.

She was surprised that the vast majority of suspects refused to be videotaped but consented to have their conversations memorialized by detectives’ note-taking.

But the pilot also has benefited prosecutors in the courtroom.

In one case that went to trial with a videotaped confession, Ferman was “a little startled” at the power of seeing the defendant talking about the murder he committed with “no possible suggestion that the words were coming from someone else.”

Edward McCann, the first assistant district attorney in Philadelphia District Attorney Seth Williams’ office, said right now only one of the city’s homicide’s interrogation rooms is capable of videotaping and it is used only in a very limited fashion.

‘Proper’ Training Needed

“I think that police officers and prosecutors, properly trained, could do this and do it well,” said McCann. “It would just enhance the cases and take away a lot of the arguments about coercion and force and things of that nature.”

“I definitely see it as a positive.”

He notes that video recording is available in one Philadelphia interrogation room, but it has never been used to record entire interviews. Instead, it has been used occasionally to record defendants answering if they gave their confessions voluntarily and if they were treated well during their interrogations.

(That was not done in Pinkney’s case, according to Pagano.).

A videotape also is more powerful evidence to present to a jury because they can see the defendant’s demeanor at the time of the interrogation, McCann said.

McCann, however disagrees with advocates who call for setting a time limit for interrogations.

“That said, if you’re going to hold someone for 24 hours you better have a lot of reasons for that to happen for a judge to say that’s OK,” McCann said.

One example: the need for investigators to corroborate other information in order to confront a suspect.

The irony, Bluestine said, is “that innocent people in some ways are more likely to give a false confession just because they’re more willing to talk to police.”

This week is sort of the high holidays for media-law attorneys: Media Law Resource Center’s annual meetings, a communications law program at Practising Law Institute and several other events. There was a fascinating discussion Thursday at PLI on reporters’ privilege with several general counsels of major medial companies.

New York Times reporter James Risen, who the Fourth Circuit has ruled must identify a confidential source in the case of a former CIA agent suspected of being a leaker, should seek certiorari with the U.S. Supreme Court--otherwise he may have to go to jail to protect his unnamed source, said Lee Levine, a leading First Amendment lawyer with Levine Sullivan Koch & Schulz.

But Levine said he does not think that the U.S. Supreme Court would take the case.

If the U.S. Supreme Court takes the case, there could be five votes in favor of recognizing a qualified common law privilege for reporters’ confidential sources, Levine said. Justice Anthony Kennedy would be the key vote, he said.

Justice Stephen Breyer, who often votes unfavorably on First Amendment issues, might vote in favor of recognizing a qualified common law privilege because he favors balancing tests in his jurisprudence, Levine said.

David McCraw, vice president and assistant general counsel for The New York Times Company, said there will never be an ideal test case on reporters’ privilege and he fears the next test case would be brought by a "blogger in a bathrobe.”

Karen Kaiser, associate general counsel for The Associated Press, said the "time is now to bring these critical principles to the forefront."

Barbara Wall, vice president and senior associate general counsel for Gannett and who was part of the group who attended meetings with Attorney General Eric Holder after it was revealed that both Associated Press and Fox News had phone lines tapped by federal law enforcement without notice, said the federal prosecutors “felt, particularly with the Rosen subpoena, they felt they had to allege that Rosen was involved in criminal behavior.” Rosen was alleged in court papers to have broken the law as an aider, abettor and/or co-conspirator, but he was not charged.

The Department of Justice’s draft revised guidelines, which still have to be finalized, are an improvement, said Bruce Brown of the Reporters Committee for Freedom of the Press.

Most of the panelists favor the reporters shield bill pending in the U.S. Senate.

Kaiser said, that before prosecutors can access information from the media without notifying them ahead of time, the shield bill would require a judge to find that there is clear and convincing evidence that disclosure would be a threat to an ongoing criminal investigation.

The shield law "does eliminate clear prosecutorial overreach," Kaiser said.

Eve Burton, senior vice president and general counsel for The Hearst Corporation, was the sole contrarian on the panel in opposing the shield bill.

The privilege would not apply at all in the national security context, Burton said.

Separately, Burton said there is another issue with media companies moving their computer systems into the cloud.

Microsoft and AOL are willing to contract with media companies that they will always provide notice that the government has sought to access information about the media companies--unless there is a governmental order precluding disclosure, Burton said. But Google and Amazon are not, she said.

Google and Amazon want to retain the discretion not to have to disclose that there has been governmental access to media companies’ information, Burton said.

The result is that Hearst and other companies are not joining the cloud or taking their business elsewhere, Burton said.

Google and Microsoft and other tech companies are better at protecting from hackers than media companies are, but they are not willing to go to jail to protect their sources, Wall said. So the middle ground might be to have some computing functions on the cloud, but to keep e-mail in-house, she said.