Authors: Steve Bogira
THE SPECIAL SUSCEPTIBILITY
of the mentally retarded to the giving of false confessions has long been recognized by experts in retardation. “
The retarded are particularly vulnerable to an atmosphere of threats and coercion, as well as to one of friendliness designed to induce confidence and cooperation,” John F. Kennedy’s President’s Panel on Mental Retardation observed in 1963. “If a confession will please, it may be gladly given.”
Since it was first published in 1962, the book
Criminal Interrogation and Confessions
, by Fred Inbau and John Reid, has been considered the leading authority on interrogation by many police departments, including Chicago’s. The latest edition, published in 2001, includes a new chapter on “Distinguishing Between True and False Confessions,” which concedes that according to
“anecdotal accounts,” a high proportion of false confessions are obtained from “mentally handicapped” suspects. A suspect with mental disabilities “generally lacks assertiveness and experiences diminished self-confidence,” the book says. “In many cases he will have a heightened respect for authority and experience inappropriate self-doubt,” and therefore may be “more susceptible to offering a false admission when exposed to active persuasion.” The new chapter advises investigators to use persuasive tactics cautiously with such suspects, to rely instead primarily on “simple logic to convince the suspect to tell the truth,” and to “take
great care in obtaining corroborative information to verify the trustworthiness of the statement.”
But in this latest edition, as in earlier ones, investigators also are advised that they “may have to resort to
dramatic tones and gestures” with unintelligent subjects, and that it “may even become necessary at times to invoke some feigned displays of impatience.” The book counsels that “throughout the interrogation of an unintelligent, uneducated offender with a low cultural background, the investigator must maintain a positive attitude, without ever relenting in the display of a position of certainty regarding the suspect’s guilt (unless there are clear behavioral indications reflecting truthfulness). It is only a matter of how, when, where, or why the offender did the act in question.”
Before Young’s trial, Greenberg asked Judge Durkin to suppress his confession on the grounds that Young’s retardation had rendered him incapable of understanding his Miranda rights and the implications of waiving them. The landmark
Miranda v. Arizona
ruling of 1966 not only requires that authorities inform anyone taken into custody of his right to a lawyer and to remain silent; it also imposes a “
heavy burden” on the state to show that anyone who waives those rights and talks to police does so “knowingly and intelligently.”
But abiding by this requirement—like abiding by the requirement that a confession be given “voluntarily”—would result in the freeing of a not-inconsiderable number of defendants who’d confessed to dreadful crimes. So judges instead have frequently found the decision to decline a lawyer and speak to police to be knowing and intelligent even when it’s made by a person in his early teens or with an IQ in the fifties.
The two psychiatrists who deemed Young fit for trial had also told Judge Durkin that Young was too retarded to knowingly and intelligently waive his Miranda rights. So had the third mental health expert who evaluated Young, Dr. Edward Blumstein, director of the psychology department for the Cook County courts. Blumstein told Durkin that Young had the mental age of a six- or seven-year-old. “This man is not simply slow,” Blumstein testified. “This man is not merely mildly retarded. This man has very serious and severe intellectual deficits.”
But Mike Rogers, the assistant state’s attorney who wrote up Young’s confession, testified he’d worked with retarded children in a recreation program his senior year of high school and therefore felt he knew how to explain something so a retarded person could grasp it. Rogers maintained he gave the Miranda rights slowly and plainly to Young, asking him questions to make sure he understood them.
Judge Durkin decided that the “extensive experience” of prosecutor
Rogers with the retarded kids in the recreation program trumped the experience of the three doctors on the Miranda issue. Young may have been a “mental defect” and a “defective product,” as Durkin had called him, but he had “exercised sufficient intellectual competence” in deciding to talk with police.
Locallo likewise thinks a retarded person can intelligently waive Miranda if the rights are carefully explained to him.
The authors of
a study published in the
University of Chicago Law Review
in 2002 tested that idea. The authors read the Miranda warnings to forty-nine mentally retarded persons who had an average IQ of 55.5. The subjects were given simplified synonyms for the key words in the warnings, then were tested on their understanding of the warnings. A control group of nondisabled subjects displayed an overall comprehension of the Miranda warnings, but the retarded subjects didn’t understand the key words of the warnings, or the simplified synonyms, or the basic purposes of the warnings, or the implications of waiving Miranda rights. The study’s authors concluded that waivers of Miranda rights by retarded persons “are ‘voluntary, knowing, and intelligent’ only if we are willing to manipulate and distort the very meaning of these terms.”
One of the detectives who helped get the confessions to the Morgan murder, Kenneth Boudreau, has had
a checkered career. In 1995, Boudreau got a murder confession from a man who was later exonerated by DNA evidence. That defendant, Derrick Flewellen, maintained he signed his confession after Boudreau slapped him, choked him, and slammed him against a wall. Flewellen, who was locked up for four and a half years before he was cleared, sued the city and won a settlement of $250,000.
Boudreau has also gotten murder confessions from at least three other retarded suspects who were acquitted at trial, and from a thirteen-year-old with an IQ of 73 whose confession was suppressed by a judge who ruled that the youth couldn’t have intelligently waived his Miranda rights.
Boudreau, who has received numerous commendations during his career, once served as a detective under Jon Burge, the commander who ultimately was fired for torturing suspects at Area 2. Like many police officers,
Boudreau helped pay for Burge’s defense when he was facing those charges by selling raffle tickets and contributing money.
BECAUSE OF THE MEDICINE
Young was being given the year of his trial (1994), he was brought to the jail hospital monthly that year for brief evaluations. Judge Durkin had ruled that Young was fit for trial, that he could assist his lawyer in his defense, and that he understood the nature and purpose of the proceedings against him. Young’s understanding of the
proceedings against him apparently included the idea that his release was imminent: every month, according to jail hospital records, he told the doctor or the aide who saw him that he was going home soon. He was also seen in the hospital after he was convicted but before he was sentenced. “I should be going home pretty soon,” Young said again.
Now, four years later, during the hearings in Locallo’s courtroom, he still seems blissfully unaware of his life sentence. Deputy Laura Rhodes says, “Once he told me, ‘My mama’s going to Mississippi next month, I hope I can go, too.’ I said, ‘Yeah, I hope you can go, too.’ ”
When Young was born in 1960, the nation’s mentally impaired were far more likely to end up in a mental hospital than they are today.
The rate of hospitalization for the mentally ill declined from 400 per 100,000 in 1960 to less than 50 per 100,000 by 1990. The deinstitutionalization movement that began in the 1970s was supposed to provide a higher quality of life for the mentally retarded and mentally ill, in community settings, at less cost for government. But
the money promised for community services for the deinstitutionalized wasn’t provided, and many of the mentally disabled have wound up homeless, or in a different kind of institution—a jail or prison. The Department of Justice estimated in 1999 that 16
percent of the inmates in U.S. jails and prisons were mentally ill. That would equal
333,000 of the current inmate population—which doesn’t include the number of mentally retarded inmates. Retardation often isn’t formally identified in jails and prisons, so estimates of its incidence are less certain.
The number of patients in state and county mental hospitals has dropped from 370,000 in 1969 to 55,000 in the year 2000.
Despite the prevalence of mental disabilities among defendants, and notwithstanding
a widespread public belief that insanity acquittals are common, insanity defenses are rarely even attempted. An
eight-state study funded by the National Institute of Mental Health, published in 1991, showed that the insanity defense was raised in less than one percent of all felony cases and was successful only 26 percent of the time it was raised.
In Cook County thirty-one felony defendants were found not guilty by reason of insanity in 2003—out of thirty thousand felony cases. Nor is an insanity verdict a get-out-of-jail-free card. Insanity acquittees are almost always committed to secure mental hospitals and usually can’t be released without a judge’s approval. Insanity acquittees often spend
more time in custody than defendants convicted of similar charges and sent to prison.
Defendants who have mental disorders or defects but are deemed able to “appreciate the criminality” of their conduct can be found
guilty but mentally ill instead of insane in thirteen states, including Illinois. Such convicts
go to prison and, in Illinois and most states, often receive no more mental health treatment than other prisoners.
Locallo has never had an insanity acquittal in his courtroom. An insanity defense “might work on the East Coast and the West Coast, but it doesn’t go over too well in the Midwest,” he says, because of the “good common sense” of midwesterners. If a person can appreciate the criminality of his conduct, “then no matter what his mental disease or defect is, he should suffer the consequences,” the judge says.
The consequences suffered by mentally disabled convicts often are especially harsh.
They kill themselves and try to do so far more frequently than other prisoners, and they have many more run-ins with guards and other inmates.
Mentally retarded prisoners in particular often have trouble comprehending what’s expected of them, which leads to frequent punishment, including solitary confinement, and sometimes to longer sentences. Retarded inmates are also more likely to be exploited and injured than other prisoners.
Deputy Guerrero doesn’t believe in giving a prisoner a hard time if the prisoner hasn’t caused him any problems, and Dan Young never has—he’s been docile in the lockup. But after one hearing in Young’s case, an idea struck Guerrero that the deputy couldn’t resist.
Guerrero and Rhodes were sitting in the sheriff’s station, Guerrero gazing idly at the lockup monitor, when the inspiration hit. Young was alone in the lockup, sitting on a bench. “Watch this,” Guerrero said to Rhodes with an evil grin. He leaned over to the lockup mike.
“Daan Youung,”
the deputy said in a ghostly tone.
“This is God.”
Guerrero and Rhodes watched on the monitor as Young’s head jerked from side to side and up and down in search of the disembodied voice. Rhodes frowned and shook her head while Guerrero roared.
Locallo will ultimately decide not to grant Young a new trial. In a May 1999 ruling the judge will conclude that Young’s mental functioning wasn’t impaired by the psychotropic medicine he was being given at the time of his trial. He will note that nothing about Young’s behavior had caused Judge Durkin to order a psychiatric examination of Young. “This court has the highest respect for the manner in which Judge Durkin has conducted himself as a member of the judiciary,” Locallo will say of his friend and former mentor. “He is well aware of the due process that is owed to defendants.”
LARRY BATES
and his mother are the first arrivals in 302 on Monday morning, June 15, the day Bates is required to turn himself back in from his weekend I-bond.
He enjoyed his son’s graduation ceremony at Orr High School, on Chicago’s west side. One of the school’s deans, Thomas Hill, addressed the graduates, and Bates felt almost as if Hill were speaking directly to him. The dean advised the graduates to be “ready to battle being tired and disgusted because things aren’t going right.” And he urged them to take charge of their lives. “If you don’t have any passion, get some,” he said. “If you don’t have any will, get some.”
After the ceremony Bates and his family had ribs and cake at a relative’s house. Bates declined the beers and cocktails he was repeatedly offered, opting for pop instead. A relative tried to give him a bottle of Crown Royal whisky with which to celebrate his brief freedom; he turned that down, too. Booze had led to cocaine in the past, and he was being careful about such triggers. Bates was surprised at how much temptation went with a weekend I-bond. Before he’d departed the jail, some of his fellow inmates counseled him to grab his chance and never come back, to consider moving out of state. “No, I’m trying to change my life around,” Bates told them.
The graduation ceremony and the party afterward were tainted by one matter, however. Five days before the graduation, Larry’s son himself had been arrested for selling drugs. Police say they saw him dealing in a west-side alley and that they found 0.2 grams of crack nearby. Since it was his first arrest, he was released the next day on his own recognizance. Father and son thus both attended the graduation on I-bonds from drug cases.
In the gallery this morning, Bates blames his son’s dealing on the influence of his son’s cousins, who Bates says have been raking in cash on drug spots and convinced Bates’s son that he could, too. “It don’t take much to turn an individual to that, especially when his pockets are empty,” Bates says. Over the weekend Bates told his son to think long and hard about what he was doing and warned him that jail “ain’t no party.” Bates says he feels guilty about being in jail when his son could use his guidance. “I hope he’ll do something decent, not end up in here like his dad. All I can do is try and turn my life around, try to be a better provider and a better role model for my kids.”