CHAPTER 65
Friday, May 25, 2001
For the final day of defense testimony, the Springsteen team chose to focus on the psychology behind false confessions. To guide the court through the myriad pathways as to why a person would confess to a crime they did not commit, the defense called in Dr. Richard Ofshe, a Pulitzer Prize–winning professor and an expert in coerced and false confessions. Dr. Ofshe testified in the high–profile trial of Jessie Misskelley, one of the so-called West Memphis Three, who had been profiled in the two
Paradise Lost
documentaries.
Dr. Ofshe spent most of his time testifying outside of the presence of the jury. Berkley Bettis led the direct examination of the doctor. “Please tell the court what is the major analytical method for determining the existence of a false confession.”
“The existence of a false confession,” the doctor responded, “would be determined ultimately by the relationship between the evidence in the case and the confession itself.
“So one is looking for a demonstration of actual knowledge of the crime, or a pattern of errors that would ultimately appear to be guesses.”
“Is there a common misperception among the public about persons who confess to the commission of the crime?” asked Bettis.
“People presume that someone who did not commit a crime, who was not tortured, would not give a false confession. And knowing nothing about how interrogation works, it appears not to make any sense for someone who didn’t commit the crime to give a confession.
“Interrogation is complex,” continued Dr. Ofshe. “It is a system of influence that has been developed over the years for the purpose of manipulating someone’s decision-making. Unless you know each and every step in that system of influence, you can’t even begin to comprehend how someone would do something that foolish.
“So, police interrogation makes a great deal of sense to an ordinary individual if it is explained to them how it works step by step, because it is a logical process. But knowing the details allows one to see why it can culminate, if misused, in a false confession of someone who did not commit the crime.”
Bettis asked Ofshe to provide a scientific framework for a false confession.
“I can do two things,” surmised Ofshe. “One, I can explain how interrogation is built and give the jury a framework so they can evaluate the presence or absence of these techniques in the interrogation itself.
“And then I can give them a set of principles that they can use for weighing the statement to try to make their own decision about whether or not they should treat it as a true or false confession.”
Bettis passed the witness.
Before Efrain de la Fuente could cross Dr. Ofshe, Judge Lynch stepped in.
“Doctor, what do you propose to testify to concerning this specific case?”
“[I] propose to testify in general about the fact that false confessions occur,” answered the doctor, “about the types of false confessions that are generally recognized to occur.”
“What are those?” asked Lynch.
“Those are what we call voluntary false confessions, or compliant false confessions, or what are called persuaded false confessions.”
“Let’s hear an (en)capsulated version of that, if you don’t mind,” demanded Lynch.
“Modern police interrogation depends on manipulating a person’s perception of the situation in which they find themselves and their expectations for the future.
“The first major step is to convince them that their situation is hopeless. Through the use of ‘evidence ploys,’ which are references to claims of the existence of evidence, which, if those claims were true and the facts alleged were . . . reliable and valid, would tend to link the person to the crime.
“The object for the interrogator is to convince someone that there is such overwhelming evidence that links you to the crime that I am personally convinced that anyone else looking at this evidence will be convinced that you committed this crime.
“The purpose in doing this is to take someone who initially expects to be able to survive the interrogation and change their perception of their situation so that at a certain point it’s probably reasonable to characterize them as seeing their situation as hopeless. The cost of making the admission has now been substantially reduced, which means it then gets easier to obtain the confession.
“So now the interrogator starts introducing a series of motivational tactics which are intended to get the person to take the last step to say, ‘Okay, I did it.’”
Dr. Ofshe described the tactics commonly used for “compliant false confession” and “postadmission narrative.” Of the former, he stated that, “an innocent person is not going to falsely confess simply because they are told, ‘Do the right thing. Be a man about it. Make yourself out to be a better person’—[it’s] simply not going to work.
“But if an interrogator is willing to go up the scale and an interrogator is willing to introduce psychologically coercive methods . . . [for example] a threat or offer of help, then the situation can break down to the point at which it appears to be rational, the best thing to do for someone who did not commit the crime to choose to make a false confession, believing that is their only way to minimize their punishment.”
Dr. Ofshe stated that the postadmission narrative “can incorporate information that will demonstrate a person’s actual knowledge, or can pose the questions that someone who doesn’t have the actual knowledge is now obliged to answer, and in order to preserve the deal that they think they have just entered into, they are likely to guess. They are likely to try to supply answers, but they simply don’t know the right answers.”
Dr. Ofshe concluded by stating that “what is very likely to happen with a false confession is that the person will demonstrate a lack of actual knowledge of the crime.”
The doctor spoke specifically of the Springsteen interrogation. “There are about fourteen different statements in this interrogation which worked to communicate the expectation that if you continue to maintain that you have no information, no knowledge of this crime, then you will be identified as the leader. Whereas, if you cooperate, you will be thought of as a victim and you will get through this.”
Judge Lynch then spoke up. “And this modern police-interrogation technique, this and the other ones you mentioned, are used daily, I would presume, throughout the United States.”
“There are certain tactics,” answered Ofshe, “which . . . are prohibited: to threaten someone with beating them unless they confess, or threatening them with a guarantee of the death penalty, or offering to speak to the judge on their behalf and get them a lesser sentence. Those kinds of coercive tactics are improper, but they nevertheless appear sometimes.”
Prosecutor Efrain de la Fuente cross-examined the doctor about his background. “You are not a licensed psychologist, correct?”
“Correct.”
“You don’t treat people?”
“That’s absolutely right.”
“And you’ve performed no test on the defendant here, Mr. Springsteen, right?”
“I’m not testifying anything about Mr. Springsteen’s personality or personal characteristics. I’m testifying about methods of police interrogation.”
“Now, one of your students who has also coauthored some of your material, Richard Leo—you know Richard Leo, do you not?”
“Yes.”
“Richard Leo actually did a random sampling out of San Francisco, where he just took random cases and said, ‘Okay, these are confessions. Let’s see if we can determine whether they are false confessions or not.’ And he was not able to find any one of those cases to be a false confession. Is that true?”
“No, it is not the truth,” replied an agitated Ofshe, who fumbled his words. “It is, as you typically do, misstate facts. Apparently, you don’t know them.” Ofshe, who worked on Leo’s dissertation committee, was prepared to set the prosecutor straight.
“He did not do a random sample, number one. Number two, he was not studying whether or not there were false confessions in the cases he studied. What he did was study police interrogation methods. He was doing observational study of the kind of tactics that appear in interrogation.
“He never considered the question of whether or not any of the interrogations that he studied resulted in a false confession because he never studied the cases. He only studied the interrogations. He was simply interested in what happened in the interrogations and did not evaluate whether it resulted in a true confession or a false confession.”
Dr. Ofshe was asked to step down for the time being.
After a lunch break, Joe James Sawyer attempted to introduce evidence that would possibly implicate Kenneth McDuff in the murders. The attorney informed the judge of the statement McDuff gave the day before his execution in which he placed himself at the yogurt shop.
“I think given the fact that we know that McDuff was a mass murderer” (actually, a serial killer), claimed Sawyer, “who was engaged in murders throughout this time, given the fact that there was at least one eyewitness who believes she saw him at Northcross Mall, given the fact that we know in an attempt, obviously, to implicate [his partner, Hank Alva] Worley, McDuff places himself at the scene and then goes on to list certain details.” Sawyer also mentioned McDuff had his parole officer’s business card with a hand-drawn map on it with directions to the yogurt shop.
“For those reasons, Your Honor, we believe we meet the burden posed and would respectfully ask that we be allowed to advance that theory in the presence of the jury.”
Judge Lynch addressed the issue. He first stated that the evidence to be included in regard to McDuff would not be sufficient. It was hearsay, as well as multiple hearsay. In regard to the substantive nature of the information, Judge Lynch did not believe the information met the requirements of case law to be included by Springsteen. He also believed McDuff’s statement to be merely a rambling, incoherent, self-serving diatribe that was only uttered to get back at Worley, who testified against him.
The McDuff information was denied.
The jury was brought in for the first time that day. Surprisingly, Robert Burns Springsteen IV would testify on his own behalf. The parents of the girls were stunned by the revelation. It also appeared as if the prosecution was quite taken aback by the pronouncement.
Springsteen took a seat in the witness stand.
“You understand, Mr. Springsteen,” asked Sawyer, “that these people up here in the jury box heard you confess to your involvement in these murders?”
“Well, allegedly confess, yes, sir,” replied Springsteen in a smooth, even tone.
“Well, no, plain words,” Sawyer gently admonished his own client. “You were being asked questions about your involvement and you were making admissions and you were saying that you had the .380 in your hand and that it was fired through the head of Amy Ayers. Are you here to tell these people that that is not true?”
“Yes, I am.”
Sawyer asked him about December 6, 1991. “And is it true that you did sneak into
The Rocky Horror Picture Show
that evening?”
“Yes, it is.”
“Did Mike wait for you?”
“Yes, he did. I believe he also tried to get in and got caught.”
“After the film was over, did you go to Mike Scott’s house and spend the night?”
“Yes, we did.”
Sawyer asked Springsteen about September 15, 1999, the date of his confession. His client informed the jury he had not slept for three days before the interview because he worked two jobs and was making repairs on his house at the time.
Sawyer wanted to know why Springsteen did not leave the interview if he knew he was not their suspect. “Why didn’t you just stop talking to them? Why didn’t you just tell them to go to hell?”
“Well, to be totally honest, I was under the impression that I was not allowed to leave.”
“What kept you there, hour after hour, with these policemen?”
“I thought I had invoked my right to an attorney. I don’t know that much about the law. They totally ignored what it was that I asked of them or asked for them to do for me, so I was under the impression that it wasn’t a valid option for me.”
Sawyer asked the question everyone in Austin wanted an answer to: “How is it that you got to the point where you could admit to participating in a terrible crime like this? How did it happen?”
Springsteen hesitated. “Well, I guess I just kind of gave up on myself and said, well, what little bit I do know about the law in West Virginia, there has to be evidence matching any type of crime, whether it be a murder or a robbery or anything of that nature.
“And I thought, well, these guys keep telling me that I’m not telling them the truth. They keep telling me I’m lying to them. Well, if I just make up a bunch of stories and tell these guys what they think they want to hear, they can’t do anything to me because I wasn’t there. I didn’t do anything. The physical proof will show that it couldn’t have been me.
“I guess I got myself into a little deeper situation than I thought I was getting myself into. I thought I would be able to prove my innocence by saying, ‘Hey, this is a false statement. There is no evidence, because I wasn’t there.’ And here we are today.” The jurors sat and listened with their arms crossed.
“You understand that the words you used on the day you were interviewed could literally kill you? You could wind up on death row. Do you understand that?”
“I do now. At the time, I did not.”
“How did you know any of the details about this crime?”
“Well, some of the things were quite publicized, as everyone is aware of. [With] Northcross Mall being a place to hang out . . . and the closeness of it in the area, it was something that everybody was talking about. I figure that’s where I probably picked up a lot of the information that I had, and also from the newspapers and the news media.”