Arresting development: Convictions of innocent youth

Rutgers Law Review

Volumn 62, Issue 4, 2010, Pages 887-941

  Tepfer, Joshua A ^a,b   Nirider, Laura H ^a,b   Tricarico, Lynda M ^c  

^a Center on Wrongful Convictions of Youth   (United States)

^b NORTHWESTERN UNIVERSITY SCHOOL OF LAW   (United States)

^c NONE

Author keywords

[No Author keywords available]

Indexed keywords

EID: 79955370588     PISSN: 00360465     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (221)

1. Verified Petition for Post-Conviction Relief at 6, People v. Jimenez, No. 93 CR 14710 (Ill. Cir. Ct. Apr. 3, 2008), available at http://www.kattenlaw. com/files/upload/Petition-for-Post-Conviction-Relief.pdf [hereinafter Petition].
2. Id.
3. Id. at 7-8.
4. See id. at 8 ("Larry told Detective Bogucki that the shooter was a boy he believed to be named 'Frankie' . Larry identified the boy with the shooter as 'Victor.'").
5. See id.
6. Id. at 10.
7. Id. at 6, 10.
8. Id. at 10.
9. Id. at 10-11.
10. Supplement to Thaddeus Jimenez's Verified Petition for Post-Conviction Relief at Ex. 1, Transcript of Videotaped Statement of Lawrence Tueffel at 13, People v. Jimenez, No. 93 CR 14710 (July 31, 2006),
11. People v. Jimenez, No. 93 CR 14710 (Ill. Cir. Ct. May 1, 2008) [hereinafter Transcript].
12. Chronology of Thaddeus Jimenez's Exoneration, KATTEN MUCHIN ROSENMAN LLP, http://www.kattenlaw.com/files/upload/Chronology.pdf [hereinafter Chronology] (last visited Sept. 20, 2010).
13. Petition, supra note 1, at 10-11.
14. Id. at 4, 12.
15. Chronology, supra note 11, at 1, 3.
16. Petition, supra note 1, at 16.
17. Id. at 2, 4.
18. People v. Jimenez, No. 93 CR 14710, slip op. at 6 (Ill. App. Ct. Jan. 18, 2000), available at http://www.kattenlaw.com/files/upload/ Appellate%20Court%200rder%2098-0247.pdf;
19. Chronology, supra note 11, at 4.
20. Transcript, supra note 10, at 1-2.
21. Petition, supra note 1, at 15-17.
22. Transcript, supra note 10, at 3, 5-6. It should be noted that Juan Carlos Torres is not known to be related to Phil Torres.
23. Consistent with his testimony at T.J.'s trial, Victor also repeatedly told the police that he had never met T.J. See Petition, supra note 1, at 2.
24. Id. at 13.
25. Id. at 14-15 (describing law enforcement's receipt and treatment of the tape).
26. Chronology, supra note 11, at 5.
27. Id.
28. Id. at 5.
29. Id. at 5-6.
30. Id. at 6.
31. Maurice Possley, Arrested at IS, Inmate Freed, CHI. SUN-TIMES, May 4, 2009, at 5.
32. See About, NORTHWESTERN UNIVERSITY SCHOOL OF LAW, BLUHM LEGAL CLINIC, CENTER ON WRONGFUL CONVICTIONS OF YOUTH, http://www.cwcy.org/AboutUs.aspx (last visited Aug. 27, 2010).
33. See Facts on Post-Conviction DNA Exonerations, INNOCENCE PROJECT, http://www.innocenceproject.org/Content/Facts-on-PostConviction-DNA- Exonerations.php (last visited Oct. 4, 2010).
34. See Keith A. Findley, Learning from our Mistakes: A Criminal Justice Commission to Study Wrongful Convictions, 38 CAL. W. L. REV. 333, 337 (2002) ("DNA is no panacea. While DNA can and will prevent the mistaken conviction of some wrongly identified suspects, it will not prevent the errors that infect the system in the vast majority of cases where there is no biological evidence left behind by the perpetrator. Such biological evidence rarely exists in the ordinary robbery, shooting, drug transaction, or forgery. Moreover, biological evidence is useless where issues of consent or intent, rather than identity, are in dispute. Only in those relatively few cases with dispositive biological evidence will DNA prevent miscarriages of justice. DNA, therefore, presents not a solution, but an opportunity and a challenge.").
35. See Richard A. Leo & Jon B. Gould, Studying Wrongful Convictions: Learning From Social Science, 7 OHIO ST. J. CRIM. L. 7, 16-17 (2009).
36. See Brandon Garrett, Judging Innocence, 108 COLUM. L. REV. 55, 122 (2008) ("At the trial court level, four types of evidence often supported these 200 erroneous convictions: eyewitness identification evidence, forensic evidence, informant testimony, and confessions.");
37. see also Darryl K. Brown, The Decline of Defense Counsel and the Rise of Accuracy in Criminal Adjudication, 93 CAL. L. REV. 1585, 1602-03 (2005) (detailing poor defense practices in jurisdictions across the country).
38. See generally Steven A. Drizin & Greg Luloff, Are Juvenile Courts a Breeding Ground for Wrongful Convictions?, 34 N. KY. L. REV. 257 (2007) (arguing for changes to the juvenile court system and for better methods to prevent wrongful convictions).
39. A body of rigorous, peer-reviewed scientific study has confirmed what we all intuitively know: children think and view the world differently than adults. Neuroscientific studies have found, for instance, that adolescence is marked by an uneven competition between two of the brain's core networks of nerves: the socioemotional network that regulates the perception of rewards and the cognitive-control network responsible for weighing risks. Whereas the socio-emotional network "abruptly becomes more assertive" at puberty, the cognitive-control network matures more gradually over a longer period of time. Accordingly, the introduction of unusual stressors like external pressure and emotional arousal can cause the socio-emotional network to overwhelm the underdeveloped cognitive-control network and distort an adolescent's ability to weigh risks against rewards, which results in impulsive risktaking. This is as true for an honor roll student as it is for a lower-functioning youth. See Laurence Steinberg, Risk Taking in Adolescence: New Perspectives From Brain and Behavioral Science, 16 CURRENT DIRECTIONS IN PSYCHOL. SCI. 55 (2007).
40. Children and adolescents also commonly display a second, easily recognizable trait: susceptibility to external influence and pressure. An individual's vulnerability to external pressure increases from childhood until age fourteen, at which point it peaks and begins a slow decline during the later adolescent years. As a result, children and adolescents are far more likely than adults to make decisions as a result of outside influence and, indeed, can be strikingly compliant with pressure exerted by authority figures. Moreover, some studies suggest that teens are more likely to act together in groups rather than alone, as their need for external approval is more easily satisfied when they act in concert with others. See Elizabeth S. Scott & Laurence Steinberg, Adolescent Development and the Regulation of Youth Crime, 18 THE FUTURE OF CHILD. 15 (2008).
41. 543 U.S. 551, 578 (2005).
42. Id. at 569.
43. 130 S. Ct. 2011, 2030(2010).
44. John E. Reid & Associates, the leading interrogation training firm in the United States, has acknowledged that youth are more susceptible to making false confessions. See False Confession Cases The Issues, JOHN E. REID & ASSOCIATES, http://www.reid.com/educational-info/pdfs/Falseconfessioncases.pdf (last visited Aug. 27, 2010).
45. This view is shared by many legal scholars. See, e.g., Steven A. Drizin & Richard A. Leo, The Problem of False Confessions in the Post-DNA World, 82 N.C. L. REV. 891, 945 (2004) (studying 125 proven false confessions in the United States and concluding both that 63% of false confessors were under the age of twenty-five and that 32% were under the age of eighteen).
46. See S.J. Ceci & M. Brück, Suggestibility of the Child Witness: A Historical Review and Synthesis, 113 PSYCHOL. BULL. 403, 418 (1993) ("From an early age, children perceive their adult conversational partners as being cooperative, truthful, and not deceptive. Children are also cooperative partners; they supply their adult questioner with the type of information they think is being requested. This pattern reflects children's desire to comply with a respected authority figure. As a result, when questioned by adults, children sometimes attempt to make their answers consistent with what they see as the intent of the questioner rather than consistent with their knowledge of the event.").
47. See Drizin & Leo, supra note 40, at 966 ("One of the most common reasons cited by teenage false confessors is the belief that by confessing, they would be able to go home . . . .").
48. See generally Barbara Kaban & Judith C. Quinlan, Rethinking a "Knowing, Intelligent, and Voluntary Waiver" in Massachusetts' Juvenile Courts, J. OF THE CENTER FOR FAMILIES, CHILD., & THE COURTS 35 (2004), available at http://www.cwcy.org/resources/48-attach-Kaban-Quinlan%20- %20Rethinking%20Knowing,%20Intelligent%20and%20Voluntary%20Waiver.pdf.
49. See Joanna D. Pozzulo & R. C. L. Lindsay, Identification Accuracy of Children Versus Adults: A Meta-Analysis, 22 LAW AND HUM. BEHAV. 549, 563 (1998) (finding that adolescents and children who were shown a suspect-absent lineup had a significantly lower correct rejection rate than adults);
50. see also Drizin & Luloff, supra note 35, at 276 ("The problem with children is not that they are worse at making an actual identification, but rather children and adolescents may be more vulnerable to the kinds of suggestive eyewitness interviews that have led to wrongful convictions. In fact, child witnesses have been the centerpiece of some of the most notorious wrongful conviction cases. The problems caused by suggestive child interviewing techniques of children have surfaced again and again in sexual abuse cases, where children are interviewed and then asked to testify against their adult attackers.") .
51. See Barbara Fedders, Losing Hold of the Guiding Hand: Ineffective Assistance of Counsel in Juvenile Delinquency Representation, 14 LEWIS & CLARK L. REV. 771, 772-75(2010).
52. As our definition implies, we also excluded certain cases from our dataset: (1) cases of individuals who were wrongfully accused but rightfully acquitted, or against whom charges were dropped before trial; and (2) cases of individuals whose convictions were overturned without new evidence of innocence or a known plausible factual theory of innocence. There are many examples from the first category, including the infamous case of fourteen-year-old Michael Crowe, who falsely confessed to the murder of his sister Stephanie in 1998 after an incredibly intense interrogation that expert Dr. Richard Leo later described as "psychological torture." Mark Sauer & John Wilkins, Michael Crowe, in TRUE STORIES OF FALSE CONFESSIONS 5, 10-18 (Rob Warden & Steven A. Drizin eds., 2009).
53. During that interrogation, Michael was falsely told that he failed a voice stress analysis test; because of this and other forms of police pressure, he came to believe that he had developed a split personality and that "bad Michael" must have committed the murder. In a letter that his interrogators told him to write to his dead sister, he explained, "I never ment [sic] to hurt you and the only way I know I did is because they told me I did." See id. at 13-14.
54. Michael was arrested, but the charges against him were dropped before trial when Stephanie's blood was found on the clothes of a local homeless man. See id. at 17-18.
55. An example from the second category is the case of seventeen-year-old David Bates, who was physically tortured into confessing to murder by police officers under the command of now-disgraced Chicago detective Jon Burge. See Rummana Hussain, Kara Spak & Frank Main, Jurors Convict Burge of Perjury, Obstruction, CHI. SUNTIMES, June 29, 2010, at 14.
56. David was convicted and spent eleven years in prison before an appellate court ruled that his confession had been coerced and overturned his conviction. See Meet the Death Row Ten, A Bürge Victim Speaks Out: "It Took So Much From Me", NEW ABOLITIONIST (July 2001), http://www.nodeathpenalty.org/ newab020/dr10Bates.html.
57. Although David may very well be innocent, we were unable to discover enough information about his case to allow us to determine whether he has a plausible theory of innocence. See id.
58. Sometimes not even a definitive DNA exclusion is enough to convince prosecutors of a defendant's innocence. Some prosecutors still try-and convince a jury to convict-defendants who have been positively excluded by DNA evidence; see, e.g., Other Convictions in the Face of Exculpatory DNA, JUSTICE FOR JUAN, http://www.justiceforjuan.com/despitedna (last visited Aug. 27, 2010) (highlighting nineteen cases in which the defendants were excluded by DNA evidence at trial but nonetheless convicted);
59. Dateline: The Mystery at Rock Creek (NBC television broadcast July 9, 2010) (profiling the case of Billy Wayne Cope, who was convicted of raping and murdering his daughter even though DNA found on her body belonged to a serial rapist, James Sanders, who admits he has never met Cope).
60. See, e.g., Steinberg, supra note 36, at 56-57;
61. Brief of the American Medical Ass'n et al. as Amici Curiae Supporting Respondent at 7, 15 , Roper v. Simmons, 543 U.S. 551 (2005) (noting that "psychological maturity is incomplete until the age of 19" and that the gray matter that prevents brains from reasoning increases from age 4-20, when it then plateaus).
62. In fact, several individuals in our study were ultimately convicted when they were over the age of twenty. It is a reality of the judicial system that some cases do not reach trial until years after the original charges are filed. We have ensured, however, that each individual in our study was first accused when he or she was under the age of twenty-that is, the events leading to each wrongful conviction were set in motion while the defendant was still a youth. Usually, of course, the date of accusation coincides closely with both the date of the crime and the date of arrest. There are two notable exceptions to this rule, however, that are worth mentioning. Timothy Masters was fifteen when he discovered the body of Peggy Lee Hettrick in an open field in Fort Collins, Colorado. See Raw Video: Cop Grills 15-Year-Old Tim Masters, YOUTUBE (May 19, 2010), http://www.youtube.com/watch?v-76S1UB3pwws.
63. He immediately became the prime suspect and was subjected to an intense interrogation during which the police claimed that they "knew" he did it. Id.
64. Timothy was able to withstand this pressure and never confessed, but he remained the focal point of the investigation for many years. Finally, a full ten years later, Timothy-then twenty-six years old-was tried and convicted based on bits and pieces of circumstantial evidence. See Kirk Johnson, Man Imprisoned for 9 Years for Murder Is Released in Wake of DNA Evidence, N.Y. TIMES, Jan. 23, 2008, at 14.
65. He was exonerated by DNA evidence after spending more than nine years in prison. See id.
66. Robert Craig Cox's story is somewhat similar. Eighteen-year-old Robert was vacationing in Florida when a nineteen-year-old woman was found dead. See Cox v. State, 555 So. 2d 352, 352 (Fla. 1989).
67. Robert was suspected immediately, but he was not arrested until seven years had passed. Id.
68. Even though he was able to produce an alibi, Robert was nonetheless convicted and sentenced to death based on blood evidence and footprint evidence that neither excluded nor implicated him. Id. at 353.
69. His conviction was eventually overturned by the Florida Supreme Court based on insufficient evidence, and he was released three years after his arrest. Id. We have included Timothy and Robert in this study because they were accused, if not arrested, when they were still youth.
70. In his study of exonerations that took place between 1989 and 2003, Professor Samuel R. Gross reports that 85% of the non-DNA exonerees studied were serving sentences for murder or non-negligent manslaughter. See Samuel R. Gross et al., Exonerations in the United States 1989 Through 2003, 95 J. CRIM. L. & CRIMINOLOGY 523, 531 (2005).
71. Professor Gross explains the discrepancy between the exoneration rate for capital convictions and other murder convictions and the exoneration rate for criminal convictions generally as a combination of "two appalling possibilities." Id.
72. First, he posits that innocent defendants charged with murder are more likely to be convicted due to the extraordinary pressure to secure convictions in cases involving heinous crimes; second, he suggests that a large number of false convictions in noncapital cases are not discovered because they are not scrutinized as closely upon subsequent review, whereas capital and other murder convictions are more likely to be seriously investigated for error. Id. at 531-33.
73. See Allison D. Redlich et al., Self-Reported False Confessions and False Guilty Pleas Among Offenders with Mental Illness, 34 LAW & HUM. BEHAV. 79, 80 (2010) ("The overwhelming majority of identified false admissions (and wrongful convictions as a whole) have been for the serious crimes of rape and murder, which are both low baserate crimes. Property crimes, for example, occur almost 600 times more frequently than murder and about 100 times more frequently than rape. Thus, the opportunity to falsely confess or falsely plead guilty to these less severe crimes is much higher. In addition, there is reduced motivation to uncover miscarriages of justice when the crime is less serious, especially if the person received probation or a short period of incarceration. And finally, the presence of DNA, a major factor in the identification and verification of false admissions, is not commonly available and confounded with crime severity, particularly rape.") (citations omitted).
74. The case of fifteen-year-old Dominique Brim illustrates how wrongful convictions can occur even in the most routine of cases. In 2002, a teenage girl was arrested in a Detroit suburb for retail theft and felony assault after leaving a Sears store with more than $1300 in unpaid merchandise and biting a security guard when he attempted to stop her. After being taken to the police station, the suspect identified herself as Dominique Brim and was released. Two months later, the State charged Dominique, although she claimed that she had neither been to Sears nor been arrested that day. Nevertheless, when multiple Sears employees identified her as the culprit, she was tried and convicted. Prior to sentencing, however, Sears officials reviewed their in-store security videotape and realized that the employees had identified the wrong person. The real shoplifter had been twenty-five-year-old Chalaunda Latham, a friend of Dominique's sister, who had given Dominique's name to the police. Troublingly, neither the police nor the prosecutors-nor, evidently, Dominique's defense attorney-had bothered to check the store's security videotape to confirm her guilt. Instead, justice was achieved only through the intervention of a Sears employee impressed by Dominique's protestations of innocence. See Woman Wrongly Convicted By Mistaken Identity Sues Police, JUSTICE DENIED: THE MAGAZINE FOR THE WRONGLY CONVICTED 4 (Summer 2005). In many other seemingly routine cases, the defendants may not be as lucky.
75. See Drizin & Luloff, supra note 35, at 294-99;
76. th Cir. 2010) (Posner, J., dissenting) (internal citations omitted) ("The Supreme Court's opinion in McKeiver had acknowledged that the juvenile courts are a mess, and subsequent research confirms that their noncriminal 'convictions' may well lack the reliability of real convictions in criminal courts. We learn from this literature that lawyers in juvenile courts are overloaded with cases, that they often fail to meet with their clients before entering a guilty plea and often rely on parents and on the child defendant himself to contact witnesses, and that they rarely file pretrial motions. And because the philosophy on which the juvenile court system was founded emphasizes protecting the 'best interests of the child' and rehabilitating rather than punishing the child, the culture of the juvenile courts discourages zealous adversarial advocacy even though in its current form the juvenile justice system is much more punitive than its founders envisaged. Lawyers also appear to be reluctant to appeal juvenile cases and to seek postconviction relief; heavy caseloads, a prevalent view that appeals undermine the rehabilitation process, and an absence of awareness among juveniles of their appeal rights are the likely reasons for this reluctance.").
77. Drizin & Luloff, supra note 35, at 294-99.
78. See Michael Perlstein, Down for the Count: Angola Boxer Beat Murder Rap and Nearly Made the Olympics Before Falling Into Crime, TIMES PICAYUNE (New Orleans), Apr. 14, 2001, at N1.
79. Id.
80. Id.
81. Id.
82. See Susan Beck, Saving Anthony Harris, AMERICAN LAWYER, Mar. 1, 2009, at 74.
83. Id.
84. Id.
85. see also In re Anthony R. Harris, 2000 WL 748087 (Ohio App. 5th Dist., June 7, 2000).
86. See Beck, supra note 58, at 74.
87. Id.
88. Id. at 90.
89. See generally RICHARD FlRSTMAN & JAY SALPETER, A CRIMINAL INJUSTICE: A TRUE CRIME, A FALSE CONFESSION, AND THE FIGHT TO FREE MARTY TANKLEFF (2008) (documenting Marty Tankleff s story of wrongful imprisonment).
90. See John Maki, Barney Brown: His First Year of Freedom, HUFFINGTON POST (Sept. 24, 2009, 9:43AM), http://www.huffingtonpost.com/john-maki/barney-brown- hisfirst-ye-b-297837.html.
91. Williams v. City of New Orleans, No. Civ.A. 98-1721, 1999 WL 820553, 1 (E.D. La. Oct. 13, 1999).
92. Id.
93. Id.
94. See Williams v. Edwards, 547 F.2d 1206, 1219 (5th Cir. 1977);
95. Hayes Williams, INNOCENCE PROJECT NEW ORLEANS, http://www.ip-no.org/ exoneree-profiles/non-ipnoexonerees/hayes-Williams (last visited Aug. 27, 2010).
96. See INNOCENCE PROJECT, http://www.innocenceproject.org/index.php (last visited Oct. 4, 2010).
97. Forty-two wrongfully convicted youth in our study were exonerated by post-conviction DNA testing (40.8%), and sixty-one (59.2%) were exonerated by other means. It should be noted that the Innocence Project's database does not include Joe Sidney Williams and Herman May as DNA exonérées. We have included them in this study, however, because we have confirmed through other sources that Joe and Herman were, in fact, accused before they turned twenty and later exonerated by DNA evidence. See Karen Amos, Prosecutor Opposes Death Penalty Provisions in the Patriot Reauthorization Act: Letter to Senate and House Conferees, HUMAN RIGHTS WATCH (Nov. 8, 2005), http://www.hrw.org/en/ news/2005/ll/08/ prosecutor-opposes-death-penalty-provisions-patriot- reauthorization-act (noting that the attorney who prosecuted Joe Sidney Williams considers him to have been exonerated by DNA evidence);
98. Success Stories, KENTUCKY INNOCENCE PROJECT, http://www. kyinnocenceproject.org/cases.html (last visited Aug. 27, 2010) (recounting the DNA exoneration of Herman May).
99. Moreover, while Alejandro Hernandez is included in the Innocence Project's general database of DNA exonerees, the Project does not identify him as a youth because he was not indicted until after his twentieth birthday. See Alejandro Hernandez, INNOCENCE PROJECT, http://www.innocenceproject .org/Content/Alejandro-Hernandez.php (last visited Aug. 27, 2010) (stating that Alejandro was convicted in 1985, two years after the crime).
100. We classified Alejandro as a youth, on the other hand, because he was accused and questioned when he was nineteen years old. See People v. Hernandez, 521 N.E.2d 25, 26 (111. 1988) (indicating that Alejandro became a suspect and falsely confessed about a year before he was indicted in March 1984).
101. It bears repeating that we are deeply indebted to Dr. Emily West of the Innocence Project for creating this special comparison database. She assembled the adult database by removing the thirty-nine youth DNA exonérées that we included in our study from the Innocence Project's general database, which at that time included 253 DNA exonérées.
102. We were unable to discover the age of one youth exonérée, Curtis S., although he must have been under twenty at the time that he was accused because his case was adjudicated in juvenile court. We also were unable to confirm the ages at the time of accusation, conviction and exoneration for D. S. C. and Albert Luster, as well as John Jeffers' age at exoneration.
103. For a description of the Beatrice Six case, see Know the Cases, INNOCENCE PROJECT, http://www.innocenceproject.org/Content/Ada-JoAnn-Taylor.php (last visited Aug. 27, 2010).
104. As we live and practice in Illinois, cases in our home jurisdiction may have been more easily discoverable to us. Moreover, states that lack a major newspaper could be underrepresented in our study, because cases from those states may not be as well publicized.
105. See supra note 51 (recounting the story of Dominique Brim, the only youth in this study convicted of relatively minor offenses).
106. John Mark Karr, who falsely confessed to the murder of JonBenet Ramsey in 2006, is one well-known adult who gave a volunteered false confession. See No DNA Match, Jon Benet Charges, CNN (Oct. 23, 2006), http://www.cnn.com/2006/LAW/ 08/28/ramsey.arrest/index.html.
107. Gross et al., supra note 49, at 523-24.
108. In thirty-three of Professor Gross's cases, the defendants were under the age of eighteen when the crime occurred. Fourteen of those thirty-three defendants falsely confessed. Id. at 545.
109. Id. at 544.
110. This result matches what previous studies have already indicated. A 2004 study of 125 proven false confessions in the United States, for example, found that 63% of false confessors were under the age of twenty-five and 32% were under the age of eighteen. See Drizin & Leo, supra note 40, at 944-45.
111. By way of comparison, juveniles make up only 8% of individuals arrested for murder and 16% of individuals arrested for rape in the United States. See Howard N. Snyder, Juvenile Arrests 2004, JUV. JUST. BULL. (U.S. Dep't of Justice, Washington, D.C), Dec. 2006, at 2.
112. We chose to classify individuals according to their ages at the time of accusation for the purposes of calculating these statistics, since those ages are the best available proxies for their ages when they falsely confessed. Our results comport with Professor Samuel Gross's study, in which 69% of juveniles between the ages of twelve and fifteen falsely confessed, compared to 25% of juveniles between the ages of sixteen and seventeen. See Gross et al., supra note 49, at 545.
113. See Richard J. Ofshe & Richard A. Leo, The Decision to Confess Falsely: Rational Choice and Irrational Action, 74 DENV. U. L. REV. 979, 989-90 (1997).
114. See id. at 990.
115. See Drizin & Leo, supra note 40, at 916-17.
116. See id. at 918.
117. See id.
118. See In re Gault, 387 U.S. 1, 51-52 (1967).
119. Roper v. Simmons, 543 U.S. 551, 569 (2005);
120. Graham v. Florida, 130 S. Ct. 2011, 2026 (2010).
121. Tamar Birckhead, The Age of the Child: Interrogating Juveniles After Roper v. Simmons, 65 WASH. & LEE L. REV. 385, 413-20 (2008).
122. Gault, 387 U.S. at 52.
123. Id.
124. Id. at 55.
125. 370 U.S. 49, 53 (1962)
126. (quoting Haley v. Ohio, 332 U.S. 596, 599-600 (1948)).
127. Miranda v. Arizona, 384 U.S. 436, 466 (1966)
128. (quoting Mapp v. Ohio, 367 U.S. 643, 685 (1961) (Harlan, J., dissenting));
129. see also Hopt v. Utah, 110 U.S. 574, 584-85 (1884) (recognizing that a "voluntary confession of guilt is among the most effectual proofs in the law").
130. See Saul M. Kassin et al., Police-Induced Confessions: Risk Factors and Recommendations, 34 L. & HUM. BEHAV. 3, 23 (2010) ("Numerous false confession cases reveal that once a suspect confesses, police often close their investigation, deem the case solved, and overlook exculpatory evidence or other possible leads-even if the confession is internally inconsistent, contradicted by external evidence, or the product of coercive interrogation.").
131. See Colorado v. Connelly, 479 U.S. 157, 182 (1986) (Brennan, J., dissenting) (observing that "[t]riers of fact accord confessions such heavy weight in their determinations 'that the introduction of a confession makes the other aspects of a trial in court superfluous'")
132. (quoting E. CLEARY, MCCORMICK ON EVIDENCE 316 (2d ed. 1972)).
133. Id.
134. Obviously, victim statements are unavailable in murder cases.
135. Larry Tueffel does not fall into our third category (incentivized witnesses) because, while the police accused him of covering up for the shooter before he falsely identified T.J., they did not threaten charges or adverse legal action outright. He is better categorized as a person-on-the-street eyewitness.
136. One example of a false incentivized statement can be seen in the wrongful convictions of eighteen-year-old Omar Saunders, seventeen-year-old Marcellius Bradford, sixteen-year-old Larry Ollins, and fourteen-year-old Calvin Ollins for the murder of Lori Roscetti, a Chicago medical student. During police interrogation, Calvin was told that "there was a possibility he could be tried as an adult" if he did not confess; after hearing this threat, he made statements that falsely implicated the other three boys (as well as himself) in the murder. See People v. Ollins, 606 N.E.2d 192, 196 (Ill. App. Ct. 1992). Thus, we categorize the wrongful convictions of Omar, Marcellius, and Larry as being due in part to the incentivized statement of Calvin. Other examples could include the statement of a witness who is told that the State will quash an outstanding arrest warrant in exchange for his cooperation, or the statement of an individual who is told during interrogation that the police suspect that the perpetrator is either him or another person. This category does not, however, include statements made by so-called "jailhouse snitches"-in other words, by incarcerated informants who claim to have inside information about another person's case.
137. We say "at least" because in many cases, we were unable to learn the witnesses' ages.
138. There is no overlap among these cases; that is, there is not a single case in our database in which two different types of youth witnesses made statements that contributed to the conviction.
139. We reached this conclusion by first noting that thirty-two of the 103 cases in this study involved false confessions. In twenty-one of those thirty-two cases, the false confession itself was the only false statement made by any youth. (Said another way, eleven of the thirty-two false confession cases also involved some type of false statement made by a youth witness.) Adding these twenty-one false confession cases to the thirty-six cases in which a youth's unreliable statement contributed to another youth's wrongful conviction, we conclude that in fifty-seven of the 103 cases studied, a factually incorrect statement made by a youth contributed to the wrongful conviction of either himself or another youth.
140. Even if the eight youthful victim statements, which perhaps are less likely to be the products of police questioning, are removed from this calculus, a full 47.8% of the convictions studied still involve unreliable statements by youth that were likely produced at the behest of police. This is not to imply, however, that the statements of youthful victims made independent of police interrogation should be automatically accepted without question; their statements, like those of any other youth, should be corroborated before they can be considered reliable evidence.
141. A judicial finding of ineffective assistance of counsel requires a demonstration that counsel's performance fell below an objective standard of reasonableness, and that, but for the inadequate representation, the outcome of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984).
142. See Wallace J. Mlyniec, In re Gault at 40: The Right to Counsel in Juvenile Court-A Promise Unfulfilled, 44 CRIM. L. BULL. 371, 381-82 (2008) (discussing sixteen state-wide assessments of juvenile courts conducted by the National Juvenile Defender Center and noting that "competent lawyering was the exception rather than the norm"). In making this argument, we do not, of course, intend to minimize the problems concerning access to competent representation that burden adult defendants across the country.
143. See, e.g., Drizin & Luloff, supra note 35, at 289.
144. Fedders, supra note 44, at 785-87.
145. The problem of ineffective assistance of counsel for youth has caused Professor Barbara Fedders to advocate for a higher standard of effectiveness to be applied to the representation received by juvenile defendants. Professor Fedders convincingly argues for the modification or elimination of Strickland v. Washington's prejudice requirement in cases involving youthful defendants, as well as a competency standard on par with the American Bar Association's [hereinafter ABA] heightened professional standards.
146. See Fedders, supra note 44, at 815 (citing a trio of cases which appear to raise the standard for youth representation and apply American Bar Association standards). Given our findings that inadequate assistance of counsel contributed to more than a dozen known cases of wrongful conviction, we agree with Professor Fedders that courts and legislatures should consider alternative standards for juvenile defendants.
147. Id. at 793. This may be particularly true for those cases in which a youth's misplaced trust in his interrogators brought about his current legal predicament.
148. See id.
149. 373 U.S. 83, 87-8 (1963).
150. See INNOCENCE PROJECT, supra note 70.
151. See Drizin & Luloff, supra note 35, at 292-93.
152. One example of such reasoning can be found in the case of Anthony Caravella, a sixteen-year-old Florida boy who in 1984 came within inches of accepting his attorney's advice to plead guilty to murder, despite his own innocence. Anthony initially told the trial judge that he wanted to plead guilty, but the judge refused to accept the plea after Anthony also told him that he was innocent. Instead, the judge asked Anthony, "[i]f you're innocent, why are you taking the plea?" Anthony's disturbingly frank answer: "Because I don't want to go to trial . . . so I don't face two charges .. or the chair." See Diane M. Goldie, Judge Rejects Boy's Guilty Plea, FLA. SUN SENTINEL, July 25, 1984.
153. See Kaban & Quinlan, supra note 42, at 35 (pointing out, for example, that many youth do not understand the complex and often hastily delivered colloquies on which courts rely to ensure the voluntariness of guilty pleas).
154. Allison D. Redlich, The Susceptibility of Juveniles to False Confessions and False Guilty Pleas, 62 RUTGERS L. REV. 943, 943-45 (2010).
155. Id. at 953-54.
156. Id. at 954.
157. Id. at 955.
158. Chris Smith, Central Park Revisited, N.Y. MAG., http://nymag.com/nymetro/ news/crimelaw/features/n-7836/ (last visited Oct. 14, 2010).
159. Id.
160. Id.
161. Id.
162. Id.
163. Id.
164. Id.
165. Id.
166. Id.
167. Id.
168. The twelve cases encompass the thirty-three youth referenced in the first paragraph of this discussion.
169. Two multi-defendant cases involve both youth and adult DNA exonerees. Richard Danzinger was only eighteen years old when he was accused of sexual assault and murder, whereas his co-exoneree, Christopher Ochoa, was an adult. Similarly, in the so-called "Ford Heights Four" case, nineteen-year-old Kenneth Adams and seventeen-year-old Paula Gray were eventually exonerated alongside their adult codefendants Verneal Jimerson, Willie Rainge, and Dennis Williams. Each of these cases was included in the sum tabulation of multi-defendant exonerations for both our youth and adult datasets.
170. See Thomas P. Sullivan, Recording Federal Custodial Interviews, 45 AM. CRIM. L. REV. 1297, 1311-12 (Fall 2008).
171. See id. at 1299-1300.
172. Neil Nelson, a police commander in St. Paul, Minnesota, describes electronic recording of interrogations as "the best tool ever forced down our throats." Dennis Wagner, FBI's Policy Drawing File, ARIZ. REPUBLIC, Dec. 6, 2005 at Al.
173. A confession becomes "contaminated" when important facts about a crime are disclosed to a suspect before or during an interrogation. See Brandon L. Garrett, The Substance of False Confessions, 62 STAN. L. REV. 1051, 1066 (2010).
174. This information can come from any number of sources. Police interrogators, for example, may inadvertently disclose information to suspects during questioning. See Jim Trainum, I Took a False Confession - So Don't Tell Me It Doesn't Happen!, CAL. MAJORITY REP. (Sept. 20, 2007), http://www. camajorityreport.com/index.php?module=articles&func=display&ptid= 9&aid=2306 (explaining that he and his fellow police detectives unintentionally elicited a false confession that contained realistic-sounding details when, "[t]o demonstrate the strength of our case, we showed the suspect our evidence, and unintentionally fed her details that she was able to parrot back to us at a later time").
175. Other sources of contaminating information can include the media and community gossip. The existence of contamination can make a confession highly unreliable evidence of guilt. The primary way to test a confession's reliability, after all, involves determining whether the suspect was able to demonstrate firsthand knowledge of nonpublic crime scene facts that only the perpetrator would know. See Drizin & Leo, supra note 40, at 1003.
176. A suspect's ability to recite information that was previously disclosed to him, however, can be mistaken for proof that the suspect has this type of "inside" knowledge. Such mistakes happen far too frequently. In Professor Brandon Garrett's study of false confession cases in which DNA evidence exonerated the defendant, contamination was involved in virtually every case. See Garrett, supra. It is to be expected that youth, who are particularly vulnerable to suggestion and eager to please authority figures, may be even more likely than adults to regurgitate back facts that have been fed to them by their interrogators in an effort to create a plausible-albeit false-confession.
177. See, e.g., Jessica R. Meyer & N. Dickon Reppucci, Police Practices and Perceptions Regarding Juvenile Interrogation and Interrogative Suggestibility, 25 BEHAV. SC. & L. 1, 1-24 (2007).
178. See NAT'L CHILDREN'S ADVOCACY CENT., FORENSIC INTERVIEW STRUCTURE § 5.6 (2006) (on file with authors).
179. Meyer & Reppucci, supra note 135, at 1-24.
180. See Garrett, supra note 134, at 1051.
181. The interrogation and false confession of Anthony Harris is a case in point. Without any evidence beyond a hunch that twelve-year-old Anthony killed his fiveyear-old neighbor, his police interrogator refused to accept Anthony's denials and told him instead that "I think that both of us know that something happened out there and see, that's the thing that you got to tell me. You got to tell me what she did to make you so mad." See In re Harris, No. 1999AP030013, 2000 WL 748087, at *7 (Ohio Ct. App. Jun. 7, 2000).
182. Anthony continued to deny involvement, but his interrogator refused to listen to him. Instead, he gave Anthony two options, neither of which acknowledged Anthony's innocence: "There's the dishonest people that that [sic] meant to do it and did it out of spite, did it out of meanness or there's people that it just happened. And if there is anything in the world that they could take back, it's doing that crime and hurting her." Id. at *11.
183. Anthony's interrogator then explained that he could only help him if he was the second type of person, telling him that: I'd like to help you out of this, Anthony . . . this is that person that I think you are, and that's the person I want to present to Court, okay. That's the person that I'll help. This person, you know, I can't help that person, bottom line. If you're not honest with me, if you don't care about me, then you don't want my help and I can't help you. Id.
184. In overturning Anthony's conviction, the appellate court held that these promises of leniency-both implicit and explicit-coerced him into confessing. Id. at *13.
185. The phrase "in any way" bears particular emphasis. Although nearly a century ago, the law seemed to establish clearly that a confession must "not be extracted by any sort of threat or violence, nor obtained by any direct or implied promises, however slight," Bram v. United States, 168 U.S. 532, 543 (1897), this prohibition has been eroded in modern times. Today, many judges routinely admit confessions that are obtained through the use of "implied" or veiled promises of leniency, under the rationale that no direct promise was ever explicitly made.
186. See Saul M. Kassin & Karlyn McNall, Police Interrogations and Confessions: Communicating Promises and Threats by Pragmatic Implication, 15 LAW & HUM. BEHAV. 233, 248 (1991).
187. However, so-called indirect promises are frequently understood by listeners to be no different than direct promises; in other words, the "pragmatic implication" of an indirect promise of leniency is precisely the same as that of a more explicit promise. See Ofshe & Leo, supra note 81, at 987. The growing distinction in the law between indirect promises and direct promises, thus, is nonsensical, so long as normal modes of practical human communication are the standards by which such promises are judged.
188. See United States v. Lall, 607 F.3d 1277, 1287 (11th Cir. 2010) (judging it "utterly unreasonable" to parse the meaning of a promise of leniency using "semantic technicalities," particularly in the case of a young person).
189. Illinois and West Virginia are the only states that have adopted a statute requiring attorney presence during custodial interrogations of juveniles. See 705 ILL. COMP. STAT. 405/5-170 (2010);
190. W. VA. Code §49-5-2(1) (2010). Illinois adopted this statute, which requires an attorney to be present during the custodial interrogation of juveniles under the age of thirteen, in 2000 after a number of high-profile juvenile false confessions and wrongful arrests.
191. See Linda Paul, Should Lawyers Be There When Cops Question Juveniles? (Chicago Public Radio broadcast August 13, 2009), http://www.wbez.org/Content. aspx?audioID=36098.
192. See Thomas Grisso et al., Juveniles' Competence to Stand Trial: A Comparison of Adolescents' and Adults' Capacities as Trial Defendants, 27 LAW & HUM. BEHAV. 15 (2003).
193. One study examined nearly 400 juvenile interrogations and concluded that when police interrogators asked children to waive their Miranda rights in the presence of their parents, between 70% and 80% of parents offered their children no advice. When parental advice was given, parents were far more likely to urge their children to waive their rights than to assert them. Barbara Kaban & Ann E. Tobey, When Police Question Children: Are Protections Adequate?, J. CTR. FOR CHILD. & COURTS 151, 154 (1999).
194. See Thomas Grisso, Juveniles' Capacities to Waive Miranda Rights: An Empirical Analysis, 68 CAL. L. REV. 1134, 1163 (1980) (finding that nearly a quarter of adults do not understand at least one of the Miranda rights).
195. Even proponents of the Reid Technique have conceded that it puts minors at special risk for false confession. See JOHN E. REID & ASSOCIATES, supra note 40, at 3.
196. See generally Richard Leo et al., Bringing Reliability Back In: False Confessions and Legal Safeguards in the Twenty-First Century, 2006 WIS. L. REV. 479.
197. See Robert J. Milan, Preventing and Addressing Wrongful Convictions, PRAC. PROSECUTOR, 2005, at 35, 36 (advising his fellow prosecutors to "require that confession be fully corroborated prior to charging," and stating that "[i]f the confession does not make sense in light of the physical evidence and other evidence that you have, you may have a problem").
198. See Gross et al., supra note 49, at 542 (reporting that 64% of those exonerations studied involved a mistaken eyewitness identification);
199. BARRY SCHECK ET AL., ACTUAL INNOCENCE 246 (2001) (reporting that 84% of those exonerations studied involved a mistaken eyewitness identification);
200. Eyewitness Misidentification, INNOCENCE PROJECT, http://www. innocenceproject.org/understand/Eyewitness-Misidentification .php (last visited Aug. 27, 2010) (stating that eyewitness identification played a part in over "75% of convictions overturned through DNA testing").
201. For example, sixteen-year-old Donnell Johnson was accused and convicted of murder on the basis of three eyewitness identifications. The eyewitnesses gave general descriptions of a "light-skinned male with freckles" and later picked out Donnell first from a photograph array and then from a live line-up. Donnell was exonerated six years after he was accused. See Johnson v. Mahoney, 424 F.3d 83, 86 (1st Cir. 2005).
202. See Eyewitness Identification, INNOCENCE PROJECT, http://www.innocence project.org/fix/Eyewitness-Identification.php (last visited Aug. 27, 2010).
203. See, e.g., Nancy Steblay, Jennifer Dysart, Solomon Fulero & R. C. L. Lindsay, Eyewitness Accuracy Rates in Sequential and Simultaneous Lineup Presentations: A Meta-Analytic Comparison, 25 L. & HUM. BEHAV. 459, 471 (2001) (concluding that while correct identification rates are similar for simultaneous and sequential targetpresent lineups, sequential lineups produce a much higher correct rejection rate when the lineup does not include the target).
204. Drizin & Luloff, supra note 35, at 282.
205. See N. Lee Cooper et al., Fulfilling the Promise of In re Gault: Advancing the Role of Lawyers for Children, 33 WAKE FOREST L. REV. 651, 674-75 (1998) (noting that juvenile appeal rates are low in most jurisdictions);
206. Drizin & Luloff, supra note 35, at 295-99 (arguing that there is no "active and zealous" appellate or post-conviction practice in juvenile court).
207. Indeed, it is an open question in many jurisdictions as to whether post-conviction forensic testing statutes even allow juveniles adjudicated delinquent to seek testing. See, e.g., 725 ILL. COMP. STAT. ANN. 5/116-3 (2010) (noting that a defendant may make a motion to request forensic testing in the trial court that entered judgment on his "conviction").
208. Previous Illinois jurisprudence has drawn distinctions between juveniles "adjudicated delinquent" in juvenile court and adults "convicted" in criminal court. See People v. Taylor, 850 N.E.2d 134, 137 (111. 2006).
209. Not only should courts fairly review post-conviction claims of innocence, but courts and legislatures should also consider limiting the collateral consequences that automatically flow from juvenile adjudications, such as deportation and lifetime sex offender registration. The concerns raised in this Article and in others suggest that courts should be reluctant to treat juvenile adjudications as just as reliable as adult criminal convictions. See Welch v. United States, 604 F.3d 408, 432 (7th Cir. 2010) (Posner, J., dissenting) (arguing that the unreliability of juvenile court proceedings means that a "conviction" obtained in juvenile court should not be used to enhance a federal sentence beyond the statutory maximum).
210. See, e.g., People v. Steidl, 685 N.E.2d 1335, 1345 (Ill. 1997) ("[T]he recantation of testimony is regarded as inherently unreliable, and a court will not grant a new trial on that basis except in extraordinary circumstances.").
211. Interestingly, Gordon (Randy) Steidl, the defendant in the cited case, was later exonerated. See Gordon (Randy) Steidl, NORTHWESTERN LAW, BLUHM LEGAL CLINIC, CENTER ON WRONGFUL CONVICTIONS, http://www.law.northwestern.edu/ wrongfulconvictions/exonerations/il SteidlSummary.html (last visited Aug. 27, 2010).
212. See Shawn Armbrust, Reevaluating Recanting Witnesses: Why the Red-Headed Stepchild of New Evidence Deserves Another Look, 28 B.C. THIRD WORLD L.J. 75 (2008).
213. See JOHN E. REID & ASSOCIATES, supra note 40.
214. See Eugene R. Milhizer, Confessions After Connelly: An Evidentiary Solution for Excluding Unreliable Confessions, 81 TEMP. L. REV. 1, 4 (2008).
215. See also Drizin & Leo, supra note 40, at 922 ("Defense attorneys are more likely to pressure their clients who have confessed to waive their constitutional right to a trial and accept a guilty plea to a lesser charge.").
216. In ruling on the admissibility of the confession of Paula Gray, who was seventeen years old when she falsely confessed to murder, an Illinois court found that the confession was made free of coercion and went on to state: "[I]ncidentally, the defendant testified with skill, with knowledge, explicitly, extremely clear, made her points well and all it means to me is whether she's in twelfth grade or whatever her educational level is she's a very intelligent person. That's my judgment and those are my findings and my decision."
217. See Garret, supra note 134, at 1100-01
218. (citing trial transcript at 2089, 2234-37, People v. Gray, No. 78 C4865 (Ill. Cir. Ct. Oct. 16, 1978)). During the bench trial of Nathaniel Hatchett, who was also seventeen when he falsely confessed, the judge found that Nathaniel's statements were demonstratively reliable even though there was exculpatory DNA evidence, going so far as to call the entirety of the evidence against the innocent teenager overwhelming: "[I]n this case there is an abundance of corroboration for the statements made by Mr. Hatchett to the police after his arrest, about what happened during the assault on [the victim] as well as what happened afterwards with the property, the keys, his punching of the ignition and the Court finds the statements, therefore, to be of overwhelming importance in determining the outcome of the trial."
219. See Garrett, supra note 134, at 1101
220. (citing Tr. at 280, People v. Hatchett, 97-1497-FC (Mich. Cir. Cit. Mar. 6, 1998)).
221. See Findley, supra note 32, at 337.