GIST: "On June 20, 1991, two police officers brought an African American man named Anthony Gray into custody for questioning related to the unsolved rape and murder of a woman in Calvert County, Maryland.1 During the interrogation, the detectives lied to Mr. Gray about the evidence police held against him. They told him that two other men had confessed to involvement in the crime and had named Mr. Gray as the killer.2 They told him that he had failed two hour-long polygraph tests.3 And they told him that they “knew” he had committed the crime.4 In reality, no one had confessed to the crime or identified Anthony Gray as the perpetrator.5 Mr. Gray did not fail the polygraph tests.6 Instead, the police had gathered “a substantial amount of exculpating evidence” during the period of time when Mr. Gray was being interrogated.7 Witnesses reported having seen a lone white man driving from the crime scene in the victim’s car, and the hair evidence that police recovered could have only come from a Caucasian man.8 But after a series of interrogations in which he was repeatedly confronted with the fabricated evidence against him, Mr. Gray pled guilty.9 The court imposed two concurrent life sentences.10 Anthony Gray spent more than seven years behind bars before he was exonerated on the basis of DNA evidence.11 With the benefit of hindsight, Anthony Gray’s ordeal appears to be an unambiguous miscarriage of justice. Nevertheless, current law sanctions the practice of confronting suspects with false evidence against them during interrogations—a practice social scientists have termed “the false evidence ploy”12—and the Supreme Court has imposed no requirements for disclosure of false evidence during plea negotiations.13 The circumstances that led to Mr. Gray’s wrongful conviction are not an anomaly; the law is bereft of safeguards to prevent suspects from making plea decisions based on inaccurate information about their likelihood of conviction at trial. This Comment draws attention to the false evidence ploy’s danger of triggering false guilty pleas. To date, legal scholarship addressing this type of police trickery14 has focused on its risk of producing false confessions,15 and with good reason: more than ten percent of the nearly two thousand American exonerees falsely confessed to the crime for which they were wrongfully convicted.16 But these statistics fail to capture the bigger picture. Approximately ninety-four percent of state convictions and ninety-seven percent of federal convictions result from guilty pleas.17 Indeed, a guilty plea—as opposed to a confession—constitutes a larger victory for law enforcement officers who believe, rightly or wrongly, that a suspect committed a crime.18 After a guilty plea is entered, there will be no trial, and barriers to appeal are nearly insurmountable.19 Reversals of convictions resulting from guilty pleas are therefore extremely rare.20 Accordingly, there is a dearth of false guilty plea exonerations and associated case law21 to fuel wrongful convictions literature, particularly on the topic of the false evidence ploy. This Comment aims to fill that gap. In a country where more than two million people are incarcerated,22 even a marginally heightened risk of false guilty pleas translates into a number of unwarranted person-years behind bars that is difficult to contemplate and impossible to justify. The Comment proceeds in two Parts. Part I argues that the legal and theoretical justifications for police trickery as a means to secure confessions do not remain viable in the context of plea bargaining. Courts apply the legal standard articulated in Frazier v. Cupp23 only when suspects do not plead guilty and instead exercise their right to a trial, and the criminal justice system provides few tools to ameliorate the coercive effects of the false evidence ploy during the plea-bargaining process. Part II proposes two doctrinal routes for courts to mitigate the damaging effects of the false evidence ploy in plea-bargaining outcomes without overruling Supreme Court precedent. It cites39 the foundational case addressing the permissibility of the false evidence ploy, Frazier v. Cupp, in which the defendant brought a habeas corpus action to challenge his murder conviction in Oregon.40 Frazier’s attorneys made a variety of arguments, including the claim that Frazier’s confession was involuntary because the police falsely told him that they had secured a confession from his companion.41 The Court devoted little space to this claim in its opinion, merely noting, “The fact that the police misrepresented the statements that [Frazier’s companion] had made is, while relevant, insufficient in our view to make this otherwise voluntary confession inadmissible. These cases must be decided by viewing the ‘totality of the circumstances.’”42 In the decades since Frazier was published, lower courts have consistently deployed the opinion as legal cover for far more coercive uses of the false evidence ploy than the fabricated codefendant confession at play in Frazier itself. For example, the North Carolina Supreme Court cited Frazier in support of its decision to uphold a confession generated after police presented the suspect with a bloody knife and falsely asserted that it was found at the scene of the crime with the suspect’s fingerprints on it.43 Lower courts also have cited Frazier in support of decisions to admit confessions obtained after police falsely told a suspect that his fingerprints had been found at the scene of the crime44 or on the murder weapon;45 that they possessed DNA evidence proving his guilt;46 that his hair47 or shoe-prints48 were found at the location of the crime; that his semen was recovered from the crime scene;49 that he failed a polygraph test50 or gunshot residue test;51 and that eyewitnesses identified him as the perpetrator.52 Further examples abound...Psychologists have teased out two causal mechanisms by which the false evidence ploy may give rise to false confessions. Both apply with equal force to guilty pleas. First, suspects may falsely confess “as an act of compliance when they perceive that there is strong evidence against them.”55 Second, innocent suspects confronted with evidence that law enforcement claims to prove their guilt as an “incontrovertible fact” may falsely confess because they have “come to internalize the belief that [they] committed the crime without awareness.”56 The key factor underlying each of these psychological processes is the defendant’s perception that his or her likelihood of conviction at trial is high—a perception that has been found to be particularly important in plea decision making.57 The false evidence ploy enables interrogators to artificially inflate an innocent suspect’s estimated likelihood of conviction and thereby make a plea bargain appear “rational.”58 Innocent suspects who were not at the crime scene may not know whether there were witnesses or physical evidence left behind; they also may be uncertain of whether they committed the crime if, for example, they were intoxicated or are mentally handicapped.59 In light of research indicating that innocent defendants are “on average more risk averse” than guilty ones,60 it is not difficult to recognize the possibility that an innocent defendant would accept a relatively small punishment by pleading guilty in order to avoid risking a greater one after trial. Further pressures to plead guilty when facing a substantial probability of conviction exacerbate this effect. These include the financial cost of a trial, the stress of waiting for a court date and preparing for an uncertain result, and—for defendants whose plea offers do not involve incarceration—the ability to return home.61 Even though the number of innocents who have pleaded guilty is “inherently unknowable,”62 the literature makes clear that “plea bargaining has an innocence problem."...This Comment contends that interrogators’ use of the false evidence ploy exacerbates the problem of wrongful convictions in a criminal justice system where most convictions are secured through plea agreements. Courts’ expansive readings of Frazier give police the green light to deliberately mislead suspects about their probability of conviction at trial. And once an innocent suspect is convinced that law enforcement possesses inculpating evidence that is likely to persuade a jury, entering a guilty plea may appear rational in a plea-bargaining system that does not obligate the state to disclose its use of falsified evidence. While the false evidence ploy is merely one of many risk factors for wrongful conviction, reducing interrogators’ reliance on this mode of deception would move the ball forward in protecting the innocent from criminal sanction. For people like Anthony Gray, such a change could have made all the difference."
The entire article can be found at the link below:
PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/